EXHIBIT 10.23
INDEMNITY AGREEMENT
This AGREEMENT is made as of _________, 1999, by and between
Interactive Intelligence, Inc., an Indiana corporation (the "Corporation"), and
___________________ (the "Indemnitee"), a director and/or executive officer of
the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors and/or executive officers of the Corporation the most capable persons
available and persons who have significant experience in business, corporate and
financial matters; and
WHEREAS, the Corporation has identified the Indemnitee as a person
possessing the background and abilities desired by the Corporation and desires
the Indemnitee to continue to serve as a director and/or an executive officer;
and
WHEREAS, the substantial increase in corporate litigation may, from
time to time, subject directors and/or executive officers to burdensome
litigation, the risks of which frequently far outweigh the advantages of serving
in such capacity; and
WHEREAS, the Corporation and the Indemnitee recognize that serving as
a director and/or executive officer of a corporation at times calls for
subjective evaluations and judgments upon which reasonable men may differ and
that, in that context, it is anticipated and expected that directors and/or
executive officers of corporations will and do from time to time commit actual
or alleged errors or omissions in the good faith exercise of their corporate
duties and responsibilities; and
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its directors and/or executive officers to the fullest
extent not prohibited by law; and
WHEREAS, the Restated Articles of Incorporation, as amended (the
"Articles"), of the Corporation require indemnification of the directors and/or
executive officers of the Corporation pursuant to the Indiana Business
Corporation Law (the "Act") and the Act expressly provides that the
indemnification provisions set forth therein are not exclusive, and thereby
contemplates that contracts may be entered into between the Corporation and
directors and/or executive officers of the Corporation with respect to
indemnification; and
WHEREAS, the Corporation and the Indemnitee desire to articulate
clearly in contractual form their respective rights and obligations with regard
to the Indemnitee's service on behalf of the Corporation and with regard to
claims for loss, liability, expense or damage which, directly or indirectly, may
arise out of or relate to such service.
NOW THEREFORE, the Corporation and the Indemnitee agree as follows:
1. AGREEMENT TO SERVE. The Indemnitee shall serve as a director
and/or executive officer of the Corporation for so long as the Indemnitee is
duly elected or appointed or until the Indemnitee tenders a resignation in
writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" includes, without limitation, any
threatened, pending or completed action, suit or proceeding, whether
brought in the right of the Corporation or otherwise and whether of a
civil, criminal, administrative, legislative or investigative nature,
formal or informal, internal or external, in which the Indemnitee may be or
may have been involved as a party, witness or otherwise, by reason of the
fact that the Indemnitee is or was a director and/or executive officer of
the Corporation or any of its subsidiaries, 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 or other enterprise,
whether or not serving in such capacity at the time any liability or
expense is incurred for which exculpation, indemnification or reimbursement
can be provided under this Agreement.
(b) The term "Expenses" includes, without limitation thereto,
expenses of investigations, "Proceedings" or appeals, attorney, accountant
and other professional fees and disbursements, any other expenses or
disbursements incurred in connection with any Proceeding, and any expenses
of establishing a right to indemnification under Section 11 of this
Agreement, but shall not include amounts paid in settlement by the
Indemnitee or the amount of judgments or fines against the Indemnitee.
(c) References to "other enterprise" include, without limitation,
employee benefit plans; references to "fines" include, without limitation,
any excise tax assessed with respect to any employee benefit plan;
references to "serving at the request of the Corporation" include, without
limitation, any service as a director, officer, employee or agent which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants, or its beneficiaries; and a person who acted in good faith
and in a manner reasonably believed to be in the interest of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation."
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Corporation shall
indemnify the Indemnitee in accordance with the provisions of this Section 3, if
the Indemnitee is made a party to any Proceeding (other than a Proceeding by or
in the right of the Corporation to procure a judgment in its favor), against all
Expenses, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by the Indemnitee in connection with such Proceeding if the
conduct of the Indemnitee was in good faith and the Indemnitee reasonably
believed that the Indemnitee's conduct was in the best interests of the
Corporation, or at least not opposed to its best interests, and, in the case of
a criminal proceeding, the Indemnitee, in addition, had no reasonable cause to
believe that the Indemnitee's conduct was unlawful.
