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EXHIBIT 10.9
INDEMNIFICATION AGREEMENT
This agreement, made and entered into this ____ day of _______, 1996
("Agreement"), by and between Bitstream Inc., a Delaware corporation (the
"Corporation"), and ______________ ("Indemnitee"):
RECITALS
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WHEREAS, highly competent persons are becoming more reluctant to serve as
directors, officers or in other capacities 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 current difficulty of obtaining adequate insurance and the
uncertainties relating to indemnification have increased the difficulty of
attracting and retaining such persons; and
WHEREAS, the Board of Directors of the Corporation has determined that the
inability to attract and retain such persons is detrimental to the best
interests of the Corporation's stockholders and that the Corporation 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 Corporation
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Corporation free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Corporation on the condition that
Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Corporation and Indemnitee do hereby covenant and agree as
follows:
ARTICLE I
Definitions
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For purposes of this Agreement, the following terms shall have the meaning
given here:
1.01 "Board" means the Board of Directors of the Corporation.
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1.02 "Change in Control" means a change in control of the Corporation
occurring after the Effective Date (as defined herein) of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A (or in response to any similar item on any similar schedule or form)
promulgated under the Securities Exchange Act of 1934 (the "Act"), whether or
not the Corporation is then subject to such reporting requirement; provided,
however, that, without limitation, such a Change in Control shall be deemed to
have occurred if after the Effective Date (i) any "person" (as such term is used
in Sections 13(d) and 14(d) of the Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Act), directly or indirectly, of securities of
the Corporation representing 20% or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of at
least two-thirds of the members of the Board in office immediately prior to such
person attaining such percentage interest; (ii) the Corporation is a party to a
merger, consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office immediately
prior to such transaction or event constitute less than a majority of the Board
thereafter; or (iii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board (including for this
purpose any new director whose election or nomination for election by the Corpo-
ration's stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board.
1.03 "Corporate Status" describes the status of a person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
enterprise.
1.04 "Disinterested Director" means a director of the Corporation who is
not a party to, as of any time of determination thereof, the Proceeding (as
defined herein) in respect of which indemnification is sought by the Indemnitee.
1.05 "Effective Date" means the date a registration statement filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, registering securities issued by the Corporation, is effective.
1.06 "Enterprise" shall mean the Corporation and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Corporation as a
director, officer, employee or agent.
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1.07 "Expenses" shall include but not be limited to all reasonable
attorneys' fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the types actually and reasonably incurred by him in connection
with prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding.
1.08 "Good Faith" shall mean Indemnitee having acted in good faith and in a
manner Indemnitee reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal Proceeding,
having had no reasonable cause to believe Indemnitee's conduct was unlawful.
1.09 "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporate law and neither presently is, nor in
the past five years has been, retained to represent: (i) the Corporation 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
Corporation or Indemnitee in an action to determine Indemnitee's rights under
this Agreement.
1.10 "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other threatened, pending or completed proceeding
whether civil, criminal, administrative or investigative, other than one
initiated by Indemnitee. For purposes of the foregoing sentence, a "Proceeding"
shall not be deemed to have been initiated by Indemnitee where Indemnitee seeks
pursuant to Article VIII of this Agreement to enforce Indemnitee's rights under
this Agreement or his rights to indemnification under the certificate of
incorporation or bylaws of the Corporation or Delaware law, or were Indemnitee
seeks to enforce any rights he may have under any directors' and officers'
liability insurance policy maintained by the Corporation.
ARTICLE II
Term of Agreement
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This Agreement shall continue until and terminate upon the later of: (i) 10
years after the date that Indemnitee shall have ceased to serve as a director,
officer, employee and/or agent of the Enterprise; or (ii) the final termination
of all
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Proceedings commenced prior to the date referred to in (i) above in respect of
which Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any Proceeding commenced by Indemnitee pursuant to Article VIII
of this Agreement relating thereto.
ARTICLE III
Services by Indemnitee, Notice of Proceedings
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3.01 SERVICES. Indemnitee agrees to serve as a director and/or officer of
the Corporation. Indemnitee may at any time and for any reason resign from such
position.
3.02 NOTICE OF PROCEEDING. Indemnitee agrees promptly to notify the
Corporation in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder.
ARTICLE IV
Indemnification
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4.01 IN GENERAL. In connection with any Proceeding, the Corporation shall
indemnify, and advance Expenses to, Indemnitee as provided in this Agreement
and to the fullest extent permitted by applicable law in effect on the date
hereof and to such greater extent as applicable law may thereafter from time to
time permit.
4.02 PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4.02 if, by reason of Indemnitee's Corporate Status,
Indemnitee was or is, or is threatened to be made, a party to any Proceeding,
other than a Proceeding by or in the right of the Corporation. Indemnitee shall
be indemnified against Expenses, judgments, fines and amounts paid in settlement
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.
