VERSION O
EXE TECHNOLOGIES, INC.
INDEMNIFICATION AGREEMENT
This Agreement is made as of the 1st day of March 2001, by and between
EXE Technologies, Inc., a Delaware corporation (the "Corporation), and
_______________ ("Indemnitee"), an officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance has been severely
limited, and
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its directors and officers so as to provide them with
the maximum possible protection permitted by law, and
WHEREAS, Indemnitee does not regard the protection available under the
Corporation's Certificate of Incorporation and insurance as adequate in the
present circumstances, and may not be willing to serve or continue to serve as
an officer without adequate protection, and
WHEREAS, the Corporation desires Indemnitee to serve, or continue to
serve, as an officer of the Corporation.
NOW THEREFORE, the Corporation and Indemnitee do hereby agree as
follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to
serve as an officer of the Corporation for so long as Indemnitee is duly elected
or appointed or until such time as Indemnitee tenders Indemnitee's resignation
in writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed action, suit, arbitration, alternative dispute resolution
proceeding, administrative hearing or other proceeding, whether brought by or in
the right of the Corporation or otherwise and whether of a civil, criminal,
administrative or investigative nature, and any appeal therefrom.
(b) The term "Corporate Status" shall mean the status of
a person who is or was an officer of the Corporation, or is or was serving, or
has agreed to serve, at the request of the Corporation, as a director, officer,
partner, trustee, member, employee or agent of another corporation, partnership,
joint venture, trust, limited liability company or other enterprise.
(c) The term "Expenses" shall include, without
limitation, attorneys' fees, retainers, court costs, transcript costs, fees and
expenses of experts, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and other disbursements
or expenses of the types customarily incurred in connection with investigations,
judicial or administrative proceedings or appeals, but shall not include the
amount of judgments, fines or penalties against Indemnitee or amounts paid in
settlement in connection with such matters.
(d) 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 Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Agreement.
3. INDEMNIFICATION IN THIRD-PARTY PROCEEDINGS. The Corporation
shall indemnify Indemnitee in accordance with the provisions of this Paragraph 3
if Indemnitee was or is a party to or threatened to be made a party to or
otherwise involved in any Proceeding (other than a Proceeding by or in the right
of the Corporation to procure a judgment in its favor) by reason of Indemnitee's
Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses, judgments, fines,
penalties and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection with such Proceeding, if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation and,
with respect to of any criminal Proceeding, had no reasonable cause to believe
that Indemnitee's conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably believed to be in,
or not opposed to, the best interests of the Corporation, and, with respect to
any criminal Proceeding, had reasonable cause to believe that Indemnitee's
conduct was unlawful.
4. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify Indemnitee in accordance with the
provisions of this Paragraph 4 if Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any Proceeding by or in the right of
the Corporation to procure a judgment in its favor by reason of Indemnitee's
Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection with such Proceeding, if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made under this Paragraph 4 in respect
of any claim, issue, or matter as to which Indemnitee shall have been adjudged
to be liable to the Corporation, unless and only to the extent that the Court of
Chancery of Delaware or the court in which such
2
action or suit was brought shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for such
Expenses as the Court of Chancery or such other court shall deem proper.
5. EXCEPTIONS TO RIGHT OF INDEMNIFICATION. Notwithstanding
anything to the contrary in this Agreement, except as set forth in Paragraph 10,
the Corporation shall not indemnify Indemnitee in connection with a Proceeding
(or part thereof) initiated by Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation. Notwithstanding anything
to the contrary in this Agreement, the Corporation shall not indemnify
Indemnitee to the extent Indemnitee is reimbursed from the proceeds of
insurance, and in the event the Corporation makes any indemnification payments
to Indemnitee and Indemnitee is subsequently reimbursed from the proceeds of
insurance, Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful, on the merits or otherwise, in defense of any
Proceeding or in defense of any claim, issue or matter therein, Indemnitee shall
be indemnified against all Expenses incurred by Indemnitee or on Indemnitee's
behalf in connection therewith. Without limiting the foregoing, if any
Proceeding or any claim, issue or matter therein is disposed of, on the merits
or otherwise (including a disposition without prejudice), without (i) the
disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee
was liable to the Corporation, (iii) a plea of guilty or NOLO CONTENDERE by
Indemnitee, (iv) an adjudication that Indemnitee did not act in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and (v) with respect to any criminal proceeding,
an adjudication that Indemnitee had reasonable cause to believe Indemnitee's
conduct was unlawful, then Indemnitee shall be considered for the purposes
hereof to have been wholly successful with respect thereto.
