Exhibit 10.6
INDEMNIFICATION AGREEMENT
AGREEMENT, made this __ day of ________, between PEACHTREE SOFTWARE,
INC., a Delaware corporation (the "Company"), and __________________________
(the "Indemnitee").
WHEREAS, it is essential to the Company and its stockholders to attract
and retain qualified and capable directors, officers, employees, agents and
fiduciaries; and
WHEREAS, the Amended and Restated Certificate of Incorporation of the
Company (the "Certificate of Incorporation") requires the Company to indemnify
and advance expenses to its directors and officers to the fullest extent
authorized by law and allows the Company to indemnify employees and agents to
the fullest extent authorized by law; and
WHEREAS, it is the policy of the Company to indemnify its directors and
officers so as to provide them with the maximum possible protection permitted by
law; and
WHEREAS, in recognition of the Indemnitee's need for protection against
personal liability in order to induce the Indemnitee to serve or continue to
serve the Company in an effective manner, and, in the case of directors and
officers, to supplement or replace the Company's directors' and officers'
liability insurance coverage, and in part to provide the Indemnitee with
specific contractual assurance that the protection promised by the Certificate
of Incorporation will be available to the Indemnitee (regardless of, among other
things, any amendment to or revocation of the Certificate of Incorporation or
any change in the composition of the Company's Board of Directors or any
acquisition transaction relating to the Company), the Company, with the prior
approval of the Company's stockholders, wishes to provide the Indemnitee with
the benefits contemplated by this Agreement; and
WHEREAS, as a result of the provision of such benefits the Indemnitee
has agreed to serve or to continue to serve the Company;
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. Definitions. The following terms, as used herein, shall have the
following respective meanings:
(a) An Affiliate: of a specified Person is a Person who directly,
or indirectly through one or more intermediaries, controls or is controlled by,
or is under common control with, the Person specified. The term Associate used
to indicate a relationship with any Person shall mean (i) any corporation or
organization (other than the Company or a Subsidiary) of which such Person is an
officer or partner or is, directly, or indirectly, the Beneficial Owner of ten
(10) percent or more of any class of Equity Securities, (ii) any trust or other
estate in which such Person has a substantial beneficial interest or as to which
such Person serves as trustee or in a similar fiduciary capacity (other than an
Employee Plan Trustee), (iii) any Relative of such Person, or (iv) any officer
or director of any corporation controlling or controlled by such Person.
(b) Beneficial Ownership: shall be determined, and a Person shall
be the Beneficial Owner of all securities which such Person is deemed to own
beneficially, pursuant to Rule 13d-3 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (or any successor rule or
statutory provision), or, if said Rule 13d-3 shall be rescinded and there shall
be no successor rule or statutory provision thereto, pursuant to said Rule 13d-3
as in effect on the date hereof; provided, however, that a Person shall, in any
event, also be deemed to be the Beneficial Owner of any Voting Shares: (A) of
which such Person or any of its Affiliates or Associates is, directly or
indirectly, the Beneficial Owner, or (B) of which such Person or any of its
Affiliates or Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants, or options, or otherwise, or (ii) sole or
shared voting or investment power with respect thereto pursuant to any
agreement, arrangement, understanding, relationship or otherwise (but shall not
be deemed to be the Beneficial Owner of any Voting Shares solely by reason of a
revocable proxy granted for a particular meeting of stockholders, pursuant to a
public solicitation of proxies for such meeting, with respect to shares of which
neither such Person nor any such Affiliate or Associate is otherwise deemed the
Beneficial Owner), or (C) of which any other Person is, directly or indirectly,
the Beneficial Owner if such first mentioned Person or any of its Affiliates or
Associates acts with such other Person as a partnership, syndicate or other
group pursuant to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of capital stock of the
Company; and provided further, however, that (i) no director or officer of the
Company, nor any Associate or Affiliate of any such director or officer, shall,
solely by reason of any or all of such directors and officers acting in their
capacities as such, be deemed for any purposes hereof, to be the Beneficial
Owner of any Voting Shares of which any other such director or officer (or any
Associate or Affiliate thereof) is the Beneficial Owner and (ii) no trustee of
an employee stock ownership or similar plan of the Company or any Subsidiary
("Employee Plan Trustee") or any Associate or Affiliate of any such Trustee,
shall, solely by reason of being an Employee Plan Trustee or Associate or
Affiliate of an Employee Plan Trustee, be deemed for any purposes hereof to be
the Beneficial Owner of any Voting Shares held by or under any such plan.
