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Exhibit 10.12
INDEMNITY AGREEMENT
THIS AGREEMENT is made and entered into as of _________, 1999 by and
between OpenSite Technologies, Inc., a Delaware corporation (the "Corporation"),
and ____________________ ("Indemnitee").
RECITALS
WHEREAS, Indemnitee, a member of the Board of Directors and/or an officer
of the Corporation, performs a valuable service in such capacity for the
Corporation; and
WHEREAS, in order to induce Indemnitee to continue to serve as a Director
and/or an officer of the Corporation, the Corporation has determined and agreed
to enter into this Agreement with Indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's continued service as a
Director/and or an officer after the date hereof, the parties hereto agree as
follows:
1. SERVICES TO THE CORPORATION. Indemnitee will serve, at the will of the
Corporation under separate contract, if any such contract exists, as an officer
and/or Director of the Corporation, or as a director, officer or other fiduciary
of an affiliate of the Corporation (including any employee benefit plan of the
Corporation) faithfully and to the best of his ability so long as he is duly
elected and qualified in accordance with the Certificate of Incorporation and
the Bylaws, as amended or amended and restated from time to time, of the
Corporation or of such affiliate (the "Organizational Documents"); provided,
however, that Indemnitee may at any time and for any reason resign from such
position or any other position (subject to any contractual obligation that
Indemnitee may have assumed apart from this Agreement) and that the Corporation
or any affiliate shall have no obligation under this Agreement to continue
Indemnitee in such position or any other position.
2. INDEMNITY OF INDEMNITEE. The Corporation hereby agrees to hold harmless
and indemnify Indemnitee to the fullest extent authorized or permitted by the
Organizational Documents and the Delaware General Corporation Law, as amended
(the "Code"), as the same may be amended from time to time (but only to the
extent that any such amendment permits the Corporation to provide broader
indemnification rights than the Organizational Documents or the Code permitted
prior to adoption of such amendment).
3. ADDITIONAL INDEMNITY. In addition to and not in limitation of the
indemnification otherwise provided for herein, and subject only to the
Organizational Documents, the Code, any other applicable law and the exclusions
set forth in Section 4 hereof, the Corporation hereby further agrees to hold
harmless and indemnify Indemnitee
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against any and all reasonable attorneys' fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types customarily incurred
in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitral, administrative or investigative
(including an action by or in the right of the Corporation), to which Indemnitee
is, was or at any time becomes a party, or is threatened to be made a party, by
the reason of the fact that Indemnitee is, was or at any time becomes a
director, officer, employee or other agent of the Corporation or is or was
serving or at any time serves at the written request of the Corporation as a
director, officer, employee or other agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other corporation.
4. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to this
Agreement shall be paid by the Corporation:
(a) on account of any claim against Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities of the
Corporation, pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law; or
(b) for which payment has actually been made to Indemnitee under a valid
and collectible insurance policy or under a valid and enforceable indemnity
clause, bylaw or agreement, except in respect of any excess beyond payment under
such insurance, clause, bylaw or agreement; or
(c) in connection with any proceeding (or part thereof) brought or made by
Indemnitee against the Corporation, unless (i) such indemnification is expressly
required to be made by law, or (ii) the proceeding is initiated pursuant to
Section 9 hereof; or
(d) if it is finally determined (under the procedures, and subject to the
presumptions set forth in Section 5 hereof) to be unlawful under Delaware law.
5. PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
It is the intent of this Agreement to secure for Indemnitee rights of
indemnity that are as favorable as may be permitted under the law and public
policy of the State of Delaware. Accordingly, the parties agree that the
following procedures and presumptions shall apply in the event of any question
as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification (including, but not limited to,
the advancement of Expenses and contribution by the Corporation) under this
Agreement,
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Indemnitee shall submit to the Corporation a written request, including therein
or therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the Corporation
shall, promptly upon receipt of such a request for indemnification, advise the
Board of Directors in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 5(a) hereof, a determination, if
required by applicable law, with respect to Indemnitee's entitlement thereto
shall be made in the specific case by one of the following three methods, which
shall be at the election of Indemnitee: (1) by a majority vote of the
disinterested directors, even though less than a quorum, or (2) by Independent
Counsel in a written opinion, or (3) by the stockholders.
