Form of Indemnification Agreement with Directors and Officers
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") dated as of _______ __,
1997 by and between Marcam Solutions, Inc., a Delaware corporation (the
"Company"), and ___________, a [director and officer] of the Company (the
"Indemnitee"):
WITNESSETH:
WHEREAS, the Indemnitee is presently serving as a [director and officer] of
the Company, and the Company desires the Indemnitee to continue in such
capacity;
WHEREAS, the Indemnitee is willing, subject to certain conditions
(including the execution and performance of this Agreement by the Company), to
continue in that capacity;
WHEREAS, in addition to the indemnification to which the Indemnitee is
entitled under the Company's certificate of incorporation (the "Certificate"),
the Company maintains at its sole expense insurance protecting its officers and
directors (including the Indemnitee) against certain losses arising out of
actual or threatened actions, suits or proceedings to which such persons may be
made, or threatened to be made, parties; and
WHEREAS, as a result of circumstances having no relation to, and beyond the
control of, the Company and the Indemnitee, there can be no assurance of the
continuation or renewal of that insurance;
NOW, THEREFORE, to induce the Indemnitee to continue to serve in his
present capacity and in consideration of these premises and the mutual
agreements set forth in this Agreement, the Company and the Indemnitee agree as
follows:
1. Continued Service. The Indemnitee will continue to serve as a [director
and officer] of the Company so long as he is duly elected and qualified in
accordance with the Certificate and the Company's by-laws (the "By-Laws") or
until he resigns, dies or is removed in accordance with applicable law.
2. Initial Indemnity. (a) The Company shall indemnify the Indemnitee who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Company) by
reason of the fact that he is or was or had agreed to become a director,
officer, employee or agent of the Company, or is or was serving or had agreed to
serve at the request of the Company as a director, officer, trustee, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any actual or alleged act or failure to act in such
capacity, against any and all costs, charges and expenses (including attorneys'
and others' fees and expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with such
action, suit or proceeding (and any appeal therefrom) if the Indemnitee acted in
good faith and in a
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manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendre or its equivalent shall not, of itself, create a
presumption that the Indemnitee did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe his conduct was unlawful.
(b) The Company shall indemnify the Indemnitee who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by or in the right of the Company to procure a judgment in
its favor by reason of the fact that he is or was or had agreed to become a
director, officer, employee or agent of the Company, or is or was serving or had
agreed to serve at the request of the Company as a director, officer, trustee,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any and all costs, charges and expenses (including
attorneys' and others' fees and expenses) actually and reasonably incurred by
the Indemnitee in connection with the defense or settlement of such action, suit
or proceeding (or any appeal therefrom) if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company and except that no indemnification shall be made in respect of any
claim, issue or matter as to which the Indemnitee shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of Chancery
or the court in which such action, suit or proceeding was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To the extent that the Indemnitee has been successful on the merits
or otherwise, including (without limitation) the dismissal of an action without
prejudice, in any action, suit or proceeding referred to in Sections 2(a) or
2(b), or in defense of any claim, issue or matter therein, the Indemnitee shall
be indemnified against costs, charges and expenses (including attorneys' and
others' fees and expenses) actually and reasonably incurred by the Indemnitee in
connection therewith.
(d) Any indemnification under Sections 2(a) or 2(b) (unless ordered by a
court) shall be made by the Company only as authorized in the specific case upon
a determination, made in accordance with this Section 2(d), Section 4 or any
applicable provision of the Certificate, By-Laws, other agreement, resolution or
otherwise, that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
Sections 2(a) or 2(b). Such determination shall be made (i) by a majority vote
of the directors who are not parties to such action, suit or proceeding, even
though less than a quorum of the entire Board of Directors of the Company (the
"Board"), (ii) by a committee of such directors designated by majority vote of
such directors, even though less than a quorum of the entire Board, (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel (designated in the manner provided below in this subsection (d))
in a written opinion or (iv) by the stockholders of the Company (the
"Stockholders"). In addition, if
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the Indemnitee is not an officer or director of the Company at the time of such
determination, such determination may also be made by a majority vote of the
directors who then constitute the entire Board, at a meeting at which a quorum
is present and acting. Independent legal counsel shall be designated by vote of
a majority of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum of the entire Board; provided,
however, that if such directors are unable or fail to so designate, such
designation shall be made by the Indemnitee subject to the approval of a
majority of such directors (which approval shall not be unreasonably withheld).
Independent legal counsel shall not be any person or firm who, under the
applicable standards professional conduct then prevailing, would have a conflict
of interest in representing either the Company or the Indemnitee in an action to
determine the Indemnitee's rights under this Agreement. The Company shall pay
the reasonable fees and expenses of such independent legal counsel and to
indemnify fully such counsel against costs, charges and expenses (including
attorneys' and others' fees and expenses) actually and reasonably incurred by
such counsel in connection with this Agreement or the opinion of such counsel
pursuant hereto.
