EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of
__________, _____, between Sybari Software, Inc., a Delaware corporation (the
"Company," which for the purposes of this Agreement shall include any
Subsidiary, as defined herein), and the person named as Indemnitee on the
signature page hereto (the "Indemnitee").
WHEREAS, the Company desires to attract and retain highly qualified
individuals, such as the Indemnitee, to serve the Company;
WHEREAS, the Company desires to retain the Indemnitee to provide
services to it;
WHEREAS, the Company and the Indemnitee recognize the significant risk
of personal liability for Agents (as defined herein) which arises from corporate
litigation practices;
WHEREAS, the Company and the Indemnitee further recognize that
liability insurance for the Company's Agents, when available, is often available
only at significant expense and provides for coverage of limited scope, and that
competent and experienced persons are often unable or unwilling to serve as
Agents unless they are protected by comprehensive liability insurance or
indemnification;
WHEREAS, the Indemnitee is willing to serve the Company, subject to
certain conditions, including execution and delivery of this Agreement by the
Company, in order to furnish the Indemnitee the indemnity provided for herein;
WHEREAS, the Company's amended and restated Certificate of
Incorporation, as in effect on the date hereof (the "Charter"), and its amended
and restated By-Laws, as in effect on the date hereof (the "By-laws") do not
prohibit or restrict contracts between the Company and its Agents with respect
to indemnification of such Agents; and
WHEREAS, in view of such considerations, the Company desires to
provide, independent from the indemnification to which the Indemnitee is
otherwise entitled by law and under the Charter and By-Laws, indemnification and
the Expense Advances (as defined herein) to the Indemnitee, all as set forth in
this Agreement and to the maximum extent permitted by law.
NOW, THEREFORE, to induce the Indemnitee to serve the Company and in
consideration of the mutual covenants and agreements set forth in this
Agreement, as well as other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Indemnitee
hereby agree as follows:
1. Definitions. For the purposes of this Agreement,
(a) Agent. "Agent" means any person who (i) is or was a
director, officer, employee, trustee or other agent or fiduciary of the Company;
(ii) is or was serving at the request, for the convenience, or to represent the
interests of the Company or a Company employee benefit plan, its participants or
its beneficiaries, as a director, officer, employee, trustee
or other agent or fiduciary of another corporation, limited liability company,
partnership, joint venture, trust or other entity (including, without
limitation, any employee benefit plan); or (iii) was a director, officer,
employee, trustee or other agent or fiduciary of a corporation, limited
liability company, partnership, joint venture, trust or other entity which was a
predecessor of the Company, or was a director, officer, employee, trustee or
other agent or fiduciary of any other such entity at the request of such
predecessor; it being agreed and understood that the use of the term "Agent"
shall not be construed to alter the legal relationship between an Agent, as
defined herein, and the Company.
(b) Change in Control. "Change in Control" means that, after
the date of this Agreement, any of the following shall occur: (i) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Act")), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company acting in such
capacity or a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of stock of
the Company, becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Act), directly or indirectly, of securities of the Company representing more
than 50% of the total voting power represented by the Company's then outstanding
voting securities; (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of the
Company (the "Board") cease to be a majority thereof (otherwise than through
death, disability or retirement in accordance with the Company's normal
retirement policies); (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, limited liability
company, partnership, joint venture, trust or other entity, other than a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 50% of the total voting power represented by the
voting securities of the Company or such surviving entity outstanding
immediately after such a merger or consolidation; or (iv) the stockholders of
the Company approve a plan of complete or substantial liquidation of the Company
or an agreement for the sale or disposition by the Company of (in one
transaction or a series of related transactions) all or substantially all of the
Company's assets.
(c) Claim. "Claim" means any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution mechanism, or any
hearing, inquiry or investigation, whether conducted by the Company or any other
party, which the Indemnitee believes in good faith might lead to the institution
of any such action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation, whether civil, criminal, administrative,
investigative or any other type whatsoever, with respect to an Indemnifiable
Event.
