Exhibit 10.2a
AMENDED AND RESTATED
INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement (this "Agreement") is
dated for reference purposes only as of June 25, 2001, but is made and entered
into effective as of November 21, 2000, by and between Primal Solutions, Inc., a
Delaware corporation (the "Company"), and *1 (the "Indemnitee").
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W I T N E S S E T H:
WHEREAS, the interpretation of ambiguous statutes, regulations and bylaws
regarding indemnification of directors and officers may be too uncertain to
provide such directors and officers with adequate notice of the legal, financial
and other risks to which they may be exposed by virtue of their service as such;
and
WHEREAS, damages sought against directors and officers in shareholder or
similar litigation by class action plaintiffs may be substantial, and the costs
of defending such actions and of judgments in favor of plaintiffs or of
settlement therewith may be prohibitive for individual directors and officers,
without regard to the merits of a particular action and without regard to the
culpability of, or the receipt of improper personal benefit by, any named
director or officer to the detriment of the corporation; and
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WHEREAS, the issues in controversy in such litigation usually relate to the
knowledge, motives and intent of the director or officer, who may be the only
person with firsthand knowledge of essential facts or exculpating circumstances
who is qualified to testify in such person's defense regarding matters of such a
subjective nature, and the long period of time which may elapse before final
disposition of such litigation may impose undue hardship and burden on a
director or officer or on such person's estate in launching and maintaining a
proper and adequate defense for a director or officer or for such person's
estate against claims for damages; and
WHEREAS, the Company is organized under the Delaware General Corporation
Law (the "DGCL") and Section 145 of the DGCL empowers corporations to indemnify
and advance expenses to a person serving as a director, officer, employee or
agent of a corporation and to persons serving at the request of the corporation
as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, and further provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, said section "shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office"; and
WHEREAS, the Certificate of Incorporation of the Company (as it may be
amended or amended and restated from time to time, the "Certificate of
Incorporation") provides that the Company "shall indemnify all persons whom it
may indemnify to the fullest extent permitted by the DGCL"; and
WHEREAS, the Board of Directors and stockholders of the Company (the
"Board") have concluded that it is reasonable and prudent for the Company
contractually to obligate itself to indemnify in a reasonable and adequate
manner the Indemnitee and to assume for itself maximum liability for expenses
and damages in connection with claims lodged against the Indemnitee for such
person's decisions and actions as a director, officer, employee or agent of the
Company and its subsidiaries; and
WHEREAS, the Company and the Indemnitee have previously entered into that
certain Indemnification Agreement dated as of November 21, 2000 (the "Original
Agreement"); and
WHEREAS, the Company and the Indemnitee desire to amend and restate the
Original Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
each of the parties hereto, the parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings
set forth below:
A. "Board" shall mean the Board of Directors of the Company.
B. "Corporate Status" shall mean the status of a person who is or was a
director, officer, employee or agent of the Company, or is or was or agreed to
become a member of any committee of the Board, and the status of a person who is
or was serving or has agreed to serve at the request of the Company as a
director, officer, partner (including service as a general partner of any
limited partnership), member, trustee, employee, or agent of another foreign or
domestic corporation, partnership, limited liability company, joint venture,
trust, other incorporated or unincorporated entity or enterprise or employee
benefit plan. For the purposes of this Agreement, any person serving as a
director, officer, partner, member, trustee, employee, or agent of any
subsidiary of the Company or any employee benefit plan of the Company or any of
its subsidiaries shall be deemed to be so serving at the request of the Company,
and no
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corporate or other action shall be or be deemed to be required to evidence any
such request.
C. "Disinterested Director" shall mean a director of the Company who is not
a party to the Proceeding in respect of which indemnification is being sought by
the Indemnitee.
D. "Expenses" shall mean any and all expenses actually and reasonably
incurred directly or indirectly in connection with a Proceeding, including,
without limitation, all attorneys' fees, retainers, court costs, transcript
costs, fees of experts, investigation fees and expenses, accounting and witness
fees, travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
E. "Good Faith" shall mean, when used with reference to an act or omission
of the Indemnitee, an act or omission the Indemnitee reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
Indemnitee's conduct was unlawful.
