IRONPLANET, INC. INDEMNIFICATION AGREEMENT
Exhibit 10.3
IRONPLANET, INC.
This
Indemnification Agreement (this “Agreement”) is made as of , by and
between IronPlanet, Inc., a Delaware corporation (the “Company”), and
(“Indemnitee”).
RECITALS
The Company and Indemnitee recognize the increasing difficulty in obtaining liability
insurance for directors, officers and key employees, the significant increases in the cost of such
insurance and the general reductions in the coverage of such insurance. The Company and Indemnitee
further recognize the substantial increase in corporate litigation in general, subjecting
directors, officers and key employees to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited. Indemnitee does not
regard the current protection available as adequate under the present circumstances, and Indemnitee
may not be willing to continue to serve in Indemnitee’s current capacity with the Company without
additional protection. The Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, and to indemnify its directors, officers and key employees so as
to provide them with the maximum protection permitted by law.
AGREEMENT
In consideration of the mutual promises made in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company
and Indemnitee hereby agree as follows:
1. Indemnification.
(a) Third-Party Proceedings. To the fullest extent permitted by applicable law, the
Company shall indemnify Indemnitee, if Indemnitee was, is or is threatened to be made, a party to
or a participant (as a witness or otherwise) in any Proceeding (other than a Proceeding by or in
the right of the Company to procure a judgment in the Company’s favor), against all Expenses,
judgments, fines and amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by
Indemnitee in connection with such Proceeding if Indemnitee acted in good faith and in a manner
Indemnitee 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 Indemnitee’s conduct was
unlawful.
(b) Proceedings By or in the Right of the Company. To the fullest extent permitted by
applicable law, the Company shall indemnify Indemnitee, if Indemnitee was, is or is threatened to
be made a party to or a participant (as a witness or otherwise) in any Proceeding by or in the
right of the Company to procure a judgment in the Company’s favor, against all Expenses actually
and reasonably incurred by Indemnitee in connection with such Proceeding if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by
court order or judgment to be liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such Proceeding is or was pending shall determine upon application
that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
(c) Success on the Merits. To the fullest extent permitted by applicable law and to
the extent that Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding referred to in Section 1(a) or Section 1(b) or the defense of any claim, issue or matter
therein, in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by Indemnitee in connection therewith. Without limiting the generality of
the foregoing, if Indemnitee is successful on the merits or otherwise as to one or more but less
than all claims, issues or matters in a Proceeding, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by Indemnitee in connection with such successfully
resolved claims, issues or matters to the fullest extent permitted by applicable law. If any
Proceeding is disposed of on the merits or otherwise (including a disposition without prejudice),
without (1) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was
liable to the Company, (iii) a plea of guilty by Indemnitee, (iv) an adjudication that Indemnitee
did not act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, and (v) with respect to any criminal Proceeding, an adjudication
that Indemnitee had reasonable cause to believe Indemnitee’s conduct was unlawful, Indemnitee shall
be considered for the purposes hereof to have been wholly successful with respect thereto.
(d) Witness Expenses. To the fullest extent permitted by applicable law and to the
extent that Indemnitee is a witness or otherwise asked to participate in any Proceeding to which
Indemnitee is not a party, the Company shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by Indemnitee in connection with such Proceeding.
2. Indemnification Procedure.
(a) Advancement of Expenses. To the fullest extent permitted by applicable law, the
Company shall advance all Expenses actually and reasonably incurred by Indemnitee in connection
with a Proceeding within thirty (30) days after receipt by the Company of a statement requesting
such advances from time to time, whether prior to or after final disposition of any Proceeding.
Such advances shall be unsecured and interest free and 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 be entitled to
continue to receive advancement of Expenses pursuant to this Section 2(a) unless and until the
matter of Indemnitee’s entitlement to indemnification hereunder has been finally adjudicated by
court order or judgment from which no further right of appeal exists. Indemnitee hereby undertakes
to repay such amounts advanced only if, and to the extent that, it ultimately is determined that
Indemnitee is not entitled to be indemnified by the Company under the other provisions of this
Agreement. Indemnitee shall qualify for advances upon the execution and delivery of this
Agreement, which shall constitute the requisite undertaking with respect to
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repayment of advances made hereunder and no other form of undertaking shall be required to
qualify for advances made hereunder other than the execution of this Agreement.