(d) Company. "Company" means Sybari Software, Inc. and any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger to which Sybari Software, Inc. (or any of its wholly
owned Subsidiaries) is a party which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
employees, trustees or other agents or fiduciaries, so that if the Indemnitee is
or was a director, officer, employee, trustee or other agent or fiduciary of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, trustee or other agent
or fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, the Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting or
surviving corporation as the Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(e) Expense Advance. "Expense Advance" means a payment to the
Indemnitee of Expenses in advance of the settlement of or final judgment on any
Claim.
(f) Expenses. "Expenses" means all costs and liabilities of
any type or nature whatsoever (including, without limitation, all attorneys'
fees and related disbursements and other out-of-pocket costs, judgments, fines,
penalties and amounts paid in settlements) paid or incurred by or imposed upon
the Indemnitee in the investigation, defense, settlement or appeal of, or
otherwise in connection with, a Claim (including, without limitation, being a
witness) or in establishing or enforcing a right to indemnification under this
Agreement, the Charter or By-Laws, Section 145 of the General Corporation Law of
the State of Delaware (the "DGCL") or otherwise, and any federal, state, local
or foreign taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement.
(g) Indemnifiable Event. "Indemnifiable Event" means any event
or occurrence related to the fact that the Indemnitee is or was a director,
officer, employee, trustee or other agent or fiduciary of the Company, or any
Subsidiary, or is or was serving at the request of the Company as a director,
officer, employee, trustee or other agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action or inaction on the part of the Indemnitee while serving in such capacity.
(h) Independent Legal Counsel. "Independent Legal Counsel"
means an attorney or firm of attorneys, selected in accordance with the
provisions of Section 8(a) herein, whether or not in the event of a Change in
Control.
(i) Potential Change in Control. "Potential Change in Control"
means that after the date of this Agreement any of the following shall occur:
(i) any person or entity publicly announces an intention to take or to consider
taking actions which, if consummated, might result in a Change in Control or
(ii) the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
(j) Reviewing Party. "Reviewing Party" means the person or
body appointed by the Board pursuant to Section 11(d) herein and in accordance
with applicable law, which person or body shall be either members of the Board
who are not interested in the particular Claim or Independent Legal Counsel;
provided, however, that if there has been a Change in Control or Potential
Change in Control, the Reviewing Party shall be Independent Legal Counsel.
(k) Subsidiary. "Subsidiary" means any corporation, limited
liability company, partnership, joint venture, trust or other entity of which
more than 50% of the outstanding voting securities are owned, directly or
indirectly, by the Company, by the Company and one or more other Subsidiaries,
or by one or more other Subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve or continue to
serve the Company as an Agent, at its will (or under separate agreement if such
agreement exists), in the
capacity in which the Indemnitee serves or has been requested to serve by the
Company, so long as the Indemnitee is duly appointed or elected and qualified in
accordance with the Charter and By-Laws, or until such time as the Indemnitee
tenders the Indemnitee's resignation in writing, provided, however, that nothing
contained in this Agreement is intended to create any right to continued service
by the Indemnitee.
3. Basic Indemnification. Subject to the terms of this Agreement:
(a) Claims Other than Derivative Claims in Favor of the
Company. As to all Claims other than derivative Claims in favor of the Company,
the Company shall indemnify the Indemnitee against all Expenses to the fullest
extent permitted by applicable law.
(b) Derivative Claims for Judgment in Favor of the Company. As
to all derivative Claims in favor of the Company, the Company shall indemnify
the Indemnitee against all Expenses to the fullest extent permitted by
applicable law; provided that, no indemnification shall be made as to such
derivative Claim if the Indemnitee has been finally adjudged to be liable to the
Company in connection with such Claim or any claim, issue or matter therein,
unless and only to the extent that the Court of Chancery of Delaware or the
court in which the Claim was brought shall determine that, despite the
adjudication of liability but in view of all the facts and circumstances, the
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses
which the Court of Chancery or such other court shall deem proper.
