EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered
into as of July 5, 2005, by and between MACROVISION CORPORATION, a Delaware
corporation (the "Corporation") and XXXXXX X. XXXXXXX ("Indemnitee"):
WHEREAS, the Board of Directors has determined that the ability to
attract and retain qualified persons as directors and officers is essential to
the best interests of the Corporation's stockholders and that the Corporation
should act to assure such persons that there will be adequate certainty of
protection through insurance and indemnification against risks of claims and
actions against them arising out of their service to and activities on behalf of
the Corporation; and
WHEREAS, in order to induce and encourage highly experienced and capable
persons such as Indemnitee to serve and continue to serve as directors and
officers of the Corporation and in any other capacity with respect to the
Corporation, and to otherwise promote the desirable end that such persons will
resist what they consider unjustified lawsuits and claims made against them in
connection with the good faith performance of their duties to the Corporation,
with the knowledge that certain costs, judgments, penalties, fines, liabilities
and expenses incurred by them in their defense of such litigation are to be
borne by the Corporation and they will receive the maximum protection against
such risks and liabilities as may be afforded by law, the Board of Directors of
the Corporation has determined that the following Agreement is reasonable and
prudent to promote and ensure the best interests of the Corporation and its
stockholders; and
WHEREAS, the Corporation desires to have Indemnitee continue to serve as
a director or officer of the Corporation and in such other capacity with respect
to the Corporation as the Corporation may request, as the case may be, free from
undue concern for unpredictable, inappropriate or unreasonable legal risks and
personal liabilities by reason of Indemnitee acting in good faith in the
performance of Indemnitee's duty to the Corporation; and Indemnitee desires to
continue so to serve the Corporation, provided, and on the express condition,
that he or she is furnished with the indemnity set forth hereinafter;
WHEREAS, this Agreement is a supplement to and in furtherance of Article
V of the Amended and Restated Certificate of Incorporation of the Corporation
(the "Certificate"), Article VI of the By-Laws of the Corporation (the
"By-Laws"), the General Corporation Law of the Sate of Delaware ("DGCL") and the
rights granted under the Certificate, the By-Laws, the DGCL and any resolutions
adopted pursuant thereto, and nothing contained in this Agreement shall be
deemed to be a substitute therefor or construed to diminish or abrogate any
rights of Indemnitee thereunder; and
WHEREAS, Indemnitee may serve, continue to serve and to take on
additional service for or on behalf of the Corporation.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Corporation and Indemnitee do hereby covenant and agree as
follows:
Section 1 DEFINITIONS. For purposes of this Agreement:
(a) "Affiliate" includes any corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise directly or indirectly
owned by the Corporation.
(b) "Corporate Status" means the status of a person who is
or was a director, officer, employee, agent or fiduciary of the Corporation or
any majority owned subsidiary of the Corporation, or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the Corporation.
(c) "Change in Control" shall be deemed to have occurred if:
(1) any person, as that term is used in Section
13(d) and Section 14(d)(2) of the Exchange Act, becomes, is discovered to be, or
files a report on Schedule 13D or 14D-1 (or any successor schedule, form or
report) disclosing that such person is a beneficial owner (as defined in Rule
13d-3 under the Exchange Act or any successor rule or regulation), directly or
indirectly, of securities of the Corporation representing 50% or more of the
total voting power of the Corporation's then outstanding Voting Securities;
(2) individuals who, as of the date of this
Agreement, constitute the Board of Directors of the Corporation cease for any
reason to constitute at least a majority of the Board of Directors of the
Corporation, unless any such change is approved by a majority of the members of
the Board of Directors of the Corporation in office immediately prior to such
cessation;
(3) the Corporation, or any material subsidiary of
the Corporation, is merged, consolidated or reorganized into or with another
corporation or legal person (an "Acquiring Person") or securities of the
Corporation are exchanged for securities of an Acquiring Person, and immediately
after such merger, consolidation, reorganization or exchange less than a
majority of the combined voting power of the then outstanding securities of the
Acquiring Person immediately after such transaction are held, directly or
indirectly, in the aggregate by the holders of Voting Securities immediately
prior to such transaction;
(4) the Corporation, or any material subsidiary of
the Corporation, in any transaction or series of related transactions, sells or
otherwise transfers all or substantially all of its assets to an Acquiring
Person, and less than a majority of the combined voting power of the then
outstanding securities of the Acquiring Person immediately after such sale or
transfer is held, directly or indirectly, in the aggregate by the holders of
Voting Securities immediately prior to such sale or transfer;
(5) the Corporation and its subsidiaries, in any
transaction or series of related transactions, sells or otherwise transfers
business operations that generated seventy percent (70%) or more of the
consolidated revenues (determined on the basis of the Corporation's four most
recently completed fiscal quarters) of the Corporation and its subsidiaries
immediately prior thereto;
(6) the Corporation files a report or proxy
statement with the Securities and Exchange Commission pursuant to the Exchange
Act disclosing that a change in control of the Corporation has or may have
occurred or will or may occur in the future pursuant to any then existing
contract or transaction; or
(7) any other transaction or series of related
transactions occur that have substantially the effect of the transactions
specified in any of the preceding clauses in this definition.
