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INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into effective as of ____________
__, 2000 between Tricord Systems, Inc., a Delaware corporation (the "Company"),
and ___________________ (the "Indemnitee").
A. The Company is concerned with the retention of qualified, competent
persons to serve as directors and officers of the Company.
B. Highly competent persons are becoming increasingly reluctant to
serve publicly-held corporations as directors and officers or in other
capacities unless they are provided with adequate protection through insurance
and/or adequate indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the corporations
they serve.
C. As an inducement for the Indemnitee to serve or continue to serve as
a director or officer of the Company, the Indemnitee requires substantial
protection against personal liability for the Indemnitee's actions in serving as
a director or officer of the Company.
D. The Company's Certificate of Incorporation and Bylaws currently
provide for indemnification of officers and directors of the Company to the
fullest extent permitted under Delaware law.
E. In order to provide the Indemnitee with specific contractual
assurance that the protection provided by the Company's Certificate of
Incorporation and Bylaws will be available to the Indemnitee (regardless of,
among other things, any amendment to or revocation of such Certificate of
Incorporation and Bylaws or any change in the composition of the Company's Board
of Directors or acquisition transaction relating to the Company), the Company
wishes to provide for the indemnification of, and the advancing of expenses to,
the Indemnitee to the fullest extent (whether partial or complete) permitted by
law and as set forth in this Agreement.
F. In addition, to the extent insurance is maintained, the Company
wishes to provide for the continued coverage of the Indemnitee under the
Company's directors' and officers' liability insurance policies.
NOW THEREFORE, in consideration of the foregoing and the covenants
contained herein, the Company and the Indemnitee do hereby agree as follows:
1. Definitions. For the purposes of this Agreement, capitalized terms
have the following meaning:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" means the occurrence of any one or
more of the following:
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(1) the sale, lease, exchange or other transfer,
directly or indirectly, of substantially all of the assets of
the Company (in one transaction or in a series of related
transactions) to a person or entity that is not controlled by
the Company;
(2) the approval by the stockholders of the Company
of any plan or proposal for the liquidation or dissolution of
the Company;
(3) a merger or consolidation to which the Company is
a party if the stockholders of the Company immediately prior
to the effective date of such merger or consolidation have
"beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act), immediately following the effective date of
such merger or consolidation, of securities of the surviving
corporation representing 70% or less of the combined voting
power of the surviving corporation's then outstanding
securities ordinarily having the right to vote at elections of
directors;
(4) any person becomes after the effective date of
this Agreement the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of 30%
or more of the combined voting power of the Company's
outstanding securities ordinarily having the right to vote at
elections of directors;
(5) the Continuity Directors cease for any reason to
constitute at least a majority of the Board; or
(6) a change in control of the Company of a nature
that would be required to be reported pursuant to Section 13
or 15(d) of the Exchange Act, whether or not the Company is
then subject to such reporting requirements.
(c) "Continuity Director" means any individual who is a member
of the Board on the Effective Date and any individual who subsequently
becomes a member of the Board whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at
least a majority of the Continuity Directors (either by specific vote
or by approval of the Company's proxy statement in which such
individual is named as a nominee for director without objection to such
nomination).
(d) "Corporate Status" describes the status of a person who is
or was a director or officer of the Company or is or was serving at the
request of the Company as a director, officer, employee or agent of any
Other Enterprise.
(e) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(f) "Dispute" means any of the following events: (i) a
determination is made pursuant to Section 6 of this Agreement that the
Indemnitee is not entitled to indemnification under this Agreement;
(ii) advancement of Expenses is not timely made pursuant to Section 5
of this Agreement; (iii) the determination of entitlement to
indemnification to be made pursuant to Section 6(b) of this Agreement
has not been made in the manner or in the time specified in such
section; or (iv) payment of indemnification
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is not made within ten (10) days after a determination has been made
that the Indemnitee is entitled to indemnification.
