Exhibit 99.2
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, made and executed this 8th day of March, 2007,
by and between CONCURRENT COMPUTER CORPORATION, Delaware corporation (the
"Company"), and Xxxxx X. Xxxxx, an individual resident of the State of Georgia
(the "Indemnitee").
WHEREAS, the Company is aware that, in order to induce highly competent
persons to serve the Company as directors or officers or in other capacities,
the Company must provide such, persons with adequate protection through
insurance and indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on behalf of the
Company;
WHEREAS, the Company recognizes that the increasing difficulty in obtaining
directors' and officers' liability insurance, the increases in the cost of such
insurance and the general reductions in the coverage of such insurance have
increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board of Directors of the Company has determined that it is
essential to the best interests of the Company's stockholders that the Company
act to assure such persons that there will be increased certainty of such
protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will continue to serve the Company free
from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve, and take on
additional service for or on behalf of the Company on the condition that he/she
be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
Indemnitee do hereby agree as follows:
1. SERVICE BY THE INDEMNITEE. The Indemnitee agrees to serve and/or
continue to serve as a director or officer of the Company faithfully and will
discharge his/her duties and responsibilities to the best of his/her ability so
long as the Indemnitee is duly elected or qualified in accordance with the
provisions of the Restated Certificate of Incorporation, as amended (the
"Certificate"), and Amended and Restated By-laws, as amended (the "By-laws") of
the Company and the General Corporation Law of the State of Delaware, as amended
(the "DGCL"), or until his/her earlier death, resignation or removal. The
Indemnitee may at any time and for any reason resign from such position (subject
to any other contractual obligation or other obligation imposed by operation by
law), in which event the Company shall have no obligation under this
Agreement to continue the Indemnitee in any such position. Nothing in this
Agreement shall confer upon the Indemnitee the right to continue in the employ
of the Company or as a director of the Company or affect the right of the
Company to terminate the Indemnitee's employment at any time in the sole
discretion of the Company, with or without cause, subject to any contract rights
of the Indemnitee created or existing otherwise than under this Agreement.
2. INDEMNIFICATION. The Company shall indemnify the Indemnitee against
all Expenses (as defined below), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee as provided in this Agreement
to the fullest extent permitted by the Certificate, By-laws and DGCL or other
applicable law in effect on the date of this Agreement and to any greater extent
that applicable law may in the future from time to time permit. Without
diminishing the scope of the indemnification provided by this Section 2, the
rights of indemnification of the Indemnitee provided hereunder shall include,
but shall not be limited to, those rights hereinafter set forth, except that no
indemnification shall be paid to the Indemnitee:
(a) on account of any suit in which judgment is rendered against
the Indemnitee for disgorgement of profits made from the purchase or sale
by the Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934, as amended (the
"Act"), or similar provisions of any federal, state or local statutory law;
(b) on account of conduct of the Indemnitee which is finally
adjudged by a court of competent jurisdiction to have been knowingly
fraudulent or to constitute willful misconduct;
(c) in any circumstance where such indemnification is expressly
prohibited by applicable law;
(d) with respect to liability for which payment is actually made
to the Indemnitee under a valid and collectible insurance policy or under a
valid and enforceable indemnity clause, By-law or agreement (other than
this Agreement), except in respect of any liability in excess of payment
under such insurance, clause, By-law or agreement;
(e) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in
this respect, both the Company and the Indemnitee have been advised that it
is the position of the Securities and Exchange Commission that
indemnification for liabilities arising under the federal securities laws
is against public policy and is, therefore, unenforceable, and that claims
for indemnification should be submitted to the appropriate court for
adjudication); or
(f) in connection with any proceeding by the Indemnitee against
the Company or its directors, officers, employees or other Indemnitees, (i)
unless such indemnification is expressly required to be made by law, (ii)
unless the proceeding was authorized by the Board of Directors of the
Company, (iii) unless
-2-
such indemnification is provided by the Company, in its sole discretion,
pursuant to the powers vested in the Company under applicable law, or (iv)
except as provided in Sections 11 and 13 hereof.