Notwithstanding the provisions of Section (c)(1) or
(c)(4), unless otherwise determined in a specific case by majority vote of the
Board of Directors of the Corporation, a Change of Control shall not be deemed
to have occurred for purposes of this Agreement solely because (i) the
Corporation, (ii) an entity in which the Corporation directly or indirectly
beneficially owns 50% or more of the voting securities or (iii) any Corporation
sponsored employee stock ownership plan, or any other employee benefit plan of
the Corporation, either files or becomes obligated to file a report or a proxy
statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or
Schedule 14A (or any successor schedule, form or report or item therein) under
the Exchange Act, disclosing beneficial ownership by it of shares of stock of
the Corporation, or because the Corporation reports that a Change in Control of
the Corporation has or may have occurred or will or may occur in the future by
reason of such beneficial ownership.
(d) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(e) "Expenses" includes, without limitation, all reasonable
attorneys' fees, expenses of accountants and other advisors, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, the premium, security for, and other costs relating to
any bond (including bond costs, appraisal bonds or their equivalents) and all
other disbursements or expenses of the types customarily incurred in connection
with prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding.
(f) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Corporation or Indemnitee in any other 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.
(g) "Potential Change in Control" shall be deemed to have
occurred if (i) the Corporation enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control; (ii) any person
(including the Corporation) publicly announces an intention to take or to
consider taking actions which, if consummated, would constitute a Change in
Control; (iii) any person, other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation or a corporation
owned, directly or indirectly, by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of the
Corporation, who is or becomes the beneficial owner, directly or indirectly, of
securities of the Corporation representing 9.5% or more of the combined voting
power of the Corporation's then outstanding Voting Securities, increases such
person's beneficial ownership of such securities by five percentage points or
more over the initial percentage of such securities; or (iv) the Board of
Directors of the Corporation adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(h) "Proceeding" means any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative, including one initiated by an
Indemnitee pursuant to Section 11 of this Agreement to enforce his or her rights
under this Agreement.
(i) "Voting Securities" means any securities of the
Corporation which vote generally in the election of directors.
Section 2. SERVICES BY INDEMNITEE. Indemnitee may at any time and for
any reason resign from any position (subject to any other contractual obligation
or any obligation imposed by operation of law), without affecting the
indemnification hereunder, except as specifically provided in this Agreement.
Section 3. INDEMNIFICATION - GENERAL. The Corporation shall
indemnify, and pay Expenses to, Indemnitee as provided in this Agreement 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.
The rights of Indemnitee provided under the preceding sentence shall include,
but shall not be limited to, the rights set forth in the other sections of this
Agreement.
Section 4. 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 if, by reason of his or her Corporate Status, he or
she is, or is threatened to be made, a party to any contemplated, pending or
completed Proceeding, other than a Proceeding by or in the right of the
Corporation. Pursuant to this Section 4, Indemnitee shall be indemnified against
Expenses, losses, claims, liabilities, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by him or her or on his or
her behalf in connection with any such Proceeding or any claim, issue or matter
therein, if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal Proceeding, had no reasonable cause to believe his
or her conduct was unlawful. For purposes of this Section 4, Indemnitee shall be
deemed to have acted in good faith if Indemnitee's action is based on the
records or the books of account of the Corporation or an Affiliate, including
financial statements, or on information supplied to the Indemnitee by the
officers of the Corporation or an Affiliate in the course of their duties, or on
the advice of legal counsel for the Corporation or an Affiliate by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or an Affiliate.
