EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into as of
June 27, 1996, by and between Concurrent Computer Corporation, a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxx (the "Indemnitee").
RECITALS
WHEREAS, in recent years it has been increasingly difficult to obtain
directors' and officers' liability insurance, and there have been significant
increases in the premiums charged to maintain such insurance and substantial
reductions in the types of risks and amount of coverage provided by such
insurance;
WHEREAS, the law regarding the duties and liabilities of directors,
officers and other agents of corporations is frequently difficult to apply or
ambiguous and, therefore, in many instances fails to provide such directors,
officers and other agents with adequate or accurate information with respect to
the legal risks to which they are exposed;
WHEREAS, there has been a substantial increase in recent years in the
number of lawsuits filed against directors, officers and other agents of
corporations and such lawsuits frequently involve plaintiffs whose claims are
without merit and who seek compensation for alleged damages which is far in
excess of the compensation from the corporation received by such directors,
officers and other agents, and often in excess of the personal resources of such
persons derived independently from service to the Company;
WHEREAS, Section 145 of the General Corporation Law of Delaware, Article
Eleventh of the Certificate of Incorporation and Article XXIII of the Bylaws of
the Company permit the Company to enter into an indemnification agreement with
the Company's directors and officers; and
WHEREAS, the Company, in order to induce Indemnitee to continue to serve
the Company, is willing to provide Indemnitee with the benefits hereinafter set
forth.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and the covenants, terms
and conditions hereinafter set forth, the Company and Indemnitee hereby agree as
follows:
1. Definitions. For purposes of this Agreement, the following terms
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shall have the following meanings:
(a) "Agent of the Company" means any person who (i) is or was a
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director,
officer, employee or other agent of the Company or a Subsidiary, (ii) is or was
serving at the request of, for the convenience of or to represent the interest
of the Company or a Subsidiary, as a
director, officer, employee or other agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, (iii) was a director, officer or other agent of a foreign or
domestic corporation which was a predecessor corporation of the Company or a
Subsidiary, or (iv) was a director, officer, employee or other agent of another
foreign or domestic corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise at the request of, for the convenience of or to
represent the interests of any such predecessor corporation.
(b) "Change of Control" means any of the following events:
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(i) the consummation of any transaction after which any "person"
or "group" (as such terms are used in Sections 3(a)(9), 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities or possesses the power to vote
or control the vote of securities of the Company representing 30% or more
of the combined voting power of either the Common Stock or all outstanding
securities of the Company; or
(ii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation or entity, other
than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least 66 2/3% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the
shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets.
(c) "Continuing Director" shall mean any member of the Company's board
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of directors as of the date of this Agreement, and any successor to a Continuing
Director who is recommended to succeed a Continuing Director by a majority of
Continuing Directors who are then members of the board of directors.
(d) "Corporate Status" means the status of an Agent of the Company,
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and includes anything done or omitted to be done by an Agent of the Company in
any such capacity.
(e) "D&O Insurance" has the meaning set forth in Section 2 of this
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Agreement.
(f) "Disinterested Director" means a director of the Company who is
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not and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(g) "Dispute" has the meaning set forth in Section 8 of this
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Agreement.
(h) "Expenses" includes all out-of-pocket costs of any type or nature
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whatsoever (including, without limitation, all attorneys' fees and related
disbursements), actually and
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reasonably incurred by or on behalf of Indemnitee either in connection with the
investigation, defense, adjudication, settlement or appeal of a Proceeding, in
preparing to defend a Proceeding, or in connection with establishing or
enforcing a right to indemnification or advancement of Expenses under this
Agreement, the Certificate of Incorporation or By-laws of the Company,
applicable law or otherwise; provided, however, that Expenses shall not include
judgments, fines, penalties or amounts paid in settlement of a Proceeding.
(i) "Good Faith" means in good faith and in a manner Indemnitee
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reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal Proceeding, with no reasonable cause to
believe Indemnitee's conduct was unlawful.
