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EXHIBIT 10(N)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT made and entered into this
day of May, 2002 ("Agreement"), by and between DeVRY INC., a
Delaware corporation, and its wholly owned subsidiaries
("Company"), and ________________________("Indemnitee").
WHEREAS, highly competent persons are reluctant to serve
publicly-held corporations as directors or in other capacities
unless they are provided 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 corporation; and
WHEREAS, the difficulties from time to time in obtaining
adequate insurance on a cost effective basis and uncertainties
relating to indemnification increase the difficulty of attracting
and retaining such persons; and
WHEREAS, the Board of Directors has determined that the
inability to attract and retain such persons is detrimental to
the best interests of the Company's stockholders and that the
Company should act to assure such persons that there will be
increased certainty of such protection in the future; and
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 they
will serve or continue to serve the Company free from undue
concern that they will not be so indemnified; and
WHEREAS, this Agreement is being entered into as part of the
Indemnitee's total compensation for serving as a director; and
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WHEREAS, Indemnitee is willing to serve or to continue to
serve and to take on additional service for or on behalf of the
Company on the condition that Indemnitee be so indemnified;
NOW THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and the Indemnitee do
hereby covenant and agree as follows:
Section 1. Services by Indemnitee. Indemnitee agrees to
serve as a director of the Company and agrees to the
indemnification provisions provided for herein. 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 of law), in which event the Company shall have no
obligation under this Agreement to continue Indemnitee in any
such position.
Section 2. Indemnification. The Company shall indemnify
Indemnitee to the fullest extent permitted by applicable law in
effect on the date hereof or as such laws may from time to time
be amended. Without diminishing the scope of the indemnification
provided by this Section 2, the rights of indemnification of
Indemnitee provided hereunder shall include but shall not be
limited to those rights set forth hereinafter, except to the
extent expressly prohibited by applicable law.
Section 3. Action or Proceeding Other Than an Action by or in
the Right of the Company. Indemnitee shall be entitled to the
indemnification rights provided in this Section if Indemnitee is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature, other than
an action by or in the right of the Company, by reason of the
fact that Indemnitee is or was a director, officer, employee,
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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 or by reason of anything done or
not done by Indemnitee in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified against expenses
(including attorneys' fees), costs, judgments, penalties, fines
and amounts paid in settlements actually and reasonably incurred
by Indemnitee in connection with such action, suit or proceeding
(including, but not limited to, the investigation, defense or
appeal thereof), if Indemnitee acted in good faith and in a
manner 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
the conduct was unlawful; provided, however, the Company shall
not be obligated to indemnify the Indemnitee in connection with
any actions, suits or proceedings if the indemnification relates
to any "short-swing" disgorgement or similar liability arising
under Section 16(b) or 16(c) of the Securities Exchange Act of
1934, as amended, or any rules or regulations promulgated
thereunder.
Section 4. Actions by or in the Right of the Company.
Indemnitee shall be entitled to the indemnification rights
provided in this Section if Indemnitee is a person who was or is
made a party or is threatened to be made a party to any
threatened, pending or completed action or suit brought by or in
the right of the Company to procure a judgment in its favor by
reason of the fact that 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 by reason of anything done
or not done by Indemnitee in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified against expenses
(including attorneys' fees) and costs actually and reasonably
incurred by Indemnitee in connection with such action or suit
(including, but not limited to the investigation, defense,
settlement or appeal thereof) if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not
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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 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 or suit was brought shall
determine upon application that, despite such adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification
for such expenses and costs as such court shall deem proper. The
Company shall not be obligated to indemnify the Indemnitee in
connection with any actions, suits or proceedings if the
indemnification relates to any "short-swing" disgorgement or
similar liability arising under Section 16(b) or 16(c) of the
Securities Exchange Act of 1934, as amended, or any rules or
regulations promulgated thereunder
Section 5. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this
Agreement, to the extent that Indemnitee has served as a witness
on behalf of the Company or has been successful on the merits or
otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit or
proceeding referred to in Sections 3 and 4 hereof, or in defense
of any claim, issue or matter therein, Indemnitee shall be
indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by Indemnitee
or on Indemnitee's behalf in connection therewith.
