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EXHIBIT 10.5
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is made and entered into as of the ____ day of
_____________, 20___ by and between Ixia, a California corporation (the
"Company"), and ___________________________________ (the "Indemnitee").
RECITALS
A. The Company recognizes that competent and experienced individuals are
reluctant to serve as directors or officers of corporations unless they are
protected by comprehensive liability insurance or indemnification, or both, due
to increased exposure to litigation costs and risks resulting from their service
to such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and officers.
B. The Company and the Indemnitee are aware of the substantial growth in
the number of lawsuits filed against corporate officers and directors in
connection with their activities in such capacities and by reason of their
status as such.
C. The statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous or conflicting, and
therefore fail to provide such directors and officers with adequate or reliable
advance knowledge or guidance with respect to the legal risks and potential
liabilities to which they may become personally exposed, or information
regarding the proper course of action to take in performing their duties in good
faith.
D. The Company and the Indemnitee recognize that plaintiffs often seek
damages in such large amounts and the costs of litigation may be so enormous
(whether or not meritorious) that the defense and/or settlement of such
litigation is often beyond the financial resources of officers and directors.
E. The Company believes that it is unfair for its directors and officers
and the directors and officers of its affiliates to assume risk of huge
judgments and other expenses which may occur in cases in which the director or
officer received no personal profit and in cases where the director or officer
was not culpable.
F. The Company, after reasonable investigation, has determined that the
liability insurance coverage presently available to the Company and its
affiliates may be inadequate. The Company believes that the interests of the
Company and its shareholders would best be served by a combination of such
insurance as the Company and its affiliates now have or may hereafter obtain and
indemnification by the Company of the directors and officers of the Company and
its affiliates.
G. Section 317 of the California Corporations Code ("Section 317")
empowers the Company to indemnify its Agents by agreement and to indemnify
persons who serve at the request of the Company as Agents of another
corporation, partnership, joint venture, trust or
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other enterprise, and expressly provides that the indemnification provided by
Section 317 is not exclusive of other rights to which those indemnified
thereunder may be entitled under the articles of incorporation or any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise.
H. In order to induce and encourage highly experienced and capable
individuals to serve as officers or directors of the Company and/or its
affiliates, to take the business risks necessary for the success of the Company
and its affiliates and to otherwise promote the desirable end that such persons
will resist what they consider unjustifiable lawsuits and claims made against
them in connection with good faith performance of their duties, secure in the
knowledge that certain expenses, costs and liabilities incurred by them in their
defense of such lawsuits and claims will be borne by the Company and that they
will receive maximum protection against such risks and liabilities as may be
afforded by law, the Board of Directors of the Company (the "Board of
Directors") has determined, after due consideration and investigation of the
terms and provisions of this Agreement and the various other options available
to the Company and the Indemnitee, that contractual indemnification as set forth
herein is not only reasonable and prudent, but necessary to promote and ensure
the best interests of the Company, its shareholders and its affiliates.
I. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or an officer of the Company and/or one or more
of its affiliates, as the case may be, free from undue concern for
unpredictable, inappropriate or unreasonable legal risks and personal
liabilities arising out of or related to such services.
J. The Indemnitee is willing to serve or continue to serve the Company
and/or its affiliates provided that the Indemnitee is furnished the indemnity
provided for herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements set forth herein, the parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) The term "Agent" of the Company shall mean and include any
person who is or was a director, officer, employee or other agent of the Company
or is or was serving at the request of the Company as a director, officer,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit plan), or was
a director, officer, employee or agent of a predecessor corporation of the
Company.
(b) The term "Proceeding" shall mean and include any threatened,
pending or completed action, suit or proceeding, whether brought in the name of
the Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, including, but not limited to, actions, suits or
proceedings brought under and/or predicated upon the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, any similar state law
and any rule or regulation promulgated under such laws.
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(c) The term "Expenses" shall be broadly construed and shall mean
and include all direct and indirect costs and expenses of any type or nature
whatsoever actually and reasonably incurred, paid or accrued by the Indemnitee
in connection with either the investigation, defense or appeal of a Proceeding
or establishing or enforcing a right to indemnification under this Agreement,
Section 317 or otherwise, and amounts paid in judgments, fines, penalties or
settlement by or on behalf of the Indemnitee as a result of a Proceeding to the
extent permitted by California law. Without limiting the foregoing and by way of
example, the term "Expenses" shall include attorneys' fees, retainers, court
costs, transcripts, fees and expenses of experts, witness fees, travel expenses
(including food and lodging expenses while traveling), duplicating costs,
printing and binding costs, telephone charges, postage, delivery service,
freight or other transportation costs, and reasonable compensation for time
spent by the Indemnitee for which the Indemnitee is not otherwise compensated by
the Company or any third party (provided the rate of compensation and estimated
time involved is approved in advance by the Board of Directors). Notwithstanding
the foregoing, the term "Expenses" shall not include any judgments, fines,
penalties or excise taxes actually imposed against the Indemnitee under the
Employee Retirement Income Security Act of 1974, as amended.