Section 5. PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 5 if, by reason of his or her Corporate Status, he or she is, or is
threatened to be made, a party to any contemplated, pending, or completed
Proceeding brought by or in the right of the Corporation to procure a judgment
in its favor. Pursuant to this Section 5, Indemnitee shall be indemnified
against Expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or her or on his or her behalf in
connection with any such Proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation. Notwithstanding the foregoing, no indemnification
against such Expenses shall be made in respect of any claim, issue or matter in
any such Proceeding as to which Indemnitee shall have been adjudged to be liable
to the Corporation if applicable law expressly prohibits such indemnification
unless and only to the extent that the Chancery Court of the State of Delaware
or the court in which such Proceeding shall have been brought or is pending,
shall determine that indemnification against Expenses may nevertheless be made
by the Corporation. For purposes of this Section 5, Indemnitee shall be deemed
to have acted in good faith if Indemnitee's action is based on the records or
the books of account of the Corporation or an Affiliate, including financial
statements, or on information supplied to the Indemnitee by the officers of the
Corporation or an Affiliate in the course of their duties, or on the advice of
legal counsel for the Corporation or an Affiliate by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Corporation or an Affiliate.
Section 6. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his or her Corporate Status, a party to
and is successful, on the merits or otherwise, in any Proceeding, he or she
shall be indemnified against all Expenses actually and reasonably incurred by
him or her or on his or her behalf 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, the Corporation shall indemnify Indemnitee, to the maximum extent
permitted by law, against all Expenses actually and reasonably incurred by him
or her or on his or her behalf in connection with each successfully resolved
claim, issue or matter. For the purposes of this Section and without
limiting the foregoing, the Indemnitee shall be deemed to be successful as to a
claim, issue or matter upon the following : (i) the termination of any such
claim, issue or matter by dismissal with or without prejudice, and (ii) the
termination of any such claim, issue or matter by any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, unless it is established in such Proceeding that Indemnitee did
not meet the applicable standard for indemnification set forth in the General
Corporation Law of Delaware.
Section 7. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his or her Corporate Status, a witness in any Proceeding, he or she
shall be indemnified against all Expenses actually and reasonably incurred by
him or her or on his or her behalf in connection therewith.
Section 8. PAYMENT OF EXPENSES. The Corporation shall pay all
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within 20 days after the receipt by the Corporation of a statement or
statements from Indemnitee requesting such payment from time to time, whether
prior to or after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by Indemnitee and, if
the General Corporation Law of Delaware requires, shall include or be preceded
or accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses paid if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal that Indemnitee is not entitled
to be indemnified against such Expenses. Indemnitee's undertaking to pay any
such amounts is not required to be secured. Indemnitee's entitlement to such
Expenses shall include those incurred in connection with any Proceeding by
Indemnitee seeking a judgment in court or an adjudication or award in
arbitration pursuant to this Agreement, including the establishment of any right
to indemnification pursuant to this Agreement and enforcement of this provision.
Section 9. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(a) To obtain indemnification under this Agreement in
connection with any Proceeding, and for the duration thereof, 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
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Corporation shall, promptly upon receipt
of any such request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to Section 9(a) hereof, a determination with respect to Indemnitee's
entitlement thereto shall be made in such case: (i) (A) by the Board by a
majority vote of a quorum consisting of Disinterested Directors, or (B) if a
quorum of the Board consisting of Disinterested Directors is not obtainable, or
even if such quorum is obtainable, if such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee; or (ii) as provided in Section 10(b) of
this Agreement. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 30 days after such
determination. Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to Indemnitee's entitlement to
indemnification, 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.
(c) If required, Independent Counsel shall be selected by
the Board, and the Corporation shall give written notice to Indemnitee advising
him or her of the identity of Independent Counsel so selected. Indemnitee may
within seven days after such written notice of selection shall have been given,
deliver to the Corporation, a written objection to such selection. Such
objection may be asserted only on the grounds that Independent Counsel so
selected does not meet the requirements of "Independent Counsel" as defined in
Section 1 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. If such written objection is
made, Independent Counsel so selected may not serve as Independent Counsel
unless and until a court has determined that such objection is without merit.
If, within 30 days after submission by Indemnitee of a written request for
indemnification pursuant to Section 9(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Corporation or Indemnitee may
petition the Chancery Court of the State of Delaware, or other court of
competent jurisdiction, for resolution of any objection which shall have been
made by the Corporation or Indemnitee to the other's selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by such court or by such other person as such court shall designate, and the
person with respect to whom an objection is so resolved or the person so
appointed shall act as Independent Counsel under Section 9(b) hereof. The
Corporation shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with its actions
pursuant to this Agreement, and the Corporation shall pay all reasonable fees
and expenses incident to the procedures of this Section 9(c), regardless of the
manner in which such Independent Counsel was selected or appointed. Upon the due
commencement date of any judicial proceeding or arbitration pursuant to Section
11(a)(iii) of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
(d) Any Expenses incurred by Indemnitee in connection with a
request for indemnification or payment of Expenses under this Agreement, under
any other agreement, any provision of the Corporation's By-Laws or any
directors' and officers' liability insurance, shall be borne by the Corporation.