(c) Standard of Conduct Required for Entitlement to Basic
Indemnification. The Indemnitee shall be entitled to indemnification under
Sections 3(a) and (b) herein if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company; provided that, in the case of any criminal action or
proceeding, the Indemnitee had no reasonable cause to believe the Indemnitee's
conduct was unlawful and, in the case of Section 3(b) hereof, subject further to
the exclusion set forth therein. The termination of any Claim by judgment,
order, settlement (whether with or without court approval), conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that (i) the Indemnitee did not act in good faith and in a manner
which the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, (ii) the Indemnitee had reasonable cause to believe
that the Indemnitee's conduct was unlawful or (iii) a court determined that
indemnification is not permitted by applicable law or pursuant to Section 3(b)
herein. In addition, neither the failure of any Reviewing Party to have made a
determination as to whether the Indemnitee has met the standard of conduct set
forth in this Section 3(c) or had any particular belief, nor an actual
determination by any Reviewing Party that the Indemnitee has not met such
standard of conduct or did not have such belief, shall be a defense to the
Indemnitee's right to indemnification or create a presumption that the
Indemnitee did not meet any particular standard of conduct or did not have any
particular belief. If the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interest of
the participants and beneficiaries of an employee benefit plan, the Indemnitee
shall be deemed to have acted in a manner in or not opposed to the best
interests of the Company.
(d) Success on the Merits. To the extent that the Indemnitee
has been successful on the merits or otherwise (including, without limitation,
dismissal or withdrawal of a Claim
with or without prejudice) in defense of any Claim or in defense of any claim,
issue or matter therein, the Company shall indemnify the Indemnitee against
Expenses in connection with such Claim to the fullest extent permitted by
applicable law.
4. Additional Indemnification Rights. The Company further agrees to
indemnify the Indemnitee in connection with any Claim and to make Expense
Advances to the Indemnitee, in each case to the fullest extent as may be
provided for under the Charter, By-Laws or applicable law, vote of either the
Company's stockholders or its disinterested directors, notwithstanding that any
such indemnification or Expense Advance is not specifically authorized by the
other provisions of this Agreement. It is the intent of the parties hereto that
(i) in the event of any change, after the date of this Agreement, in any
applicable law, statute or rule which expands the right of a Delaware
corporation to indemnify or make Expense Advances to an Agent to a greater
degree than would be afforded currently under the Charter, By-Laws, pursuant to
a vote of either the Company's stockholders or its disinterested directors, and
this Agreement, the Indemnitee shall enjoy by virtue of this Agreement, the
greater benefits afforded by such change; (ii) in the event of any change, after
the date of this Agreement, in any applicable law, statute or rule which narrows
the right of a Delaware corporation to indemnify or make Expense Advances to an
Agent to a greater degree than would be afforded currently under the Charter,
By-Laws or applicable law, pursuant to a vote of either the Company's
stockholders or its disinterested directors and this Agreement, such change, to
the extent not otherwise required by such law, statute or rule to be applied to
this Agreement, shall have no effect on this Agreement or the parties' rights
and obligations hereunder, except as set forth in Section 5(a) herein; and (iii)
this Agreement be interpreted and enforced so as to provide indemnification and
Expense Advances under such circumstances as set forth in this Agreement, if
any, in which the providing of indemnification or Expense Advances would
otherwise be discretionary. Notwithstanding the foregoing, no Expense Advance
under this Agreement shall be made in violation of Section 402 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
5. Exclusions. Any other provision of this Agreement to the contrary
notwithstanding, the Company shall not be obligated to indemnify or provide
Expenses Advances to the Indemnitee:
(a) to the extent any such indemnification or Expense Advance
would be prohibited under applicable law, statute or rule; or
(b) to the extent that the Indemnitee actually received from
