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Exhibit 10.8
BRIDGEPOINT EDUCATION, INC.
INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT is made and entered into as of
the day
of ,
2008 (the "Agreement"), by and between Bridgepoint Education, Inc.,
a Delaware corporation (the "Company"),
and ("Indemnitee"),
with reference to the following facts:
A. The
Company desires the benefits of having Indemnitee serve as an
officer and/or director secure in the knowledge that any expenses,
liability and/or losses incurred by him or her in his or her good
faith service to the Company will be borne by the Company or its
successors and assigns.
B. Indemnitee
is willing to serve in his or her position with the Company only on
the condition that he or she be indemnified for such expenses,
liability and/or losses.
C. The
Company and Indemnitee recognize the increasing difficulty in
obtaining liability insurance for directors, officers and agents of
a corporation at reasonable cost.
D. The
Company and Indemnitee recognize that there has been an increase in
litigation against corporate directors, officers and agents.
E. Article
VIII of the Company's Certificate of Incorporation, as amended (the
"Certificate"), provides for the mandatory indemnification, to the
fullest extent permitted by Delaware law, of directors and officers
of the Company, from and against any and all expense, liability and
loss reasonably incurred or suffered by such persons in connection
with their service to the Company, and provides that such right to
indemnification is not exclusive of any other rights which any
person may have or later acquire under any statute, provision of
the Certificate, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise. Article 9 of the Company's
bylaws ("Bylaws") provides for the mandatory indemnification of any
officer or director, or any former officer or director, against any
and all of the expenses, liabilities or other matters referred to
in or covered by Section 145 of the Delaware General Corporation
Law.
NOW, THEREFORE,
the parties hereby agree as follows:
1.
Definitions.
For purposes of this Agreement:
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1.1 "Agent" shall mean any person who is
or was a director, officer, employee or agent of the Company, or a
subsidiary of the Company whether serving in such capacity or as a
director, officer, employee, agent, fiduciary or other official of
another corporation, joint venture, trust or other enterprise at
the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company.
1.2 "Change of Control" shall mean, solely
for purposes of this Agreement, the occurrence of any of the
following events after the date of this Agreement:
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(a) A change in the composition of the
board of directors of the Company (the "Board"), as a result of
which at least one-half (1/2) of the incumbent directors are not
directors who either (a) had been directors of the Company
twenty-four (24) months prior to such change or (b) were elected,
or nominated for election, to the Board with the affirmative votes
of at least a majority of the directors who had been directors of
the Company twenty-four (24) months prior to such change and who
were still in office at the time of the election or nomination;
or
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(b) Any "person" (as such term is used in
sections 13(d) and 14(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), as amended), through the acquisition or
aggregation of securities is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the combined voting power of
the Company's then outstanding securities ordinarily (and apart
from rights accruing under special circumstances) having the right
to vote at elections of directors (the "Capital Stock"), other than
Warburg Pincus Private Equity VIII, L.P., a Delaware limited
partnership; provided, however, that any change in ownership of the
Company's securities by any person resulting solely from a
reduction in the aggregate number of outstanding shares of Capital
Stock, and any decrease thereafter in such person's ownership of
securities, shall be disregarded until such person increases in any
manner, directly or indirectly, such person's beneficial ownership
of any securities of the Company.
1.3 "Disinterested Director" shall mean a
director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is being sought by
Indemnitee.
1.4 "Expenses" shall include, without
limitation, (a) all reasonable direct and indirect costs incurred,
paid or accrued, (b) all reasonable attorneys' fees, retainers,
court costs, transcripts, fees of experts, witness fees, travel
expenses, food and lodging expenses while traveling, duplicating
costs, printing and binding costs, telephone charges, postage,
delivery service, freight or other transportation fees and
expenses, (c) all other reasonable disbursements and out-of-pocket
expenses, and (d) amounts paid in settlement, to the extent not
prohibited by Delaware Law.
1.5 "Independent Counsel" shall mean a law
firm or a member of a law firm that neither is presently nor in the
past five years has been retained to represent: (a) the Company,
the Board, any committee of the Board, an affiliate of the Company
or Indemnitee in any matter material to either party or (b) any
other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee's right to
indemnification under this Agreement.
1.6 "Liabilities" shall mean liabilities
of any type whatsoever, including, but not limited to, judgments,
arbitral awards, fines, ERISA or other excise taxes and penalties,
and amounts paid in settlement (including all interest, assessments
or other charges paid or payable in connection with any of the
foregoing).
1.7 "Delaware Law" means the Delaware
General Corporation Law, as amended and in effect from time to time
or any successor or other statutes of Delaware having similar
import and effect.
1.8 "Proceeding" shall mean any pending,
threatened or completed action, hearing, suit or any other
proceeding, whether civil, criminal, arbitrative, administrative,
investigative or any alternative dispute resolution mechanism,
including without limitation any Proceeding brought by or in the
right of the Company, in which Indemnitee was, is or will be
involved as a party, witness or otherwise, by reason of the fact
that Indemnitee is or was an Agent of the Company, by reason of any
action taken by him or her or any inaction on his or her part while
acting as an Agent of the Company, whether or not he or she is
acting or serving in any such capacity at the time any such
Proceeding commences or is ongoing.
2.
Employment Rights and Duties.
Subject to any other obligations imposed on
either of the parties by contract or by law, and with the
understanding that this Agreement is not intended to confer
employment rights on either party which they did not possess on the
date of its execution, Indemnitee agrees to serve as a director or
officer so long as he or she is duly appointed or elected and
qualified
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in accordance with the applicable provisions of
the Certificate and Bylaws of the Company or any subsidiary of the
Company and until such time as he or she resigns or fails to stand
for election or until his or her employment terminates. Indemnitee
may from time to time also perform other services at the request,
or for the convenience of, or otherwise benefiting the Company.