The Corporation hereby indemnifies Indemnitee for any such Expense and agrees to
hold Indemnitee harmless therefrom irrespective of the outcome of the
determination of Indemnitee's entitlement to indemnification. If the person(s)
making the determination with respect to Indemnitee's entitlement to
indemnification determine that Indemnitee is entitled to indemnification as to
part (but not all) of the application for indemnification, such person shall
reasonably prorate such partial indemnification among the claims, issues or
matters at issue at the time of the determination.
Section 10. PRESUMPTION AND EFFECTS OF CERTAIN PROCEEDINGS.
(a) 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
accordance with Section 9(a) 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.
(b) If the person, persons or entity empowered or selected
under Section 9 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within 90 days after receipt
by the Corporation of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) absent actual and material
fraud in the request for indemnification, or (ii) prohibition of such
indemnification under applicable law.
(c) The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, adversely affect the rights of Indemnitee to
indemnification hereunder except as may be specifically provided herein, or
create a presumption that Indemnitee did not act in good faith and in a manner
which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation or create a presumption that (with respect to any
criminal action or proceeding) Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
(d) Neither the failure of the Corporation (including its
directors who are not parties to an action, a committee of such directors,
independent legal counsel, or its stockholders) to have made a determination
that indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its directors who are not parties to an action, a committee of such
directors, independent legal counsel, or its stockholders) that Indemnitee has
not met such applicable standard of conduct, shall create a presumption that
Indemnitee has not met the applicable standard of conduct or, in the case of an
action brought by Indemnitee, be a defense to such action.
Section 11. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant
to Section 9 of this Agreement that Indemnitee is not entitled to
indemnification hereunder, (ii) payment of Expenses is not timely made pursuant
to Section 8 of this Agreement, (iii) the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 9(b) of
this Agreement and such determination shall not have been made and delivered in
a written opinion within 90 days after receipt by the Corporation of the request
for indemnification, (iv) payment of indemnification is not made pursuant to
Section 9(b) of this Agreement within 30 days after receipt by the Corporation
of a written request therefor, or (v) payment of indemnification is not made
within 30 days after a determination has been made that Indemnitee is entitled
to indemnification or such determination is deemed to have been made pursuant to
Section 9 or 10 of this Agreement, Indemnitee shall be entitled to an
adjudication in the Chancery Court of the State of Delaware, or in any other
court of competent jurisdiction, of his or her entitlement to such
indemnification or payment of Expenses. Alternatively, Indemnitee, at his or her
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. Indemnitee shall
commence such proceeding seeking an adjudication or award in arbitration within
180 days following the date on which Indemnitee has the right to commence such
proceeding pursuant to this Section 11(a). The Corporation shall not oppose
Indemnitee's right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Section 9 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 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.
(c) If a determination shall have been made or deemed to
have been made pursuant to Section 9 or 10 of this Agreement that Indemnitee is
entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 11, and is precluded from asserting that such determination has not
been made or that the procedure by which such determination was made is not
valid, binding and enforceable, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) prohibition of such indemnification under applicable
law. If the court or arbitrator shall determine that Indemnitee is entitled to
any indemnification or payment of Expenses hereunder, the Corporation
shall pay all Expenses actually and reasonably incurred by Indemnitee in
connection with such adjudication or award in arbitration (including, but not
limited to, any appellate Proceedings).
(d) To the extent deemed appropriate by the court, interest
shall be paid by the Corporation to Indemnitee at a reasonable interest rate for
amounts which the Corporation indemnifies or is obliged to indemnify Indemnitee
for the period commencing with the date on which Indemnitee requested
indemnification (or payment of expenses) and ending with the date on which such
payment is made to Indemnitee by the Corporation.
(e) In the event that Indemnitee, pursuant to this Section
11, seeks a judicial adjudication of, or an award in arbitration to enforce, his
or her rights under, or to recover damages for breach of, this Agreement, or the
Corporation brings any such action to recover from Indemnitee any payment of
Expenses, Indemnitee shall be entitled to recover from the Corporation, and
shall be indemnified by the Corporation against, any and all expenses (of the
kinds described in the definition of Expenses) actually and reasonably incurred
by him or her in such judicial adjudication or arbitration, but only if he or
she prevails therein in whole or in part. If it shall be determined in such
judicial adjudication or arbitration that Indemnitee is entitled to receive part
but not all of the indemnification or payment of expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated.
