EXHIBIT 10.3
FORM OF
INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT (the "Agreement") is entered into as of this
___ day of _______________________, , by and between divine interVentures,
inc., a Delaware corporation (the "Corporation"), and _________________
("Indemnitee").
RECITALS
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a. The Corporation is aware that, because of the increased exposure to
litigation costs and risks resulting from service to corporations,
talented and experienced persons are increasingly reluctant to serve
or continue serving as directors or executive officers of corporations
unless they are protected by comprehensive liability insurance and
indemnification;
b. Plaintiffs often seek damages in such large amounts, and the costs of
litigation may be so great (whether or not the case is meritorious),
that the defense and/or settlement of such litigation is usually
beyond the personal resources of directors and executive officers;
c. Based upon their experience as business managers, the Board of
Directors of the Corporation (the "Board") has concluded that, to
retain and attract talented and experienced individuals to serve as
directors and executive officers of the Corporation, it is appropriate
for the Corporation to contractually indemnify its directors and its
executive officers, and to assume for itself liability for expenses
and damages in connection with claims against such directors and
executive officers in connection with their service to the
Corporation; and
d. The Corporation believes that it is fair and proper to protect its
directors and executive officers of the Corporation from the risk of
judgments, settlements and other expenses which may occur as a result
of their service to the Corporation.
NOW, THEREFORE, the parties, intending to be legally bound, for good and
valuable consideration, hereby agree as follows:
1. Definitions.
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(a) Agent. "Agent" means a director or executive officer of the
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Corporation or a director, officer, employee, agent or fiduciary of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise serving at the request, for the convenience, or to represent the
interests, of the Corporation.
(b) Change in Control. "Change in Control" means the happening of any
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of the following events:
(i) An acquisition by any individual, entity or group, within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act (a "Person"), of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act)
of twenty-five percent (25%) or more of either (1) the then
outstanding shares of common stock of the Corporation (the
"Outstanding Common Stock") or (2) the combined voting
power of the then outstanding voting securities of the
Corporation entitled to vote generally in the election of
directors (the "Outstanding Voting Securities"); excluding,
however, the following: (1) any acquisition directly from
the Corporation, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security
being so converted was itself acquired directly from the
Corporation, (2) any acquisition by the Corporation; (3)
any acquisition by Xxxxxx X. Xxxxxxxxxx or any of his
Permitted Transferees (as defined in the Certificate of
Incorporation of the Corporation), (4) any acquisition by
any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or by any corporation
controlled by the Corporation; or (5) any acquisition by
any Person pursuant to a transaction which complies with
clauses (1), (2) and (3) of subsection (iii) of this
Section 1(b); or
(ii) Within any period of twenty-four (24) consecutive months, a
change in the composition of the Board such that the
individuals who, immediately prior to such period,
constituted the Board (such Board shall be hereinafter
referred to as the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board; provided,
however, for purposes hereof, that any individual who
becomes a member of the Board during such period, whose
election, or nomination for election by the Corporation's
stockholders, was approved by a vote of at least a majority
of those individuals who are members of the Board and who
were also members of the Incumbent Board (or deemed to be
such pursuant to this proviso) shall be considered as
though such individual were a member of the Incumbent
Board; but, provided further, that any such individual
whose initial assumption of office occurs as a result of
either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board shall not be so considered as a
member of the Incumbent Board; or
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(iii) The approval by the stockholders of the Corporation of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of
the Corporation ("Corporate Transaction"); excluding,
however, such a Corporate Transaction pursuant to which (1)
all or substantially all of the individuals and entities
who are the beneficial owners, respectively, of the
Outstanding Common Stock and Outstanding Voting Securities
immediately prior to such Corporate Transaction will
beneficially own, directly or indirectly, more than sixty
percent (60%) of, respectively, the outstanding shares of
common stock, and the combined voting power of the
outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the
corporation resulting from such Corporate Transaction
(including, without limitation, a corporation which as a
result of such transaction owns the Corporation or all or
substantially all of the Corporation's assets, either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the
Outstanding Common Stock and Outstanding Voting Securities,
as the case may be, (2) no Person (other than the
Corporation or any employee benefit plan (or related trust)
sponsored or maintained by the Corporation, by any
corporation controlled by the Corporation or by such
corporation resulting from such Corporate Transaction) will
beneficially own, directly or indirectly, more than twenty-
five percent (25%) of, respectively, the outstanding shares
of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the
outstanding voting securities of such corporation entitled
to vote generally in the election of directors, except to
the extent that such ownership existed with respect to the
Corporation prior to the Corporate Transaction, and (3)
individuals who were members of the Board immediately prior
to the approval by the stockholders of the Corporation of
such Corporate Transaction will constitute at least a
majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(iv) The approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation,
other than to a corporation pursuant to a transaction which
would comply with clauses (1), (2) and (3) of subsection
(iii) of this Section 1(b), assuming for this purpose that
such transaction were a Corporate Transaction.