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However, the Indemnitee shall not be entitled to indemnification under this
Section 3 in connection with any Proceeding charging improper personal
benefit to the Indemnitee in which the Indemnitee was adjudged liable on the
basis that personal benefit was improperly received by the Indemnitee unless
and only to the extent that the court conducting such Proceeding or any other
court of competent jurisdiction determines upon application that despite the
adjudication of liability, the Indemnitee is fairly and reasonably entitled
to indemnification in view of all the relevant circumstances.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION.
The Corporation shall indemnify the Indemnitee in accordance with the provisions
of this Section 4, if the Indemnitee is made a party to any Proceeding by or in
the right of the Corporation to procure a judgment in its favor, against all
Expenses actually and reasonably incurred by the Indemnitee in connection with
such Proceeding if the conduct of the Indemnitee was in good faith and the
Indemnitee reasonably believed that the Indemnitee's conduct was in the best
interests of the Corporation, or at least not opposed to its best interests.
However, the Indemnitee shall not be entitled to indemnification under this
Section 4 in connection with any Proceeding in which the Indemnitee has been
adjudged liable to the Corporation unless and only to the extent that the court
conducting such Proceeding or any other court of competent jurisdiction
determines upon application that, despite the adjudication of liability, the
Indemnitee is fairly and reasonably entitled to indemnification in view of all
the relevant circumstances.
5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
any other provisions of this Agreement, to the extent that the Indemnitee has
been successful, on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein, including the dismissal of an
action without prejudice, the Corporation shall indemnify the Indemnitee against
all Expenses incurred in connection therewith.
6. ADDITIONAL INDEMNIFICATION.
(a) Notwithstanding any limitation in Sections 3, 4 or 5, the
Corporation shall indemnify the Indemnitee to the fullest extent not
prohibited by law with respect to any Proceeding (including a Proceeding by
or in the right of the Corporation to procure a judgment in its favor)
against all Expenses, judgments, fines and amounts paid in settlement,
actually and reasonably incurred by the Indemnitee in connection with such
Proceeding.
(b) For purposes of this Agreement, the meaning of the phrase "to the
fullest extent not prohibited by law" shall include, but not be limited to:
(i) to the fullest extent authorized or not prohibited by any
changes in the law, including but not limited to any amendments to or
replacements of the Act adopted after the date of this Agreement that
increase the extent to which a corporation may indemnify its
directors; and
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(ii) to the fullest extent authorized by the provision of the Act
that authorizes or contemplates additional indemnification by
agreement, or the corresponding provision of any amendment to or
replacement of the Act.
7. EXCLUSIONS. Notwithstanding any provision in this Agreement, the
Corporation shall not be obligated under this Agreement to make any
indemnification:
(a) for which payment is made to or on behalf of the Indemnitee under
any insurance policy, except with respect to any excess amount to which the
Indemnitee is entitled under this Agreement beyond the amount of payment
under such insurance policy;
(b) for any liability for profits made from the purchase and sale by
the Indemnitee of securities of the Corporation, which liability arises
under Section 16(b) of the Securities Exchange Act of 1934, as amended, or
any similar provision of any state statutory or common law;
(c) if a court having jurisdiction in the matter shall finally
determine that such indemnification is not lawful under any applicable
statute or public policy (and, in this respect, both the Corporation and
the Indemnitee have been advised that in the opinion of the Securities and
Exchange Commission indemnification for liabilities arising under the
Securities Act of 1933 is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable and that claims for
such indemnification should be submitted to appropriate courts for
adjudication unless, in the opinion of counsel, the matter has been settled
by controlling precedent); or
(d) in connection with any Proceeding (or part of any Proceeding)
initiated by the Indemnitee, or any Proceeding by the Indemnitee against
the Corporation or its directors, officers, employees or other persons
entitled to be indemnified by the Corporation, unless (i) the Corporation
is expressly required by law to make the indemnification, (ii) the
Proceeding was authorized by the Board of Directors of the Corporation, or
(iii) the Indemnitee initiated the Proceeding pursuant to Section 11 of
this Agreement and the Indemnitee is successful in whole or in part in the
Proceeding.
