EXHIBIT 10.4
INDEMNIFICATION AGREEMENT FOR OFFICERS AND DIRECTORS
Introduction
------------
This Indemnification Agreement (this "Agreement") is made effective as of
the _______ day of ___________, ____, (the "Effective Date") by and between
Docent, Inc., a Delaware corporation (the "Company"), and ______________________
("Indemnitee").
Background
----------
A. The Company and Indemnitee recognize the increasing difficulty in
obtaining directors' and officers' liability insurance, the significant
increases in the cost of such insurance, and the general reductions in the
coverage of such insurance.
B. The Company and Indemnitee further recognize the substantial increase
in corporate litigation in general, subjecting officers and directors to
expensive litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited and is not currently available to
the Company.
C. Indemnitee does not regard the current protection avail-able as
adequate under the present circumstances, and Indemnitee and other officers and
directors of the Company may not be willing to continue to serve as officers and
directors without additional protection.
D. The Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as officers and directors of
the Company and to indemnify its officers and directors so as to provide them
with the maximum protection permitted by law.
Agreement
---------
Based upon the facts and premises contained in the above Background and in
----------
consideration of the mutual promises below, the Company and Indemnitee hereby
agree as follows:
1. Bylaw Indemnification and Expense Advancement. The Company agrees to
---------------------------------------------
advance expenses to Indemnitee and indemnify Indemnitee to the fullest extent
provided in the present Article XI of the Company's Bylaws, a copy of which is
attached hereto as Exhibit A and, to the extent specified in Section 2 below,
any subsequent amendments to the Company's Bylaws. For purposes of this
Agreement, subsequent references to indemnification shall include the
advancement of expenses.
2. Changes. In the event of any change, after the date of this
-------
Agreement, in any applicable law, statute, or rule which expands the right of a
Delaware corporation to indemnify a member of its board of directors or an
officer, such changes shall be automatically, without further action of the
parties, within the purview of Indemnitee's rights and Company's obligations,
under this Agreement. In the event of any change in any applicable law, statute
or
-1-
rule which narrows the right of a Delaware corporation to indemnify a member of
its board of directors or an officer, such changes, to the extent not other-wise
required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or the parties' right and obligations
hereunder. In the event of an amendment to the Company's bylaws which expands
the right of a Delaware corporation to indemnify a member of its board of
directors or an officer, such change shall be automatically, without further
action of the parties, within Indemnitee's rights and Company's obligations
under this Agreement. In the event of any amendment to the Company's bylaws
which narrows such right of a Delaware corporation to indemnify a member of its
board of directors or an officer, such change shall only apply to the
indemnification of the Indemnitee for acts committed, or lack of action, by
Indemnitee after such amendment. The Company agrees to give Indemnitee prompt
notice of amendments to the Company's bylaws which concern indemnification.
3. Nonexclusivity. The indemnification provided by this Agreement shall
--------------
not be deemed exclusive of any rights to which Indemnitee may be entitled under
the Company's Certificate of Incorporation, its Bylaws, any agreement, any vote
of share-holders or disinterested Directors, the Delaware General Corporation
Law, or otherwise, both as to action in Indemnitee's official capacity and as to
action in any other capacity while holding such office (an "Indemnified
Capacity"). The indemnification provided under this Agreement shall continue as
to Indemnitee for any action taken or not taken while serving in an Indemnified
Capacity even though Indemnitee may have ceased to serve in an Indemnified
Capacity at the time of any action, suit or other covered proceeding.
4. Notice and Procedure for Retaining Counsel to Defend Claim. Indemnitee
----------------------------------------------------------
shall give the Company prompt notice of any claim made against Indemnitee for
which indemnification will or could be sought under this Agreement, shall tender
sole control of the defense and settlement of such claim if the Company agrees
to assume the defense of the claim, and shall give the Company such information
and cooperation as the Company may reasonably request at the Company's expense.
Upon receipt of such notice, the Company may, by responsive notice to
Indemnitee, agree to assume the defense of such claim with counsel chosen by the
Company, with such selection to be subject to the Indemnitee's approval which
shall not be unreasonably withheld or delayed. The Indemnitee may participate in
the defense of such claim with counsel of Indemnitee's choice. However, so long
as the Company so retains counsel, the Company shall not be liable to Indemnitee
under this Agreement for any fees of counsel subsequently incurred by Indemnitee
with respect to such claim unless (a) the Company authorizes such fees, (b)
Indemnitee shall have reasonably concluded and notified the Company that there
may be a conflict of interest between the Company and Indemnitee in the conduct
of the defense of such claim, or (c) the Company ceases to employ such counsel.
5. Partial Indemnification. If Indemnitee is entitled under any
-----------------------
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgment, fines or penalties actually or reasonably
incurred by him in the investigation, defense, appeal or settlement of any civil
or criminal action, suit or proceeding, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such expenses, judgments, fines or penalties to which Indemnitee is entitled.