(c) Corporation. "Corporation" means divine interVentures, inc., a
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Delaware corporation, its successors or assigns, or any Subsidiary of the
Corporation. "Subsidiary"
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means, and "Subsidiaries" include, (i) any corporation of which more than
fifty percent (50%) of the outstanding voting securities are owned directly
or indirectly by the Corporation, or which is otherwise controlled by the
Corporation, and (ii) any partnership, limited liability company, joint
venture, trust or other entity of which more than fifty percent (50%) of
the equity interest is owned directly or indirectly by the Corporation, or
which is otherwise controlled by the Corporation.
(d) Exchange Act. "Exchange Act" means the Securities Exchange Act of
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1934, as amended.
(e) Independent Legal Counsel. "Independent Legal Counsel" means an
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attorney or firm of attorneys that shall not have otherwise performed
services for the Corporation or any Indemnitee within the last three (3)
years, other than with respect to matters concerning the right of
Indemnitee under this Agreement or of other indemnitees under similar
indemnity agreements with the Corporation.
(f) Liabilities. "Liabilities" means losses, claims, damages,
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liabilities, obligations, penalties, judgments, fines, settlement payments,
awards, costs, expenses and disbursements (and any and all costs, expenses
or disbursements in giving testimony or furnishing documents in response to
a subpoena or otherwise), including, without limitation, all reasonable
attorneys' fees, costs, expenses and disbursements, as and when incurred.
(g) Proceeding. "Proceeding" means any threatened, pending, or
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completed action, suit, alternative dispute resolution mechanism or other
proceeding, whether civil, criminal, administrative, investigative or any
other type whatsoever.
(h) Control. "Control" means, with respect to any person or entity,
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the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such person or entity, whether
through the ownership of voting securities, by contract or otherwise.
2. Maintenance of Liability Insurance.
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The Corporation hereby covenants and agrees to and with Indemnitee
that, so long as Indemnitee shall continue to serve as an Agent and
thereafter so long as Indemnitee shall be subject to any claim or
Proceeding by reason of the fact that Indemnitee was an Agent or in
connection with Indemnitee's acts as such an Agent, the Corporation shall
obtain and maintain in full force and effect directors' and officers'
liability insurance ("D&O Insurance") providing reasonable amounts of
coverage from established and reputable insurers. In all policies of D&O
Insurance, Indemnitee shall be named as an insured. The Corporation shall
advise Indemnitee as to the general terms of, and the amounts of coverage
provided by, the D&O Insurance maintained by the Corporation and shall
promptly notify Indemnitee of (a) any failure by the Corporation at any
time to
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maintain D&O Insurance or (b) any decrease in the amounts of coverage
provided by D&O Insurance maintained by the Corporation.
3. Indemnification of Agent.
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(a) Third Party Actions. If Indemnitee is a person who was or is a
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party or is threatened to be made a party to any Proceeding (other than an
action by or in the right of the Corporation) by reason of the fact that
Indemnitee is or was, or is alleged to have been, an Agent of the
Corporation, or by reason of anything done or not done, or alleged to have
been done or not done, by Indemnitee in any such capacity or otherwise at
the request of the Corporation or of its officers, directors or
stockholders, the Corporation shall indemnify, defend and hold harmless
Indemnitee against any and all Liabilities actually and reasonably incurred
by Indemnitee in connection with the investigation, defense, settlement or
appeal of such Proceeding, so long as Indemnitee 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 action
or Proceeding, if Indemnitee had no reasonable cause to believe his conduct
was unlawful.
