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EXHIBIT 10.8
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this ______________
day of ___________, 1998 between ISS Group, Inc., a Delaware corporation
("Corporation"), and __________________ ("Director" or "Officer").
RECITALS:
A. Director, a member of the Board of Directors of
Corporation, performs a valuable service in such capacity for Corporation
[Officer is the Corporation's ____________________ and in such capacity
performs a valuable serive for Corporation]; and
B. The stockholders of Corporation have adopted By-laws
(the "By-laws") providing for the indemnification of the officers, directors,
agents and employees of Corporation to the maximum extent authorized by Section
145 of the Delaware Corporations Code, as amended ("Code"); and
C. The By-laws and the Code, by their non-exclusive
nature, permit contracts between Corporation and the members of its Board of
Directors and officers with respect to indemnification of such directors; and
D. In accordance with the authorization as provided by
the Code, Corporation has purchased and presently maintains a policy or
policies of Directors and Officers Liability Insurance ("D & 0 Insurance"),
covering certain liabilities which may be incurred by its directors and
officers in the performance of their duties as directors or officers of
Corporation; and
E. As a result of developments affecting the terms,
scope and availability of D & 0 Insurance there exists general uncertainty as
to the extent of protection afforded members of the Board of Directors and
officers of the Corporation by such D & O Insurance and by statutory and by-law
indemnification provisions; and
F. In order to induce Director to continue to serve as a
member of the Board of Directors of Corporation [officer to continue to serve
the Corporation], Corporation has determined and agreed to enter into this
contract with Director/Officer;
NOW, THEREFORE, in consideration of Director's/Officer's
continued service as a director [officer's continued service] after the date
hereof, the parties hereto agree as follows:
1. INDEMNITY OF DIRECTOR. Corporation hereby agrees to
hold harmless and indemnify Director/Officer to the fullest extent authorized
or permitted by the provisions of the Code, as may be amended from time to
time.
2. ADDITIONAL INDEMNITY. Subject only to the exclusions
set forth in Section 3 hereof, Corporation hereby further agrees to hold
harmless and indemnify Director/Officer:
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a. against any and all expenses (including
attorneys' fees), witness fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Director/Officer in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of Corporation) to which Director/Officer is, was or at any time becomes
a party, or is threatened to be made a party, by reason of the fact that
Director/Officer is, was or at any time becomes a director, officer, employee
or agent of Corporation, or is or was serving or at any time serves at the
request of Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise; and
b. otherwise to the fullest extent as may be
provided to Director/Officer by Corporation under the non-exclusivity
provisions of Article XI of the By-laws of Corporation and the Code.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity
pursuant to Section 2 hereof shall be paid by Corporation:
a. except to the extent the aggregate of losses
to be indemnified thereunder exceeds the sum of such losses for which the
Director/Officer is indemnified pursuant to Section I hereof or pursuant to any
D & 0 Insurance purchased and maintained by Corporation;
b. in respect to remuneration paid to
Director/Officer if it shall be determined by a final judgment or other final
adjudication that such remuneration was in violation of law;
c. on account of any suit in which judgment is
rendered against Director/Officer for an accounting of profits made from the
purchase or sale by Director/Officer of securities of Corporation pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law,
d. on account of Director's/Officer's conduct
which is finally adjudged to have been knowingly fraudulent or deliberately
dishonest, or to constitute willful misconduct;
e. on account of Director's/Officer's conduct
which is the subject of an action, suit or proceeding described in Section
7(c)(ii) hereof;
f. on account of any action, claim or proceeding
(other than a proceeding referred to in Section 8(b) hereof) initiated by the
Director/Officer unless such action, claim or proceeding was authorized in the
specific case by action of the Board of Directors;
g. if a final decision by a Court having
jurisdiction in the matter shall determine that such indemnification is not
lawful (and, in this respect, both Corporation and Director/Officer have been
advised that the Securities and Exchange Commission believes that
indemnification for liabilities arising under the federal securities laws is
against public policy and
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is, therefore, unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication).
4. CONTRIBUTION. If the indemnification provided in
Sections 1 and 2 hereof is unavailable by reason of a Court decision
described in Section 3(g) hereof based on grounds other than any of those set
forth in paragraphs (b) through (f) of Section 3 hereof, then in respect of any
threatened, pending or completed action, suit or proceeding in which
Corporation is jointly liable with Director/Officer (or would be if joined in
such action, suit or proceeding), Corporation shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by
Director/Officer in such proportion as is appropriate to reflect (i) the
relative benefits received by Corporation on the one hand and Director/Officer
on the other hand from the transaction from which such action, suit or
proceeding arose, and (ii) the relative fault of Corporation on the one hand
and of Director/Officer on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of Corporation
on the one hand and of Director/Officer on the other shall be determined by
reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the circumstances
resulting in such expenses, judgments, fines or settlement amounts.
Corporation agrees that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation or any other
method of allocation which does not take account of the foregoing equitable
considerations.
