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EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of this
day of , , by and between Digital Commerce Corporation, Inc., a Delaware
corporation (the "Company"), and ("Indemnitee"), a of the Company.
WHEREAS, the Company and Indemnitee recognize the substantial increase
in corporate litigation subjecting directors and executive officers to expensive
litigation risks; and
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve as directors and
executive officers of the Company and to indemnify its directors and executive
officers so as to provide them with the maximum protection permitted by law.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Indemnification.
(a) Third Party Proceedings. The Company shall indemnify
Indemnitee if Indemnitee is or was 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
(other than an action by or in the right of the Company) by reason of
(i) the fact that Indemnitee is or was a director, officer, employee or
agent of the Company, (ii) the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise or (iii) any action or inaction by the Indemnitee while
acting as such a director, officer, employee or agent, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection
with such action, suit or proceeding 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 Indemnitee's
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, 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, had reasonable cause to believe that Indemnitee's
conduct was unlawful.
(b) Proceedings by or in the Right of the Company. The Company
shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Company to procure a judgment
in its favor by reason of (i) the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, (ii) the fact that
Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust
INDEMNIFICATION AGREEMENT - Page 1
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or other enterprise or (iii) any action or inaction by the Indemnitee
while acting as such a director, officer, employee or agent, against
expenses (including attorneys' fees) actually and reasonably incurred
by Indemnitee in connection with the defense or settlement of such
action or suit 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 except that no 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 permitted by Section 1(c) below or 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 the adjudication
of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of the State of Delaware or such
other court shall deem proper.
(c) Additional Rights. Without limiting the generality of
Section 4(a) and notwithstanding anything to the contrary which may be
contained in the provisions of subsections (a) and (b) of this Section
1, the Company further agrees, to the extent permitted by applicable
law and to the extent not prohibited by public policy, to indemnify
Indemnitee against and hold Indemnitee harmless from any judgments,
fines, losses, claims, costs (including, without limitation, court
costs and costs of settlement actually and reasonably incurred by
Indemnitee), and expenses (including, without limitation, attorneys'
fees) sustained or incurred by Indemnitee in connection with any
threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, including an action
by or in the right of the Company and/or its stockholders, to which
Indemnitee is, was or at any time becomes a party, or is threatened to
be made a party, by reason of (i) the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, (ii) the fact that
Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or (iii) any
action or inaction by Indemnitee as such a director, officer, employee
or agent; provided indemnification shall be made pursuant to this
Section 1(c) only 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, did not have reasonable cause to believe that Indemnitee's
conduct was unlawful.
(d) Mandatory Payment of Expenses. To the extent that
Indemnitee, as a present or former director or officer of the Company,
has been successful on the merits or otherwise (including a settlement)
in defense of any action, suit or proceeding referred to in Subsections
(a), (b) and (c) of this Section 1 or in defense of any claim, issue or
matter therein or any portion thereof, Indemnitee shall be indemnified
against expenses (including attorneys' fees) and any costs of
settlement actually and reasonably incurred by Indemnitee in connection
therewith.
INDEMNIFICATION AGREEMENT - Page 2
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2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. Expenses (including attorneys'
fees) incurred by Indemnitee, in defending any civil, criminal,
administrative or investigative action, suit or proceeding referenced
in Section 1 hereof shall be paid by the Company in advance of the
final disposition of such action, suit or proceeding at the written
request of the Indemnitee, provided the Indemnitee undertakes to repay
such amount to the extent that it is ultimately determined that
Indemnitee is not entitled to indemnification with respect to such
expenses. Prompt payment shall be made of any request for an advance
pursuant to this Section 2(a). Indemnitee may contest any refusal to
make an advance by petitioning a court of appropriate jurisdiction to
make an independent determination respecting Indemnitee's right to
receive an advance, in accordance with the terms of Section 3 hereof.
(b) Indemnification Procedure. Any indemnification under and
pursuant to Section 1(a), 1(b) or 1(c) (unless ordered by a court)
shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of Indemnitee as a present or
former director, officer, employee or agent is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct set forth in Section 1(a), 1(b) or 1(c). Within 45 days
following receipt of a request for indemnification provided pursuant to
Section 1(a), 1(b) or 1(c), a determination shall be made whether the
Indemnitee has met the standard of conduct required for
indemnification. Such determination shall be made, with respect to
Indemnitee who is a director or officer at the time of determination,
(i) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, (ii) by a
committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (iii) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion or (iv) by the Company's stockholders.