Section 6. Partial Indemnification. If Indemnitee is only
partially successful in the defense, investigation, settlement or
appeal of any action, suit, investigation or proceeding described
in Section 3 or 4 hereof, and as a result is not entitled under
Section 5 hereof to indemnification by the Company for the total
amount of the expenses (including attorneys' fees), costs,
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judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him, the Company shall
nevertheless indemnify Indemnitee, as a matter of right pursuant
to Section 5 hereof, to the extent Indemnitee has been partially
successful.
Section 7. Determination of Entitlement to Indemnification.
Upon written request by Indemnitee for indemnification pursuant
to Section 3 or 4 hereof, the entitlement of 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: (a) the Board of Directors
of the Company by a majority vote of the Disinterested Directors
(as hereinafter defined), even though less than a quorum; or (b)
by a committee of Disinterested Directors designated by a
majority vote of such Directors, even though less than a quorum;
or (c) if there are no Disinterested Directors, or if the
Disinterested Directors direct by majority vote, by Independent
Counsel (as hereinafter defined) in a written opinion to the
Board of Directors, a copy of which shall be delivered to
Indemnitee; or (d) by the stockholders. Such Independent Counsel
shall be selected by the Disinterested Directors by majority vote
and approved by Indemnitee. Upon failure of the Board of
Directors to so select such Independent Counsel or upon failure
of 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 no later than 60 days after receipt by the Company of a
written request for indemnification. Such request shall include
documentation or information which is necessary for such
determination and which is reasonably available to Indemnitee.
Any costs or expenses (including attorneys' fees) incurred by
Indemnitee in connection with Indemnitee's request for
indemnification hereunder shall be borne by the Company. The
Company hereby indemnifies and agrees to hold Indemnitee harmless
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therefore irrespective of the outcome of the determination of
Indemnitee's entitlement to indemnification. If the person
making such determination shall determine that Indemnitee is
entitled to indemnification as to part (but not all) of the
application for indemnification, such person shall reasonably
prorate such partial indemnification among such claims, issues or
matters.
Section 8. Presumptions and Effect of Certain Proceedings.
The Secretary of the Company shall, promptly upon receipt of
Indemnitee's request for indemnification, advise in writing the
Board of Directors or such other person or persons empowered to
make the determination as provided in Section 7 that Indemnitee
has made such request for indemnification. Upon making such
request for indemnification, 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. If the person or persons so empowered to
make such determination shall have failed to make the requested
indemnification within 60 days after receipt by the Company of
such request, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee
shall be absolutely entitled to such indemnification, absent
actual and material fraud in the request for indemnification.
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
Indemnitee did not act in good faith and in a manner which
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, that Indemnitee had reasonable cause to
believe that Indemnitee's conduct was unlawful or (b) otherwise
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adversely affect the rights of Indemnitee to indemnification
except as may be provided herein.
Section 9. Advancement of Expenses and Costs. All reasonable
expenses and costs incurred by Indemnitee (including attorneys'
fees, retainers and advances of disbursements required of
Indemnitee) shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding at the request of
Indemnitee within twenty days after the receipt by the Company of
a statement or statements from Indemnitee requesting such advance
or advances from time to time. Indemnitee's entitlement to such
expenses shall include those incurred in connection with any
proceeding by Indemnitee seeking an adjudication pursuant to this
Agreement. Such statement or statements shall reasonably
evidence the expenses and costs incurred by him in connection
therewith and shall include or be accompanied by an undertaking
by or on behalf of Indemnitee to repay such amount if it is
ultimately determined that Indemnitee is not entitled to be
indemnified against such expenses and costs by the Company as
provided by this Agreement or otherwise.
