INDEMNIFICATION AGREEMENT
This Agreement, made and entered into this 3rd day of June,
1997 ("Agreement"), by and between Intergraph Corporation, a
Delaware corporation ("Company"), and ______________
("Indemnitee"):
WHEREAS, highly competent persons have become more reluctant
to serve publicly-held corporations as directors or in other
capacities unless they are provided with adequate protection
through indemnification or similar arrangements protecting
against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the
Company; and
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that, under current market conditions, it is not
in the best interests of the Company to maintain director and
officer liability insurance given the high cost associated with
such insurance and the breadth of exclusions typically contained
in director and officer liability insurance policies; and
WHEREAS, directors, officers and other persons in service to
corporations or business entities are being increasingly
subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been
asserted only against corporations and other entities; and
WHEREAS, the prohibitive cost and limited coverages
associated with such insurance and the uncertainties relating to
indemnification have increased the difficulty of attracting and
retaining qualified persons to serve as corporate directors; and
WHEREAS, the Board has determined that the increased
difficulty in attracting and retaining such persons is
detrimental to the best interests of the Company's stockholders
and that the Company should act to assure such persons that there
will be increased certainty of indemnity protection in the
future; and
WHEREAS, it is reasonable, prudent and necessary for the
Company contractually to obligate itself to indemnify, and to
advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that qualified individuals will
agree to serve or continue to serve the Company free from undue
concern that they will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in
furtherance of the Certificate of Incorporation and Restated
Bylaws of the Company and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefore, nor to
diminish or abrogate any rights of indemnification afforded
thereunder; and
WHEREAS, each of Section 145 of the General Corporation Law
of the State of Delaware, the Company's Certificate of
Incorporation and the Company's Restated Bylaws is non-exclusive,
and therefore contemplates that contracts may be entered into
with respect to indemnification of directors, officers and
employees; and
WHEREAS, Indemnitee is willing to serve, continue to serve
or to take on additional service for or on behalf of the Company
on the condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
Section 1. Services by Indemnitee. Indemnitee agrees
to serve as a director and/or executive officer of the Company.
Indemnitee may at any time and for any reason resign from such
position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue
to permit Indemnitee to serve in such position. This Agreement
shall not be deemed an employment contract between the Company
(or any of its subsidiaries) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee's employment with the
Company (or any of its subsidiaries), if any, is at will, and the
Indemnitee may be discharged at any time for any reason, with or
without cause, except as may be otherwise provided in any written
employment contract between Indemnitee and the Company (or any of
its subsidiaries), other applicable formal severance policies
duly adopted by the Board, or, with respect to service as a
director of the Company, by the Company's Certificate of
Incorporation, the Company's Restated Bylaws, and the General
Corporation Law of the State of Delaware. The foregoing
notwithstanding, this Agreement shall continue in force after
Indemnitee has ceased to serve as a director and/or executive
officer of the Company in accordance with Section 12.
Section 2. Indemnification - General. The Company
shall indemnify, and advance Expenses (as hereinafter defined)
to, Indemnitee (a) as provided in this Agreement and (b) (subject
to the provisions of this Agreement) to the fullest extent
permitted by applicable law in effect on the date hereof and as
amended from time to time (but in the case of any such amendment,
only to the extent that such amendment permits the Company to
provide broader indemnification rights than such law permitted
the Company to provide prior to such amendment). The rights of
Indemnitee provided under the preceding sentence shall include,
but shall not be limited to, the rights set forth in the other
Sections of this Agreement.
Section 3. Proceedings Other Than Proceedings by or in
the Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 3 if, by
reason of his Corporate Status (as hereinafter defined), he is,
or is threatened to be made, a party to or a participant in any
threatened, pending, or completed Proceeding (as hereinafter
defined), other than a Proceeding by or in the right of the
Company. Pursuant to this Section 3, Indemnitee shall be
indemnified against all Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by
him or on his behalf in connection with such Proceeding, or any
claim, issue or matter therein, if he 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, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 4. Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the rights of
indemnification provided in this Section 4 if, by reason of his
Corporate Status, he is, or is threatened to be made, a party to
or a participant in any threatened, pending or completed
Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section, Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company; provided, however, that, if applicable law so
provides, no indemnification against such Expenses shall be made
in respect of any claim, issue or matter in such Proceeding as to
which Indemnitee shall have been adjudged to be liable for gross
negligence or willful misconduct in the performance of his duties
to the Company unless and to the extent that the Court of
Chancery of the State of Delaware, or the court in which such
Proceeding shall have been brought or is pending, shall determine
that such indemnification may be made.
Section 5. Indemnification for Expenses of a Party Who
is Wholly or Partly Successful. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a party to (or a participant in)
and is successful, on the merits or otherwise, in any Proceeding,
he shall be indemnified to the maximum extent permitted by law
against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. If Indemnitee is not
wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Section
and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section 6. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, he
shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.