Promptly upon determination that the Indemnitee has met the standard of
conduct required for indemnification, payment will be made to
Indemnitee. Indemnitee may contest a determination that Indemnitee has
not met the relevant standard of conduct for indemnification by
petitioning a court of appropriate jurisdiction to make an independent
determination respecting the right of indemnification, in accordance
with the terms of Section 3 hereof.
3. Enforcement of Rights. The right to indemnification or advances as
provided by this Agreement shall be enforceable by Indemnitee in any court of
competent jurisdiction. The burden of proving that indemnification or advances
are appropriate shall be on the Indemnitee. Neither the failure of the Company
(including its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification or advances are proper under the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including its Board of Directors, independent
legal counsel or stockholders) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct. The Company
agrees to indemnify the Indemnitee against and hold the Indemnitee harmless from
any judgments, fines, losses, claims, costs
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(including, without limitation, costs of settlement actually and reasonably
incurred by Indemnitee) and expenses (including, without limitation, attorney's
fees and court costs) sustained or incurred by Indemnitee in connection with a
successful action, suit or proceeding to establish Indemnitee's rights to
indemnification or advances pursuant to this Agreement.
4. Additional Rights; Non-Exclusivity.
(a) Scope. Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify the Indemnitee to the
full extent permitted by law, notwithstanding that such indemnification
is not specifically authorized by the other provisions of this
Agreement, the Company's Certificate of Incorporation, the Company's
Bylaws or by statute. In the event of any changes 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 its officers, such changes shall be, ipso facto, within
the purview of Indemnitee's rights, and Company's obligations, under
this Agreement. In the event of any changes in any applicable law,
statute, or rule which narrow the right of a Delaware corporation to
indemnify a member of its Board of Directors or its officers, such
changes, to the extent not otherwise required by such law, statute or
rule to be applied to this Agreement shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(b) Nonexclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Agreement shall not
be deemed exclusive of any rights to which an Indemnitee may be
entitled under the Company's Certificate of Incorporation, the
Company's Bylaws, any agreement, any vote of stockholders or
disinterested Directors, the General Corporation Law of the State of
Delaware, or otherwise, both as to action or inaction in Indemnitee's
official capacity and as to action or inaction in another capacity
while holding such office. The indemnification provided under this
Agreement shall continue as to Indemnitee even though Indemnitee may
have ceased to be a director or officer of the Company.
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, judgments, fines or penalties actually or reasonably
incurred by Indemnitee 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.
6. Officer and Director Liability Insurance. The Company shall, from
time to time, make the good faith determination whether or not it is practicable
for the Company to obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors of the
Company with coverage for losses from wrongful acts, or to ensure the Company's
performance of its indemnification obligations under this
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Agreement. Among other considerations, the Company will weigh the costs of
obtaining such insurance coverage against the protection afforded by such
coverage.
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 provisions of this Agreement shall be severable
as provided in this Section 7. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted by
any applicable portion of this Agreement that shall not have been invalidated,
and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms. Furthermore, to the extent any provision of this
Agreement is deemed unenforceable, it is the intent of the parties hereto that
this Agreement be deemed amended to cause, to the maximum extent permissible,
such unenforceable provision to be enforceable.
8. Choice of Law. This Agreement is made and entered into pursuant to
Section 145(f) of the General Corporation Law of the State of Delaware and this
Agreement shall be governed by and its provisions construed in accordance with
the laws of the State of Delaware.
9. Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition
precedent to Indemnitee's right to be indemnified under this Agreement, give the
Company notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to:
Digital Commerce Corporation, Inc.
Attention: General Counsel
000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Notice shall be deemed received three days after the date postmarked if sent by
certified or registered mail, properly addressed. In addition, Indemnitee shall
give the Company such information and cooperation as it may reasonably require
and as shall be within Indemnitee's power.
10. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original.
11. 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, legal representatives and assigns.
12. 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,
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incurred by Indemnitee with respect to such action, unless as a part of such
action, a 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.
13. Miscellaneous. For purposes of this Agreement, references to "the
Company" shall include, in addition to the Company, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Agreement with respect to the Company as
he would have with respect to such constituent corporation if its separate
existence had continued. In addition, references contained in this Agreement to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Company" shall
include any service as a director, officer, employee or agent of the Company
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 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" as referred to in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
DIGITAL COMMERCE CORPORATION
By:
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Xxxx Xxxxxx,
President and Chief Executive Officer
AGREED TO AND ACCEPTED:
INDEMNITEE
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