EXE TECHNOLOGIES, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement"), dated as of
_____________, 199__, is made by and between EXE Technologies, Inc., a Delaware
corporation (the "Company"), and ________________ (the "Indemnitee").
RECITALS
A. The Board of Directors of the Company (the "Board") has concluded
that, in order to retain and attract talented and experienced individuals to
serve as directors and officers of the Company and its subsidiaries and to
encourage such individuals to take the business risks necessary for the success
of the Company and its subsidiaries, it is necessary for the Company to
contractually indemnify its directors and officers and the directors and
officers of its subsidiaries, and to assume for itself maximum liability for
expenses and damages in connection with claims against such directors and
officers in connection with their service to the Company and its subsidiaries,
and has further concluded that the failure to provide such contractual
indemnification could result in significant harm to the Company and its
subsidiaries and its stockholders.
B. Section 145 of the General Corporation Law of Delaware, under which
the Company is organized ("Section 145"), empowers the Company to indemnify its
directors, officers, employees and agents by agreement and to indemnify persons
who serve, at the request of the Company, as the directors, officers, employees
or agents of other corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not exclusive.
C. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company and/or one or more
subsidiaries of the Company free from undue concern for claims for damages
arising out of or related to such services to the Company and/or one or more
subsidiaries of the Company.
D. The Indemnitee is willing to serve, or to continue to serve, the
Company and/or one or more subsidiaries of the Company, provided that he is
furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS.
(a) AGENT. For the purposes of this Agreement, "Agent" of the
Company means any person who: is or was a director or officer of the Company or
a Subsidiary; is or was serving at the request of, for the convenience of, or to
represent the interests of the Company or a Subsidiary as a director or officer
of another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise; was a director or officer of a foreign or domestic corporation
that was a predecessor corporation of the Company or a Subsidiary; or was a
director or officer of another enterprise at the request of, for the convenience
of, or to represent the interests of such predecessor corporation.
(b) EXPENSES. For purposes of this Agreement, "Expenses" include all
out-of-pocket costs of any type or nature whatsoever (including, without
limitation, all attorneys' fees and related disbursements), actually and
reasonably incurred by the Indemnitee in connection with either the
investigation, defense or appeal of a Proceeding (as defined below) or
establishing or enforcing a right to indemnification under this Agreement or
Section 145 or otherwise; PROVIDED, HOWEVER, that "Expenses" shall not include
any judgments, fines, ERISA excise taxes or penalties, or amounts paid in
settlement of a Proceeding.
(c) PROCEEDING. For the purposes of this Agreement, "Proceeding"
means any threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, or investigative.
(d) SUBSIDIARY. For purposes of this Agreement, "Subsidiary" means
any corporation of which more than 50% of the outstanding voting securities is
owned directly or indirectly by the Company, by the Company and one or more
other subsidiaries, or by one or more other subsidiaries.
2. AGREEMENT TO SERVE. The Indemnitee agrees to serve and/or continue to
serve as an Agent of the Company, at its will (or under separate agreement, if
such agreement exists), in the capacity the Indemnitee currently serves as an
Agent of the Company, so long as he is duly appointed or elected and qualified
in accordance with the applicable provisions of the Bylaws of the Company or any
Subsidiary or until such time as he tenders his resignation in writing;
PROVIDED, HOWEVER, that nothing contained in this Agreement is intended to
create any right to continued employment by the Indemnitee.
3. LIABILITY INSURANCE.
(a) MAINTENANCE OF D&O INSURANCE. The Company hereby covenants and
agrees that, so long as the Indemnitee shall continue to serve as an Agent of
the Company and thereafter so long as the Indemnitee shall be subject to any
possible Proceeding by reason of the fact that the Indemnitee was an Agent of
the Company, the Company, subject to Section 3(c),
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shall promptly obtain and maintain in full force and effect directors' and
officers' liability insurance ("D&O Insurance") in reasonable amounts from
established and reputable insurers.
(b) RIGHTS AND BENEFITS. In all policies of D&O Insurance, the
Indemnitee shall be named as an insured in such a manner as to provide the
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company's directors, if the Indemnitee is a director, or of the
Company's officers, if the Indemnitee is not a director of the Company but is an
officer.
(c) LIMITATION ON REQUIRED MAINTENANCE OF D&O INSURANCE.
Notwithstanding the foregoing, the Company shall have no obligation to obtain or
maintain D&O Insurance if the Company determines in good faith that such
insurance is not reasonably available, the premium costs for such insurance are
disproportionate to the amount of coverage provided, the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary of the Company. In the event that the Company determines to
discontinue D&O Insurance coverage, the Company shall give prompt written notice
to the Indemnitee.
4. MANDATORY INDEMNIFICATION. Subject to Section 8 below, the Company
shall indemnify the Indemnitee as follows:
(a) SUCCESSFUL DEFENSE. To the extent the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding (including,
without limitation, an action by or in the right of the Company) to which the
Indemnitee was a party by reason of the fact that he is or was an Agent of the
Company at any time, the Company shall indemnify the Indemnitee against all
expenses of any type whatsoever actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense or appeal of such
Proceeding.