(c) A Change in Control: shall be deemed to have occurred if (A)
any Person (other than (i) the Company or any Subsidiary, (ii) any pension,
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profit sharing, employee stock ownership or other employee benefit plan of the
Company or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity, or (iii) any Person who is as of June
10, 1997 the Beneficial Owner of 20% or more of the total voting power of the
Voting Shares) is or becomes, after the date of this Agreement, the Beneficial
Owner of 20% or more of the total voting power of the Voting Shares, (B) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new director
whose election or appointment by the Board of Directors or nomination or
recommendation for election by the Company's stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to constitute a
majority thereof, (C) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Shares of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Shares of the surviving entity) at
least 80% of the total voting power represented by the Voting Shares of the
Company or such surviving entity outstanding, or the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets, or (D) a change in control of a nature that would be required to be
reported in response to Item 5(f) of Schedule 14A of Regulation 14 promulgated
under the Securities Act of 1934, as amended, as in effect on the date hereof.
(d) Claim: means any threatened, pending or completed action,
suit, arbitration or proceeding, or any inquiry or investigation, whether
brought by or in the right of the Company or otherwise, that the Indemnitee in
good faith believes might lead to the institution of any such action, suit,
arbitration or proceeding, whether civil, criminal, administrative,
investigative or other, or any appeal therefrom.
(e) Equity Security: shall have the meaning given to such term
under Rule 3a11-1 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on the date hereof.
(f) D&O Insurance: means any valid directors' and officers'
liability insurance policy maintained by the Company for the benefit of the
Indemnitee, if any.
(g) Determination: means a determination, and "Determined" means
a matter which has been determined based on the facts known at the time, by: (i)
a majority vote of a quorum of disinterested directors, or (ii) if such a quorum
is not obtainable, or even if obtainable, if a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or, in the event
there has been a Change in Control, by the Special Independent Counsel (in a
written
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opinion) selected by the Indemnitee as set forth in Section 6, or (iii) a
majority of the disinterested stockholders of the Company, or (iv) a final
adjudication by a court of competent jurisdiction.
(h) Excluded Claim: means any payment for Losses or Expenses in
connection with any Claim: (i) based upon or attributable to the Indemnitee
gaining in fact any personal profit or advantage to which the Indemnitee is not
entitled; or (ii) for the return by the Indemnitee of any remuneration paid to
the Indemnitee without the previous approval of the stockholders of the Company
which is illegal; or (iii) for an accounting of profits in fact made from the
purchase or sale by the Indemnitee of securities of the Company within the
meaning of Section 16 of the Securities Exchange Act of 1934, as amended, or
similar provisions of any state law; or (iv) resulting from the Indemnitee's
knowingly fraudulent, dishonest or willful misconduct; or (v) the payment of
which by the Company under this Agreement is not permitted by applicable law.
(i) Expenses: means any reasonable expenses incurred by the
Indemnitee as a result of a Claim or Claims made against the Indemnitee for
Indemnifiable Events including, without limitation, attorneys' fees and all
other costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in (including on
appeal), or preparing to defend, be a witness in or participate in any Claim
relating to any Indemnifiable Event.
(j) Fines: means any fine, penalty or, with respect to an
employee benefit plan, any excise tax or penalty assessed with respect thereto.
(k) Indemnifiable Event: means any event or occurrence, occurring
prior to or after the date of this Agreement, related to the fact that the
Indemnitee is or was a director, officer, employee, trustee, agent or fiduciary
of the Company or its Predecessor Entities, or is or was serving at the request
of the Company or its Predecessor Entities as a director, officer, employee,
trustee, agent or fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of anything done
or not done by the Indemnitee, including, but not limited to, any breach of
duty, neglect, error, misstatement, misleading statement, omission, or other act
done or wrongfully attempted by the Indemnitee, or any of the foregoing alleged
by any claimant, in any such capacity.
(l) Losses: means any amounts or sums which the Indemnitee is
legally obligated to pay as a result of a Claim or Claims made against the
Indemnitee for Indemnifiable Events including, without limitation, damages,
judgments and sums or amounts paid in settlement of a Claim or Claims, and
Fines.
(m) Person: means any individual, partnership, limited liability
company, corporation, business trust, joint stock company, trust,
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unincorporated association, joint venture, governmental authority or other
entity of whatever nature.
