Exhibit 10.1


 


FORM OF
INDEMNIFICATION AGREEMENT


 


This Indemnification
Agreement (the “Agreement”) dated as of July 22, 2005, by and between
Omtool, Ltd., a Delaware corporation (the “Company”), and [Name], a director [and/or officer] of the Company (the “Indemnitee”):


 


WITNESSETH:


 


WHEREAS, the Indemnitee is
presently serving as a director [and/or officer]  of the Company, and
the Company desires the Indemnitee to continue in such capacity; and


 


WHEREAS, the Indemnitee is
willing, subject to certain conditions (including the execution and performance
of this Agreement by the Company), to continue in that capacity;


 


NOW, THEREFORE, to induce
the Indemnitee to continue to serve in his present capacity and in
consideration of these premises and the mutual agreements set forth in this
Agreement, the Company and the Indemnitee agree as follows:


 


1.                                       Continued Service.  The
Indemnitee will continue to serve as a director [and/or
officer] of the Company so long as he is duly
elected and qualified in accordance with the Company’s restated by-laws (the “By-Laws”)
or until he resigns in writing or is removed from office in accordance with
applicable law.


 


2.                                       Initial Indemnity.  (a) 
The Company shall indemnify the Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (including any proceeding before any administrative or
legislative body or agency) (other than an action by or in the right of the
Company), by reason of the fact that he is or was or had agreed to become a
director [and/or officer]
of the Company, or is or was serving or had agreed to serve at the request of
the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against any and
all costs, expenses (including attorneys’ fees), judgments, liabilities and/or
amounts paid in settlement actually and reasonably incurred by or imposed upon
the Indemnitee in connection therewith and any appeal therefrom if the
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful, or unless such indemnification is prohibited by the General
Corporation Law of the State of Delaware (“DGCL”).  The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendre or its equivalent shall not, of itself, create a presumption that the
Indemnitee did not satisfy the foregoing standard of conduct to the extent
applicable thereto.


 





















 


(b)                                 The Company shall indemnify the Indemnitee
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is or
was or had agreed to become a director [and/or officer] of the Company, or is or was serving or had agreed to
serve at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
against costs, expenses (including attorneys’ fees), judgments, liabilities
and/or amounts paid in settlement actually and reasonably incurred by or
imposed upon him in connection with the defense or settlement thereof or any
appeal therefrom if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and
except that no indemnification shall be made if such indemnification is
prohibited by the DGCL or in respect of any claim, issue or matter as to which
the Indemnitee shall have been adjudged to be liable to the Company unless and
only to the extent that the court in which such action, suit or proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such expenses that the court
shall deem proper.


 


(c)                                  To the extent that the Indemnitee has been
successful on the merits or otherwise, including without limitation the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in Sections 2(a) or 2(b) hereof or in
defense of any claim, issue or matter therein, he shall be indemnified against
costs, expenses (including attorneys’ fees), judgments, liabilities and/or
amounts paid in settlement actually and reasonably incurred by or imposed upon
him in connection therewith.


 


(d)                                 Any indemnification under Sections 2(a) or
2(b) hereof (unless ordered by a court) shall be made by the Company only
as authorized in the specific case upon a determination in accordance with Section 4
hereof or any applicable provision of the Restated Certificate of Incorporation
of the Company (the “Charter”), By-Laws, other agreement, resolution or
otherwise.  Such determination shall be
made (i) by the Board of Directors of the Company (the “Board”) by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, (ii) if such a quorum of disinterested
directors is not available or so directs, by independent legal counsel
(designated in the manner provided below in this subsection (d)) in a
written opinion or (iii) by the stockholders of the Company (the “Stockholders”).  Independent legal counsel shall be designated
by vote of a majority of the disinterested directors; provided,
however, that if the Board is unable or fails to so designate, such
designation shall be made by the Indemnitee subject to the approval of the
Company (which approval shall not be unreasonably withheld).  Independent legal counsel shall not be any
person or firm who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Company or the Indemnitee in an action to determine the Indemnitee’s rights
under this Agreement.  The Company agrees
to pay the reasonable fees and expenses of such independent legal counsel and
to indemnify fully such counsel against costs and expenses (including attorneys’
fees) actually and reasonably incurred by such counsel in connection with this
Agreement or the opinion of such counsel pursuant hereto.


 


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(e)                                  All expenses (including attorneys’ fees)
including by the Indemnitee in his capacity as a director [and/or
officer] of the Company in defending a civil
or criminal action, suit or proceeding shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding in the manner prescribed
by Section 4(b) hereof.


