EXHIBIT 10.31
INDEMNITEE: XXXXXX X. XXXXXXX
BINDVIEW CORPORATION
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "AGREEMENT") is made between BindView
Corporation, a Texas corporation (the "COMPANY"),1 and the "INDEMNITEE"
identified above. Unless otherwise indicated, all references to Sections are to
Sections in this Agreement. This Agreement is effective the date the Indemnitee
first became (or becomes) an officer or director of the Company ("EFFECTIVE
DATE").
1. BACKGROUND.
1.1 The Indemnitee is (or is about to become) a director or officer of the
Company. The Company regards it as essential to continue to attract and
retain, as directors and officers, the most capable persons available.
1.2 The Company and the Indemnitee recognize the increased risk of litigation
and other claims being asserted against directors and officers. Depending
on the nature of the litigation or other claim in question, the Company's
directors' and officers' liability insurance coverage might not provide
as much protection as could be desirable in a given situation.
1.3 The Company regards it as crucial to secure the continued service of
competent and experienced people in senior corporate positions and to
assure that they will be able to exercise judgment without fear of
personal liability so long as they fulfill the basic duties of honesty,
care and good faith. Accordingly, the Company wishes to provide in this
Agreement (a) for the indemnification of, and the advancing of expenses
to, the Indemnitee to the fullest extent, whether partial or complete,
permitted by law and as set forth in this Agreement, and (b) to the
extent insurance is maintained, for the continued coverage of Indemnitee
under the Company's directors' and officers' liability insurance
policies.
2. DEFINITIONS. For purposes of this Agreement, the following terms have the
meanings set forth below.
2.1 ACQUIRING PERSON means a Person referred to in Section 4.4.
2.2 ACQUISITION REPORT means a report filed by or on behalf of a stockholder
or group of stockholders on Schedule 13D or Schedule 14D-1 or any
successor schedule, form or report under the Exchange Act.
2.3 APPROVED LAW FIRM means any law firm that (a) is located in Houston,
Texas, (b) is rated "AV" by the Xxxxxxxxxx-Xxxxxxx Law Directory, and (c)
has not, for a five-year period prior to the Indemnifiable Event in
question, been engaged by the Company, by a Person filing an Acquisition
Report, or by the Indemnitee.
2.4 ARTICLE 2.02-1 means Article 2.02-1 of the TBCA.
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(1) "BindView Corporation" is a registered assumed name of BindView Development
Corporation.
INDEMNITEE: XXXXXX X. XXXXXXX
2.5 ARTICLES AND BYLAWS means the articles of incorporation of the Company
and/or the bylaws of the Company, in either case as now in effect or as
hereafter amended and/or restated (including any substitute articles of
incorporation and/or bylaws).
2.6 BENEFICIAL OWNER means a Person who is a beneficial owner (as defined in
Rule 13d-3 or any successor rule or regulation promulgated under the
Exchange Act), directly or indirectly, of Voting Stock, of rights to
acquire Voting Stock, or of securities convertible into Voting Stock, as
applicable. If a Person owns rights to acquire Voting Stock, that
Person's beneficial ownership shall be determined pursuant to paragraph
(d) of Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act.
2.7 BOARD means the Board of Directors of the Company.
2.8 CHANGE IN CONTROL of the Company shall be deemed to have occurred if any
of the following events occurs after the Effective Date:
(a) An Acquisition Report is filed with the Commission disclosing that
any Person is the Beneficial Owner of 20 percent or more of the
outstanding Voting Stock. The previous sentence shall not apply if
such Person is (1) the Company, one of its subsidiaries, or any
employee benefit plan sponsored by either, or (2) Xxxx X. Xxxxxxx.
(b) Any Person purchases securities pursuant to a tender offer or
exchange offer to acquire any Voting Stock (or any securities
convertible into Voting Stock) and, immediately after consummation
of that purchase, that Person is the Beneficial Owner of 20
percent or more of the outstanding Voting Stock. The previous
sentence shall not apply if such Person is (1) the Company, one of
its subsidiaries, or any employee benefit plan sponsored by
either, or (2) Xxxx X. Xxxxxxx.
(c) The consummation of a Merger Transaction if as a result of the
Merger Transaction, 50 percent or less of the combined voting
power of the then-outstanding securities of the other party to the
Merger Transaction, immediately after the Change of Control Date,
are held in the aggregate by the holders of Voting Stock
immediately prior to the Change of Control Date.
(d) The consummation of a Sale Transaction if as a result of the Sale
Transaction, 50 percent or less of the combined voting power of
the then-outstanding securities of the other party to the Sale
Transaction, immediately after the Change of Control Date, are
held in the aggregate by the holders of Voting Stock immediately
prior to the Change of Control Date.
