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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Agreement (this "Agreement") is made and entered into as of
the ___
day of _________, 200_, by and between SPSS Inc., a Delaware
corporation (the
"Company"), and _______________ ("Indemnitee").
WHEREAS, it is in the best interests of the Company to retain
and attract
as directors and officers the most competent persons
available;
WHEREAS, the Board of Directors of the Company (the "Board")
believes that
highly competent persons are becoming more reluctant to serve
publicly-held
corporations as directors or officers unless they are provided
with adequate
protection against inordinate risks of claims and actions
against them arising
out of their service to and activities on behalf of the
corporation; and
WHEREAS, in order to induce Indemnitee to continue to provide
services to
the Company as a [DIRECTOR][OFFICER] thereof and to provide
increased certainty
to Indemnitee of substantial protection against personal
liability, the Board
has determined that it is reasonable, prudent and in the best
interests of the
Company for the Company to obligate itself contractually to
indemnify Indemnitee
and advance expenses to Indemnitee to the fullest extent
permitted by applicable
law; and
WHEREAS, Indemnitee is willing to continue to serve the Company
on the
condition that Indemnitee receive the rights and benefits set
forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the
covenants
contained herein and for certain good and valuable
consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement:
(a) "Act" means the Delaware General Corporation Law, as amended
from time
to time.
(b) "Change of Control" means any one or more of the following:
(i) the
accumulation, by any individual, entity or group (within the
meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended) of
greater than fifty percent (50%) of the shares of the then
outstanding common
stock of the Company, (ii) a merger or consolidation of the
Company in which the
Company does not survive as an independent public company, (iii)
a sale of all
or substantially all of the assets of the Company, (iv) a
triggering event under
that certain Amended and Restated Rights Agreement, dated as of
August 31, 2004,
by and between the Company and Computershare Investor Services,
LLC or any
amendment, restatement or replacement thereof, (v) a liquidation
or dissolution
of the Company, or (vi) a change in the composition of the
Board, not previously
endorsed by the Board existing as of the date of this Agreement
or the
directors' endorsed successors, as a result of which fewer than
a majority of
the directors are Incumbent Directors; provided, however, that
the following
acquisitions shall not constitute a Change of Control for the
purposes of this
Agreement: (i) any acquisitions of
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common stock or securities convertible into common stock
directly from the
Company, or (ii) any acquisition of common stock or securities
convertible into
common stock by any employee benefit plan (or related trust)
sponsored or
maintained by the Company.
(c) "Disinterested Director" means a director of the Company who
is not a
party to the Proceeding in respect of which indemnification is
sought by
Indemnitee.
(d) "Expenses" shall include attorneys' fees and all other
costs,
retainers, filing fees, court costs, transcript costs, fees of
experts, witness
fees, travel expenses, duplicating costs, excise taxes, printing
and binding
costs, telephone charges, postage, delivery service fees,
disbursements and
expenses of any nature whatsoever paid or incurred in connection
with
prosecuting, defending, preparing to prosecute or defend,
investigating, or
being or preparing to be a witness in a Proceeding.
(e) "Incumbent Directors" are directors who either (A) are
directors of the
Company as of the date of this Agreement, or (B) are nominated
for election to
the Board by the Nominating Committee of the Board and endorsed
by the Board
existing as of the date of this Agreement or the directors'
endorsed successors.
(e) "Indemnitee's Corporate Status" means the fact that
Indemnitee is or
was a director, officer, employee, agent or fiduciary of the
Company or of any
other corporation, partnership, limited liability company, joint
venture, trust,
employee benefit plan or other enterprise which such person is
or was serving at
the request of the Company.
(f) "Independent Counsel" means a law firm, or an attorney,
selected in
accordance with the provisions of Section 7(c) hereof, who is
experienced in
matters of corporate law and shall not have otherwise performed
services for the
Company or Indemnitee or any other party to the Proceeding
giving rise to a
claim for indemnification hereunder in the last five years.
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 rights under this Agreement
or who has been
sanctioned or censured for ethical violations of applicable
standards of
professional conduct.
(g) "Proceeding" includes any claim, action, suit, arbitration,
alternate
dispute resolution mechanism, investigation, administrative
hearing or any other
proceeding whether civil, criminal, administrative or
investigative.
(h) "Voting Securities" means any securities of the Company that
vote
generally in the election of directors of the Company.