(n) Potential Change in Control: shall be deemed to have occurred
if (A) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control; (B) any Person (including the
Company) publicly announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control; (C) any Person (other
than (i) the Company or any Subsidiary, (ii) any pension, profit sharing,
employee stock ownership or other employee benefit plan of the Company or any
Subsidiary or any trustee of or fiduciary with respect to any such plan when
acting in such capacity, or (iii) any Person who is as of June 10, 1997 the
Beneficial Owner of 20% or more of the total voting power of the Voting Shares),
who is or becomes the Beneficial Owner of 9.5% or more of the total voting power
of the Voting Shares, increases his Beneficial Ownership of such voting power by
5% or more over the percentage so owned by such Person on the date hereof; or
(D) the Board of Directors adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
(o) DELETED.
(p) Relative: means a Person's spouse, parents, children,
siblings, mothers- and father-in-law, sons- and daughters-in-law, and brothers-
and sisters-in-law.
(q) Reviewing Party: means any appropriate person or body
consisting of a member or members of the Company's Board of Directors or any
other person or body appointed by such Board (including the Special Independent
Counsel referred to in Section 6) who is not a party to the particular Claim for
which the Indemnitee is seeking indemnification.
(r) Subsidiary: means any corporation of which fifty percent of
any class of Equity Security is owned, directly or indirectly, by the Company.
(s) Trust: means the trust established pursuant to Section 7
hereof.
(t) Voting Shares: means any issued and outstanding shares of
capital stock of the Company entitled to vote generally in the election of
directors.
2. Basic Indemnification Agreement. In consideration of, and as an
inducement to, the Indemnitee rendering valuable services to the Company, the
Company agrees that in the event the Indemnitee is or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant in, a Claim by reason of (or arising in part out
of) an Indemnifiable Event,
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the Company will indemnify the Indemnitee to the fullest extent authorized by
law, against any and all Expenses and Losses (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such Expenses and Losses) of such Claim, whether or not such Claim proceeds
to judgment or is settled or otherwise is brought to a final disposition,
subject in each case, to the further provisions of this Agreement.
3. Limitations on Indemnification. Notwithstanding the provisions of
Section 2, the Indemnitee shall not be indemnified and held harmless from any
Losses or Expenses (a) which have been Determined, as provided herein, to
constitute an Excluded Claim; (b) to the extent the Indemnitee is indemnified by
the Company and has actually received payment pursuant to the Certificate of
Incorporation, D&O Insurance, or otherwise; or (c) other than pursuant to the
last sentence of Section 4(d) or Section 14, in connection with any Claim
initiated by the Indemnitee, unless the Company has joined in or the Board of
Directors has authorized such Claim.
4. Indemnification Procedures.
(a) Promptly after receipt by the Indemnitee of notice of any
Claim, the Indemnitee shall, if indemnification with respect thereto may be
sought from the Company under this Agreement, notify the Company of the
commencement thereof and the Indemnitee agrees further not to make any admission
or effect any settlement with respect to such Claim without the consent of the
Company, except any Claim with respect to which the Indemnitee has undertaken
the defense in accordance with the second to last sentence of Section 4(d).
(b) If, at the time of the receipt of such notice, the Company
has D&O Insurance in effect, the Company shall give prompt notice of the
commencement of Claim to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all Losses and Expenses payable as a result of such Claim.
(c) To the extent the Company does not, at the time of the Claim
have applicable D&O Insurance, or if a Determination is made that any Expenses
arising out of such Claim will not be payable under the D&O Insurance then in
effect, the Company shall be obligated to pay the Expenses of any Claim in
advance of the final disposition thereof and the Company, if appropriate, shall
be entitled to assume the defense of such Claim, with counsel satisfactory to
the Indemnitee, upon the delivery to the Indemnitee of written notice of its
election so to do. After delivery of such notice, the Company will not be liable
to the Indemnitee under this Agreement for any legal or other Expenses
subsequently incurred by the Indemnitee in connection with such defense other
than reasonable Expenses of investigation; provided that the Indemnitee shall
have the right to employ its counsel in such Claim but the fees and expenses of
such counsel incurred after delivery of notice from the Company of its
assumption of such defense shall be at the
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Indemnitee's expense; provided further that if: (i) the employment of counsel by
the Indemnitee has been previously authorized by the Company; (ii) the
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of any such
defense; or (iii) the Company shall not, in fact, have employed counsel to
assume the defense of such action, then the reasonable fees and expenses of
counsel shall be at the expense of the Company.
