EXHIBIT 10.14
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") dated as of
________________, 19___, is between Neon Systems, Inc., a Delaware corporation
(the "Company"), and the undersigned director of the Company (the "Indemnitee"),
with reference to the following facts:
A. The Indemnitee. is currently serving as a director of the Company and
the Company desires that the Indemnitee continue in such capacity. The
Indemnitee is willing, under certain circumstances, to continue serving as a
director of the Company.
B. Section 145 of the General Corporation Law of the State of Delaware,
under which Law the Company is organized empowers a corporation to indemnify a
person serving as a director, officer, employee or agent of the corporation and
a person who serves at the request of the corporation as a, director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, and such Section 145 and the bylaws of the Company specify
that the indemnification set forth in said Section 145 and in the bylaws,
respectively, shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
In order to induce the Indemnitee to continue to serve as a director of the
Company and in consideration of his or her continued service, the Company hereby
agrees to indemnify the Indemnitee as follows:
1. INDEMNITY. The Company shall indemnify the Indemnitee and his or her
executors,. administrators or 'assigns, for any Expenses (as defined below) that
the Indemnitee is or becomes legally obligated to pay in connection with any
Proceeding. As used in this Agreement the term "Proceeding" shall include any
threatened, pending or completed claim, action, suit, investigation or
proceeding, whether brought by or in the right of the Company or otherwise and
whether of a civil, criminal, administrative or, investigative nature, in which
the Indemnitee may be or may have been involved as a party, witness or
otherwise, by reason of the fact that Indemnitee is or was a director or officer
of the Company, by reason of any actual or alleged error or misstatement or
misleading statement made or suffered by the Indemnitee, by reason of any action
taken by him or her or of any inaction on his or her part while acting as such
director or officer, or by reason of the fact that he or she was serving at the
request of the Company as a director, trustee, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise;
PROVIDED, HOWEVER, that in each such case Indemnitee. acted. in good faith and
in a manner which he or she reasonably believed to be in or not opposed to the
best interests of the Company, and, in the case of a criminal proceeding, in
addition had no reasonable cause to believe that his or her conduct was
unlawful. As used in this Agreement, the term "other enterprise" shall include
(without limitation) employee benefit plans and administrative committees
thereof, and the term "fines" shall include (without limitation) any excise tax
assessed with respect to any employee benefit plan. Any corporation,
partnership,
limited liability company or other entity on behalf of which Indemnitee may be
deemed to be acting in connection with his or her service to the Company shall
be entitled to the benefits of the indemnity provided for by this Agreement to
the same extent and under the same conditions upon which Indemnitee is entitled.
to such. indemnity.
2. EXPENSES. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, judgments, fines, penalties, settlements
and costs, attorneys' fees and disbursements and costs of attachment or similar
bonds, investigations, and any expenses of establishing a right to
indemnification under this Agreement.
3. ENFORCEMENT. If a claim or request under this Agreement is not paid
by the Company, or on its behalf, within 30 calendar days after a written claim.
or request has been received by the Company, then the Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, the Indemnitee shall be
entitled to be paid also the Expenses of prosecuting such suit. The burden of
proving that the Indemnitee is not entitled to indemnification for any reason
shall be upon the Company..
4. SUBROGATION. Upon any 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 papers required and shall do everything
that may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
5. EXCLUSIONS. The Company shall not be liable under this Agreement to
pay any Expenses in connection with any claim made against the Indemnitee:
(a) to the extent that payment is actually made to the Indemnitee
under a valid, enforceable and collectible insurance policy;
(b) to the extent that the Indemnitee is indemnified and actually
paid otherwise than pursuant to this Agreement:
(c) in connection with a judicial action by or in the right of the
Company, in respect of any claim, issue or matter as to which the
Indemnitee shall have been adjudged to be liable to the Company unless and
only to the extent that any court in which such action 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 expenses as such court shall deem
proper;
(d) if it is proved by final judgment in a court of law or other
final adjudication to have been based upon or attributable to the
Indemnitee's in fact having gained any personal profit or advantage to
which he or she was not legally entitled;
(e) f or a disgorgement of profits made from the purchase and sale by
the Indemnitee of securities pursuant to Section 16(b) of the Securities
Exchange Act of
1934, as amended, and amendments thereto or similar provisions of any state
statutory law or common law; or
(f) for any judgment, fine or penalty which the Company is prohibited
by applicable law from paying.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against any and all Expenses incurred in
connection therewith.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company 'for some or a
portion of Expenses, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify the Indemnitee for the portion of such Expenses to
which the Indemnitee is entitled.
8. ADVANCE OF EXPENSES. Expenses incurred by the Indemnitee in
connection with any Proceeding, except the amount of any settlement, shall be
paid by the Company in advance upon request of the Indemnitee that the Company
pay such expenses. The Indemnitee hereby undertakes to repay to the Company the
amount of any Expenses theretofore paid by the Company to the extent that it is,
ultimately determined that such Expenses were not reasonable or that the
Indemnitee is not entitled to indemnification.
9. NOTICE OF CLAIM. The Indemnitee, as a condition precedent to his or
her right to be indemnified under this Agreement, shall give to the Company
notice in writing as soon as practicable of any claim made against him or her
for which indemnity will or could be sought under this Agreement, but a failure
to give such notice will affect the obligations of the Company hereunder only to
the extent that the Company is actually and materially prejudiced thereby.
Notice to the Company shall be given at its corporate headquarters and shall be
directed to the corporate secretary (or such other addressee as the Company
shall designate in writing to the Indemnitee); notice shall be deemed received
it sent by prepaid mail properly addressed, the date of such notice being the
date postmarked. In addition, the Indemnitee shall give the Company such
information and cooperation as it may reasonably require in connection with such
claim.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
11. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. Nothing herein shall be
deemed to diminish or otherwise restrict the Indemnitee's right to
indemnification under any provision of the Certificate of Incorporation or
bylaws of the Company and amendments thereto or under law.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with Delaware law, without giving effect to the principles of
conflict of laws thereof.
13. SAVING CLAUSE. Wherever there is conflict between any provision of
this Agreement and any applicable present or future statute, law or regulation
contrary to which the Company and the Indemnitee have no legal right to
contract, the latter shall prevail, but in such event the affected provisions of
this Agreement shall be curtailed and restricted only to the extent necessary to
bring them within applicable legal requirements.
14. COVERAGE. The provisions of this Agreement shall apply with respect
to the Indemnitee's service as a (director and/or officer) of the Company prior
to the date of this Agreement and with respect to all periods of such service
after the date of this Agreement, even though the Indemnitee may have ceased to
be a director of the Company.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legatees,
legal representatives, successors and. permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
"COMPANY" NEON SYSTEMS, INC.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
"INDEMNITEE"
--------------------------------------------