8. ADVANCES OF EXPENSES. The Corporation shall pay the Expenses
incurred by the Indemnitee in any Proceeding in advance of the final disposition
of the Proceeding at the written request of the Indemnitee, if the Indemnitee:
(a) furnishes the Corporation a written affirmation of the
Indemnitee's good faith belief that the Indemnitee is entitled to be
indemnified under this Agreement; and
(b) furnishes the Corporation a written undertaking to repay the
advance to the extent that it is ultimately determined that the Indemnitee
is not entitled to be indemnified by the Corporation. Such undertaking
shall be an unlimited general obligation of the
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Indemnitee but need not be secured.
Advances pursuant to this Section 8 shall be made no later than 10
days after receipt by the Corporation of the affirmation and undertaking
described in Sections 8(a) and 8(b) above, and shall be made without regard to
the Indemnitee's ability to repay the amount advanced and without regard to the
Indemnitee's ultimate entitlement to indemnification under this Agreement. The
Corporation may establish a trust, escrow account or other secured funding
source for the payment of advances made and to be made pursuant to this
Section 8 or of other liability incurred by the Indemnitee in connection with
any Proceeding.
9. NONEXCLUSIVITY AND CONTINUITY OF RIGHTS. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which the Indemnitee may be entitled under any articles
of incorporation, bylaw, any other agreement, any vote of shareholders or
directors, the Act, or otherwise, both as to action in the Indemnitee's official
capacity and as to action in another capacity while holding such office. The
indemnification under this Agreement shall continue as to the Indemnitee even
though the Indemnitee may have ceased to be a director and/or executive officer
of the Corporation or a director, officer, employee or agent of an enterprise
related to the Corporation and shall inure to the benefit of the heirs,
executors, administrators and personal representatives of the Indemnitee.
10. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. Any
indemnification under Sections 3, 4, 5 or 6 shall be made no later than 45 days
after receipt of the written request of the Indemnitee, unless a determination
is made within such 45-day period by (a) the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to the applicable
Proceeding, or (b) independent legal counsel in a written opinion (which counsel
shall be appointed if such a quorum is not obtainable) that the Indemnitee is
not entitled to indemnification under this Agreement.
11. ENFORCEMENT. The Indemnitee may enforce any right to
indemnification or advances provided by this Agreement in any court of competent
jurisdiction if (a) the Corporation denies the claim for indemnification or
advances, in whole or in part, or if the Corporation does not dispose of such
claim within the time period required by this Agreement. It shall be a defense
to any such enforcement action (other than an action brought to enforce a claim
for advancement of expenses pursuant to, and in compliance with, Section 8 of
this Agreement) that the Indemnitee is not entitled to indemnification under
this Agreement. However, except as provided in Section 12 of this Agreement,
the Corporation shall have no defense to an action brought to enforce a claim
for advancement of expenses pursuant to Section 8 of this Agreement if the
Indemnitee has tendered to the Corporation the affirmation and undertaking
required thereunder. The burden of proving by clear and convincing evidence
that indemnification is not appropriate shall be on the Corporation. Neither
the failure of the
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Corporation (including its Board of Directors or independent legal counsel)
to have made a determination prior to the commencement of such action that
indemnification or advancement of Expenses is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct nor an
actual determination by the Corporation (including its Board of Directors or
independent legal counsel) that indemnification is improper because the
Indemnitee has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the Indemnitee is not
entitled to indemnification under this Agreement or otherwise. The
Indemnitee's expenses incurred in connection with successfully establishing
the Indemnitee's right to indemnification or advances, in whole or in part,
in any Proceeding shall also be indemnified by the Corporation, whether or
not an action to enforce these rights is commenced.
The termination of any Proceeding by judgment, order of court,
settlement, conviction or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, create a presumption that the Indemnitee is not entitled
to indemnification under Sections 3, 4 or 6 of this Agreement.
