Contract
EXHIBIT
10.12
ADOBE
SYSTEMS INCORPORATED
INDEMNITY
AGREEMENT
This
Agreement is made and entered into this · day of ·, 200· by and
between Adobe Systems
Incorporated, a Delaware corporation (the “Corporation”), and
______________________ (“Agent”).
RECITALS
Whereas,
Agent performs a valuable service to the Corporation in the capacity as a
director, officer, employee or agent of the Corporation;
Whereas,
the stockholders of the Corporation have adopted bylaws (the “Bylaws”) and the Amended and
Restated Certificate of Incorporation of the Corporation (the “Certificate”) providing for
the indemnification of the directors, officers, employees and other agents of
the Corporation, including persons serving at the request of the Corporation in
such capacities with other corporations or enterprises, as authorized by the
Delaware General Corporation Law, as amended (the “Code”);
Whereas,
the Bylaws, the Certificate and the Code, by their non-exclusive nature, permit
contracts between the Corporation and its directors, officers, employees and
other agents with respect to indemnification of such persons; and
Whereas,
in order to induce Agent to continue to serve as a director, officer, or
employee of the Corporation, the Corporation has determined and agreed to enter
into this Agreement with Agent;
Now,
Therefore, in consideration of Agent's continued service as a director,
officer, employee or agent of the Corporation, the parties hereto agree as
follows:
AGREEMENT
1. DEFINITIONS.
(a) Expenses. For
purposes of this Agreement, the term “Expenses” shall be broadly
construed and shall include, without limitation, all direct and indirect costs
of any type or nature whatsoever (including, without limitation, all attorneys’,
witness, or other professional fees and related disbursements, and other
out-of-pocket costs of whatever nature), actually and reasonably incurred by
Agent in connection with the investigation, defense or appeal of a Proceeding or
establishing or enforcing a right to indemnification under this Agreement, the
Code or otherwise, and amounts paid in settlement by or on behalf of Agent, but
shall not include any judgments, fines or penalties actually levied against
Agent for such individual’s violations of law.
(b) Change in
Control. For purposes of this Agreement, a “Change in Control” shall be
deemed to have occurred if (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Act”)), other than a trustee
or other
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fiduciary
holding securities under an employee benefit plan of the Corporation or a
corporation owned directly or indirectly by the stockholders of the Corporation
in substantially the same proportions as their ownership of stock of the
Corporation, becomes the “beneficial owner” (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Corporation representing more
than twenty percent (20%) of the total voting power represented by the
Corporation's then outstanding Voting Securities; or (ii) there is
consummated a merger, consolidation or similar transaction involving (directly
or indirectly) the Corporation if, immediately after the consummation of such
merger, consolidation or similar transaction, the stockholders of the
Corporation immediately prior thereto do not own, directly or indirectly, either
(A) outstanding Voting Securities representing more than fifty percent (50%) of
the combined outstanding voting power of the surviving entity in such merger,
consolidation or similar transaction or (B) more than fifty percent (50%) of the
combined outstanding voting power of the parent of the surviving entity in such
merger, consolidation or similar transaction.
(c) Proceeding. For
purposes of this Agreement, the term “Proceeding” shall mean and
shall include, without limitation, any threatened, pending, or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing, whether brought in the right of or by the
Corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature, and whether formal or informal in any case, in which Agent
was, is or will be involved as a party or otherwise by reason of the fact
that: (i) Agent is or was a director, officer, employee or agent
of the Corporation; (ii) Agent took an action while acting as director,
officer, employee or agent of the Corporation; or (iii) Agent is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, and in any such case described above, whether
or not serving in any such capacity at the time any Expense is incurred for
which indemnification, reimbursement, or advancement of Expenses may be provided
under this Agreement.
(d) Voting
Securities. For purposes of this Agreement, “Voting Securities” shall mean
any securities of the Corporation that vote generally in the election of
directors.
2. SERVICES TO THE CORPORATION.
Agent will serve, at the will of the Corporation or under separate contract, if
any such contract exists, as a director, officer, or employee of the Corporation
or as a director, officer or other fiduciary of an affiliate of the Corporation
(including, but not limited to, any employee benefit plan of the Corporation)
faithfully and to the best of Agent's ability so long as Agent is duly elected
and qualified in accordance with the provisions of the Bylaws or other
applicable charter documents of the Corporation or such affiliate; provided,
however, that Agent may at any time and for any reason resign from such position
(subject to any contractual obligation that Agent may be subject to apart from
this Agreement) and that the Corporation or any affiliate shall have no
obligation under this Agreement to continue Agent in any such
position.
3. INDEMNITY OF
AGENT. The Corporation hereby agrees to hold harmless and
indemnify Agent with respect to any Proceeding or other matter to the fullest
extent authorized or permitted by the provisions of the Bylaws, the Certificate
and the Code, as the same may be amended from time to time (but, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than the Bylaws, the Certificate or the
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Code
permitted prior to adoption of such amendment). These obligations and
the other obligations of the Corporation in this Agreement apply regardless of
whether the conduct giving rise to the obligations occurred before or occur
after the date this Agreement is executed.