3. ACTIONS OR PROCEEDINGS OTHER THAN AN ACTION BY OR IN THE RIGHT OF
THE COMPANY. The Indemnitee shall be entitled to the indemnification rights
provided in this Section 3 if the Indemnitee was or is a party or is threatened
to be a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative in nature,
other than an action by or in the right of the Company, by reason of the fact
that the Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of any other entity, including,
but not limited to, another corporation, partnership, limited liability company,
employee benefit plan, joint venture, trust or other enterprise, or by reason of
any act or omission by him/her in such capacity. Pursuant to this Section 3,
the Indemnitee shall be indemnified against all Expenses, judgments, penalties
(including excise and similar taxes), fines and amounts paid in settlement which
were actually and reasonably incurred by the Indemnitee in connection with such
action, suit or proceeding (including, but not limited to, the investigation,
defense or appeal thereof), if the Indemnitee acted in good faith and in a
manner the Indemnitee 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/her conduct was unlawful.
4. ACTIONS BY OR IN THE RIGHT OF THE COMPANY. The Indemnitee shall be
entitled to the indemnification rights provided in this Section 4 if the
Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that the Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of another entity, including,
but not limited to, another corporation, partnership, limited liability company,
employee benefit plan, joint venture, trust or other enterprise, or by reason of
any act or omission by him/her in any such capacity. Pursuant to this Section 4,
the Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him/her in connection with the defense or settlement of such action,
suit or proceeding (including, but not limited to the investigation, defense or
appeal thereof), if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company; provided however, that no such 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 of the State of Delaware 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 be indemnified
against such Expenses actually and reasonably incurred by him/her which such
court shall deem proper.
5. GOOD FAITH DEFINITION. For purposes of this Agreement, the
Indemnitee shall be deemed to have acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, or, with respect to any criminal action or proceeding to have had
no reasonable cause to believe the Indemnitee's conduct was unlawful, if
-3-
such action was based on (i) the records or books of the account of the Company
or other enterprise, including financial statements; (ii) information supplied
to the Indemnitee by the officers of the Company or other enterprise in the
course of their duties; (iii) the advice of legal counsel for the Company or
other enterprise; or (iv) information or records given in reports made to the
Company or other enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Company or
other enterprise.
6. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
the other provisions of this Agreement, to the extent that the Indemnitee has
served on behalf of the Company as a witness or other participant in any class
action or proceeding, or has been successful, on the merits or otherwise, in
defense of any action, suit or proceeding referred to in Section 3 and 4 hereof,
or in defense of any claim, issue or matter therein, including, but not limited
to, the dismissal of any action without prejudice, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by the
Indemnitee in connection therewith, regardless of whether or not the Indemnitee
has met the applicable standards of Section 3 or 4 and without any determination
pursuant to Section 8.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with the
investigation, defense, appeal or settlement of such suit, action, investigation
or proceeding described in Section 3 or 4 hereof, but is not entitled to
indemnification for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by the
Indemnitee to which the Indemnitee is entitled.
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. (a)
To obtain indemnification under this Agreement, Indemnitee shall submit to the
Company a written request, including documentation and information which is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
Secretary of the Company shall, promptly upon receipt of a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification. Any Expenses incurred by the Indemnitee in connection
with the Indemnitee's request for indemnification hereunder shall be borne by
the Company. The Company hereby indemnifies and agrees to hold the Indemnitee
harmless for any Expenses incurred by Indemnitee under the immediately preceding
sentence irrespective of the outcome of the determination of the Indemnitee's
entitlement to indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant
to Section 3 or 4 hereof, the entitlement of the Indemnitee to indemnification
pursuant to the terms of this Agreement shall be determined by the following
person or persons, who shall be empowered to make such determination: (i) if a
Change in Control (as hereinafter defined) shall have occurred, by Independent
Counsel (as hereinafter defined) (unless the Indemnitee shall request in writing
that such determination be made by the Board of Directors (or a committee
thereof) in the manner provided for in clause (ii) of this Section 8(b)) in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the Indemnitee; or (ii) if a Change in Control
-4-
shall not have occurred, (A)(1) by the Board of Directors of the Company, by a
majority vote of Disinterested Directors (as hereinafter defined) even though
less than a quorum, or (2) by a committee of Disinterested Directors designated
by majority vote of Disinterested Directors, even though less than a quorum, or
(B) if there are no such Disinterested Directors or, even if there are such
Disinterested Directors, if the Board of Directors, by the majority vote of
Disinterested Directors, so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to the Indemnitee.