(b) Derivative Actions. If Indemnitee is a person who was or is a
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party, or is threatened to be made a party, to any Proceeding by or in the
right of the Corporation to procure a judgment in its favor by reason of
the fact that Indemnitee is or was, or is alleged to have been, an Agent of
the Corporation, or by reason of anything done or not done, or alleged to
have been done or not done, by Indemnitee in any such capacity or otherwise
at the request of the Corporation or of its officers, directors or
stockholders, the Corporation shall indemnify, defend and hold harmless
Indemnitee against all Liabilities actually and reasonably incurred by such
person in connection with the investigation, defense, settlement or appeal
of such Proceeding, if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in, or not opposed to, the best
interests of the Corporation; provided, however, that no indemnification
under this Section 3(b) shall be made in respect of any claim, issue or
matter for which such person is adjudged to be liable for gross negligence
or willful misconduct in the performance of Indemnitee's duties to the
Corporation, unless, and only to the extent that, the court in which such
Proceeding was brought shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for such
Liabilities as the court shall deem proper.
(c) Actions Where Indemnitee Is Deceased. If Indemnitee is a person
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who was or is a party or is threatened to be made a party to any Proceeding
by reason of the fact that he is or was, or is alleged to have been, an
Agent of the Corporation, or by reason of anything done or not done, or
alleged to have been done or not done, by Indemnitee in any such capacity,
and prior to, during the pendency of, or after completion of, such
Proceeding, Indemnitee shall die, then the Corporation shall indemnify,
defend and hold harmless the estate, heirs and legatees of Indemnitee
against any and all Liabilities incurred by such estate, heirs or legatees
in connection with the investigation,
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defense, settlement or appeal of such Proceeding on the same basis as
provided for Indemnitee in Sections 3(a) and 3(b) above.
(d) Reduction of Liabilities. The Liabilities covered hereby shall be
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net of any payments to, or on behalf of, Indemnitee by D&O Insurance
carriers or others with respect to the subject Proceeding.
(e) Survival Regardless of Investigation. The indemnification and
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contribution provided for in this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of Indemnitee.
4. Indemnification as Witness.
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Notwithstanding any other provision of this Agreement, to the extent
Indemnitee is, by reason of the fact that Indemnitee is or was, or is
alleged to have been, an Agent of the Corporation, involved in any
investigative Proceeding, including, but not limited to, testifying as a
witness or furnishing documents in response to a subpoena or otherwise,
Indemnitee shall be indemnified against any and all Liabilities actually
and reasonably incurred by or for Indemnitee in connection therewith.
5. Advancement of Liabilities.
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Subject to the provisions of Section 6(c), until a determination that
Indemnitee is not entitled to be indemnified by the Corporation under the
terms hereof, and unless the provisions of Section 9 apply, the Corporation
shall reimburse Indemnitee for Liabilities previously paid by Indemnitee
and shall advance Liabilities which the Corporation reasonably determines
will be due and payable by Indemnitee. The execution and delivery of this
Agreement by the Corporation evidences the specific approval by the Board
of the reimbursement and advancement of Liabilities as provided for in this
Section 5. As a condition to such reimbursement and/or advancement,
Indemnitee shall, at the request of the Corporation, undertake in a manner
reasonably satisfactory to the Corporation to repay such amounts reimbursed
and/or advanced, without interest, if it shall ultimately be determined
pursuant to Section 7 or 9 below that Indemnitee is not entitled to be
indemnified by the Corporation under the terms of this Agreement. Subject
to the foregoing, the reimbursement and/or advances to be made hereunder
shall be paid by the Corporation to Indemnitee within twenty (20) business
days following delivery of a written request by Indemnitee to the
Corporation, which request shall be accompanied by vouchers, invoices and
similar evidence documenting the amounts incurred or to be incurred by
Indemnitee.