12. NOTIFICATION AND DEFENSE OF CLAIM. Not later than 45 days after
receipt by the Indemnitee of notice of the commencement of any Proceeding, the
Indemnitee shall, if a claim in respect of the Proceeding is to be made against
the Corporation under this Agreement, notify the Corporation of the commencement
of the Proceeding. The omission to notify the Corporation shall not relieve the
Corporation from any liability which it may have to the Indemnitee otherwise
than under this Agreement, and shall not relieve the Corporation from any
liability under this Agreement, unless the Corporation can demonstrate that its
rights have been actually prejudiced by the failure to give timely notice. With
respect to any Proceeding as to which the Indemnitee notifies the Corporation of
the commencement:
(a) The Corporation will be entitled to participate in the Proceeding
at its own expense.
(b) Except as otherwise provided below, the Corporation may, at its
option and jointly with any other indemnifying party similarly notified and
electing to assume such defense, assume the defense of the Proceeding with
legal counsel reasonably satisfactory to the Indemnitee. The Indemnitee
shall have the right to use separate legal counsel in the Proceeding, but
the Corporation shall not be liable to the Indemnitee under this Agreement,
including Section 8 above, for the fees and expenses of separate legal
counsel incurred after notice from the Corporation of its assumption of the
defense, unless (i) the Indemnitee reasonably concludes that there may be a
conflict of interest between the Corporation and the Indemnitee in the
conduct of the defense of the Proceeding, or (ii) the Corporation does not
use legal counsel to assume the defense of such Proceeding. The
Corporation shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Corporation or as to which the Indemnitee
shall have made the conclusion provided for in (i) above.
(c) If two or more persons who may be entitled to indemnification
from the
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Corporation, including the Indemnitee, are parties to any Proceeding,
the Corporation may require the Indemnitee to use the same legal counsel
as the other parties. The Indemnitee shall have the right to use
separate legal counsel in the Proceeding, but the Corporation shall not
be liable to the Indemnitee under this Agreement, including Section 8
above, for the fees and expenses of separate legal counsel incurred after
notice from the Corporation of the requirement to use the same legal
counsel as the other parties, unless the Indemnitee reasonably concludes
that there may be a conflict of interest between the Indemnitee and any of
the other parties required by the Corporation to be represented by the same
legal counsel.
(d) The Corporation shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any Proceeding
effected without its written consent, which shall not be unreasonably
withheld. The Indemnitee shall permit the Corporation to settle any
Proceeding that the Corporation assumes the defense of, except that the
Corporation shall not settle any action or claim in any manner that would
impose any penalty or limitation on the Indemnitee or be otherwise
prejudicial to his or her best interests without the Indemnitee's written
consent.
13. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provisions of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines or amounts paid in settlement,
actually and reasonably incurred by the Indemnitee in connection with such
Proceeding, but not, however, for the total amount thereof, the Corporation
shall nevertheless indemnify the Indemnitee for the portion of such Expenses,
judgments, fines or amounts paid in settlement to which the Indemnitee is
entitled.
14. SEVERABILITY. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
remainder of this Agreement shall continue to be valid and the Corporation shall
nevertheless indemnify the Indemnitee as to Expenses, judgments, fines and
amounts paid in settlement, with respect to any Proceeding, to the fullest
extent permitted by any applicable portion of this Agreement that shall not have
been invalidated or by any other applicable law.
15. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee. The Indemnitee shall execute all
documents required and shall do all acts that may be necessary to secure such
rights and to enable the Corporation effectively to bring suit to enforce such
rights.
16. NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (a) upon delivering by hand to the party to whom the notice or other
communication shall have been directed, or (b) on the third business day after
the date on which it is mailed by certified or registered mail with postage
prepaid, addressed as follows:
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(i) If to the Indemnitee, to the address indicated on the signature
page of this Agreement.
(ii) If to the Corporation, to
Interactive Intelligence, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Secretary
or to any other address as either party may designate to the other in writing.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
18. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Indiana without
regard to the principles of conflict of laws.
19. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Corporation and its successors and assigns.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be duly executed and signed as of the day and year first above written.
CORPORATION: INDEMNITEE:
By _______________________________ By ________________________________
__________________________________ ___________________________________
Title Address
___________________________________
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