SECTION 2. INDEMNIFICATION - GENERAL. The Company shall
indemnify and
advance Expenses to Indemnitee as provided in this Agreement and
to the fullest
extent permitted by applicable law in effect on the date hereof
and to such
greater extent as applicable law may thereafter from time to
time permit. To the
extent permitted by law, if the Act (whether by statute or
judicial decision)
permits greater indemnity than the indemnity set forth herein,
or if any
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amendment is made to the Act expanding the indemnity permissible
under Delaware
law, the indemnity obligations contained herein automatically
shall be expanded,
without the necessity of action on the part of any party, to the
extent
necessary to provide to Indemnitee the fullest indemnity
permissible under
Delaware law.
SECTION 3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT
OF THE
COMPANY. The Company shall indemnify Indemnitee in the event
that Indemnitee was
or is a party or is threatened to be made a party to any
threatened, pending or
completed Proceeding (other than a Proceeding by or in the right
of the Company)
by reason of Indemnitee's Corporate Status, against Expenses,
judgments, fines
and amounts paid in settlement actually and reasonably incurred
by Indemnitee or
on Indemnitee's behalf in connection with such Proceeding or any
claim, issue or
matter therein, if Indemnitee acted in good faith and in a
manner Indemnitee
reasonably believed to be in or not opposed to the best
interests of the
Company, and, with respect to any criminal Proceeding, had no
reasonable cause
to believe that Indemnitee's conduct was unlawful. With respect
to Proceedings
relating to employee benefit plans of the Company, if Indemnitee
acted in good
faith and in a manner Indemnitee reasonably believed to be in
the interest of
the participants and beneficiaries of such employee benefit
plan, Indemnitee
shall be deemed to have acted in a manner not opposed to the
best interests of
the Company.
SECTION 4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Company shall
indemnify Indemnitee in the event that Indemnitee was or is a
party or is
threatened to be made a party to any threatened, pending or
completed Proceeding
by or in the right of the Company to procure a judgment in its
favor by reason
of Indemnitee's Corporate Status, against Expenses actually and
reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection
with the defense
or settlement of such Proceeding if Indemnitee acted in good
faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best
interests of the Company. Notwithstanding the foregoing, no
indemnification
against such Expenses shall be made in respect of any claim,
issue or matter as
to which Indemnitee shall have been adjudged to be liable to the
Company unless
and only to the extent that the Court of Chancery or the 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 Expenses
which the Court of Chancery or such other court shall deem
proper.
SECTION 5. PARTIAL INDEMNIFICATION. If Indemnitee is entitled
under any
provision of this Agreement to indemnification by the Company
for some or a
portion of the Expenses, judgments, fines and amounts paid in
settlement in
connection with a Proceeding but not, however, for the total
amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion
thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other
provision of this
Agreement, to the extent that Indemnitee is successful on the
merits or
otherwise in any Proceeding referred to in Section 3 or Section
4 hereof, or in
defense of any claim, issue or matter therein, Indemnitee shall
be indemnified
against all Expenses actually and reasonably incurred by
Indemnitee or on
Indemnitee's behalf in connection therewith.
SECTION 6. ADVANCEMENT OF EXPENSES. The Company shall advance
all
reasonable Expenses incurred by or on behalf of Indemnitee in
connection with
any Proceeding referred to
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in Section 3 or Section 4 hereof within twenty (20) days after
the receipt by
the Company of a written statement or statements from Indemnitee
requesting such
advance or advances from time to time, whether prior to or after
final
disposition of such Proceeding. Such statement or statements
shall reasonably
evidence the Expenses incurred by Indemnitee and shall include
or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to
repay all
Expenses advanced if it shall ultimately be determined that
Indemnitee is not
entitled to be indemnified by the Company against such
Expenses.
SECTION 7. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to
the Company a written request, including therein or therewith
such documentation
and information as is reasonably available to Indemnitee and
reasonably
necessary to determine whether and to what extent Indemnitee is
entitled to
indemnification. The Secretary of the Company shall, promptly
upon receipt of
such a request for indemnification, advise the Board in writing
that Indemnitee
has requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to the
first sentence of Section 7(a) hereof, a determination, if
required by
applicable law, with respect to Indemnitee's entitlement thereto
shall be made
in the specific case: (i) if a Change of Control shall have
occurred, by
Independent Counsel (unless Indemnitee shall request that such
determination be
made by the Board or the stockholders, in which case such
determination shall be
made by the person or persons or in the manner provided for in
clauses (ii) or
(iii) of this Section 7(b)) in a written opinion to the Board, a
copy of which
shall be delivered to Indemnitee; (ii) if a Change of Control
shall not have
occurred, (A) by a majority vote of Disinterested Directors,
even though less
than a quorum or (B) by a committee of Disinterested Directors
designated by a
majority vote of Disinterested Directors, even though less than
a quo
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