7. NOTIFICATION AND DEFENSE OF CLAIM. As a condition precedent to
Indemnitee's right to be indemnified, Indemnitee must notify the Corporation in
writing as soon as practicable of any Proceeding for which indemnity will or
could be sought by Indemnitee and provide the Corporation with a copy of any
summons, citation, subpoena, complaint, indictment, information or other
document relating to such Proceeding with which Indemnitee is served. With
respect to any Proceeding of which the Corporation is so notified, the
Corporation will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to Indemnitee. After notice from the Corporation to Indemnitee of its
election so to assume such defense, the Corporation shall not be liable to
Indemnitee for any legal or other expenses subsequently incurred by Indemnitee
in connection with such claim, other than as provided below in this Paragraph 7.
Indemnitee shall have the right to employ Indemnitee's own counsel in connection
with such claim, but the fees and expenses of such counsel incurred after notice
from the Corporation of its assumption of the defense thereof shall be at the
expense of Indemnitee unless (i) the employment of counsel by Indemnitee has
been authorized by the Corporation, (ii) counsel to Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and Indemnitee in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in
3
each of which cases the fees and expenses of counsel for Indemnitee shall be
at the expense of the Corporation, except as otherwise expressly provided by
this Agreement. The Corporation shall not be entitled, without the consent of
Indemnitee, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for Indemnitee shall have reasonably
made the conclusion provided for in clause (ii) above. The Corporation shall
not be required to indemnify Indemnitee under this Agreement for any amounts
paid in settlement of any Proceeding effected without its written consent. The
Corporation shall not settle any Proceeding in any manner which would impose
any penalty or limitation on Indemnitee without Indemnitee's written consent.
Neither the Corporation nor Indemnitee will unreasonably withhold their
consent to any proposed settlement.
8. ADVANCEMENT OF EXPENSES. Subject to the provisions of
Paragraph 9 below, in the event that the Corporation does not assume the defense
pursuant to Paragraph 7 of this Agreement of any Proceeding to which Indemnitee
was or is a party or is threatened to be made a party by reason of Indemnitee's
Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith and of which the Corporation receives notice
under this Agreement, any Expenses incurred by Indemnitee or on Indemnitee's
behalf in defending such Proceeding shall be paid by the Corporation in advance
of the final disposition of such Proceeding; PROVIDED, HOWEVER, that the payment
of such Expenses incurred by Indemnitee or on Indemnitee's behalf in advance of
the final disposition of such Proceeding shall be made only upon receipt of an
undertaking by or on behalf of Indemnitee to repay all amounts so advanced in
the event that it shall ultimately be determined that Indemnitee is not entitled
to be indemnified by the Corporation as authorized in this Agreement. Such
undertaking shall be accepted without reference to the financial ability of
Indemnitee to make repayment.
9. PROCEDURE FOR INDEMNIFICATION. In order to obtain
indemnification or advancement of Expenses pursuant to Paragraphs 3, 4, 6 or 8
of this Agreement, Indemnitee shall submit to the Corporation a written request.
Any such indemnification or advancement of Expenses shall be made promptly, and
in any event within 30 days after receipt by the Corporation of the written
request of Indemnitee, unless with respect to requests under Paragraphs 3, 4 or
8 the Corporation determines within such 30-day period that such Indemnitee did
not meet the applicable standard of conduct set forth in Paragraph 3 or 4, as
the case may be. Such determination, and any determination that advanced
Expenses must be repaid to the Corporation, shall be made in each instance: (a)
by a majority vote of the directors of the Corporation consisting of persons who
are not at that time parties to the Proceeding ("disinterested directors"),
whether or not a quorum; (b) by a committee of disinterested directors
designated by a majority vote of disinterested directors, whether or not a
quorum; (c) if there are no disinterested directors, or if the disinterested
directors so direct, by independent legal counsel (who may, to the extent
permitted by applicable law, be regular legal counsel to the Corporation) in a
written opinion to the Board; or (d) by the stockholders of the Corporation.