any other source (including an insurer) amounts otherwise payable hereunder;
(c) to the extent that Claims are initiated or brought
voluntarily by the Indemnitee and not by way of defense, counterclaim or
crossclaim, except (i) with respect to actions or proceedings brought to
establish or enforce a right to indemnification under this Agreement or any
other agreement or insurance policy or under the Charter or By-laws now or
hereafter in effect relating to Claims for Indemnifiable Events, (ii) in
specific cases, if the Board has approved the initiation or bringing of such
Claim or (iii) as otherwise required under Section 145 of the DGCL, regardless
of whether the Indemnitee ultimately is determined to be entitled to such
indemnification, Expense Advances, or insurance recovery, as the case may be;
(d) to the extent that any Expenses are incurred by the
Indemnitee with respect to any action instituted (i) by the Indemnitee to
enforce or interpret this Agreement, if a court having jurisdiction over such
action makes a final judicial determination (as to which all rights of appeal
therefrom have been exhausted or have lapsed) that each of the material
assertions made by the Indemnitee as a basis for such action was not made in
good faith or was frivolous or (ii) by or in the name of the Company to enforce
or interpret this Agreement, if a court having jurisdiction over such action
makes a final judicial determination (as to which all rights of appeal therefrom
have been exhausted or have lapsed) that each of the material defenses asserted
by the Indemnitee in such action was made in bad faith or was frivolous;
(e) for Expenses and the payment of profits arising from the
purchase and sale by the Indemnitee of securities in violation of Section 16(b)
of the Act or any similar successor statute;
provided that, notwithstanding the foregoing provisions of this Section 5, the
Indemnitee shall be entitled under Section 6 herein to receive Expense Advances
with respect to any Claim unless and until a court having jurisdiction over such
Claim shall have made a final determination (as to which all rights of appeal
therefrom shall have been exhausted or lapsed) that the Indemnitee is prohibited
from receiving indemnification with respect thereto.
6. Expense Advances. Within ten (10) business days of receipt by the
Company of an undertaking (the "Undertaking"), substantially in the form
attached hereto as Exhibit 1, by or on behalf of the Indemnitee to repay the
amount of any Expense Advance with respect to any Claim if and to the extent
that it shall ultimately be determined that the Indemnitee is not entitled to
indemnification for such amount, the Company shall make Expense Advances to the
Indemnitee to the fullest extent permitted by applicable law. The Undertaking
shall be unsecured and shall bear no interest.
7. Non-Exclusivity; Continuation. The indemnification and Expense
Advances pursuant to this Agreement shall not be deemed exclusive of any other
rights to which the Indemnitee may be entitled under the Charter or By-Laws,
pursuant to any vote of the Company's stockholders or its disinterested
directors, or under any other agreement, any law or otherwise, both as to
actions in the Indemnitee's official capacity and as to actions in another
capacity while an Agent. All agreements and obligations of the Company contained
in this Agreement shall continue as to the Indemnitee while the Indemnitee is an
Agent and after the Indemnitee has ceased to be an Agent.
8. Change in Control; Potential Change in Control.
(a) The Company agrees that if there is a Change in Control,
then with respect to all matters concerning the rights of the Indemnitee to
indemnification and Expense Advances under this Agreement, the Charter or
By-Laws, pursuant to any vote of the Company's stockholders or its disinterested
directors, under any other agreement, any law or otherwise, the Company shall
seek legal advice only from Independent Legal Counsel. For all purposes of this
Agreement, such Independent Legal Counsel shall be such person or firm selected
by the Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld) which has not otherwise performed services for the
Company or the Indemnitee within the prior three years (other than in connection
with such matters). The Independent Legal Counsel shall,
among other things, render its written opinion to the Company and the Indemnitee
as to whether and to what extent the Indemnitee is permitted to be indemnified
and receive Expense Advances. The Company agrees to pay the reasonable fees and
expenses of the Independent Legal Counsel relating to its engagement pursuant to
this Agreement.