(g) "Effective Date" means the date first set forth above.
(h) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(i) "Expenses" includes all attorneys' fees reasonably
incurred, retainers, court costs, transcript costs, expert fees,
witness fees, travel expenses, duplicating and printing costs and all
other disbursements or expenses of the type customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, or being or preparing to be a witness in any
Proceeding, but does not include the amount of judgments, fines and
penalties against the Indemnitee.
(j) "Good Faith" means the Indemnitee having acted in good
faith and in a manner that the Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect
to any criminal Proceeding, having had no reasonable cause to believe
that the Indemnitee's conduct was unlawful.
(k) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent: (i) the Company or the Indemnitee in any matter material to
either such party, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" does not include any person
who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either
the Company or the Indemnitee in an action to determine the
Indemnitee's rights under this Agreement.
(l) "Other Enterprise" means the Company and any other
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise of which the Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary.
(m) "Proceeding" includes any action, suit, arbitration,
alternative dispute resolution mechanism, investigation, administrative
hearing or any other actual, threatened or completed proceeding whether
civil, criminal, administrative or investigative, other than one
initiated by the Indemnitee . For purposes of the foregoing sentence, a
"Proceeding" will not be deemed to have been initiated by the
Indemnitee where the Indemnitee seeks pursuant to Section 8 of this
Agreement to enforce the Indemnitee's rights under this Agreement.
2. Term of Agreement. This Agreement will continue until and terminate
upon the later of (i) 10 years after the date that the Indemnitee has ceased to
serve as a director, officer, employee, agent or fiduciary of the Company or any
Other Enterprise, or (ii) the final termination (as to which all rights of
appeal have been exhausted or lapsed) of all pending Proceedings in respect of
which the Indemnitee is granted rights of indemnification or
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advancement of Expenses hereunder and of any proceeding commenced by the
Indemnitee pursuant to Section 8 of this Agreement.
3. Agreement to Serve. The Indemnitee agrees to serve or continue to
serve as a director or officer of the Company for so long as the Indemnitee is
duly appointed or elected and qualified or until such time as the Indemnitee
resigns from such position; provided, however, that nothing contained in this
Agreement is intended to impose any obligation or right on the Company or the
Indemnitee to continue the employment or service of the Indemnitee with the
Company or any Other Enterprise.
4. Indemnification.
(a) In General. In connection with any Proceeding, the Company
agrees to indemnify, and advance Expenses, to the Indemnitee as
provided in this Agreement and to the fullest extent permitted by
applicable law in effect on the date hereof and to such greater extent
as applicable law may thereafter from time to time permit.
(b) Proceedings Other Than Proceedings by or in the Right of
the Company. If, by reason of the Indemnitee's Corporate Status, the
Indemnitee is, or is threatened to be made, a party to any Proceeding,
other than a Proceeding by or in the right of the Company, the Company
will indemnify the Indemnitee against Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred
by the Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding or any claim, issue or matter therein, if the Indemnitee
acted in Good Faith .
(c) Proceedings by or in the Right of the Company. If, by
reason of the Indemnitee's Corporate Status, the Indemnitee is, or is
threatened to be made, a party to any Proceeding brought by or in the
right of the Company to procure a judgment in its favor, the Company
will indemnify the Indemnitee against Expenses, judgments, penalties,
and amounts paid in settlement, actually and reasonably incurred by the
Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding or any claim, issue or matter therein, if the Indemnitee
acted in Good Faith. Notwithstanding the foregoing, no such
indemnification will be made if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification will nevertheless be made by the Company in such event
if and only to the extent that the Court of Chancery of the State of
Delaware (or the court in which such Proceeding has been brought or is
pending) determines.
(d) Partial Indemnity. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some
or a portion of the Expenses, judgments, penalties, fines or amounts
paid in settlement in connection with any Proceeding or any claim,
issue or matter therein but not, however, for all of the total amount
thereof, the Company will nevertheless indemnify the Indemnitee for the
portion thereof to which the Indemnitee is entitled.
