Exhibit 10.1
INDEMNITY
AGREEMENT
T HIS I NDEMNITY A GREEMENT (this “ Agreement ”)
dated as of _______________, 2009, is made by and between
D IV
X, I NC . a
Delaware corporation (the “ Company ”),
and __________________ (“ Indemnitee
”).
R ECITALS
A. The Company desires to attract and retain the
services of highly qualified individuals as directors, officers,
employees and agents.
B. The Company’s Amended and Restated Bylaws
(the “ Bylaws ”) require that the Company
indemnify its directors and executive officers, and empowers the
Company to indemnify its other officers, employees and agents, as
authorized by the Delaware General Corporation Law, as amended (the
“ Code ”), under which the Company is
organized and such Bylaws expressly provide that the
indemnification provided therein is not exclusive and contemplates
that the Company may enter into separate agreements with its
directors, officers and other persons to set forth specific
indemnification provisions.
C. Indemnitee does not regard the protection
currently provided by applicable law, the Company’s governing
documents and available insurance as adequate under the present
circumstances, and the Company has determined that Indemnitee and
other directors, officers, employees and agents of the Company may
not be willing to serve or continue to serve in such capacities
without additional protection.
D. The Company desires and has requested Indemnitee
to serve or continue to serve as a director, officer, employee or
agent of the Company, as the case may be, and has proffered this
Agreement to Indemnitee as an additional inducement to serve in
such capacity.
E. Indemnitee is willing to serve, or to continue
to serve, as a director, officer, employee or agent of the Company,
as the case may be, if Indemnitee is furnished the indemnity
provided for herein by the Company.
A GREEMENT
N OW T HEREFORE , in consideration of the mutual covenants and
agreements set forth herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Definitions
.
(a) Agent . For purposes of this Agreement, the term
“agent” of the Company means any person who:
(i) is or was a director, officer, employee or other fiduciary
of the Company or a subsidiary of the Company; or (ii) is or
was serving at the request or for the convenience of, or
representing the interests of, the Company or a subsidiary of the
Company, as a director, officer, employee or other fiduciary of a
foreign or domestic corporation, limited liability company,
partnership, joint venture, trust or other enterprise.
(b) Expenses . For purposes of this
Agreement, the term “expenses” shall be broadly
construed and shall include, without limitation, all direct and
indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys’, witness, or other professional
fees and related disbursements, and other out-of-pocket costs of
whatever nature), actually and reasonably incurred by Indemnitee in
connection with the investigation, defense or appeal of a
proceeding (as defined below), or establishing or enforcing a right
to indemnification under this Agreement, the Code or otherwise, and
amounts paid by or on behalf of Indemnitee in settlement of any
proceeding and any judgments, damages, liabilities, losses,
penalties, taxes and fines levied against Indemnitee in connection
with any proceeding. The term “expenses” shall also
include reasonable compensation for time spent by Indemnitee for
which he is not compensated by the Company or any subsidiary or
third party: (i) for any period during which Indemnitee is
not an agent of, in the employment of, or providing services
for compensation to, the Company or any subsidiary; and
(ii) for any period during which Indemnitee is an agent of, in
the employment of, or providing services for compensation to, the
Company or any subsidiary, if and to the extent that the rate of
compensation and estimated time involved is approved by the
directors of the Company who are not parties to any action with
respect to which such expenses are incurred.
(c) Proceedings . For purposes of this
Agreement, the term “proceeding” shall be broadly
construed and shall include, without limitation, any threatened,
pending, or completed action, suit, arbitration, mediation,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed
proceeding, whether brought by or in the right of the Company or
otherwise and whether of a civil, criminal, administrative or
investigative nature, and whether formal or informal in any case,
in which Indemnitee was, is or will be involved as a party or
witness or other participant or otherwise by reason of:
(i) the fact that Indemnitee is or was a director, officer,
employee or agent of the Company or any subsidiary; (ii) any
action taken or any inaction by Indemnitee, or of any action on
Indemnitee’s part, while acting as director, officer,
employee or agent of the Company; or (iii) the fact that
Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise, and in any such case
described above, whether or not serving in any such capacity at the
time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses may be
provided under this Agreement.
(d) Subsidiary . For purposes of this
Agreement, the term “subsidiary” means any entity of
which more than 50% of the outstanding voting securities or equity
interests are owned, directly or indirectly, by the Company and one
or more of its subsidiaries, and any other corporation, limited
liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was
serving at the request of the Company as a director, officer,
employee, agent or fiduciary.
