EXHIBIT 10.9
INDEMNITY AGREEMENT
THIS AGREEMENT made as of the __ day of _______, 19__, between AltaVista
Company, a Delaware corporation ("Company"), and __________("Indemnitee").
WHEREAS, Indemnitee is an executive officer of the Company, and the Company
and Indemnitee desire that Indemnitee continue to serve in this capacity; and
WHEREAS, qualified persons are often reluctant to serve publicly-held
corporations as directors or officers unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their service to and
activities on behalf of the corporation; and
WHEREAS, the Board of Directors has determined that the inability to
attract and retain such persons is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company to agree
to indemnify such persons so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, the Company desires and intends hereby to indemnify Indemnitee to
the fullest extent permitted by law:
NOW THEREFORE, WITNESSETH:
THAT for and in consideration of the premises and the covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as follows:
1. Continued Service. Indemnitee will continue to serve, at the will of the
-----------------
Company, as an officer so long as Indemnitee is duly elected and qualified in
accordance with the by-laws of the Company or until Indemnitee tenders
Indemnitee's resignation.
2. Indemnification.
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(a) The Company shall indemnify Indemnitee to the fullest extent permitted
by applicable law in effect on the date hereof or as such laws may from time to
time be amended.
(b) Without limiting the generality of Subsection 2(a) hereof, the Company
agrees that it shall indemnify Indemnitee as follows:
(i) The Company shall indemnify Indemnitee when Indemnitee is a
party or is threatened to be made a party to any threatened, pending or
completed proceeding (other than an action by or in the right of the Company) by
reason of the fact that Indemnitee is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, judgments, fines and
amounts paid in settlements actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf (net of any insurance proceeds received by Indemnitee or
paid on Indemnitee's behalf) in connection with such proceeding if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe Indemnitee's
conduct was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee failed to act in good
faith and in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that Indemnitee's conduct
was unlawful.
(ii) The Company shall indemnify Indemnitee when Indemnitee is a
party or is threatened to be made a party to any threatened, pending or
completed proceeding brought by or in the right of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf (net of any insurance proceeds received by Indemnitee or paid on
Indemnitee's behalf) in connection with the defense or settlement of such
proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
and except that no indemnification shall be made in respect of any claim, issue
or matter as to which Indemnitee shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of Chancery of the State of
Delaware or 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, Indemnitee is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery or such other
court shall deem proper.
(iii) Any indemnification under the circumstances specified in
Subsections 2(b)(i) or (ii) hereunder (unless ordered by a court) shall be made
by the Company only as authorized in the specific case upon a determination (in
accordance with Section 3 hereof) that indemnification of Indemnitee is proper
in the circumstances because Indemnitee has met the applicable standard of
conduct set forth in Subsections 2(b)(i) or (ii) hereof. Such determination
shall be made (1) by a majority vote of the directors who were not parties to
such proceeding ("Disinterested Directors"), even though less than a quorum, (2)
by a committee of Disinterested Directors designated by a majority vote of
Designated Directors, even though less than a quorum, (3) if there are no
Disinterested Directors, or if the Disinterested Directors so direct, by
independent legal counsel in a written opinion, or (4) by the stockholders.
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(c) Expenses actually and reasonably incurred or to be incurred within the
next 30 days by Indemnitee (including attorneys' retainers and other expenses
required to be paid in advance) in defending a pending or threatened proceeding
shall be paid by the Company in advance of the final disposition of such
proceeding within 30 days of the actual receipt by the Company of a sworn
statement of request for advancement of expenses substantially in the form of
Exhibit 1 attached hereto and made a part hereof (together with evidence
thereof), averring that (i) Indemnitee has reasonably incurred or will
reasonably incur actual expenses in defending a proceeding, and (ii) Indemnitee
undertakes to repay such amount if it is ultimately determined, in accordance
with the provisions of Section 3 hereof, that Indemnitee is not entitled to be
indemnified by the Company under this Agreement or otherwise.
(d) Notwithstanding the other provisions of this Section, to the extent
that Indemnitee has served as a witness on behalf of the Company, Indemnitee
shall be indemnified by the Company against all expenses actually and reasonably
incurred by Indemnitee in connection with such services as a witness.