(b) In the event of a Potential Change in Control, the Company
may, in its sole discretion, create a trust for the benefit of the Indemnitee
and from time to time fund such trust in such amounts as the Board may determine
to satisfy Expenses reasonably anticipated or proposed to be incurred or paid
from time to time in connection with any Claims. The terms of any trust
established pursuant hereto shall provide that upon a Change in Control (i) the
trust shall not be revoked or the principal thereof invaded, without the written
consent of the Indemnitee, (ii) the trustee shall advance (solely to the extent
of trust assets), within two business days of a request by the Indemnitee, all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to reimburse the
trust under the circumstances under which the Indemnitee would be required to
reimburse the Company under Section 6 herein), (iii) the trustee shall promptly
pay (solely to the extent of trust assets) to the Indemnitee all amounts for
which the Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise and (iv) all unexpended funds in such trust shall revert
to the Company upon a final determination by the Reviewing Party or a court of
competent jurisdiction, as the case may be, that the Indemnitee has been fully
indemnified or is not entitled to be indemnified under the terms of this
Agreement as to all Claims. The trustee shall be a person or entity reasonably
satisfactory to the Indemnitee. Nothing in this Section 8(b) shall relieve the
Company of any of its obligations under any other provision of this Agreement.
9. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement or otherwise to indemnification or Expense Advances
by the Company for a portion, but not all, of any Expenses incurred by the
Indemnitee, the Company shall indemnify or provide Expense Advances to the
Indemnitee, as the case may, be for the portion thereof to which the Indemnitee
is entitled.
10. Contribution. If indemnification is unavailable by reason of a
court decision described in Section 11(e) herein based on grounds other than
that set forth in Section 5(a) herein, then in respect of any Claim in which the
Company is jointly liable with the Indemnitee (or would be if joined in such
Claim), the Company shall contribute to the amount of the Indemnitee's Expenses
in such proportion as is appropriate to reflect (i) the relative benefits
received by the Company on the one hand, and by the Indemnitee on the other
hand, from the transaction from which such Claim arose, and (ii) the relative
fault of the Company on the one hand, and of the Indemnitee on the other hand,
in connection with the events which resulted in such Expenses, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand, and of the Indemnitee on the other hand, shall be determined by
reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the circumstances
resulting in such Expenses. The Company agrees that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation or any other method of allocation which does not take account of
the foregoing equitable considerations.
11. Procedures.
(a) Timing of Payments. All payments of Expenses (including,
without limitation, Expense Advances) by the Company to the Indemnitee pursuant
to this Agreement shall be made to the fullest extent permitted by law as soon
as practicable after written demand by the Indemnitee therefor is presented to
the Company, but in no event later than thirty (30) business days after such
written demand by the Indemnitee is presented to the Company, except in the case
of Expense Advances, which shall be made no later than ten (10) business days
after such written demand by the Indemnitee is presented to the Company.
(b) Notice. Promptly after receipt by the Indemnitee of notice
of the commencement, or the threat of commencement, of any Claim, the Indemnitee
shall, if the Indemnitee believes that indemnification or Expense Advances with
respect thereto may be sought from the Company by the Indemnitee pursuant to
this Agreement, notify the Company of the commencement or threat of commencement
thereof, which notice may, but need not, be substantially in the form attached
hereto as Exhibit 2. Any failure of the Indemnitee to provide such notice to the
Company shall not, however, relieve the Company of any liability which it may
have to the Indemnitee unless and to the extent such failure materially
prejudices the interests of the Company. If, at the time it receives such notice
from the Indemnitee, the Company has directors' and officers' liability
insurance in effect, the Company shall give prompt notice of the commencement,
or the threat of commencement, of such Claim to the insurers in accordance with
the procedures set forth in the respective applicable insurance policies. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of
such Claim in accordance with the terms of such policies; provided that no such
payments by such insurers shall relieve the Company of any liability or
obligation which it may have to the Indemnitee, except as and to the extent
expressly provided under this Agreement.