Section 7. Advancement of Expenses. Notwithstanding
any provision of this Agreement to the contrary, the Company
shall advance all reasonable Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding in which Indemnitee
is involved by reason of Indemnitee's Corporate Status within ten
days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of
such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or
be preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it ultimately shall
be determined that Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and undertakings to repay
pursuant to this Section 7 shall be unsecured and interest free.
Section 8. Procedure for Determination of Entitlement
to Indemnification.
(a) To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the
Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 8(a)
hereof, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall be made in the
specific case: (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as
hereinafter defined) in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall not have occurred, (A) by a
majority vote of the Disinterested Directors (as hereinafter
defined), even though less than a quorum of the Board, or (B) if
there are no such Disinterested Directors or, if such
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered
to Indemnitee or (C) if so directed by the Board, by the
stockholders of the Company; and, if it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten (10) days after such determination.
Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements)
incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee's entitlement
to indemnification) and the Company hereby indemnifies and agrees
to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant
to Section 8(b) hereof, the Independent Counsel shall be selected
as provided in this Section 8(c). If a Change in Control shall
not have occurred, the Independent Counsel shall be selected by
the Board of Directors, and the Company shall give written notice
to Indemnitee advising him of the identity of the Independent
Counsel so selected. If a Change in Control shall have occurred,
the Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board
of Directors, in which event the preceding sentence shall apply),
and Indemnitee shall give written notice to the Company advising
it of the identity of the Independent Counsel so selected. In
either event, Indemnitee or the Company, as the case may be, may,
within 10 days after such written notice of selection shall have
been given, deliver to the Company or to Indemnitee, as the case
may be, a written objection to such selection; provided, however,
that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 17 of this Agreement,
and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection,
the person so selected shall act as Independent Counsel. If such
written objection is so made and substantiated, the Independent
Counsel so selected may not serve as Independent Counsel unless
and until such objection is withdrawn or a court has determined
that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification
pursuant to Section 8(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or
Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution
of any objection which shall have been made by the Company or
Indemnitee to the other's selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected
by the Court or by such other person as the Court shall
designate, and the person with respect to whom all objections are
so resolved or the person so appointed shall act as Independent
Counsel under Section 8(b) hereof. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 10(a)
of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then
prevailing).
(d) The Company shall not be required to obtain
the consent of the Indemnitee to the settlement of any Proceeding
which the Company has undertaken to defend if the Company assumes
full and sole responsibility for such settlement and the
settlement grants the Indemnitee a complete and unqualified
release in respect of the potential liability; provided, however,
that the Company shall not settle any Proceeding in any manner
that would require admission of personal wrongdoing by
Indemnitee, or impose any penalty or limitation on Indemnitee,
without Indemnitee's written consent, which consent shall not be
unreasonably withheld. The Company shall not be liable for any
amount paid by the Indemnitee in settlement of any Proceeding
that is not defended by the Company, unless the Company has
consented to such settlement, which consent shall not be
unreasonably withheld.
Section 9. Presumptions and Effect of Certain
Proceedings.
(a) In making a determination with respect to
entitlement to indemnification hereunder, the person or persons
or entity making such determination shall presume that Indemnitee
is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with
Section 8(a) of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination
contrary to that presumption. Neither the failure of the Company
(including by its directors or independent legal counsel) to have
made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Company (including
by its directors or independent legal counsel) 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.
(b) If the person, persons or entity empowered or
selected under Section 8 of this Agreement to determine whether
Indemnitee is entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by the Company
of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made
and Indemnitee shall be entitled to such indemnification, absent
(i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that
such 60-day period may be extended for a reasonable time, not to
exceed an additional thirty (30) days, if the person, persons or
entity making the determination with respect to entitlement to
indemnification in good faith requires such additional time for
the obtaining or evaluating of documentation and/or information
relating thereto; and provided, further, that the foregoing
provisions of this Section 9(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 8(b) of this Agreement and
if (A) within fifteen (15) days after receipt by the Company of
the request for such determination the Board of Directors has
resolved to submit such determination to the stockholders for
their consideration at an annual meeting thereof to be held
within seventy five (75) days after such receipt and such
determination is made thereafter, or (B) a special meeting of
stockholders is called within fifteen (15) days after such
receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after
having been so called and such determination is made thereat, or
(ii) if the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 8(b) of this
Agreement.
(c) The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company or,
with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(d) Reliance as Safe Harbor. For purposes of any
determination of Good Faith, Indemnitee shall be deemed to have
acted in Good Faith if Indemnitee's action is based on the
records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee by
the officers of the Enterprise in the course of their duties, or
on the advice of legal counsel for the Enterprise or on
information or records given or reports made to the Enterprise by
an independent certified public accountant or by an appraiser or
other expert selected with the reasonable care by the Enterprise.