4. PARTIAL
INDEMNIFICATION. Agent shall be entitled under this Agreement
to indemnification by the Corporation for a portion of the Expenses that Agent
becomes legally obligated to pay in connection with any Proceeding even if not
entitled hereunder to indemnification for the total amount thereof, and the
Corporation shall indemnify Agent for the portion thereof to which Agent is
entitled.
5. NOTIFICATION AND DEFENSE OF
CLAIM. Not later than thirty (30) days after receipt by Agent
of notice of the commencement of any Proceeding, Agent will, if a claim in
respect thereof is to be made against the Corporation under this Agreement,
notify the Corporation of the commencement thereof; but the failure so to notify
the Corporation will not relieve the Corporation from any liability which it may
have to Agent under this Agreement or otherwise. With respect to any such
Proceeding as to which Agent notifies the Corporation of the commencement
thereof:
(a) the
Corporation will be entitled to participate therein at its own
expense;
(b) except
as otherwise provided below, the Corporation may, at its option and jointly with
any other indemnifying party similarly notified and electing to assume such
defense, assume the defense thereof, with counsel reasonably satisfactory to
Agent. After notice from the Corporation to Agent of its election to assume the
defense thereof, the Corporation will not be liable to Agent under this
Agreement for any Expenses subsequently incurred by Agent in connection with the
defense thereof except for reasonable costs of investigation or otherwise as
provided below. Agent shall have the right to employ separate counsel in such
Proceeding but the Expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at the expense of
Agent; provided, however, that the Expenses of Agent's separate counsel shall be
borne by the Corporation if (i) the employment of counsel by Agent has been
authorized by the Corporation, (ii) Agent reasonably shall have concluded that
there may be a conflict of interest between the Corporation and Agent in the
conduct of the defense of such Proceeding, or (iii) the Corporation in fact
shall not have employed counsel to assume the defense of such Proceeding or
shall at any time have ceased to actively pursue the defense thereof. The
Corporation shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Corporation or as to which Agent shall have made
the conclusion provided for in clause (ii) above; and
(c) the
Corporation shall not be liable to indemnify Agent under this Agreement for any
amounts paid in settlement of any Proceeding effected without its written
consent, which shall not be unreasonably withheld or delayed. The
Corporation shall be permitted to settle any Proceeding except that it shall not
settle any Proceeding in any manner which would impose any penalty or limitation
on Agent without Agent's written consent, which may be given or withheld in
Agent's sole discretion.
6. EXPENSES. Promptly
following request by Agent for the advancement of Expenses, the Corporation
shall advance, prior to the final disposition of any Proceeding,
all
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Expenses
incurred by Agent in connection with such Proceeding upon receipt of an
undertaking by or on behalf of Agent to repay such amounts if it shall
ultimately be determined by a final judicial decision from which there is no
further right of appeal that Agent is not entitled to be
indemnified.
7. ENFORCEMENT. Any right to
indemnification or advances granted by this Agreement to Agent shall be
enforceable by or on behalf of Agent in any court of competent jurisdiction if
(a) the claim for indemnification or advances is denied, in whole or in part, or
(b) no disposition of such claim is made within ninety (90) days of request
therefor. Agent, in such enforcement action, if successful in whole
or in part, also shall be entitled to be paid the Expense of prosecuting Agent's
claim. Neither the failure of the Corporation (including its Board of Directors
or its stockholders) to have made a determination prior to the commencement of
such enforcement action that indemnification of Agent is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors or its stockholders) that such indemnification is improper
shall be a defense to the action or create a presumption that Agent is not
entitled to indemnification under this Agreement or otherwise.
8. INSURANCE.
(a) Unless
otherwise approved by the Board of Directors at any time prior to a Change in
Control, the Corporation shall obtain and maintain directors’ and officers’
liability insurance (“D&O
Insurance”) with respect to which Agent shall be
insured. Notwithstanding any other provision of this Agreement, the
Corporation shall not be obligated to indemnify the Agent for Expenses which
have been previously paid directly to the Agent by D&O
Insurance. If the Corporation has D&O Insurance in effect at the
time the Corporation receives from Agent any notice of the commencement of a
Proceeding, the Corporation shall give prompt notice of the commencement of such
Proceeding to the insurer(s) in accordance with the procedures set forth in the
policy(ies). The Corporation shall thereafter take all reasonably
necessary action to cause such insurers to pay all amounts payable as a result
of such Proceeding in accordance with the terms of such
policy(ies).