Such Independent Counsel shall be selected by the Board of Directors and
approved by the Indemnitee. Upon failure of the Board of Directors to so select,
or upon failure of the Indemnitee to so approve, such Independent Counsel shall
be selected by the Chancellor of the State of Delaware or such other person as
the Chancellor shall designate to make such selection. Such determination of
entitlement to indemnification shall be made not later than 45 days after
receipt by the Company of a written request for indemnification. If the person
making such determination shall determine that the Indemnitee is entitled to
indemnification as to part (but not all) of the application for indemnification,
such person shall reasonably prorate such part of indemnification among such
claims, issues or matters. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten days after such
determination.
9. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. (a) In making a
determination with respect to entitlement to indemnification, the Indemnitee
shall be presumed to be entitled to indemnification hereunder and the Company
shall have the burden of proof in the making of any determination contrary to
such presumption.
(b) If the Board of Directors, or such other person or persons
empowered pursuant to Section 8 to make the determination of whether Indemnitee
is entitled to indemnification, shall have failed to make a determination as to
entitlement to indemnification within 45 days after receipt by the Company of
such request, the requisite determination of entitlement to indemnification
shall be deemed to have been made and the Indemnitee shall be absolutely
entitled to such indemnification, absent actual and material fraud in the
request for indemnification or a prohibition of indemnification under applicable
law. The termination of any action, suit, investigation or proceeding described
in Section 3 or 4 hereof by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself: (a) create a
presumption that the Indemnitee did not act in good faith and in a manner which
he/she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, that the
Indemnitee has reasonable cause to believe that the Indemnitee's conduct was
unlawful; or (b) otherwise adversely affect the rights of the Indemnitee to
indemnification, except as may be provided herein.
10. ADVANCEMENT OF EXPENSES. All reasonable Expenses actually incurred
by the Indemnitee in connection with any threatened or pending action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding, if so requested by the Indemnitee, within 20
days after the receipt by the Company of a statement or statements from the
Indemnitee requesting such advance or advances. The Indemnitee may submit such
statements from time to time. The Indemnitee's entitlement to such Expenses
shall include those incurred in connection with any proceeding by the Indemnitee
seeking an adjudication or award in arbitration pursuant to this Agreement.
Such statement or statements
-5-
shall reasonably evidence the Expenses incurred by the Indemnitee in connection
therewith and shall include or be accompanied by a written affirmation by
Indemnitee of Indemnitee's good faith belief that Indemnitee has met the
standard of conduct necessary for indemnification under this Agreement and an
undertaking by or on behalf of the Indemnitee to repay such amount if it is
ultimately determined that the Indemnitee is not entitled to be indemnified
against such Expenses by the Company pursuant to this Agreement or otherwise.
Each written undertaking to pay amounts advanced must be an unlimited general
obligation but need not be secured, and shall be accepted without reference to
financial ability to make repayment.
11. REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO
INDEMNIFY OR TO ADVANCE EXPENSES. In the event that a determination is made
that the Indemnitee is not entitled to indemnification hereunder or if the
payment has not been timely made following a determination of entitlement to
indemnification pursuant to Sections 8 and 9, or if Expenses are not advanced
pursuant to Section 10, the Indemnitee shall be entitled to a final adjudication
in an appropriate court of the State of Delaware or any other court of competent
jurisdiction of the Indemnitee's entitlement to such indemnification or advance.