2. AGREEMENT TO SERVE. Until Indemnitee resigns, is removed or replaced,
or is unable to serve as Agent for the Company, Indemnitee will serve and/or
continue to serve as an Agent of the Company. Notwithstanding the foregoing,
nothing contained in this Agreement is intended to create any right to continued
employment or service by Indemnitee in any capacity.
3. INDEMNIFICATION. The Company shall indemnify Indemnitee to the
fullest extent permitted by California law in effect on the date hereof or as
such law may from time to time be amended (but, in the case of any such
amendment, only the extent such amendment permits the Company to provide broader
indemnification rights than California law permitted the Company to provide
before such amendment). Such indemnification shall include, without limitation,
the following:
(a) INDEMNITY IN THIRD PARTY PROCEEDINGS. The Company shall
indemnify and hold harmless the Indemnitee from and against all Expenses if the
Indemnitee is a party to, or is threatened to be made a party to or otherwise
involved in any Proceeding (other than the Proceeding by or in the name of the
Company to procure a judgment in its favor) by reason of the fact that the
Indemnitee is or was an Agent of the Company or by reason of any act or failure
to act by the Indemnitee in any such capacity, but only if the Indemnitee acted
in good faith and in a manner the Indemnitee reasonably believed to be in the
best interests of the Company and, in the case of a criminal proceeding, had no
reasonable cause to believe that the conduct of the Indemnitee was unlawful. The
termination of any such Proceeding by judgment, order of court, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith in a
manner which the Indemnitee reasonably believed to be in the best interests of
the Company, and with respect to any criminal proceedings, that the Indemnitee
had reasonable cause to believe that the Indemnitee's conduct was unlawful.
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(b) INDEMNITY IN DERIVATIVE ACTIONS. The Company shall indemnify
and hold harmless the Indemnitee from and against all Expenses if the Indemnitee
is a party to or threatened to be made a party to or otherwise involved in any
Proceeding by or in the right of the Company to procure a judgment in its favor
by reason of the fact that the Indemnitee was or is an Agent of the Company or
by reason of any act or failure to act by the Indemnitee in any such capacity,
but only if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in the best interests of the Company and its
Shareholders. However, no indemnification under this Agreement shall be made for
any claim, issue or matter as to which the Indemnitee has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the Company for any matter specified in Section 204(a)(10) of the
California Corporations Code, or for amounts paid in settlement to the Company,
unless and only to the extent that any court in which such Proceeding is brought
or other court of competent jurisdiction determines upon application that, in
view of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses as the court shall deem
proper.
(c) INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding described in Paragraphs 4(a) or 4(b) or in defense of any claim,
issue or matter therein, including the dismissal of an action without prejudice,
the Company shall indemnify and hold harmless the Indemnitee from and against
all Expenses in connection therewith.
(d) INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Agreement, the Company shall indemnify and hold
harmless the Indemnitee from and against all Expenses if and whenever the
Indemnitee is a witness or is threatened to be made a witness to any Proceeding
to which Indemnitee is not a party, by reason of the fact that the Indemnitee is
or was an Agent or by reason of any act or failure to act by the Indemnitee in
such capacity.
4. PROCEDURE FOR INDEMNIFICATION.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement or the threat of commencement of any Proceeding, the Indemnitee
shall, if the Indemnitee believes that indemnification with respect thereto may
be sought from the Company under this Agreement, notify the Company thereof. The
notice shall include documentation or information which is necessary for the
determination of entitlement to indemnification and which is reasonably
available to the Indemnitee. Delay in so notifying the Company shall not
constitute a waiver or release by Indemnitee of rights hereunder.
(b) Any indemnification requested by the Indemnitee under
Paragraph 3 hereof shall be made no later than sixty (60) days after receipt of
the written request of Indemnitee, unless a determination is made within said
sixty (60) day period (i) by the Board of Directors by a majority vote of a
quorum thereof consisting of directors who are not parties to such Proceedings,
or (ii) in the event such a quorum is not obtainable, by independent legal
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counsel in a written opinion, that the Indemnitee has not met the relevant
standards for indemnification set forth in Paragraph 3. Indemnitee shall be
presumed to be entitled to indemnification under this Agreement and the Company
shall have the burden of proof to overcome that presumption in reaching any
contrary determination.