5. CONTINUATION OF OBLIGATIONS. All agreements and
obligations of Corporation contained herein shall continue during the period
Director/Officer is a director, officer, employee or agent of Corporation (or
is or was serving at the request of Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise) and shall continue thereafter so
long as Director/Officer shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that Director/Officer was a director of
Corporation or serving in any other capacity referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Not later than
thirty (30) days after receipt by Director/Officer of notice of the
commencement of any action, suit or proceeding, Director/Officer will, if a
claim in respect thereof is to be made against Corporation under this
Agreement, notify Corporation of the commencement thereof; but the omission so
to notify Corporation will not relieve it from any liability which it may have
to Director/Officer otherwise than under this Agreement. With respect to any
such action, suit or proceeding as to which Director/Officer notifies
Corporation of the commencement thereof;
a. Corporation will be entitled to participate
therein at its own expense;
b. except as otherwise provided below, to the
extent that it may wish, Corporation jointly with any other indemnifying party
similarly notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Director/Officer. After notice from
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Corporation to Director/Officer of its election so as to assume the defense
thereof, Corporation will not be liable to Director/Officer under this
Agreement for any legal or other expenses subsequently incurred by
Director/Officer in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Director/Officer shall
have the right to employ its counsel in such action, suit or proceeding but the
fees and expenses of such counsel incurred after notice from Corporation of its
assumption of the defense thereof shall be at the expense of Director/Officer
unless (i) the employment of counsel by Director/Officer has been authorized by
Corporation, (ii) Director/Officer shall have reasonably concluded that there
may be a conflict of interest between Corporation and Director/Officer in the
conduct of the defense of such action or (iii) Corporation shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of Director's/Officer's separate counsel shall be
at the expense of Corporation. Corporation shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of
Corporation or as to which Director/Officer shall have made the conclusion
provided for in (ii) above; and
c. Corporation shall not be liable to indemnify
Director/Officer under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. Corporation shall be
permitted to settle any action except that it shall not settle any action or
claim in any manner which would impose any penalty or limitation on
Director/Officer without Director's/Officer's written consent. Neither
Corporation nor Director/Officer will unreasonably withhold its consent to any
proposed settlement.
7. ADVANCEMENT AND REPAYMENT OF EXPENSES.
a. In the event that Director/Officer employs
his/her own counsel pursuant to Section 6(b)(i) through (iii) above,
Corporation shall advance to Director/Officer, prior to any final disposition
of any threatened or pending action, suit or proceeding, whether civil,
criminal, administrative or investigative, any and all reasonable expenses
(including legal fees and expenses) incurred in investigating or defending any
such action, suit or proceeding within ten (10) days after receiving copies of
invoices presented to Director/Officer for such expenses.
b. Director/Officer agrees that Director/Officer
will reimburse Corporation for all reasonable expenses paid by Corporation in
defending any civil or criminal action, suit or proceeding against
Director/Officer in the event and only to the extent it shall be ultimately
determined by a final judicial decision (from which there is no right of
appeal) that Director/Officer is not entitled, under the provisions of the
Code, the By-laws, this Agreement or otherwise, to be indemnified by
Corporation for such expenses.
c. Notwithstanding the foregoing, Corporation
shall not be required to advance such expenses to Director/Officer if
Director/Officer (i) commences any action, suit or proceeding as a plaintiff
unless such advance is specifically approved by a majority of the Board of
Directors or (ii) is a party to an action, suit or proceeding brought by
Corporation and approved by a majority of the Board which alleges willful
misappropriation of corporate assets by Director/Officer, disclosure of
confidential information in violation of Director's/Officer's
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fiduciary or contractual obligations to Corporation, or any other willful and
deliberate breach in bad faith of Director's/Officer's duty to Corporation or
its shareholders.
8. ENFORCEMENT.
a. Corporation expressly confirms and agrees
that it has entered into this Agreement and assumed the obligations imposed on
Corporation hereby in order to induce Director/Officer to continue as a
director of Corporation, and acknowledges that Director/Officer is relying upon
this Agreement in continuing in such capacity.
b. In the event Director/Officer is required to
bring any action to enforce rights or to collect moneys due under this
Agreement and is successful in such action, the Corporation shall reimburse
Director/Officer for all Director's/Officer's reasonable fees and expenses in
bringing and pursuing such action.
9. SUBROGATION. In the event of payment under this
agreement, Corporation shall be subrogated to the extent of such payment to all
of the rights of recovery of Director/Officer, who shall execute all documents
required and shall do all acts that may be necessary to secure such rights and
to enable Corporation effectively to bring suit to enforce such rights.
10. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on
Director/Officer by this Agreement shall not be exclusive of any other right
which Director/Officer may have or hereafter acquire under any statute,
provision of Corporation's Certificate of Incorporation or By-laws, agreement,
vote of stockholders or directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office.
11. SURVIVAL OF RIGHTS. The rights conferred on
Director/Officer by this Agreement shall continue after Director/Officer has
ceased to be a director, officer, employee or other agent of Corporation and
shall inure to the benefit of Director's/Officer'sheirs, executors and
administrators.
12. SEPARABILITY. Each of the provisions of this
Agreement is a separate and distinct agreement and independent of the others,
so that if any or all of the provisions hereof shall be held to be invalid or
unenforceable for any reason, such invalidity or unenforceability shall not
affect the validity or enforceability of the other provisions hereof or the
obligation of the Corporation to indemnify the Director/Officer to the full
extent provided by the By-laws or the Code.
13. GOVERNING LAW. This Agreement shall be interpreted
and enforced in accordance with the laws of the State of Delaware.
14. BINDING EFFECT. This Agreement shall be binding upon
Director/Officer and upon Corporation, its successors and assigns, and shall
inure to the benefit of
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Director/Officer, his/her heirs, personal representatives and assigns and to
the benefit of Corporation, its successors and assigns.
15. AMENDMENT AND TERMINATION. No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless in writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
ISS GROUP, INC.
a Delaware corporation
By:
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Print Name:
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Title:
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Director/Officer
