Exhibit 10.3
ANSYS DIRECTOR INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT made and
entered into this 31st day of July, 2008 (“ Agreement
”), by and among ANSYS, Inc., a Delaware corporation (and
where appropriate, any Entity (as hereinafter defined) controlled
directly or indirectly by any it (collectively, the “
Companies ,” and individually, a “
Company ”)) and Dr. Zoltan Cendes (“
Indemnitee ”):
WHEREAS , it is essential to the Companies that they be
able to retain and attract as directors and officers the most
capable persons available;
WHEREAS , increased corporate litigation has subjected
directors and officers to litigation risks and expenses, and the
limitations on the availability of directors and officers liability
insurance have made it increasingly difficult for the Companies to
attract and retain such persons;
WHEREAS , their respective by-laws require the Companies
to indemnify their directors and officers to the fullest extent
permitted by law and permit them to make other indemnification
arrangements and agreements;
WHEREAS , the Companies desire to provide Indemnitee
with specific contractual assurance of Indemnitee’s rights to
full indemnification against litigation risks and expenses
(regardless, among other things, of any amendment to or revocation
of any of the Companies’ respective by-laws or any change in
the ownership of any of the Companies or the composition of any of
their respective Boards of Directors), which indemnification is
intended to be greater than that which is afforded by the
Companies’ respective certificates of incorporation, by-laws
and, to the extent insurance is available, the coverage of
Indemnitee under the Companies’ respective directors and
officers liability insurance policies; and
WHEREAS , Indemnitee is relying upon the rights afforded
under this Agreement in continuing in Indemnitee’s position
as an officer and/or director of each of the Companies.
NOW, THEREFORE
, in consideration of the premises
and the covenants contained herein, the Companies and Indemnitee do
hereby covenant and agree as follows:
1. Definitions.
(a) “ Corporate Status
” describes the status of a person who is serving or has
served (i) as a director or officer of any of the Companies,
(ii) in any capacity with respect to any employee benefit plan
of any of the Companies, or (iii) as a director, partner,
manager, member, trustee, officer, employee or agent of any other
Entity at the request of any of the Companies.
(b) “ Entity ”
shall mean any corporation, partnership, limited liability company,
joint venture, trust, foundation, association, organization or
other legal entity and any group or division of any Company or any
of its subsidiaries.
(c) “ Expenses ”
shall mean all reasonable fees, costs and expenses incurred in
connection with any Proceeding (as defined below), including,
without limitation, attorneys’ fees,
disbursements and retainers (including, without
limitation, any such fees, disbursements and retainers incurred by
Indemnitee pursuant to Sections 10 and 11(c) of this
Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without
limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services, and other
disbursements and expenses.
(d) “ Indemnifiable
Expenses ,” “ Indemnifiable Liabilities
” and “ Indemnifiable Amounts ” shall have
the meanings ascribed to those terms in Section 3(a)
below.
(e) “ Liabilities
” shall mean judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts paid in
settlement.
(f) “ Proceeding
” shall mean any threatened, pending or completed claim,
action, suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee’s rights
hereunder.
2. Services of
Indemnitee. In
consideration of each Company’s covenants and commitments
hereunder, Indemnitee agrees to serve or continue to serve as a
director or officer of such Company. However, this Agreement shall
not impose any obligation on Indemnitee or any Company to continue
Indemnitee’s service to such Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
3. Agreement to
Indemnify. The Companies
agree to indemnify Indemnitee as follows:
(a) Subject to the exceptions
contained in Section 4(a) below, if Indemnitee was or is a
party or is threatened to be made a party to any Proceeding (other
than an action by or in the right of one or more of the Companies)
by reason of Indemnitee’s Corporate Status, Indemnitee shall
be indemnified by the Companies against all Expenses and
Liabilities incurred or paid by Indemnitee in connection with such
Proceeding (referred to herein as “ Indemnifiable
Expenses ” and “ Indemnifiable Liabilities
,” respectively, and collectively as “ Indemnifiable
Amounts ”).
(b) Subject to the exceptions
contained in Section 4(b) below, if Indemnitee was or is a
party or is threatened to be made a party to any Proceeding by or
in the right of one or more of the Companies to procure a judgment
in its favor by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Companies against all
Indemnifiable Expenses.
4. Exceptions to
Indemnification. Indemnitee shall be entitled to indemnification
under Sections 3(a) and 3(b) above in all circumstances other
than the following:
(a) If indemnification is requested
under Section 3(a) and
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(i) it has been adjudicated finally
by a court of competent jurisdiction that, in connection with the
subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company with respect to which
Indemnitee’s Corporate Status has given rise to a claim
against Indemnitee (the “ Relevant Company ”),
or, with respect to any criminal action or proceeding, Indemnitee
had reasonable cause to believe that Indemnitee’s conduct was
unlawful, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts hereunder; or
(ii) the subject of the Proceeding
out of which the claim for indemnification has arisen
(A) relates to or is in connection with any matter relating to
that certain Agreement and Plan of Merger, dated March 31,
2008, by and among the Company, Evgeni, Inc., Sidney LLC and Ansoft
Corporation (the “ Merger Agreement ”) and
(B) relates to or is in connection with any actions taken by,
or matters relating to, Indemnitee in any capacity other than as a
director or officer of the Company, provided, however, that nothing
herein shall limit any indemnification provided pursuant to the
Merger Agreement.
(b) If indemnification is requested
under Section 3(b) and
(i) it has been adjudicated finally
by a court of competent jurisdiction that, in connection with the
subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Relevant Company, Indemnitee
shall not be entitled to payment of Indemnifiable Expenses
hereunder;
(ii) it has been adjudicated finally
by a court of competent jurisdiction that Indemnitee is liable to
the Relevant Company with respect to any claim, issue or matter
involved in the Proceeding out of which the claim for
indemnification has arisen, including, without limitation, a claim
that Indemnitee received an improper personal benefit, no
Indemnifiable Expenses shall be paid with respect to such claim,
issue or matter unless the Court of Chancery or another court in
which such Proceeding was brought shall determine upon application
that, despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Indemnifiable Expenses which such
court shall deem proper; or
(iii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934, the rules and regulations promulgated
thereunder and amendments thereto or successor provisions of any
federal, state or local statutory law, Indemnitee shall not be
entitled to payment of Indemnifiable Expenses hereunder.
5. Procedure for Payment of
Indemnifiable Amounts. Indemnitee shall submit to the Companies a
written request specifying the Indemnifiable Amounts for which
Indemnitee seeks
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payment under Section 3 of this Agreement
and the basis for the claim. The Companies shall pay such
Indemnifiable Amounts to Indemnitee within twenty
(20) calendar days of receipt of the request. At the request
of the Companies, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary
to establish that Indemnitee is entitled to indemnification
hereunder.
6. Indemnification for Expenses
of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision
of this Agreement, and without limiting any such provision, to the
extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified
against all Expenses reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. If Indemnitee is
not wholly successful in such Proceeding but is successful, on
t
