Exhibit 10.9
INDEMNITY
AGREEMENT
THIS INDEMNITY AGREEMENT (the “agreement”) is dated as of the
8 th day of August, 2005
between:
OPEN TEXT CORPORATION,
a corporation amalgamated under the
laws of Ontario (the “Corporation”)
- and -
WALTER KOEHLER,
of the City of Munich (the
“Director”)
WHEREAS :
A. The Corporation is amalgamated under the
Business Corporations Act (Ontario) (the
“Act”);
B. The by-laws of the Corporation provide that
the Corporation shall indemnify a director in certain
circumstances;
C. The Corporation, through its wholly owned
subsidiary 2016090 Ontario Inc., holds more than 95% of all shares
in Gauss Interprise AG (“Gauss”), a German stock
corporation (“Aktiengesellschaft”);
D. Director will shortly become a member of the
management board (“Vorstand”) of Gauss;
E. The Corporation provides directors’ and
officers’ liability insurance to the directors and officers
of the Corporation and Gauss in respect of liabilities which a
director or officer may incur in connection with his or her
position; and
F. The Corporation desires to enter into this
agreement effective as of execution of this agreement for the
purpose of indemnifying the Director in respect of liabilities,
which the Director may incur in connection with his or her
position;
NOW THEREFORE in consideration of the premises and the
covenants and agreements contained herein, and other good and
valuable consideration (the receipt and sufficiency of which is
hereby acknowledged), and in consideration of the Director’s
consenting to act as a member of the management board of Gauss, the
parties hereby agree as follows effective as of execution of this
agreement:
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1.
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The Corporation
shall indemnify the Director and his or her heirs and legal
representatives (the “Indemnity”) from and against all
costs, charges and expenses, including an amount paid to settle an
action or satisfy a final judgment, reasonably incurred by the
Director in respect of any action, suit or proceeding (other than a
criminal action or proceeding) to which the Director is made a
party by reason of being a member of the management board of Gauss,
provided that:
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(a)
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in the case of
an administrative action or proceeding that is enforced by a
monetary penalty, (i) the Director acted honestly and in good faith
with a view to the best interests of Gauss and the Corporation and
(ii) the Director had reasonable grounds for believing that his or
her conduct was lawful, in particular when the conduct resulted
from the Corporation having used its influence as a shareholder of
Gauss or the Corporation having entered into a contract with Gauss;
or
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(b)
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in the case of
any action, suit or proceeding other than an administrative action
or proceeding that is enforced by a monetary penalty, (i) the
Director acted honestly and in good faith with a view to the best
interests of Gauss and the Corporation and (ii) the Corporation is
jointly and severally liable with the Director to a third party as
a result of having used its influence as a shareholder of Gauss or
as a result of the Corporation having entered into a contract with
Gauss;
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whether or not the Director
continues to act in such capacity, provided that the Director will
notify the Corporation in writing as soon as practicable of any
such action, suit or proceeding and further provided that the
failure to so notify the Corporation shall not affect the liability
of the Corporation hereunder except to the extent that the
Corporation is materially prejudiced by such failure, and provided
further that the Director has fulfilled the applicable conditions
set out in subsections (a) and (b) above.
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2.
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Except to the
extent contrary to the Act, as amended from time to time, or
applicable law, the Corporation shall fully reimburse, as and when
incurred, the Director for all costs, charges and expenses incurred
by him or her in connection with any proceeding or action referred
to
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-2-
in Section 1; provided that the
Director shall have entered into an agreement (the “Repayment
Agreement”) with the Corporation to immediately repay the
monies if it is later determined that the Director did not
fulfill