(c) Assumption of Defense. If the Company shall be obligated
to pay Expenses arising in connection with any Claim against the Indemnitee, the
Indemnitee may in its sole discretion (but shall not be obligated to) allow the
Company to assume the defense of such Claim, with counsel approved by the
Indemnitee (whose approval shall not be unreasonably withheld), upon the
delivery to the Company of notice of Indemnitee's election to so tender the
defense of such Claim. After delivery of such notice, approval of such counsel
by the Indemnitee and the retention of such counsel by the Company, the Company
will not be liable to the Indemnitee under this Agreement for any fees and
expenses of counsel subsequently incurred by the Indemnitee with respect to the
same Claim; provided that in any such event (i) the Indemnitee shall have the
right to employ the Indemnitee's own counsel in connection with any Claim at the
Indemnitee's expense; (ii) if (A) the employment of counsel by the Indemnitee
shall have been previously authorized by the Company, (B) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of such defense, or (C) the Company
shall not, in fact, have employed counsel to assume the defense of such Claim,
in each such case the fees and expenses of the Indemnitee's counsel shall be
paid by the Company, it being agreed and understood that the Company shall only
be required to pay the fees and expenses of one separate counsel (plus, if
necessary, one local counsel); and (iii) the Company shall not settle any Claim
in any manner which would
impose any penalty, limitation or unindemnified Expense on the Indemnitee
without the Indemnitee's consent.
(d) Determination of Entitlement to Indemnification. In the
event of any demand by the Indemnitee for indemnification under this Agreement
or otherwise, the Board shall promptly designate a Reviewing Party. The
Reviewing Party shall determine that indemnification is proper if it finds that
the Indemnitee has met the required standard of conduct set forth in Section
3(c) herein and that indemnification is not prohibited pursuant to Section 5
herein. If the Reviewing Party is more than one member of the Board, it shall
act by a majority vote. If the Reviewing Party is Independent Legal Counsel, the
determination of the Reviewing Party shall be rendered in the form of a written
legal opinion. Subject to Sections 11(e) and 12 herein, any indemnification
under Sections 3 and 4 herein (unless ordered by a court or pursuant to Section
3(d) herein) shall be made by the Company only as authorized in the specific
case and upon the determination of the Reviewing Party that the Indemnitee is
entitled to indemnification in the circumstances because the Indemnitee has met
the standard of conduct set forth in Section 3(c) herein and that
indemnification is not prohibited pursuant to Section 5 herein. The Indemnitee's
demand for indemnification shall create a presumption that the Indemnitee is
entitled to indemnification and the Reviewing Party shall have 30 days from the
date of receipt of the Indemnitee's demand in which to render in writing and
deliver to the Indemnitee its determination. If the Reviewing Party makes no
timely determination, the Reviewing Party shall be deemed to have determined
that the Indemnitee is entitled to the indemnification demanded. If the
Reviewing Party determines, which determination shall be based upon clear and
convincing evidence sufficient to rebut the aforesaid presumption of
entitlement, that the Indemnitee is not entitled to indemnification, in whole or
in part, in the circumstances because the Indemnitee has not met the standard of
conduct set forth in Section 3(c) herein or because the indemnification is
prohibited pursuant to Section 5 herein, the Indemnitee shall (i) be entitled to
obtain a favorable determination or to appeal such negative determination in the
manner provided in Sections 11(e) and 12 herein and (ii) not be required to
reimburse the Company for any Expense Advances or Expenses theretofore paid to
or on behalf of the Indemnitee until a final determination has been made with
respect to the Indemnitee's legal entitlement to indemnification (as to which
all rights of appeal therefrom shall have been exhausted or shall have lapsed).
(e) Indemnitee's Rights on Unfavorable Determination.