Notwithstanding the other provisions of this Section, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
proceeding referred to in Subsections 2(b)(i) and (ii), or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified by the Company
against expenses actually and reasonably incurred by Indemnitee in connection
with such proceeding, claim, issue or matter. Any indemnifiable amount required
under this Subsection 2(d) shall be paid by the Company no later than 30 days
after actual receipt by the Company of a sworn statement of request for such
expenses (together with evidence thereof).
(e) The right to indemnification and advancement of expenses provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under any statute, by-law, insurance policy,
agreement, vote of stockholders or Disinterested Directors or otherwise, both as
to action in Indemnitee's official capacity and as to action in another capacity
while holding such office.
(f) The Company's agreements and obligations under this Agreement shall
continue during the period Indemnitee is a director or officer of the Company,
and shall continue thereafter so long as Indemnitee shall be subject to any
possible claim or proceeding by reason of Indemnitee's service in such capacity.
The Indemnitee's rights under this Agreement shall inure to the benefit of
Indemnitee's heirs, executors and administrators.
(g) The Company shall not be liable under this Agreement to make any
payment which is prohibited by applicable law, including, without limitation,
any liability of Indemnitee to the Company under Section 16(b) of the Securities
Exchange Act of 1934.
(h) Upon payment of any amounts under this Agreement, the Company shall be
subrogated to the rights of the Indemnitee, and Indemnitee's heirs, executors or
administrators receiving such payments, against any insurance carrier in respect
to such amounts (to the extent
3
permitted by such insurance carriers). In no event shall the Company be
obligated to maintain directors' and officers' liability insurance on
Indemnitee's behalf.
3. Determination of Right to Indemnification. For purposes of making the
-----------------------------------------
determination in a specific case under Subsection 2(b)(iii) hereof whether to
make indemnification, the Disinterested Directors, the Committee of
Disinterested Directors, independent legal counsel or stockholders, as the case
may be, shall make such determination in accordance with the following
procedure:
(a) Indemnitee may submit to the Board of Directors a sworn statement of
request for indemnification substantially in the form of Exhibit 2 attached
hereto and made a part hereof ("Indemnification Statement") averring that
Indemnitee has met the applicable standard of conduct set forth in Subsections
2(b)(i) and (ii) hereof; and
(b) Submission of the Indemnification Statement to the Board of Directors
shall create a rebuttable presumption that Indemnitee is entitled to
indemnification under this Agreement, and the Disinterested Directors,
independent legal counsel or stockholders, as the case may be, shall within 60
days after actual receipt by the Company of the Indemnification Statement
specifically determine that Indemnitee is so entitled, unless it or they shall
possess sufficient evidence to rebut the presumption that Indemnitee has met the
applicable standard of conduct set forth in Subsections 2(b)(i) and (ii) hereof.
If the determination is made by the Disinterested Directors, the evidence which
they possess shall be disclosed to Indemnitee with particularity in a sworn
written statement signed by all persons who participated in the determination
and voted to deny indemnification.
(c) Subject to the Company's obligation to advance expenses pursuant to
Section 2(c) above, if indemnification is requested with respect to any
proceeding (whether threatened, pending or completed) to which Indemnitee is a
party, the request for indemnification shall be made only after a Company-
approved settlement has been reached (and approved by the court if required) or
a final judgment has been entered. Once a determination has been made under
this Section 3 that Indemnitee is entitled to indemnification hereunder, the
amounts to be indemnified hereunder shall be paid by the Company within 30 days
thereafter, or otherwise as specified by the terms of any such settlement or
judgment.
4. Merger, Consolidation or Change in Control. In the event that the Company
------------------------------------------
shall be a constituent corporation in a consolidation or merger, whether the
Company is the resulting or surviving corporation or is absorbed, or if there is
a change in control of the Company as defined in Section 5 hereof, Indemnitee
shall stand in the same position under this Agreement with respect to the
resulting, surviving or changed corporation as Indemnitee would have with
respect to the Company if its separate existence had continued or if there had
been no change in the control of the Company.
5. Certain Definitions. For purposes of this Agreement, the following
-------------------
definitions apply herein:
4
(a) "change of control" shall include any change in the ownership of
a majority of the capital stock of the Company or in the composition of a
majority of the members of the Board of Directors of the Company.
