Exhibit 10.37
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the
“ Agreement ”) dated as of January 26, 2004, by
and between Dendrite International Inc. a New Jersey corporation
(the “ Company ”), and Garry Johnson, an officer
of the Company (the “ Indemnitee ”):
WITNESSETH:
WHEREAS, the Indemnitee is presently
serving as an 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 [a director of the Company so long as he is duly
elected and qualified in accordance with the Company’s
by-laws (the “ By-Laws ”) or until he resigns in
writing in accordance with applicable law] [an 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 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 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
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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 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 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 a 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
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that determination is so made, it shall be
binding upon the Company and the Indemnitee for all,
purposes.
(b) Expenses (including without
limitation attorneys’ and others’ fees and expenses)
incurred by Indemnitee in defending any actual or threatened civil
or criminal action, su