-2-
6. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
----------------------
that in certain instances, Federal law or public policy may override applicable
state law and prohibit the Company from indemnifying its directors and officers
under this Agreement or otherwise. For example, the Company and Indemnitee
acknowledge that the Securities and Exchange Commission (the "SEC") has taken
the position that indemnification is not permissible for liabilities arising
under certain federal securities laws, and federal legislation prohibits
indemnification for certain ERISA violations. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the SEC to submit questions of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee.
7. Severability. Nothing in this Agreement is intended to require or
------------
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
the Agreement. If the application of any provision or provisions of the
Agreement to any particular facts or circumstances shall be held to be invalid
or unenforceable by any court of competent jurisdiction, then (i) the validity
and enforceability of such provision or provisions as applied to any other
particular facts or circumstances and the validity of other provisions of this
Agreement shall not in any way be affected or impaired thereby and (ii) such
provision(s) shall be reformed without further action by the parties to make
such provision(s) valid and enforceable when applied to such facts and
circumstances with a view toward requiring Company to indemnify Indemnitee to
the fullest extent permissible by law.
8. Exceptions. Any other provision herein to the contrary
----------
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses
------------------------------
to Indemnitee with respect to proceedings or claims (except counter-claims or
cross claims) initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other statute or law or
otherwise as required by the Delaware General Corporation Law, but such
indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board of Directors finds it to be appropriate;
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses
------------------
incurred by Indemnitee with respect to any proceeding instituted by Indemnitee
to enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by Indemnitee in such
proceeding was not made in good faith or was frivolous;
(c) Insured Claims. To indemnify Indemnitee for expenses or
--------------
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) which
have been paid directly to Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the Company; or
-3-
(d) Claims under Section 16(b). To indemnify Indemnitee for expenses
--------------------------
or the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
9. Counterparts and Facsimile. This Agreement may be executed in one or
--------------------------
more counterparts, each of which shall constitute an original, or by facsimile.
10. Successors and Assigns. This Agreement shall be binding upon the
----------------------
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, and legal representatives and
permitted assigns. Indemnitee may not assign this Agreement without the prior
written consent of the Company.
11. Attorneys' Fees. In the event that any action is instituted by
---------------
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement or to enforce
or interpret any of the terms of this Agreement, Indemnitee shall be entitled to
be paid all court costs and expenses, including attorneys' fees, incurred by
Indemnitee in defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. Notice. All notices, requests, demands and other communications under
------
this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee, on the date of such
receipt, or (ii) if mailed by certified or registered mail with postage prepaid,
on the third business day after the date postmarked. Addresses for notice to
either party are as shown under Authorized Signatures at the end of this
---------------------
Agreement, or as subsequently modified by written notice.
13. Paragraph Headings. The paragraph and subparagraph headings in this
------------------
Agreement are solely for convenience and shall not be considered in its
interpretation.
14. Waiver. A waiver by either party of any term or condition of the
------
Agreement or of any breach of such term or condition, in any one instance, shall
not be deemed or construed to be a waiver of such term or condition or of any
subsequent breach of such term or condition.
15. Entire Agreement; Amendment. This Agreement contains the entire
---------------------------
integrated agreement and understanding between the parties concerning its
subject matter and supersedes all prior negotiations, representations or
agreements, whether written or oral, except for the Company's Certificate of
Incorporation and Bylaws. This Agreement may be amended only by a written
instrument signed by a duly authorized officer of Company or by Indemnitee.
16. Choice of Law and Forum. Except for that body of law governing choice
-----------------------
of law, this Agreement shall be governed by, and construed in accordance with,
internal laws of the
-4-
State of Delaware which govern transactions between Delaware residents. The
parties agree that any suit or proceeding in connection with, arising out of or
relating to this Agreement shall be instituted only in a Delaware Court of
Chancery, and the parties, for the purpose of any such suit or proceeding,
irrevocably agree and submit to the personal and subject matter jurisdiction and
venue of any such court in any such suit or proceeding and agree that service of
process may be effected in the same manner notice is given pursuant to Section
12 above.
17. Consideration. Part of the consideration the Company is receiving
-------------
from Indemnitee to enter into this Agreement is Indemnitee's agreement to serve
or to continue to serve, as applicable, for the present as a director and/or
officer of the Company. Nothing in this Agreement shall preclude the Indemnitee
from resigning as an officer and/or director of the Company nor the Company, by
action of its shareholders, board of directors, or officers, as the case may be,
from terminating the Indemnitee's services as an officer, director, and/or
employee, as the case may be, with or without cause.
[Remainder of Page Left Intentionally Blank]
-5-
Authorized Signatures
---------------------
In order to bind the parties to this Indemnification Agreement, their duly
authorized representatives have signed their names below on the dates indicated.
Docent, Inc.
By_______________________________________
_________________________________________
Printed Name and Title
0000 Xxxxxxxxxx Xxxx
-----------------------------------------
Xxxxxxxx Xxxx, XX 00000
-----------------------------------------
(address)
Date Executed:___________________________
AGREED TO AND ACCEPTED:
INDEMNITEE:
__________________________________
Signature
__________________________________
Printed Name
__________________________________
__________________________________
(address)
Date Executed:____________________
-6-
