EXHIBIT 10.01
INTERWOVEN, INC.
INDEMNITY AGREEMENT
This Indemnity Agreement (the “
Agreement ”), dated as of
, is made by and between Interwoven, Inc., a Delaware corporation
(the “ Company ”), and
(the “ Indemnitee ”), who is an
Indemnifiable Person, as defined in Section 1.6 of this
Agreement.
RECITALS
A. The Company is aware that
competent and experienced persons are increasingly reluctant to
serve as representatives of corporations unless they are protected
by comprehensive liability insurance and/or indemnification, due to
increased exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the
exposure frequently bears no relationship to the compensation of
such representatives;
B. The members of the Board of
Directors of the Company (the “ Board ”),
based on their experience as business managers, have concluded that
to retain and attract talented and experienced individuals to serve
as representatives of the Company, and to encourage such
individuals to take the business risks necessary for the success of
the Company, it is necessary for the Company to contractually
indemnify them, and to assume for itself maximum liability for
Expenses and Other Liabilities in connection with claims against
such representatives in connection with their service to the
Company;
C. Section 145 of the
Delaware General Corporation Law, under which the Company is
organized (“ Section 145 ” of the
“ Delaware Law ”), empowers the Company
to indemnify by agreement its officers, directors, employees and
agents, and persons who serve, at the request of the Company, as
directors, officers, employees or agents of other corporations,
partnerships, joint ventures, trusts or other enterprises, and
expressly provides that the indemnification provided by Section 145
is not exclusive; and
D. The Company desires and has
requested that Indemnitee serve or continue to serve as a
representative of the Company free from undue concern for claims
for damages arising out of or related to Indemnitee’s
services to the Company.
AGREEMENT
NOW, THEREFORE, the parties hereto,
intending to be legally bound, hereby agree as follows:
1.
Definitions . For purposes of this Agreement,
the following terms have the meanings as set forth below:
1.1 An
“ Affiliate ” of the Company is any
corporation, partnership, limited liability company, joint venture,
trust or other enterprise for which Indemnitee is, was or will be
serving as a director, officer, trustee, manager, member, partner,
employee, agent, attorney,
consultant, fiduciary, or in any other similar capacity at the
request, election or direction of the Company, and including, but
not limited to, any employee benefit plan of the Company.
1.2 A
“ Change in Control ” means the earliest
to occur after the date of the Agreement of any of the following
events:
(a)
Acquisition of Stock by Third Party . Any
“person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other
than a Subsidiary or a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
Subsidiary, is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 20% or more of the total
voting power represented by the Company’s then-outstanding
capital stock;
(b)
Change in Board of Directors . During any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board and any new director whose election by the
Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority thereof;
(c)
Corporate Transactions . The stockholders of the Company
approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation that would result
in the outstanding capital stock of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into capital stock of
the surviving entity) at least 80% of the total voting power
represented by the capital stock of the Company or such surviving
entity outstanding immediately after such merger or consolidation;
or
(d)
Liquidation . The stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale
or disposition by the Company (in one transaction or a series of
transactions) of all or substantially all of the Company’s
assets.
1.3
References to the “ Company ” in the
context of Indemnitee’s service to, for or on behalf of the
Company, shall include any Subsidiary and/or Affiliate of the
Company for which Indemnitee serves as an Indemnifiable Person; in
addition, the term “ Company ” includes,
in the event of a Change in Control, (i) the resulting
corporation, and (ii) any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers and
employees or agents, so that if Indemnitee is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture trust or other enterprise, Indemnitee
shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation
if its separate existence had continued.
1.4
“ Expenses ” includes all direct and
indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys’ fees and related disbursements,
and
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other
out-of-pocket costs), paid or incurred by Indemnitee in connection
with either the investigation, defense or appeal of, or being a
witness in a Proceeding, or establishing or enforcing a right to
indemnification under this Agreement, Section 145 or
otherwise; provided, however, that Expenses shall not include any
judgments, fines, ERISA excise taxes or penalties or amounts paid
in settlement of a Proceeding.
1.5 An
“ Indemnifiable Event ” is any event or
occurrence related to Indemnitee’s service for the Company as
an Indemnifiable Person, or by reason of anything done or not done,
or any act or omission, by Indemnitee in any such capacity.
1.6 An
“ Indemnifiable Person ” is any person
who is or was a director, officer, employee, attorney, trustee,
manager, member, partner, consultant or other agent or fiduciary of
the Company.
1.7
“ Independent Counsel ” means legal
counsel that has not performed services for the Company or
Indemnitee in the five years preceding the time in question and
that would not, under applicable standards of professional conduct,
have a conflict of interest in representing either the Company or
Indemnitee.
1.8
“ Other Liabilities ” means any and all
liabilities of any type whatsoever, including, but not limited to,
judgments, fines, ERISA (or other benefit plan related) excise
taxes or penalties, and amounts paid in settlement and all
interest, taxes, assessments and other charges paid or payable in
connection with or in respect of any such judgments, fines, ERISA
(or other benefit plan) related excise taxes or penalties, or
amounts paid in settlement.
1.9 A
“ Proceeding ” includes any threatened,
pending, or completed action, suit or other proceeding, whether
civil, criminal, administrative, investigative, legislative or any
other type whatsoever, formal or informal, including any
arbitration or other alternative dispute resolution and including
any appeal of any of the foregoing.