(e) The consummation of a transaction, immediately after which any
Person would be the Beneficial Owner, directly or indirectly, of
more than 50 percent of the outstanding Voting Stock.
(f) The stockholders of the Company approve the dissolution of the
Company.
(g) During any period of 12 consecutive months, the individuals who at
the beginning of that period constituted the Board of Directors
shall cease to constitute a majority of the Board of Directors.
The previous sentence will not apply if the election, or the
nomination for election by the Company's stockholders, of each
director of the Company first elected during such period was
approved by a vote of at least two-thirds of the directors of the
Company then still in office who were directors of the Company at
the beginning of any such period.
INDEMNIFICATION AGREEMENT 92.3274 PAGE 2
INDEMNITEE: XXXXXX X. XXXXXXX
2.9 CHANGE OF CONTROL DATE means the date of an event constituting a Change
of Control. In the case of a Merger Transaction or a Sale Transaction
constituting a Change of Control, the Change of Control Date shall be the
effective date of such transaction.
2.10 CLAIM means (a) any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, investigative or
otherwise; (b) any appeal in such an action, suit, or proceeding; and (c)
any inquiry or investigation, whether conducted by the Company or some
other party (either private or governmental), that the Indemnitee
reasonably believes could lead to the institution of any such action,
suit or proceeding.
2.11 COMMISSION means the Securities and Exchange Commission or any successor
agency.
2.12 EXCHANGE ACT means the Securities Exchange Act of 1934, as amended from
time to time, or any successor statute.
2.13 EXPENSE ADVANCE - see Section 5.
2.14 EXPENSES shall include (a) attorneys' fees and all other costs, expenses
and obligations paid or incurred in connection with (1) investigating,
defending, prosecuting, being a witness in or participating in any
Indemnifiable Claim, or (2) preparing to conduct any of the activities
listed in clause (1), together with (b) interest, computed at the
Company's average cost of funds for short-term borrowings, accrued from
the date of incurrence of the items listed in subparagraph (a) to that
date the Indemnitee receives reimbursement therefor.
2.15 FINAL JUDGMENT means a final judgment or other final adjudication, by a
court of competent jurisdiction, from which no further appeal is taken or
possible.
2.16 INCLUDING (in lower case), unless otherwise specified, means including
but not limited to.
2.17 INDEMNIFIABLE CLAIM means (a) a Claim, made by a person or entity other
than the Indemnitee, arising out of (in whole or in part) or relating to
an Indemnifiable Event, or (b) a Claim made by the Indemnitee pursuant to
Section 4.3.
2.18 INDEMNIFIABLE EVENT means any event or occurrence related to:
(a) the fact that the Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company; or
(b) the fact that the Indemnitee is or was serving at the request of
the Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation of any type or kind, foreign or
domestic, partnership, joint venture, limited liability company,
trust, employee benefit plan or other enterprise. Without limiting
any indemnification provided hereunder, if the Indemnitee serves,
in any capacity, either (i) another corporation, partnership,
joint venture, limited liability company, trust, or other
enterprise of which 20% or more of the voting
INDEMNIFICATION AGREEMENT 92.3274 PAGE 3
INDEMNITEE: XXXXXX X. XXXXXXX
power or residual economic interest is held, directly or
indirectly, by the Company or (ii) any employee benefit plan of
the Company or any entity referred to in clause (i) above, such
service shall be deemed to be at the request of the Company; or
(c) anything done or not done by the Indemnitee in any capacity
described in subparagraphs (a) and (b).
2.19 INDEMNITY OBLIGATIONS means the Company's obligations to indemnify the
Indemnitee under this Agreement or any other agreement or any provision
of the Articles and Bylaws relating to Indemnifiable Claims.
2.20 MERGER TRANSACTION means a merger, consolidation or reorganization of the
Company with or into any other person or entity.
2.21 PERSON means a person within the meaning of Section 13(d) or Section
14(d)(2) or any successor rule or regulation promulgated under the
Exchange Act.
2.22 REVIEWING PARTY means:
(a) the Board acting by quorum consisting of directors who are not
parties to the particular Claim with respect to which the
Indemnitee is seeking indemnification, or
(b) if such a quorum is not obtainable (or, even if such a quorum is
obtainable, if a quorum of disinterested directors so directs):
(1) the Board upon the opinion in writing of independent legal
counsel that indemnification is proper in the circumstances
because the applicable standard of conduct set forth in
Section 3 of this Agreement and/or in Article 2.02-1 of the
TBCA has been met by the Indemnitee, or
(2) the shareholders upon a finding that the Indemnitee has met
the applicable standard of conduct referred to in clause
(b)(1) of this definition.