F. "Liabilities" shall mean liabilities of any type whatsoever, including,
without limitation, any judgments, fines, excise taxes and penalties under the
Employee Retirement Income Security Act of 1974, as amended, penalties and
amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such judgments,
fines, penalties or amounts paid in settlement) actually and reasonably incurred
directly or indirectly in connection with the investigation, defense, settlement
or appeal of any Proceeding or any claim, issue or matter therein.
G. "Proceeding" shall mean any threatened, pending or completed action,
suit, proceeding, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other actual, threatened or
completed proceeding, whether civil, criminal, administrative, arbitrative or
investigative, any appeal or appeals therefrom, and any inquiry or investigation
that could lead to any of the foregoing.
H. "Voting Securities" shall mean any securities of the Company that are
entitled to vote generally in the election of directors.
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ARTICLE II
TERM OF AGREEMENT
This Agreement shall continue until, and terminate upon the later to
occur of (i) the death of the Indemnitee; or (ii) the final termination of all
Proceedings (including possible Proceedings) in respect of which the Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and of
any Proceeding commenced by the Indemnitee regarding the interpretation or
enforcement of this Agreement. This Agreement shall govern the indemnification
rights of the Indemnitee for all Liabilities and Expenses in connection with any
Proceeding instituted or commenced on or after the date hereof notwithstanding
that any alleged act or omission of the Indemnitee occurred prior to the date
hereof. The rights of Indemnitee under this Agreement shall survive termination
of Indemnitee's status as a director, officer, employee, or agent of the
Company.
ARTICLE III
NOTICE OF PROCEEDINGS; DEFENSE OF CLAIMS
Section 3.1 Notice of Proceedings. The Indemnitee will notify the Company
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promptly in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder, but the Indemnitee's failure to so notify the Company shall
not relieve the Company from any liability to the Indemnitee under this
Agreement.
Section 3.2 Defense of Claims. The Company will be entitled to participate,
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at the expense of the Company, in any Proceeding of which the Company has
notice. The Company jointly with any other indemnifying party similarly notified
of any Proceeding will be entitled to assume the defense of the Indemnitee
therein, with counsel reasonably satisfactory to the Indemnitee; provided,
however, that the Company shall not be entitled to assume the defense of the
Indemnitee in any Proceeding if the Indemnitee has reasonably concluded that
there may be a conflict of interest between the Company and the Indemnitee with
respect to such Proceeding. The Company will not be liable to the Indemnitee
under this Agreement for any Expenses incurred by the Indemnitee in connection
with the defense of any Proceeding, other than reasonable costs of investigation
or as otherwise provided below, after notice from the Company to the Indemnitee
of its election to assume the defense of the Indemnitee therein. The Indemnitee
shall have the right to employ his or her own counsel in any such Proceeding,
but the fees and expenses of such counsel incurred after notice from the Company
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 Company; (ii) the Indemnitee shall have reasonably concluded
that counsel employed by the Company may not adequately represent the Indemnitee
and shall have so informed the Company; or (iii)
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the Company shall not in fact have employed counsel to assume the defense of the
Indemnitee in such Proceeding or such counsel shall not, in fact, have assumed
such defense or such counsel shall not be acting, in connection therewith, with
reasonable diligence; and in each such case the fees and expenses of the
Indemnitee's counsel shall be advanced by the Company.
Section 3.3 Settlement of Claims. The Company shall not settle any
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Proceeding in any manner which would impose any Liability, penalty or limitation
on the Indemnitee, or cause the Indemnitee to become subject to or bound by any
injunction, order, judgment or decree, without the written consent of the
Indemnitee, which consent shall not be unreasonably withheld or delayed. The
Company shall not be liable to indemnify the Indemnitee under this Agreement or
otherwise for any amounts paid in settlement of any Proceeding effected by the
Indemnitee without the Company's written consent, which consent shall not be
unreasonably withheld or delayed.