6. Indemnification Procedures.
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(a) Notice by Indemnitee. Promptly after receipt by Indemnitee of
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notice of the commencement or threat of commencement of any Proceeding,
Indemnitee shall, if Indemnitee believes that indemnification with respect
thereto may be sought from the
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Corporation under this Agreement, deliver written notice to the Corporation
of the commencement or threat of commencement thereof, provided that any
failure to so notify the Corporation shall not relieve the Corporation of
its obligations hereunder, except to the extent that such failure or delay
increases the liability of the Corporation hereunder.
(b) D & O Insurance. If, at the time of receipt of a notice pursuant
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to Section 6(a) above, the Corporation has D&O Insurance in effect, the
Corporation shall give prompt notice of the Proceeding or claim to its
insurers in accordance with the procedures set forth in the applicable
policies. The Corporation shall thereafter take all necessary or desirable
action to cause such insurers to pay all amounts payable as a result of
such Proceeding in accordance with the terms of such policies, and
Indemnitee shall not take any action (by waiver, settlement or otherwise)
which would adversely affect the ability of the Corporation to obtain
payment from its insurers.
(c) Assumption of Defense. In the event the Corporation shall be
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obligated under this Agreement to pay the Liabilities of Indemnitee, the
Corporation shall be entitled to assume the defense (with counsel
reasonably acceptable to Indemnitee, approval thereof not to be
unreasonably withheld) of the Proceeding to which the Liabilities relate.
The Corporation agrees to promptly notify Indemnitee in writing upon its
election to assume such defense. Once the Corporation (i) provides
Indemnitee with written notice of its election to assume such defense, (ii)
obtains approval from Indemnitee of its proposed counsel and (iii) retains
such counsel, the Corporation will not be liable to Indemnitee under this
Agreement for any attorney's fees or other Liabilities subsequently
incurred by Indemnitee with respect to such Proceeding, unless (x) the
Liabilities incurred by Indemnitee were previously authorized by the
Corporation or (y) counsel for Indemnitee shall have provided the
Corporation with a written opinion of counsel stating that there is a
likelihood that a conflict of interest exists between the Corporation and
Indemnitee in the conduct of any such defense.
7. Determination of Right to Indemnification.
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(a) Successful Proceeding. To the extent Indemnitee has been
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successful, on the merits or otherwise, in the defense of any Proceeding
referred to in Section 3(a) or 3(b) above, the Corporation shall indemnify
Indemnitee against all Liabilities incurred by him 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, then the Corporation shall
indemnify Indemnitee against all Liabilities actually or reasonably
incurred by or for him in connection with each successfully resolved claim,
issue or matter. For purposes of this Section 7(a), and without limitation,
the termination of any Proceeding, or 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 Proceeding, claim, issue or matter, so long
as there has been no finding (either adjudicated or pursuant to Section
7(c) below) that Indemnitee (i) did not act in good faith, (ii) did not act
in a manner reasonably believed to be in, or not opposed to, the
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best interests of the Corporation, or (iii) with respect to any criminal
proceeding, had reasonable grounds to believe his conduct was unlawful.
(b) Other Proceedings. In the event that Indemnitee has not been
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successful in the defense of less than all claims, issues or matters of any
Proceeding referred to in Section 3(a) or 3(b) above, the Corporation shall
nevertheless indemnify Indemnitee against all Liabilities incurred by
Indemnification in connection therewith, unless and only to the extent that
the forum listed in Section 7(c) or 7(f) below determines that Indemnitee
has not met the applicable standard of conduct set forth in Section 3(a) or
3(b) above required to entitle Indemnitee to such indemnification.
(c) Forum in Event of Dispute. Subject to Section 3(f) below, the
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determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct
set forth in Section 3(a) or 3(b) shall be made (i) by the Board, by a
majority vote of the directors who are not parties to such Proceeding, even
though less than a quorum or (ii) by a committee of such disinterested
directors designated by a majority of such disinterested directors, even
though less than a quorum, or (iii) if there are no such disinterested
directors, or if such disinterested directors shall so direct, by
Independent Legal Counsel in a written opinion, or (iv) by the stockholders
of the Corporation. The choice of which forum shall make the determination
shall be made by the Board. The forum shall act in the utmost good faith to
assure Indemnitee a complete opportunity to present to the forum
Indemnitee's case that Indemnitee has met the applicable standard of
conduct.