(c) Notwithstanding a determination under Paragraph 4(b) above
that the Indemnitee is not entitled to indemnification with respect to any
specific Proceeding, the Indemnitee shall have the right to apply to any court
of competent jurisdiction in the State of California for the purpose of
enforcing the Indemnitee's right to indemnification pursuant to this Agreement,
which determination shall be made de novo and the Indemnitee shall not be
prejudiced by reason of a determination that he is not entitled to
indemnification. The burden of proving that indemnification is not appropriate
shall be on the Company. Neither the failure of the Company to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company that the
Indemnitee has not met such applicable standard of conduct, shall be a defense
of the action or create any presumption that the Indemnitee has not met the
applicable standard of conduct.
(d) If an initial determination is made pursuant to the terms of
this Agreement that the Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in the absence of (i) a misrepresentation
of a material fact by Indemnitee in the request for indemnification or (ii) a
specific finding (which has become final by a court of competent jurisdiction)
that all or any part of such indemnification is expressly prohibited by law.
(e) The Company shall indemnify the Indemnitee against all
Expenses incurred in connection with any hearing or proceeding under this
Paragraph 4 unless a court of competent jurisdiction finds that each of the
claims and/or defenses of the Indemnitee in any such proceeding was frivolous or
made in bad faith.
5. ADVANCES OF EXPENSES. Upon the request of the Indemnitee but subject
to Paragraph 8, the Company shall advance all Expenses incurred by or on behalf
of the Indemnitee in connection with the investigation, defense, settlement or
appeal of any Proceeding to which the Indemnitee is a party or is threatened to
be made a party or otherwise involved in by reason of the fact that the
Indemnitee is or was an Agent of the Company.
(a) The Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be determined by a
court of competent jurisdiction that the Indemnitee is not entitled to be
indemnified by the Company as authorized by this Agreement.
(b) The advances to be made hereunder shall be paid by the
Company to or on behalf of the Indemnitee within ten (10) days following
delivery of a written request therefore by the Indemnitee to the Company. The
requests shall reasonably evidence the Expenses incurred by the Indemnitee in
connection therewith.
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(c) The Indemnitee's entitlement to advancement of Expenses shall
include those incurred in connection with any Proceeding by Indemnitee seeking a
determination or an adjudication pursuant to this Agreement.
6. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify the Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not authorized by
the other provisions of this Agreement, the Company's Articles of Incorporation
or Bylaws or by statute. In the event of any change in any applicable law,
statute or rule which narrows the right of a California corporation to indemnify
a member of its board of directors or an officer, such changes, to the extent
not otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties' rights and
obligations hereunder.
(b) The provisions for indemnification and advancement of
Expenses contained in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have under any provision of law, the Company's
Articles of Incorporation or Bylaws, any vote of shareholders or disinterested
directors or other agreements, both as to action in the Indemnitee's official
capacity and as to action in another capacity while occupying his position as an
Agent of the Company, to the extent the additional rights to indemnification are
authorized in the Company's Articles of Incorporation.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion, but not all, of Expenses, the Company shall nevertheless indemnify the
Indemnitee for the portion thereof to which the Indemnitee is entitled.
8. ASSUMPTION OF DEFENSE. In the event the Company shall be obligated to
pay the Expenses of any Proceeding against the Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such Proceeding, with
counsel approved by the Indemnitee (which approval shall not be unreasonably
withheld), upon delivery to the Indemnitee of written notice of its election to
do so. After the delivery of such notice, approval of such counsel by the
Indemnitee, and so long as the Company is so defending the Indemnitee, the
Company will not be liable to the Indemnitee under this Agreement for any
Expense relating to Indemnitee's counsel subsequently incurred by the Indemnitee
with respect to the same Proceeding, unless:
(a) the continued employment of separate counsel by the
Indemnitee has been previously authorized in writing by the Company; or
(b) there is or could be a conflict of interest between the
Company, the Indemnitee and/or others in the conduct of any such defense such
that separate counsel for the Indemnitee is appropriate or warranted.
In the event the Company assumes the defense of any Proceeding, the Company
shall not settle such Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee
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without the Indemnitee's written consent (which consent shall not be
unreasonably withheld) and the Indemnitee shall have the right to employ
separate counsel in such Proceeding at the Indemnitee's expense.
