Exhibit 10.15
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT (the
“Agreement”) is made and entered into as of May 2,
2008 by and among Macrovision Solutions Corporation, a Delaware
corporation (the “Corporation”) and
(“Indemnitee”):
WHEREAS, the Board of Directors has
determined that the ability to attract and retain qualified persons
as directors and officers is essential to the best interests of the
Corporation’s stockholders and that the Corporation should
act to assure such persons that there will be adequate certainty of
protection through insurance and indemnification against 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 and
encourage highly experienced and capable persons such as Indemnitee
to serve and continue to serve as directors and officers of the
Corporation and in any other capacity with respect to the
Corporation, and to otherwise promote the desirable end that such
persons will resist what they consider unjustified lawsuits and
claims made against them in connection with the good faith
performance of their duties to the Corporation, with the knowledge
that certain costs, judgments, penalties, fines, liabilities and
expenses incurred by them in their defense of such litigation are
to be borne by the Corporation and they will receive the maximum
protection against such risks and liabilities as may be afforded by
law, the Board of Directors of the Corporation has determined that
the following Agreement is reasonable and prudent to promote and
ensure the best interests of the Corporation and its stockholders;
and
WHEREAS, the Corporation desires to
have Indemnitee continue to serve as a director or officer of the
Corporation and in such other capacity with respect to the
Corporation as the Corporation may request, as the case may be,
free from undue concern for unpredictable, inappropriate or
unreasonable legal risks and personal liabilities by reason of
Indemnitee acting in good faith in the performance of
Indemnitee’s duty to the Corporation; and Indemnitee desires
to continue so to serve the Corporation, provided, and on the
express condition, that he or she is furnished with the indemnity
set forth hereinafter;
WHEREAS, this Agreement is a
supplement to and in furtherance of Article V of the Amended and
Restated Certificate of Incorporation of the Corporation (the
“Certificate”), Article VI of the By-Laws of the
Corporation (the “By-Laws”), the General Corporation
Law of the State of Delaware (“DGCL”) and the rights
granted under the Certificate, the By-Laws, the DGCL and any
resolutions adopted pursuant thereto, and nothing contained in this
Agreement shall be deemed to be a substitute therefor or construed
to diminish or abrogate any rights of Indemnitee thereunder;
and
WHEREAS, Indemnitee may serve,
continue to serve and to take on additional service for or on
behalf of the Corporation.
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NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Corporation
and Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions .
For purposes of this Agreement:
(a) “Affiliate” includes
any corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise directly or indirectly owned, in whole or
in part, by the Corporation.
(b) “Corporate Status”
means the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Corporation or any majority
owned subsidiary of the Corporation, or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of
the Corporation.
(c) “Change in Control”
shall be deemed to have occurred if:
(1) any person, as that term is used
in Section 13(d) and Section 14(d)(2) of the Exchange
Act, becomes, is discovered to be, or files a report on Schedule
13D or 14D-1 (or any successor schedule, form or report) disclosing
that such person is a beneficial owner (as defined in Rule 13d-3
under the Exchange Act or any successor rule or regulation),
directly or indirectly, of securities of the Corporation
representing 50% or more of the total voting power of the
Corporation’s then outstanding Voting Securities;
(2) individuals who, as of the date
of this Agreement, constitute the Board of Directors of the
Corporation cease for any reason to constitute at least a majority
of the Board of Directors of the Corporation, unless any such
change is approved by a majority of the members of the Board of
Directors of the Corporation in office immediately prior to such
cessation;
(3) the Corporation is merged,
consolidated or reorganized into or with another corporation or
legal person (an “Acquiring Person”) or securities of
the Corporation are exchanged for securities of an Acquiring
Person, and immediately after such merger, consolidation,
reorganization or exchange less than a majority of the combined
voting power of the then outstanding securities of the resulting
entity immediately after such transaction are held, directly or
indirectly, in the aggregate by the holders of Voting Securities
immediately prior to such transaction;
(4) the Corporation and its
consolidated subsidiaries, in any transaction or series of related
transactions, sells or otherwise transfers all or substantially all
of its assets to an Acquiring Person;
(5) the Corporation and its
subsidiaries, in any transaction or series of related transactions,
sells or otherwise transfers business operations that generated
seventy percent (70%) or more of the consolidated revenues
(determined on the basis of the Corporation’s four most
recently completed fiscal quarters) of the Corporation and its
subsidiaries immediately prior thereto;
(6) the Corporation files a report
or proxy statement with the Securities and Exchange Commission
pursuant to the Exchange Act disclosing that a change in control of
the Corporation has or may have occurred or will or may occur in
the future pursuant to any then existing contract or transaction;
or
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(7) any other transaction or series
of related transactions occur that have substantially the effect of
the transactions specified in any of the preceding clauses in this
definition.