(b) Notice and Cooperation by Indemnitee. Indemnitee shall promptly 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 for which indemnification will
or could be sought under this Agreement. Such notice to the Company shall include a description of
the nature of, and facts underlying, the Proceeding, shall be directed to the Chief Executive
Officer of the Company and shall be given in accordance with the provisions of Section 13(d) below.
In addition, Indemnitee shall give the Company such additional information and cooperation as the
Company may reasonably request. Indemnitee’s failure to so notify, provide information and
otherwise cooperate with the Company shall not relieve the Company of any obligation which it may
have to Indemnitee under this Agreement, except to the extent that the Company is adversely
affected by such failure.
(c) Determination of Entitlement. Notwithstanding any other provision in this
Agreement, no determination as to entitlement to indemnification under this Agreement shall be
required to be made prior to the final disposition of the Proceeding. Subject to the foregoing,
promptly after receipt of a statement requesting payment with respect to the indemnification rights
set forth in Section 1, to the extent required by applicable law, the Company shall take the steps
necessary to authorize such payment in the manner set forth in Section 145 of the General
Corporation Law of Delaware. If a claim under this Agreement, under any statute, or under any
provision of the Company’s Certificate of Incorporation or Bylaws providing for indemnification or
advancement of Expenses, is not paid in full by the Company within thirty (30) days after a written
request for payment thereof has first been received by the Company, Indemnitee may, but need not,
at any time thereafter bring an action against the Company in the Delaware Court of Chancery to
recover the unpaid amount of the claim and, subject to Section 12, Indemnitee shall also be
entitled to be paid for all Expenses actually and reasonably incurred by Indemnitee in connection
with bringing such action. It shall be a defense to any such action (other than an action brought
to enforce a claim for advancement of Expenses under Section 2(a)) that Indemnitee has not met the
standards of conduct which make it permissible under applicable law for the Company to indemnify
Indemnitee for the amount claimed. In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such determination shall presume
that Indemnitee is entitled to indemnification under this Agreement and the Company shall have the
burden of proof to overcome that presumption with clear and convincing evidence to the contrary.
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 Indemnitee did
not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, or, in the case of a criminal Proceeding, that Indemnitee had
reasonable cause to believe that Indemnitee’s conduct was unlawful. In addition, it is the
parties’ intention that if the Company contests Indemnitee’s right to indemnification, the question
of Indemnitee’s right to indemnification shall be for the court to decide, and neither the failure
of the Company (including its Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by applicable law, nor an actual determination by the
Company (including
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its Board of Directors, any committee or subgroup of the Board of Directors, independent legal
counsel, or its stockholders) that Indemnitee has not met such applicable standard of conduct,
shall create a presumption that Indemnitee has or has not met the applicable standard of conduct.
If any requested determination with respect to entitlement to indemnification hereunder has not
been made within ninety (90) days after the final disposition of the Proceeding, the requisite
determination that Indemnitee’s entitlement to indemnification shall be deemed to have been made.
(d) Payment Directions. To the extent payments are required to be made hereunder, the
Company shall, in accordance with Indemnitee’s request (but without duplication), (i) pay such
Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to pay
such Expenses, or (c) reimburse Indemnitee for such Expenses.
(e) Notice to Insurers. If, at the time of the receipt of a notice of a claim
pursuant to Section 2(b) 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.
(f) Defense of Claim and Selection of Counsel. In the event the Company shall be
obligated under Section 2(a) hereof to advance Expenses with respect to any Proceeding, the
Company, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel
reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its
election so to do. 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 of counsel subsequently incurred by Indemnitee with respect to the same
Proceeding, provided that (i) Indemnitee shall have the right to employ counsel in any such
Proceeding at Indemnitee’s expense; and (ii) if (A) the employment of 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 any such
defense or (C) the Company shall not, in fact, have employed counsel to assume the defense of such
Proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the expense of the
Company. In addition, if there exists a potential, but not an actual conflict of interest between
the Company and Indemnitee, the actual and reasonable legal fees and expenses incurred by
Indemnitee for separate counsel retained by Indemnitee to monitor the Proceeding (so that such
counsel may assume Indemnitee’s defense if the conflict of interest between the Company and
Indemnitee becomes an actual conflict of interest) shall be deemed to be Expenses that are subject
to indemnification hereunder. The existence of an actual or potential conflict of interest, and
whether such conflict may be waived, shall be determined pursuant to the rules of attorney
professional conduct and applicable law. The Company shall not be required to obtain the consent
of Indemnitee for the settlement of any Proceeding the Company has undertaken to defend if the
Company assumes full and sole responsibility for each such settlement; provided, however, that the
Company shall be required to obtain Indemnitee’s prior written approval, which shall not be
unreasonably withheld, before entering into any settlement which (1) does not grant Indemnitee a
complete release of liability,
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(2) would impose any penalty or limitation on Indemnitee, or (3) would admit any liability or
misconduct by Indemnitee.