ARTICLE IV
INDEMNIFICATION
Section 4.1 In General. Upon the terms and subject to the conditions set
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forth in this Agreement, the Company shall hold harmless and indemnify the
Indemnitee against any and all Liabilities and Expenses actually incurred by or
for the Indemnitee in connection with any Proceeding (whether the Indemnitee is
or becomes a party, a witness or otherwise is a participant in any role) to the
fullest extent required or permitted by applicable law in effect on the date
hereof and to such greater extent as applicable law may hereafter from time to
time require or permit. To the extent that the Indemnitee has at any time
heretofore served or at any time hereafter serves as a director, officer,
employee, partner, trustee or agent of, for, or on behalf of any subsidiary of
the Company, the Company expressly agrees and acknowledges that Indemnitee was
or is serving in each such capacity at the request of the Company.
Section 4.2 Proceeding other Than a Proceeding by or in the Right of the
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Company. Without limiting the generality of Section 4.1, if the Indemnitee was
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or is a party or is threatened to be made a party to any Proceeding (whether the
Indemnitee is or becomes a party, a witness or otherwise is a participant in any
role) (other than a Proceeding by or in the right of the Company) by reason of
the Indemnitee's Corporate Status, or by reason of any alleged act or omission
by the Indemnitee in any such capacity, the Company shall, subject to the
limitations set forth in Section 4.6 below, hold harmless and indemnify the
Indemnitee against any and all Liabilities and Expenses of the Indemnitee in
connection with the Proceeding if the Indemnitee acted in Good Faith.
Section 4.3 Proceeding by or in the Right of the Company. Without limiting
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the generality of Section 4.1, if the Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (whether the Indemnitee is or
becomes a party, a witness or otherwise is a participant in any role) by or in
the right of the Company to procure a
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judgment in its favor by reason of the Indemnitee's Corporate Status, or by
reason of any alleged act or omission by the Indemnitee in any such capacity,
the Company shall, subject to the limitations set forth in Section 4.6 below,
hold harmless and indemnify the Indemnitee against any and all Expenses of the
Indemnitee in connection with the Proceeding if the Indemnitee acted in Good
Faith; except that no indemnification under this Section 4.3 shall be made in
respect of any claim, issue or matter as to which the Indemnitee shall have been
finally adjudged, pursuant to a judgment or other adjudication which is final
and has become nonappealable, to be liable to the Company, unless a court of
appropriate jurisdiction (including, but not limited to, the court in which such
Proceeding was brought) shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnification for such
Expenses which such court shall deem proper.
Section 4.4 Indemnification of a Party Who is Wholly or Partly Successful.
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Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee is or has been successful on the merits or otherwise in defense of
any Proceeding, the Indemnitee shall be indemnified by the Company to the
maximum extent consistent with law against all Expenses of the Indemnitee in
connection therewith. If the Indemnitee is not wholly successful in such
Proceeding but is or has been successful on the merits or otherwise in defense
of one or more but less than all claims, issues or matters in such Proceeding,
the Company shall hold harmless and indemnify the Indemnitee to the maximum
extent consistent with law against all Expenses of the Indemnitee in connection
with each successfully resolved claim, issue or matter in such Proceeding.
Resolution of a claim, issue or matter by dismissal, with or without prejudice,
shall be deemed a successful result as to such claim, issue or matter.
Section 4.5 Indemnification for Expenses of Witness. Notwithstanding any
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other provision of this Agreement, to the extent that the Indemnitee, by reason
of the Indemnitee's Corporate Status, has prepared to serve or has served as a
witness in any Proceeding, or has participated in discovery proceedings or other
trial preparation, the Indemnitee shall be held harmless and indemnified against
all Expenses of the Indemnitee in connection therewith.
Section 4.6 Specific Limitations on Indemnification. In addition to the
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other limitations set forth in this Article IV, and notwithstanding anything in
this Agreement to the contrary, the Company shall not be obligated under this
Agreement to make any payment to the Indemnitee for indemnification of
Liabilities or Expenses, or both, in connection with any Proceeding:
1. To the extent that payment of any of the Liabilities or Expenses of
the Indemnitee is actually made to the Indemnitee under any insurance policy or
is made on behalf of the Indemnitee by or on behalf of the Company otherwise
than pursuant to this Agreement;
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2. For any acts or omissions or transactions from which a director may
not be relieved of liability under Section 102(b)(7) of the DGCL; or
3. For an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Company within the meaning of section 16(b) of
the Securities Exchange Act of 1934, as amended, or similar provisions of any
federal, state or local statute or regulation.