(e) Indemnification of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, to
the extent that the Indemnitee
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is, by reason of the Indemnitee's Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, the
Indemnitee will be indemnified to the maximum extent permitted by
applicable law against all Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by the
Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding or any claim, issue or matter therein. If the Indemnitee is
not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues
or matters in such Proceeding, the Company will indemnify the
Indemnitee to the maximum extent permitted by applicable law against
all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred by the Indemnitee or on
the Indemnitee's behalf in connection with each successfully resolved
claim, issue or matter. For purposes of this Section 4(e), and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, will be deemed to
be a successful result as to such claim, issue or matter.
(f) Indemnification for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that the
Indemnitee is, by reason of the Indemnitee's Corporate Status, a
witness in any Proceeding, the Indemnitee will be indemnified against
all Expenses actually and reasonably incurred by the Indemnitee or on
the Indemnitee's behalf in connection with such Proceeding or any
claim, issue or matter therein.
5. Advancement of Expenses. Notwithstanding any provision to the
contrary in Section 6 of this Agreement, the Company will advance all Expenses
that, by reason of the Indemnitee's Corporate Status, were incurred by or on
behalf of the Indemnitee in connection with any Proceeding, within 20 days after
the receipt by the Company of a statement or statements from the Indemnitee
requesting such advance or advances, whether prior to or after final disposition
of such Proceeding. Such statement or statements must reasonably evidence the
Expenses incurred by the Indemnitee and, to the extent required by applicable
law, must include or be preceded or accompanied by an undertaking by or on
behalf of the Indemnitee to repay any Expenses if it is ultimately determined
(as to which all rights of appeal have been exhausted or lapsed) that the
Indemnitee is not entitled to be indemnified against such Expenses. Any
advancement and undertaking to repay pursuant to this Section 5 will be
unsecured and interest free. Advancement of Expenses pursuant to this Section 5
shall not require approval of the Board or the stockholders of the Company, or
of any other person or body. The President, or at the President's request, the
Secretary of the Company shall promptly advise the Board in writing of the
request for advancement of Expenses, of the amount and other details of the
advance and of the undertaking to make repayment pursuant to the Section 5.
6. Procedures for Determination of Entitlement to Indemnification.
(a) Notice of Proceedings; Initial Request. The Indemnitee
agrees promptly to notify the Company in writing upon being served with
any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter that may be subject
to indemnification or advancement of Expenses under this Agreement;
provided, however, that failure of the Indemnitee to give such notice
promptly will not relieve the Company from any liability that it may
have to the
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Indemnitee otherwise than under this Agreement and will relieve the
Company from liability under this Agreement only to the extent that the
Company has been prejudiced. To obtain indemnification under this
Agreement, the Indemnitee must submit to the Company (Attention:
President and Secretary) at its principal executive office a written
request, including therein or therewith such documentation and
information as is reasonably available to the Indemnitee and is
reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification under this Agreement. The
President and/or Secretary of the Company will promptly advise the
Board in writing that the Indemnitee has requested indemnification.
(b) Method of Determination. A determination with respect to
the Indemnitee's entitlement to indemnification will be made within
ninety (90) days after receipt by the Company of the request for
indemnification as follows:
(1) If a Change in Control has occurred, unless the
Indemnitee requests in writing that such determination be made
in accordance with clause (2) of this Section 6(b), the
determination will be made by Independent Counsel in a written
opinion to the Board, a copy of which will be delivered to the
Indemnitee.
(2) If a Change of Control has not occurred, the
determination will be made by the Board by a majority vote of
the Disinterested Directors (even though less than a quorum)
or, if there are no Disinterested Directors or such
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which will be
delivered to the Indemnitee.
(c) Selection, Payment and Discharge of Independent Counsel.