2.23 SALE TRANSACTION means a sale, lease, exchange or other transfer of all
or substantially all the assets of the Company and its consolidated
subsidiaries to any other person.
2.24 TBCA means the Texas Business Corporation Act or any successor statute. A
reference to a specific article of the TBCA shall encompass any
corresponding renumbered or amended article or any corresponding article
of any successor statute.
2.25 VOTING STOCK means shares of capital stock of the Company the holders of
which are entitled to vote for the election of directors, but excluding
shares entitled to so vote only upon the occurrence of a contingency
unless that contingency shall have occurred.
3. RIGHT TO INDEMNIFICATION.
3.1 If (a) the Indemnitee was, is, becomes at any time, or is threatened to
be made, (i) a party to, or (ii) a witness in, or (iii) otherwise a
participant in, an Indemnifiable Claim, then (b) subject to a
determination in accordance with Section 4 that the Indemnity is entitled
to indemnification, the
INDEMNIFICATION AGREEMENT 92.3274 PAGE 4
INDEMNITEE: XXXXXX X. XXXXXXX
Company shall indemnify the Indemnitee, to the maximum extent permitted
by law, against any and all Expenses, judgments, fines (including excise
taxes assessed on an Indemnitee with respect to an employee benefit
plan), penalties, and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with, or in
respect of, such Expenses, judgments, fines, penalties or amounts paid in
settlement) in respect of such Claim.
3.2 The Indemnitee shall not be entitled to indemnification pursuant to
Section 3.1 if a Final Judgment, adverse to the Indemnitee, establishes
that (a) the Indemnitee's acts were committed in bad faith or were the
result of active and deliberate dishonesty and in either case, were
material to the cause of action adjudicated in the Final Judgment, or (b)
the Indemnitee personally and improperly gained a material financial
profit or other material benefit to which the Indemnitee was not
entitled.
3.3 Prior to a Change of Control, the Indemnitee shall not be entitled to
indemnification pursuant to Section 3.1 in connection with any Claim
initiated by the Indemnitee against the Company or any director or
officer of the Company unless (a) the Company has joined in or consented
to the initiation of such Claim, or (b) such Claim is initiated pursuant
to Section 3.4.
3.4 If (a) the Indemnitee asserts a claim or brings an action for (i)
indemnification or advance payment of Expenses by the Company under its
Indemnity Obligations, or (ii) a determination or challenge pursuant to
Section 4.3, or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Company, then (b) the
Company shall indemnify the Indemnitee against any and all expenses
(including attorneys' fees) that are incurred by the Indemnitee in
connection with such claim or action, and such claim or action shall be
an Indemnifiable Claim for all purposes of this Agreement.
3.5 If (a) the Indemnitee is entitled under any provision of this Agreement
to indemnification by the Company for some or a portion of the Expenses,
judgments, fines, penalties and amounts paid in settlement of a Claim but
not, however, for all of the total amount thereof, then (b) the Company
shall nevertheless indemnify the Indemnitee for the portion of such total
amount to which the Indemnitee is entitled.
3.6 Without limiting Section 3.5, if (a) one or more Indemnifiable Claims is
made or occurs in respect of multiple Indemnifiable Events, and (b) as to
a particular Indemnifiable Event, the Indemnitee has been successful on
the merits or otherwise in defense of any or all Indemnifiable Claims
relating in whole or in part to such Indemnifiable Event, or in defense
of any issue or matter related thereto, including dismissal without
prejudice, then (c) the Company shall indemnify the Indemnitee, to the
maximum extent permitted by law, against all Expenses incurred in
connection with such defense.
3.7 The Company's indemnification obligations in this Section 3 shall in no
event be deemed to preclude or limit any right to indemnification to
which the Indemnitee may be entitled under Article 2.02-1, the Articles
and Bylaws, or any other applicable statutory, regulatory, or contractual
provision.
INDEMNIFICATION AGREEMENT 92.3274 PAGE 5
INDEMNITEE: XXXXXX X. XXXXXXX
4. DETERMINATIONS OF ENTITLEMENT TO INDEMNITY
4.1 The Company's Indemnity Obligations shall be subject to the condition
that the Reviewing Party shall have authorized such indemnification in
the specific case by having determined that the Indemnitee is permitted
to be indemnified under the applicable standard of conduct set forth in
this Agreement and/or applicable law. The Company shall promptly call a
meeting of the Board concerning such Claim and use its best efforts to
facilitate a prompt determination by the Reviewing Party with respect to
such Claim. The Indemnitee shall be afforded the opportunity to make
submissions to the Reviewing Party with respect to such Claim.