(e) All expenses (including attorneys' and others' fees and expenses)
incurred by the Indemnitee in defending an actual or threatened civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
in the manner prescribed by Section 4(b).
(f) The Company shall not adopt any amendment to the Certificate or
By-Laws the effect of which would be to deny, diminish or encumber the
Indemnitee's rights to indemnity pursuant to the Certificate, By-Laws, the
General Corporation Law of the State of Delaware (the "DCGL") or any other
applicable law as applied to any act or failure to act occurring in whole or in
part prior to the date (the "Effective Date") upon which the amendment was
approved by the Board or the Stockholders, as the case may be. If the Company
shall adopt any amendment to the Certificate or By-Laws the effect of which
would be to so deny, diminish or encumber the Indemnitee's rights to indemnity,
such amendment shall apply only to acts or failures to act occurring entirely
after the Effective Date thereof.
3. Additional Indemnification. (a) Pursuant to Section 145(f) of the DCGL,
without limiting any right which the Indemnitee may have pursuant to Section 2,
the Certificate, the By-Laws, the DCGL, any vote of stockholders or
disinterested directors, any policy of insurance or otherwise, but subject to
the limitations on the maximum permissible indemnity which may exist under
applicable law at the time of any request for indemnity hereunder determined as
contemplated by Section 3(a), the Company shall indemnify the Indemnitee against
any amount which he is or becomes legally obligated to pay relating to or
arising out of any claim made against him because of any actual or alleged act,
failure to act, neglect or breach of duty, including any actual or alleged
error, misstatement or misleading statement, which he commits, suffers, permits
or acquiesces in while acting in his capacity as a director, officer, employee
or agent of the Company, or, at the request of the Company, as a director,
officer, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The payments which the Company is obligated
to make pursuant to this Section 3 shall include (without limitation) damages,
judgments, settlements and charges, costs, expenses, expenses of
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investigation and expenses of defense of legal actions, suits, proceedings or
claims and appeals therefrom, and expenses of appeal, attachment or similar
bonds; provided, however, that the Company shall not be obligated under this
Section 3(a) to make any payment in connection with any claim against the
Indemnitee if a final judgment or other final adjudication adverse to the
Indemnitee establishes that his acts or omissions (i) were in breach of his duty
of loyalty to the Company or the Stockholders, (ii) were not in good faith or
involved intentional misconduct or a knowing violation of law, (iii) resulted in
him being liable under Section 174 of the DGCL, or (iv) resulted in receipt by
the Indemnitee of an improper personal benefit. The determination of whether the
Indemnitee shall be entitled to indemnification under this Section 3(a) may be,
but shall not be required to, be made in accordance with Section 4(a). If that
determination is so made, it shall be binding upon the Company and the
Indemnitee for all purposes.
(b) Expenses (including without limitation attorneys' and others'
fees and expenses) incurred by Indemnitee in defending any actual or threatened
civil or criminal action, suit, proceeding or claim shall be paid by the Company
in advance of the final disposition thereof as authorized in accordance with
Section 4(b).
4. Certain Procedures Relating to Indemnification and Advancement of
Expenses. (a) Except as otherwise permitted or required by the DCGL, for
purposes of pursuing the Indemnitee's rights to indemnification under Sections
2(a), 2(b) or 3(a), as the case may be, the Indemnitee may, but shall not be
required to, (i) submit to the Board a request for indemnification substantially
in the form of Exhibit A (the "Indemnification Statement") averring that he is
entitled to indemnification hereunder; and (ii) present to the Company
reasonable evidence of all expenses for which payment is requested. Submission
of an Indemnification Statement to the Board shall create a presumption that the
Indemnitee is entitled to indemnification under Sections 2(a), 2(b) or 3(a), as
the case may be, and it shall be deemed to have determined by the appropriate
body or person (including the Board, the directors who are not parties to the
particular action, suit or proceeding at issue (or a committee thereof),
independent legal counsel or the Stockholders, as the case may be) that the
Indemnitee is entitled to such indemnification unless within 30 calendar days
after submission of the Indemnification Statement such body or person shall
determine in accordance with Section 2(d), based upon clear and convincing
evidence (sufficient to rebut the foregoing presumption), and the Indemnitee
shall have received notice within such period in writing of such determination,
that the Indemnitee is not so entitled to indemnification because the Indemnitee
failed to meet the standard of conduct set forth in Sections 2(a), 2(b) or 3(a),
as the case may be, which notice shall disclose with particularity the evidence
in support of such determination. The foregoing notice shall be signed by the
director presiding as chairman at the meeting at which the vote to deny
indemnification was taken or, if the action to deny indemnification was by
written consent without a meeting, signed by all persons who participated in the
determination and voted to deny indemnification. The provisions of this Section
4(a) are intended to be procedural only and shall not affect the right of the
Indemnitee to indemnification under this Agreement, and any determination that
the Indemnitee is not entitled to indemnification and any failure to make the
payments requested in the Indemnification Statement shall be subject to judicial
review.