10. REMEDIES. The right to indemnification or advancement of
Expenses as provided by this Agreement shall be enforceable by Indemnitee in any
court of competent jurisdiction if the Corporation denies such request, in whole
or in part, or if no disposition thereof is made within the 30-day period
referred to above in Paragraph 9. Unless otherwise required by law, the burden
of proving that indemnification is not appropriate shall be on the Corporation.
It shall be a defense to any action for which a claim for indemnification is
made under this Agreement that
4
Indemnitee is not entitled to indemnification because Indemnitee has not met
the applicable standard of conduct set forth in this Agreement. However,
neither the failure of the Corporation to have made a determination prior to
the commencement of such action that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Corporation pursuant to Paragraph 9 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. Indemnitee's expenses (of the type described
in the definition of "Expenses" in Paragraph 2(c)) reasonably incurred in
connection with successfully establishing Indemnitee's right to
indemnification, in whole or in part, in any such Proceeding shall also be
indemnified by the Corporation.
11. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines, penalties or amounts paid in
settlement actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection with any Proceeding but not, however, for the total amount
thereof, then the Corporation shall nevertheless indemnify Indemnitee for the
portion of such Expenses, judgments, fines, penalties or amounts paid in
settlement to which Indemnitee is entitled.
12. SUBROGATION. In the event of any payment under this Agreement,
the Corporation 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 Corporation to bring suit to enforce
such rights.
13. TERM OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (a) six (6) years after the date that Indemnitee
shall have ceased to serve as an officer of the Corporation or, at the request
of the Corporation, as a director, officer, partner, trustee, member, employee
or agent of another corporation, partnership, joint venture, trust, limited
liability company or other enterprise; or (b) the final termination of all
Proceedings pending on the date set forth in clause (a) in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to Paragraph 10
of this Agreement relating thereto.
14. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification
and advancement of Expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Certification of Incorporation, the By-Laws, any agreement, any vote of
stockholders or disinterested directors, the General Corporation Law of
Delaware, any other law (common or statutory), or otherwise, both as to action
in Indemnitee's official capacity and as to action in another capacity while
holding office for the Corporation. Nothing contained in this Agreement shall be
deemed to prohibit the Corporation from purchasing and maintaining insurance, at
its expense, to protect itself or Indemnitee against any expense, liability or
loss incurred by it or Indemnitee in any such capacity, or arising out of
Indemnitee's status as such, whether or not Indemnitee would be indemnified
against such expense, liability or loss under this Agreement; provided that the
Corporation shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder if and
5
to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
15. NO SPECIAL RIGHTS. Nothing herein shall confer upon Indemnitee
any right to continue to serve as an officer of the Corporation for any period
of time or at any particular rate of compensation.
16. SAVINGS CLAUSE. If this Agreement or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines, penalties and amounts paid in settlement with respect to any Proceeding
to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Corporation and its successors and assigns and shall inure to the benefit of
the estate, heirs, executors, administrators and personal representatives of
Indemnitee.
19. 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.
20. MODIFICATION AND WAIVER. This Agreement may be amended from
time to time to reflect changes in Delaware law or for other reasons. 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 provision hereof nor shall any such waiver constitute a continuing waiver.
21. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
given (i) when delivered by hand or (ii) if mailed by certified or registered
mail with postage prepaid, on the third day after the date on which it is so
mailed:
(a) if to Indemnitee, to:
---------------------
---------------------
---------------------
(b) if to the Corporation, to: EXE Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attn: President
6
with a copy to: EXE Technologies, Inc.
000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
22. APPLICABLE LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
Indemnitee may elect to have the right to indemnification or reimbursement or
advancement of Expenses interpreted on the basis of the applicable law in effect
at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the
applicable law in effect at the time such indemnification or reimbursement or
advancement of Expenses is sought. Such election shall be made, by a notice in
writing to the Corporation, at the time indemnification or reimbursement or
advancement of Expenses is sought; PROVIDED, HOWEVER, that if no such notice is
given, and if the General Corporation Law of Delaware is amended, or other
Delaware law is enacted, to permit further indemnification of the directors or
officers, then the directors and officers of the Corporation shall be
indemnified to the fullest extent permitted under the General Corporation Law,
as so amended, or by such other Delaware law, as so enacted. Any repeal or
modification of the foregoing provision shall not adversely affect any right or
protection of an officer of the Corporation existing at the time of such repeal
or modification.