Alternatively, the Indemnitee may, at the Indemnitee's option, seek an award in
arbitration to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association, such award to be made within 60 days following
the filing of the demand for arbitration. The Company shall not oppose the
Indemnitee's right to seek any such adjudication or award in arbitration or any
other claim. Such judicial proceeding or arbitration shall be made de novo, and
the Indemnitee shall not be prejudiced by reason of a determination (if so made)
that the Indemnitee is not entitled to indemnification. If a determination is
made or deemed to have been made pursuant to the terms of Section 8 or Section 9
hereof that the Indemnitee is entitled to indemnification, the Company shall be
bound by such determination and shall be 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. The Company
further agrees to stipulate in any such court or before any such arbitrator that
the Company is bound by all the provisions of this Agreement and is precluded
from making any assertions to the contrary. If the court or arbitrator shall
determine that the Indemnitee is entitled to any indemnification hereunder, the
Company shall pay all reasonable Expenses actually incurred by the Indemnitee in
connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).
12. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Indemnitee of notice of the commencement of any action, suit or proceeding, the
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in writing of the commencement thereof;
but the omission to so notify the Company will not relieve the Company from any
liability that it may have to the Indemnitee otherwise than under this Agreement
or otherwise, except to the extent that the Company may suffer material
prejudice by reason of such failure. Notwithstanding any other provision of
this Agreement, with respect to any such action, suit or proceeding as to which
the Indemnitee gives notice to the Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense.
-6-
(b) Except as otherwise provided in this Section 12(b), to the
extent that it may wish, the Company, jointly with any other indemnifying
party similarly notified, shall be entitled to assume the defense thereof
with counsel reasonably satisfactory to the Indemnitee. After notice from
the Company to the Indemnitee of its election to so assume the defense
thereof, the Company shall not be liable to the Indemnitee under this
Agreement for any legal or other Expenses subsequently incurred by the
Indemnitee in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. The Indemnitee shall
have the right to employ the Indemnitee's own counsel in such action or
lawsuit, but the fees and Expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the
expense of the Indemnitee unless (i) the employment of counsel by the
Indemnitee has been 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 the defense of such action
and such determination by the Indemnitee shall be supported by an opinion
of counsel, which opinion shall be reasonably acceptable to the Company, or
(iii) the Company shall not in fact have employed counsel to assume the
defense of the action, in each of which cases the fees and Expenses of
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any action, suit or proceeding brought by
or on behalf of the Company or as to which the Indemnitee shall have
reached the conclusion provided for in clause (ii) above.
(c) The Company shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent, which consent shall not be
unreasonably withheld. The Company shall not be required to obtain the
consent of Indemnitee to settle any action or claim which the Company has
undertaken to defend if the Company assumes full and sole responsibility
for such settlement and such settlement grants Indemnitee a complete and
unqualified release in respect of potential liability.
(d) If, at the time of the receipt of a notice of a claim pursuant
to this Section 12, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding 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 amounts payable as a result of such
proceeding in accordance with the terms of the policies.
13. OTHER RIGHT TO INDEMNIFICATION. The indemnification and
advancement of Expenses provided by this Agreement are cumulative, and not
exclusive, and are in addition to any other rights to which the Indemnitee may
now or in the future be entitled under any provision of the By-laws or
Certificate of the Company, any vote of stockholders or Disinterested Directors,
any provision of law or otherwise. Except as required by applicable law, the
Company shall not adopt any amendment to its By-laws or Certificate the effect
of which
-7-
would be to deny, diminish or encumber the Indemnitee's right to indemnification
under this Agreement.
14. DIRECTOR AND OFFICER LIABILITY INSURANCE. The Company shall
maintain directors' and officers' liability insurance for so long as
Indemnitee's services are covered hereunder, provided and to the extent that
such insurance is available on a commercially reasonable basis. In the event the
Company maintains directors' and officers' liability insurance, the Indemnitee
shall be named as an insured in such manner as to provide the Indemnitee the
same rights and benefits as are accorded to the most favorably insured of the
Company's officers or directors. However, the Company agrees that the provisions
hereof shall remain in effect regardless of whether liability or other insurance
coverage is at any time obtained or retained by the Company; except that any
payments made to, or on behalf of, the Indemnitee under an insurance policy
shall reduce the obligations of the Company hereunder.