(c) If the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 5(b) hereof, the
Independent Counsel shall be selected as provided in this Section 5(c). The
Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board of Directors). Indemnitee or
the Corporation, as the case may be, may, within 10 days after such written
notice of selection shall have been given, deliver to the Corporation or to
Indemnitee, as the case may be, a written objection to such selection; provided,
however, that 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 below, and the objection shall set forth with particularity
the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If a written objection is
made and substantiated, the Independent Counsel selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification pursuant to
Section 5(a) hereof, no Independent Counsel shall have been selected and not
objected to, either the Corporation or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent jurisdiction for
resolution of any objection which shall have been made by the Corporation or
Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 5(b) hereof. The Corporation shall pay any and
all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 5(b) hereof,
and the Corporation shall pay all reasonable fees and expenses incident to the
procedures of this Section 5(c), regardless of the manner in which such
Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination
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shall presume that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 5(a) of this Agreement. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence.
(e) Indemnitee shall be deemed to have acted in good faith if
Indemnitee's action is based on the records or books of account of the
Corporation, including financial statements, or on information supplied to
Indemnitee by the officers of the Corporation in the course of their duties, or
on the advice of legal counsel for the Corporation or on information or records
given or reports made to the Corporation by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Corporation. In addition, the knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Corporation shall not be
imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement. Whether or not the foregoing provisions of this Section
5(e) are satisfied, it shall in any event be presumed that Indemnitee has at all
times acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation. Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence.
(f) If the person, persons or entity empowered or selected
under Section 5 to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within thirty (30) days after receipt by the
Corporation of the request therefor, the requisite determination of entitlement
to indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable
law; provided, however, that such 30 day period may be extended for a reasonable
time, not to exceed an additional fifteen (15) days, if the person, persons or
entity making the determination with respect to entitlement to indemnification
in good faith requires such additional time for the obtaining or evaluating
documentation and/or information relating thereto; and provided, further, that
the foregoing provisions of this Section 5(f) shall not apply if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 5(b) of this Agreement and if (A) within
fifteen (15) days after receipt by the Corporation of the request for such
determination the Board of Directors or the Disinterested Directors, if
appropriate, resolve to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy-five (75)
days after such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within fifteen (15) days after such receipt
for the purpose of making such determination, such meeting is held for such
purpose within sixty (60) days after having been so called and such
determination is made thereat.
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(g) Indemnitee shall cooperate with the person, persons or
entity making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
Independent Counsel, member of the Board of Directors, or stockholder of the
Corporation shall act reasonably and in good faith in making a determination
under the Agreement of the Indemnitee's entitlement to indemnification. Any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Corporation (irrespective of the
determination as to Indemnitee's entitlement to indemnification) and the
Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Corporation acknowledges that a settlement or other
disposition short of final judgment may be successful if it permits a party to
avoid expense, delay, distraction, disruption and uncertainty. In the event that
any action, claim or proceeding to which Indemnitee is a party is resolved in
any manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without
payment of money or other consideration) it shall be presumed that Indemnitee
has been successful on the merits otherwise in such action, suit or proceedings.
Anyone seeking to overcome this presumption shall have the burden of proof and
the burden of persuasion, by clear and convincing evidence.
(i) "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 Corporation or Indemnitee in any matter material to either such party (other
than with respect to matters concerning the Indemnitee under this Agreement, or
of other indemnitees under similar indemnification agreements), or (ii) any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Corporation or Indemnitee in an action to determine Indemnitee's
rights under this Agreement. The Corporation agrees to pay the reasonable fees
of the Independent Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
6. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is a
director, officer, employee or other agent of the Corporation (or is or was
serving at the written request of the Corporation as a director, officer,
employee or other agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other Corporation) and shall continue thereafter
so long as Indemnitee shall be subject to any
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possible claim or threatened, pending or complete action, suit or proceeding,
whether civil, criminal, arbitral, administrative or investigative, by reason of
the fact that Indemnitee was serving in the capacity referred to herein.
7. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30) days
after receipt by Indemnitee of notice of the commencement of any action, suit or
proceeding, Indemnitee 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 omission so to notify the Corporation will not relieve it from
any liability except to the extent that the failure to notify shall prejudice
the Corporation and will not relieve it from any liability which it may have to
Indemnitee otherwise than under this Agreement. With respect to any such action,
suit or proceeding as to which Indemnitee 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 Indemnitee. After notice from the Corporation to Indemnitee of
its election to assume the defense thereof, the Corporation will not be liable
to Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof except for
reasonable costs of investigation or otherwise as provided below. Indemnitee
shall have the right to employ separate counsel in such action, suit or
proceeding but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the expense
of Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Corporation, (ii) Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Corporation and Indemnitee
in the conduct of the defense of such action or (iii) the Corporation shall not
in fact have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of Indemnitee's separate counsel shall be at
the expense of the Corporation. The Corporation shall not be entitled to assume
the defense of any action, suit or proceeding brought by or on behalf of the
Corporation or as to which Indemnitee shall have made the conclusion provided
for in clause (ii) above; and
(c) The Corporation shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent, which shall not be unreasonably withheld. The
Corporation shall be permitted to settle any action except that it shall not
settle any action or claim in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee's written consent, which may be
given or withheld in Indemnitee's sole discretion.
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8. EXPENSES. The Corporation shall advance, prior to the final disposition
of any proceeding, promptly following request thereof, all expenses incurred by
Indemnitee in connection with such proceeding upon receipt of an undertaking by
or on behalf of Indemnitee to repay said amounts if it shall be determined
ultimately that Indemnitee is not entitled to be indemnified under the
provisions of this Agreement, the Organizational Documents, the Code or
otherwise. Advances and undertakings to repay pursuant to this Section 8 shall
be unsecured and interest free. Notwithstanding the foregoing, the obligation of
the Corporation to advance Expenses pursuant to this Section 8 shall be subject
to the condition that, if, when and to the extent that the Corporation
determines that Indemnitee would not be permitted to be indemnified under
applicable law, the Corporation shall be entitled to be reimbursed, within
thirty (30) days of such determination, by Indemnitee (who hereby agrees to
reimburse the Corporation) for all such amounts theretofore paid; provided,
however, that if Indemnitee has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law, any determination made by
the Corporation that Indemnitee would not be permitted to be indemnified under
applicable law shall not be binding and Indemnitee shall not be required to
reimburse the Corporation for any advance of expenses until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed).
9. ENFORCEMENT. Any right to indemnification or advances granted by this
Agreement to Indemnitee shall be enforceable by or on behalf of Indemnitee in
any court of competent jurisdiction if (i) the claim for indemnification or
advances is denied, in whole or in part, or (ii) no disposition of such claim is
made within ninety (90) days of request therefor. Indemnitee in such enforcement
action, if successful in whole or in part, shall be entitled to be paid also the
expenses of prosecuting his claim. It shall be a defense to any action for which
a claim for indemnification is made under Section 3 hereof (other than an action
brought to enforce a claim for expenses pursuant to Section 8 hereof, provided
that the required undertaking has been tendered to the Corporation) that
Indemnitee is not entitled to indemnification because of the limitations set
forth in Section 4 hereof.
10. 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 Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
11. NON-EXCLUSIVITY OF RIGHTS. The right conferred on Indemnitee by this
Agreement shall not be exclusive of any other right which Indemnitee may have or
hereafter acquire under any statute, provision of the Organizational Documents,
agreement, vote of stockholders or directors, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding office.
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12. SURVIVAL RIGHTS.
(a) The rights conferred on Indemnitee by this Agreement shall continue
after Indemnitee has ceased to be a director, officer, employee or other agent
of the Corporation or to serve 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 Corporation and shall inure to
the benefit of Indemnitee's heirs, executors and administrators.
(b) The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) 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
has taken place.
13. SEPARABILITY. 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 or
unenforceablility 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 shall nevertheless indemnify
Indemnitee to the fullest extent provided by the Organizational Documents, the
Code or any other applicable law.
14. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
15. AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be original but
all of which together shall constitute but one and the same 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 mail with postage prepaid
addressed as follows or to such other address as a party may hereafter designate
by notice given pursuant hereto:
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(a) If to Indemnitee, at the address indicated on the signature page
hereof.
(b) If the Corporation, to:
OpenSite Technologies, Inc.
0000 Xxxxxxxxxxxx Xxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
OPENSITE TECHNOLOGIES, INC.
By:_____________________________
Name:___________________________
Title:__________________________
INDEMNITEE
_________________________________
Signature
Print Name and Address Below:
_________________________________
_________________________________
_________________________________
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