2. Agreement to Serve . Indemnitee will
serve, or continue to serve, as a director, officer, employee or
agent of the Company or any subsidiary, as the case may be,
faithfully and to the best of his or her ability, at the will of
such corporation (or under separate agreement, if such agreement
exists), in the capacity Indemnitee currently serves as an agent of
such corporation, so long as Indemnitee is duly appointed or
elected and qualified in accordance with the applicable provisions
of the Bylaws or other applicable
charter documents of such corporation, or until
such time as Indemnitee tenders his or her resignation in writing;
provided, however, that nothing contained in this Agreement is
intended as an employment agreement between Indemnitee and the
Company or any of its subsidiaries or to create any right to
continued employment of Indemnitee with the Company or any of its
subsidiaries in any capacity.
The Company acknowledges that it has
entered into this Agreement and assumes the obligations imposed on
it hereby, in addition to and separate from its obligations to
Indemnitee under the Bylaws, to induce Indemnitee to serve, or
continue to serve, as a director, officer, employee or agent of the
Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer, employee or
agent of the Company.
3. Indemnification
.
(a) Indemnification in Third Party
Proceedings . Subject to Section 10 below, the Company
shall indemnify Indemnitee to the fullest extent permitted by the
Code, as the same may be amended from time to time (but, only to
the extent that such amendment permits Indemnitee to broader
indemnification rights than the Code permitted prior to adoption of
such amendment), if Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any proceeding, for any
and all expenses, actually and reasonably incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of
such proceeding.
(b) Indemnification in Derivative Actions and
Direct Actions by the Company . Subject to Section 10
below, the Company shall indemnify Indemnitee to the fullest extent
permitted by the Code, as the same may be amended from time to time
(but, only to the extent that such amendment permits Indemnitee to
broader indemnification rights than the Code permitted prior to
adoption of such amendment), if Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any
proceeding by or in the right of the Company to procure a judgment
in its favor, for any and all expenses actually and reasonably
incurred by Indemnitee in connection with the investigation,
defense, settlement, or appeal of such proceedings.
4. Indemnification of Expenses of Successful
Party . Notwithstanding any other provision of this Agreement,
to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any proceeding or in defense of any claim,
issue or matter therein, including the dismissal of any action
without prejudice, the Company shall indemnify Indemnitee against
all expenses actually and reasonably incurred in connection with
the investigation, defense or appeal of such proceeding.
5. Partial Indemnification .
(a) If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a
portion of any expenses actually and reasonably incurred by
Indemnitee in the investigation, defense, settlement or appeal of a
proceeding, but is precluded by applicable law or the specific
terms of this Agreement to indemnification for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
(b) Whether or not the indemnification provided in
Section 3 hereof is available, if Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any
proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such proceeding), the Company shall pay,
in the first instance, the entire amount of any judgment or
settlement of such action, suit or proceeding without requiring
Indemnitee to contribute to such payment and the Company hereby
waives and relinquishes any right of contribution it may have
against Indemnitee.
6. Advancement of Expenses . To the extent
not prohibited by law, the Company shall advance the expenses
incurred by Indemnitee in connection with any proceeding, and such
advancement shall be made within forty-five (45) days after
the receipt by the Company of a statement or statements requesting
such advances (which shall include invoices received by Indemnitee
in connection with such expenses but, in the case of invoices in
connection with legal services, any references to legal work
performed or to expenditures made that would cause Indemnitee to
waive any privilege accorded by applicable law shall not be
included with the invoice) and upon request of the Company, an
undertaking to repay the advancement of expenses if and to the
extent that it is ultimately determined by a court of competent
jurisdiction in a final judgment, not subject to appeal, that
Indemnitee is not entitled to be indemnified by the Company.
Advances shall be unsecured, interest free and without regard to
Indemnitee’s ability to repay the expenses. Advances shall
include any and all expenses actually and reasonably incurred by
Indemnitee pursuing an action to enforce Indemnitee’s right
to indemnification under this Agreement or otherwise, and to this
right of advancement, including expenses incurred preparing and
forwarding statements to the Company to support the advances
claimed. Indemnitee acknowledges that the execution and delivery of
this Agreement shall constitute an undertaking providing that
Indemnitee shall, to the fullest extent required by law, repay any
advance if and to the extent that it is ultimately determined by a
court of competent jurisdiction in a final judgment, not subject to
appeal, that Indemnitee is not entitled to be indemnified by the
Company. The right to advances under this Section shall continue
until final disposition of any proceeding, including any appeal
therein. This Section 6 shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to
Section 10(b).
7. Notice and Other Indemnification
Procedures .
(a) Notification of Proceeding . Indemnitee
will notify the Company in writing promptly upon being served with
any summons, citation, subpoena, complaint, indictment, information
or other document relating to any proceeding or matter which may be
subject to indemnification or advancement of expenses
