Exhibit 10.2
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made and
entered into as of September 13, 2006 between NetScout Systems,
Inc., a Delaware
corporation (the "Company"), and ___________ ("Indemnitee").
WITNESSETH THAT:
WHEREAS, it is reasonable, prudent and necessary for the
Company
contractually to obligate itself to indemnify, and to advance
expenses on behalf
of, officers and directors to the fullest extent permitted by
applicable law so
that they will serve or continue to serve the Company free from
undue concern
that they will not be indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of
the
certificate of incorporation of the Company, as amended, and shall
not be deemed
a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee
thereunder;
NOW, THEREFORE, in consideration of Indemnitee's agreement to serve
as
an [officer] [director] after the date hereof, the parties hereto
agree as
follows:
1. Indemnity of
Indemnitee. The Company hereby agrees to hold
harmless and indemnify Indemnitee to the fullest extent
permitted by law, as such may be amended from time to time.
In furtherance of the foregoing indemnification, and without
limiting the generality thereof:
(a)
Proceedings Other Than
Proceedings by or in the Right
of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section l(a)
if, by reason of his Corporate Status (as hereinafter
defined), the Indemnitee is, or is threatened to be
made, a party to or participant in any Proceeding (as
hereinafter defined) other than a Proceeding by or in
the right of the Company. Pursuant to this Section
1(a), Indemnitee shall be indemnified against all
Expenses (as hereinafter defined), judgments,
penalties, fines and amounts paid in settlement
actually and reasonably incurred by him, or on his
behalf, in connection with such Proceeding or any
claim, issue or matter therein, if the Indemnitee acted
in good faith and in a manner the 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 the
Indemnitee's conduct was unlawful.
(b) Proceedings by or
in the Right of the Company.
Indemnitee shall be entitled to the rights of
indemnification provided in this Section 1(b) if, by
reason of his Corporate Status, the Indemnitee is, or
is threatened to be made, a party to or participant in
any Proceeding brought by or in the right of the
Company. Pursuant to this Section 1(b), Indemnitee
shall be indemnified against all Expenses actually and
reasonably incurred by the Indemnitee, or on the
Indemnitee's behalf, in connection with such Proceeding
if the Indemnitee acted in good faith and in a manner
the Indemnitee
reasonably believed to be in or not
opposed to the best interests of the Company; provided,
however, if applicable law so provides, no
indemnification against such Expenses shall be made in
respect of any claim, issue or matter in such
Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company unless and to the
extent that the Court of Chancery of the State of
Delaware shall determine that such indemnification may
be made.
<PAGE>
(c) Indemnification
for Expenses of a Party Who is Wholly
or Partly Successful. Notwithstanding any other
provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a
party to and is successful, on the merits or otherwise,
in any Proceeding, he shall be indemnified to the
maximum extent permitted by law, as such may be amended
from time to time, against all Expenses actually and
reasonably incurred by him or on his behalf in
connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or on his
behalf in connection with each successfully resolved
claim, issue or matter. For purposes of this Section
and without limitation, the termination of any claim,
issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
2. Additional
Indemnity. In addition to, and without regard to
any limitations on, the indemnification provided for in
Section 1 of this Agreement, the Company shall and hereby
does indemnify and hold harmless Indemnitee against all
Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his
behalf if,
by reason of his Corporate Status, he is, or is
threatened to be made, a party to or participant in any
Proceeding (including a Proceeding by or in the right of the
Company), including, without limitation, all liability
arising out of the negligence or active or passive
wrongdoing of Indemnitee. The only limitation that shall
exist upon the Company's obligations pursuant to this
Agreement shall be that the Company shall not be obligated
to make any payment to Indemnitee that is finally determined
(under the procedures, and subject to the presumptions, set
forth in Sections 5 and 6 hereof) to be unlawful.