15. SPOUSAL INDEMNIFICATION. The Company will indemnify the
Indemnitee's spouse to whom the Indemnitee is legally married at any time the
Indemnitee is covered under the indemnification provided in this Agreement (even
if Indemnitee did not remain married to him or her during the entire period of
coverage) against any pending or threatened action, suit, proceeding or
investigation for the same period, to the same extent and subject to the same
standards, limitations, obligations and conditions under which the Indemnitee is
provided indemnification herein, if the Indemnitee's spouse (or former spouse)
becomes involved in a pending or threatened action, suit, proceeding or
investigation solely by reason of his or her status as Indemnitee's spouse,
including, without limitation, any pending or threatened action, suit,
proceeding or investigation that seeks damages recoverable from marital
community property, jointly-owned property or property purported to have been
transferred from the Indemnitee to his/her spouse (or former spouse). The
Indemnitee's spouse or former spouse also may be entitled to advancement of
Expenses to the same extent that Indemnitee is entitled to advancement of
Expenses herein. The Company may maintain insurance to cover its obligation
hereunder with respect to Indemnitee's spouse (or former spouse) or set aside
assets in a trust or escrow fund for that purpose.
16. INTENT. This Agreement is intended to be broader than any
statutory indemnification rights applicable in the State of Delaware and shall
be in addition to any other rights Indemnitee may have under the Company's
Certificate, By-laws, applicable law or otherwise. To the extent that a change
in applicable law (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the
Company's Certificate, By-laws, applicable law or this Agreement, it is the
intent of the parties that Indemnitee enjoy by this Agreement the greater
benefits so afforded by such change.
17. ATTORNEY'S FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT. In the
event that the Indemnitee is subject to or intervenes in any proceeding in which
the validity or enforceability of this Agreement is at issue or seeks an
adjudication or award in arbitration to enforce the Indemnitee's rights under,
or to recover damages for breach of, this Agreement the Indemnitee, if he/she
prevails in whole or in part in such action, shall be entitled to recover from
the Company and shall be indemnified by the Company against any actual expenses
for attorneys' fees and disbursements reasonably incurred by the Indemnitee.
-8-
18. EFFECTIVE DATE. The provisions of this Agreement shall cover
claims, actions, suits or proceedings whether now pending or hereafter commenced
and shall be retroactive to cover acts or omissions or alleged acts or omissions
which heretofore have taken place. The Company shall be liable under this
Agreement, pursuant to Sections 3 and 4 hereof, for all acts of the Indemnitee
while serving as a director and/or officer, notwithstanding the termination of
the Indemnitee's service, if such act was performed or omitted to be performed
during the term of the Indemnitee's service to the Company.
19. DURATION OF AGREEMENT. This Agreement shall survive and continue
even though the Indemnitee may have terminated his/her service as a director,
officer, employee, agent or fiduciary of the Company or as a director, officer,
employee, agent or fiduciary of any other entity, including, but not limited to
another corporation, partnership, limited liability company, employee benefit
plan, joint venture, trust or other enterprise or by reason of any act or
omission by the Indemnitee in any such capacity. This Agreement shall be binding
upon the Company and its successors and assigns, including, without limitation,
any corporation or other entity which may have acquired all or substantially all
of the Company's assets or business or into which the Company may be
consolidated or merged, and shall inure to the benefit of the Indemnitee and
his/her spouse, successors, assigns, heirs, devisees, executors, administrators
or other legal representations. The Company shall require any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by written agreement in form and substance reasonably satisfactory to
the Company and the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession or assignment had taken place.
20. DISCLOSURE OF PAYMENTS. Except as expressly required by any
Federal or state securities laws or other Federal or state law, neither party
shall disclose any payments under this Agreement unless prior approval of the
other party is obtained.
