EXE TECHNOLOGIES, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement"), dated as of
__________________, is made by and between EXE Technologies, Inc., a Delaware
corporation (the "Company"), and __________________________________ (the
"Indemnitee").
RECITALS
A. Section 145 of the General Corporation Law of Delaware, under which
the Company is organized ("Section 145"), empowers the Company to indemnify its
directors, officers, employees and agents by agreement and to indemnify persons
who serve, at the request of the Company, as the directors, officers, employees
or agents of other corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not exclusive.
B. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company free from undue
concern for claims for damages arising out of or related to such services to the
Company.
C. The Indemnitee is willing to serve, or to continue to serve the
Company, provided that he is furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS.
(a) EXPENSES. For purposes of this Agreement, "Expenses"
include all out-of-pocket costs of any type or nature whatsoever (including,
without limitation, all attorneys' fees and related disbursements and any
judgments, fines or amounts paid in settlement of a Proceeding (as defined
below)), actually and reasonably incurred by the Indemnitee in connection with
either the investigation, defense or appeal of a Proceeding (as defined below)
or establishing or enforcing a right to indemnification under this Agreement or
Section 145 or otherwise.
(b) PROCEEDING. For the purposes of this Agreement,
"Proceeding" means any threatened, pending or completed action, suit or other
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Company).
2. AGREEMENT TO SERVE. The Indemnitee agrees to serve as a
director or officer of the Company, so long as he is duly appointed or elected
and qualified in accordance with the applicable provisions of the By-laws of the
Company or until such time as he tenders his resignation in writing; PROVIDED,
HOWEVER, that nothing contained in this Agreement is intended to create any
right to continued employment by the Indenmitee.
3. LIABILITY INSURANCE.
(a) MAINTENANCE OF D&O INSURANCE. The Company hereby
covenants and agrees that, so long as the Indemnitee shall continue to serve
as a director or officer of the Company and thereafter so long as the
Indemnitee shall be subject to any possible Proceeding by reason of the fact
that the Indenmitee was a director or officer of the Company, the Company,
subject to Section 3(c), shall promptly obtain and maintain in full force and
effect directors' and officers' liability insurance ("D&O Insurance") in
reasonable amounts from established and reputable insurers.
(b) RIGHTS AND BENEFITS. In all policies of D&O Insurance,
the Indemnitee shall be named as an insured in such a manner as to provide
the Indenmitee the same rights and benefits as are accorded to the most
favorably insured of the Company's directors and officers, if the Indemnitee
is a director or officer.
(c) LIMITATION ON REQUIRED MAINTENANCE OF D&O INSURANCE.
Notwithstanding the foregoing, the Company shall have no obligation to obtain
or maintain D&O Insurance if the Company determines in good faith that such
insurance is not reasonably available, the premium costs for such insurance
are disproportionate to the amount of coverage provided or the coverage
provided by such insurance is limited by exclusions so as to provide an
insufficient benefit. In the event that the Company determines to discontinue
D&O Insurance coverage, the Company shall give prompt written notice to the
Indemnitee.
4. MANDATORY INDEMNIFICATION. Subject to Section 8 below, the
Company shall indemnify the Indemnitee as follows:
(a) SUCCESSFUL DEFENSE. To the extent the Indemnitee has
been successful on the merits or otherwise in defense of any Proceeding
(including, without limitation, an action by or in the right of the Company)
to which the Indemnitee was a party by reason of the fact that he is or was a
director or officer of the Company at any time, the Company shall indemnify
the Indemnitee against all Expenses of any type whatsoever actually and
reasonably incurred by the Indemnitee in connection with the investigation,
defense or appeal of such Proceeding.
(b) THIRD PARTY ACTIONS. If the Indemnitee is a person who
was or is a party or is threatened to be made a party to any Proceeding
(other than an action by or in the right of the Company) by reason of the
fact that the Indemnitee is or was a director or officer of the Company, or
by reason of anything done or not done by the Indemnitee in any such
capacity, then the Company shall indemnify the Indemnitee against any and all
Expenses and liabilities of any type whatsoever actually and reasonably
incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of such Proceeding; PROVIDED that the Indemnitee
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acted in good faith and in a manner the Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company and its stockholders, and,
with respect to any criminal action or Proceeding, had no reasonable cause to
believe his conduct was unlawful.