(j) "Independent Counsel" means a law firm, or a member of a law firm,
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that is experienced in matters of corporation law and neither presently is, nor
in the past three years has been, retained to represent (i) the Company or
Indemnitee in any manner material to either such party (except representation as
Independent Counsel under this Agreement or any similar agreement), 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, could be precluded from representing either the Company
or Indemnitee due to actual or potential conflicts of interest in an action to
determine Indemnitee's rights under this Agreement.
(k) "Proceeding" means any threatened, pending or completed action,
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suit or other proceeding, or any inquiry or investigation, whether conducted by
the Company or any other party that Indemnitee in good faith believes might lead
to the institution of any such action, suit or proceeding, whether civil,
criminal, administrative, investigative or of any other type whatsoever.
(l) "Subsidiary" means any corporation of which 50% or more of the
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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. D&O Insurance. To the extent that the Company maintains at any time
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during the term hereof an insurance policy or policies providing liability
insurance for any Agent of the Company ("D&O Insurance"), the Company shall use
commercially reasonable efforts to obtain coverage for Indemnitee under such
policy or policies in accordance with its or their terms to the maximum extent
of the coverage available for any Agent of the Company occupying the same office
or position with respect to the Company, provided that outside directors of the
Company shall receive coverage no less extensive than coverage provided to any
executive officer or other director of the Company.
3. Indemnification.
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(a) General Intent. If, by reason of Indemnitee's Corporate Status,
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Indemnitee is a party or is threatened to be made a party to any Proceeding, the
Company shall indemnify and advance Expenses to Indemnitee to the fullest extent
permitted by applicable law in effect on the
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date hereof and to such greater extent as applicable law may thereafter from
time to time permit. Without limiting the generality of the foregoing, the
Company shall indemnify and advance Expenses to Indemnitee as provided under
this Agreement.
(b) Proceedings Other Than Proceedings by or in the Right of the
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Company. If, by reason of Indemnitee's Corporate Status, Indemnitee is, or is
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threatened to be made, a party to any Proceeding, other than a Proceeding by or
in the right of the Company, Indemnitee shall be indemnified against Expenses,
judgments, penalties, fines and amounts paid in settlement, including all
interest, assessments and other charges paid or payable with respect thereto,
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in Good Faith with respect to the matters which are the subject
of the Proceeding (determined either by adjudication or pursuant to Sections 5
or 8).
(c) Proceeding by or in the Right of the Company. If, by reason of
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Indemnitee's Corporate Status, Indemnitee is, or is threatened to be made, a
party to any Proceeding brought by or in the right of the Company to procure a
judgment in its favor, Indemnitee shall be indemnified against Expenses and
amounts paid in settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with such Proceeding if Indemnitee acted in
Good Faith with respect to the matters which are the subject of the Proceeding
(determined either by adjudication or pursuant to Sections 5 or 8).
Notwithstanding the foregoing, no such indemnification shall be made in respect
of any claim, issue or matter in such Proceeding as to which Indemnitee shall
have been adjudged to be liable to the Company if applicable law prohibits such
indemnification; provided, however, that indemnification shall nevertheless be
made in such event to the extent that the Court of Chancery of the State of
Delaware, or the court in which such Proceeding shall have been brought or is
pending, shall determine.
(d) Indemnification of a Party Who is Wholly or Partly Successful.
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Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee's Corporate Status, a party to any
Proceeding and is successful, on the merits or otherwise, in the defense of such
Proceeding, Indemnitee shall be indemnified to the maximum extent permitted by
law, against all Expenses in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such Proceeding,
the Company shall indemnify Indemnitee to the maximum extent permitted by law,
against all Expenses in connection with each such successfully resolved claim,
issue or matter. For purposes of this Section 3(d) and without limitations the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter, so long as there has been no determination (either
adjudicated or pursuant to Sections 5 or 8) that Indemnitee did not act in Good
Faith.
(e) Indemnification for Expenses of a Witness. Notwithstanding any
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other provisions of this Agreement, to the extent that Indemnitee is, by reason
of Indemnitee's Corporate Status, a witness in any Proceeding, Indemnitee shall
be indemnified against all Expenses in connection therewith.
