EXHIBIT 10.13
INDEMNIFICATION AGREEMENT
This Agreement is made as of ___________, ___, 2000, by and
between WORKSCAPE, INC., a Delaware corporation (the "Company"), and
______________________ ("Director").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Director is unwilling to serve, or continue to serve, the
Company as a director without assurances that adequate liability insurance,
indemnification or a combination thereof is, and will continue to be, provided;
and
WHEREAS, the Company, in order to induce Director to continue to
serve the Company, has agreed to provide Director with the benefits contemplated
by this Agreement which benefits are intended to supplement or replace, if
necessary, the Company's existing directors' and officers' liability insurance;
and
WHEREAS, as a result of the provision of such benefits Director has
agreed to serve or to continue to serve as a director of the Company;
NOW, THEREFORE, in consideration of the promises, conditions,
representations and warranties set forth herein, including the Director's
continued service to the Company, the Company and Director hereby agree as
follows:
1. Definitions. The following terms, as used herein, shall
have the following respective meanings:
"Covered Amount" means Loss and Expenses which, in type or amount,
are not insured under the directors' and officers' liability insurance
maintained by the Company from time to time.
"Covered Act" means any breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or
wrongfully attempted by Director or any of the foregoing alleged by any
claimant or any claim against Director solely by reason of him being a
director or officer of the Company.
"D&O Insurance" means the directors' and officers' liability
insurance issued by the insurer(s), and having the policy number(s),
amount(s) and deductible(s) set forth on Exhibit A hereto and any
replacement or substitute policies issued by one or more reputable
insurers providing in all respects coverage at least comparable to and in
the same amount as that provided under the policy or policies identified
on Exhibit A.
"Determination" means a determination, based on the facts known at
the time, made by:
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(i) a majority vote of the directors who are not parties to
the action, suit or proceeding as to which indemnification has been
requested, even though less than a quorum, or, if there are no such
directors, or if such directors so direct; or
(ii) independent legal counsel in a written opinion prepared
at the request of a majority of a quorum of disinterested directors; or
(iii) a majority of the disinterested stockholders of the
Company; or
(iv) a final adjudication by a court of competent
jurisdiction.
"Determined" shall have a correlative meaning.
"Excluded Claim" means any payment for Losses or Expenses in
connection with any claim:
(i) based upon or attributable to Director gaining in fact
any personal profit or advantage to which Director is not entitled; or
(ii) for the return by Director of any remuneration paid to
Director without the previous approval of the stockholders of the
Company which is illegal; or
(iii) for an accounting of profits in fact made from the
purchase or sale by Director of securities of the Company within the
meaning of Section 16 of the Securities Exchange Act of 1934 as
amended, or similar provisions of any state law; or
(iv) resulting from Director's knowingly fraudulent,
dishonest or willful misconduct; or
(v) the payment of which by the Company under this Agreement
is not permitted by applicable law.
"Expenses" means any reasonable expenses incurred by Director as a
result of a claim or claims made against him for Covered Acts including,
without limitation, counsel fees and costs of investigative, judicial or
administrative proceedings or appeals, but shall not include Fines.
"Fines" means any fine, penalty or, with respect to an employee
benefit plan, any excise tax or penalty assessed with respect thereto.
"Loss" means any amount which Director is legally obligated to pay
as a result of a claim or claims made against him for Covered Acts
including, without limitation, damages and judgments and sums paid in
settlement of a claim or claims, but shall not include Fines.
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2. Maintenance of D&O Insurance.
(a) The Company hereby represents and warrants that Exhibit A
contains a complete and accurate description of the policies of directors' and
officers' liability insurance purchased by the Company and that such policies
are in full force and effect.
(b) The Company hereby covenants and agrees that, so long as
Director shall continue to serve as a director of the Company and thereafter so
long as Director shall be subject to any possible claim or threatened, pending
or completed action, suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that Director was a director of the
Company, the Company, subject to Section 2(d), shall maintain in full force and
effect D&O Insurance.
(c) In all policies of D&O Insurance, Director shall be named
as an insured in such a manner as to provide Director the same rights and
benefits, subject to the same limitations, as are accorded to the Company's
directors or officers most favorably insured by such policy.
(d) The Company shall have no obligation to maintain D&O
Insurance if the Company determines in good faith that such insurance is not
reasonably available, the premium costs for such insurance is disproportionate
to the amount of coverage provided, or the coverage provided by such insurance
is limited by exclusions so as to provide an insufficient benefit.
3. Indemnification. The Company shall indemnify Director and
hold him harmless from the Covered Amount of any and all Losses and Expenses
subject, in each case, to the further provisions of this Agreement.
4. Excluded Coverage.
(a) The Company shall have no obligation to indemnify Director
for and hold him harmless from any Loss or Expense which has been determined, by
final adjudication by a court of competent jurisdiction, to constitute an
Excluded Claim.
(b) The Company shall have no obligation to indemnify Director
and hold him harmless for any Loss or Expense to the extent that Director is
indemnified by the Company pursuant to the Company's Bylaws or otherwise
indemnified.
5. Indemnification Procedures.
(a) Promptly after receipt by Director of notice of the
commencement of or the threat of commencement of any action, suit or proceeding,
Director shall, if indemnification with respect thereto may be sought from the
Company under this Agreement, notify the Company of the commencement thereof.