Section 12. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION.
(a) The rights of Indemnitee hereunder shall be in addition
to any other rights Indemnitee may have under the Certificate of Incorporation,
the Bylaws, the DGCL, any agreement, a vote of the stockholders, a resolution of
directors or otherwise. No amendment, alteration or repeal of this Agreement or
of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee
acting in his or her Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in the DGCL (whether by statute or judicial
decision), the Certificate of Incorporation or the Bylaws permits greater
indemnification by agreement than would be afforded currently under the
Certificate of Incorporation, the Bylaws 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. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or remedy.
(b) 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.
(c) 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.
Section 13. DURATION OF AGREEMENT. This Agreement shall be binding
upon the Corporation and its successors and assigns (including, but not limited
to, any transferee of all or substantially all of its assets and any successor
by merger or operation of law) and shall inure to the benefit of Indemnitee and
his or her heirs, executors and administrators.
Section 14. SEVERABILITY; PRIOR INDEMNIFICATION AGREEMENTS. 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. This Agreement shall supersede and replace
any prior indemnification agreements entered into by and between the Corporation
and Indemnitee and any such prior agreements shall be terminated upon execution
of this Agreement.
Section 15. EXCEPTION TO RIGHT OF INDEMNIFICATION OR PayMENT OF
EXPENSES. Except as otherwise provided in this Agreement, Indemnitee shall not
be entitled to indemnification or payment of Expenses under this Agreement with
respect to any Proceeding, or any claim therein brought or made by him or her
against the Corporation.
Section 16. 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.
Section 17. HEADINGS; REFERENCES; PRONOUNS. The headings of the
paragraphs 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. References herein to section numbers are to sections of this Agreement
unless otherwise provided. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as
appropriate.
Section 18. 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.
Section 19. NOTICE BY INDEMNITEE. Promptly after receipt by Indemnitee
of notice of any Proceeding, Indemnitee will, if a claim in respect thereof is
to be made against the Corporation under this Agreement, notify the Corporation
in writing of the commencement thereof; but the omission so to notify the
Corporation will not relieve it from any liability that it may have to
Indemnitee.
Section 20. 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 such
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 to Indemnitee at his or her address set
forth in the Corporation's records and to the Corporation at its principal
executive offices, 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.
Section 21. 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.
Section 22. CHANGE OF CONTROL. The Corporation agrees that if there is
a Change in Control of the Corporation (other than a Change in Control which has
been approved by two- thirds or more of the Corporation's Board of Directors who
were directors immediately prior to such Change in Control) then with respect to
all matters thereafter arising concerning the rights of Indemnitee to indemnity
payments and Expenses under this Agreement or any other agreement, the Bylaws or
Certificate of Incorporation now or hereafter in effect relating to Proceedings
for indemnifiable events, the Corporation shall seek legal advice only from
Independent Counsel selected by Indemnitee and approved by the Corporation
(which approval shall not be unreasonably withheld or delayed). In the event
that Indemnitee and the Corporation are unable to agree on the selection of the
Independent Counsel, such Independent Counsel shall be selected by lot from
among at least five law firms with offices in the State of Delaware having more
than fifty attorneys, having a rating of "av" or better in the then current
Martindale Xxxxxxx Law Directory and having attorneys which specialize in
corporate law. Such selection shall be made in the presence of Indemnitee (and
his legal counsel or either of them, as Indemnitee may elect). Such counsel,
among other things, shall, within 90 days of its retention, 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 pay the reasonable fees of the special independent counsel
referred to above and to fully indemnify such 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.
Section 23. LIABILITY INSURANCE. To the extent the Corporation
maintains an insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee 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 Corporation director or officer. If, at the time the
Corporation receives notice from any source of a Proceeding as to which
Indemnitee is a party or a participant (as a witness or otherwise), the
Corporation has director and officer liability insurance in effect, the
Corporation shall give prompt notice of such Proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The
Corporation shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a
result of such Proceeding in accordance with the terms of such policies. In the
event of a Potential Change in Control, the Corporation shall maintain in force
any and all insurance policies then maintained by the Corporation providing
directors' and officers' liability insurance, in respect of Indemnitee, for a
period of six years thereafter. The Corporation shall indemnify Indemnitee for
Expenses incurred by Indemnitee in connection with any successful action brought
by Indemnitee for recovery under any insurance policy referred to in this
Section and shall advance to Indemnitee the Expenses of such action.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
MACROVISION CORPORATION, INDEMNITEE
a Delaware corporation
By: /s/ Xxxxxx Xxxxx /s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
