Exhibit 10.35
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the
“ Agreement ”) dated as of October 28,
1998, by and between Dendrite International Inc. a New Jersey
corporation (the “ Company ”), and Mark H.
Cieplik, an executive officer of the Company (the “
Indemnitee ”):
WITNESSETH:
WHEREAS, the Indemnitee is presently
serving as an executive officer of the Company, and the Company
desires the Indemnitee to continue in such capacity;
WHEREAS, the Indemnitee is willing,
subject to certain conditions (including the execution and
performance of this Agreement by the Company), to continue in that
capacity;
WHEREAS, in addition to the
indemnification to which the Indemnitee is entitled under the
Company’ s certificate of incorporation (the “
Certificate ”), the Company maintains at its sole
expense insurance protecting its officers and directors (including
the Indemnitee) against certain losses arising out of actual or
threatened actions, suits or proceedings to which such persons may
be made or threatened to be made parties; and
WHEREAS, as a result of
circumstances having no relation to, and beyond the control of, the
Company and the Indemnitee, there can be no assurance of the
continuation or renewal of that insurance;
NOW, THEREFORE, to induce the
Indemnitee to continue to serve in his present capacity and in
consideration of these premises and the mutual agreements set forth
in this Agreement, the Company and the Indemnitee agree as
follows:
1.
Continued Service
. The Indemnitee will continue
to serve as an executive officer of the Company until removal by
the Board of Directors in accordance with the Company’s
by-laws (the “ By-Laws ”) or he resigns in
writing in accordance with applicable law.
2.
Initial Indemnity
. (a)
The Company shall indemnify the Indemnitee who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil,
administrative, investigative or criminal (other than an action by
or in the right of the Company), by reason of the fact that he is
or was or had agreed to become an executive officer of the Company,
or is or was serving or had agreed to serve at the request of the
Company as a director, officer, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken
or omitted in such capacity, against any and all costs, charges and
expenses (including attorneys, and others’ fees and
expenses), judgments, fines and amounts paid in settlement actually
and reasonably incurred by the Indemnitee in connection therewith
and any appeal therefrom if the Indemnitee acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of
any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendre or
its equivalent shall not, of itself, create a presumption that the
Indemnitee did not satisfy the foregoing standard of conduct to the
extent applicable thereto.
(b) The Company shall indemnify the
Indemnitee who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding by or in the right of the Company to procure a judgment
in its favor by reason of the fact that he is or was or had agreed
to become an executive officer of the Company, or is or was serving
or had agreed to serve at the request of the Company as a director,
officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
costs, charges and expenses (including attorneys’ and
others’ fees and expenses) actually and reasonably incurred
by him in connection with the defense or settlement thereof or any
appeal therefrom if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company and except that no indemnification shall be made in
respect of any claim, issue or matter as to which the Indemnitee
shall have been adjudged to be liable to the Company unless and
only to the extent that the Superior Court or the court in which
such action, suit or proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which the
Superior Court or such other court shall deem proper.
(c) To the extent that the
Indemnitee has been successful on the merits or otherwise,
including without limitation the dismissal of an action without
prejudice, in any action, suit or proceeding referred to in
Sections 2(a) or 2(b) or in defense of any claim, issue or matter
therein, he shall be indemnified against costs, charges and
expenses (including attorneys’ and others’ fees and
expenses) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under
Sections 2 (a) or 2(b) (unless ordered by a court) shall be made by
the Company only as authorized in the specific case upon a
determination in accordance with Section 4 or any applicable
provision of the Certificate, By-Laws, other agreement, resolution
or otherwise. Such determination shall be made (i) by the
Board of Directors of the Company (the “ Board
”) by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, (ii) if such a
quorum of disinterested directors is not available or so directs,
by independent legal counsel (designated in the manner provided
below in this subsection (d)) in a written opinion or (iii) by
a majority vote of a quorum of the stockholders of the Company at a
meeting duly called and held present (the “
Stockholders ”). Independent legal counsel shall
be designated by vote of a majority of the disinterested directors;
provided, however , that if the Board is unable or fails to
so designate, such designation shall be made by the Indemnitee
subject to the approval of the Company (which approval shall not be
unreasonably withheld). Independent legal counsel shall not
be any person or firm who, under the applicable standards
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or the Indemnitee in an
action to determine the Indemnitee’s rights under this
Agreement. The Company agrees to pay the reasonable fees and
expenses of such independent legal counsel and to indemnify fully
such
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counsel against costs, charges and expenses
(including attorneys’ and others fees and expenses) actually
and reasonably incurred by such counsel in connection with this
Agreement or the opinion of such counsel pursuant
hereto.