In the event that the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 6(b) of this
Agreement, the Independent Counsel will be selected, paid and
discharged in the following manner:
(1) If a Change of Control has not occurred, the
Independent Counsel will be selected by the Board, and the
Company will give written notice to the Indemnitee advising
the Indemnitee of the identity of the Independent Counsel so
selected.
(2) If a Change of Control has occurred, the
Independent Counsel will be selected by the Indemnitee (unless
the Indemnitee requests that such selection be made by the
Board, in which event clause (1) of this Section 6(c)
applies), and the Indemnitee must give written notice to the
Company advising it of the identity of the Independent Counsel
so selected.
(3) Following the initial selection described in
clauses (1) and (2) of this Section 6(c), the Indemnitee or
the Company, as the case may be, may, within seven days after
such written notice of selection has been given, deliver to
the other party a written objection to such selection. Such
objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements
of "Independent Counsel" as defined in this Agreement, and the
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objection must set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the
person so selected will act as Independent Counsel. If such
written objection is made, the Independent Counsel so selected
may not serve as Independent Counsel unless and until a court
has determined that such objection is without merit.
(4) Either the Company or the Indemnitee may petition
the Court of Chancery of the State of Delaware if the parties
have been unable to agree on the selection of Independent
Counsel within twenty (20) days after submission by the
Indemnitee of a written request for indemnification pursuant
to Section 6(a) of this Agreement. Such petition will request
a determination whether an objection to the party's selection
is without merit and/or seek the appointment as Independent
Counsel of a person selected by the Court or by such other
person as the Court may designate. A person so appointed will
act as Independent Counsel under Section 6(b) of this
Agreement.
(5) The Company will pay any and all reasonable fees
and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to this
Agreement, and the Company will pay all reasonable fees and
expenses incident to the procedures of this Section 6(c),
regardless of the manner in which such Independent Counsel was
selected or appointed.
(6) Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 8(a) of this
Agreement, Independent Counsel will be discharged and relieved
of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
(d) Participation in Proceeding; Assumption of Defense. With
respect to any Proceeding for which indemnification is requested, the
Company will be entitled to participate therein at its own expense and,
except as otherwise provided below, will be entitled to assume the
defense thereof with counsel reasonably satisfactory to the Indemnitee.
After notice from the Company to the Indemnitee of its election to
assume the defense of a Proceeding, the Company will not be liable to
the Indemnitee for any Expenses subsequently incurred by the Indemnitee
in connection with the defense thereof, other than as provided below.
The Company will not settle a Proceeding in any manner that would
impose any judgment, fine, penalty or limitation on the Indemnitee
without the Indemnitee's written consent. The Indemnitee will have the
right to employ the Indemnitee's own counsel in any Proceeding but the
fees and expenses of such counsel incurred after notice from the
Company of its assumption of the defense of the Proceeding will be at
the expense of the Indemnitee, unless (i) the employment of counsel by
the Indemnitee is authorized by the Company, (ii) the Company does not
in fact employ counsel to assume the defense of the Proceeding within a
reasonable period, or (ii) if the defendants in the Proceeding include
both the Company and the Indemnitee, the Indemnitee reasonably
concludes that, in connection with the conduct of the defense of the
Proceeding, there may be a conflict of interest between the Company and
the Indemnitee or there may be legal defenses available to the
Indemnitee that are different from or additional to those available to
the Company.
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(e) Cooperation. The Indemnitee agrees to cooperate with the
person, persons or entity making the determination with respect to the
Indemnitee's entitlement to indemnification under this Agreement,
including providing to such person, persons or entity upon reasonable
advance request any documentation or information that is not privileged
or otherwise protected from disclosure and that is reasonably available
to the Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements)
incurred by the Indemnitee in so cooperating with the person, persons
or entity making such determination will be borne by the Company
(irrespective of the determination as to the Indemnitee's entitlement
to indemnification), and the Company hereby indemnifies and agrees to
hold the Indemnitee harmless therefrom.