(b) "expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcripts, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, appeal bonds and all other disbursements or
expenses customarily incurred in connection with asserting or defending
claims;
(c) "fines" shall include any excise taxes assessed on Indemnitee
with respect to any employee benefit plan;
(d) "independent counsel" shall mean a law firm or member of a law
firm that neither is presently nor in the past five years has been retained
to represent: (i) the Company or 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" 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 Company or Indemnitee in an
action to determine Indemnitee's right to indemnification under this
Agreement;
(e) "proceeding" shall include any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative
hearing or any other proceeding whether civil, criminal, administrative or
investigative;
(f) "other enterprises" shall include employee benefit plans, and
civic, non-profit or charitable organizations, whether or not incorporated;
and
(g) "serving at the request of the Company" shall include any service
at the request or with the express or implied authorization of the Company,
as a director, officer, employee or agent of the Company which imposes
duties on, or involves services by, Indemnitee with respect to a
corporation or "other enterprise," its participants or beneficiaries; and
if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of
such other enterprise or entity, Indemnitee shall be deemed to have acted
in a manner "not opposed to the best interests of the Company" as referred
to in this Agreement;
6. Notification and Defense of Claim. Within five days after receipt by
---------------------------------
Indemnitee of notice of the commencement of any proceeding, Indemnitee will, if
a claim in respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement thereof. Failure to so notify
the Company within such period will terminate the Company's obligation to
Indemnitee with respect to such proceeding under this Agreement, but the
omission so to notify the Company will not relieve it from any liability which
it may have to
5
Indemnitee otherwise than under this Agreement. With respect to any such
proceeding as to which Indemnitee notifies the Company of the commencement
thereof:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to Indemnitee.
After notice from the Company to Indemnitee of its election to assume the
defense thereof, the Company 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 other than reasonable costs of investigation
or as otherwise provided below. Indemnitee shall have the right to employ his
own counsel in such proceeding, but the fees and expenses of such counsel
incurred after notice from the Company 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 Company, (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of the defense of such proceeding, or
(iii) the Company shall not in fact have employed counsel to assume the defense
of such proceeding, in each of which cases the fees and expenses of counsel
shall be at the expense of the Company. The Company shall not be entitled to
assume the defense of any proceeding brought by or on behalf of the Company or
as to which Indemnitee shall have made the conclusion provided for in (ii)
above; and
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any proceeding effected without
its written consent. The Company shall not settle any proceeding in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent. Neither the Company nor Indemnitee will unreasonably withhold
their consent to any proposed settlement.
7. Attorneys' Fees. In the event that Indemnitee institutes any legal action
---------------
to enforce Indemnitee's rights hereunder, or to recover damages for breach of
this Agreement, Indemnitee, if Indemnitee prevails in whole or in part, shall be
entitled to recover from the Company all attorneys' fees and disbursements
incurred by Indemnitee with respect to the claims or matters on which Indemnitee
has prevailed.
8. Severability. If any provision of this Agreement or the application of any
------------
provision hereof to any person or circumstances is held invalid, the remainder
of this Agreement and the application of such provision to other persons or
circumstances shall not be affected.
9. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware without regard to its conflict
of laws rules.
6
10. Modification. This Agreement contains the entire agreement of the parties
------------
relating to the subject matter hereof. This Agreement may be modified only by
an instrument in writing signed by both parties hereto.
11. Deposit of Funds in Trust. In the event that the Company decides to
-------------------------
voluntarily dissolve or to file a voluntary petition for relief under applicable
bankruptcy, moratorium or similar laws, then not later than ten days prior to
such dissolution or filing, the Company shall deposit in trust for the exclusive
benefit of Indemnitee a cash amount equal to all amounts previously authorized
to be paid to Indemnitee hereunder, such amounts to be used to discharge the
Company's obligations to Indemnitee hereunder. Any amounts in such trust not
required for such purpose shall be returned to the Company. This Section 11
shall not apply to dissolution of the Company in connection with a transaction
as to which Section 4 hereof applies.
12. Notices. All notices (and other communications) provided for by this
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Agreement, unless actual receipt thereof is required by this Agreement, shall be
deemed given when delivered by hand or when deposited in the U.S. mails,
registered or certified mail, return receipt requested, postage prepaid, as
follows:
If to Indemnitee: _________________________
_________________________
_________________________
_________________________
If to the Company: AltaVista Company
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxxxxxxx Lucie
or to such address as either party may have furnished to the other in writing.