(c) DERIVATIVE ACTIONS. If the Indemnitee is a person who
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 by
reason of the fact that the Indemnitee is or was a director or officer of the
Company, or by reason of anything done or not done by the Indemnitee in any
such capacity, then the Company shall indemnify the Indemnitee against all
expenses (including attorneys' fees) actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense, settlement, or
appeal of such Proceeding, PROVIDED that the Indemnitee acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company and its stockholders; except that no indemnification
under this Section 4(c) shall be made in respect to any claim, issue or
matter as to which the Indemnitee shall have been finally adjudged to be
liable to the Company by a court of competent jurisdiction unless and only to
the extent that 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 indemnity for such amounts which the court shall deem
proper.
(d) ACTIONS WHERE THE INDEMNITEE IS DECEASED. If the
Indemnitee is a person who was or is a party or is threatened to be made a
party to any Proceeding by reason of the fact that the Indemnitee is or was a
director or officer of the Company, or by reason of anything done or not done
by the Indemnitee in any such capacity, and if prior to, during the pendency
of, or after completion of, such Proceeding the Indemnitee becomes deceased,
then the Company shall indemnify the Indemnitee's heirs, executors and
administrators against any and all Expenses and liabilities of any type
whatsoever actually and reasonably incurred to the extent the Indemnitee
would have been entitled to indemnification pursuant to Sections 4(a), 4(b)
or 4(c) above were the Indemnitee still alive.
Notwithstanding the foregoing, the Company shall not be obligated to
indemnify the Indemnitee for Expenses or liabilities of any type whatsoever
for which payment is actually made to or on behalf of the Indemnitee under a
valid and collectible insurance policy of D&O insurance, or under a valid and
enforceable indemnity clause, bylaw or agreement.
5. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses or liabilities of any type whatsoever incurred by the
Indemnitee in the investigation, defense, settlement or appeal of a Proceeding,
but not entitled, however, to indemnification for all of the total amount
thereof, [then the Company shall nevertheless indemnify the Indemnitee for such
total amount except as to the portion thereof to which the Indemnitee is not
entitled.]
6. MANDATORY ADVANCEMENT OF EXPENSES. Subject to Section 8(a)
below, the Company shall advance all expenses (including, for purposes of
this Section 6 only, all attorneys' fees and related disbursements, but not
any judgments, fines, ERISA excise taxes or penalties, or amounts paid in
settlement of a proceeding) incurred by the Indemnitee in connection with the
investigation, defense, settlement or appeal of any Proceeding to which the
Indemnitee is a party or
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is threatened to be made a party by reason of the fact that the Indemnitee is
or was a director or officer of the Company. The Indemnitee hereby undertakes
to repay such amounts advanced only if, and to the extent that, it shall be
determined finally by a court of competent jurisdiction that the Indemnitee
is not entitled to be indemnified by the Company as unauthorized hereby. The
advances to be made hereunder shall be paid by the Company to the Indemnitee
within twenty (20) days following delivery of a written request therefor by
the Indemnitee to the Company.
7. NOTICE AND OTHER INDEMNIFICATION PROCEDURES.
(a) Promptly after receipt by the Indemnitee of notice of
the commencement of or the threat of commencement of any Proceeding, the
Indemnitee shall, if the Indemnitee reasonably believes that indemnification
with respect thereto may be sought from the Company under this Agreement,
notify the Company of the commencement or threat of commencement thereof.
(b) If, at the time of the receipt of a notice of the
commencement of a Proceeding pursuant to Section 7(a) hereof, the Company has
D&O Insurance in effect, then the Company shall give prompt notice of the
commencement of such Proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such Proceeding
in accordance with the terms of such policies.