(b) THIRD PARTY ACTIONS. If the Indemnitee is a person who was or is
a party or is threatened to be made a party to any Proceeding (other than an
action by or in the right of the Company) by reason of the fact that the
Indemnitee is or was an Agent of the Company, or by reason of anything done or
not done by the Indemnitee in any such capacity, then the Company shall
indemnify the Indemnitee against any and all expenses and liabilities of any
type whatsoever (including, but not limited to, judgments, fines, ERISA excise
taxes and penalties, and amounts paid in settlement) actually and reasonably
incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of such Proceeding, PROVIDED that the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company and its stockholders, and, with
respect to any criminal action or Proceeding, had no reasonable cause to believe
his conduct was unlawful.
(c) DERIVATIVE ACTIONS. If the Indemnitee is a person who was or is
a party or is threatened to be made a party to any Proceeding by or in the right
of the Company by reason of
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the fact that the Indemnitee is or was an Agent of the Company, or by reason
of anything done or not done by the Indemnitee in any such capacity, then the
Company shall indemnify the Indemnitee against all expenses actually and
reasonably incurred by the Indemnitee in connection with the investigation,
defense, settlement, or appeal of such Proceeding, PROVIDED that the
Indemnitee acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company and its stockholders;
except that no indemnification under this Section 4(c) shall be made in
respect to any claim, issue or matter as to which the Indemnitee shall have
been finally adjudged to be liable to the Company by a court of competent
jurisdiction unless and only to the extent that the court in which such
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
the Indemnitee is fairly and reasonably entitled to indemnity for such
amounts which the court shall deem proper.
(d) ACTIONS WHERE THE INDEMNITEE IS DECEASED. If the Indemnitee is a
person who was or is a party or is threatened to be made a party to any
Proceeding by reason of the fact that the Indemnitee is or was an Agent of the
Company, or by reason of anything done or not done by the Indemnitee in any such
capacity, and if prior to, during the pendency of, or after completion of, such
Proceeding the Indemnitee becomes deceased, then the Company shall indemnify the
Indemnitee's heirs, executors and administrators against any and all expenses
and liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes and penalties, and amounts paid in
settlement) actually and reasonably incurred to the extent the Indemnitee would
have been entitled to indemnification pursuant to Sections 4(a), 4(b), or 4(c)
above were the Indemnitee still alive.
Notwithstanding the foregoing, the Company shall not be obligated to indemnify
the Indemnitee for expenses or liabilities of any type whatsoever (including,
but not limited to, judgments, fines, ERISA excise taxes and penalties, and
amounts paid in settlement) for which payment is actually made to or on behalf
of the Indemnitee under a valid and collectible insurance policy of D&O
Insurance, or under a valid and enforceable indemnity clause, bylaw or
agreement.
5. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes and penalties, and amounts
paid in settlement) incurred by the Indemnitee in the investigation, defense,
settlement or appeal of a Proceeding, but not entitled, however, to
indemnification for all of the total amount hereof, then the Company shall
nevertheless indemnify the Indemnitee for such total amount except as to the
portion hereof to which the Indemnitee is not entitled.
6. MANDATORY ADVANCEMENT OF EXPENSES. Subject to Section 8(a) below, the
Company shall advance all expenses incurred by the Indemnitee in connection with
the investigation, defense, settlement or appeal of any Proceeding to which the
Indemnitee is a party
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or is threatened to be made a party by reason of the fact that the Indemnitee
is or was an Agent of the Company. The Indemnitee hereby undertakes to repay
such amounts advanced only if, and to the extent that, it shall be determined
ultimately that the Indemnitee is not entitled to be indemnified by the
Company as authorized hereby. The advances to be made hereunder shall be paid
by the Company to the Indemnitee within twenty (20) days following delivery
of a written request therefor by the Indemnitee to the Company.
7. NOTICE AND OTHER INDEMNIFICATION PROCEDURES.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any Proceeding, the Indemnitee
shall, if the Indemnitee reasonably believes that indemnification with respect
thereto may be sought from the Company under this Agreement, notify the Company
of the commencement or threat of commencement thereof.
(b) If, at the time of the receipt of a notice of the commencement of
a Proceeding pursuant to Section 7(a) hereof, the Company has D&O Insurance in
effect, then the Company shall give prompt notice of the commencement of such
Proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or
desirable action 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 policies.
(c) In the event the Company is obligated to pay the expenses of any
Proceeding against the Indemnitee, then the Company, if appropriate, shall be
entitled to assume the defense of such Proceeding, with counsel approved by the
Indemnitee, upon the delivery to the Indemnitee of written notice of its
election so to do. After delivery of such notice, approval of such counsel by
the Indemnitee and the retention of such counsel by the Company, the Company
will not be liable to the Indemnitee under this Agreement for any fees of
counsel subsequently incurred by the Indemnitee with respect to the same
Proceeding, PROVIDED that: (i) the Indemnitee shall have the right to employ
the Indemnitee's counsel in any such Proceeding at the Indemnitee's expense; and
(ii) if (A) the employment of counsel by the Indemnitee has been previously
authorized by the Company, (B) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of any such defense, or (C) the Company shall not, in fact, have
employed counsel to assume the defense of such Proceeding, then the fees and
expenses of the Indemnitee's counsel shall be at the expense of the Company.
8. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) CLAIMS INITIATED BY THE INDEMNITEE. To indemnify or advance
expenses to the Indemnitee with respect to Proceedings or claims initiated or
brought voluntarily by the
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Indemnitee and not by way of defense, unless (i) such indemnification is
expressly required to be made by law, (ii) the Proceeding was authorized by
the Board, (iii) such indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the Company under the General
Corporation Law of Delaware or (iv) the Proceeding is brought to establish or
enforce a right to indemnification under this Agreement or any other statute
or law or otherwise as required under Section 145;
(b) LACK OF GOOD FAITH. 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) UNAUTHORIZED SETTLEMENTS. To indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of a Proceeding unless the Company
consents to such settlement, which consent shall not be unreasonably withheld or
delayed.
9. NON-EXCLUSIVITY. The provisions for indemnification and advancement
of expenses set forth 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 Certificate of Incorporation or Bylaws, the vote of the Company's
stockholders or disinterested directors, other agreements, or otherwise, both as
to action in his official capacity and to action in another capacity while
occupying the Indemnitee's position as an Agent of the Company, and the
Indemnitee's rights hereunder shall continue after the Indemnitee has ceased
acting as an Agent of the Company and shall inure to the benefit of the heirs,
executors and administrators of the Indemnitee.
10. ENFORCEMENT. Any right to indemnification or advances granted by this
Agreement to the Indemnitee shall be enforceable by or on behalf of the
Indemnitee 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. The Indemnitee, in such enforcement action, if successful
in whole or in part, shall be entitled to be paid also the expense of
prosecuting the Indemnitee's claim. It shall be a defense to any action for
which a claim for indemnification is made under this Agreement (other than an
action brought to enforce a claim for expenses pursuant to Section 6 hereof,
PROVIDED that the required undertaking has been tendered to the Company) that
the Indemnitee is not entitled to indemnification because of the limitations set
forth in Sections 4 and 8 hereof. 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 the Indemnitee is proper in the circumstances, nor an actual
determination by the Company (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 the Indemnitee is not entitled to
indemnification under this Agreement or otherwise.
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11. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.
12. SURVIVAL OF RIGHTS.
(a) All agreements and obligations of the Company contained herein
shall continue during the period the Indemnitee is an Agent of the Company and
shall continue thereafter so long as the Indemnitee shall be subject to any
possible claim or threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitrational, administrative or investigative, by
reason of the fact that the Indemnitee was serving in the capacity referred to
herein.
(b) The Company shall require any successor to the Company (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, expressly 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.
13. INTERPRETATION OF AGREEMENT. It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent permitted by law
including those circumstances in which indemnification would otherwise be
discretionary.
14. SEVERABILITY. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever, then
(i) the validity, legality and enforceability of the remaining provisions of the
Agreement (including without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and to give
effect to Section 13 hereof.
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 provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
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16. NOTICE. Any notice hereunder by either party shall be given by
personal delivery or by sending such notice by certified mail, return-receipt
requested, or by overnight delivery with a reputable courier service, or
telecopied, addressed or telecopied, as the case may be, to the other party at
its address set forth below or at such other address designated by notice in the
manner provided in this section. Such notice shall be deemed to have been
received upon the date of actual delivery if personally delivered or, in the
case of mailing, two (2) days after deposit with the U.S. mail, or if by
overnight delivery, the date of delivery or, in the case of facsimile
transmission, when confirmed by the facsimile machine report.
If to the Indemnitee:
------------------
------------------
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If to the Company:
EXE Technologies, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: President
with a copy to:
EXE Technologies, Inc.
000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
17. 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.
18. CONSENT TO SUIT. In the case of any dispute under or in connection
with this Agreement, the Indemnitee may only bring suit against the Company in
the Court of Chancery of the State of Delaware. The Indemnitee hereby consents
to the jurisdiction and venue of the courts of the State of Delaware, and the
Indemnitee hereby waives any claim the Indemnitee may have at any time as to
FORUM NON CONVENIENS with respect to such venue. The Company shall have the
right to institute any legal action arising out of or relating to this Agreement
in any court of competent jurisdiction. Any judgment entered against either of
the parties in any proceeding hereunder may be entered and enforced by any court
of competent jurisdiction. If an action at
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law or in equity is necessary to enforce or interpret the terms of this
Agreement, then the prevailing party shall be entitled to recover, in
addition to any other relief, reasonable attorneys' fees, costs and
disbursements.
19. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties hereto relating to the subject matter hereof, and
merges and supersedes all prior and contemporaneous discussions, agreements and
understandings of every nature between the parties hereto relating to the
subject matter hereof.
The parties hereto have entered into this Agreement effective as of the
date first above written.
EXE TECHNOLOGIES, INC.
By:
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Name:
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Title:
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INDEMNITEE:
---------------------------------
[Indemnitee's Printed Name]
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