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(b) For purposes of determining whether to authorize advancement
of expenses pursuant to Sections 2(e), the Indemnitee shall submit to the Board
a request for advancement of expenses substantially in the form of Exhibit B
(the "Undertaking"), averring that (i) he has reasonably incurred or will
reasonably incur actual expenses in defending an actual or threatened action,
suit, proceeding or claim, whether civil, criminal, administrative or
investigative, and (ii) he undertakes to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Company under this Agreement or otherwise. For purposes of requesting
advancement of expenses pursuant to Section 3(b), the Indemnitee may, but shall
not be required to, submit an Undertaking or such other form of request as he
determines to be appropriate (an "Expense Request"). Upon receipt of an
Undertaking or Expense Request, as the case may be, the Board shall, within 10
calendar days, authorize immediate payment of the expenses stated in the
Undertaking or Expense Request, as the case may be, whereupon such payments
shall immediately be made by the Company. No security shall be required in
connection with any Undertaking or Expense Request and any Undertaking or
Expense Request shall be accepted without reference to the Indemnitee's ability
to make repayment. For purposes of pursuing his rights to advancement of
expenses hereunder, the Indemnitee shall present to the Company reasonable
evidence of all expenses for which advancement is requested, including
appropriate invoices.
5. Subrogation; Duplication of Payments. (a) 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.
(b) The Company shall not be liable under this Agreement to make
any payment in connection with any claim made against the Indemnitee to the
extent the Indemnitee has actually received payment (under any insurance policy,
the Certificate, the By-Laws or otherwise) of the amounts otherwise payable
hereunder.
6. Enforcement. (a) If a claim for indemnification made to the Company
pursuant to Section 4 is not paid in full by the Company within 30 calendar days
after a written claim has been received by the Company, the Indemnitee may at
any time thereafter bring suit against the Company to recover the unpaid amount
of the claim.
(b) In any action brought under Section 6(a), it shall be a
defense to a claim for indemnification pursuant to Sections 2(a) or 2(b) (other
than an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the Undertaking, if any is
required, has been tendered to the Company) that the Indemnitee has not met the
standards of conduct which make it permissible under the DCGL for the Company to
indemnify the Indemnitee for the amount claimed, but the burden or proving such
defense shall be on the Company. Neither the failure of the Company (including
the Board, the directors who are not parties to the particular action, suit or
proceeding at issue (or a committee thereof), independent legal counsel or the
Stockholders) to have made a determination prior to commencement of such action
that indemnification of the Indemnitee is proper in the
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circumstances because he has met the applicable standard of conduct set forth in
the DCGL, nor an actual determination by the Company (including the Board, the
directors who are not parties to the particular action, suit or proceeding at
issue (or a committee thereof), independent legal counsel or the Stockholders)
that the Indemnitee has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the Indemnitee has not met
the applicable standard of conduct.
(c) The Indemnitee shall not be required to incur the expenses
associated with the enforcement of his rights under this Agreement by litigation
or other legal action because the cost and expense thereof would substantially
detract from the benefits intended to be extended to the Indemnitee hereunder.
Accordingly, if the Company has failed to comply with any of its obligations
under this Agreement or if the Company or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any action, suit or
proceeding designed (or having the effect of being designed) to deny, or to
recover from, the Indemnitee the benefits intended to be provided to the
Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee from
time to time, at the expense of the Company as hereinafter provided, to retain
counsel to represent the Indemnitee in connection with the initiation or defense
of any such action, suit or proceeding, whether by or against the Company or any
director, officer, stockholder or other person, in any jurisdiction. Regardless
of the outcome thereof, the Company shall pay and be solely responsible for any
and all costs, charges and expenses (including attorneys' and others' fees and
expenses) reasonably incurred by the Indemnitee (i) as a result of the Company's
failure to perform this Agreement or any provision hereof or (ii) as a result of
the Company or any person contesting the validity or enforceability of this
Agreement or any provision hereof as aforesaid.