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(f) Partial Indemnification. If Indemnitee is entitled under this
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Agreement to indemnification by the Company for some or a portion of any
Expenses, judgments, penalties, fines or amounts paid in settlement in
connection with any Proceeding but is not entitled to indemnification for the
full amount thereof, the Company shall nevertheless indemnify Indemnitee for
such full amount thereof less the portion to which it is ultimately determined
(either by adjudication or pursuant to Sections 5 or 8, as applicable) that
Indemnitee is not entitled.
(g) Claims Initiated by Indemnitee. Notwithstanding any other
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provision of this Agreement to the contrary, the Company shall not be obligated
under this Agreement to indemnify the Indemnitee in connection with any
Proceeding initiated by the Indemnitee and not by way of defense, cross-claim or
counter-claim unless (i) the initiation of such Proceeding is joined in or
consented to by the Board of Directors of the Company or (ii) Indemnitee
initiates the Proceeding in order to establish or enforce a right to
indemnification or advancement of Expenses under this Agreement, the Certificate
of Incorporation or Bylaws of the Company, applicable law or otherwise.
(h) Exclusions. Notwithstanding any other provisions of this Agreement
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to the contrary, the Company shall not be obligated under this Agreement to make
any payments:
(i) to indemnify the Indemnitee for any Expenses, judgments,
penalties, fines 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, except in respect of any excess beyond the
amount of payment under such insurance policy; or
(ii) to indemnify the Indemnitee for any Expenses, judgments,
penalties, fines and amounts paid in settlement pursuant to any Proceeding
for an accounting of profits made from the purchase or sale by Indemnitee
of securities of the Company pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934, the rules and regulations promulgated
thereunder and amendments thereto.
4. Advancement of Expenses. Notwithstanding any provision to the
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contrary herein, the Company shall advance all Expenses which, by reason of
Indemnitee's Corporate Status, were incurred in connection with any Proceeding,
within thirty days after the receipt by the Company of a statement or statements
from Indemnitee requesting such advance or advances, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred (which, in the case of legal bills,
shall include information regarding hours spent and billing rates) and shall
include or be preceded or accompanied by an undertaking, in substantially the
form attached hereto as Exhibit A, by or on behalf of Indemnitee to repay any
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Expenses as to which it shall ultimately be determined (either by adjudication
or pursuant to Sections 5 or 8, as applicable) that Indemnitee is not entitled
to be indemnified.
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5. Procedures for Determination of Entitlement.
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(a) Method of Determination. When, in connection with any Proceeding,
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an Expense, judgment, penalty, fine or amount paid in settlement has been
incurred by Indemnitee or on Indemnitee's behalf, and where a determination
would be required by Section 145(d) of the Delaware General Corporation Law or
any successor statute, Indemnitee's entitlement to indemnification pursuant to
Section 3 of this Agreement or to retain Expenses advanced pursuant to Section 4
of this Agreement shall be determined by Independent Counsel in a written
opinion to the then current Board of Directors of the Company, a copy of which
shall be delivered to Indemnitee.
(b) Selection, Payment, Discharge of Independent Counsel. The
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Independent Counsel shall be selected, paid and discharged in the following
manner.
(i) If a Change of Control has not occurred, the Independent
Counsel shall be selected by a majority vote of a quorum of Disinterested
Directors of the Board of Directors, and the Company shall give written
notice to Indemnitee advising Indemnitee of the identity of the Independent
Counsel so selected.
(ii) If a Change of Control has occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event clause (i) of
this Section 5(b) shall apply), and Indemnitee shall give written notice to
the Company advising it of the identity of the Independent Counsel so
selected.
(iii) Following the initial selection described in clauses (i)
and (ii) of this Section 5(b), Indemnitee or the Company, as the case may
be, may, within fourteen (14) calendar days after such written notice of
selection has been given, deliver to the other party a written objection to
such selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 1(j) of this Agreement, and the
objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so selected
shall act as Independent Counsel. If such written objection is made by the
Board of Directors or Indemnitee, the Independent Counsel so selected may
not serve as Independent Counsel unless and until a court has determined
that such objection is without merit or the Indemnitee and the Board of
Directors otherwise agree.
