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Exhibit 10.01
INDEMNIFICATION AGREEMENT
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This INDEMNIFICATION AGREEMENT (the "Agreement") is made and
entered
into as of __________, 2005, by and among
Macrovision 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
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WHEREAS, Indemnitee may serve, continue to serve and to take on
additional service for or on behalf of the
Corporation.
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, or any material subsidiary of
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
Acquiring Person 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, or any material subsidiary of
the Corporation, in any transaction or
series of related transactions, sells or
otherwise transfers all or substantially
all of its assets to an Acquiring
Person, and less than a majority of the
combined voting power of the then
outstanding securities of the Acquiring
Person immediately after such sale or
transfer is held, directly or indirectly,
in the aggregate by the holders of
Voting Securities immediately prior to such
sale or transfer;
(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
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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
(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 of 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.
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(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 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, administrative hearing or
any other 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
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
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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 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 to procure a judgment
in its favor. Pursuant to this Section 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 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 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, a