(c) In the event the Company is obligated to pay any
Expenses of any Proceeding against the Indemnitee, then the Company, if
appropriate, shall be entitled to assume the defense of such Proceeding, with
counsel reasonably approved by the Indemnitee, upon the delivery to the
Indemnitee of written notice of its election so to do. After delivery of such
notice, approval of such counsel by the Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to the Indemnitee
under this Agreement for any fees of counsel subsequently incurred by the
Indemnitee with respect to the same Proceeding, PROVIDED that: (i) the
Indemnitee shall have the right to employ the Indemnitee's counsel in any
such Proceeding at the Indemnitee's expense; and (ii) if (A) the employment
of counsel by the Indemnitee has been previously authorized in writing by the
Company, (B) the Indemnitee shall have reasonably concluded that there may be
a conflict of interest between the Company and the Indemnitee in the conduct
of any such defense or (C) the Company shall not, in fact, have employed
counsel to assume the defense of such Proceeding, then the fees and expenses
of the Indemnitee's counsel shall be at the expense of the Company.
(d) The Indemnitee may elect to have the right to
indemnification or reimbursement or advancement of Expenses interpreted on
the basis of the applicable law in effect at the time of the occurrence of
the event or events giving rise to the applicable Proceeding, to the extent
permitted by law, or on the basis of the applicable law in effect at the time
such indemnification or reimbursement or advancement of Expenses is sought.
Such election shall be made, by a notice in writing to the Company, at the
time indemnification or reimbursement or advancement of Expenses is sought;
PROVIDED, HOWEVER, that if no such notice is given, and if the General
Corporation Law of Delaware is amended, or other Delaware law is enacted, to
permit further indemnification of the directors or officers, then the
directors and officers of the
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Company shall be indemnified to the fullest extent permitted under the
General Corporation Law, as so amended, or by such other Delaware law, as so
enacted. Any repeal or modification of the foregoing provision shall not
adversely affect any right or protection of a director or officer of the
Company existing at the time of such repeal or modification.
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 THE INDEMNITEE. To indemnify or
advance Expenses to the Indemnitee with respect to Proceedings or claims
initiated or brought voluntarily by the Indemnitee and not by way of defense,
unless (i) such indemnification is expressly required to be made by law, (ii)
the Proceeding was authorized by the Board of Directors of the Company, (iii)
such indemnification is provided by the Company, in its sole discretion,
pursuant to the powers vested in the Company under the General Corporation
Law of Delaware or (iv) the Proceeding is brought to establish or enforce a
right to indemnification under this Agreement or any other statute or law or
otherwise as required under Section 145;
(b) LACK OF GOOD FAITH. To indemnify the Indemnitee for any
Expenses incurred by the Indemnitee with respect to any Proceeding instituted
by the Indemnitee to enforce or interpret this Agreement, if a court of
competent jurisdiction determines that each of the material assertions made
by the Indemnitee in such Proceeding was not made in good faith or was
frivolous; or
(c) UNAUTHORIZED SETTLEMENTS. To indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of a Proceeding
unless the Company consents to such settlement, which consent shall not be
unreasonably withheld or delayed.
9. NON-EXCLUSIVITY. The provisions for indemnification and
advancement of Expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which the Indemnitee may have under any
provision of law, the Company's Certificate of Incorporation or By-laws, the
vote of the Company's stockholders or disinterested directors, other
agreements, or otherwise, both as to action in his official capacity and to
action in another capacity while occupying the Indemnitee's position as a
director or officer of the Company, and the Indemnitee's rights hereunder
shall continue after the Indemnitee has ceased acting as a director or
officer of the Company and shall inure to the benefit of the heirs, executors
and administrators of the Indemnitee.
