Exhibit 10.2
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the 6th day of April 2006, by and between
Unica Corporation, a Delaware corporation (the "Corporation"), and Xxxxx X.
Xxxxxxxxxx (the "Indemnitee"), a director or officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects
directors and 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 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 officer without adequate protection, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to
serve, as a director or 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 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 a director or officer of the Corporation, or is or was
serving, or has agreed to serve, 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.
c. The term "Expenses" shall include 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 that 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. Indemnification in Third-Party Proceedings. The Corporation shall
indemnify the Indemnitee in accordance with the provisions of this
Paragraph 3 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) 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 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 no reasonable cause to believe
that his or her conduct was unlawful. 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.
4. Indemnification in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify the Indemnitee in accordance with the
provisions of this Paragraph 4 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 that the Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except that no
indemnification shall be made under this Paragraph 4 in respect of any
claim, issue, or matter as to which the Indemnitee shall 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.
5. Exceptions to Right of Indemnification. Notwithstanding anything to the
contrary in this Agreement, except as set forth in Paragraph 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.
6. 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
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defense of any Proceeding or in defense of any claim, issue or matter
therein, the Indemnitee shall be indemnified against all Expenses 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.
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 Paragraph 7. The Indemnitee shall have the right to employ
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. 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 Paragraph 9 of this
Agreement, in the event that the Corporation does not assume the defense
pursuant to Paragraph 7 of this Agreement of any Proceeding of which the
Corporation receives notice under this Agreement, any Expenses 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.
9. Procedure for Indemnification. In order to obtain indemnification or
advancement of Expenses pursuant to Paragraphs 3, 4, 6 or 8 of this
Agreement, the Indemnitee shall submit to the
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Corporation a written request. Any such indemnification or advancement of
Expenses shall be made promptly, and in any event within 30 days after
receipt by the Corporation of the written request of the Indemnitee,
unless with respect to requests under Paragraphs 3, 4 or 8 the Corporation
determines within such 30-day period that the Indemnitee did not meet the
applicable standard of conduct set forth in Paragraph 3 or 4, as the case
may be. 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.
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. Unless otherwise required by law, the
burden of proving that indemnification 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 pursuant to Paragraph 9 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 (of the type described in the
definition of "Expenses" in Paragraph 2(c)) 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 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 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 Paragraph 10 of this Agreement
relating thereto.
14. 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
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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.
15. No Special Rights. Nothing herein shall confer upon the Indemnitee any
right to continue to serve as an officer or director of the Corporation
for any period of time or at any particular rate of compensation.
16. 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.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
18. 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.
19. 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.
20. 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.
21. 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:
a. if to the Indemnitee, to: Xxxxx X. Xxxxxxxxxx
00 Xxxx Xxx.
Xxxxxx Xxxxxx, XX 00000
b. if to the Corporation, to: Unica Corporation
Reservoir Place North, 000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
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.
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22. 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, 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.
23. 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 an officer or director of the Corporation, and acknowledges
that the Indemnitee is relying upon this Agreement in continuing in such
capacity.
24. 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.
25. 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.
Attest: UNICA CORPORATION
By: /s/ Xxxx Xxxx-Xxxxx By: /s/ Xxxxxx Xxx
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Name: Xxxx Xxxx-Xxxxx Name: Xxxxxx Xxx
Title: Chairman and CEO
INDEMNITEE
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
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