NETEZZA CORPORATION Indemnification Agreement
Exhibit 10.15
NETEZZA CORPORATION
This Agreement is made as of the ___day of June, 2007, by and between Netezza
Corporation, a Delaware corporation (the “Corporation), and _________
(the “Indemnitee”), a
director or executive officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as directors and executive
officers the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects directors and executive
officers to expensive litigation risks at the same time that the availability of directors’ and
officers’ liability insurance has been severely limited, and
WHEREAS, it is now and has always been the express policy of the Corporation to indemnify its
directors and executive officers, and
WHEREAS, the Indemnitee does not regard the protection available under the Corporation’s
Certificate of Incorporation and insurance as adequate in the present circumstances, and may not be
willing to serve or continue to serve as a director or executive officer without adequate
protection, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to serve, as a director
or executive officer of the Corporation.
NOW THEREFORE, the Corporation and the Indemnitee do hereby agree as follows:
1. Agreement to Serve. The Indemnitee agrees to serve or continue to serve as a
director or executive officer of the Corporation for so long as the Indemnitee is duly elected or
appointed or until such time as the Indemnitee tenders a resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term “Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternative dispute resolution proceeding, administrative hearing or other proceeding,
whether brought by or in the right of the Corporation or otherwise and whether of a civil,
criminal, administrative or investigative nature, and any appeal therefrom.
(b) The term “Corporate Status” shall mean the status of a person who is or was, or has agreed
to become, a director or executive officer of the Corporation, or is or was serving, or has agreed
to serve, at the request of the Corporation, as a director, officer, fiduciary, partner, trustee,
member, employee or agent of, or in a similar capacity with, another corporation, partnership,
joint venture, trust, limited liability company or other enterprise.
(c) The term “Expenses” shall include, without limitation, attorneys’ fees, retainers, court
costs, transcript costs, fees and expenses of experts, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service fees and other disbursements or
expenses of the types customarily incurred in connection with investigations, judicial or
administrative proceedings or appeals, but shall not include the amount of judgments, fines or
penalties against Indemnitee or amounts paid in settlement in connection with such matters.
(d) References to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Corporation” shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan, its participants,
or beneficiaries; and a person who acted in good faith and in a manner such person reasonably
believed to be in the interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as
referred to in this Agreement.
3. Indemnity of Indemnitee. Subject to Sections 6, 7 and 9, the Corporation shall
indemnify the Indemnitee in connection with any Proceeding as to which the Indemnitee is, was or is
threatened to be made a party (or is otherwise involved) by reason of the Indemnitee’s Corporate
Status, to the fullest extent permitted by law (as such may be amended from time to time). In
furtherance of the foregoing and without limiting the generality thereof:
(a) Indemnification in Third-Party Proceedings. The Corporation shall indemnify the
Indemnitee in accordance with the provisions of this Section 3(a) if the Indemnitee was or is a
party to or threatened to be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a judgment in its favor or a Proceeding
referred to in Section 6 below) by reason of the Indemnitee’s Corporate Status or by reason of any
action alleged to have been taken or omitted in connection therewith, against all Expenses,
judgments, fines, penalties and amounts paid in settlement actually and reasonably incurred by or
on behalf of the Indemnitee in connection with such Proceeding, if the Indemnitee acted in good
faith and in a manner which the Indemnitee 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 that his or her conduct was unlawful.
(b) Indemnification in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify the Indemnitee in accordance with the provisions of this Section 3(b)
if the Indemnitee was or is a party to or threatened to be made a party to or otherwise involved in
any Proceeding by or in the right of the Corporation to procure a judgment in its favor by reason
of the Indemnitee’s Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses and, to the extent permitted by law, amounts
paid in settlement actually and reasonably incurred by or on behalf of the Indemnitee in connection
with such Proceeding, if the Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Corporation, except
that, if applicable law so provides, no indemnification shall be made under this Section 3(b) in
respect of any claim, issue, or matter as to which the Indemnitee shall
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have been adjudged to be liable to the Corporation, unless, and only to the extent, that the
Court of Chancery of Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of such liability but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such
Expenses as the Court of Chancery or such other court shall deem proper.
4. Indemnification of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been successful, on the merits
or otherwise, in defense of any Proceeding or in defense of any claim, issue or matter therein
(other than a Proceeding referred to in Section 6), the Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection
therewith. Without limiting the foregoing, if any Proceeding or any claim, issue or matter therein
is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i)
the disposition being adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was
liable to the Corporation, (iii) a plea of guilty or nolo contendere by the Indemnitee, (iv) an
adjudication that the Indemnitee did not act in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his or her conduct was unlawful, the Indemnitee shall be considered for the purposes hereof
to have been wholly successful with respect thereto.
5. Indemnification for Expenses of a Witness. To the extent that the Indemnitee is,
by reason of the Indemnitee’s Corporate Status, a witness in any Proceeding to which the Indemnitee
is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by or on behalf of the Indemnitee in connection therewith.