(iv) The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to this Agreement, and the Company shall
pay all reasonable fees and expenses incident to the procedures of this
Section 5(b) regardless of the manner in which such Independent Counsel was
selected or appointed.
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(v) The Company and Indemnitee shall use all reasonable efforts
to assist and cooperate with Independent Counsel, as requested by such
counsel, so that counsel may deliver its written opinion with respect to
Indemnitee's entitlement to indemnification within twenty (20) calendar
days of its selection. Such twenty (20) day period shall be stayed for such
period of time that the Indemnitee or the Board of Directors continues to
object to the selection of Independent Counsel pursuant to Section 5
(b)(iii) hereof.
(c) Failure to Select Independent Counsel. In the event that the Board
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of Directors fails or refuses to select the Independent Counsel pursuant to
Section 5(b)(i), within twenty (20) calendar days after receipt by the Company
of the request for indemnification, such failure or refusal shall be treated as
determination that Indemnitee is entitled to the indemnification sought;
provided, however, that if the Board of Directors is prevented from acting to
select Independent Counsel within such twenty (20) day period by court order or
other act or event beyond the reasonable control of the Board of Directors, then
the twenty (20) day period shall be stayed for such time that the Board of
Directors is so prevented from acting.
(d) Payment. Following any determination or deemed determination that
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Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within thirty (30) calendar days after such determination or on such later date
as may be required pursuant to any judgment or structured settlement of the
related Proceeding.
6. Proceedings Involving this Agreement. Notwithstanding any other
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provision of this Agreement to the contrary, the Company shall indemnify and
hold harmless Indemnitee against all Expenses in connection with any Proceeding
between the Company and Indemnitee involving the interpretation or enforcement
of the rights of Indemnitee under this Agreement, unless a court of competent
jurisdiction determines that each of the claims and/or defenses of Indemnitee in
any such Proceeding was frivolous or made in bad faith.
7. Notice of Proceedings and Assumption of Defense.
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(a) Notice to Company. Promptly after receipt by Indemnitee of notice
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of the commencement or the threat of commencement of any Proceeding with respect
to which Indemnitee believes that Indemnitee may be entitled to indemnification
or the advancement of Expenses under this Agreement, Indemnitee shall notify the
Company in writing of the commencement or the threat of commencement thereof;
provided, however, that Indemnitee's failure to provide any such notice shall
not relieve the Company of any of its obligations under this Agreement unless
the failure to provide such notice has a material adverse effect on the
Company's ability to meet such obligations.
(b) Notice to Insurers. Upon receipt of a notice as provided in
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Section 7(a) hereof, the Company shall promptly give notice to its D&O Insurance
carrier(s), if any, of the commencement or threat of commencement of the
Proceeding described in such notice provided to the Company under Section 7(a),
and shall thereafter take all steps reasonably necessary or desirable in order
to
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cause such D&O Insurance carrier(s) to pay to or on behalf of Indemnitee all
amounts payable under such D&O Insurance in connection with such Proceeding.
(c) Assumption of Defense. Within thirty (30) calendar days after the
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receipt by the Company of a notice pursuant to Section 7(a) hereof of the
commencement or threat of commencement of a Proceeding, the Company may elect by
written notice to Indemnitee to assume the defense of such Proceeding, with
counsel selected by the Company and in whom Indemnitee has reasonable confidence
after having interviewed such counsel. After the retention of such counsel by
the Company, and for so long as the Company continues to retain such counsel,
the Company shall not be liable to Indemnitee for any fees or disbursements of
counsel incurred by Indemnitee in connection with such Proceeding; provided,
however, that (i) Indemnitee shall have the continued right to employ counsel at
the expense of Indemnitee and (ii) the Company shall pay the reasonable fees and
disbursements of counsel retained by Indemnitee in the event that such counsel
retained by Indemnitee shall advise Indemnitee and the Company that one or more
non-frivolous legal defenses reasonably believed to be meritorious may be
available to Indemnitee which are different from, in conflict with, or
additional to those available to the Company (or any other person represented by
counsel selected by the Company to represent Indemnitee in connection with such
Proceeding) and may place the Company (or such person) and Indemnitee in
potentially adverse positions and the Company, after consultation with its
counsel, agrees in writing with such advice.