(f) Payment. If it is determined that the Indemnitee is
entitled to indemnification, payment to the Indemnitee must be made
within ten (10) days after such determination.
7. Presumptions and Effect of Certain Proceedings.
(a) Burden of Proof. In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or
entity making such determination will presume that the Indemnitee is
entitled to indemnification under this Agreement if the Indemnitee has
submitted a request for indemnification in accordance with Section 6(a)
of this Agreement, and the Company will have the burden of proof to
overcome that presumption in connection with the making by any person,
persons or entity of any determination contrary to that presumption.
(b) Effect of Other Proceedings. The termination of any
Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, will not (except as otherwise expressly provided in
this Agreement) of itself adversely affect the right of the Indemnitee
to indemnification or create a presumption that the Indemnitee did not
act in Good Faith.
(c) Reliance as Safe Harbor. For purposes of any determination
of Good Faith, the Indemnitee will be deemed to have acted in Good
Faith if the Indemnitee's action is based on the records or books of
account of the Company or any Other Enterprise, including financial
statements, or on information supplied to the Indemnitee by the
officers of the Company or any Other Enterprise in the course of their
duties, or on the advice of legal counsel for the Company or any Other
Enterprise or on information or records given or reports made to the
Company or any Other Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable
care by the Company or any Other Enterprise. The provisions of this
Section 7(c) will not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in this Agreement.
(d) Actions of Others. The knowledge and/or actions, or
failure to act, of any director, officer, agent or employee of the
Company or any Other Enterprise will not be
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imputed to the Indemnitee for purposes of determining the right of
indemnification under this Agreement.
8. Rights of the Indemnitee in a Dispute.
(a) Adjudication. In the event of a Dispute, the Indemnitee is
entitled to an adjudication in any court of competent jurisdiction of
the Indemnitee's entitlement to such indemnification or advancement of
Expenses. Alternatively, the Indemnitee, at the Indemnitee's option,
may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. The
Indemnitee must commence such proceeding seeking an adjudication or an
award in arbitration within 180 days following the date on which the
Indemnitee first has the right to commence such proceeding pursuant to
this Section 8(a). The Company will not oppose the Indemnitee's right
to seek any such adjudication or award in arbitration.
(b) De Novo Review. In the event that a determination has been
made pursuant to Section 6 of this Agreement that the Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 8 will be conducted in all respects
as a de novo trial, or arbitration, on the merits, and the Indemnitee
will not be prejudiced by reason of that adverse determination. In any
such proceeding or arbitration, the Company has the burden of proving
that the Indemnitee is not entitled to indemnification or advancement
of Expenses, as the case may be.
(c) Company Bound. If a determination has been made or is
deemed to have been made pursuant to Section 6 of this Agreement that
the Indemnitee is entitled to indemnification, the Company will be
bound by such determination in any judicial proceeding or arbitration
absent (i) a misstatement by the Indemnitee of a material fact, or an
omission of a material fact necessary to make the Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d) Procedures Valid. The Company is precluded from asserting
in any judicial proceeding or arbitration commenced pursuant to this
Section 8 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and must stipulate in any such court
or before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
(e) Expenses of Adjudication. In the event that the
Indemnitee, pursuant to this Section 8, seeks a judicial adjudication
or an award in arbitration to enforce the Indemnitee's rights under, or
to recover damages for breach of, this Agreement, the Indemnitee will
be entitled to recover from the Company, and will be indemnified by the
Company against, any and all expenses (of the types described in the
definition of Expenses as provide in this Agreement) actually and
reasonably incurred by the Indemnitee in such adjudication or
arbitration, but only if the Indemnitee prevails therein. The Company
will advance all reasonable expenses in connection with such
adjudication or arbitration to the extent that the Indemnitee provides
the statements and undertakings
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required by Section 5 of this Agreement. If it is determined in such
adjudication or arbitration that the Indemnitee is entitled to receive
part but not all of the indemnification or advancement of Expenses
sought, the expenses incurred by the Indemnitee in connection with such
adjudication or arbitration will be appropriately pro-rated.
