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Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (the “Agreement”) is effective as of the
day of
, 200__, by and between Embarcadero Technologies, Inc., a Delaware
corporation (the “Company”), and
, an individual (“Indemnitee”).
BACKGROUND
A. Indemnitee is a member of
the Board of Directors of the Company and, in that capacity,
performs a valuable service for the Company. For a variety of
reasons, including the frequency, magnitude and often baseless
nature of claims and actions brought against corporate directors
and officers generally, it is difficult for corporations to attract
and retain highly competent persons as directors and officers. In
addition, there exists uncertainty, both as to matters of
“substance” and “procedure,” about the
protection against such claims provided by statutory, charter and
bylaw provisions and through “director and officer”
insurance.
B. The Company’s
Certificate of Incorporation also provides for indemnification of,
and advancement of expenses to, the directors and officers of the
Company to the maximum extent authorized by the Delaware General
Corporation Law, as amended (the “DGCL”), and, together
with the DGCL, permits, by its nonexclusive nature, the
establishment of indemnification agreements between the Company and
its directors and officers.
C. In order to induce
Indemnitee to continue to serve as a member of the Board of
Directors and to clarify the specific procedure for addressing
indemnification matters if and as they arise, the Company and the
Indemnitee hereby agree to contractual indemnification arrangements
on the terms set forth in this Agreement.
THE PARTIES AGREE AS
FOLLOWS:
1. Definitions
. For purposes of this Agreement, the following terms have the
following meanings:
a. “Agent” means
any person (i) who is or was a director, officer, employee or
other agent of the Company or (ii) who is or was serving at
the request of the Company, or otherwise as a result of that
person’s relationship with the Company, as a director,
officer, employee or other agent of another foreign or domestic
corporation or of any partnership, joint venture, trust or other
enterprise (including, without limitation, service with respect to
employee benefit plans).
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), 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,
becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% 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 of Directors of the Company and any new
director whose election by the Board of Directors 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 thereof, or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which 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 80% 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 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. “Disinterested
Director” means a director of the Company who neither is nor
was a party to the Proceeding in respect of which indemnification
is sought under this Agreement or otherwise.
d. “Expenses”
includes any and all direct and indirect costs (including, without
limitation, attorneys’ fees and disbursements, court costs,
fees and expenses of witnesses, experts, professional advisers and
private investigators, arbitration expenses, costs of attachment,
appeal or similar bonds, travel expenses, duplicating, printing and
binding costs, telephone charges, postage, delivery service fees,
and any and all other disbursements or out-of-pocket expenses)
actually and reasonably incurred by or on behalf of Indemnitee in
connection with either (i) the investigation, defense,
settlement or appeal of, or being a witness or participant in, a
Proceeding (including preparing for any of the foregoing) or
(ii) the establishment or enforcement of any right to
indemnification under this Agreement or otherwise or any right to
recovery under any liability insurance policy maintained by the
Company; provided , however , that
“Expenses” shall not include any judgments, fines or
amounts paid in settlement.
e. “Independent
Counsel” means a law firm or attorney that neither is
presently nor in the past two years has been retained to represent:
(i) the Company or Indemnitee in any matter material to the
Company or Indemnitee, or (ii) any other party to the
Proceeding in respect of which indemnification is sought under this
Agreement or otherwise. In addition, the term “Independent
Counsel” does not include any law firm or attorney 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 or
otherwise.
f. “Liabilities”
means liabilities and losses of any type whatsoever, including,
without limitation, judgments, fines, excise taxes and penalties
(including, without limitation, ERISA excise taxes and penalties)
and amounts paid in settlement (including all
interest, assessments and
other charges paid or payable in connection with or in respect of
such liabilities and losses), actually incurred by Indemnitee in
connection with or as a result of a Proceeding.