Indemnitee may at any time and for any reason resign or be removed
from such position (subject to any other contractual obligation or
other obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue
Indemnitee in any such position. For sake of clarity, in the event
of such resignation or removal, this Agreement shall survive
according to its terms.
3.
Directors' and Officers'
Insurance.
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3.1 The Company hereby covenants and
agrees that, so long as Indemnitee shall continue to serve as a
director or officer of the Company and thereafter so long as
Indemnitee shall be subject to any possible Proceeding, the
Company, subject to Section 3.3, shall maintain directors' and
officers' insurance in full force and effect.
3.2 In all policies of directors' and
officers' insurance, Indemnitee shall be named as an insured in
such a manner as to provide Indemnitee 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.
3.3 The Company shall maintain directors'
and officers' insurance unless the Board determines in good faith
that such insurance is not reasonably available, the premium costs
for such insurance are disproportionate to the amount and/or scope
of coverage provided to the insureds (other than the Company), or
the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit to the insureds (other than
the Company); provided, however, that if Indemnitee is not then
serving as a director of the Company, then the Company must provide
notice to Indemnitee, no less than thirty (30) days prior to the
effective date of cancellation, expiration or non-renewal of the
then-current directors' and officers' insurance policy, of the
Board's determination, or the possibility of such a determination,
to discontinue maintenance of directors' and officers' insurance in
accordance with the exception set forth in this Section 3.3, and
the Company shall in good faith request that the Board reconsider
any such determination based on information that Indemnitee or his
or her insurance broker is able to provide concerning the
availability, costs and benefits of continued insurance coverage.
Failure of the Company to provide the required notice shall render
the exception to the obligation to continue to maintain directors'
and officers' insurance set forth in this Section 3.3
inapplicable. In the event the Company properly relies on the
exception to the obligation to continue to maintain directors' and
officers' insurance set forth in this Section 3.3, the Company
shall purchase, prior to the deadline therefor, the maximum "option
extension period," "discovery period" or similar benefit available
under the last directors' and officers' insurance policy in effect,
providing to Indemnitee continuing coverage following policy
expiration for a premium which is fixed by the terms of such last
policy in effect; or, if such coverage may be purchased only by
Indemnitee, the Company shall pay directly for, or reimburse
Indemnitee for the cost of, Indemnitee's purchase of such
coverage.
3.4 If, at the time of the receipt by the
Company of a notice of a "Claim" as that term or any similar term
is defined under any policy of directors' and officers' liability
insurance maintained by the Company, the Company shall give prompt
notice of the commencement of such Claim to the insurer(s) in
accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of
Indemnitee, all amounts payable as a result of such Claim in
accordance with the terms of such policies.
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4. Indemnification.
The Company shall indemnify Indemnitee to
the fullest extent authorized or permitted by Delaware Law in
effect on the date hereof, and as Delaware Law may from time to
time be amended (but, in the case of any such amendment, only to
the extent such amendment permits the Company to provide broader
indemnification rights than Delaware Law permitted the Company to
provide before such amendment). Without in any way diminishing the
scope of the indemnification provided by this Section 4, the
Company shall indemnify Indemnitee if and whenever he or she is or
was a witness, party or is threatened to be made a witness or a
party to any Proceeding, against all Expenses and Liabilities
actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with the investigation, defense, settlement or
appeal of such Proceeding. In addition to, and not as a limitation
of, the foregoing, the rights of indemnification of Indemnitee
provided under this Agreement shall include those rights set forth
in Sections 5, 6 and 7 below.
5.
Payment of Expenses.
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5.1 All Expenses incurred by or on behalf
of Indemnitee shall be advanced by the Company to Indemnitee within
thirty (30) days after the receipt by the Company of a written
request for such advance which may be made from time to time,
whether prior to or after final disposition of a Proceeding (unless
there has been a final determination by a court of competent
jurisdiction or arbitrator that Indemnitee is not entitled to be
indemnified for such Expenses). Indemnitee's entitlement to
advancement of Expenses shall include those incurred in connection
with any Proceeding by Indemnitee seeking a determination, an
adjudication or an award in arbitration pursuant to this Agreement.
The requests shall reasonably evidence the Expenses incurred by
Indemnitee in connection therewith. Indemnitee hereby undertakes to
repay the amounts advanced pursuant to this Agreement if it shall
ultimately be determined that Indemnitee is not entitled to be
indemnified pursuant to the terms of this Agreement. Indemnitee
shall, at the Company's request, provide an additional undertaking
to such effect in connection with any Proceeding in which
Indemnitee requests advancement of Expenses hereunder.
5.2 Notwithstanding any other provision in
this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any Proceeding, Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by Indemnitee in connection therewith.
6.
Procedure for Determination of
Entitlement to Indemnification.
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6.1 Whenever Indemnitee believes that he
or she is entitled to indemnification pursuant to this Agreement,
Indemnitee shall submit a written request for indemnification (the
"Indemnification Request") to the Company to the attention of the
Chief Executive Officer with a copy to the Secretary. This request
shall include documentation or information which is necessary for
the determination of entitlement to indemnification and which is
reasonably available to Indemnitee. Determination of Indemnitee's
entitlement to indemnification shall be made no later than sixty
(60) days after receipt of the Indemnification Request. The Chief
Executive Officer or the Secretary shall, promptly upon receipt of
Indemnitee's Indemnification Request, advise the Board in writing
that Indemnitee has made su
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