4.03 PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. Indemnitee shall be
entitled to the rights of indemnification provided in this Section 4.03 if, by
reason of Indemnitee's Corporate Status, Indemnitee was or is, or is threatened
to be made, a party to any Proceeding brought by or in the right of the
Corporation to procure a judgment in its favor. Indemnitee shall be indemnified
against Expenses, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by Indemni-
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tee or on Indemnitee's behalf in connection with such Proceeding or any claim,
issue or matter therein, if Indemnitee acted in Good Faith. 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 Corporation, unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such Proceeding shall
have been brought that, despite the adjudication of liability but in view of all
the circumstances of the case, the Indemnitee is fairly and reasonably entitled
to indemnity for such portion of the settled amount, Expenses, judgments, and
fines as such court deems proper.
4.04 INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other
provision 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 actually and reasonably incurred by Indemnitee
or on Indemnitee's behalf in connection therewith.
ARTICLE V
Advancement of Expenses
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Notwithstanding any provision to the contrary in Article VI, the
Corporation shall advance all reasonable Expenses which, by reason of
Indemnitee's Corporate Status, were charged to or incurred by or on behalf of
Indemnitee in connection with any Proceeding, within twenty days after the
receipt by the Corporation 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 by Indemnitee and shall include or be preceded or accompanied
by an undertaking by or on behalf of Indemnitee to repay any Expenses if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
against such Expenses.
ARTICLE VI
Procedures for Determination of
Entitlement to Indemnification
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6.01 INITIAL REQUEST. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Corporation a written request, including therein
or therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the Corporation
shall promptly advise the Board in writing that Indemnitee has requested
indemnification.
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6.02 METHOD OF DETERMINATION. A determination (if required by applicable
law) with respect to Indemnitee's entitlement to indemnification shall be made
by the Board by a majority vote of the Disinterested Directors (even though less
than a quorum). In the event that there are no Disinterested Directors, or if a
majority of the Disinterested Directors so directs, the determination shall be
made by Independent Counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee, or by the stockholders of the Corporation, as
determined by such quorum of Disinterested Directors or by a majority of the
Board, as the case may be. If a Change in Control has occurred and Indemnitee so
requests, the determination shall be made by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to Indemnitee.
6.03 SELECTION, PAYMENT, DISCHARGE OF INDEPENDENT COUNSEL. In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6.02 of this Agreement, the Independent Counsel
shall be selected, paid, and discharged in the following manner:
(a) The Independent Counsel shall be selected by the Board,
and the Corporation shall give written notice to
Indemnitee advising Indemnitee of the identity of the
Independent Counsel so selected.
(b) Following the initial selection described in clause (a)
of this Section 6.03, Indemnitee may, within seven days
after such written notice of selection has been given,
deliver to the Corporation 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 1.09 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, 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
Indemnitee has delivered a written withdrawal of such
objection to the Corporation.
(c) Either the Corporation or Indemnitee may petition the
Court of Chancery of the State of Delaware or other
court of competent ju-
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risdiction if the parties have been unable to agree on
the selection of Independent Counsel (if applicable)
within 20 days after submission by Indemnitee of a
written request for indemnification pursuant to Section
6.01 of this Agreement. Such petition may request a
determination whether an objection to the party's
selection is without merit and/or seek the appointment
as Independent Counsel of a person selected by the
Court or by such other person as the Court shall
designate. A person so appointed shall act as
Independent Counsel under Section 6.02 of this
Agreement.
(d) The Corporation 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 Corporation shall
pay all reasonable fees and expenses incident to the
procedures of this Section 6.03, regardless of the
manner in which such Independent Counsel was selected
or appointed.
6.04 Cooperation. Indemnitee shall cooperate with the person, persons or
entity making the determination with respect to Indemnitee's entitlement to
indemnification under this Agreement, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Corporation
(irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
6.05 PAYMENT. If it is determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten (10) days after
such determination.
ARTICLE VII
Presumptions and Effect of Certain Proceedings
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7.01 BURDEN OF PROOF. In making a determination with respect to entitlement
to indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accor-
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dance with Section 6.01 of this Agreement, and the Corporation shall have the
burden of proof to overcome that presumption in connection with the making by
any person, persons or entity of any determination contrary to that presumption.
7.02 EFFECT OF OTHER PROCEEDINGS. The termination of any Proceeding or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely
affect the right of Indemnitee to indemnification or create a presumption that
Indemnitee did not act in Good Faith.
7.03 RELIANCE AS SAFE HARBOR. For purposes of any determination of Good
Faith, Indemnitee shall be deemed to have acted in Good Faith if Indemnitee's
action is based on the records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee by the officers
of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports made to
the Enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Enterprise. The provisions
of this Section 7.03 shall not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
7.04 ACTIONS OF OTHERS. The knowledge and/or actions, or failure to act, of
any director, officer, agent or employee of the Enterprise shall not be imputed
to Indemnitee for purposes of determining the right to indemnification under
this Agreement.