g. “Potential Change in
Control” shall be deemed to have occurred if (i) the
Company enters into an agreement, 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 which, if consummated, would
constitute a Change in Control; (iii) any person, 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, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the combined
voting power of the Company’s then outstanding Voting
Securities, increases such person’s beneficial ownership of
such securities by five percentage points or more over the initial
percentage of such securities equal to or exceeding 9.5% so owned
by such person; or (iv) the Board of Directors of the Company
adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
h. “Proceeding”
means any threatened, pending or completed action, suit or
proceeding (including any inquiry, hearing, arbitration proceeding
or alternative dispute resolution mechanism), whether civil,
criminal, administrative or investigative (including any action by
or in the right of the Company), to which Indemnitee is or was a
party, witness or other participant, or is threatened to be made a
party, witness or other participant, by reason of the fact that
Indemnitee is or was an Agent, or by reason of anything done or not
done by Indemnitee in that capacity or in any other capacity while
serving as an Agent, whether before or after the date of this
Agreement. “Proceeding” shall not include any
Proceeding initiated by Indemnitee (other than as contemplated by
Sections 3(d) or 6 of this Agreement) unless such Proceeding was
authorized or consented to by the Board of Directors of the
Company.
i. “Voting
Securities” means any securities of the Company which vote
generally in the election of directors.
2. Agreement to
Indemnify . Subject to the terms and conditions of, and in
accordance with the procedures set forth in, this Agreement, the
Company shall hold Indemnitee harmless and indemnify Indemnitee
(and Indemnitee’s spouse as provided below), to the fullest
extent permitted by the provisions of the DGCL and other applicable
law, from and against all Expenses and Liabilities, including,
without limitation, Expenses and Liabilities arising from any
Proceeding brought by or in the right of the Company or its
stockholders. The Company and Indemnitee intend that this Agreement
provide for indemnification in excess of that expressly required,
granted or permitted by statute, including, without limitation, any
indemnification provided by the Company’s Certificate of
Incorporation or Bylaws, or by vote of its stockholders or
directors, or by applicable law. If, after the date hereof, the
DGCL or any other applicable law is amended to permit or authorize
indemnification of, or advancement of defense expenses to,
Indemnitee to a greater extent than is permitted on the date
hereof, references in this Agreement to the DGCL or any other
applicable law shall be deemed to refer to the DGCL or such
applicable law as so amended.
3. Procedural
Matters .
a. Initial Request .
Whenever Indemnitee believes that, in a specific case, Indemnitee
is then entitled to indemnification under this Agreement or under
the Company’s Certificate of Incorporation or Bylaws, the
DGCL or otherwise, Indemnitee shall submit a written notice to the
Company requesting an authorization and determination by the
Company to that effect. The notice shall describe the matter giving
rise to the request and be accompanied by all appropriate
supporting documentation reasonably available to
Indemnitee.
b. Determination and
Payment . The Company shall make a determination about
Indemnitee’s entitlement to indemnification in the specific
case no later than 90 days after receipt of Indemnitee’s
request. In making that determination, the person or persons making
the determination shall presume that Indemnitee met any applicable
standard of conduct required for indemnification, unless the
Company shall have affirmatively shown by clear and convincing
evidence that Indemnitee did not meet that standard. The
determination shall be made by the Board of Directors by a majority
vote of a quorum consisting of Disinterested Directors. If such a
quorum is not obtainable, or, even if obtainable, a quorum of
Disinterested Directors so directs, the determination shall be made
by Independent Counsel in a written opinion obtained at the
Company’s expense. Notwithstanding the foregoing, if there
has been a Change in Control (other than a Change in Control which
has been approved by a majority of the Company’s Board of
Directors who were directors immediately prior to such Change in
Control), the determination shall be made by Independent Counsel in
a written opinion obtained at the Company’s expense. If the
person or persons empowered to make the determination either:
(i) affirmatively makes a determination of Indemnitee’s
entitlement to indemnification or (ii) fails to make any
determination at all within the 90-day period, indemnification
shall be considered as authorized and proper in the circumstances,
and Indemnitee shall be absolutely entitled to such
indemnification, and shall receive payment as promptly as
practicable, in the absence of any misrepresentation of a material
fact by Indemnitee in the request for indemnification, or a
specific determination by a court of competent jurisdiction that
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