21. SEVERABILITY. If any provision or provisions of this Agreement
shall be held invalid, illegal or unenforceable for any reason whatsoever, (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including, but not limited to, all portions of any Sections of this
Agreement containing any such provision held to be 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, but
not limited to, all portions of any paragraph of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifest by the provision held invalid, illegal or
unenforceable.
22. COUNTERPARTS. This Agreement may be executed by 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 shall
be required to be produced to evidence the existence of this Agreement.
-9-
23. CAPTIONS. The captions and headings used in this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
24. DEFINITIONS. For purposes of this Agreement:
(a) "Change in Control" shall mean a change in control of the
Company occurring after the date hereof of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
(or in response to any similar item on any similar schedule or form)
promulgated under the Act, whether or not the Company is then subject to
such reporting requirement; provided, however, that, without limitation, a
-------- -------
Change in Control shall include: (i) the acquisition (other than from the
Company) by any person, entity or "group" within the meaning of Section
13(d)(3) or 14(d)(2) of the Act (excluding, for this purpose, the Company
or its subsidiaries, any employee benefit plan of the Company or its
subsidiaries which acquires beneficial ownership of voting securities of
the Company, and any qualified institutional investor who meets the
requirements of Rule 13d-1(b)(1) promulgated under the Act) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Act), of
20% or more of either the then-outstanding shares of common stock or the
combined voting power of the Company's then-outstanding capital stock
entitled to vote generally in the election of directors; (ii) individuals
who, as of the date hereof, constitute the Board of Directors (the
"Incumbent Board") ceasing for any reason to constitute at least a majority
of the Board of Directors, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by
the Company's stockholders was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Company) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or (iii) approval by the stockholders of the Company of (A) a
reorganization, merger, or consolidation, in each case, with respect to
which persons who were the stockholders of the Company immediately prior to
such reorganization, merger, or consolidation do not, immediately
thereafter, own more than 75% of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged,
consolidated or other surviving corporation's then-outstanding voting
securities, (B) a liquidation or dissolution of the Company, or (C) the
sale of all or substantially all of the assets of the Company.
(b) "Disinterested Director" shall mean a director of the Company
who is not or was not a party to the action, suit, investigation or
proceeding in respect of which indemnification is being sought by the
Indemnitee.
(c) "Expenses" shall include all attorneys' fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs,
-10-
printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating or
being or preparing to be a witness in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative in nature.
(d) "Independent Counsel" shall mean a law firm or a member of a
law firm that neither is presently nor in the past five years has been
retained to represent (i) the Company or the Indemnitee in any matter
material to either such party or (ii) any other party to the action, suit,
investigation or 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 Company or the Indemnitee in an action to determine
the Indemnitee's right to indemnification under this Agreement.
25. ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement
constitutes the entire agreement and understanding of the parties hereto
regarding the subject matter hereof, and no supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
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. No
supplement, modification or amendment of this Agreement shall limit or restrict
any right of the Indemnitee under this Agreement in respect of any act or
omission of the Indemnitee prior to the effective date of such supplement,
modification or amendment unless expressly provided therein.
26. NOTICES. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand with receipt acknowledged by the party to whom said notice or
other communication shall have been directed or if (ii) mailed by certified or
registered mail, return receipt requested with postage prepaid, on the date
shown on the return receipt:
(a) If to the Indemnitee to:
Xxxxx X. Xxxxx
--------------
0000 Xxxxxxxx Xxxx Xxxxx
------------------------
Xxxxxx, XX 00000
-----------------
(b) If to the Company, to:
Concurrent Computer Corporation
0000 XxxxxXxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
-11-
with a copy to:
King & Spalding LLP
Attn: Xxxx X. Xxxxxx, Xx.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
or to such other address as may be furnished to the Indemnitee by the Company or
to the Company by the Indemnitee, as the case may be.
27. GOVERNING LAW. The parties hereto agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of StateplaceDelaware, applied without giving effect to any
conflicts-of-law principles.
-12-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CONCURRENT COMPUTER CORPORATION
By /s/ T. Xxxx Xxxxx
Name: T. Xxxx Xxxxx
Title: President and Chief Executive Officer
INDEMNITEE:
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
