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Exhibit
10.8
INDEMNIFICATION
AGREEMENT
This Agreement is made as of
, 2007, between Secure Computing Corporation, a Delaware
corporation (the “Company”), and
(the “Indemnitee”).
RECITALS
Both the Company and
Indemnitee recognize that highly competent persons have become more
reluctant to serve publicly-held corporations as directors or in
other capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation.
In recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service
to the Company in an effective manner and Indemnitee’s
reliance on the provisions of the Company’s Certificate of
Incorporation, as amended (“Certificate of
Incorporation”) and the Company’s Bylaws (the
“Bylaws”) requiring indemnification of the Indemnitee
to the fullest extent permitted by law, and in part to provide
Indemnitee with specific contractual assurance that the protection
promised by such Certificate of Incorporation and Bylaws will be
available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such Certificate of Incorporation or
Bylaws or any change in the composition of the Company’s
Board of Directors or acquisition transaction relating to the
Company), 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 law
and as set forth in this Agreement.
The Certificate of
Incorporation, the Bylaws and the General Corporation Law of the
State of Delaware (“DGCL”) expressly provide that the
indemnification provisions set forth therein are not exclusive and
thereby contemplate that contracts may be entered into between the
Company and members of the board of directors, officers and other
persons with respect to indemnification.
It is reasonable, prudent and
necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, such persons 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 so indemnified.
This Agreement is a
supplement to and in furtherance of the Certificate of
Incorporation and Bylaws and any resolutions adopted pursuant
thereto and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee
thereunder.
AGREEMENT
In consideration of the
premises and of Indemnitee agreeing to serve or continuing to serve
the Company directly or, at its request, with another enterprise,
and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Basic
Indemnification Agreement .
(a) In the event Indemnitee
was, is or becomes 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 Claim (as defined
in Section 9(b)) by reason of (or
arising in part out of) an Indemnifiable Event (as defined in
Section 9(d)), the Company shall indemnify Indemnitee to the
fullest extent permitted by law as soon as practicable but in any
event no later than 30 days after written demand is presented to
the Company, against any and all Expenses (as defined in
Section 9(c)), judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges
paid or payable in connection therewith) of such Claim actually and
reasonably incurred by or on behalf of Indemnitee in connection
with such Claim and any federal, state, local or foreign taxes
imposed on Indemnitee as a result of the actual or deemed receipt
of any payments under this Agreement. If requested by Indemnitee in
writing, the Company shall advance (within ten business days of
such written request) any and all Expenses to Indemnitee (an
“Expense Advance”). Notwithstanding anything in this
Agreement to the contrary, prior to a Change of Control (as defined
in Section 9(a)) and except as set forth in Sections 1(b), 3
and 7, Indemnitee shall not be entitled to indemnification pursuant
to this Agreement in connection with any Claim (i) initiated
by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the
initiation of such Claim; (ii) made on account of
Indemnitee’s conduct which constitutes a breach of
Indemnitee’s duty of loyalty to the Company or its
stockholders or is an act or omission not in good faith or which
involves intentional misconduct or a knowing violation of the law;
or (iii) arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”).
(b) Notwithstanding the
foregoing, (i) the indemnification obligations of the Company
under Section 1(a) shall not be applicable if the Reviewing
Party (as defined in Section 9(f)) has determined (in a
written opinion, in any case in which the special independent
counsel referred to in Section 2 is involved) that Indemnitee
would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance
pursuant to Section 1(a) shall be subject to the condition
that the Company receives an undertaking that, if, when 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; provided, however, that if Indemnitee has
commenced legal proceedings in the Court of Chancery of the State
of Delaware (the “Delaware Court”) to secure a
determination that Indemnitee should be indemnified under
applicable law, 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
lapsed). Indemnitee’s obligation to reimburse the Company for
Expense Advances shall be unsecured and no interest shall be
charged thereon. If there has not been a Change in Control, the
Reviewing Party shall be selected by the Board of Directors, and if
there has been such a Change in Control, the Reviewing Party shall
be the special independent counsel referred to in Section 2.
If there has been no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively would not
be permitted to be indemnified in whole or in part under applicable
law, Indemnitee shall have the right to commence litigation in the
Delaware Court seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any
aspect thereof and the Company hereby consents to service of
process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee. The Company shall indemnify Indemnitee
for Expenses incurred by Indemnitee in connection with the
successful establishment or enforcement, in whole or in part, by
Indemnitee of Indemnitee’s right to indemnification or
advances.
2. Change in
Control . The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has
been approved by two- thirds or more of the Company’s Board
of Directors who were directors immediately prior to such Change in
Control) then
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with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments
and Expense Advances under this Agreement or any other agreement,
the Bylaws or Certificate of Incorporation now or hereafter in
effect relating to Claims for Indemnifiable Events, the Company
shall seek legal advice only from special independent counsel
selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld or delayed) and who has not
otherwise performed services for the Company within the last five
years (other than in connection with such matters) or for
Indemnitee. In the event that Indemnitee and the Company are unable
to agree on the selection of the special independent counsel, such
special independent counsel shall be selected by lot from among at
least five law firms with offices in the State of Delaware having
more than fifty attorneys, having a rating of “av” or
better in the then current Martindale Hubbell Law Directory and
having attorneys which specialize in corporate law. Such selection
shall be made in the presence of Indemnitee (and his legal counsel
or either of them, as Indemnitee may elect). Such counsel, among
other things, shall, within 90 days of its retention, render its
written opinion to the Company and Indemnitee as to whether and to
what extent Indemnitee would be permitted to be indemnified under
applicable law. The Company agrees to pay the reasonable fees of
the special independent counsel referred to above and to fully
indemnify such counsel against any and all expenses (including
attorneys’ fees), claims, liabilities, and damages arising
out of or relating to this Agreement or its engagement pursuant
hereto.
3. Indemnification for
Additional Expenses . The Company shall indemnify
Indemnitee against any and all expenses (including attorneys’
fees) and, if requested by Indemnitee in writing, shall (within ten
business days of such written request) advance such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any
Claim asserted against or action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the
Company under this Agreement or any other agreement, the Bylaws or
Certificate of Incorporation now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii) recovery under any
directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
The Indemnitee shall qualify for advances solely upon the execution
and delivery to the Company of an undertaking providing that the
Indemnitee undertakes to repay the advance to the extent that it is
ultimately determined that the Indemnitee is not entitled to be
indemnified by the Company.
4. Partial
Indemnity . If Indemnitee is entitled under any provisions
of this Agreement to indemnification by the Company of some but not
all of the Expenses, liabilities, judgments, fines, penalties and
amounts paid in settlement of a Claim, 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 has been
successful on the merits or otherwise in defense of any or all
Claims relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter therein, including dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses
incurred in connection therewith. In connection with any
determination by the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified hereunder the burden of
proof shall be on the Company to establish that Indemnitee is not
so entitled.
5. No Presumption
. For purposes of this Agreement, the termination of any
action, suit or proceeding by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of
nolo contendere, or its equivalent, shall not create a presumption
that Indemnitee did not meet any particular standard of conduct or
have any particular belief.
6. Notification and
Defense of Claim . Within 30 days after receipt by
Indemnite
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