(d) Appeal to Court. Notwithstanding a determination by any forum
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listed in Section 7(c) above that Indemnitee is not entitled to
indemnification with respect to a specific Proceeding, Indemnitee shall
have the right to apply to the court in which that Proceeding is or was
pending or any other court of competent jurisdiction for the purpose of
enforcing Indemnitee's right to indemnification pursuant to this Agreement.
(e) Indemnity for Liabilities in Enforcement of Agreement.
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Notwithstanding any other provision in this Agreement to the contrary, the
Corporation shall indemnify Indemnitee against all Liabilities incurred by
Indemnitee in connection with any other Proceeding between the Corporation
and Indemnitee involving the interpretation or enforcement of the rights of
Indemnitee under this Agreement, unless a court of competent jurisdiction
finds that the material claims and/or defenses of Indemnitee in any such
Proceeding were frivolous or made in bad faith.
(f) Change in Control. Notwithstanding any other provision of this
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Agreement, the Corporation agrees that if there is a Change in Control,
other than a Change in Control which has been approved, prior to such
Change in Control, by a majority vote of the members of the Board, then,
with respect to all matters thereafter arising concerning the rights of
Indemnitee to payments of Liabilities under this Agreement or any other
agreement or under the Certificate of Incorporation or By-laws of the
Corporation, as now or hereafter in effect, Independent Legal Counsel shall
be
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selected on behalf of Indemnitee and all persons who are the beneficiaries
of indemnification agreements with the Corporation similar to this
Agreement by a committee consisting of those persons who were members of
the Board immediately prior to such Change in Control and who are no longer
serving on the Board, and such selection shall be approved by the
Corporation, which approval shall not be unreasonably withheld. Such
Independent Legal Counsel, among other things, shall render its written
opinion to the Corporation and Indemnitee as to whether and to what extent
Indemnitee would be permitted to be indemnified under applicable law. The
Corporation agrees to abide by such opinion, to pay the reasonable fees of
such Independent Legal Counsel and to fully indemnify such Independent
Legal Counsel against any and all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
8. Contribution.
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If and to the extent that a final adjudication shall specify that the
Corporation is not obligated to indemnify Indemnitee under this Agreement
for any reason (including but not limited to the exclusion set forth in
Section 9 hereof) in respect of any Proceeding, then the Corporation shall
contribute to the amount of Liabilities reasonably incurred and paid or
payable by Indemnitee in connection with such Proceeding in such proportion
as is appropriate (i) to reflect the relative benefits received by the
Corporation, on the one hand, and Indemnitee, on the other hand, from the
transaction with respect to which such Proceeding arose, and (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Corporation, on the one hand,
and Indemnitee, on the other hand, in connection with the circumstances
which resulted in such Liabilities, as well as any other relevant equitable
considerations. The relative fault of the Corporation, on the one hand, and
Indemnitee, on the other hand, 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 Liabilities. The Corporation agrees that it would not be
just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
9. Exceptions.
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(a) Claims Initiated by Indemnitee. Notwithstanding any other
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provision of this Agreement, the Corporation shall not be obligated
pursuant to the terms of this Agreement to indemnify or advance Liabilities
to Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
Proceedings brought to establish or enforce a right to indemnification
under this Agreement, but such indemnification or advancement of expenses
may be provided by the Corporation in specific cases if the Board finds it
to be appropriate.
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(b) Unauthorized Settlements. Notwithstanding any other provision of
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this Agreement, the Corporation shall not be obligated pursuant to the
terms of this Agreement to indemnify Indemnitee under this Agreement for
any amount paid in settlement of a Proceeding without the prior written
consent of the Corporation to such settlement.
(c) No Duplicative Payment. Notwithstanding any other provision of
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this Agreement, 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.