9. INSURANCE. Notwithstanding any other provision of the Agreement, the
Company shall not be obligated to indemnify the Indemnitee for Expenses which
have been paid or reimbursed directly to, or on behalf of, the Indemnitee under
any policy of insurance. If the Company has directors and officers liability
insurance in effect at the time the Company receives from Indemnitee any notice
of the commencement of a Proceeding, the Company shall give prompt notice of the
commencement of such Proceeding to the insurers in accordance with the
procedures set forth in the policy. The Company shall thereafter take all
necessary or desirable actions to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such Proceeding in accordance
with the terms of such policy.
10. EXCEPTIONS TO INDEMNIFICATION. Notwithstanding any provision herein
to the contrary, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) To indemnify or advance Expenses to the Indemnitee with
respect to Proceedings or claims initiated or brought voluntarily by the
Indemnitee and not by way of defense (except with respect to Proceedings brought
to establish or enforce a right to indemnification under this Agreement, Section
317, or any other statute or law), but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board of
Directors finds it to be appropriate; or
(b) To indemnify the Indemnitee for any Expenses incurred by the
Indemnitee with respect to any proceeding instituted by the Indemnitee to
enforce or interpret this Agreement if a court of competent jurisdiction
determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous; or
(c) To indemnify the Indemnitee under this Agreement for any
amounts paid in settlement of a Proceeding unless the Company consents in
writing to such settlement;
(d) To indemnify the Indemnitee on account of any Proceeding
which results in a final judgment, or agreement by the Indemnitee, that the
Indemnitee must account for profits made from the purchase or sale by the
Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions
of any federal, state or local statute; or
(e) If a court of competent jurisdiction shall finally determine
that any indemnification hereunder is unlawful.
11. DURATION AND INTERPRETATION OF AGREEMENT. It is understood that the
parties hereto intend this Agreement to be interpreted, construed and enforced
so as to provide indemnification to the Indemnitee to the fullest extent now or
hereafter permitted by law. This Agreement shall continue so long as the
Indemnitee shall be subject to any possible Proceeding by reason of the fact
that the Indemnitee is or was an Agent and shall be applicable to Proceedings
commenced
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before or after the execution of this Agreement, whether arising from acts or
omissions occurring before or after such execution.
12. NOTICES. All written notices or other written communications
required under this Agreement shall be deemed properly given when provided to
the parties entitled thereto by personal delivery (including delivery by
commercial services such as messengers and airfreight forwarders), by facsimile
transmission or by mail sent registered or certified mail, postage prepaid at
the following addresses (or to such other address of a party designated in
writing by such party to the others):
Company: Ixia
00000 X. Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: President
With a copy to: Xxxxx Xxxx LLP
000 Xxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Indemnitee:
___________________________
___________________________
___________________________
Fax:_______________________
All notices given by facsimile shall be confirmed by delivering to the party
entitled thereto a copy of said notice by certified or registered mail, postage
prepaid, return receipt requested. All written notices shall be deemed delivered
and properly received upon the earlier of five days after mailing the notice or
confirmation notice or upon actual receipt of the notice provided by personal
delivery.
13. SUCCESSORS. The terms of this Agreement shall be binding upon the
Company and its successors and shall inure to the benefit of Indemnitee and
Indemnitee's spouse, assigns, heirs, devisees, executors, administrators and
other legal representatives.
14. REFORMATION/SEVERABILITY. Nothing in this Agreement is intended to
require or shall be construed as requiring the Company to do or fail to do any
act in violation of applicable law. The Company's inability, pursuant to court
order, to perform its obligations under this Agreement shall not constitute a
breach of this Agreement. The provisions of this Agreement shall be severable as
provided in this Paragraph. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted by
any applicable portion of this Agreement that shall not have been invalidated,
and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
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15. MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
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.
16. SUBJECT HEADINGS. The subject headings of the Paragraphs of this
Agreement are included solely for purposes of convenience and reference only and
shall not be deemed to explain, modify, limit, amplify or aid in the meaning,
construction or interpretation of any of the provisions of this Agreement.
17. INTERPRETATIONS AND DEFINITIONS. In this Agreement whenever the
context so requires, the gender includes the neuter, feminine and masculine and
the number includes the singular and the plural and the words "person" and
"party" include individuals, corporations, partnerships, firms, trusts or
associations. Any references to parties or Paragraphs shall be to the parties
hereto and the relevant Paragraphs of this Agreement as appropriate.
18. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
19. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California.
20. CONSENT TO JURISDICTION. The Company and the Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of California
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by persons duly authorized as of the date first above
written.
IXIA
___________________________________________
Xxxxx Xxxxxxxx, President
INDEMNITEE:
___________________________________________
[Name of Indemnitee]
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