Notwithstanding the provisions of
Section (c)(1) or (c)(4), unless otherwise determined in a specific
case by majority vote of the Board of Directors of the Corporation,
a Change in Control shall not be deemed to have occurred for
purposes of this Agreement solely because (i) the Corporation,
(ii) an entity in which the Corporation directly or indirectly
beneficially owns 50% or more of the voting securities or
(iii) any Corporation sponsored employee stock ownership plan,
or any other employee benefit plan of the Corporation, either files
or becomes obligated to file a report or a proxy statement under or
in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule
14A (or any successor schedule, form or report or item therein)
under the Exchange Act, disclosing beneficial ownership by it of
shares of stock of the Corporation, or because the Corporation
reports that a Change in Control of the Corporation has or may have
occurred or will or may occur in the future by reason of such
beneficial ownership.
(d) “Disinterested
Director” means a director of the Corporation who is not and
was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(e) “Expenses” includes,
without limitation, all reasonable attorneys’ fees, expenses
of accountants and other advisors, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, the premium, security for, and
other costs relating to any bond (including bond costs, appraisal
bonds or their equivalents) and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding.
(f) “Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent:
(i) the Corporation or Indemnitee in any other matter material
to either such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
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 Corporation
or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(g) “Potential Change in
Control” shall be deemed to have occurred if (i) the
Corporation enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
(ii) any person (including the Corporation) 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 Corporation or a corporation
owned, directly or indirectly, by the stockholders of the
Corporation in substantially the same proportions as their
ownership of stock of the Corporation, who is or becomes the
beneficial owner, directly or indirectly, of securities of the
Corporation representing 9.5% or more of the combined voting power
of the Corporation’s
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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; or (iv) the Board of Directors of the Corporation
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, arbitration,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed
proceeding, whether civil, criminal, administrative or
investigative, including one initiated by an Indemnitee pursuant to
Section 11 of this Agreement to enforce his or her rights
under this Agreement.
(i) “Voting Securities”
means any securities of the Corporation which vote generally in the
election of directors.
Section 2. Services by
Indemnitee . Indemnitee may at any time and for any reason
resign from any position (subject to any other contractual
obligation or any obligation imposed by operation of law), without
affecting the indemnification hereunder, except as specifically
provided in this Agreement.
Section 3. Indemnification -
General . The Corporation shall hold harmless and indemnify,
and pay Expenses to, Indemnitee as provided in this Agreement 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. The rights of Indemnitee
provided under the preceding sentence shall include, but shall not
be limited to, the rights set forth in the other sections of this
Agreement.
Section 4. Proceedings Other
than Proceedings by or in the Right of the Corporation .
Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4 if, by reason of his or her
Corporate Status, he or she is, or is threatened to be made, a
party to any contemplated, pending or completed Proceeding, other
than a Proceeding by or in the right of the Corporation. Pursuant
to this Section 4, Indemnitee shall be indemnified against
Expenses, losses, claims, liabilities, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by
him or her or on his or her behalf in connection with any such
Proceeding or any claim, issue or matter therein, if he or she
acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal Proceeding, had no reasonable
cause to believe his or her conduct was unlawful. For purposes of
this Section 4, Indemnitee shall be deemed to have acted in
good faith if Indemnitee’s action is based on the records or
the books of account of the Corporation or an Affiliate, including
financial statements, or on information supplied to the Indemnitee
by the officers of the Corporation or an Affiliate in the course of
their duties, or on the advice of legal counsel for the Corporation
or an Affiliate, or by an independent certified public accountant
or by an appraiser or other expert selected with reasonable care by
the Corporation or an Affiliate.