(d) All payments on account of the Company's indemnification
obligations under this Agreement shall be made within sixty (60) days of the
Indemnitee's written request therefor unless a Determination is made that the
Claims giving rise to the Indemnitee's request are Excluded Claims or otherwise
not payable under this Agreement, provided that all payments on account of the
Company's obligation to pay Expenses under Section 4(c) of this Agreement prior
to the final disposition of any Claim shall be made within 20 days of the
Indemnitee's written request therefor and such obligation shall not be subject
to any such Determination but shall be subject to Section 4(e) of this
Agreement. In the event the Company takes the position that the Indemnitee is
not entitled to indemnification in connection with the proposed settlement of
any Claim, the Indemnitee shall have the right at its own expense to undertake
defense of any such Claim, insofar as such proceeding involves Claims against
the Indemnitee, by written notice given to the Company within 10 days after the
Company has notified the Indemnitee in writing of its contention that the
Indemnitee is not entitled to indemnification. If it is subsequently determined
in connection with such proceeding that the Indemnifiable Events are not
Excluded Claims and that the Indemnitee, therefore, is entitled to be
indemnified under the provisions of Section 2 hereof, the Company shall promptly
indemnify the Indemnitee.
(e) The Indemnitee hereby expressly undertakes and agrees to
reimburse the Company for all Losses and Expenses paid by the Company in
connection with any Claim against the Indemnitee in the event and only to the
extent that a Determination shall have been made by a court of competent
jurisdiction in a decision from which there is no further right to appeal that
the Indemnitee is not entitled to be indemnified by the Company for such Losses
and Expenses because the Claim is an Excluded Claim or because the Indemnitee is
otherwise not entitled to payment under this Agreement.
5. Settlement. The Company shall have no obligation to indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of any Claim
effected without the Company's prior written consent. The Company shall not
settle any Claim in which it takes the position that the Indemnitee is not
entitled to indemnification in connection with such settlement without the
consent of the Indemnitee, nor shall the Company settle any Claim in any manner
which would impose any Fine or any obligation on the Indemnitee, without the
Indemnitee's written consent. Neither the Company nor the Indemnitee shall
unreasonably withhold their consent to any proposed settlement.
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6. Change in Control; Extraordinary Transactions. The Company and the
Indemnitee agree that if there is a Change in Control of the Company (other than
a Change in Control which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such Change in Control)
then all Determinations thereafter with respect to the rights of the Indemnitee
to be paid Losses and Expenses under this Agreement shall be made only by a
special independent counsel (the "Special Independent Counsel") selected by the
Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld) or by a court of competent jurisdiction. The Company shall pay the
reasonable fees of such Special Independent Counsel and shall indemnify such
Special Independent Counsel against any and all reasonable expenses (including
reasonable attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
The Company covenants and agrees that, in the event of a Change in
Control of the sort set forth in clause (B) of Section 1(c), the Company will
use its best efforts (a) to have the obligations of the Company under this
Agreement including, but not limited to those under Section 7, expressly assumed
by the surviving, purchasing or succeeding entity, or (b) otherwise to
adequately provide for the satisfaction of the Company's obligations under this
Agreement, in a manner reasonably acceptable to the Indemnitee.
7. Establishment of Trust. In the event of a Potential Change in
Control, the Company shall, upon written request by the Indemnitee, create a
trust (the "Trust") for the benefit of the Indemnitee and from time to time upon
written request of the Indemnitee shall fund the Trust in an amount sufficient
to satisfy any and all Losses and Expenses which are actually paid or which the
Indemnitee reasonably determines from time to time may be payable by the Company
under this Agreement. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by the
Reviewing Party, in any case in which the Special Independent Counsel is
involved. The terms of the Trust shall provide that upon a Change in Control:
(i) the Trust shall not be revoked or the principal thereof invaded without the
written consent of the Indemnitee; (ii) the trustee of the Trust shall advance,
within twenty days of a request by the Indemnitee, any and all Expenses to the
Indemnitee (and the Indemnitee hereby agrees to reimburse the Trust under the
circumstances under which the Indemnitee would be required to reimburse the
Company under Section 4(e) of this Agreement); (iii) the Company shall continue
to fund the Trust from time to time in accordance with the funding obligations
set forth above; (iv) the trustee of the Trust shall promptly pay to the
Indemnitee all Losses and Expenses for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement; and (v) all unexpended funds in the
Trust shall revert to the Company upon a final determination by a court of
competent jurisdiction in a final decision from which there is no further right
of appeal that the Indemnitee has been fully indemnified under the terms of this
Agreement. The Trustee of the Trust shall be chosen by the Indemnitee.