8. Remedies of Indemnitee.
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(a) Application. This Section 8 shall apply in the event of a Dispute.
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For purposes of this Section 8, "Dispute" shall mean any of the following
events:
(i) a determination is made pursuant to Section 5 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement and Indemnitee disagrees with such determination;
(ii) a determination is made by Independent Counsel pursuant to
Section 5(a) of this Agreement, or is deemed made pursuant to Section 5(c),
that Indemnitee is entitled to indemnification under this Agreement and the
Board of Directors of the Company fails or refuses to implement such
indemnification with such determination;
(iii) advancement of Expenses is not timely made pursuant to
Section 4 of this Agreement;
(iv) a determination of entitlement to be made pursuant to
Section 5(a) of this Agreement has not been made within twenty (20)
calendar days after selection of Independent Counsel;
(v) selection of Independent Counsel pursuant to Section 5(b)
hereof has not been made within twenty (20) calendar days after receipt by
the Company of the request for indemnification;
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(vi) payment of indemnification is not made pursuant to Section
3(d) of this Agreement within thirty (30) calendar days after receipt by
the Company of written notice from Indemnitee's counsel stating that
Indemnitee has been successful on the merits or otherwise in any Proceeding
as to one or more claims, issues or matters in such Proceeding; or
(vii) payment of indemnification is not made when due under
Section 5(d).
(b) Adjudication. In the event of a Dispute, Indemnitee (or the
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Company in the case of a Dispute arising under Section 8(a)(ii)) shall be
entitled to an adjudication in an appropriate court of the State of Delaware, or
in any other court of competent jurisdiction, of Indemnitee's entitlement to
such indemnification or advancement of Expenses. Alternatively, in the event of
a Dispute, Indemnitee (or the Company in the case of a Dispute arising under
Section 8(a)(ii)) may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association.
Neither party shall oppose the other party's right to seek any such adjudication
or arbitration.
(c) De Novo Review. In the event a Dispute arises under Section
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8(a)(i) or (ii), any judicial proceeding or arbitration commenced pursuant to
this Section 8 shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and the party seeking to overturn a prior adverse
determination shall not be prejudiced by reasons of such prior adverse
determination. In any such proceeding or arbitration, the Company shall have the
burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(d) Procedures Valid. Subject to Section 21 hereof, the Company shall
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be precluded from asserting in any judicial proceeding or arbitration commenced
pursuant to this Section 8 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any such
court or before any such arbitrator that the Company is contractually bound by
the provisions of this Agreement.
9. Non-Exclusivity; Other Provisions. The benefits and rights provided
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to Indemnitee under this Agreement shall not be deemed exclusive of any other
rights which Indemnitee may have under any law, the Certificate of Incorporation
or By-laws of the Company, other agreements or otherwise. During the period from
the date of this Agreement until the expiration of two (2) years from the date
on which Indemnitee ceases to be an Agent of the Company (unless a Proceeding is
then pending, in which case this obligation shall continue until the final
conclusion of such Proceeding), the Company agrees not to amend any provision of
the Company's Certificate of Incorporation or By-laws now or hereafter in effect
that authorizes the indemnification of Agents of the Company, or that limits or
eliminates the liability of any Agent of the Company with respect to any action
or inaction in such capacity, in a manner which materially and adversely affects
Indemnitee's rights thereunder, without the express written consent of
Indemnitee.
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10. Interpretation. The parties hereto intend that this Agreement be
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interpreted and enforced so as to provide indemnification and advancement of
Expenses to Indemnitee to the fullest extent which is now or hereafter permitted
by applicable law and, in the event that the validity, legality or
enforceability of any provision of this Agreement is in question, such provision
shall be interpreted in a manner such that the provision will be valid, legal
and enforceable to the greatest extent possible. For purposes of this Agreement,
the termination of any Proceeding by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contender, or
its equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that Indemnitee is not entitled to indemnification or expense advance
or that indemnification or Expense advance is not permitted by applicable law,
unless the issue of such standard of conduct, belief or determination of
entitlement was specifically adjudicated, or admitted or acknowledged by
Indemnitee, in connection with the terminated Proceeding.