Any notice of Indemnitee to the Company pursuant to Section 6 hereof shall be
deemed made when actually received at the office provided above, addressed as
provided above.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
this __ day of _____________ 19__ effective as of the date first above written.
ALTAVISTA COMPANY
By: ______________________________
INDEMNITEE
_____________________________
Name: _______________________
7
EXHIBIT 1
STATEMENT OF UNDERTAKING
STATE OF
COUNTY OF
I, ______________________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement dated
______________, between AltaVista Company, a Delaware corporation ("Company"),
and the undersigned.
2. I am requesting advancement of certain actual expenses which have
reasonably been incurred or will be reasonably incurred by me or on my behalf
within the next 30 days in defending a civil or criminal action, suit or
proceeding to which I am a party or am threatened to be made a party by reason
of the fact that I am or was a director or officer of the Company.
3. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company.
4. The expenses for which advancement is requested have been or will be
incurred in connection with the following action, suit or proceeding:
__________________________________
Name: ____________________________
Subscribed and sworn to before me this _____ day of _______________, 19___.
__________________________________
Notary Public in and for
said state and county
My commission expires: ___________
8
EXHIBIT 2
STATEMENT OF REQUEST FOR INDEMNIFICATION
STATE OF
COUNTY OF
I, _______________________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement dated
_________________, between AltaVista Company, a Delaware corporation
("Company"), and the undersigned.
2. I am requesting indemnification against expenses and, with respect to
any action not by or in the right of the Company, judgments, fines and amounts
paid in settlement, all of which have been actually and reasonably incurred by
me or on my behalf in connection with a certain action, suit or proceeding to
which I am a party by reason of the fact that I am or was a director or officer
of the Company.
3. With respect to all matters related to any such action, suit or
proceeding, I acted in good faith and in a manner I reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, I had no reason to believe that my conduct was
unlawful.
4. I am requesting indemnification in connection with the following suit,
action or proceeding:
__________________________________
Name: ____________________________
Subscribed and sworn to before me this _____ day of _____________________,19___.
__________________________________
Notary Public in and for
said state and county
My commission expires: ___________
9
INDEMNITY AGREEMENT
THIS AGREEMENT, effective as of the 18th day of August, 1999, between
AltaVista Company, a Delaware corporation ("Company"), and
__________("Indemnitee").
WHEREAS, Indemnitee is a director of the Company, and the Company and
Indemnitee desire that Indemnitee continue to serve in this capacity; and
WHEREAS, qualified persons are often reluctant to serve publicly-held
corporations as directors or officers unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their service to and
activities on behalf of the corporation; and
WHEREAS, the Board of Directors has determined that the inability to
attract and retain such persons is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company to agree
to indemnify such persons so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, the Company desires and intends hereby to indemnify Indemnitee to
the fullest extent permitted by law:
NOW THEREFORE, WITNESSETH:
THAT for and in consideration of the premises and the covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as follows:
1. Continued Service. Indemnitee will continue to serve, at the will of the
-----------------
Company, as a director so long as Indemnitee is duly elected and qualified in
accordance with the by-laws of the Company or until Indemnitee tenders
Indemnitee's resignation.
2. Indemnification.
---------------
(a) The Company shall indemnify Indemnitee to the fullest extent permitted
by applicable law in effect on the date hereof or as such laws may from time to
time be amended.
(b) Without limiting the generality of Subsection 2(a) hereof, the Company
agrees that it shall indemnify Indemnitee as follows:
(i) The Company shall indemnify Indemnitee when Indemnitee is a
party or is threatened to be made a party to any threatened, pending or
completed proceeding (other than an action by or in the right of the Company) by
reason of the fact that Indemnitee is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, judgments, fines and
amounts paid in settlements actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf (net of any insurance proceeds received by Indemnitee or
paid on Indemnitee's behalf) in connection with such proceeding if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe Indemnitee's
conduct was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee failed to act in good
faith and in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that Indemnitee's conduct
was unlawful.
(ii) The Company shall indemnify Indemnitee when Indemnitee is a
party or is threatened to be made a party to any threatened, pending or
completed proceeding brought by or in the right of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf (net of any insurance proceeds received by Indemnitee or paid on
Indemnitee's behalf) in connection with the defense or settlement of such
proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
and except that no indemnification shall be made in respect of any claim, issue
or matter as to which Indemnitee shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of Chancery of the State of
Delaware or 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, Indemnitee is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery or such other
court shall deem proper.