(d) Claim Under Section 16(b). Notwithstanding any other provision of
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this Agreement, the Corporation shall not be obligated to indemnify
Indemnitee for any payment of profits pursuant to Section 16(b) of the
Exchange Act (or any successor statute), or any related expenses, arising
from the purchase and sale by Indemnitee of securities.
(e) Unlawful Indemnification. Notwithstanding any other provision of
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this Agreement, the Corporation shall not be obligated to indemnify
Indemnitee if a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
10. Certificate of Incorporation and By-laws.
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The Corporation agrees that the Certificate of Incorporation and By-
laws of the Corporation in effect on the date hereof shall not be amended
to reduce, limit, hinder or delay (a) the rights of Indemnitee granted
hereby or (b) the ability of the Corporation to indemnify Indemnitee as
required hereby. The Corporation further agrees that it shall exercise the
powers granted to it under its Certificate of Incorporation and By-laws and
by applicable law to indemnify any Indemnitee to the fullest extent
possible as required hereby.
11. Non-exclusivity.
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The provisions for indemnification and advancement of Liabilities set
forth in this Agreement shall not be deemed exclusive of any other rights
which Indemnitee may have under any provision of law, the Corporation's
Certificate of Incorporation or By-laws, the vote of the Corporation's
stockholders or disinterested directors, other agreements or otherwise.
12. Interpretation of Agreement.
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It is understood that the parties hereto intend this Agreement to be
interpreted and enforced so as to provide indemnification to Indemnitee to
the fullest extent now or hereafter permitted by law.
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13. Mutual Acknowledgment.
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The Corporation and Indemnitee acknowledge that in certain instances,
federal law or applicable public policy may prohibit the Corporation from
indemnifying Indemnitee in Indemnitee's capacity as an Agent under this
Agreement or otherwise.
14. Severability.
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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 the
Agreement (including, without limitation, all portions of any paragraphs of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall not in any way be effected or impaired thereby, and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, all portions of any paragraph of this
Agreement containing any such provision held to be invalid, illegal, or
unenforceable that are not themselves invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable and to give effect to
Section 12 hereof.
15. Modification and Waiver.
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No supplement, modification or amendment to 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.
16. Subrogation.
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In the event that the Corporation makes 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 and do all things that may be necessary to secure such rights,
including, but not limited to, the execution of such documents as shall be
necessary to enable the Corporation effectively to bring suit to enforce
such rights.
17. Survival, Successors and Assigns.
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Indemnitee's rights under this Agreement shall continue after
Indemnitee has ceased acting as an Agent of the Corporation. The terms of
this Agreement shall be binding on and inure to the benefit of the
Corporation and its successors and assigns and shall be binding on and
inure to the benefit of Indemnitee and Indemnitee's heirs, executors and
administrators.
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18. Notices.
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All notices, demands, consents, requests, approvals and other
communications between the parties pursuant to this Agreement must be in
writing and will be deemed given when delivered in person, one (1) business
day after being deposited with a nationally recognized overnight courier
service, three (3) business days after being deposited in the U.S. Mail,
registered or certified mail, return receipt requested, or one (1) business
day after being sent by facsimile (with receipt acknowledged), to the
Corporation at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000
(Attn: General Counsel), its principal office in Chicago, Illinois, and to
Indemnitee at Indemnitee's address as shown on the Corporation's records.
The Corporation or Indemnitee may change its address for notice purposes by
delivering notice to the Corporation in accordance with this Section 18.
All notices sent to the Corporation shall also be delivered to Xxxxxx
Xxxxxx Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 60661-
3693, Attention: Xxxx X. Xxxx, Esq., Facsimile No. (000) 000-0000.
19. Governing Law.
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This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware, without regard to its
principles of conflicts of laws.
20. Counterparts.
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This agreement may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, and such counterparts
together shall constitute one instrument.
The parties hereto have entered into this Indemnification Agreement
effective as of the date first above written.
divine interVentures, inc.
By: ___________________________________
Its: ___________________________________
INDEMNITEE:
________________________________________
________________________________________
________________________________________
(Print Address)
-12-