(e) A11 expenses (including
attorneys’ and others’, fees and expenses) incurred by
the Indemnitee in his capacity as an executive officer of the
Company in defending an actual or threatened civil or criminal
action, suit or proceeding shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding in the
manner prescribed by Section 4(b).
(f) The Company shall not adopt any
amendment to the Certificate or By-Laws the effect of which would
be to deny, diminish or encumber the Indemnitee’s rights to
indemnity or encumber the Indemnitee’s rights to indemnity
pursuant to the Certificate, By-Laws, the New Jersey Business
Corporation Act (the “ Corporation Act ”) or any
other applicable law as applied to any act or failure to act
occurring in whole or in part prior to the date (the
“Effective Date”) upon which the amendment was approved
by the Board of Stockholders, as the case may be. If the
Company shall adopt any amendment to the Certificate or By-Laws the
effect of which would be to so deny, diminish or encumber the
Indemnitee’s rights to indemnity, such amendment shall apply
only to acts or failures to act occurring entirely after the
Effective Date thereof.
3.
Additional
Indemnification .
(a) Pursuant to Section 14A:3-5 of the Corporation Act,
without limiting any right which the Indemnitee may have pursuant
to Section 2, the Certificate, the By-Laws, the Corporation
Act, any policy of insurance or otherwise, but subject to the
limitations on the maximum permissible indemnity which may exist
under applicable law at the time of any request for indemnity
hereunder determined as contemplated by Section 3(a), the
Company shall indemnify the Indemnitee against any amount which he
is or becomes legally obligated to pay relating to or arising out
of any claim made against him because of any act, failure to act or
neglect or breach of duty, including any actual or alleged error,
misstatement or misleading statement, which he commits, suffers,
permits or acquiesces in while acting in his capacity as an
executive officer of the Company, or, at the request of the
Company, as a director, officer, trustee, employee or agent of
another corporations partnership, joint venture, trust or other
enterprise. The payments which the Company is obligated to
make pursuant to this Section 3 shall include without
limitation damages, judgments, settlements and charges, costs,
expenses, expenses of investigation and expenses of defense of
legal actions, suits, proceedings or claims and appeals therefrom,
and expenses of appeal, attachment or similar bonds; provided,
however , that the Company shall not be obligated under this
Section 3(a) to make any payment in connection with any claim
against the Indemnitee if a judgment or other final adjudication
adverse to the Indemnitee establishes that his acts or omissions
(i) were in breach of his duty of loyalty to the Company or the
Stockholders, (ii) were not in good faith or involved a knowing
violation of law, or (iii) resulted in receipt by the Indemnitee of
an improper personal benefit. The determination of whether
the Indemnitee shall be entitled to indemnification under this
Section 3(a) may be, but shall not be required to, be made in
accordance with Section 4(a). If that determination is
so made, it shall be binding upon the Company and the Indemnitee
for all, purposes.
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(b) Expenses (including without
limitation attorneys’ and others’ fees and expenses)
incurred by Indemnitee in defending any actual or threatened civil
or criminal action, suit, proceeding or claim shall be paid by the
Company in advance of the final dispositio