ARTICLE V
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI hereof, the
Company shall pay or reimburse all Expenses of the Indemnitee incurred by or for
the Indemnitee in connection with any Proceeding in advance of the final
disposition of such Proceeding, provided that the Company receives an
undertaking by or on behalf of the Indemnitee to repay such amounts if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
by the Company under applicable law (the "Undertaking"). The Undertaking shall
reasonably evidence the Expenses incurred by or for the Indemnitee. The Company
shall pay all such Expenses within five (5) business days after the receipt by
the Company of the Undertaking. The Undertaking shall be unsecured and interest
free, and shall be made and accepted by the Company without reference to the
Indemnitee's financial ability to make repayment.
ARTICLE VI
PROCEDURE FOR PAYMENT;
DETERMINATION OF RIGHT TO INDEMNIFICATION
Section 6.1 Procedure for Payment. To obtain indemnification for
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Liabilities under this Agreement, and to obtain indemnification for Expenses not
paid in advance of the final disposition of any Proceeding pursuant to Article
V, the Indemnitee shall submit to the Company a written request for payment,
including with such request such documentation as is reasonably available to the
Indemnitee and reasonably necessary to determine whether, and to what extent,
the Indemnitee is entitled to indemnification and payment hereunder. The
Secretary of the Company, or such other person as shall be designated by the
Board of Directors, promptly upon receipt of a request for indemnification shall
advise the Board of Directors, in writing, of such request. Any indemnification
payment due hereunder shall be paid by the Company no later than five (5)
business days following the determination, pursuant to this Article VI, that
such indemnification payment is proper hereunder.
Section 6.2 No Determination Necessary when the Indemnitee was Successful.
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To the extent the Indemnitee is or has been successful on the merits or
otherwise in defense of any Proceeding, or in defense of any claim, issue or
matter
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therein, the Company shall indemnify the Indemnitee against Expenses of the
Indemnitee in connection with any such Proceeding or any claim, issue or matter
therein as provided in Section 4.4.
Section 6.3 Determination of Good Faith Act or Omission. In the event that
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Section 6.2 is inapplicable with respect to any Proceeding, or any claim, issue
or matter therein, the Company shall hold harmless and indemnify the Indemnitee
as provided herein unless the Company shall prove by clear and convincing
evidence to a forum listed in Section 6.4 that the Indemnitee did not act in
Good Faith.
Section 6.4 Forum for Determination. If the Indemnitee is serving as a
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director or officer of the Company at the time the determination is to be made,
the Indemnitee shall be entitled to select from among the following the forum in
which the validity of the Company's claim under Section 6.3 that the Indemnitee
is not entitled to indemnification will be heard:
1. A majority vote of the Directors who are Disinterested Directors,
even though less than a quorum;
2. By a committee of Disinterested Directors designated by a majority
vote of the Directors who are Disinterested Directors, even though less than a
quorum;
3. If there are no Disinterested Directors, or if such Directors so
direct, independent legal counsel selected by the Indemnitee, subject to the
approval of the Board, which approval shall not be unreasonably delayed or
denied, which counsel shall make such determination in a written opinion; or
4. The stockholders of the Company, by the affirmative vote of the
majority of the Voting Securities present in person or by proxy and entitled to
vote on the subject matter.
If the Indemnitee is not serving as a director or officer at the time the
determination is to be made, the Indemnitee shall be entitled to select from
among the forums set forth above, or to select any other person or persons
having corporate authority to act on the matter, including, without limitation,
the Board or any committee thereof or those persons who are authorized by
statute to determine whether to indemnify directors and officers.