(b) In
the event that (i) the Corporation obtains a new D&O Insurance policy
for any period following the termination of a prior D&O Insurance policy,
and such new D&O Insurance policy does not provide for prior acts coverage,
or (ii) the Corporation does not obtain a new D&O Insurance policy
following the termination of a prior D&O Insurance policy (in either case,
only if Agent is insured under the prior D&O Insurance policy), then, unless
otherwise determined by the Board of Directors at any time prior to a Change in
Control, the Corporation shall add to the D&O Insurance policy or the
applicable successor D&O Insurance policy a run-off endorsement (the “Endorsement”) on the existing
D&O Insurance policy or the applicable successor D&O Insurance policy
subject to the same terms and conditions in all material
respects. Unless otherwise approved by the Board of Directors prior
to the date on which the Endorsement is obtained, the Endorsement shall be
non-cancelable and shall provide for at least a six-year extended coverage
period for any and all claims covered under the D&O Insurance
policy. The Corporation shall pay all premiums, commissions and other
costs or charges incurred in obtaining the Endorsement and shall promptly
deliver to Agent a Certificate of Confirmation of Insurance with respect to such
Endorsement.
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9. SUBROGATION. In the
event of payment under this Agreement, the Corporation shall be subrogated to
the extent of such payment to all of the rights of recovery of Agent, who shall
execute all documents required and shall do all acts that may be reasonably
necessary to secure such rights, including the execution of such documents
necessary to enable the Corporation effectively to bring suit to enforce such
rights.
10. NON-EXCLUSIVITY AND SURVIVAL OF
RIGHTS.
(a) All
agreements and obligations of the Corporation contained herein shall continue
during the period Agent is a director, officer, employee or other agent of the
Corporation (or is or was serving at the request of the Corporation as a
director, officer, employee or other agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise) and shall
continue thereafter so long as Agent shall be subject to any possible
Proceeding. The benefits hereunder shall inure to the benefit of the
heirs, executors and administrators and assigns of Agent. The rights conferred
on Agent by this Agreement shall not be exclusive of any other right Agent may
have or hereafter acquire under any statute, provision of the Certificate or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in Agent's official capacity and as to action in
another capacity while holding office.
(b) The
obligations and duties of the Corporation to Agent under this Agreement shall be
binding on the Corporation and its successors and assigns until terminated in
accordance with its terms. The Corporation shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to the Corporation or to all or substantially all of the business or
assets of the Corporation, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform if no such succession had taken place.
(c) No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Agent under this Agreement in respect of
any action taken or omitted by such Agent prior to such amendment, alteration or
repeal. To the extent that a change in the Code, whether by statute
or judicial decision, permits greater indemnification or advancement of Expenses
than would be afforded currently under the Certificate, Bylaws and this
Agreement, it is the intent of the parties hereto that Agent shall enjoy by this
Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, by Agent shall not prevent the concurrent
assertion or employment of any other right or remedy by Agent.
11. SEVERABILITY. Each of the
provisions of this Agreement is a separate and distinct agreement and
independent of the others, so that if any provision hereof shall be held to be
invalid for any reason, such invalidity contained herein or unenforceability
shall not affect the validity or enforceability of the other provisions hereof.
Furthermore, if this Agreement shall be invalidated in its entirety on any
ground, then the Corporation nevertheless shall indemnify
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Agent to
the fullest extent provided by the Certificate, Bylaws, the Code or any other
applicable law.
12. GOVERNING LAW. This Agreement
shall be governed exclusively by and construed according to the laws of the
State of Delaware, as applied to contracts between Delaware residents entered
into and to be performed entirely within Delaware.
13. AMENDMENT, MODIFICATION, WAIVER AND
TERMINATION. No amendment, modification, termination or cancellation of
this Agreement shall be effective unless signed in writing by both parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
14. ENTIRE
AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings and negotiations, written and oral, between the
parties with respect to the subject matter of this Agreement; provided, however,
that this Agreement is a supplement to and in furtherance of the Certificate,
Bylaws, the Code and any other applicable law, and shall not be deemed a
substitute therefore, nor to diminish or abrogate any
rights of Agent thereunder.
15. INTERPRETATION OF
AGREEMENT. It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification
to Agent to the fullest extent now or hereafter permitted by law.
16. IDENTICAL
COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed for all purposes to be an original
but all of which together shall constitute this Agreement.
17. HEADINGS. The
headings of the sections of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to affect the
construction hereof.
18. NOTICES. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) upon delivery if
delivered by hand to the party to whom such communication was directed or (ii)
upon the third business day after the date on which such communication was
mailed if mailed by certified or registered mail with postage
prepaid:
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(a) If
to Agent, at the address indicated on the signature page hereof.
(b) If
to the Corporation, to
Adobe Systems
Incorporated
000 Xxxx Xxxxxx
XX Xxx 0000
Xxx Xxxx,
XX 00000-0000
or to such
other address as may have been furnished to Agent by the Corporation, or to such
other address as Agent may direct in writing the Corporation to
use.
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In Witness
Whereof, the parties hereto have executed this Indemnity Agreement on and
as of the day and year first above written.
ADOBE
SYSTEMS INCORPORATED
By: ______________________________
Title:_____________________________
AGENT
_________________________________
(Signature)
Print
Name:
_________________________________
Address: c/o Adobe
Systems Incorporated
000 Xxxx Xxxxxx
XX Xxx 0000
Xxx Xxxx,
XX 00000-0000
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