1.10 A
“ Subsidiary ” of the Company is any
corporation of which more than 50% of the outstanding voting
securities is owned directly by the Company.
2. Agreement to
Serve . Indemnitee agrees to serve and/or continue
to serve the Company as an Indemnifiable Person, in the capacity or
capacities in which Indemnitee currently serves as an Indemnifiable
Person, and any additional capacity in which Indemnitee may agree
to serve, at the will of the Company (or under separate agreement,
if such agreement exists), faithfully and to the best of
Indemnitee’s ability, until such time as Indemnitee’s
service in a particular capacity shall end according to the terms
of an agreement, or in accordance with the applicable provisions of
the Company’s Certificate of Incorporation or Bylaws,
governing law, or otherwise; provided, however , that
Indemnitee may at any time and for any reason resign from such
position (subject to any contractual obligation that Indemnitee may
have assumed apart from this Agreement) and that the Company shall
have no obligation under this Agreement to continue to employ
Indemnitee in such capacity or capacities.
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3.
Directors’ and Officers’ Insurance
.
3.1
Reasonable Efforts . So long as Indemnitee shall continue to
serve the Company as an Indemnifiable Person and thereafter so long
as Indemnitee shall be subject to any possible claim or threatened,
pending or completed Proceeding as a result of an Indemnifiable
Event, the Company shall use reasonable efforts to maintain in full
force and effect for the benefit of Indemnitee as an insured
(i) liability insurance issued by one or more reputable
insurers and having the policy amount and deductible deemed
appropriate by the Board and providing in all respects coverage at
least comparable to and in the same amount as that being provided
to the Chairman of the Board, the Chief Executive Officer or Chief
Financial Officer of the Company when such insurance is purchased,
and (ii) any replacement or substitute policies issued by one
or more reputable insurers providing in all respects coverage at
least comparable to and in the same amount as that being provided
to the Chairman of the Board, the Chief Executive Officer or Chief
Financial Officer of the Company when such replacement or
substitute policies are purchased (“ D&O
Insurance ”). The purchase, establishment and
maintenance of any such insurance or other arrangements shall not
in any way limit or affect the rights and obligations of the
Company or of Indemnitee under this Agreement except as expressly
provided herein, and the execution and delivery of this Agreement
by the Company and Indemnitee shall not in any way limit or affect
the rights and obligations of the Company or the other party or
parties thereto under any such insurance or other
arrangement.
3.2
Good Faith Determination . Notwithstanding the foregoing,
the Company shall have no obligation to obtain or maintain D&O
Insurance if the Company determines in good faith that such
insurance is not reasonably available, the premium costs for such
insurance are disproportionate to the amount of coverage provided,
the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit, or Indemnitee is covered by
similar insurance maintained by a Subsidiary or Affiliate of the
Company.
4. Mandatory
Indemnification .
4.1
Agreement to Indemnify . In the event Indemnitee is a person
who was or is a party to or witness in or is threatened to be made
a party to or witness in any Proceeding by reason of an
Indemnifiable Event, the Company shall indemnify Indemnitee from
and against any and all Expenses and Other Liabilities incurred by
Indemnitee in connection with (including in preparation for) such
Proceeding to the fullest extent not prohibited by the provisions
of the Company’s Certificate of Incorporation, Bylaws and
Delaware Law, as these may be amended from time to time, but only
to the extent that such amendments permit the Company to provide
broader indemnification rights than the Certificate of
Incorporation, Bylaws or Delaware Law permitted prior to the
adoption of such amendment.
4.2
Exception for Amounts Covered by Directors’ and
Officers’ Insurance . Notwithstanding the foregoing, the
Company shall not be obligated to indemnify Indemnitee for expenses
or liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement) to the extent such have been paid directly to
Indemnitee by D&O Insurance.
4.3
Change in Law . In the event of any change, after the date
of this Agreement, in any applicable law, statute or rule which
expands the Company’s right, as a Delaware corporation, to
indemnify an Indemnifiable Person, such changes shall be, ipso
facto, within the purview of Indemnitee’s rights and
Company’s obligations, under this Agreement. In
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the
event of any change in any applicable law, statute or rule which
narrows the Company’s right, as a Delaware corporation, to
indemnify an Indemnifiable Person, such changes, to the extent
required by such law, statute or rule to be applied to this
Agreement, shall have the effect on this Agreement and the
parties’ rights and obligations hereunder as is required by
such law, statute or rule.
5. Partial
Indemnification and Contribution .
5.1
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for some or a portion of any Expenses or Other Liabilities but not
entitled, however, to indemnification for the total amount of such
Expenses or Liabilities, the Company shall nevertheless indemnify
Indemnitee for such total amount except as to the portion thereof
to which Indemnitee is not entitled by the provisions of the
Company’s Bylaws or Delaware Law. In any review or Proceeding
to determine the extent of indemnification, the Company shall bear
the burden to establish, by clear and convincing evidence, the lack
of a successful resolution of a particular claim, issue or matter
and which amounts sought in indemnity are allocable to claims,
issues or matters which were not successfully resolved.
5.2
Contribution . If the Indemnitee is not entitled to the
indemnification provided in Section 4 for any reason other
than the statutory limitations set forth in Delaware Law, then in
respect of any threatened, pendi
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