9. Non-Exclusivity; Insurance; Subrogation; Duplication of Payments.
(a) Non-Exclusivity. The rights of the Indemnitee are not
exclusive of any rights to which the Indemnitee may be entitled under
the Company's Certificate of Incorporation or Bylaws, any agreement,
any vote of stockholders or Disinterested Directors, applicable law or
otherwise both as to action in the Indemnitee's Corporate Status and as
to action in any other capacity while holding such office. No
amendment, alteration, rescission or replacement of this Agreement or
any provision hereof will be effective as to the Indemnitee with
respect to any action taken or omitted by such the Indemnitee in the
Indemnitee's Corporate Status prior to such amendment, alteration,
rescission or replacement.
(b) Liability Insurance. To the extent the Company maintains
an insurance policy or policies for directors' and officers' liability,
the Indemnitee will be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the
coverage available for any Company director or officer.
(c) Subrogation. In the event of payment under this Agreement,
the Company will be subrogated to the extent of such payment to all of
the rights of recovery of the Indemnitee against any person or
organization, and the Indemnitee will execute all papers and take all
actions necessary to secure such rights, including the execution of
such documents necessary to enable the Company effectively to bring
suit to enforce such rights.
(d) No Duplication of Payments. The Company will not be liable
under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that the Indemnitee has
otherwise actually received payment under any insurance policy, the
Certificate of Incorporation or Bylaws or otherwise.
10. Miscellaneous.
(a) Amendments and Waiver. No supplement, modification or
amendment of this Agreement will be binding unless executed in writing
by both of the parties hereto. No waiver of any of the provisions of
this Agreement will be deemed or will constitute a waiver of any other
provisions hereof (whether or not similar) nor will such waiver
constitute a continuing waiver.
(b) Successors and Assigns. This Agreement will be binding
upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns (including any
direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of
the Company), spouses, heirs and personal and legal representatives.
The Company will require and cause any such successor, by written
agreement in form and substance satisfactory to the
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Indemnitee, to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform if no such succession had taken place. This Agreement will
continue in effect regardless of whether Indemnitee continues to serve
as a director or officer of the Company or of any Other Enterprise.
(c) Severability. The provisions of this Agreement will be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a
court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions will remain enforceable to
the fullest extent permitted by law. To the fullest extent possible,
the provisions of this Agreement (including without limitation each
portion of any Section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
(d) Notice. All notices, requests, demands and other
communications under this Agreement must be in writing and will be
deemed to have been duly given (i) if delivered by hand and receipted
for by the party to whom such notice or other communication was
directed, on the date of delivery, or (ii) if mailed by certified or
registered mail or by express mail, postage prepaid and properly
addressed, on the third business day after the date on which it is so
mailed. Unless subsequently modified as provided herein, notice to the
Company will be directed to the Company at Tricord Systems, Inc., 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 00, Xxxxxxxx, XX 00000, Attention:
President.
(e) Counterparts. This Agreement may be executed in one or
more counterparts, each of which will for all purposes be deemed an
original but all of which together will constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence
of this Agreement.
(f) Governing Law. This Agreement will be governed by and
construed and enforced in accordance with the law of the State of
Delaware applicable to contracts made to be performed in such state
without giving effect to the principles of conflicts of laws.
(g) Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous
agreements or understandings, inducements or conditions, express or
implied, written or oral, between the parties with respect hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
TRICORD SYSTEMS, INC.
By:
--------------------------------------
Its:
-------------------------------------
INDEMNITEE
-----------------------------------------
(Signature)
-----------------------------------------
(Name)
-----------------------------------------
(Address)
11