ARTICLE VIII
Remedies of Indemnitee
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8.01 APPLICATION. This Article VIII shall apply in the event of a Dispute.
For purposes of this Article, "Dispute", shall mean any of the following events:
(a) a determination is made pursuant to Article VI of this
Agreement that Indemnitee is not entitled to
indemnification under this Agreement;
(b) advancement of Expenses is not timely made pursuant to
Article V of this Agreement;
(c) the determination of entitlement to be made pursuant to
Section 6.02 of this Agreement had not been made within
60 days after re-
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ceipt by the Corporation of the request for
indemnification;
(d) payment of indemnification is not made pursuant to
Section 4.05 of this Agreement within ten (10) days
after receipt by the Corporation of written request
therefor; or
(e) payment of indemnification is not made within ten (10)
days after a determination has been made that
Indemnitee is entitled to indemnification pursuant to
Article VI of this Agreement.
8.02 ADJUDICATION. In the event of a Dispute, Indemnitee shall be
entitled to an adjudication in the Court of Chancery of the State of Delaware or
in any other court of competent jurisdiction, of Indemnitee's entitlement to
such indemnification and advancement of Expenses. Alternatively, Indemnitee, at
Indemnitee's option, may seek an award in arbitration to be conducted by a
single arbitrator sitting in Boston, Massachusetts, pursuant to the rules of the
American Arbitration Association. The Corporation shall not oppose Indemnitee's
right to seek any such adjudication or award in arbitration.
8.03 DE NOVO REVIEW. In the event that a determination shall have been made
pursuant to Article VI of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Article VIII shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any such proceeding or arbitration, the
Corporation shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
8.04 CORPORATION BOUND. If a determination shall have been made pursuant to
Article VI of this Agreement that Indemnitee is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding or
arbitration absent a prohibition of such indemnification under applicable law.
8.05 PROCEDURES VALID. The Corporation shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this Article VIII
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 Corporation is bound by all the provisions of this
Agreement.
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8.06. EXPENSES OF ADJUDICATION. In the event that Indemnitee, pursuant to
this Article VIII, seeks a judicial adjudication of or an award in arbitration
to enforce Indemnitee's rights under, or to recover damages for breach of, this
Agreement, Indemnitee shall be entitled to recover from the Corporation and
shall be indemnified by the Corporation against, any and all expenses (of the
types described in the definition of Expenses in Section 1.07 of this Agreement)
actually and reasonably incurred by Indemnitee in such adjudication or
arbitration, but only if Indemnitee prevails therein. If it shall be determined
in such adjudication or arbitration that Indemnitee is entitled to receive part
but not all of the indemnification of advancement or expenses sought, the
expenses incurred by Indemnitee in connection with such adjudication or
arbitration shall be appropriately prorated.
ARTICLE IX
Non-Exclusivity, Insurance, Subrogation
---------------------------------------
9.01 NON-EXCLUSIVITY. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Certificate of Incorporation, the By-Laws, any
agreement, a vote of stockholders or a resolution of Disinterested Directors, or
otherwise. No amendment, alteration, rescission or replacement of this Agreement
or any provision hereof shall be effective as to Indemnitee with respect to any
action taken or omitted by such Indemnitee in Indemnitee's Corporate Status
prior to such amendment, alteration, rescission or replacement.
9.02 INSURANCE. The Corporation may maintain an insurance policy or
policies against liability arising out of this Agreement or otherwise.
9.03 SUBROGATION. In the event of any payment under this Agreement, the
Corporation 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 take
all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to enforce
such rights.
9.04 NO DUPLICATIVE PAYMENT. The Corporation shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
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ARTICLE X
General Provisions
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10.01 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Corporation and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's heirs, executors and administrators.
10.02 SEVERABILITY. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the
remaining provisions of this Agreement (including,
without limitation, each portion of any Section of this
Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion
of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or
unenforceable.
10.03 NO ADEQUATE REMEDY. The parties declare that it is impossible to
measure in money the damages which will accrue to either party by reason of a
failure to perform any of the obligations under this Agreement. Therefore, if
either party shall institute any action or proceeding to enforce the provisions
hereof, such party against whom such action or proceeding is brought hereby
waives the claim or defense that such party has an adequate remedy at law, and
such party shall not urge in any such action or proceeding the claim or defense
that the other party has an adequate remedy at law.
10.04 IDENTICAL COUNTERPARTS. 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. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
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10.05 HEADINGS. The headings of the sections of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
10.06 MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
10.07 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
If to Indemnitee, to:
As shown with Indemnitee's signature below.
If to the Corporation, to:
Bitstream Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
with a copy to:
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
10.08 GOVERNING LAW. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
10.09 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties hereto in reference to all the matters herein
agreed upon. This Agreement replaces in full all prior indemnification
agreements or under-
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standings of the parties hereto, and any and all such prior agreements or
understandings are hereby rescinded by mutual agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BITSTREAM INC.
By
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Its
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INDEMNITEE
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Print name:
Address:
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