Notwithstanding a determination by a Reviewing Party or any forum listed in
Section 12 herein that the Indemnitee is not entitled to indemnification with
respect to a specific Claim, or any claim, issue or matter therein, the
Indemnitee shall have the right to apply to the Court of Chancery of Delaware or
any other court of competent jurisdiction for the purpose of determining and
enforcing the Indemnitee's right to indemnification pursuant to this Agreement
or otherwise, and the Company hereby consents to service of process and agrees
to appear in any such proceeding. Such court shall find that the Indemnitee is
entitled to indemnification unless the Company shall prove by clear and
convincing evidence that (i) the Indemnitee did not meet the applicable standard
of conduct required to entitle the Indemnitee to such indemnification or that
indemnification is prohibited pursuant to Section 5 herein, and (ii) the
requirements of Section 3(d) herein have not been met.
12. Appeal of a Reviewing Party's Determination of No Right to
Indemnification.
(a) The Indemnitee shall be entitled to select from the
following alternatives a forum in which the validity of a Reviewing Party's
determination that the Indemnitee is not entitled to indemnification will be
heard, which forum shall determine that the Indemnitee is entitled to such
indemnification unless such forum determines that there is clear and convincing
evidence that (i) the Indemnitee did not meet the applicable standard of conduct
required to entitle the Indemnitee to such indemnification or that
indemnification is prohibited pursuant to Section 5 herein, and (ii) the
requirements of Section 3(d) herein have not been met:
(A) those members of the Board who are disinterested
parties with respect to the Claim, acting by a
majority vote;
(B) Independent Legal Counsel, in the form of a
written opinion; or
(C) those stockholders of the Company who are
disinterested parties with respect to the Claim,
acting by a majority vote.
(b) As soon as practicable, and in no event later than 30 days
after notice of the Indemnitee's choice of forum pursuant to Section 12(a)
herein, the Company shall, at its own expense, submit to the selected forum in
such manner as the Indemnitee or the Indemnitee's counsel may reasonably
request, the basis for the determination that the Indemnitee is not entitled to
indemnification, and the Company shall act in good faith to assure the
Indemnitee a complete opportunity to defend against and appeal such
determination.
13. 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 (acting reasonably), 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.
14. Expenses and Expense Advances to Enforce the Agreement. It is the
intent of the Company that the Indemnitee shall not be required to incur any
Expenses arising from any effort to enforce the Indemnitee's rights under this
Agreement, because incurring such Expenses 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 if the Company or any other person or
entity (other than the Court of Chancery of Delaware or any other court of
competent jurisdiction in a final determination, as which all rights of appeal
therefrom shall have been exhausted or shall have lapsed) takes any action to
declare this Agreement or any provision hereof void or unenforceable, or
institutes any action, suit or proceeding designed (or having the effect of
being designed) to deny or recover from the Indemnitee the benefits intended to
be provided to the
Indemnitee hereunder, the Company hereby irrevocably authorizes the Indemnitee
from time to time to retain counsel of the Indemnitee's choice to represent the
Indemnitee in connection with the enforcement of the Indemnitee's rights under
this Agreement. If the Indemnitee is successful in whole or in part in enforcing
the Indemnitee's rights under this Agreement, the Company shall pay and be
solely responsible for any and all costs and liabilities (including, without
limitation, all reasonable attorneys' fees and expenses incurred by the
Indemnitee in connection therewith.
15. Insurance; Other Indemnification.
(a) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, or agents of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise for which such
person serves at the request of the Company, Indemnitee shall be an insured
under such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies.
(b) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable (or for which advancement is
provided hereunder) hereunder if and to the extent that Indemnitee has otherwise
actually received such payment under any insurance policy, the Charter, the
By-laws, contract, agreement or otherwise.
(c) The Company's obligation to indemnify or make an Expense
Advance hereunder to Indemnitee who is or was serving at the request of the
Company as a director, officer, employee or agent of any other corporation,
limited liability company, partnership, joint venture, trust, employee benefit
plan or other enterprise shall be reduced by any amount Indemnitee has actually
received as indemnification or advancement of expenses from such other
corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise.
16. Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) when
delivered by hand or (ii) if mailed by certified or registered mail with postage
prepaid, on the third business day after the mailing date. Addresses for notice
to either party shall be as shown on the signature page of this Agreement or as
subsequently modified by the addressee by such written notice.
17. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
(i) the validity, legality and enforceability of the remaining provisions of the
Agreement (including, without limitation, all portions of any paragraph of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and (iii) to
the fullest extent possible, any
such provision held to be invalid, illegal or unenforceable shall be reformed so
as to be valid, legal and enforceable and to give effect to the intent
manifested by such provision.
18. Modifications, Amendments, and Waivers. No modification or
amendment of this Agreement, or waiver of any of the provisions hereof, shall be
binding unless executed in writing by both of the parties hereto, in the case of
a modification or amendment, or by the waiving party, in the case of a waiver.
No waiver of any such provision shall be deemed to constitute a waiver of such
provision on any other occasion or a waiver of any other provision.
19. Consent to Jurisdiction. The Company and the Indemnitee each hereby
irrevocably consent to the non-exclusive jurisdiction of any New York State
Court or any United States federal court sitting in the Borough of Manhattan in
the City of New York for any purpose in connection with any action or proceeding
which arises out of or relates to this Agreement.
20. Governing Law. This Agreement shall be construed in accordance
with, and this Agreement and all matters arising out of or relating in any way
whatsoever to this Agreement (whether in contract, tort or otherwise) shall be
governed by, the law of the State of New York.
21. Subrogation. In the event of payment by the Company 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 agrees, at the sole expense of
the Company, to execute all papers reasonably required and to do all other acts
and things that may be reasonably necessary on the part of the Indemnitee to
secure such rights, including, without limitation, the execution of documents
necessary to enable the Company to bring suit to enforce such rights.
22. Integration and Entire Agreement. This Agreement sets forth the
entire understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof; provided that, in the event
the Indemnitee has entered into a separate agreement with respect to employment
with the Company, the rights granted hereunder shall be in addition to the
rights granted under any such employment agreement and in the event of any
inconsistency between the terms of this Agreement and the terms of any such
employment agreement with respect to the subject matter hereof, the terms hereof
shall control.
23. No Construction as Employment Agreement. In the case of any
Indemnitee who is an employee of the Company, nothing contained in this
Agreement shall be construed as giving the Indemnitee any right to be retained
in the employ of the Company or affiliated entities.
24. 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 executed this Agreement as
of the date first above written.
SYBARI SOFTWARE, INC. INDEMNITEE
By:_______________________________ _______________________________________
Name: Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Exhibit 1
UNDERTAKING
1. This Undertaking is submitted pursuant to the Indemnification
Agreement dated as of_______________ between Sybari Software, Inc., a Delaware
corporation (the "Company"), and the undersigned (the "Agreement"). Capitalized
terms used but not defined herein shall have the respective meanings set forth
in the Agreement.
2. I am requesting certain Expense Advances in connection with a Claim.
3. I hereby undertake to repay such Expense Advances if it shall
ultimately be determined that I am not entitled to be indemnified by the Company
therefor under the Agreement or otherwise.
4. The Expense Advances are, in general, all related to (attach
additional pages if necessary):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Signed:__________________________________
Dated:___________________________________
Exhibit 2
NOTICE AND DEMAND FOR INDEMNIFICATION
1. This Notice and Demand for Indemnification is submitted pursuant to
the Indemnification Agreement dated as of ___________________ between Sybari
Software, Inc., a Delaware corporation (the "Company"), and the undersigned (the
"Agreement"). Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Agreement.
2. I am notifying the Company as to the following Claim (attach
additional pages if necessary):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3. I am requesting indemnification and Expense Advances with respect to
such Claim to the full extent provided for in the Agreement or to which I may
otherwise be entitled.
Signed:__________________________________
Dated:___________________________________