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Exhibit 10.1
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT made and entered into this 21st
day of May 2007 ("Agreement"), by and among ANSYS, Inc., a Delaware
corporation (and where appropriate, any Entity (as hereinafter
defined) controlled directly or indirectly by any it (collectively,
the "Companies," and individually, a "Company")), and Michael C.
Thurk (the "Indemnitee"):
WHEREAS, it is essential to the Companies that they be able to
retain and attract as directors and officers the most capable
persons available;
WHEREAS, increased corporate litigation has subjected directors
and officers to litigation risks and expenses, and the limitations
on the availability of directors and officers liability insurance
have made it increasingly difficult for the Companies to attract
and retain such persons;
WHEREAS, their respective by-laws require the Companies to
indemnify their directors and officers to the fullest extent
permitted by law and permit them to make other indemnification
arrangements and agreements;
WHEREAS, the Companies desire to provide Indemnitee with
specific contractual assurance of Indemnitee’s rights to full
indemnification against litigation risks and expenses (regardless,
among other things, of any amendment to or revocation of any of the
Companies’ respective by-laws or any change in the ownership
of any of the Companies or the composition of any of their
respective Boards of Directors), which indemnification is intended
to be greater than that which is afforded by the Companies’
respective certificates of incorporation, by-laws and, to the
extent insurance is available, the coverage of Indemnitee under the
Companies’ respective directors and officers liability
insurance policies; and
WHEREAS, Indemnitee is relying upon the rights afforded under
this Agreement in continuing in Indemnitee’s position as an
officer and/or director of each of the Companies.
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Companies and Indemnitee do hereby
covenant and agree as follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is
serving or has served (i) as a director or officer of any of
the Companies, (ii) in any capacity with respect to any
employee benefit plan of any of the Companies, or (iii) as a
director, partner, manager, member, trustee, officer, employee or
agent of any other Entity at the request of any of the
Companies.
(b) "Entity" shall mean any corporation,
partnership, limited liability company, joint venture, trust,
foundation, association, organization or other legal entity and any
group or division of any Company or any of its
subsidiaries.
(c) "Expenses" shall mean all reasonable fees, costs and
expenses incurred in connection with any Proceeding (as defined
below), including, without limitation, attorneys’ fees,
disbursements and retainers (including, without limitation, any
such fees, disbursements and retainers incurred by Indemnitee
pursuant to Sections 10 and 11(c) of this Agreement), fees and
disbursements of expert witnesses, private investigators and
professional advisors (including, without limitation, accountants
and investment bankers), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery services,
secretarial services, and other disbursements and expenses.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those
terms in Section 3(a) below.
(e) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in
settlement.
(f) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any
other proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee’s rights hereunder.
2. Services of Indemnitee. In consideration of each
Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director or officer of
such Company. However, this Agreement shall not impose any
obligation on Indemnitee or any Company to continue
Indemnitee’s service to such Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
3. Agreement to Indemnify. The Companies agree to
indemnify Indemnitee as follows:
(a) Subject to the exceptions contained in Section 4(a)
below, if Indemnitee was or is a party or is threatened to be made
a party to any Proceeding (other than an action by or in the right
of one or more of the Companies) by reason of Indemnitee’s
Corporate Status, Indemnitee shall be indemnified by the Companies
against all Expenses and Liabilities incurred or paid by Indemnitee
in connection with such Proceeding (referred to herein as
"Indemnifiable Expenses" and "Indemnifiable Liabilities,"
respectively, and collectively as "Indemnifiable Amounts").
(b) Subject to the exceptions contained in
Section 4(b) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right
of one or more of the Companies to procure a judgment in its favor
by reason of Indemnitee’s Corporate Status, Indemnitee shall
be indemnified by the Companies against all Indemnifiable
Expenses.
4. Exceptions to Indemnification. Indemnitee shall be
entitled to indemnification under Sections 3(a) and 3(b) above in
all circumstances other than the following:
(a) If indemnification is requested under Section 3(a) and
it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the Proceeding
out of which the claim for indemnification has arisen, Indemnitee
failed to act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company with respect to which Indemnitee’s Corporate Status
has given rise to a claim against Indemnitee (the "Relevant
Company"), or, with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b)
and:
(i) it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the Proceeding
out of which the claim for indemnification has arisen, Indemnitee
failed to act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Relevant Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or
(ii) it has been adjudicated finally by a court of competent
jurisdiction that Indemnitee is liable to the Relevant Company with
respect to any claim, issue or matter involved in the Proceeding
out of which the claim for indemnification has arisen, including,
without limitation, a claim that Indemnitee received an improper
personal benefit, no Indemnifiable Expenses shall be paid with
respect to such claim, issue or matter unless the Court of Chancery
or another 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
Indemnifiable Expenses which such court shall deem proper.
5. Procedure for Payment of Indemnifiable Amounts.
Indemnitee shall submit to the Companies a written request
specifying the Indemnifiable Amounts for which Indemnitee seeks
payment under Section 3 of this Agreement and the basis for
the claim. The Companies shall pay such Indemnifiable Amounts to
Indemnitee within twenty (20) calendar days of receipt of the
request. At the request of the Companies, Indemnitee shall furnish
such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled
to indemnification hereunder.
6. Indemnification for Expenses of a Party Who
is Wholly or Partly Successful. Notwithstanding any other
provision of this Agreement, and without limiting any such
provision, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified against all Expenses reasonably incurred by Indemnitee
or on Indemnitee’s 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
Companies shall indemnify Indemnitee against all Expenses
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with each successfully resolved claim, issue or
matter. For purposes of this Agreement, 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.
7. Effect of Certain Resolutions. Neither the settlement
or termination of any Proceeding nor the failure of a Company to
award indemnification or to determine that indemnification is
payable shall create an adverse presumption that Indemnitee is not
entitled to indemnification hereunder. In addition, the termination
of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not create a
presu
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