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(b) If, at the time of the receipt of such notice, the Company
has D&O Insurance in effect, the Company shall give prompt notice of the
commencement of such action, suit or proceeding to the insurers in accordance
with the procedures set forth in the respective policies in favor of Director.
The Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of Director, all Losses and Expenses payable as
a result of such action, suit or proceeding in accordance with the terms of such
policies.
(c) To the extent the Company does not, at the time of the
commencement of or the threat of commencement of such action, suit or
proceeding, have applicable D&O Insurance, or if a Determination is made that
any Expenses arising out of such action, suit or proceeding will not be payable
under the D&O Insurance then in effect, the Company shall be obligated to pay
the Expenses of any such action, suit or proceeding in advance of the final
disposition thereof and the Company, if appropriate, shall be entitled to assume
the defense of such action, suit or proceeding, with counsel satisfactory to
Director, upon the delivery to Director of written notice of its election so to
do. After delivery of such notice, the Company will not be liable to Director
under this Agreement for any legal or other Expenses subsequently incurred by
the Director in connection with such defense other than reasonable Expenses of
investigation provided that Director shall have the right to employ its counsel
in any such action, suit or proceeding but the fees and expenses of such counsel
incurred after delivery of notice from the Company of its assumption of such
defense shall be at the Director's expense provided further that if (i) the
employment of counsel by Director has been previously authorized by the Company,
(ii) Director shall have reasonably concluded that there may be a conflict of
interest between the Company and Director in the conduct of any such defense or
(iii) the Company shall not, in fact, have employed counsel to assume the
defense of such action, the fees and expenses of counsel shall be at the expense
of the Company.
(d) All payments on account of the Company's indemnification
obligations under this Agreement shall be made within sixty (60) days of
Director's written request therefor unless a Determination is made that the
claims giving rise to Director's request are Excluded Claims or otherwise not
payable under this Agreement, provided that all payments on account of the
Company's obligations under Paragraph 5(c) of this Agreement prior to the final
disposition of any action, suit or proceeding shall be made within 20 days of
Director's written request therefor and such obligation shall not be subject to
any such determination but shall be subject to Paragraph 5(e) of this Agreement.
(e) Director agrees that he will reimburse the Company for all
Losses and Expenses paid by the Company in connection with any action, suit or
proceeding against Director in the event and only to the extent that a
Determination shall have been made by a court in a final adjudication from which
there is no further right of appeal that the Director is not entitled to be
indemnified by the Company for such Expenses because the claim is an Excluded
Claim or because Director is otherwise not entitled to payment under this
Agreement.
6. Settlement. The Company shall have no obligation to indemnify
Director under this Agreement for any amounts paid in settlement of any action,
suit or proceeding effected
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without the Company's prior written consent. The Company shall not settle any
claim in any manner which would impose any Fine or any obligation on Director
without Director's written consent. Neither the Company nor Director shall
unreasonably withhold their consent to any proposed settlement.
7. Rights Not Exclusive. The rights provided hereunder shall not be
deemed exclusive of any other rights to which the Director may be entitled under
any bylaw, agreement, vote of stockholders or of disinterested directors or
otherwise, both as to action in his official capacity and as to action in any
other capacity by holding such office, and shall continue after the Director
ceases to serve the Corporation as a Director.
8. Enforcement.
(a) Director's right to indemnification shall be enforceable
by Director only in the Chancery Court of the State of Delaware and shall be
enforceable notwithstanding any adverse Determination, other than a
Determination which has been made by a final adjudication of a court of
competent jurisdiction. In any such action, if a prior adverse Determination has
been made, the burden of proving that indemnification is required under this
Agreement shall be on Director. The Company shall have the burden of proving
that indemnification is not required under this Agreement if no prior adverse
Determination shall have been made.
(b) In the event that any action is instituted by Director
under this Agreement, or to enforce or interpret any of the terms of this
Agreement, Director shall be entitled to be paid all court costs and expenses,
including reasonable counsel fees, incurred by Director with respect to such
action, unless the court determines that each of the material assertions made by
Director as a basis for such action were not made in good faith or were
frivolous.
9. Severability. In the event that any provision of this Agreement
is determined by a court to require the Company to do or to fail to do an act
which is in violation of applicable law, such provision shall be limited or
modified in its application to the minimum extent necessary to avoid a violation
of law, and, as so limited or modified, such provision and the balance of this
Agreement shall be enforceable in accordance with their terms.
10. Choice of Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
11. Consent to Jurisdiction. The Company and the Director each
hereby irrevocably consent to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall be brought only in the Chancery Court of the State of
Delaware.
12. Successor and Assigns. This Agreement shall be (i) binding upon
all successors and assigns of the Corporation (including any transferee of all
or substantially all of its
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assets and any successor by merger or otherwise by operation of law) and (ii)
shall be binding on and inure to the benefit of the heirs, personal
representatives and estate of Director.
13. Amendment. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto.
[signature page follows]
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IN WITNESS WHEREOF, the Company and Director have executed this Agreement
as of the day and year first above written.
WORKSCAPE, INC.
By:
-----------------------------
Name:
Title:
--------------------------------
Director
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