Exhibit 10.1
DIGIMARC
CORPORATION
INDEMNIFICATION
AGREEMENT
THIS AGREEMENT is entered into, effective as of
,
2005, by and between Digimarc Corporation, a Delaware corporation
(the “Company”), and
(“Indemnitee”).
WHEREAS, it is essential to the Company to
retain and attract as directors and officers the most capable
persons available;
WHEREAS, Indemnitee is a director and/or officer
of the Company; and
WHEREAS, in recognition of Indemnitee’s
need for substantial protection against personal liability in order
to enhance Indemnitee’s continued and effective service to
the Company, and in order to induce Indemnitee to provide services
to the Company as a director and/or officer, the Company wishes to
provide in this Agreement for the indemnification of and the
advancing of expenses to Indemnitee to the fullest extent (whether
partial or complete) permitted by Delaware law and as set forth in
this Agreement, and, to the extent insurance is maintained, for the
coverage of Indemnitee under the Company’s directors’
and officers’ liability insurance policies.
NOW, THEREFORE, in consideration of the above
premises and of Indemnitee’s continuing to serve the Company
directly or, at its request, with another enterprise, and intending
to be legally bound hereby, the parties agree as
follows:
1.
Certain Definitions
.
(a)
Board : the Board of
Directors of the Company.
(b)
Change In Control
: shall be
deemed to have occurred if (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Act”)), other
than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company (collectively “excluded persons”), is or
becomes the “Beneficial Owner” (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the
Company representing 30% or more of the total voting power
represented by the Company’s then outstanding Voting
Securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute
the Board and any new director whose election by the Board or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of
the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority of the Board, or (iii) the stockholders of the
Company approve
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a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation that would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 50% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially
all of the Company’s assets.
(c)
Expenses : any expense,
liability, or loss, including attorneys’ fees, judgments,
fines, ERISA excise taxes and penalties, amounts paid or to be paid
in settlement, any interest, assessments, or other charges imposed
thereon, and any federal, state, local, or foreign taxes imposes as
a result of the actual or deemed receipt of any payments under this
Agreement, paid or incurred in connection with investigating,
defending, being a witness in, or participating in (including on
appeal), or preparing for any of the foregoing in, any Proceeding
relating to any Indemnifiable Event.
(d)
Indemnifiable Event : any event or
occurrence that takes place either prior to or after the effective
date of this Agreement, related to the fact that Indemnitee is or
was a director or an officer of the Company, or while a director or
officer is or was serving at the request of the Company as a
director, officer, employee, trustee, agent, or fiduciary of
another foreign or domestic corporation, partnership, joint
venture, employee benefit plan, trust, or other enterprise, or was
a director, officer, employee, or agent of a foreign or domestic
corporation that was a predecessor corporation of the Company or of
another enterprise at the request of such predecessor corporation,
or related to anything done or not done by Indemnitee in any such
capacity.
(e)
Independent Counsel
: the
person or body appointed in connection with
Section 3.
(f)
Potential Change In Control
: shall be
deemed to have occurred if (i) the Company enters into an
agreement or arrangement, the consummation of which would result in
the occurrence of a Change in Control, (ii) any person
(including the Company) publicly announces an intention to take or
to consider taking actions that, if consummated, would constitute a
Change in Control, (iii) any person (other than an Excluded
Person) who is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 10% or more
of the combined voting power of the Company’s then
outstanding Voting Securities, increases his beneficial ownership
of such securities by 5% or more over the percentage so owned by
such person on the date hereof, or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(g)
Proceeding : (i) any
threatened, pending, or complete action, suit, or proceeding,
whether civil, criminal, administrative, investigative, or other,
or (ii) any inquiry, hearing, or
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investigation, whether
conducted by the Company or any other party, that Indemnitee in
good faith believes might lead to the institution of any such
action, or proceeding.
(h)
Reviewing Party : the person or body
appointed in accordance with Section 3.
(i)
Voting Securities
: any securities
of the Company that vote generally in the election of
directors.
2.
Agreement To Indemnify
.
(a)
General Agreement . In the event Indemnitee was, is, or
become a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, a Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee from
and against any and all Expenses to the fullest extent permitted by
law, as the same exists or may hereafter be amended or interpreted
(but in the case of any such amendment or interpretation, only to
the extent that such amendment or interpretation permits the
Company to provide broader indemnification rights than were
permitted prior thereto).
(b)
Initiation Of Proceeding . Notwithstanding anything in this
Agreement to the contrary, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any
Proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless (i) the Company has
joined in or the Board has consented to the initiation of such
Proceeding, (ii) the Proceeding is one to enforce
indemnification rights under Section 5, or (iii) the
Proceeding is instituted after a Change in Control and Independent
Counsel has approved its initiation.
(c)
Expense Advances . If so requested by Indemnitee, the
Company shall advance (within ten business days of such request)
any and all Expenses to Indemnitee (an “ Expense Advance ”); provided that such
request shall be accompanied by reasonable evidence of the expenses
incurred by Indemnitee and that, if and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted
to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all such amounts theretofore paid. If
Indemnitee has commenced legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, as provided in Section 4,
any determination made by the Reviewing Party that Indemnitee would
not be permitted to be indemnified under applicable law shall not
be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or have
lapsed).
(d)
Mandatory Indemnification . Notwithstanding any other
provision of this Agreement (other than Section 2(f) below),
to the extent that Indemnitee has been successful on the merits in
defense of any Proceeding relating in whole or in part to an
Indemnifiable Event
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or in defense of any issue
or matter therein, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
(e)
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for some or a portion of Expenses, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee
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