6. Exceptions to Right of Indemnification. Notwithstanding anything to the contrary
in this Agreement, except as set forth in Section 10, the Corporation shall not indemnify the
Indemnitee in connection with a Proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the Board of Directors of the Corporation. Notwithstanding
anything to the contrary in this Agreement, the Corporation shall not indemnify the Indemnitee to
the extent the Indemnitee is reimbursed from the proceeds of insurance, and in the event the
Corporation makes any indemnification payments to the Indemnitee and the Indemnitee is subsequently
reimbursed from the proceeds of insurance, the Indemnitee shall promptly refund such
indemnification payments to the Corporation to the extent of such insurance reimbursement.
7. Notification and Defense of Claim. As a condition precedent to the Indemnitee’s
right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as
practicable of any Proceeding for which indemnity will or could be sought. With respect to any
Proceeding of which the Corporation is so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the Corporation to the
Indemnitee of its election so to assume such defense, the Corporation shall not be liable to the
Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection
with such Proceeding, other than as provided below in this Section 7. If the Corporation assumes
the defense of a Proceeding, the Indemnitee shall have the right to employ
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his or her own counsel in connection with such Proceeding, but the fees and expenses of such
counsel incurred after notice from the Corporation 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 Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded that
there may be a conflict of interest or position on any significant issue between the Corporation
and the Indemnitee in the conduct of the defense of such Proceeding or (iii) the Corporation shall
not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases
the fees and expenses of counsel for the Indemnitee shall be at the expense of the Corporation,
except as otherwise expressly provided by this Agreement. If the Corporation does not assume the
defense of a Proceeding, the Indemnitee shall have the right to employ his or her own counsel in
connection with such Proceeding, and the fees and expenses of such counsel shall be at the expense
of the Company. In any circumstance under which the Corporation is responsible for the fees and
expenses of counsel for the Indemnitee, (i) such counsel must be approved by the Corporation, which
approval shall not be unreasonably withheld, (ii) the Corporation shall not be responsible for the
fees and expenses of more than one law firm per Indemnitee and (iii) Indemnitee’s counsel shall
cooperate reasonably with the Corporation’s counsel to minimize the cost of defending claims
against the Corporation and the Indemnitee. The Corporation shall not be entitled, without the
consent of the Indemnitee, to assume the defense of any claim brought by or in the right of the
Corporation or as to which counsel for the Indemnitee shall have reasonably made the conclusion
provided for in clause (ii) above. The Corporation shall not be required to indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected
without its written consent. The Corporation shall not settle any Proceeding in any manner that
would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent.
Neither the Corporation nor the Indemnitee will unreasonably withhold or delay their consent to any
proposed settlement.
8. Advancement of Expenses. Subject to the provisions of Section 9, in the event that
the Corporation does not assume the defense pursuant to Section 7 of any Proceeding of which the
Corporation receives notice under this Agreement, any Expenses actually and reasonably incurred by
or on behalf of the Indemnitee in defending such Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding; provided, however, that the payment of
such Expenses incurred by or on behalf of the Indemnitee in advance of the final disposition of
such Proceeding shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee
to repay all amounts so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Agreement.
Such undertaking shall be accepted without reference to the financial ability of the Indemnitee to
make repayment. Any advances and undertakings to repay pursuant to this Section 8 shall be
unsecured and interest-free.
9. Procedures.
(a) In order to obtain indemnification or advancement of Expenses pursuant to this Agreement,
the Indemnitee shall submit to the Corporation a written request, including in such request such
documentation and information as is reasonably available to the Indemnitee and is reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to indemnification or
advancement of Expenses. Any such indemnification or advancement of
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Expenses shall be made
promptly, and in any event within 60 days after receipt by the Corporation of the written request of the Indemnitee, unless the Corporation determines within
such 60-day period that the Indemnitee did not meet the applicable standard of conduct. Such
determination, and any determination that advanced Expenses must be repaid to the Corporation,
shall be made in each instance (a) by a majority vote of the directors of the Corporation
consisting of persons who are not at that time parties to the Proceeding (“disinterested
directors”), whether or not a quorum, (b) by a committee of disinterested directors designated by a
majority vote of disinterested directors, whether or not a quorum, (c) if there are no
disinterested directors, or if the disinterested directors so direct, by independent legal counsel
(who may, to the extent permitted by applicable law, be regular legal counsel to the Corporation)
in a written opinion, or (d) by the stockholders of the Corporation.
(b) The termination of any Proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
Indemnitee did not act in good faith and in a manner that the Indemnitee reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal
Proceeding, had reasonable cause to believe that his or her conduct was unlawful.
(c) The Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to the 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
the Indemnitee and reasonably necessary to such determination. Any Expenses actually and
reasonably incurred by the Indemnitee in so cooperating shall be borne by the Corporation
(irrespective of the determination as to the Indemnitee’s entitlement to indemnification) and the
Corporation hereby indemnifies the Indemnitee therefrom.
10. Remedies. The right to indemnification or advancement of Expenses as provided by
this Agreement shall be enforceable by the Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no disposition thereof is made within
the applicable period referred to in Section 9. Unless otherwise required by law, the burden of
proving that indemnification or advancement of Expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation to have made a determination prior to the
commencement of such action that indemnification is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor an actual determination by the
Corporation 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. The Indemnitee’s Expenses actually and reasonably incurred in connection with
successfully establishing the Indemnitee’s right to indemnification, in whole or in part, in any
such Proceeding shall also be indemnified by the Corporation.