As soon as practicable, and in no event later than thirty (30) days after
written notice of the Indemnitee's choice of forum pursuant to this Section 6.4,
the Company shall, at the expense of the Company, submit to the selected forum,
in such manner as the Indemnitee or the Indemnitee's counsel may reasonably
request, its claim that the Indemnitee is not entitled to indemnification, and
the Company shall act in the utmost good faith to assure the Indemnitee a
complete opportunity to defend against such claim. The fees and expenses of the
selected forum in connection with making the determination
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contemplated hereunder shall be paid by the Company. If the Company shall fail
to submit the matter to the selected forum within thirty (30) days after the
Indemnitee's written notice, or if the forum so empowered to make the
determination shall have failed to make the requested determination within
thirty (30) days after the matter has been submitted to it by the Company, the
requisite determination that the Indemnitee has the right to indemnification
hereunder shall be deemed to have been properly made and an indemnification
payment shall be made to Indemnitee no later than five business days following
such date, in accordance with Section 6.1.
Section 6.5 Right to Appeal. Notwithstanding a determination by any forum
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listed in Section 6.4 that the Indemnitee is not entitled to indemnification
with respect to a specific Proceeding, or any claim, issue or matter therein,
the Indemnitee shall have the right to apply to the court in which that
Proceeding is or was pending, or to any other court of competent jurisdiction,
for the purpose of enforcing the Indemnitee's right to indemnification pursuant
to this Agreement. Such enforcement action shall consider the Indemnitee's
entitlement to indemnification de novo, and the Indemnitee shall not be
prejudiced by reason of a prior determination that the Indemnitee is not
entitled to indemnification. The Company shall be precluded from asserting that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Company further agrees to stipulate in any such judicial
proceeding that the Company is bound by all the provisions of this Agreement and
is precluded from making any assertion to the contrary.
Section 6.6 Right to Seek Judicial Determination. Notwithstanding any other
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provision of this Agreement to the contrary, at any time after sixty (60) days
after a request for indemnification has been made to the Company (or upon
earlier receipt of written notice that a request for indemnification has been
rejected or the expiration of time within which any such payment must be made
hereunder) and before the third (3rd) anniversary of the making of such
indemnification request, the Indemnitee may petition a court of competent
jurisdiction, whether or not such court has jurisdiction over, or is the forum
in which is pending, the Proceeding, to determine whether the Indemnitee is
entitled to indemnification hereunder, and such court thereupon shall have the
exclusive authority to make such determination, unless and until such court
dismisses or otherwise terminates the Indemnitee's action without having made
such determination. The court, as petitioned, shall make an independent
determination of whether the Indemnitee is entitled to indemnification
hereunder, without regard to any prior determination in any other forum as
provided hereby.
Section 6.7 Expenses under this Agreement. Notwithstanding any other
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provision in this Agreement to the contrary, the Company shall indemnify the
Indemnitee against all Expenses incurred by the Indemnitee in connection with
any hearing, action, suit or proceeding under this Article VI involving the
Indemnitee and against all Expenses incurred by the Indemnitee in connection
with any other hearing, action, suit or proceeding between the Company and the
Indemnitee involving the interpretation or enforcement of the rights of the
Indemnitee under this Agreement, even if it is finally
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determined that the Indemnitee is not entitled to indemnification in whole or in
part hereunder, unless a court of competent jurisdiction determines that each of
the material assertions made by Indemnitee in connection with such hearing,
action, suit or proceeding was not made in good faith or was frivolous.
ARTICLE VII
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
Section 7.1 Burden of Proof. In making a determination with respect to
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entitlement to indemnification hereunder, the person, persons, entity or
entities making such determination shall presume that the Indemnitee is entitled
to indemnification under this Agreement and the Company shall have the burden of
proof to overcome that presumption.
Section 7.2 Effect of other Proceedings. The termination of any Proceeding
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or of any claim, issue or matter therein, 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.
Section 7.3 Reliance as Safe Harbor. For purposes of any determination of
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whether any act or omission of the Indemnitee was done or made in Good Faith,
each act or omission of the Indemnitee shall be deemed to be in Good Faith if
the Indemnitee's act or omission is based on the records or books of accounts of
the Company, including financial statements, or on information supplied to the
Indemnitee by the officers of the Company in the course of their duties, or on
the advice of legal counsel for the Company, or on information or records given
or reports made to the Company by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the Company.