4.2 To the extent that the Reviewing Party determines that the Indemnitee
substantively is permitted to be indemnified (in whole or in part), such
determination shall be conclusive and binding to that extent on both the
Company and the Indemnitee.
4.3 If (a) there has been no determination by the Reviewing Party pursuant to
Section 4.1, or (b) the Reviewing Party determines pursuant to Section
4.1 that the Indemnitee would not be permitted to be indemnified in whole
or in part, then (c) the Indemnitee shall have the right to commence
litigation in any court in the State of Texas having subject matter
jurisdiction thereof and in which venue is proper, seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof. The Company hereby consents to
service of process and agrees to appear in any such litigation. Such
litigation shall be an Indemnifiable Claim for all purposes of this
Agreement.
4.4 In the event of a Change of Control of the Company (other than a Change
of Control which has been approved by a majority of the Board who were
directors immediately prior to such Change of Control), then all
determinations pursuant to Section 4.1 and Article 2.02-1 shall be made
pursuant to subparagraph (F)(1), (F)(2), or (F)(3) of Article 2.02-1.
With respect to all matters relating to such determinations, or
concerning the rights of the Indemnitee to indemnity payments and Expense
Advances under the Indemnity Obligations (including any opinion to be
rendered pursuant to Article 2.02-1), the following provisions shall
apply:
(a) The Company (including the Board) shall seek legal advice from,
and only from (and if special legal counsel is selected under
subparagraph (F)(3) of Article 2.02-1, the Board shall select
only), special, independent legal counsel selected by the
Indemnitee and approved by the Company, which approval shall not
be unreasonably withheld.
(b) Such counsel shall not have otherwise performed services for (A)
the Company or any subsidiary of the Company, (B) the Acquiring
Person or any affiliate or associate of such Acquiring Person
within the last five years (other than in connection with such
matters) or (C) the Indemnitee. As used in this Section 4.4, the
terms "affiliate" and "associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Exchange Act and in effect on the date
of this Agreement.
(c) Unless the Indemnitee has theretofore selected counsel pursuant to
this Section 4.4 and such counsel has been approved by the
Company, any Approved Law Firm shall be deemed to satisfy the
requirements set forth above.
INDEMNIFICATION AGREEMENT 92.3274 PAGE 6
INDEMNITEE: XXXXXX X. XXXXXXX
(d) Such counsel, among other things, shall render its written opinion
to the Company, the Board and the Indemnitee as to whether and to
what extent the Indemnitee would be permitted to be indemnified
under applicable law and/or this Agreement.
(e) The Company agrees to pay the reasonable fees of such counsel and
to fully indemnify such counsel against any and all expenses
(including attorneys' fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto.
5. EXPENSE ADVANCES.
5.1 If so requested by the Indemnitee from time to time, the Company shall
advance within ten business days of such request any and all Expenses to
the Indemnitee (an "EXPENSE ADVANCE").
5.2 If, when and to the extent that the Reviewing Party determines pursuant
to Section 4 that the Indemnitee is not entitled to be indemnified
against the Claim in question, then:
(a) the Company shall be entitled to be reimbursed by the Indemnitee
for all Expense Advances previously paid;
(b) upon request by the Indemnitee, the Company may continue to make
Expense Advances to the Indemnity for up to 30 days pending the
commencement of legal proceedings under Section 4.3; and
(c) the Indemnitee hereby agrees and undertakes to reimburse the
Company for Expense Advances to the full extent required by
Section K of Article 2.02-1.
5.3 If the Indemnitee commences legal proceedings in a court of competent
jurisdiction to secure a determination that the Indemnitee should be
indemnified, then:
(a) any determination under Section 4 shall not be binding, and
(b) the Company shall continue to make Expense Advances as provided in
Section 5.1, and the Indemnitee shall not be required to reimburse
the Company for any Expense Advance, until the occurrence of a
Final Judgment that makes a determination adverse to the
Indemnitee concerning such indemnification.
6. TIMING. The Company shall carry out its Indemnity Obligations as soon as
practicable, but in any event no later than 30 days after written demand
is presented to the Company.
7. NO PRESUMPTION. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, whether civil or criminal, by
judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere or its equivalent, shall
not create a presumption that the Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.
8. NONEXCLUSIVITY, ETC. The rights of the Indemnitee hereunder shall be in
addition to any other rights the Indemnitee may have under the Company's
Articles and Bylaws, the TBCA, or otherwise.