 


(f)                                    The Company shall not adopt any amendment to
the Charter or By-Laws the effect of which would be to deny, diminish or
encumber the Indemnitee’s rights to indemnity pursuant to the Charter, By-Laws,
the DGCL or any other applicable law as applied to any act or failure to act
occurring in whole or in part prior to the date (the “Effective Date”) upon
which the amendment was approved by the Board of Directors or the Stockholders,
as the case may be.  In the event that
the Company shall adopt any amendment to the Articles or By-Laws the effect of
which is to so deny, diminish or encumber the Indemnitee’s rights to indemnity,
such amendment shall apply only to acts or failures to act occurring entirely
after the Effective Date thereof unless the Indemnitee shall have voted in
favor of such adoption as a director or holder of record of the Company’s
voting stock, as the case may be.


 


3.                                       Additional Indemnification.  (a) Without
limiting any right that the Indemnitee may have pursuant to Section 2
hereof, the Charter, the By-Laws, the DGCL, any policy of insurance or
otherwise, but subject to the limitations on the maximum permissible indemnity
that may exist under applicable law at the time of any request for indemnity
hereunder determined as contemplated by Section 3(a) hereof, the
Company shall indemnify the Indemnitee against any amount that he is or becomes
legally obligated to pay relating to or arising out of any claim made against
him because of any act, failure to act or neglect or breach of duty, including
any actual or alleged error, misstatement or misleading statement, which he
commits, suffers, permits or acquiesces in while acting in his capacity as a
director [and/or officer]
of the Company, or, at the request of the Company, as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise.  The payments that the
Company is obligated to make pursuant to this Section 3 shall include
without limitation judgments, liabilities, amounts paid as settlements, costs
and expenses, of legal actions, suits or proceedings and appeals therefrom, and
expenses of appeal, attachment or similar bonds; provided,
however, that the Company shall not be obligated under this Section 3(a) to
make any payment in connection with any claim against the Indemnitee:


 


(i)                                     to the extent of any fine or similar
governmental imposition that the Company is prohibited by applicable law from
paying that results in a final, nonappealable order; or


 


(ii)                                  to the extent based upon or attributable to
the Indemnitee gaining in fact a personal profit to which he was not legally
entitled, including without limitation profits made from the purchase and sale
by the Indemnitee of equity securities of the Company that are recoverable by
the Company pursuant to Section 16(b) of the Securities Exchange Act
of 1934, and profits arising from transactions in publicly traded securities of
the Company that were effected by the Indemnitee in violation of Section 10(b) of
the Securities Exchange Act of 1934, including Rule 10b-5 promulgated
thereunder.


 


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The determination of whether the Indemnitee
shall be entitled to indemnification under this Section 3(a) may be,
but shall not be required to, be made in accordance with Section 4(a) hereof.  If that determination is so made, it shall be
binding upon the Company and the Indemnitee for all purposes.


 


(b)                                 Expenses (including without limitation
attorneys’ fees) incurred by Indemnitee in defending any actual or threatened
civil or criminal action, suit or proceeding shall be paid by the Company in
advance of the final disposition thereof as authorized in accordance with Section 4(b) hereof.


 


4.                                       Certain Procedures Relating to Indemnification
and Advancement of Expenses.


 


(a)                                  Except as otherwise permitted or required by
the Charter, By-Laws or DGCL, for purposes of pursuing his rights to
indemnification under Sections 2(a), 2(b) or 3(a) hereof, as the
case may be, the Indemnitee shall be required to (i) submit to the Board a
sworn statement of request for indemnification substantially in the form of Exhibit 1
attached hereto and made a part hereof (the “Indemnification Statement”)
averring that he is entitled to indemnification hereunder; and (ii) present
to the Company reasonable evidence of all expenses for which payment is
requested.  Submission of an
Indemnification Statement to the Board shall create a presumption that the
Indemnitee is entitled to indemnification under Sections 2(a), 2(b) or
3(a) hereof, as the case may be, and the Board shall be deemed to have
determined that the Indemnitee is entitled to such indemnification unless
within 30 calendar days after submission of the Indemnification Statement
the Board shall determine by vote of a majority of the directors at a meeting
at which a quorum is present, based upon clear and convincing evidence
(sufficient to rebut the foregoing presumption), and the Indemnitee shall have
received notice within such period in writing of such determination, that the
Indemnitee is not so entitled to indemnification, which notice shall disclose
with particularity the evidence in support of the Board’s determination.  The foregoing notice shall be sworn to by all
persons who participated in the determination and voted to deny
indemnification.  The provisions of this Section 4(a) are
intended to be procedural only and shall not affect the right of the Indemnitee
to indemnification under this Agreement, and any determination by the Board
that the Indemnitee is not entitled to indemnification and any failure to make
the payments requested in the Indemnification Statement shall be subject to
judicial review as provided in Section 7 hereof.