Section 10. Remedies of Indemnitee in Cases of Determination
not to Indemnify or to Advance Expenses. In the event that a
determination is made that Indemnitee is not entitled to
indemnification hereunder or if payment has not been timely made
following a determination of entitlement to indemnification
pursuant to Sections 7 and 8, or if expenses are not advanced
pursuant to Section 9, 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 Indemnitee's
entitlement to such indemnification or advance. The Company
shall not oppose Indemnitee's right to seek any such adjudication
or any other claim. Such judicial proceeding shall made de novo
and Indemnitee shall not be prejudiced by reason of a
determination (if so made) that Indemnitee is not entitled to
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indemnification. If a determination is made or deemed to have
been made pursuant to the terms of Section 7 or Section 8 hereof
that Indemnitee is entitled to indemnification, the Company shall
be bound by such determination and is precluded from asserting
that such determination has not been made or that the procedure
by which such determination was made is valid, binding and
enforceable. The Company further agrees to stipulate in any such
court that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertion to the
contrary. If the court shall determine that Indemnitee is
entitled to any indemnification hereunder, the Company shall pay
all reasonable expenses (including attorneys' fees) and costs
actually incurred by Indemnitee in connection with such
adjudication (including, but not limited to, any appellate
proceedings).
Section 11. Other Rights to Indemnification. The
indemnification and advancement of expenses (including attorneys'
fees) and costs provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may now or in
the future be entitled under any provision of the Company's
Certificate of Incorporation or By-Laws, any agreement, a vote of
stockholders or of the Disinterested Directors, any provision of
law or otherwise.
Section 12. Attorneys' Fees and Other Expenses to Enforce
Agreement. In the event that 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 Indemnitee's
rights under, or to recover damages for breach of, this
Agreement, Indemnitee, if Indemnitee 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 him.
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Section 13. Duration of Agreement. This Agreement shall
continue until and terminate upon the later of (a) 10 years after
Indemnitee has ceased to occupy any of the positions or have any
of the relationships described in Section 3 or 4 of this
Agreement or (b) the final termination of all pending or
threatened actions, suits, proceedings or investigations with
respect to Indemnitee. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the
benefit of Indemnitee and Indemnitee's spouse, assigns, heirs,
devisees, executors, administrators or other legal
representatives.
Section 14. Supersedes Prior Agreements. This Agreement
replaces and supersedes any other agreement or agreements, oral
or written, that the Company may have with Indemnitee with
respect to the subject matter covered by this Agreement.
Section 15. Severability. If any provision or provisions of
this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever (a) the validity,
legality and enforceability of the remaining provisions of this
Agreement (including without limitation, all portions of any
paragraphs of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves
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, without
limitation, 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 manifested by the provision held invalid, illegal or
unenforceable.
Section 16. Identical Counterparts. This Agreement may be
executed in 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
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counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this
Agreement.
Section 17. 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.
Section 18. Definitions. For purposes of this Agreement:
(a) "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 Indemnitee.
(b) "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 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 Indemnitee in an action to
determine Indemnitee's right to indemnification under this
Agreement.
(c) "other entity" shall include employee benefit plans,
references to "fines" shall include any excise taxes assessed on
a person with respect to any employee benefit plan; and
references to "serving at the request of the Company" shall
include any service as a director, officer, employee, agent or
fiduciary of the Company which imposes duties on, or involves
services by, such director, officer, employee, agent or fiduciary
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in manner
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such person reasonably believed to be in the interest 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 Company".
Section 19. Modification and Waiver. 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 provisions hereof
(whether or not similar) nor shall such waiver constitute a
continuing waiver.
Section 20. Notice by Indemnitee. Indemnitee agrees promptly
to notify the Company in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information
or other document relating to any matter which may be subject to
indemnification covered hereunder, either civil, criminal or
investigative.
Section 21. Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given (a) upon personal
delivery to the party to be notified, (b) on the fifth business
day after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, (c) on the next
business day after dispatch via nationally recognized overnight
courier or (d) upon confirmation by the party to be put on notice
of receipt of transmission by facsimile, all addressed to the
party to be notified at the address indicated for such party
below, or at such other address as such party may designate by
ten (10) days' advance written notice to the other parties.
Notices should be provided in accordance with this Section at the
following addresses:
(a) if to Indemnitee, to:
___________________
___________________
___________________
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(b) if to the Company, to:
DeVRY INC.
Xxx Xxxxx Xxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Section 22. Governing Law. The parties agree that this
Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
DEVRY INC.
By:___________________________
INDEMNITEE
______________________________