INDEMNIFICATION AGREEMENT 92.3274 PAGE 7
INDEMNITEE: XXXXXX X. XXXXXXX
To the extent that a change in the TBCA (whether by statute or judicial
decision) permits greater indemnification by agreement than would be
afforded currently under the Articles and Bylaws and this Agreement, it
is the intent of the parties hereto that the Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change.
9. INSURANCE. To the extent the Company maintains an insurance policy or
policies providing directors' and officers' liability insurance, the
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 director or officer of the Company.
10. LIMITATION PERIOD. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of the Company or any affiliate
of the Company against the Indemnitee, the Indemnitee's spouse, heirs,
executors or personal or legal representatives after the expiration of
two years from the date of accrual of such cause of action. Any claim or
cause of action of the Company or its affiliate shall be extinguished and
deemed released unless asserted by the timely filing of a legal action
within such two year period. If any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period
shall govern.
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 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.
12. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against
the Indemnitee to the extent the Indemnitee has otherwise actually
received payment (under any insurance policy, under the Articles and
Bylaws, otherwise) of the amounts otherwise indemnifiable hereunder.
13. SPECIFIC PERFORMANCE. The parties recognize that if any provision of this
Agreement is violated by the Company, the Indemnitee may be without an
adequate remedy at law. Accordingly, in the event of any such violation,
the Indemnitee shall be entitled, if the Indemnitee so elects, to
institute proceedings, either in law or at equity, to obtain damages, to
enforce specific performance, to enjoin such violation or to obtain any
relief or any combination of the foregoing as the Indemnitee may elect to
pursue.
14. OTHER PROVISIONS.
14.1 This Agreement shall inure to the benefit of and be binding upon (i) the
Company and its successors and assigns, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, and (ii)
the Indemnitee and the Indemnitee's spouse, heirs, and personal and legal
representatives.
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INDEMNITEE: XXXXXX X. XXXXXXX
14.2 All notices and statements with respect to this Agreement must be in
writing and shall be delivered by certified mail return receipt
requested; hand delivery with written acknowledgment of receipt; FAX
transmission with machine-printed confirmation of delivery; or overnight
courier with delivery-tracking capability. Notices to the Company shall
be addressed to the Company's general counsel at the Company's
then-current principal operating office. Notices to the Indemnitee may be
delivered to the Indemnitee in person or to the Indemnitee's then-current
home address as indicated on the Indemnitee's pay stubs or, if no address
is so indicated, as set forth in the Company's payroll records.
14.3 This Agreement sets forth the entire agreement of the parties concerning
the subjects covered herein; there are no promises, understandings,
representations, or warranties of any kind concerning those subjects
except as expressly set forth in this Agreement.
14.4 Any modification of this Agreement must be in writing and signed by all
parties; any attempt to modify this Agreement, orally or in writing, not
executed by all parties will be void.
14.5 If any provision of this Agreement, or its application to anyone or under
any circumstances, is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability will not affect any
other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and
will not invalidate or render unenforceable such provision or application
in any other jurisdiction.
14.6 This Agreement will be governed and interpreted under the laws of the
United States of America and of the State of Texas as applied to
contracts made and carried out in entirely Texas by residents of that
State.
14.7 No failure on the part of any party to enforce any provisions of this
Agreement will act as a waiver of the right to enforce that provision. 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.
14.8 This Agreement shall continue in effect regardless of whether the
Indemnitee continues to serve as an officer, director, or employee of the
Company (or at the Company's request, of any other enterprise).
14.9 Section headings are for convenience only and shall not define or limit
the provisions of this Agreement.
14.10 This Agreement may be executed in several counterparts, each of which is
an original. It shall not be necessary in making proof of this Agreement
or any counterpart hereof to produce or account for any of the other
counterparts. A copy of this Agreement manually signed by one party and
transmitted to the other party by FAX or in image form via email shall be
deemed to have been executed and delivered by the signing party as though
an original. A photocopy of this Agreement shall be effective as an
original for all purposes.
(Signature page follows)
INDEMNIFICATION AGREEMENT 92.3274 PAGE 9
INDEMNITEE: XXXXXX X. XXXXXXX
By signing this Agreement, the Indemnitee acknowledges that the Indemnitee (1)
has read and understood the entire Agreement; (2) has received a copy of it (3)
has had the opportunity to ask questions and consult counsel or other advisors
about its terms; and (4) agrees to be bound by it.
BINDVIEW CORPORATION, BY: INDEMNITEE
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Xxxx X. Xxxxxxx, President Signature
and Chief Executive Officer
INDEMNIFICATION AGREEMENT 92.3274 PAGE 10
