EXHIBIT 10.33
VIEWLOCITY, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made on this ___ day of
_______________, 2000, between VIEWLOCITY, INC., a Delaware corporation
(the "Company"), and ________________ ("Indemnitee"):
W I T N E S S E T H:
WHEREAS, Indemnitee is an officer and/or director of the Company and
in such capacity performs or will perform a valuable service for the Company;
WHEREAS, the Company's Bylaws (the "Bylaws") authorize the Company to
indemnify its officers and directors in accordance with the Delaware General
Corporation Law (the "DGCL");
WHEREAS, Section 145 of the DGCL (the "Statute") provides that the
indemnification provided under the Statute is not exclusive of any other
rights in respect to indemnification or otherwise to which those seeking
indemnification may be entitled under the Company's Certificate of
Incorporation, the Company's Bylaws, a general or specific action of the
Company's Board of Directors, or contract to the extent the provisions of
such instruments or contract are consistent with the Statute;
WHEREAS, the Statute thus contemplates that contracts may be entered
into between the Company and the Company's directors and officers with
respect to indemnification of such individuals; and
WHEREAS, in order to encourage Indemnitee to begin or to continue to
serve as an officer or a member of the Board of Directors of the Company, and
to perform other designated services for the Company at its request, the
Company has determined and agreed to enter into this Agreement with
Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued service
as an officer and/or director of the Company, and the performance of such
other services as requested by the Company, the parties hereby agree as
follows:
1. STATUTORY INDEMNITY OF INDEMNITEE. Except as expressly set forth
herein and subject to the provisions of this Agreement, the Company shall
defend, hold harmless and indemnify Indemnitee to the full extent authorized
or permitted by the provisions of the Statute, as currently in effect, or by
any amendment thereof or other statutory provision authorizing or permitting
such indemnification adopted after the date hereof that has the effect of
broadening (but not narrowing) the scope of indemnification provided under
the Statute as it exists as of the date hereof.
2. GENERAL INDEMNITY. Except as expressly set forth herein and
subject to the provisions of this Agreement, in addition to any other
indemnification to which Indemnitee may be entitled pursuant to the Statute,
the Company's Certificate of Incorporation or Bylaws, or otherwise, the
Company shall defend, hold harmless and indemnify Indemnitee in the event
Indemnitee was, is, or is threatened to be made a named defendant or
respondent, in any threatened, pending or completed dispute, action, suit
or proceeding, whether civil, criminal, administrative or investigative
and whether formal or informal, by reason of the fact that Indemnitee is
or was an officer, director, employee or agent of the Company, or is
or was serving at the request of the Company as an officer, director,
partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employment
benefit plan), expenses (including attorneys' fees), and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with
such dispute, action, suit or proceeding. For purposes of this Section 2,
Indemnitee shall be considered to be serving an employee benefit plan at the
request of the Company if Indemnitee's duties to the Company also impose
duties on, or otherwise involve services by, Indemnitee to the plan or to
participants in or beneficiaries of the plan.
3. LIMITATIONS ON GENERAL INDEMNITY.
A. The Company shall not be liable under this Agreement to
make any payment of amounts otherwise subject to indemnification hereunder if
and to the extent Indemnitee has otherwise actually received such payment under
directors' and officers' liability insurance carried by the Company, or pursuant
to any other insurance policy, contract, agreement or otherwise.
B. No indemnity pursuant to Section 2 of this Agreement shall
be paid by the Company to the extent of any liability incurred in a proceeding
in which Indemnitee is adjudged liable to the Company or is subjected to
injunctive relief in favor of the Company:
(1) for any appropriation, in violation of Indemnitee's
duties, of any business opportunities of the Company;
(2) for acts or omissions which involve intentional
misconduct or a knowing violation of law;
(3) for any transaction from which Indemnitee received any
improper personal benefit; or
(4) for matters as to which indemnification would
be in contravention of the laws of the State of Delaware or of the United
States of America, whether as a matter of policy or pursuant to statutory
provision.
4. NOTIFICATION AND DEFENSE OF CLAIM.
A. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee will, if a claim in
respect thereto is to be made against the Company under this Agreement, notify
the Company of the commencement thereof, but the failure to so notify the
Company will not relieve the Company from any liability which it may have to
Indemnitee otherwise under this Agreement. With respect to any such action, suit
or proceeding as to which Indemnitee so notifies the Company:
(1) the Company will be entitled to participate
therein at its own expense; and
(2) except as otherwise provided below, to the extent
that it may desire, the Company may assume the defense thereof.
