INDEMNIFICATION AGREEMENT
Exhibit 10.17
This Agreement is made as of the ___day of ____________200_, by and between SoundBite
Communications, Inc., a Delaware corporation (the “Corporation), and ____________(the
“Indemnitee”), a director or officer of the Corporation.
(a) The term “Change in Control” shall mean:
(i) the acquisition by an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange
Act”)) (a “Person”) of beneficial ownership of any capital stock of the Corporation
if, after such acquisition, such Person beneficially owns (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) 50% or more of either (x) the
then-outstanding shares of common stock of the Corporation (the “Outstanding
Corporation Common Stock”) or (y) the combined voting power of the then-outstanding
securities of the Corporation entitled to vote generally in the election of
directors (the “Outstanding Corporation Voting Securities”); provided, however,
that for purposes of this subsection (i), the following acquisitions shall not
constitute a Change in Control: (1) any acquisition directly from the Corporation
(excluding an acquisition pursuant to the exercise, conversion or exchange of any
security exercisable for, convertible into or exchangeable for common stock or
voting securities of the Corporation, unless the Person exercising, converting or
exchanging such security acquired such security directly from the Corporation or an
underwriter or agent of the Corporation), (2) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Corporation or any
corporation controlled by the Company, or (3) any acquisition by any corporation
pursuant to a Business Combination (as defined below) which complies with clauses
(x) and (y) of subsection (iii) of this definition; or
(ii) such time as the Continuing Directors (as defined below) do not constitute a
majority of the Board of Directors of the Corporation (or, if applicable, the Board
of Directors of a successor corporation to the Corporation), where the term
“Continuing Director” means at any date a member of the Board of Directors of the
Corporation (x) who was a member of the Board of Directors of the Corporation on
the date of this Agreement or (y) who was nominated or elected subsequent to such
date by at least a majority of the directors who were Continuing Directors at the
time of such nomination or election or whose election to the Board of Directors of
the Corporation was recommended or endorsed by at least a majority of the directors
who were Continuing Directors at the time of such nomination or election; provided,
however, that there shall be excluded from this clause (y) any individual whose
initial assumption of office occurred as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents, by or on behalf of a
person other than the Board of Directors of the Corporation; or
(iii) the consummation of a merger, consolidation, reorganization, recapitalization
or share exchange involving the Corporation or a sale or other disposition of all
or substantially all of the assets of the Corporation (a “Business Combination”),
unless, immediately following such Business Combination, each of the following two
conditions is satisfied: (x) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Corporation Common Stock
and Outstanding Corporation Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the election of
directors, respectively, of the resulting or acquiring corporation in such Business
Combination (which shall include, without limitation, a corporation which as a
result of such transaction owns the Corporation or substantially all of the
Corporation’s assets either directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to herein as the “Acquiring
Corporation”) in substantially the same proportions as their ownership of the
Outstanding Corporation Common Stock and Outstanding Corporation Voting Securities,
respectively, immediately prior to such Business Combination and (y) no Person
(excluding any employee benefit plan (or related trust) maintained or sponsored by
the Corporation or by the Acquiring Corporation) beneficially owns, directly or
indirectly, 35% or more of the then-outstanding shares of common stock of the
Acquiring Corporation, or of the combined voting power of the then-outstanding
securities of such corporation entitled to vote generally in the election of
directors (except to the extent that such ownership existed prior to the Business
Combination); or
(iv) the liquidation or dissolution of the Corporation.
(b) The term “Proceeding” shall include any threatened, pending or completed action,
suit, arbitration, alternative dispute resolution proceeding, administrative hearing or other
proceeding, whether brought by or in the right of the Corporation or otherwise and whether of
a civil, criminal, administrative or investigative nature, and any appeal therefrom.
(c) The term “Corporate Status” shall mean the status of a person who is or was, or has
agreed to become, a director or officer of the Corporation, or is or was serving, or has
agreed to serve, at the request of the Corporation, as a director, officer, fiduciary,
partner, trustee, member,
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employee or agent of, or in a similar capacity with, another corporation, partnership,
joint venture, trust, limited liability company or other enterprise.
(d) The term “Expenses” shall include, without limitation, attorneys’ fees, retainers,
court costs, transcript costs, fees and expenses of experts, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service fees and other
disbursements or expenses of the types customarily incurred in connection with investigations,
judicial or administrative proceedings or appeals, but shall not include the amount of
judgments, fines or penalties against Indemnitee or amounts paid in settlement in connection
with such matters.
(e) The term “Special Independent Counsel” shall mean a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither currently is, nor in the
past five years has been, retained to represent: (i) the Corporation or the Indemnitee in any
matter material to either such party or (ii) any other party to the Proceeding giving rise to
a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Special
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 Corporation or the Indemnitee in an action to determine the Indemnitee’s rights under this
Agreement.”
(f) References to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan;
references to “serving at the request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation that imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner
such person reasonably believed to be in the interests of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best
interests of the Corporation” as referred to in this Agreement.
(a) Indemnification in Third-Party Proceedings. The Corporation shall indemnify
the Indemnitee in accordance with the provisions of this Section 3(a) if the Indemnitee was or
is a party to or threatened to be made a party to or otherwise involved in any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a judgment in its
favor or a Proceeding referred to in Section 6 below) by reason of the Indemnitee’s Corporate
Status or by reason of any action alleged to have been taken or omitted in connection
therewith, against all Expenses, judgments, fines, penalties and amounts paid in settlement
actually and reasonably incurred by or on behalf of the Indemnitee in connection with such
Proceeding, if the Indemnitee acted in good faith and in a manner that the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Corporation and,
with respect to any criminal Proceeding, had no reasonable cause to believe that his or her
conduct was unlawful.
(b) Indemnification in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify the Indemnitee in accordance with the provisions of this Section
3(b) if the Indemnitee was or is a party to or threatened to be made a party to or otherwise
involved in any Proceeding by or in the right of the Corporation to procure a judgment in its
favor by reason of the Indemnitee’s Corporate Status or by reason of any action alleged to
have been taken or omitted in
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connection therewith, against all Expenses and, to the extent permitted by law, amounts
paid in settlement actually and reasonably incurred by or on behalf of the Indemnitee in
connection with such Proceeding, if the Indemnitee acted in good faith and in a manner that
the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the
Corporation, except that, if applicable law so provides, no indemnification shall be made
under this Section 3(b) in respect of any claim, issue, or matter as to which the Indemnitee
shall have been adjudged to be liable to the Corporation, unless, and only to the extent, that
the Court of Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but in view of all
the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity
for such Expenses as the Court of Chancery or such other court shall deem proper.
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Proceeding, but the fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by the Corporation, (ii)
counsel to the Indemnitee shall have reasonably concluded that there may be a conflict of interest
or position on any significant issue between the Corporation and the Indemnitee in the conduct of
the defense of such Proceeding or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such Proceeding, in each of which cases the fees and expenses of counsel for
the Indemnitee shall be at the expense of the Corporation, except as otherwise expressly provided
by this Agreement, and provided that Indemnitee’s counsel shall cooperate reasonably with the
Corporation’s counsel to minimize the cost of defending claims against the Corporation and the
Indemnitee. The Corporation shall not be entitled, without the consent of the Indemnitee, to
assume the defense of any claim brought by or in the right of the Corporation or as to which
counsel for the Indemnitee shall have reasonably made the conclusion provided for in clause (ii)
above. The Corporation shall not be required to indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of any Proceeding effected without its written consent. The
Corporation shall not settle any Proceeding in any manner that would impose any penalty or
limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Corporation nor
the Indemnitee will unreasonably withhold or delay their consent to any proposed settlement.
(a) In order to obtain indemnification or advancement of Expenses pursuant to this
Agreement, the Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to the Indemnitee and is
reasonably necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification or advancement of Expenses. Any such indemnification or advancement of
Expenses shall be made promptly, and in any event within (i) in the case of indemnification
under Sections 4, 5 or 9(d) or advancement of Expenses, 30 days after receipt by the
Corporation of the written request of the Indemnitee, or (ii) in the case of all other
indemnification, 60 days after receipt by the Corporation of the written request of the
Indemnitee, unless with respect to requests under this clause (ii) the Corporation determines,
by clear and convincing evidence, within the 60-day period referred to above that the
Indemnitee did not meet the applicable standard of conduct. Such determination, and any
determination that advanced Expenses must be repaid to the Corporation, shall be made as
follows:
(x) if a Change in Control shall have occurred, by Special Independent
Counsel in a written opinion to the Board of Directors of the Corporation, a
copy of which shall be delivered to the Indemnitee (unless the Indemnitee
shall request that such determination be made by the Board of Directors of
the Corporation, in
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which case the determination shall be made in the manner provided below in
clauses (y)(1) or (y)(2)).
(y) in all other cases, in the discretion of the Board of Directors of
the Corporation, (1) by a majority vote of the directors of the Corporation
consisting of persons who are not at that time parties to the Proceeding
(“disinterested directors”), whether or not a quorum, (2) by a committee of
disinterested directors designated by a majority vote of disinterested
directors, whether or not a quorum, (3) if there are no disinterested
directors, or if the disinterested directors so direct, by independent legal
counsel in a written opinion to the Board, or (4) by the stockholders of the
Corporation.
(b) In the event that a Change in Control shall have occurred and the determination of
entitlement to indemnification is to be made by Special Independent Counsel, the Special
Independent Counsel shall be selected as provided in this Section 9(b). The Special
Independent Counsel shall be selected by the Indemnitee, unless the Indemnitee shall request
that such selection be made by the Board of Directors of the Corporation. The party making
the determination shall give written notice to the other party advising it of the identity of
the Special Independent Counsel so selected. The party receiving such notice may, within
seven days after such written notice of selection shall have been given, deliver to the other
party a written objection to such selection. Such objection may be asserted only on the
ground that the Special Independent Counsel so selected does not meet the requirements of
“Special Independent Counsel” as defined in Section 2, 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 Special Independent Counsel. If a written objection is made,
the Special Independent Counsel so selected may not serve as Special Independent Counsel
unless and until a court has determined that such objection is without merit. If, within 20
days after submission by the Indemnitee of a written request for indemnification, no Special
Independent Counsel shall have been selected or if selected, shall have been objected to, in
accordance with this paragraph either the Corporation or the Indemnitee may petition the Court
of Chancery of the State of Delaware or other court of competent jurisdiction for resolution
of any objection that shall have been made by the Corporation or the Indemnitee to the other’s
selection of Special Independent Counsel and/or for the appointment as Special Independent
Counsel of a person selected by the court or by such other person as the court shall
designate, and the person with respect to whom an objection is favorably resolved or the
person so appointed shall act as Special Independent Counsel. The Corporation shall pay the
reasonable and necessary fees and expenses of Special Independent Counsel incurred in
connection with its acting in such capacity. The Corporation shall pay any and all reasonable
and necessary fees and expenses incident to the procedures of this paragraph, regardless of
the manner in which such Special Independent Counsel was selected or appointed. Upon the due
commencement of any judicial proceeding pursuant to Section 10 of this Agreement, any Special
Independent Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct then prevailing).
(c) The termination of any Proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner that the Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation, and, with respect
to any criminal Proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
(d) The Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to the Indemnitee’s entitlement to indemnification, including
providing
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to such person, persons or entity upon reasonable advance request any documentation or
information that is not privileged or otherwise protected from disclosure and that is
reasonably available to the Indemnitee and reasonably necessary to such determination. Any
Expenses actually and reasonably incurred by the Indemnitee in so cooperating shall be borne
by the Corporation (irrespective of the determination as to the Indemnitee’s entitlement to
indemnification) and the Corporation hereby indemnifies the Indemnitee therefrom.
14. Indemnification Hereunder Not Exclusive. The indemnification and advancement of
Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Certification of Incorporation, the By-Laws, any other
agreement, any vote of stockholders or disinterested directors, the General Corporation Law of
Delaware, any other law (common or statutory), or otherwise, both as to action in the Indemnitee’s
official capacity and as to action in another capacity while holding office for the Corporation.
Nothing contained in this Agreement shall be deemed to prohibit the Corporation from purchasing and
maintaining insurance, at its expense, to protect itself or the Indemnitee against any expense,
liability or loss incurred by it or the Indemnitee in any such capacity, or arising out of the
Indemnitee’s status as such, whether or not the Indemnitee would be indemnified against such
expense, liability or loss under this Agreement; provided that the Corporation
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shall not be liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that the Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or otherwise.
20. Modification and Waiver. This Agreement may be amended from time to time to
reflect changes in Delaware law or for other reasons. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof nor shall any such waiver constitute a continuing waiver.
(a) if to the Indemnitee, to:
[ ]
(b) if to the Corporation, to:
SoundBite Communications, Inc.
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn.: Chief Financial Officer
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn.: Chief Financial Officer
or to such other address as may have been furnished to the Indemnitee by the Corporation or to the
Corporation by the Indemnitee, as the case may be.
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22. Applicable Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware. The Indemnitee may elect to have the right
to indemnification or reimbursement or advancement of Expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in
effect at the time such indemnification or reimbursement or advancement of Expenses is sought.
Such election shall be made, by a notice in writing to the Corporation, at the time indemnification
or reimbursement or advancement of Expenses is sought; provided, however, that if
no such notice is given, and if the General Corporation Law of Delaware is amended, or other
Delaware law is enacted, to permit further indemnification of the directors and officers, then the
Indemnitee shall be indemnified to the fullest extent permitted under the General Corporation Law,
as so amended, or by such other Delaware law, as so enacted.
24. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supercedes all prior agreements,
whether oral or written, by any officer, employee or representative of any party hereto in respect
of the subject matter contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and cancelled. For avoidance of doubt,
the parties confirm that the foregoing does not apply to or limit the Indemnitee’s rights under
Delaware law or the Corporation’s Certificate of Incorporation or By-Laws.
| Attest: | By: | |||||
By:
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Name: | |||||
Name: |
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| Title: | ||||||
| INDEMNITEE: | ||||||
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