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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
presumption that Indemnitee did not act in good faith and in a
manner which Indemnit
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