7. Counsel. Except as provided in Section 6(c), with respect to any
action, suit, proceeding or claim for which indemnification or advancement of
expenses may be sought pursuant to this Agreement and upon request of the
Indemnitee after the Indemnitee has submitted an Indemnification Statement to
the Board, the Company shall retain counsel reasonably satisfactory to the
Indemnitee to represent the Indemnitee and any other party the Company may
designate (which may include the Company) in connection with the action, suit,
proceeding or claim to which the Indemnification Statement relates. In
connection with any such action, suit, proceeding or claim, the Indemnitee shall
have the right to retain his own counsel at his own expense, except that the
fees and expenses of such counsel retained by the Indemnitee shall be expenses
for which indemnification and advancement shall be available under this
Agreement if (i) the Company and the Indemnitee shall have agreed to the
retention of such counsel or (ii) the parties named or threatened to be named in
any such action, suit, proceeding or claim (including impleaded parties)
include, in addition to the Indemnitee, the Company or another party who may be
indemnified by the Company and representation of more than one party by the same
counsel would be inappropriate due to actual or, in the reasonable opinion of
the Indemnitee, potential conflicts of interests between them.
8. Merger or Consolidation. If the Company shall be a constituent
corporation in a consolidation, merger or other reorganization, the Company, if
it shall not be the surviving, resulting
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or other corporation therein, shall require as a condition thereto the
surviving, resulting or acquiring corporation to agree to indemnify the
Indemnitee to the full extent provided in this Agreement. Whether or not the
Company is the resulting, surviving or acquiring corporation in any such
transaction, the Indemnitee shall also stand in the same position under this
Agreement with respect to the resulting, surviving or acquiring corporation as
he would have with respect to the Company if its separate existence had
continued.
9. Nonexclusivity and Severability. (a) The right to indemnification and
advancement of expenses provided by, or granted pursuant to, this Agreement
shall not be exclusive of any other rights to which the Indemnitee may be
entitled under the Certificate, By-Laws, the DCGL, any other statute, insurance
policy, agreement, vote of stockholders or directors or otherwise, both as to
actions in his official capacity and as to actions in another capacity while
holding such office.
(b) If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid, unenforceable
or otherwise illegal, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
11. Modification; Survival. This Agreement contains the entire agreement
of the parties relating to the subject matter hereof. This Agreement may be
modified only by an instrument in writing signed by both parties hereto. The
right to indemnification and advancement of expenses provided by, or granted
pursuant to, this Agreement shall continue after the Indemnitee has ceased to be
a director, officer, trustee, employee or agent and shall inure to the benefit
of his heirs, executors and administrators.
12. Certain Terms. (a) For purposes of this section, references to "the
Company" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this Agreement with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on Indemnitee with respect to any employee
benefit plan; and references to "serving at the request
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of the Company" shall include any service as a director, officer, trustee,
employee or agent of the Company which imposes duties on, or involves services
by, the Indemnitee with respect to an employee benefit plan, its participants or
beneficiaries; references to the masculine shall include the feminine;
references to the singular shall include the plural and vice versa; and if the
Indemnitee acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
he shall be deemed to have acted in a manner "not opposed to the best interests
of the Company" as referenced to herein.
13. Headings and Interpretation. When a reference is made in this
Agreement to Sections or Exhibits, such references shall be to a Section or
Exhibit to this Agreement unless otherwise indicated.
IN WITNESS WHEREOF, the Company and the Indemnitee have duly executed
this Agreement as of the date first above written.
MARCAM SOLUTIONS, INC. _________________________________
Indemnitee
By:________________________________
Title:_____________________________
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Exhibit A
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INDEMNIFICATION STATEMENT
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This Indemnification Statement is submitted pursuant to the
Indemnification Agreement dated as of ________ __, 1997 between Marcam
Solutions, Inc., a Delaware corporation (the "Company"), and the undersigned.
I am requesting indemnification against charges, costs, expenses
(including attorneys' and others' fees and expenses), judgments, fines and
amounts paid in settlement, all of which (collectively, "Liabilities") have been
or will be incurred by me in connection with an actual or threatened action,
suit, proceeding or claim to which I am a party or am threatened to be made a
party.
With respect to all matters related to any such action, suit, proceeding
or claim, I am entitled to be indemnified pursuant to the aforesaid
Indemnification Agreement.
Without limiting any other rights which I have or may have, I am
requesting indemnification against Liabilities which have or may arise out of:
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Respectfully submitted,
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Exhibit B
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UNDERTAKING
This Indemnification Statement is submitted pursuant to the
Indemnification Agreement dated as of ________ __, 1997 between Marcam
Solutions, Inc., a Delaware corporation (the "Company"), and the undersigned.
I am requesting advancement of certain costs, charges and expenses which
I have incurred or will incur in defending an actual or threatened action, suit,
proceeding or claim, whether civil, criminal, administrative or investigative.
I hereby undertake to repay this advancement of expenses if it shall
ultimately be determined that I am not entitled to be indemnified by the Company
under the aforesaid Indemnity Agreement or otherwise.
The costs, charges and expenses for which advancement is requested are,
in general, all expenses related to:
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Respectfully submitted,
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