Exhibit 10.10
INDEMNITY AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of
__________, 1999 by and between Tumbleweed Software Corporation, a California
corporation and, following its reincorporation into Delaware, a Delaware
corporation (the "Corporation"), and _________________ ("Agent"). This Agreement
super sedes any and all indemnity agreement(s) previously entered into between
the Corporation and the Agent.
RECITALS
WHEREAS, Agent performs a valuable service to the Corporation
in his capacity as ______________ of the Corporation;
WHEREAS, the current By-laws and Amended and Restated Articles
of Incorporation of the Corporation, and the Amended and Restated By-laws and
Amended and Restated Certificate of Incorporation to be adopted upon the consum
mation of the Company's currently contemplated initial public offering
(collectively, the "Charter Documents") require the Corporation to indemnify and
advance expenses to its directors and officers to the full extent permitted by
the California Corporations Code, as amended, and, following the Corporation's
reincorporation in Delaware, by the Delaware General Corporation Law, as amended
(as applicable, the "Code") and the Agent intends to continue serving as a
director or officer of the Corporation in part in reliance on such Charter
Documents and Code;
WHEREAS, the Charter Documents and the Code, by their
non-exclusive nature, permit contracts between the Corporation and its agents,
officers, employees and other agents with respect to indemnification of such
persons; and
WHEREAS, in order to induce Agent to continue to serve as
___________ of the Corporation, the Corporation has determined and agreed to
enter into this Agreement with Agent;
NOW, THEREFORE, in consideration of Agent's continued service
as __________ after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. SERVICES TO THE CORPORATION. Agent will serve, at the will
of the Corporation or under separate contract, if any such contract exists, as
__________ of the Corporation or as a director, officer or other fiduciary of an
affiliate of the Corporation (including any employee benefit plan of the
Corporation) faithfully and to the best of his or her ability so long as he or
she is duly elected and qualified in accordance with the provisions of the
Charter Documents or the charter documents of such affiliate; provided, however,
that Agent may at any time and for any reason resign from such position (subject
to any contractual obligation that Agent may have assumed apart from this
Agreement) and that the Corporation or any affiliate shall have no obligation
under this Agreement to continue Agent in any such position.
2. INDEMNITY OF AGENT. The Corporation hereby agrees to hold
harmless and indemnify Agent to the fullest extent authorized or permitted by
the provisions of the Charter Documents and the Code, as the same may be amended
from time to time (but, only to the extent that such amendment permits the
Corpora tion to provide broader indemnification rights than the Charter
Documents or the Code permitted prior to adoption of such amendment).
3. ADDITIONAL INDEMNITY. In addition to and not in limitation
of the indemnification otherwise provided for herein, and subject only to the
exclu sions set forth in Section 4 hereof, the Corporation hereby further agrees
to hold harmless and indemnify Agent:
(a) against any and all expenses (including attorneys' fees),
witness fees, damages, judgments, fines and amounts paid in settlement
and any other amounts that Agent becomes legally obligated to pay
(including interest, assessments and other charges paid or payable,
because of, or in preparation for the defense of, any claim or claims
made against or by him or her in connection with any threatened,
pending or completed action, suit or proceed ing, whether civil,
criminal, arbitrational, administrative or investigative (including an
action by or in the right of the Corporation) to which Agent is, was or
at any time becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant in,
by reason of the fact that Agent is, was or at any time becomes a
director, officer, employee or other agent of Corporation, or is or was
serving or at any time serves at the request of the Corporation as a
director, officer, employee or
2
other agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to
Agent by the Corporation under the non-exclusivity provisions of the
Code and the Charter Documents.
4. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant
to Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent for an accounting of
profits made from the purchase or sale by Agent of securities of the
Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(b) on account of Agent's conduct that was knowingly
fraudulent or deliberately dishonest or that constituted willful
misconduct;
(c) on account of Agent's conduct that constituted a breach of
Agent's duty of loyalty to the Corporation or resulted in any personal
profit or advan tage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid
and collectible insurance policy or under a valid and enforceable
indemnity clause, bylaw or agreement, except in respect of any excess
beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect,
both the Corporation and Agent have been advised that the Securities
and Exchange Commission believes that indemnification for liabilities
arising under the federal securities laws is against public policy and
is, therefore, unenforceable and that claims for indemnification should
be submitted to appropriate courts for adjudication);
(f) if indemnification is not authorized in the specific case
upon a determination that indemnification is proper in the
circumstances because the Agent has met the standard of conduct
required by the Code, as applicable, which determination shall be made
by a majority of directors who are not
3
party to the action or a committee designated by such directors,
independent legal counsel or the stockholders; or
(g) in connection with any proceeding (or part thereof)
initiated by Agent, or any proceeding by Agent against the Corporation
or its directors, officers, employees or other agents, unless (i) such
indemnification is ex pressly required to be made by law, (ii) the
proceeding was authorized by the Board of Directors of the Corporation,
(iii) such indemnification is provided by the Corporation, in its sole
discretion, pursuant to the powers vested in the Corporation under the
Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
5. CONTINUATION OF INDEMNITY. All agreements and obligations
of the Corporation contained herein shall continue during the period Agent is a
director, officer, employee or other agent of the Corporation (or is or was
serving at the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so long as Agent
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 Agent was serving in
the capacity referred to herein.
6. PARTIAL INDEMNIFICATION. Agent shall be entitled under this
Agreement to indemnification by the Corporation for a portion of the expenses
(including attorneys' fees), witness fees, damages, judgments, fines and amounts
paid in settlement and any other amounts that Agent becomes legally obligated to
pay in connection with any action, suit or proceeding referred to in Section 3
hereof even if not entitled hereunder to indemnification for the total amount
thereof, and the Corporation shall indemnify Agent for the portion thereof to
which Agent is entitled.
7. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty
(30) days after receipt by Agent of notice of the commencement of any action,
suit or proceeding, Agent will, if a claim in respect thereof is to be made
against the Corporation under this Agreement, notify the Corporation of the
commencement thereof; but the omission so to notify the Corporation will not
relieve it from any liability which it may have to Agent otherwise than under
this Agreement. With respect to any such action, suit or proceeding as to which
Agent notifies the Corpora tion of the commencement thereof:
4
(a) the Corporation will be entitled to participate therein at
its own expense;
(b) except as otherwise provided below, the Corporation may,
at its option and jointly with any other indemnifying party similarly
notified and electing to assume such defense, assume the defense
thereof, with counsel reasonably satisfactory to Agent. After notice
from the Corporation to Agent of its election to assume the defense
thereof, the Corporation will not be liable to Agent under this
Agreement for any legal or other expenses subse quently incurred by
Agent in connection with the defense thereof except for reasonable
costs of investigation or otherwise as provided below. Agent shall have
the right to employ separate counsel in such action, suit or proceeding
but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at
the expense of Agent unless (i) the employment of counsel by Agent has
been authorized by the Corporation, (ii) Agent shall have reasonably
concluded that there may be a conflict of interest between the
Corporation and Agent in the conduct of the defense of such action or
(iii) the Corporation shall not in fact have employed counsel to assume
the defense of such action, in each of which cases the fees and
expenses of Agent's separate counsel shall be at the expense of the
Corporation. The Corporation shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of
the Corporation or as to which Agent shall have made the conclusion
provided for in clause (ii) above; and
(c) the Corporation shall not be liable to indemnify Agent
under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent, which shall not be
unreasonably withheld. The Corporation shall be permitted to settle any
action except that it shall not settle any action or claim in any
manner which would impose any penalty or limitation on Agent without
Agent's written consent, which may be given or withheld in Agent's sole
discretion.
8. EXPENSES. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all expenses
incurred by Agent in connection with such proceeding upon receipt of an undertak
ing by or on behalf of Agent to repay said amounts if it shall be determined
ulti mately that Agent is not entitled to be indemnified under the provisions of
this Agreement, the Charter Documents, the Code or otherwise.
5
9. ENFORCEMENT. Any right to indemnification, advances or
insurance recovery granted by this Agreement or any other agreement or provision
contained in a Charter Document now or hereafter in effect to Agent shall be
enforceable by or on behalf of Agent in any court of competent jurisdiction if
(i) the claim for indemnification, advances or insurance recovery is denied, in
whole or in part, or (ii) no disposition of such claim is made within ninety
(90) days of request therefor. Agent, in such enforcement action, if successful
in whole or in part, shall be entitled to be paid also the expense of
prosecuting his claim. It shall be a defense to any action for which a claim for
indemnification is made under Section 3 hereof (other than an action brought to
enforce a claim for expenses pursuant to Section 8 hereof, provided that the
required undertaking has been tendered to the Corporation) that Agent is not
entitled to indemnification because of the limitations set forth in Section 4
hereof. Neither the failure of the Corporation (including its Board of Directors
or its shareholders) to have made a determination prior to the commence ment of
such enforcement action that indemnification of Agent is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors or its shareholders) that such indemnification is improper
shall be a defense to the action or create a presumption that Agent is not
entitled to indemnifi cation under this Agreement or otherwise.
10. SUBROGATION. In the event of payment under this Agree
ment, the Corporation shall be surrogated to the extent of such payment to all
of the rights of recovery of Agent, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
11. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Agent
by this Agreement shall not be exclusive of any other right which Agent may have
or hereafter acquire under any statute, provision of the Charter Documents,
agreement, vote of shareholders or directors, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding office.
12. BURDEN OF PROOF. In connection with any determination as
to whether the Agent is entitled to be indemnified hereunder the burden of proof
shall be on the Company to establish that Agent is not so entitled.
13. LIABILITY INSURANCE. To the extent the Company main tains
an insurance policy or policies providing directors' and officers' liability
insurance, Agent shall be covered by such policy or policies, in accordance with
its
6
or their terms, to the maximum extent of coverage available to any Company
director of officer.
13. SURVIVAL OF RIGHTS.
(a) The rights conferred on Agent by this Agreement shall
continue after Agent has ceased to be a director, officer, employee or
other agent of the Corporation or to serve at the request of the
Corporation as a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise and shall inure to the benefit of Agent's heirs,
executors and administrators.
(b) The Corporation shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substan tially all of the business or assets of the Corporation,
expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to
perform if no such succession had taken place.
14. SEPARABILITY. Each of the provisions of this Agreement is
a separate and distinct agreement and independent of the others, so that if any
provi sion hereof shall be held to be invalid for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Corporation shall nevertheless indemnify Agent
to the fullest extent provided by the Charter Documents, the Code or any other
applicable law.
15. GOVERNING LAW. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of California prior to the Com
pany's reincorporation into Delaware, and following such reincorporation, in
accordance with the laws of the State of Delaware.
16. AMENDMENT AND TERMINATION. No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless in writing signed by both parties hereto.
17. IDENTICAL COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed
7
to be an original but all of which together shall constitute but one and the
same Agreement.
18. HEADINGS. The headings of the sections of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction hereof.
19. NOTICES. All notices, requests, demands and other
communica tions hereunder shall be in writing and shall be deemed to have been
duly given (i) upon delivery if delivered by hand to the party to whom such
communication was directed, (ii) upon the third business day after the date on
which such communication was mailed if mailed by certified or registered mail
with postage prepaid, (iii) upon the first business day after the date on which
such communication was sent by a nationally recognized overnight delivery
service, with delivery confirmed, or (iv) upon delivery by facsimile, with
receipt confirmed, addressed as follows:
(a) If to Agent, at the address indicated on the signature
page hereof.
(b) If to the Corporation, to
Tumbleweed Software Corporation
0000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: President and CEO
Fax: (000) 000-0000
or to such other address as may have been furnished to Agent by the Corporation.
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
TUMBLEWEED SOFTWARE CORPORATION
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AGENT
By:
---------------------------------------
Print Name:
----------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Fax:
--------------------------------
9