11. Partial Indemnification. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for some or a portion of the Expenses,
judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by or on
behalf of the Indemnitee in connection with any Proceeding but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of
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such Expenses, judgments, fines, penalties or amounts paid in settlement to which the
Indemnitee is entitled.
12. Subrogation. 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 the
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.
13. Term of Agreement. This Agreement shall continue until and terminate upon the
later of (a) six years after the date that the Indemnitee shall have ceased to serve as a director
or executive officer of the Corporation or, at the request of the Corporation, as a director,
officer, partner, trustee, member, employee or agent of another corporation, partnership, joint
venture, trust, limited liability company or other enterprise or (b) the final termination of all
Proceedings pending on the date set forth in clause (a) in respect of which the Indemnitee is
granted rights of indemnification or advancement of Expenses hereunder and of any proceeding
commenced by the Indemnitee pursuant to Section 10 of this Agreement relating thereto.
14. Miscellaneous.
(a) Indemnification Hereunder Not Exclusive. The indemnification and advancement of
Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Certification of Incorporation, the By-Laws, any other
agreement, any vote of stockholders or disinterested directors, the General Corporation Law of
Delaware, any other law (common or statutory), or otherwise, both as to action in the Indemnitee’s
official capacity and as to action in another capacity while holding office for the Corporation.
Nothing contained in this Agreement shall be deemed to prohibit the Corporation from purchasing and
maintaining insurance, at its expense, to protect itself or the Indemnitee against any expense,
liability or loss incurred by it or the Indemnitee in any such capacity, or arising out of the
Indemnitee’s status as such, whether or not the Indemnitee would be indemnified against such
expense, liability or loss under this Agreement; provided that the Corporation shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that the Indemnitee has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
(b) No Special Rights. Nothing herein shall confer upon the Indemnitee any right to
continue to serve as a director or executive officer of the Corporation for any period of time or
at any particular rate of compensation.
(c) Savings Clause. If this Agreement or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify the Indemnitee as to Expenses, judgments, fines, penalties and amounts paid in settlement
with respect to any Proceeding to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated and to the fullest extent permitted by applicable
law.
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(d) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall constitute the original.
(e) Successors and Assigns. This Agreement shall be binding upon the Corporation and
its successors and assigns and shall inure to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
(f) Headings. 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.
(g) Modification and Waiver. This Agreement may be amended from time to time to
reflect changes in Delaware law or for other reasons. 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 provision hereof nor shall any such waiver constitute a continuing waiver.
(h) Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been given (i) when delivered by hand or (ii) if mailed
by certified or registered mail with postage prepaid, on the third day after the date on which it
is so mailed:
if to the Indemnitee, to:
if to the Corporation, to:
or to such other address as may have been furnished to the Indemnitee by the Corporation or to the
Corporation by the Indemnitee, as the case may be.
(i) Applicable Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware. The Indemnitee may elect to have the right
to indemnification or reimbursement or advancement of Expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in
effect at the time such indemnification or reimbursement or advancement of Expenses is sought.
Such election shall be made, by a notice in writing to the Corporation, at the time indemnification
or reimbursement or advancement of Expenses is sought; provided, however, that if
no such notice is given, and if the General Corporation Law of Delaware is amended, or other
Delaware law is enacted, to permit further indemnification of the directors and officers,
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then the Indemnitee shall be indemnified to the fullest extent permitted under the General
Corporation Law, as so amended, or by such other Delaware law, as so enacted.
(j) Enforcement. The Corporation expressly confirms and agrees that it has entered
into this Agreement in order to induce the Indemnitee to continue to serve as a director or
executive officer of the Corporation, and acknowledges that the Indemnitee is relying upon this
Agreement in continuing in such capacity.
(k) Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supercedes all prior agreements,
whether oral or written, by any officer, employee or representative of any party hereto in respect
of the subject matter contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and cancelled. For avoidance of doubt,
the parties confirm that the foregoing does not apply to or limit the Indemnitee’s rights under
Delaware law or the Corporation’s Certificate of Incorporation or By-Laws.
(l) Consent to Suit. In the case of any dispute under or in connection with this
Agreement, the Indemnitee may only bring suit against the Corporation in the Court of Chancery of
the State of Delaware. The Indemnitee hereby consents to the exclusive jurisdiction and venue of
the courts of the State of Delaware, and the Indemnitee hereby waives any claim the Indemnitee may
have at any time as to forum non conveniens with respect to such venue. The Corporation shall have
the right to institute any legal action arising out of or relating to this Agreement in any court
of competent jurisdiction. Any judgment entered against either of the parties in any proceeding
hereunder may be entered and enforced by any court of competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day
and year first above written.
| NETEZZA CORPORATION | ||||||
| By: | ||||||
| Name: | Xxxxxxxx Xxxxxx | |||||
| Title: | Chief Executive Officer | |||||
| INDEMNITEE | ||||||
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