3. Contribution.
If the indemnification provided in Sections 1
and 2 is unavailable and may not be paid to Indemnitee, then
in respect of any threatened, pending or completed action,
suit or proceeding in which the Company is jointly liable
with Indemnitee (or would be if joined in such action, suit
or proceeding), the Company shall contribute to the amount
of expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee in such
proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and
Indemnitee on the other hand from the transaction from which
such action, suit or proceeding arose, and (ii) the relative
fault of the Company on the one hand and of Indemnitee on
the other in connection with the events which resulted in
such expenses, judgments, fines or settlement amounts, as
well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of
Indemnitee on the other shall be determined by reference to,
among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
the circumstances resulting in such expenses, judgments,
fines or
settlement amounts. The Company agrees that it
would not be just and equitable if contribution pursuant to
this Section 3 were determined by pro rata allocation or any
other method of allocation that does not take account of the
foregoing equitable considerations.
<PAGE>
4. Advancement
of Expenses. Notwithstanding any other provision
of this Agreement, the Company shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with
any Proceeding by reason of Indemnitee's Corporate Status
within 10 days after the receipt by the Company of a
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 any Expenses advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and undertakings to
repay pursuant to this Section 4 shall be unsecured and
interest free.
5. Procedures
and Presumptions for Determination of Entitlement
to Indemnification. It is the intent of this Agreement to
secure for Indemnitee rights of indemnity that are as
favorable as may be permitted under the Delaware General
Corporation Law and public policy of the State of Delaware.
Accordingly, the parties agree that the following procedures
and presumptions shall apply in the event of any question as
to whether Indemnitee is entitled to indemnification under
this Agreement.
(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 is 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 of Directors in
writing that Indemnitee has requested indemnification.
(b) Upon written
request by Indemnitee for indemnification
pursuant to the first sentence of Section 5(a) hereof,
a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall be
made in the specific case by one of the following
methods (unless ordered by a court), which shall be at
the election of the board: (1) by a majority vote of
the disinterested directors, even though less than a
quorum, by a committee of disinterested directors
designated by a majority vote of the disinterested
directors, even though less than a quorum, (2) if there
are no disinterested directors or if the disinterested
directors so direct, by independent legal counsel in a
written opinion to the Board of Directors, a copy of
which shall be delivered to the Indemnitee, or (3) if
so directed by the Board of Directors, by the
stockholders of the Company. For purposes hereof,
disinterested directors are those members of the board
of directors of the Company who are not parties to the
action, suit or proceeding in respect of which
indemnification is sought by Indemnitee.
(c) If the
determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to
Section 5(b) hereof, the Independent Counsel shall be
selected as provided in this Section 5(c). The
Independent Counsel shall be selected by the Board of
Directors and shall be reasonably acceptable to
Indemnitee. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel
incurred by such Independent Counsel in connection with
acting pursuant to Section 5(b) hereof, and the Company
shall pay all reasonable fees and expenses incident to
the procedures of this Section 5(c), regardless of the
manner in which such Independent Counsel was selected
or appointed.
(d) In making a
determination with respect to entitlement
to indemnification hereunder, the person or persons or
entity making such determination shall presume that
Indemnitee is entitled to indemnification under this
Agreement. Anyone seeking to overcome this presumption
shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.
<PAGE>
(e) If the person,
persons or entity empowered or selected
under Section 5 to determine whether Indemnitee is
entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by
the Company of the request therefor, the requisite
determination of entitlement to indemnification shall
be deemed to have been made and Indemnitee shall be
entitled to such indemnification absent (i) a
misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make
Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or
(ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day
period may be extended for a reasonable time, not to
exceed an additional thirty (30) days, if the person,
persons or entity making such determination with
respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate
documentation and/or information relating thereto.
(f) Indemnitee shall
cooperate with the person, persons or
entity making such determination with respect to
Indemnitee's entitlement to indemnification, including
providing to such person, persons or entity upon
reasonable advance request any documentation or
information which is not privileged or otherwise
protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to
such