The provisions of this Section 9(d) 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.
(e) Actions of Others. The knowledge and/or
actions, or failure to act, of any director, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this
Agreement.
Section 10. Remedies of Indemnitee.
(a) In the event that (i) a determination is made
pursuant to Section 8 of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 7
of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 8(b) of
this Agreement within 90 days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 5,6, the last sentence of Section
8(b), or the last sentence of Section 17(h) of this Agreement
within ten (10) days after receipt by the Company of a written
request therefor, or (v) payment of indemnification pursuant to
Section 3 or 4 of this Agreement is not made within ten (10) days
after a determination has been made that Indemnitee is entitled
to indemnification, Indemnitee shall be entitled to an
adjudication by the Court of Chancery of the State of Delaware of
his entitlement to such indemnification or advancement of
Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration
within 180 days following the date on which Indemnitee first has
the right to commence such proceeding pursuant to this Section
10(a); provided, however, that the foregoing clause shall not
apply in respect of a proceeding brought by Indemnitee to enforce
his rights under Section 5 of this Agreement. The Company shall
not oppose Indemnitee's right to seek any such adjudication or
award in arbitration.
(b) In the event that a determination shall have
been made pursuant to Section 8(b) of this Agreement that
Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 10
shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced
by reason of that adverse determination.
(c) If a determination shall have been made
pursuant to Section 8(b) of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced
pursuant to this Section 10, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee's statement not materially
misleading, in connection with the request for indemnification,
or (ii) a prohibition of such indemnification under applicable
law.
(d) In the event that Indemnitee, pursuant to
this Section 10, seeks a judicial adjudication of or an award in
arbitration to enforce his rights under, or to recover damages
for breach of, this Agreement, Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company
against, any and all expenses (of the types described in the
definition of Expenses in Section 17 of this Agreement) actually
and reasonably incurred by him in such judicial adjudication or
arbitration, but only if (and only to the extent) he prevails
therein. If it shall be determined in said judicial adjudication
or arbitration that Indemnitee is entitled to receive part but
not all of the indemnification or advancement of Expenses sought,
the expenses incurred by Indemnitee in connection with such
judicial adjudication or arbitration shall be appropriately
prorated.
(e) The Company shall be precluded from asserting
in any judicial proceeding or arbitration commenced pursuant to
this Section 10 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that
the Company is bound by all the provisions of this Agreement.
Section 11. Non-Exclusivity; Survival of Rights;
Insurance; Subrogation.
(a) The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may
at any time be entitled under applicable law, the Company's
Certificate of Incorporation, the Company's Restated Bylaws, any
agreement, a vote of stockholders or a resolution of directors,
or otherwise. No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any
right of Indemnitee under this Agreement in respect of any action
taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal. To the extent that a
change in the General Corporation Law of the State of Delaware,
whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded
currently under the Company's Certificate of Incorporation,
Restated Bylaws and this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change. No right or remedy
herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative
and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
(b) To the extent (if any) that the Company
maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, or agents of the
Company or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, Indemnitee shall be
covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for
any such director, officer, employee or agent under such policy
or policies.
(c) In the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee, who shall
execute all papers 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.
(d) The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable
(or for which advancement is provided hereunder) hereunder if and
to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or
otherwise.
(e) The Company's obligation to indemnify or
advance Expenses hereunder to Indemnitee who is or was serving at
the request of the Company as a director, officer, employee or
agent of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise shall be reduced
by any amount Indemnitee has actually received as indemnification
or advancement of Expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise.
Section 12. Duration of Agreement. This Agreement
shall continue until and terminate upon the later of: (a) 10
years after the date that Indemnitee shall have ceased to serve
as a director or executive officer of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which Indemnitee served at the request
of the Company; or (b) the final termination of any Proceeding
pending at the end of such 10-year period in respect of which
Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 10 of this Agreement relating thereto. This
Agreement shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of Indemnitee and his
heirs, executors and administrators.
Section 13. Severability. If any provision or
provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or
impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall
be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of
the parties hereto; and (c) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested thereby.
Section 14. Exception to Right of Indemnification or
Advancement of Expenses. Notwithstanding any other provision of
this Agreement, but subject to Section 10(d) hereof, Indemnitee
shall not be entitled to indemnification or advancement of
Expenses under this Agreement with respect to any Proceeding
brought by Indemnitee, or any claim therein, unless the bringing
of such Proceeding or making of such claim shall have been
approved by the Board of Directors.
Section 15. Identical Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall
for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability
is sought needs to be produced to evidence the existence of this
Agreement.
Section 16. Headings. The headings of the paragraphs
of this Agreement are inserted for convenience only and shall not
be deemed to constitute part of this Agreement or to affect the
construction thereof.
