EXHIBIT 10.6.2
AMENDMENT TO
INDEMNITY AGREEMENT
THIS AMENDMENT to Indemnity Agreement (this "Amendment") is entered into by
and between Sterling Commerce, Inc., a Delaware corporation (the "Corporation"),
and _______________ ("Indemnitee"), a Director and/or Officer of the
Corporation.
WHEREAS, the Corporation and Indemnitee entered into an Indemnity
Agreement, dated as of ___________ (the "Agreement");
WHEREAS, capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed to them in the Agreement; and
WHEREAS, for good and valuable consideration, the receipt of which is
hereby acknowledged, the Corporation and Indemnitee desire to amend the
Agreement as set forth below.
NOW, THEREFORE, the Corporation and Indemnitee agree as follows:
1. The first paragraph of Paragraph 7 of the Agreement shall be deemed to
be deleted in its entirety and replaced with the following:
7. Right of Indemnitee to Indemnification Upon Application: Procedure
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Upon Application. Without limiting the obligation of the Corporation to
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promptly make payments in respect of Expenses in accordance with Paragraph
6, any indemnification under Paragraphs 3 and 4 shall be made no later than
45 days after receipt by the Corporation of the written request of
Indemnitee, unless a determination is made within said 45-day period by (1)
the Board of Directors of the Corporation by a majority vote of a quorum
consisting of Directors who are not and were not parties to the relevant
Proceeding, or (2) independent legal counsel in a written opinion (which
counsel shall be appointed if such a quorum is not obtainable) that
Indemnitee has not met the relevant standards for indemnification set forth
in Paragraphs 3 and 4; provided, however, that following a Change in
Control of the Corporation, any determination that Indemnitee has not met
the relevant standards for indemnification may only be made by independent
counsel selected by Indemnitee (and reasonably satisfactory to the
Corporation) in a written opinion. The fees and expenses of such counsel
shall be paid by the Corporation. As used herein, the term "Change in
Control" shall have the meanings set forth in Annex 1.
2. In all other respects, the terms of the Agreement will remain in full
force and effect.
This Amendment is effective as of September 1, 1999.
STERLING COMMERCE, INC.
By:
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Xxxxxx X. Xxxxxx
Senior Vice President and General
Counsel
INDEMNITEE
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ANNEX1
"CHANGE IN CONTROL" DEFINED
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"Change in Control" means the occurrence of any of the following events:
(i) The Corporation is merged, consolidated or reorganized into or
with another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than two-thirds of the
combined voting power of the then-outstanding securities entitled to vote
generally in the election of directors ("Voting Stock") of such corporation
or person immediately after such transaction are held in the aggregate by
the holders of Voting Stock of the Corporation immediately prior to such
transaction;
(ii) The Corporation sells or otherwise transfers all or
substantially all of its assets to another corporation or other legal
person, and as result of such sale or transfer less than two-thirds of the
combined voting power of the then-outstanding Voting Stock of such
corporation or person immediately after such sale or transfer is held in
the aggregate by the holders of Voting Stock of the Corporation immediately
prior to such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
disclosing that any person (as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act) had become the beneficial
owner (as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of
securities representing 20% or more of the combined voting power of the
then-outstanding Voting Stock of the Corporation.
(iv) The Corporation files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing
in response to Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein) that a change in control of the Corporation has
occurred or will occur in the future pursuant to any then-existing contract
or transmission; or
(v) If, at any time during any period of two consecutive years,
individuals who at the beginning of any such period constitute the
directors of the Corporation cease for any reason to constitute at least a
majority thereof; provided, however, that for purposes of this Section (v)
each director who is first elected, or first nominated for election by the
Corporation's stockholders, by a vote of at least two-thirds of the
directors of the Corporation (or a committee thereof) then still in office
who were directors of the Corporation at the beginning of any such period
will be deemed to have been a director of the Corporation at the beginning
of such period.
Notwithstanding the foregoing provision of Sections (iii) or (iv), unless
otherwise determined in a specific case by majority vote of the board of
directors of the Corporation, a "Change in Control" shall not be deemed to have
occurred for purposes of Section (iii) or (iv) solely because (A) the
Corporation, (B) an entity in which the Corporation directly or indirectly
beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"),
or (C) any Corporation-sponsored employee stock ownership plan or any other
employee benefit plan of the Corporation or any Subsidiary either files or
becomes obligated to file a report or a proxy statement under or in response to
Schedule 13D, Schedule 14D-1, Form 8-K, or Schedule 14A (or any successor
schedule, form or report or item therein) under the Exchange Act disclosing
beneficial ownership by it of shares of Voting Stock of the Corporation, whether
in excess of 20% or otherwise, or because the Corporation reports that a change
in control of the Corporation has occurred or will occur in the future by reason
of such beneficial ownership or any increase or decrease thereof.
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