 


(b)                                 For purposes of determining whether to
authorize advancement of expenses pursuant to Section 2(e) or 3(b) hereof,
the Indemnitee shall submit to the Board a sworn statement of request for
advancement of expenses substantially in the form of Exhibit 2 attached
hereto and made a part hereof (the “Undertaking”), averring that (i) he
has reasonably incurred or will reasonably incur actual expenses in defending
an actual civil or criminal action, suit, proceeding or claim and (ii) he
undertakes to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Company under this Agreement or
otherwise. Upon receipt of an Undertaking, the Board shall within
10 calendar days authorize immediate payment of the expenses stated in the
Undertaking, whereupon such payments shall immediately be made by the
Company.  No security shall be required
in connection with any


 


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Undertaking and any Undertaking shall be accepted without reference to
the Indemnitee’s ability to make repayment.


 


5.                                       Subrogation; Duplication of Payments.  (a)  In
the event of payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such
rights.


 


(b)                                 The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against the
Indemnitee to the extent the Indemnitee has actually received payment (under
any insurance policy, the Charter, the By-Laws or otherwise) of the amounts
otherwise payable hereunder.


 


6.                                       Enforcement.  (a)  If a claim for
indemnification made to the Company pursuant to Section 4 hereof is not
paid in full by the Company within 30 calendar days after a written claim
has been received by the Company, the Indemnitee may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim.


 


(b)                                 In any action brought under Section 5(a) hereof,
it shall be a defense to a claim for indemnification pursuant to
Sections 2(a) or 2(b) hereof (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the Undertaking has been tendered to the Company)
that the Indemnitee has not met the standards of conduct that make it
permissible under the Charter, By-Laws or DGCL for the Company to indemnify the
Indemnitee for the amount claimed, but the burden of proving such defense shall
be on the Company.  Neither the failure
of the Company (including the Board, independent legal counsel or the Stockholders)
to have made a determination prior to commencement of such action that
indemnification of the Indemnitee is proper in the circumstances because he has
met the applicable standard of conduct set forth in the Charter, By-Laws or
DGCL, nor an actual determination by the Company (including the Board,
independent legal counsel or the Stockholders) that the Indemnitee has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the Indemnitee has not met the applicable standard of
conduct.


 


(c)                                  It is the intent of the Company that the
Indemnitee not be required to incur the expenses associated with the
enforcement of his rights under this Agreement by litigation or other legal
action because the cost and expense thereof would substantially detract from
the benefits intended to be extended to the Indemnitee hereunder.  Accordingly, if it should appear to the
Indemnitee that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes
any action to declare this Agreement void or unenforceable, or institutes any
action, suit or proceeding designed (or having the effect of being designed) to
deny, or to recover from, the Indemnitee the benefits intended to be provided
to the Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee
from time to time to retain counsel of his choice, at the expense of the
Company as hereinafter provided, to represent the Indemnitee in connection with
the initiation or defense of any litigation


 


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or other legal action, whether by or against the Company or any
director, officer, stockholder or other person affiliated with the Company, in
any jurisdiction.  Regardless of the
outcome thereof, the Company shall pay and be solely responsible for any and
all costs and expenses (including attorneys’ fees ) reasonably incurred by the
Indemnitee (i) as a result of the Company’s failure to perform this
Agreement or any provision thereof or (ii) as a result of the Company or
any person contesting the validity or enforceability of this Agreement or any
provision thereof as aforesaid.


 


7.                                       Merger or Consolidation.  In
the event that the Company shall be a constituent corporation in a
consolidation, merger or other reorganization, the Company, if it shall not be
the surviving, resulting or other corporation therein, shall require as a
condition thereto the surviving, resulting or acquiring corporation to agree to
indemnify the Indemnitee to the full extent provided in Sections 2 and 3
hereof.  Whether or not the Company is
the resulting, surviving or acquiring corporation in any such transaction, the
Indemnitee shall also stand in the same position under this Agreement with
respect to the resulting, surviving or acquiring corporation as he would have
with respect to the Company if its separate existence had continued.


 


8.                                       Nonexclusivity and Severability.  (a)  The
right to indemnification provided by this Agreement shall not be exclusive of
any other rights to which the Indemnitee may be entitled under the Charter,
By-Laws, the DGCL, any other statute, insurance policy, agreement, vote of
stockholders or directors or otherwise, both as to actions in his official
capacity and as to actions in another capacity while holding such office, and
shall continue after the Indemnitee has ceased to be a director [and/or officer].


 


(b)                                 If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement
and the application of such provision to other persons or circumstances shall
not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent (and only to the extent)
necessary to make it enforceable, valid and legal.