Section 17. Definitions. For purposes of this
Agreement:
(a) "Change in Control" means a change in control
of the Company occurring after the Effective Date of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar
item on any similar schedule or form) promulgated under the
Securities Exchange Act of 1934 (the "Act"), whether or not the
Company is then subject to such reporting requirement; provided,
however, that, without limitation, such a Change in Control shall
be deemed to have occurred if after the Effective Date (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Act) other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the Company
in substantially the same proportions as their ownership of stock
of the Company is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Company representing 15% or more of the
combined voting power of the Company's then outstanding
securities without the prior approval of at least two-thirds of
the members of the Board in office immediately prior to such
person attaining such percentage interest; (ii) there occurs a
proxy contest, or the Company is a party to a merger,
consolidation, sale of assets, plan of liquidation or other
reorganization not approved by at least two-thirds of the members
of the Board then in office, as a consequence of which members of
the Board in office immediately prior to such transaction or
event constitute less than a majority of the Board thereafter; or
(iii) during any period of two consecutive years, other than as a
result of an event described in clause (a)(ii) of this Section
17, individuals who at the beginning of such period constituted
the Board (including for this purpose any new director whose
election or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of
the Board.
(b) "Corporate Status" describes the status of a
person who is or was a director, officer, employee or agent of
the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which
such person is or was serving at the request of the Company.
(c) "Disinterested Director" means a director of
the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(d) "Effective Date" means the date upon which
this agreement was executed by the Company.
(e) "Enterprise" shall mean the Company and any
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was
serving at the express written request of the Company as a
director, officer, employee, agent or fiduciary.
(f) "Expenses" shall include all reasonable
attorneys' fees, retainers, court costs, transcript costs, fees
of experts, 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, being
or preparing to be a witness in, or otherwise participating in, a
Proceeding.
(g) "Good Faith" shall mean Indemnitee having
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 Proceeding, having had
no reasonable cause to believe Indemnitee's conduct was unlawful.
(h) "Independent Counsel" means a law firm, or a
member of a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past five
years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other
than with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to
determine Indemnitee's rights under this Agreement. The Company
agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto.
(i) "Proceeding" includes any threatened, pending
or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding,
whether brought by or in the right of the Company or otherwise
and whether civil, criminal, administrative or investigative, in
which Indemnitee was, is or will be involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a
director or officer of the Company, by reason of any action taken
by him or of any inaction on his part while acting as director or
officer of the Company, or by reason of the fact that he 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, in each case whether or not
he is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification or
advancement of Expenses can be provided under this Agreement;
except one initiated by an Indemnitee pursuant to Section 10 of
this Agreement to enforce his rights under this Agreement.
(j) References to "other enterprise" shall
include employee benefit plans; references to "fines" shall
include any excise tax assessed with respect to any employee
benefit plan; 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, as participants or
beneficiaries; and a person who acted in good faith and in the
manner he reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan shall
not be deemed to have acted in manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
Section 18. Enforcement.
(a) The Company expressly confirms and agrees
that it has entered into this Agreement and assumed the
obligations imposed on it hereby in order to induce Indemnitee to
continue to serve as a director or executive officer of the
Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as such.
(b) This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties
hereto with respect to the subject matter hereof.
Section 19. Modification and Waiver. No supplement,
modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a
continuing waiver.
Section 20. Notice by Indemnitee. Indemnitee agrees
promptly to notify the Company in writing upon being served with
any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding or
matter which may be subject to indemnification or advancement of
Expenses covered hereunder. The failure of Indemnitee to so
notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this
Agreement or otherwise, except to the extent the Company is
materially prejudiced by such failure.
Section 21. Notices. All notices, requests, demands
and other communications hereunder shall be in writing and shall
be deemed to have been duly given if (i) delivered by hand and
receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:
(a) If to Indemnitee, to:
Indemnitee
Mailing address
City, State Zip Code
(b) If to the Company, to:
Intergraph Corporation
Attention:Legal Department
HQ034
Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as may have been furnished to Indemnitee
by the Company or to the Company by Indemnitee, as the case may
be.
Section 22. Contribution. To the fullest extent
permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee,
shall contribute to the amount incurred by Indemnitee, whether
for judgments, fines, penalties, excise taxes, amounts paid or to
be paid in settlement and/or for Expenses, in connection with any
claim relating to an indemnifiable event under this Agreement, in
such proportion as is deemed fair and reasonable in light of all
of the circumstances of such Proceeding in order to reflect
(i) the relative benefits received by the Company and Indemnitee
as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company
(and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or
transaction(s).
Section 23. Governing Law. This Agreement and the
legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State
of Delaware, without regard to its conflict of laws rules.
Section 24. Miscellaneous. Use of the masculine
pronoun shall be deemed to include usage of the feminine pronoun
where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
INTERGRAPH CORPORATION
By:
Name:
Title:
Indemnitee:
Address:
