FORM OF INDEMNIFICATION AGREEMENT (for Directors and Officers)
Exhibit 10.5
This Indemnification Agreement (“Agreement”) is made as of ________________ by and
between Eloqua, Inc., a Delaware corporation (the “Company”), and ____________
(“Indemnitee”).
RECITALS
WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company;
WHEREAS, in order to induce Indemnitee to provide or continue to provide services to the
Company, the Company wishes to provide for the indemnification of, and advancement of expenses to,
Indemnitee to the maximum extent permitted by law;
WHEREAS, the Certificate of Incorporation (the “Charter”) and the Bylaws (the
“Bylaws”) of the Company require indemnification of the officers and directors of the
Company, and Indemnitee may also be entitled to indemnification pursuant to the General Corporation
Law of the State of Delaware (the “DGCL”);
WHEREAS, the Bylaws and the DGCL expressly provide that the indemnification provisions set
forth therein are not exclusive, and thereby contemplate that contracts may be entered into between
the Company and members of the board of directors, officers and other persons with respect to
indemnification;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the
increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is
detrimental to the best interests of the Company’s stockholders;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law, regardless of any amendment or revocation of the Charter or the
Bylaws, so that they will serve or continue to serve the Company free from undue concern that they
will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided
in the Charter, the Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and
[WHEREAS, Indemnitee has certain rights to indemnification and/or insurance provided by [Name
of Fund/Sponsor] which Indemnitee and [Name of Fund/Sponsor] intend to be secondary to the primary
obligation of the Company to indemnify Indemnitee as provided in this Agreement, with the Company’s
acknowledgment and agreement to the foregoing being a material condition to Indemnitee’s
willingness to serve or continue to serve on the Board.]1
1 This recital
should be included if the Indemnitee is affiliated with a fund or other entity that provides indemnification to the Indemnitee.
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NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the Company. Indemnitee agrees to serve as a director or
officer of the Company. Indemnitee may at any time and for any reason resign from such position
(subject to any other contractual obligation or any obligation imposed by law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in such position.
This Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee.
Section 2. Definitions.
As used in this Agreement:
(a) A “Change in Control” shall mean shall be deemed to have occurred upon the
occurrence of any one of the following events:
(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 the Company, any of its
subsidiaries, or any trustee, fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Company or any of its subsidiaries), together with all
“affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the
Act) of such person, shall become the “beneficial owner” (as such term is defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the Company representing 50 percent
or more of the combined voting power of the Company’s then outstanding securities having the right
to vote in an election of the Board (“Voting Securities”) (in such case other than as a
result of an acquisition of securities directly from the Company);
(ii) the consummation of (i) any consolidation or merger of the Company where the stockholders
of the Company, immediately prior to the consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, shares representing in the aggregate more than 50 percent of the voting
shares of the Company issuing cash or securities in the consolidation or merger (or of its ultimate
parent corporation, if any), or (ii) any sale or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as a single plan) of all or substantially all of
the assets of the Company; or
(iii) any transaction or series of related transactions that result in a liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary.
(b) “Corporate Status” describes the status of a person as a current or former
director or officer of the Company or current or former director, manager, partner, officer,
employee, agent or trustee of any other Enterprise which such person is or was serving at the
request of the Company.
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(c) “Enforcement Expenses” shall include all reasonable attorneys’ fees, court costs,
transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other out-of-pocket disbursements or
expenses of the types customarily incurred in connection with an action to enforce indemnification
or advancement rights, or an appeal from such action. Expenses, however, shall not include fees,
salaries, wages or benefits owed to Indemnitee.
(d) “Enterprise” shall mean any corporation (other than the Company), partnership,
joint venture, trust, employee benefit plan, limited liability company, or other legal entity of
which Indemnitee is or was serving at the request of the Company as a director, manager, partner,
officer, employee, agent or trustee.
(e) “Expenses” shall include all reasonable attorneys’ fees, court costs, transcript
costs, fees of experts, travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other out-of-pocket disbursements or expenses of
the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or
defend, investigating, being or preparing to be a witness in, or otherwise participating in, a
Proceeding or an appeal resulting from a Proceeding. Expenses, however, shall not include amounts
paid in settlement by Indemnitee, the amount of judgments or fines against Indemnitee or fees,
salaries, wages or benefits owed to Indemnitee.
(f) “Independent Counsel” means a law firm, or a partner (or, if applicable, member or
shareholder) of such a law firm, that is experienced in matters of Delaware corporation law and
neither presently is, nor in the past five (5) years has been, retained to represent: (i) the
Company, any subsidiary of the Company, any Enterprise or Indemnitee in any matter material to any
such party; or (ii) any other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any
person who, under the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and
expenses of the Independent Counsel referred to above and to fully indemnify such counsel against
any and all expenses, claims, liabilities and damages arising out of or relating to this Agreement
or its engagement pursuant hereto.
(g) The term “Proceeding” shall include any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether brought in the right of
the Company or otherwise and whether of a civil, criminal, administrative, regulatory or
investigative nature, and whether formal or informal, in which Indemnitee was, is or will be
involved as a party or otherwise by reason of the fact that Indemnitee is or was a director or
officer of the Company or is or was serving at the request of the Company as a director, manager,
partner, officer, employee, agent or trustee of any Enterprise or by reason of any action taken by
Indemnitee or of any action taken on his or her part while acting as a director or officer of the
Company or while serving at the request of the Company as a director, manager, partner, officer,
employee, agent or trustee of any Enterprise, in each case whether or not serving in such capacity
at the time any liability or expense is incurred for which indemnification,
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reimbursement or
advancement of expenses can be provided under this Agreement; provided, however,
that the term “Proceeding” shall not include any action, suit or arbitration, or part thereof,
initiated by Indemnitee to enforce Indemnitee’s rights under this Agreement as provided for in
Section 12(a) of this Agreement.
Section 3. Indemnity in Third-Party Proceedings. The Company shall indemnify
Indemnitee to the extent set forth in this Section 3 if Indemnitee is, or is threatened to be made,
a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified against all Expenses, judgments, fines, penalties, excise taxes, and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best interests of the
Company and, in the case of a criminal proceeding, had no reasonable cause to believe that his or
her conduct was unlawful.
Section 4. Indemnity in Proceedings by or in the Right of the Company. The Company
shall indemnify Indemnitee to the extent set forth in this Section 4 if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company. No indemnification for Expenses shall be made under this Section 4
in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by
a court to be liable to the Company, unless and only to the extent that the Delaware Court of
Chancery (the “Delaware Court”) shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification for such expenses as the Delaware Court shall deem
proper.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement and except as provided in Section 7, to the
extent that Indemnitee is a party to or a participant in any Proceeding and is successful in such
Proceeding or in defense of any claim, issue or matter therein, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or her in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is successful as to one
or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with each successfully resolved claim, issue or matter. For purposes of this
Section and without limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section 6. Reimbursement for Expenses of a Witness or in Response to a Subpoena.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee, by reason
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of
his or her Corporate Status, (i) is a witness in any Proceeding to which Indemnitee is not a party
and is not threatened to be made a party or (ii) receives a subpoena with respect to any Proceeding
to which Indemnitee is not a party and is not threatened to be made a party, the Company shall
reimburse Indemnitee for all Expenses actually and reasonably incurred by him or her or on his or
her behalf in connection therewith.
Section 7. Exclusions. Notwithstanding any provision in this Agreement to the
contrary, the Company shall not be obligated under this Agreement:
(a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is
provided hereunder) if and to the extent that Indemnitee has otherwise actually received such
amounts under any insurance policy, contract, agreement or otherwise[; provided that the
foregoing shall not affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section
13(c)]2;
(b) to indemnify for an accounting of profits made from the purchase and sale (or sale and
purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common
law, or from the purchase or sale by Indemnitee of such securities in violation of Section 306 of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“SOX”);
(c) to indemnify for any reimbursement of, or payment to, the Company by Indemnitee of any
bonus or other incentive-based or equity-based compensation or of any profits realized by
Indemnitee from the sale of securities of the Company pursuant to Section 304 of SOX or any formal
policy of the Company adopted by the Board (or a committee thereof), or any other remuneration paid
to Indemnitee if it shall be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(d) to indemnify with respect to any Proceeding, or part thereof, brought by Indemnitee
against the Company, any legal entity which it controls, any director or officer thereof or any
third party, unless (i) the Board has consented to the initiation of such Proceeding or part
thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the
powers vested in the Company under applicable law; provided, however, that this
Section 7(d) shall not apply to (A) counterclaims or affirmative defenses asserted by Indemnitee in
an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or
advancement from the Company under this Agreement or under any directors’ and officers’ liability
insurance policies maintained by the Company in the suit for which indemnification or advancement
is being sought as described in Section 12; or
(e) to provide any indemnification or advancement of expenses that is prohibited by applicable
law (as such law exists at the time payment would otherwise be required pursuant to this
Agreement).
Section 8. Advancement of Expenses. Subject to Section 9(b), the Company shall
advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection
with any Proceeding, and such advancement shall be made within thirty (30) days after the receipt
by the Company of a statement or statements requesting such advances (which shall
2 Included if the Indemnitee is affiliated with a fund
or other entity that provides indemnification to the Indemnitee.
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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 need not be included with the
invoice) from time to time, whether prior to or after final disposition of any Proceeding.
Advances shall be unsecured and interest free. Advances shall be made without regard to
Indemnitee’s ability to repay the expenses and without regard to Indemnitee’s ultimate entitlement
to indemnification under the other provisions of this Agreement. Indemnitee shall qualify for
advances upon the execution and delivery to the Company of this Agreement which shall constitute an
undertaking providing that Indemnitee undertakes to the fullest extent required by law to repay the
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 paragraph shall in all events continue until final
disposition of any Proceeding, including any appeal therein. Nothing in this Section 8 shall limit
Indemnitee’s right to advancement pursuant to Section 12(e) of this Agreement.
Section 9. Procedure for Notification and Defense of Claim.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request therefor specifying the basis for the claim, the amounts for which Indemnitee is
seeking payment under this Agreement, and all documentation related thereto as reasonably requested
by the Company.
(b) In the event that the Company shall be obligated hereunder to provide indemnification for
or make any advancement of Expenses with respect to any Proceeding, the Company shall be entitled
to assume the defense of such Proceeding, or any claim, issue or matter therein, with counsel
approved by Indemnitee (which approval shall not be unreasonably withheld or delayed) upon the
delivery to Indemnitee of written notice of the Company’s election to do so. After delivery of
such notice, approval of such counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses
of separate counsel subsequently employed by or on behalf of Indemnitee with respect to the same
Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in
any such Proceeding at Indemnitee’s expense and (ii) if (A) the employment of separate counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and Indemnitee in the
conduct of such defense, or (C) the Company shall not continue to retain such counsel to defend
such Proceeding, then the reasonable fees and expenses actually and reasonably incurred by
Indemnitee with respect to his or her separate counsel shall be Expenses hereunder.
(c) In the event that the Company does not assume the defense in a Proceeding pursuant to
paragraph (b) above, then the Company will be entitled to participate in the Proceeding at its own
expense.
(d) The Company shall not be liable to indemnify Indemnitee under this Agreement for any
amounts paid in settlement of any Proceeding effected without its prior written consent (which
consent shall not be unreasonably withheld or delayed). The Company
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shall not, without the prior
written consent of Indemnitee (which consent shall not be unreasonably withheld or delayed), enter
into any settlement which (i) includes an admission of fault of Indemnitee, any non-monetary remedy
imposed on Indemnitee or any monetary damages for which Indemnitee is not wholly and actually
indemnified hereunder or (ii) with respect to any Proceeding with respect to which Indemnitee may
be or is made a party or may be otherwise entitled to seek indemnification hereunder, does not
include the full release of Indemnitee from all liability in respect of such Proceeding.
Section 10. Procedure Upon Application for Indemnification.
(a) Upon written request by Indemnitee for indemnification pursuant to Section 9(a), a
determination, if such determination is required by applicable law, with respect to Indemnitee’s
entitlement to indemnification hereunder shall be made in the specific case by one of the following
methods: (x) if a Change in Control shall have occurred, by Independent Counsel in a written
opinion to the Board; or (y) if a Change in Control shall not have occurred: (i) by a majority vote
of the disinterested directors, even though less than a quorum; (ii) by a committee of
disinterested directors designated by a majority vote of the disinterested directors, even though
less than a quorum; (iii) if there are no disinterested directors or if the disinterested directors
so direct, by Independent Counsel in a written opinion to the Board; or (iv) if so directed by the
Board, by the stockholders of the Company. For purposes hereof, disinterested directors are those
members of the Board who are not parties to the action, suit or proceeding in respect of which
indemnification is sought. In the case that such determination is made by Independent Counsel, a
copy of Independent Counsel’s written opinion shall be delivered to Indemnitee and, if it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within thirty (30) days after such determination. Indemnitee shall cooperate with the Independent
Counsel or the Company, as applicable, in making such determination with respect to Indemnitee’s
entitlement to indemnification, including providing to such counsel or the Company, upon reasonable
advance request, any documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any out-of-pocket costs or expenses (including reasonable attorneys’ fees and
disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the
Independent Counsel or the Company shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to
hold Indemnitee harmless therefrom.
(b) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 10(a), the Independent Counsel shall be selected by the Board if a
Change in Control shall not have occurred or, if a Change in Control shall have occurred, by
Indemnitee. Indemnitee or the Company, as the case may be, may, within ten (10) days after written
notice of such selection, deliver to the Company or Indemnitee, as the case may be, a written
objection to such selection; provided, however, that such objection may be asserted
only on the ground that the Independent Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as
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Independent Counsel unless and
until such objection is withdrawn or the Delaware Court has determined that such objection is
without merit. If, within twenty (20) days after the later of (i) submission by Indemnitee of a
written request for indemnification pursuant to Section 9(a), and (ii) the final disposition of the
Proceeding, including any appeal therein, no Independent Counsel shall have been selected without
objection, either Indemnitee or the Company may petition the Delaware Court for resolution of any
objection which shall have been made by Indemnitee or the Company to the selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by
such other person as the court shall designate. The person with respect to whom all objections
are so resolved or the person so appointed shall act as Independent Counsel under Section 10(a)
hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section
12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of professional conduct then
prevailing).
Section 11. Presumptions and Effect of Certain Proceedings.
(a) To the extent permitted by applicable law, in making a determination with respect to
entitlement to indemnification hereunder, it shall be presumed that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making of any determination contrary to that
presumption. Neither (i) the failure of the Company or of Independent Counsel to have made a
determination prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor (ii) an actual determination by the Company or by Independent Counsel that
Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of guilty, nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(c) The knowledge and/or actions, or failure to act, of any director, manager, partner,
officer, employee, agent or trustee of the Company, any subsidiary of the Company, or any
Enterprise shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
| Section 12. Remedies of Indemnitee. |
(a) Subject to Section 12(f), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification under
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this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made pursuant to Section
10(a) of this Agreement within sixty (60) days after receipt by the Company of the request for
indemnification for which a determination is to be made other than by Independent Counsel, (iv)
payment of indemnification or reimbursement of expenses is not made pursuant to Section 5 or 6 or
the last sentence of Section 10(a) of this Agreement within thirty (30) days after receipt by the
Company of a written request therefor (which shall include any invoices received by Indemnitee 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 need not be included with the invoice) or (v) payment of indemnification pursuant to Section 3
or 4 of this Agreement is not made within thirty (30) days after a determination has been made that
Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication by the
Delaware Court of his or her entitlement to such indemnification or advancement. Alternatively,
Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association.
Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within
180 days following the date on which Indemnitee first has the right to commence such proceeding
pursuant to this Section 12(a); provided, however, that the foregoing time
limitation shall not apply in respect of a proceeding brought by Indemnitee to enforce his or her
rights under Section 5 of this Agreement. The Company shall not oppose Indemnitee’s right to seek
any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 10(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 12, the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement, as the case may be.
(c) If a determination shall have been made pursuant to Section 10(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
(e) The Company shall indemnify Indemnitee to the fullest extent permitted by law against any
and all Enforcement Expenses and, if requested by Indemnitee, shall (within thirty (30) days after
receipt by the Company of a written request therefor) advance, to the extent
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not prohibited by law,
such Enforcement Expenses to Indemnitee, which are incurred by Indemnitee in connection with any
action brought by Indemnitee for indemnification or advancement from the Company under this
Agreement or under any directors’ and officers’ liability insurance policies maintained by the
Company in the suit for which indemnification or advancement is being sought. Such written request
for advancement shall include invoices received by Indemnitee in connection with such Enforcement
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 need not be included with the invoice.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding, including any appeal therein.
Section 13. Non-exclusivity; Survival of Rights; Insurance; [Primacy of
Indemnification;] Subrogation.
(a) The rights of indemnification and to receive advancement as provided by this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in
respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to
such amendment, alteration or repeal. To the extent that a change in Delaware law, whether by
statute or judicial decision, permits greater indemnification or advancement than would be afforded
currently under the Charter, Bylaws and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, managers, partners, officers, employees, agents or trustees of
the Company or of any other Enterprise, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage available for any such
director, manager, partner, officer, employee, agent or trustee under such policy or policies. If,
at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has
director and officer liability insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policies.
(c) [The Company hereby acknowledges that Indemnitee has certain rights to indemnification,
advancement of expenses and/or insurance provided by [Name of
10
Fund/Sponsor] and certain of
[its][their] affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees
(i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and
any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the
same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required
to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full
amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent
legally permitted and as required by the terms of this Agreement and the Charter and/or Bylaws (or
any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee
may have against the Fund Indemnitors, and (iii) that it irrevocably waives, relinquishes and
releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for
contribution, subrogation or any other recovery of any kind in respect thereof. The Company
further agrees that no advancement or payment by the Fund Indemnitors on behalf of Indemnitee with
respect to any claim for which Indemnitee has sought indemnification from the Company shall affect
the foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to
the extent of such advancement or payment to all of the rights of recovery of Indemnitee against
the Company. The Company and Indemnitee agree that the Fund Indemnitors are express third party
beneficiaries of the terms of this Section 13(c).]3
(d) [Except as provided in paragraph (c) above,]4 [I/i]n the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee [(other than against the Fund Indemnitors)], who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
(e) [Except as provided in paragraph (c) above,]5 [T/t]he Company’s obligation to provide
indemnification or advancement hereunder to Indemnitee who is or was serving at the request of the
Company as a director, manager, partner, officer, employee, agent or trustee of any other
Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or
advancement from such other Enterprise.
Section 14. Duration of Agreement. This Agreement shall continue until and terminate
upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as
a director or officer of the Company or (b) one (1) year after the final termination of any
Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights of
indemnification or advancement hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 12 of this Agreement relating thereto. This Agreement shall be binding upon the Company
and its successors and assigns and shall inure to the benefit of Indemnitee and his or her heirs,
executors and administrators. The Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a
substantial part, of the business and/or assets of the Company, by written agreement in form and
substance satisfactory to 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.
3 Included if the Indemnitee is affiliated with a fund
or other entity that provides indemnification to the Indemnitee.
4 Included if the Indemnitee is affiliated with a fund
or other entity that provides indemnification to the Indemnitee.
5 Included if the Indemnitee is affiliated with a fund
or other entity that provides indemnification to the Indemnitee.
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Section 15. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including, without limitation,
each portion of any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by
law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform
to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to
the fullest extent possible, the provisions of this Agreement (including, without limitation, each
portion of any section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.
| Section 16. Enforcement. |
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve or continue to
serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as a director or officer of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided,
however, that this Agreement is a supplement to and in furtherance of the Charter, the
Bylaws and applicable law, and shall not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder.
Section 17. Modification and Waiver. No supplement, modification or amendment, or
waiver of any provision, of this Agreement shall be binding unless executed in writing by the
parties thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a
continuing waiver. No supplement, modification or amendment of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any
action taken or omitted by such Indemnitee prior to such supplement, modification or amendment.
Section 18. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in
writing 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,
reimbursement or advancement as provided hereunder. The failure of Indemnitee to so notify the
Company shall not relieve the Company of any obligation which it may have to Indemnitee under this
Agreement or otherwise.
Section 19. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered by
hand and receipted for by the party to whom said notice or other communication shall have
12
been
directed, (ii) mailed by certified or registered mail with postage prepaid, on the third business
day after the date on which it is so mailed, (iii) mailed by reputable overnight courier and
receipted for by the party to whom said notice or other communication shall have been directed or
(iv) sent by facsimile transmission, with receipt of oral confirmation that such transmission has
been received:
(a) If to Indemnitee, at such address as Indemnitee shall provide to the Company.
(b) If to the Company to:
or to any other address as may have been furnished to Indemnitee by the Company.
Section 20. Contribution. To the fullest extent permissible under applicable law, if
the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to
be paid in settlement and/or for Expenses, in connection with any Proceeding in such proportion as
is deemed fair and reasonable in light of all of the circumstances in order to reflect (i) the
relative benefits received by the Company and Indemnitee in connection with the event(s) and/or
transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and
its directors, officers, employees and agents) and Indemnitee in connection with such event(s)
and/or transactions.
Section 21. Internal Revenue Code Section 409A. The Company intends for this
Agreement to comply with the Indemnification exception under Section 1.409A-1(b)(10) of the
regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”),
which provides that indemnification of, or the purchase of an insurance policy providing for
payments of, all or part of the expenses incurred or damages paid or payable by Indemnitee with
respect to a bona fide claim against Indemnitee or the Company do not provide for a deferral of
compensation, subject to Section 409A of the Code, where such claim is based on actions or failures
to act by Indemnitee in his capacity as a service provider of the Company. The parties intend that
this Agreement be interpreted and construed with such intent.
Section 22. Applicable Law and Consent to Jurisdiction. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought only in the
Delaware Court, and not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware
Court for purposes of any action or proceeding arising out of or in connection with
13
this Agreement,
(iii) consent to service of process at the address set forth in Section 19 of this Agreement with
the same legal force and validity as if served upon such party personally within the State of
Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the
Delaware Court, and (v) waive, and agree not to plead or to make, any claim that any such action or
proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
Section 23. Headings. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
Section 24. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.
[Remainder of Page Intentionally Left Blank]
14
IN WITNESS WHEREOF, the parties have caused
this Agreement to be signed as of the day and year first above written.
| ELOQUA, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [Name of Indemnitee] | ||||
15