(iii) Any indemnification under the circumstances specified in
Subsections 2(b)(i) or (ii) hereunder (unless ordered by a court) shall be made
by the Company only as authorized in the specific case upon a determination (in
accordance with Section 3 hereof) that indemnification of Indemnitee is proper
in the circumstances because Indemnitee has met the applicable standard of
conduct set forth in Subsections 2(b)(i) or (ii) hereof. Such determination
shall be made (1) by a majority vote of the directors who were not parties to
such proceeding ("Disinterested Directors"), even though less than a quorum, (2)
by a committee of Disinterested Directors designated by a majority vote of
Designated Directors, even though less than a quorum, (3) if there are no
Disinterested Directors, or if the Disinterested Directors so direct, by
independent legal counsel in a written opinion, or (4) by the stockholders.
2
(c) Expenses actually and reasonably incurred or to be incurred within the
next 30 days by Indemnitee (including attorneys' retainers and other expenses
required to be paid in advance) in defending a pending or threatened proceeding
shall be paid by the Company in advance of the final disposition of such
proceeding within 30 days of the actual receipt by the Company of a sworn
statement of request for advancement of expenses substantially in the form of
Exhibit 1 attached hereto and made a part hereof (together with evidence
thereof), averring that (i) Indemnitee has reasonably incurred or will
reasonably incur actual expenses in defending a proceeding, and (ii) Indemnitee
undertakes to repay such amount if it is ultimately determined, in accordance
with the provisions of Section 3 hereof, that Indemnitee is not entitled to be
indemnified by the Company under this Agreement or otherwise.
(d) Notwithstanding the other provisions of this Section, to the extent
that Indemnitee has served as a witness on behalf of the Company, Indemnitee
shall be indemnified by the Company against all expenses actually and reasonably
incurred by Indemnitee in connection with such services as a witness.
Notwithstanding the other provisions of this Section, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
proceeding referred to in Subsections 2(b)(i) and (ii), or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified by the Company
against expenses actually and reasonably incurred by Indemnitee in connection
with such proceeding, claim, issue or matter. Any indemnifiable amount required
under this Subsection 2(d) shall be paid by the Company no later than 30 days
after actual receipt by the Company of a sworn statement of request for such
expenses (together with evidence thereof).
(e) The right to indemnification and advancement of expenses provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under any statute, by-law, insurance policy,
agreement, vote of stockholders or Disinterested Directors or otherwise, both as
to action in Indemnitee's official capacity and as to action in another capacity
while holding such office.
(f) The Company's agreements and obligations under this Agreement shall
continue during the period Indemnitee is a director or officer of the Company,
and shall continue thereafter so long as Indemnitee shall be subject to any
possible claim or proceeding by reason of Indemnitee's service in such capacity.
The Indemnitee's rights under this Agreement shall inure to the benefit of
Indemnitee's heirs, executors and administrators.
(g) The Company shall not be liable under this Agreement to make any
payment which is prohibited by applicable law, including, without limitation,
any liability of Indemnitee to the Company under Section 16(b) of the Securities
Exchange Act of 1934.
(h) Upon payment of any amounts under this Agreement, the Company shall be
subrogated to the rights of the Indemnitee, and Indemnitee's heirs, executors or
administrators receiving such payments, against any insurance carrier in respect
to such amounts (to the extent
3
permitted by such insurance carriers). In no event shall the Company be
obligated to maintain directors' and officers' liability insurance on
Indemnitee's behalf.
3. Determination of Right to Indemnification. For purposes of making the
-----------------------------------------
determination in a specific case under Subsection 2(b)(iii) hereof whether to
make indemnification, the Disinterested Directors, the Committee of
Disinterested Directors, independent legal counsel or stockholders, as the case
may be, shall make such determination in accordance with the following
procedure:
(a) Indemnitee may submit to the Board of Directors a sworn statement of
request for indemnification substantially in the form of Exhibit 2 attached
hereto and made a part hereof ("Indemnification Statement") averring that
Indemnitee has met the applicable standard of conduct set forth in Subsections
2(b)(i) and (ii) hereof; and
(b) Submission of the Indemnification Statement to the Board of Directors
shall create a rebuttable presumption that Indemnitee is entitled to
indemnification under this Agreement, and the Disinterested Directors,
independent legal counsel or stockholders, as the case may be, shall within 60
days after actual receipt by the Company of the Indemnification Statement
specifically determine that Indemnitee is so entitled, unless it or they shall
possess sufficient evidence to rebut the presumption that Indemnitee has met the
applicable standard of conduct set forth in Subsections 2(b)(i) and (ii) hereof.
If the determination is made by the Disinterested Directors, the evidence which
they possess shall be disclosed to Indemnitee with particularity in a sworn
written statement signed by all persons who participated in the determination
and voted to deny indemnification.
(c) Subject to the Company's obligation to advance expenses pursuant to
Section 2(c) above, if indemnification is requested with respect to any
proceeding (whether threatened, pending or completed) to which Indemnitee is a
party, the request for indemnification shall be made only after a Company-
approved settlement has been reached (and approved by the court if required) or
a final judgment has been entered. Once a determination has been made under
this Section 3 that Indemnitee is entitled to indemnification hereunder, the
amounts to be indemnified hereunder shall be paid by the Company within 30 days
thereafter, or otherwise as specified by the terms of any such settlement or
judgment.
4. Merger, Consolidation or Change in Control. In the event that the Company
------------------------------------------
shall be a constituent corporation in a consolidation or merger, whether the
Company is the resulting or surviving corporation or is absorbed, or if there is
a change in control of the Company as defined in Section 5 hereof, Indemnitee
shall stand in the same position under this Agreement with respect to the
resulting, surviving or changed corporation as Indemnitee would have with
respect to the Company if its separate existence had continued or if there had
been no change in the control of the Company.
5. Certain Definitions. For purposes of this Agreement, the following
-------------------
definitions apply herein:
4
(a) "change of control" shall include any change in the ownership of
a majority of the capital stock of the Company or in the composition of a
majority of the members of the Board of Directors of the Company.
(b) "expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcripts, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, appeal bonds and all other disbursements or
expenses customarily incurred in connection with asserting or defending
claims;
(c) "fines" shall include any excise taxes assessed on Indemnitee
with respect to any employee benefit plan;
(d) "independent counsel" shall mean a law firm or member of a law
firm that neither is presently nor in the past five years has been retained
to represent: (i) the Company or 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" 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 Company or Indemnitee in an
action to determine Indemnitee's right to indemnification under this
Agreement;
(e) "proceeding" shall include any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative
hearing or any other proceeding whether civil, criminal, administrative or
investigative;
(f) "other enterprises" shall include employee benefit plans, and
civic, non-profit or charitable organizations, whether or not incorporated;
and
(g) "serving at the request of the Company" shall include any service
at the request or with the express or implied authorization of the Company,
as a director, officer, employee or agent of the Company which imposes
duties on, or involves services by, Indemnitee with respect to a
corporation or "other enterprise," its participants or beneficiaries; and
if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of
such other enterprise or entity, Indemnitee shall be deemed to have acted
in a manner "not opposed to the best interests of the Company" as referred
to in this Agreement;
6. Notification and Defense of Claim. Within five days after receipt by
---------------------------------
Indemnitee of notice of the commencement of any proceeding, Indemnitee will, if
a claim in respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement thereof. Failure to so notify
the Company within such period will terminate the Company's obligation to
Indemnitee with respect to such proceeding under this Agreement, but the
omission so to notify the Company will not relieve it from any liability which
it may have to
5
Indemnitee otherwise than under this Agreement. With respect to any such
proceeding as to which Indemnitee notifies the Company of the commencement
thereof:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to Indemnitee.
After notice from the Company to Indemnitee of its election to assume the
defense thereof, the Company 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 other than reasonable costs of investigation
or as otherwise provided below. Indemnitee shall have the right to employ his
own counsel in such proceeding, but the fees and expenses of such counsel
incurred after notice from the Company 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 Company, (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of the defense of such proceeding, or
(iii) the Company shall not in fact have employed counsel to assume the defense
of such proceeding, in each of which cases the fees and expenses of counsel
shall be at the expense of the Company. The Company shall not be entitled to
assume the defense of any proceeding brought by or on behalf of the Company or
as to which Indemnitee shall have made the conclusion provided for in (ii)
above; and
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any proceeding effected without
its written consent. The Company shall not settle any proceeding in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent. Neither the Company nor Indemnitee will unreasonably withhold
their consent to any proposed settlement.