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B. After notice from the Company to Indemnitee of the
Company's 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 counsel of Indemnitee's choosing in
such action, suit or 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 in writing by the Company, (ii) the
Company and Indemnitee shall reasonably conclude that there may be a conflict
of interest between the Company and Indemnitee in the conduct of the defense
of such action, or (iii) the Company shall not in fact have employed counsel
to assume the defense of such action, in each of which cases the reasonable
fees and expenses of Indemnitee's counsel shall be paid by the Company.
C. The Company shall not be liable to Indemnitee under this
Agreement for any amounts paid in settlement of any threatened or pending
action, suit or proceeding without the Company's prior written consent. The
Company shall not settle any such action, suit or proceeding in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee's prior
written consent. Neither the Company nor Indemnitee will unreasonably withhold
consent to any proposed settlement.
5. PREPAYMENT OF EXPENSES. Unless Indemnitee otherwise elects,
expenses incurred in defending any civil or criminal action, suit or
proceeding will be paid by the Company in advance of the final disposition of
such action, suit or proceeding if: (i) Indemnitee furnishes the Company a
written affirmation of Indemnitee's good faith belief that Indemnitee's
conduct does not constitute behavior of the kind described in subsection B of
Section 3 of this Agreement; and (ii) Indemnitee furnishes the Company a
written undertaking to repay any advances if it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company under this
Agreement.
6. ENFORCEMENT.
A. The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve or to continue to serve as a director and/or
officer of the Company and/or a subsidiary or other affiliate of the Company,
and acknowledges that Indemnitee is relying upon this Agreement in agreeing to
serve or to continue to serve in such capacity.
B. In the event Indemnitee is required to bring any action to
enforce Indemnitee's rights or to collect monies due under this Agreement and is
successful in such action, the Company shall promptly reimburse Indemnitee for
all of Indemnitee's reasonable fees and expenses in bringing and pursuing such
action, including reasonable attorneys' fees, court costs and other related
expenses.
7. SEVERABILITY: REFORMATION. Each of the provisions of this Agreement
is a separate and distinct agreement and independent of the others, so that if
any provision hereof shall be held to be invalid or unenforceable in whole or in
part for any reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions hereof. In the event that all
or any portion of this Agreement is ever held void or unenforceable by a court
of competent jurisdiction, then the parties hereto expressly authorize such
court to modify any provision(s) held void or unenforceable to the extent, and
only to the extent, necessary to render it valid and enforceable.
8. NOTICES. All notices, demands and other communications required
or permitted hereunder ("Notices") shall be in writing and shall be
deemed to have been duly given (i) if delivered personally,
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upon receipt of delivery; or (ii) if mailed by certified mail, return receipt
requested, with proper postage prepaid, on the fifth (5th) business day after
mailing. All Notices shall be delivered or addressed as follows:
If to the Company:
Viewlocity, Inc.
_______________________
_______________________
_______________________
If to the Indemnitee:
_______________________
_______________________
_______________________
_______________________
Any party may change its address for Notices by giving a Notice
hereunder specifically setting forth such new address. If receipt of any Notice
is refused, such Notice shall be deemed to have been given on the date of such
refusal to accept receipt.
10. GOVERNING LAW: ASSIGNMENT: BINDING EFFECT; AMENDMENT;
TERMINATION; USAGE.
A. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
B. Neither this Agreement nor any rights or obligations
hereunder shall be assigned or transferred by Indemnitee.
C. This Agreement shall be binding upon Indemnitee and upon
the Company, and their respective successors and assigns, including successors
by merger or consolidation, and shall inure to the benefit of Indemnitee, his or
her heirs and personal representatives, and to the benefit of the Company, its
successors and assigns.
D. No amendment, modification or termination of this Agreement
shall be effective unless in writing signed by both parties hereto.
E. Whenever the masculine, feminine or neuter gender is used
in this Agreement, it shall, where appropriate and the context so requires,
include the other genders as well, and the plural shall include the singular and
the singular the plural where appropriate and the context so requires.
F. This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement.
G. The provisions of this Agreement shall cover claims,
actions, suits and proceedings, whether now pending or hereafter commenced, and
shall be retroactive to cover acts or omissions or alleged acts or omissions
that heretofore have taken place.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
_________________________________
_________________________________
VIEWLOCITY, INC.
By: ____________________________
_______________ , __________
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