23. ENFORCEMENT. The Corporation expressly confirms and agrees
that it has entered into this Agreement in order to induce Indemnitee to
continue to serve as an officer of the Corporation, and acknowledges that
Indemnitee is relying upon this Agreement in continuing in such capacity.
24. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supercedes all prior agreements, whether oral or written, by any
officer, employee or representative of any party hereto in respect of the
subject matter contained herein; and any prior agreement of the parties hereto
in respect of the subject matter contained herein is hereby terminated and
cancelled. For avoidance of doubt, the parties confirm that the foregoing does
not apply to or limit Indemnitee's rights under Delaware law or the
Corporation's Certificate of Incorporation or By-Laws.
25. CONSENT TO SUIT. In the case of any dispute under or in
connection with this Agreement, Indemnitee may only bring suit against the
Corporation in the Court of Chancery of the State of Delaware. Indemnitee hereby
consents to the exclusive jurisdiction and venue of the courts of the State of
Delaware, and Indemnitee hereby waives any claim Indemnitee may have at any time
as to forum non conveniens with respect to such venue. The Corporation shall
have the right to institute any legal action arising out of or relating to this
Agreement in any court of competent jurisdiction. Any judgment entered against
either of the parties in any proceeding hereunder may be entered and enforced by
any court of competent jurisdiction. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, then the
7
prevailing party shall be entitled to recover, in addition to any other relief,
reasonable attorneys' fees, costs and disbursements.
26. CHANGE IN CONTROL. From and after a Change in Control (as
defined below), notwithstanding anything to the contrary in this Agreement,
Indemnitee shall be entitled to advancement of expenses under Paragraph 8
regardless whether the Corporation makes a determination under Paragraph 9 that
the applicable standard of conduct has not been met, and it shall not be a
defense to an action to enforce a claim for advancement of expenses pursuant to
Paragraph 8 that Indemnitee is not entitled to indemnification because
Indemnitee has not met the applicable standard of conduct set forth in this
Agreement. For purposes hereof, "Change in Control" shall mean:
(a) such time as the Continuing Directors (as defined
below) do not constitute a majority of the Board (or, if applicable, the Board
of Directors of a successor corporation to the Company), where the term
"Continuing Director" means at any date a member of the Board (i) who was a
member of the Board on the date of this Agreement or (ii) who was nominated or
elected subsequent to such date by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election; PROVIDED, HOWEVER, that there shall be excluded from this clause (ii)
any individual whose initial assumption of office occurred as a result of an
actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents, by
or on behalf of a person other than the Board; or
(b) the consummation of a merger, consolidation,
reorganization, recapitalization or share exchange involving the Company or a
sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), unless, immediately following such Business
Combination, each of the following two conditions is satisfied: (i) all or
substantially all of the individuals and entities who were the beneficial owners
of the outstanding common stock of the Company immediately prior to such
Business Combination beneficially own, directly or indirectly, more than sixty
percent (60%) of the then outstanding shares of common stock of the resulting or
acquiring corporation in such Business Combination (which shall include, without
limitation, a corporation which as a result of such transaction owns the Company
or substantially all of the Company's assets either directly or through one or
more subsidiaries) (such resulting or acquiring corporation is referred to
herein as the "Acquiring Corporation") in substantially the same proportions as
their ownership of the outstanding common stock of the Company, immediately
prior to such Business Combination; and (ii) no individual or entity (excluding
the Acquiring Corporation or any employee benefit plan (or related trust)
maintained or sponsored by the Company or by the Acquiring Corporation)
beneficially owns, directly or indirectly, thirty percent (30%) or more of the
then-outstanding shares of common stock of the Acquiring Corporation (except to
the extent that such ownership existed prior to the Business Combination).
[Signature Page to Follow]
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EXE TECHNOLOGIES, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
INDEMNITEE
--------------------------------------------
Name:
9