10. ENFORCEMENT. Any right to indemnification or advances granted by
this Agreement to the Indenmitee shall be enforceable by or on behalf of the
Indemnitee if (i) the claim for indemnification or advances is denied, in
whole or in part or (ii) no disposition of such claim is made within ninety
(90) days of request therefor. The Indemnitee, in such enforcement action, if
successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting the Indemnitee's claim. It shall be a defense to any action
for which a claim for indemnification is made under this Agreement (other
than an action brought to enforce a claim for expenses pursuant to Section 6
hereof, PROVIDED that the required undertaking has been tendered to the
Company) that the Indemnitee is not entitled to indemnification because of
the limitations set forth in Sections 4 and 8 hereof. Neither the failure of
the Company (including its Board of Directors or its
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stockholders) to have made a determination prior to the commencement of such
enforcement action that indemnification of the Indemnitee is proper in the
circumstances, nor an actual determination by the Company (including its
Board of Directors or its stockholders) that such indemnification is
improper, shall be a defense to the action or create a presumption that the
Indenmitee is not entitled to indemnification under this Agreement or
otherwise.
11. SUBROGATION. In the event of payment under this Agreement,
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 shall do all acts that may be necessary to secure such rights
and to enable the Company effectively to bring suit to enforce such rights.
12. SURVIVAL OF RIGHTS.
(a) All agreements and obligations of the Company contained
herein shall continue during the period the Indemnitee is a director or
officer of the Company and shall continue thereafter so long as the
Indemnitee shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative, by reason of the fact that the Indemnitee
was serving in the capacity referred to herein.
(b) The Company shall require any successor to the Company
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business or assets of the Company,
expressly to assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform if no
such succession had taken place.
13. INTERPRETATION OF AGREEMENT. It is understood that the
parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to the Indemnitee to the fullest extent permitted by
law including those circumstances in which indemnification would otherwise be
discretionary.
14. SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any
reason whatsoever, then (i) the validity, legality and enforceability of the
remaining provisions of the 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 (ii) 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 and to give effect to
Section 13 hereof.
15. 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.
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16. NOTICE. Any notice hereunder by either party shall be given
by personal delivery or by sending such notice by certified mail,
return-receipt requested, or by overnight delivery with a reputable courier
service, or telecopied, addressed or telecopied, as the case may be, to the
other party at its address set forth below or at such other address
designated by notice in the manner provided in this section. Such notice
shall be deemed to have been received upon the date of actual delivery if
personally delivered or, in the case of mailing, two (2) days after deposit
with the U.S. mail, or if by overnight delivery, the date of delivery or, in
the case of facsimile transmission, when confirmed by the facsimile machine
report.
If to the Indemnitee:
-------------------------
-------------------------
-------------------------
Telecopier:
-------------------------
If to the Company:
EXE Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: President
Telecopier: (000) 000-0000
with a copy to:
EXE Technologies, Inc.
000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
17. GOVERNING LAW. This Agreement shall be governed exclusively
by and construed according to the laws of the State of Delaware as applied to
contracts between Delaware residents entered into and to be performed
entirely within the State of Delaware.
18. CONSENT TO SUIT. In the case of any dispute under or in
connection with this Agreement, the Indenmitee may only bring suit against
the Company in the Court of Chancery of the State of Delaware. The Indenmitee
hereby consents to the jurisdiction and venue of the courts of the State of
Delaware, and the Indemnitee hereby waives any claim the Indemnitee may have
at any time as to FORUM NON CONVENIENS with respect to such venue. The
Company shall have the right to institute any legal action arising out of or
relating to this Agreement in any court of competent jurisdiction. Any
judgment entered against either of the parties in any proceeding hereunder
may be entered and enforced by any court of competent jurisdiction. If an
action at law
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or in equity is necessary to enforce or interpret the terms of this
Agreement, then the prevailing party shall be entitled to recover, in
addition to any other relief, reasonable attorneys' fees, costs and
disbursements.
19. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the subject
matter hereof, and merges and supersedes all prior and contemporaneous
discussions, agreements and understandings of every nature between the
parties hereto relating to the subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
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The parties hereto have entered into this Agreement effective as of the date
first above written.
EXE TECHNOLOGIES, INC.
By:
Name:
Title:
INDEMNITEE:
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Name:
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