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8. No Presumption. For purposes of this Agreement, the termination of
any Claim by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its equivalent,
shall not, of itself, create a presumption that the Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.
9. Non-exclusivity, Etc. The rights of the Indemnitee hereunder shall
be in addition to any other rights the Indemnitee may have under the Certificate
of Incorporation, the Company's By-laws, the Delaware General Corporation Law,
any vote of stockholders or disinterested directors or otherwise, both as to
action in the Indemnitee's official capacity and as to action in any other
capacity by holding such office, and shall continue after the Indemnitee ceases
to serve the Company as a director, officer, employee, agent or fiduciary, for
so long as the Indemnitee shall be subject to any Claim by reason of (or arising
in part out of) an Indemnifiable Event. To the extent that a change in the
Delaware General Corporation Law (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded currently
under the Certificate of Incorporation and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, the Indemnitee, if an officer or director of the Company, shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any director or officer of the
Company.
11. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring
suit to enforce such rights.
12. Partial Indemnity, Etc. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses and Losses of a Claim but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify the Indemnitee
for the portion thereof to which the Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any or
all Claims relating in whole or in part to any Indemnifiable Event or in defense
of any issue or matter therein, including dismissal without prejudice, the
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith. In connection with any Determination as to whether the Indemnitee is
entitled to be indemnified hereunder the burden of proof shall be on the Company
to establish that the Indemnitee is not so entitled.
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13. Liability of Company. The Indemnitee agrees that neither the
stockholders nor the directors nor any officer, employee, representative or
agent of the Company shall be personally liable for the satisfaction of the
Company's obligations under this Agreement and the Indemnitee shall look solely
to the assets of the Company for satisfaction of any claims hereunder.
14. Enforcement.
(a) The Indemnitee's right to indemnification and other rights
under this Agreement shall be specifically enforceable by the Indemnitee only in
the state or Federal courts of [the States of Delaware or New York] and shall be
enforceable notwithstanding any adverse Determination by the Company's Board of
Directors, independent legal counsel, the Special Independent Counsel or the
Company's stockholders and no such Determination shall create a presumption that
the Indemnitee is not entitled to be indemnified hereunder. In any such action
the Company shall have the burden of proving that indemnification is not
required under this Agreement.
(b) In the event that any action is instituted by the Indemnitee
under this Agreement, or to enforce or interpret any of the terms of this
Agreement, the Indemnitee shall be entitled to be paid all court costs and
reasonable expenses, including reasonable counsel fees, incurred by the
Indemnitee with respect to such action, unless the court determines that each of
the material assertions made by the Indemnitee as a basis for such action were
not made in good faith or were frivolous.
15. Severability. In the event that any provision of this Agreement is
determined by a court to require the Company to do or to fail to do an act which
is in violation of applicable law, such provision (including any provision
within a single section, paragraph or sentence) shall be limited or modified in
its application to the minimum extent necessary to avoid a violation of law,
and, as so limited or modified, such provision and the balance of this Agreement
shall be enforceable in accordance with their terms to the fullest extent
permitted by law.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed entirely within such State.
17. Consent to Jurisdiction. The Company and the Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of [the States of
Delaware and New York] for all purposes in connection with any action or
proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be brought only in the state and
Federal courts of [the States of Delaware and New York].
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18. Notices. All notices, or other communications required or
permitted hereunder shall be sufficiently given for all purposes if in writing
and personally delivered, telegraphed, telexed, sent by facsimile transmission
or sent by registered or certified mail, return receipt requested, with postage
prepaid addressed as follows, or to such other address as the parties shall have
given notice of pursuant hereto:
(a) If to the Company, to:
Peachtree Software, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(b) If to the Indemnitee, to:
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19. Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original and all of which, when taken together, shall
constitute one and the same instrument.
20. Successors and Assigns. This Agreement shall be (i) binding upon
all successors and assigns of the Company, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, and (ii) shall
be binding upon and inure to the benefit of any successors and assigns, heirs,
and personal or legal representatives of the Indemnitee.
21. Amendment; Waiver. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
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IN WITNESS WHEREOF, the Company and the Indemnitee have executed this
Agreement as of the day and year first above written.
PEACHTREE SOFTWARE, INC.
By:
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Name:
Title:
INDEMNITEE
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Name:
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