The provisions of this section 7.3 shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be deemed
to have met the applicable standard of conduct set forth in this Agreement or
under applicable law.
Section 7.4 Actions of Others. The knowledge and/or actions, or failure to
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act, of any other director, officer, agent or employee of the Company shall not
be imputed to the Indemnitee for purposes of determining the right to
indemnification under this Agreement.
ARTICLE VIII
INSURANCE; OTHER INDEMNIFICATION ARRANGEMENTS
Section 8.1 Insurance. In the event that the Company maintains officers'
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and directors' or similar liability insurance to protect itself and any director
or officer of the
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Company against any expense, liability or loss, such insurance shall cover the
Indemnitee to at least the same degree as each other director and/or officer of
the Company.
Section 8.2 Other Arrangements. The Certificate of Incorporation and Bylaws
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of the Company and the DGCL permit the Company to purchase and maintain
insurance on behalf of the Indemnitee against any Liability asserted against or
incurred by him or any Expenses incurred by him or on his behalf in connection
with actions taken or omissions by the Indemnitee in his Corporate Status,
whether or not the Company would have the power to indemnify the Indemnitee
under this Agreement or under the DGCL, as they may be in effect from time to
time. The purchase of any such insurance shall in no way affect or limit the
rights and obligations of the Indemnitee and the Company hereunder, except as
expressly provided herein, and the execution and delivery of this Agreement by
the Indemnitee and the Company shall in no way affect or limit the rights and
obligations of such parties under or with respect to any other such
Indemnification Arrangement (as defined in Section 9.1).
ARTICLE IX
NON-EXCLUSIVITY, SUBROGATION AND MISCELLANEOUS
Section 9.1 Non-Exclusivity. The rights of the Indemnitee hereunder shall
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not be deemed exclusive of any other rights to which the Indemnitee may at any
time be entitled under any provision of law, the Certificate of Incorporation,
the Bylaws of the Company, as the same may be in effect from time to time, any
other agreement, a vote of stockholders of the Company or a resolution of
directors of the Company or otherwise (each an "Indemnification Arrangement"),
and to the extent that during the term of this Agreement the rights of the
then-existing directors and officers of the Company are more favorable to such
directors or officers than the rights currently provided to the Indemnitee under
this Agreement, the Indemnitee shall be entitled to the full benefits of such
more favorable rights. No amendment, alteration, rescission or replacement of
this Agreement or any provision hereof which would in any way limit the benefits
and protections afforded to an Indemnitee hereby shall be effective as to such
Indemnitee with respect to any act or omission by such Indemnitee in the
Indemnitee's Corporate Status prior to such amendment, alteration, rescission or
replacement.
Section 9.2 Subrogation. In the event of any payment under this Agreement,
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the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, who shall execute all documents required
and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
Section 9.3 Notices. All notices, requests, demands and other
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communications hereunder shall be in writing and shall be deemed to have been
duly given (i) if delivered by hand, by courier or by telegram and receipted for
by the party to whom said notice or other communication shall have been directed
at the time indicated on such receipt; (ii) if
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by facsimile, at the time shown on the confirmation of such facsimile
transmission; or (iii) if by U.S. certified or registered mail, with postage
prepaid, on the third business day after the date on which it is so mailed: if
to the Indemnitee, to the address shown with the Indemnitee's signature below;
if to the Company to: Primal Solutions, Inc., 00000 Xxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx, Attention: President, Facsimile No. (000) 000-0000; or to
such other address as may have been furnished to the Indemnitee by the Company
or to the Company by the Indemnitee, as the case may be.
Section 9.4 Governing Law. The parties agree that this Agreement shall be
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governed by, and construed and enforced in accordance with, the substantive laws
of the State of Delaware, without regard to the principles of choice of laws
thereof.