7. Attorneys' Fees. In the event that Indemnitee institutes any legal action
---------------
to enforce Indemnitee's rights hereunder, or to recover damages for breach of
this Agreement, Indemnitee, if Indemnitee prevails in whole or in part, shall be
entitled to recover from the Company all attorneys' fees and disbursements
incurred by Indemnitee with respect to the claims or matters on which Indemnitee
has prevailed.
8. Severability. If any provision of this Agreement or the application of any
------------
provision hereof to any person or circumstances is held invalid, the remainder
of this Agreement and the application of such provision to other persons or
circumstances shall not be affected.
9. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware without regard to its conflict
of laws rules.
6
10. Modification. This Agreement contains the entire agreement of the parties
------------
relating to the subject matter hereof. This Agreement may be modified only by
an instrument in writing signed by both parties hereto.
11. Deposit of Funds in Trust. In the event that the Company decides to
-------------------------
voluntarily dissolve or to file a voluntary petition for relief under applicable
bankruptcy, moratorium or similar laws, then not later than ten days prior to
such dissolution or filing, the Company shall deposit in trust for the exclusive
benefit of Indemnitee a cash amount equal to all amounts previously authorized
to be paid to Indemnitee hereunder, such amounts to be used to discharge the
Company's obligations to Indemnitee hereunder. Any amounts in such trust not
required for such purpose shall be returned to the Company. This Section 11
shall not apply to dissolution of the Company in connection with a transaction
as to which Section 4 hereof applies.
12. Notices. All notices (and other communications) provided for by this
-------
Agreement, unless actual receipt thereof is required by this Agreement, shall be
deemed given when delivered by hand or when deposited in the U.S. mails,
registered or certified mail, return receipt requested, postage prepaid, as
follows:
If to Indemnitee: _________________________
_________________________
_________________________
_________________________
If to the Company: AltaVista Company
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxxxxxxx Lucie
or to such address as either party may have furnished to the other in writing.
Any notice of Indemnitee to the Company pursuant to Section 6 hereof shall be
deemed made when actually received at the office provided above, addressed as
provided above.
7
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement,
which is effective as of the date first above written.
ALTAVISTA COMPANY
By: ______________________________
Xxxxxxxxx Lucie
Vice President, General Counsel & Secretary
[name]
_____________________________
8
EXHIBIT 1
STATEMENT OF UNDERTAKING
STATE OF
COUNTY OF
I, ______________________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement dated
______________, between AltaVista Company, a Delaware corporation ("Company"),
and the undersigned.
2. I am requesting advancement of certain actual expenses which have
reasonably been incurred or will be reasonably incurred by me or on my behalf
within the next 30 days in defending a civil or criminal action, suit or
proceeding to which I am a party or am threatened to be made a party by reason
of the fact that I am or was a director or officer of the Company.
3. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company.
4. The expenses for which advancement is requested have been or will be
incurred in connection with the following action, suit or proceeding:
__________________________________
Name: ____________________________
Subscribed and sworn to before me this _____ day of _______________, 19___.
_______________________________________
Notary Public in and for
said state and county
My commission expires: ___________
9
EXHIBIT 2
STATEMENT OF REQUEST FOR INDEMNIFICATION
STATE OF
COUNTY OF
I, _______________________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement dated
_________________, between AltaVista Company, a Delaware corporation
("Company"), and the undersigned.
2. I am requesting indemnification against expenses and, with respect to
any action not by or in the right of the Company, judgments, fines and amounts
paid in settlement, all of which have been actually and reasonably incurred by
me or on my behalf in connection with a certain action, suit or proceeding to
which I am a party by reason of the fact that I am or was a director or officer
of the Company.
3. With respect to all matters related to any such action, suit or
proceeding, I acted in good faith and in a manner I reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, I had no reason to believe that my conduct was
unlawful.
4. I am requesting indemnification in connection with the following suit,
action or proceeding:
__________________________________
Name: ____________________________
Subscribed and sworn to before me this _____ day of _____________________,
19___.
__________________________________
Notary Public in and for
said state and county
My commission expires: ___________
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