Section 5. Proceedings by or
in the Right of the Corporation . Indemnitee shall be entitled
to the rights of indemnification provided in this Section 5
if, by reason of his or her Corporate Status, he or she is, or is
threatened to be made, a party to any contemplated, pending, or
completed Proceeding brought by or in the right of the Corporation.
Pursuant to this Section
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5, Indemnitee shall be indemnified against
Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or her or on his
or her behalf in connection with any such Proceeding if he or she
acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation.
Notwithstanding the foregoing, no indemnification against such
Expenses shall be made in respect of any claim, issue or matter in
any such Proceeding as to which Indemnitee shall have been adjudged
to be liable to the Corporation if applicable law expressly
prohibits such indemnification unless and only to the extent that
the Chancery Court of the State of Delaware or the court in which
such Proceeding shall have been brought or is pending shall
determine that indemnification against Expenses may nevertheless be
made by the Corporation. For purposes of this Section 5,
Indemnitee shall be deemed to have acted in good faith if
Indemnitee’s action is based on the records or the books of
account of the Corporation or an Affiliate, including financial
statements, or on information supplied to the Indemnitee by the
officers of the Corporation or an Affiliate in the course of their
duties, or on the advice of legal counsel for the Corporation or an
Affiliate, or by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the
Corporation or an Affiliate.
Section 6. 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 or her Corporate
Status, a party to and is successful, on the merits or otherwise,
in any Proceeding, he or she shall be indemnified, to the maximum
extent permitted by law, against all Expenses actually and
reasonably incurred by him or her or on his or her 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 Corporation shall indemnify Indemnitee, to the
maximum extent permitted by law, against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in
connection with each successfully resolved claim, issue or matter.
For the purposes of this Section and without limiting the
foregoing, the Indemnitee shall be deemed to be successful as to a
claim, issue or matter upon the following : (i) the
termination of any such claim, issue or matter by dismissal with or
without prejudice, and (ii) the termination of any such claim,
issue or matter by any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, unless it is established in such Proceeding that
Indemnitee did not meet the applicable standard for indemnification
set forth in the DGCL.
Section 7. Indemnification
for Expenses of a Witness . Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee is, by reason of
his or her Corporate Status, a witness, or is made (or asked) to
respond to discovery requests, in any Proceeding, he or she shall
be indemnified against all Expenses actually and reasonably
incurred by him or her or on his or her behalf in connection
therewith.
Section 8. Payment of
Expenses . The Corporation shall pay all Expenses incurred by
or on behalf of Indemnitee in connection with any Proceeding within
20 days after the receipt by the Corporation of a statement or
statements from Indemnitee requesting such payment 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, if the DGCL requires,
shall include or be preceded or accompanied by an undertaking by or
on behalf of
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Indemnitee to repay any Expenses paid if it
shall ultimately be determined by final judicial decision from
which there is no further right to appeal that Indemnitee is not
entitled to be indemnified against such Expenses. Any advances and
Indemnitee’s undertaking to pay any such amounts shall be
unsecured and interest free. Indemnitee’s entitlement to such
Expenses shall include those incurred in connection with any
Proceeding by Indemnitee seeking a judgment in court or an
adjudication or award in arbitration pursuant to this Agreement,
including the establishment of any right to indemnification
pursuant to this Agreement and enforcement of this
provision.
Section 9. Procedure 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 DGCL
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 in connection with any Proceeding, and for the
duration thereof, Indemnitee shall submit to the Corporation a
written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and is
necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Corporation
shall, promptly upon receipt of any such request for
indemnification, advise the Board in writing that Indemnitee has
requested indemnification. Notwithstanding the foregoing, any
failure of Indemnitee to provide such a request to the Corporation,
or to provide such a request in a timely fashion, shall not relieve
the Corporation of any liability that it may have to Indemnitee
unless, and to the extent that, such failure actually and
materially prejudices the interests of the Corporation.
(b) Upon written request by
Indemnitee for indemnification pursuant to Section 9(a)
hereof, a determination with respect to Indemnitee’s
entitlement thereto shall be made in such case by one of the
following four methods, which shall be at the election of the
Board: (1) by a majority vote of the disinterested directors,
even though less than a quorum, (2) by a committee of
disinterested directors designated by a majority vote of the
disinterested directors, even though less than a quorum,
(3) if there are no disinterested directors or if the
disinterested directors so direc