Section 9.5 Binding Effect. This Agreement shall be binding upon and inure
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to the benefit of the parties hereto and their heirs, executors, administrators,
legal representatives, successors and permitted assigns. This Agreement cannot
be assigned by the Company, either directly or indirectly, by purchase, merger,
consolidation or otherwise, without the express written consent of the
Indemnitee unless the Company shall have received, prior to such assignment,
from any successor or assignee (whether direct or indirect, by purchase, merger,
consolidation or otherwise) a written agreement, in form, scope and substance
reasonably satisfactory to the Indemnitee, expressly to assume and agree to be
bound by and to perform this Agreement in the same manner and to the same extent
as the Company would be required to perform absent such succession or
assignment.
Section 9.6 Severability. If any provision of this Agreement is held
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invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
It is the express intention and agreement of the Company and the Indemnitee that
any court of competent jurisdiction that interprets or enforces this Agreement
have full power and authority to reform any provision of this Agreement to
modify the invalid or unenforceable provision to achieve the parties' intent to
provide the Indemnitee with indemnification for Liabilities and Expenses to the
maximum extent permitted by applicable law.
Section 9.7 Waiver. No termination, cancellation, modification, amendment,
------
deletion, addition or other change in this Agreement, or any provision hereof,
or waiver of any right or remedy herein, shall be effective for any purpose
unless specifically set forth in a writing signed by the party or parties to be
bound thereby. The waiver of any right or remedy with respect to any occurrence
on one occasion shall not be deemed a waiver of such right or remedy with
respect to such occurrence on any other occasion.
Section 9.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement and understanding among the parties hereto in reference to the subject
matter hereof; provided, however, that the parties acknowledge and agree that
the DGCL and the
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Certificate of Incorporation and Bylaws of the Company and each of its
subsidiaries contain provisions on the subject matter hereof and that this
Agreement is not intended to, and does not, limit the rights or obligations of
the parties hereto pursuant to the DGCL or such instruments, or under any other
contract, agreement, insurance policy or other instrument or document heretofore
or hereafter existing which provides to the Indemnitee any right of
indemnification or reimbursement of any nature whatsoever.
Section 9.9 Titles. The titles to the articles and sections of this
------
Agreement are inserted for convenience of reference only and should not be
deemed a part hereof or affect the construction or interpretation of any
provisions hereof.
Section 9.10 Pronouns and Plurals. Whenever the context may require, any
--------------------
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
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Section 9.11 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together constitute one agreement binding on all the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PRIMAL SOLUTIONS, INC.
By: *2*
---------------------
Name: *2*
-------------------
Title: *2*
------------------
*3*
------------------------
as INDEMNITEE
Print Name: *3*
Address: *3*
Facsimile No.: *4*
*1* "Xxxxxxx Xxxxxx", "Xxxxxx X. Xxxxxxx", "Xxxxx Xxxxxx", respectively
*2* For Xxxxxxx Xxxxxx: "/s/ Xxxxxx X. Xxxxxxx", "Xxxxxx X. Xxxxxxx",
"CFO, VP & Secretary"
For Xxxxxx X. Xxxxxxx: "/s/ Xxxxxxx Xxxxxx", "Xxxxxxx Xxxxxx",
"President and CEO"
For Xxxxx Xxxxxx:"/s/ Xxxxxxx Xxxxxx", "Xxxxxxx Xxxxxx", "President
and CEO"
*3* For Xxxxxxx Xxxxxx: "/s/ Xxxxxxx Xxxxxx", "Xxxxxxx Xxxxxx", "4081
Xxxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, (000) 000-0000"
For Xxxxxx X. Xxxxxxx:"/s/ Xxxxxx X. Xxxxxxx", "Xxxxxx X. Xxxxxxx",
"15 Xxx Xxxxxxx, Xxxx xx Xxxx, XX 00000, (000) 000-0000"
For Xxxxx Xxxxxx: "/s/ Xxxxx Xxxxxx", "Xxxxx Xxxxxx", "102 Xxxxx Xxx
Xxx, Xxx Xxxxxxxx, XX 00000"
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*4* For Xxxxxxx Xxxxxx:. "(000) 000-0000"
For Xxxxxx X. Xxxxxxx: "(000) 000-0000"
For Xxxxx Xxxxxx: "(000) 000-0000"
15