 


9.                                       Governing Law.  This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware.


 


10.                                 Modification; Survival.  This
Agreement contains the entire agreement of the parties relating to the subject
matter hereof.  This Agreement may be
modified only by an instrument in writing signed by both parties hereto.  The provisions of this Agreement shall
survive the death, disability, or incapacity of the Indemnitee or the
termination of the Indemnitee’s service as a director [and/or
officer] of the Company and shall inure to the
benefit of the Indemnitee’s executors and administrators.


 


11.                                 Certain Terms.  For
purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; and references to “serving at the request of the
Company” shall include any service as a director, officer, employee or agent of
the Company that imposes duties on, or involves services by, the Indemnitee
with respect to an employee benefit plan, its


 


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participants or beneficiaries; references to
the masculine shall include the feminine; references to the singular shall
include the plural and vice  versa; and if the Indemnitee acted in
good faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan he shall be deemed
to have acted in a manner “not opposed to the best interests of the Company” as
referenced to herein.


 


12.                                 Binding Effect; Successors and Assigns.  This
Agreement shall bind and inure to the benefit of the successors, heirs,
personal and legal representatives and assigns of the parties hereto, including
any direct or indirect successor by purchase, merger, consolidation or
otherwise to all, substantially all or a substantial part of the business or
assets of the Company.  The Company shall
require and cause any successor (whether direct or indirect, and whether by
purchase, merger, consolidation or otherwise) to all, substantially all or a
substantial part of the business or assets of the Company, by written agreement
in form and substance satisfactory to the Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform if no such succession had taken place.


 


13.                                 Consent to Jurisdiction.  The
Company and the Indemnitee each hereby irrevocably consent to the non-exclusive
jurisdiction of the Court of Chancery of Delaware for any purpose in connection
with any action or proceeding that arises out of or relates to this Agreement.


 


14.                                 Counterparts.  This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.


 


IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the date first above
written.


 


 


	
   

  	
  OMTOOL, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Name]

  	
   

  
	
   

  	
  Director [and/or
  Officer]

  
					



 


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Exhibit 1


 


INDEMNIFICATION STATEMENT


 


	
  STATE OF

  	
   

  	
  )

  	
   

  
	
   

  	
  )

  	
  SS

  
	
  COUNTY OF

  	
   

  	
  )

  	
   

  
					



 


 


I, [Name], being first duly sworn, do depose and say as follows:


 


1.                                       This Indemnification Statement is submitted
pursuant to the Indemnification Agreement dated as of July       ,
2005 between Omtool, Ltd., a Delaware corporation (the “Company”), and the
undersigned.


 


2.                                       I am requesting indemnification against
costs, expenses (including attorneys’ fees), judgments, liabilities and/or
amounts paid in settlement, all of which (collectively, “Liabilities”) have
been or will be incurred by me in connection with an actual or threatened
action, suit or proceeding to which I am a party or am threatened to be made a
party.


 


3.                                       With respect to all matters related to any
such action, suit or proceeding, I am entitled to be indemnified as herein
contemplated pursuant to the aforesaid Indemnity Agreement.


 


4.                                       Without limiting any other rights that I have
or may have, I am requesting indemnification against Liabilities that 


	
  have or may arise out of 

  	
   

  
	
   

  
	
   

  	
  .

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


 


Subscribed and sworn to
before me, a Notary Public in and for said County and State, this          
day of                       ,
20     .


 


	
   

  	
   

  	
   

  



 


[Seal]


 


My commission expires the          
day of                       ,
20     .


 





















 


Exhibit 2


 


UNDERTAKING


 


	
  STATE OF

  	
   

  	
  )

  	
   

  
	
   

  	
  )

  	
  SS

  
	
  COUNTY OF

  	
   

  	
  )

  	
   

  
					



 


I, [Name], being first duly sworn, do depose and say as follows:


 


1.                                       This Undertaking is submitted pursuant to the
Indemnification Agreement dated as of July       ,
2005 between Omtool, Ltd., a Delaware corporation (the “Company”), and the
undersigned.


 


2.                                       I am requesting advancement of certain costs
and expenses that I have incurred or will incur in defending an actual or
pending civil or criminal action, suit, proceeding or claim.


 


3.                                       I hereby undertake to repay this advancement
of costs and expenses if it shall ultimately be determined that I am not
entitled to be indemnified by the Company under the aforesaid Indemnity
Agreement or otherwise.


 


4.                                       The costs and expenses for which advancement
is requested are, in general, all expenses related to ______________


	
   

  
	
   

  	
  .

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


 


Subscribed and sworn to
before me, a Notary Public in and for said County and State, this          
day of                       ,
20     .


 


 


	
   

  	
   

  	
   

  



 


 


[Seal]


 


My commission expires the          
day of                       ,
20     .