11. Change of Law. If Section 145 of the Delaware General Corporation
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Law, or any successor statute, is hereafter amended (the "Amended Statute") in a
manner that expands the authority of the Company to indemnify or advance
Expenses to Indemnitee, this Agreement shall thereupon be deemed modified to
provide for indemnification of and advancement of Expenses to Indemnitee to the
fullest extent not prohibited by the Amended Statute.
12. Continuation of Indemnification. Except as provided in Section 21
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hereof, all obligations of the Company hereunder shall continue during the
period Indemnitee is an Agent of the Company and shall continue thereafter so
long as Indemnitee shall be subject to any possible Proceeding by reason of the
fact that Indemnitee was serving or had served as an Agent of the Company.
13. Modification and Waiver. Except as expressly provided herein, no
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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 nor shall such waiver constitute a continuing waiver.
14. Severability. If any provision of this Agreement is held by a court
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of competent jurisdiction to be invalid or unenforceable for any reason
whatsoever, the validity and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby, and to the
fullest extent possible the other provisions of this Agreement shall be
construed so as to give effect to the intent manifested by the provision held
invalid or unenforceable and to give effect to Section 10 hereof.
15. Counterparts. This Agreement may be executed in one or more
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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.
16. Headings. The headings in this Agreement are inserted for
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convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction thereof.
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17. Governing Law. This Agreement shall be governed by and construed
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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. Burden of Proof. In the event of any Dispute under this Agreement
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involving the obligations of the Company to indemnify or advance Expenses to
Indemnitee, the Company shall have the burden of proving that the Company is not
so obligated to indemnify or advance Expenses to Indemnitee.
19. Notices. Any written notice required or permitted under this
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Agreement shall be deemed to have been duly given on the date of service, if
served personally on the party to whom notice is to be given, or on the fifth
day after mailing if mailed by certified mail, postage prepaid and addressed to
the addressee at the address stated opposite its name below, or at the most
recent address specified by written notice by one of the parties to the other.
Company Concurrent Computer Corporation
0000 Xxxx Xxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Indemnitee Xxxxxx X. Xxxxx
00000 X.X. 00xx Xxxxx
Xxxxx Xxxxxxx, XX 00000
20. Successors and Assigns. The terms of this Agreement shall bind,
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and shall inure to the benefit of, the successors and assigns of the Company and
the heirs, successors, administrators and assigns of Indemnitee, respectively,
provided that Indemnitee's rights hereunder may not be assigned without the
Company's written consent.
21. Stockholder Approval. In the event this Agreement is submitted to
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the stockholders of the Company for ratification and the stockholders fail to
ratify this Agreement, this Agreement shall terminate as of the date of such
stockholder vote and have no further force and effect thereafter; provided,
however, that to the extent permitted by law all obligations of the Company
hereunder shall continue with respect to, and so long as Indemnitee shall be
subject to any Proceeding relating to any act or omission of the Indemnitee
which occurred or is alleged to have occurred on or after the date this
Agreement is signed by the Company and prior to the date of such stockholder
vote.
22. Subrogation. In the event of payment under this Agreement, the
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Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
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IN WITNESS WHEREOF, the Company and Indemnitee have executed this Agreement
as of the date first set forth above.
CONCURRENT COMPUTER CORPORATION
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Vice President, General Counsel and
Secretary
INDEMNITEE
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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EXHIBIT A
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Substance of Undertaking
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The undersigned hereby undertakes and agrees to repay to the Company any
Expenses, advanced by the Company, as to which it shall ultimately be determined
(either by adjudication or pursuant to Sections 5 or 8, as applicable, of the
Indemnification Agreement between the undersigned and Concurrent Computer
Corporation (the "Agreement")), that the undersigned is not entitled to be
indemnified. The defined terms used in the preceding sentence shall have the
meaningss set forth in the Agreement.
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