3. Additional Indemnification Rights.
(a) Scope. Notwithstanding any other provision of this Agreement, the Company hereby
agrees to indemnify Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this Agreement, the
Company’s Certificate of Incorporation, the Company’s Bylaws or by statute. 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 a member of its board of directors or an officer, such
changes shall be deemed to be within the purview of Indemnitee’s rights and the Company’s
obligations under this Agreement. In the event of any change in any applicable law, statute or
rule which narrows the right of a Delaware corporation to indemnify a member of its board of
directors or an officer, such changes, 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.
(b) Nonexclusivity. The indemnification provided by this Agreement shall not be
deemed exclusive of any rights to which Indemnitee may be entitled under the Company’s Certificate
of Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested members of
the Company’s Board of Directors, the General Corporation Law of Delaware, or otherwise, both as to
action in Indemnitee’s official capacity and as to action in another capacity while holding such
office.
(c) Interest on Unpaid Amounts. If any payment to be made by the Company to
Indemnitee hereunder is delayed by more than ninety (90) days from the date the duly prepared
request for such payment is received by the Company, interest shall be paid by the Company to
Indemnitee at the legal rate under Delaware law for amounts which the Company indemnifies or is
obligated to indemnify for the period commencing with the date on which Indemnitee actually incurs
such Expense or pays such judgment, fine or amount in settlement and ending with the date on which
such payment is made to Indemnitee by the Company.
(d) Third-Party Indemnification. The Company hereby acknowledges that Indemnitee has
or may from time to time obtain certain rights to indemnification, advancement of expenses and/or
insurance provided by one or more third parties (collectively, the “Third-Party
Indemnitors”). The Company hereby agrees that it is the indemnitor of first resort (i.e., its
obligations to Indemnitee are primary and any obligation of the Third-Party Indemnitors to advance
expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee
are secondary), and that the Company will not assert that the Indemnitee must seek expense
advancement or reimbursement, or indemnification, from any Third-Party Indemnitor before the
Company must perform its expense advancement and reimbursement, and indemnification obligations,
under this Agreement. No advancement or payment by the Third-Party Indemnitors on behalf of
Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the
Company shall affect the foregoing. The Third-Party Indemnitors shall be subrogated to the extent
of such advancement or payment to all of the rights of recovery which Indemnitee would have had
against the Company if the Third-Party
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Indemnitors had not advanced or paid any amount to or on behalf of Indemnitee. If for any
reason a court of competent jurisdiction determines that the Third-Party Indemnitors are not
entitled to the subrogation rights described in the preceding sentence, the Third-Party Indemnitors
shall have a right of contribution by the Company to the Third-Party Indemnitors with respect to
any advance or payment by the Third-Party Indemnitors to or on behalf of the Indemnitee.
4. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses, judgments, fines
or amounts paid in settlement, actually and reasonably incurred in connection with a Proceeding,
but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such Expenses, judgments, fines and amounts paid in settlement to which
Indemnitee is entitled.
5. Director and Officer Liability Insurance.
(a) D&O Policy. The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing the directors and officers of
the Company with coverage for losses from wrongful acts, or to ensure the Company’s performance of
its indemnification obligations under this Agreement. Among other considerations, the Company will
weigh the costs of obtaining such insurance coverage against the protection afforded by such
coverage. In all policies of director and officer liability insurance, Indemnitee shall be named
as an insured in such a manner as to provide Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company’s directors, if Indemnitee is a director; or
of the Company’s officers, if Indemnitee is not a director of the Company but is an officer; or of
the Company’s key employees, if Indemnitee is not an officer or director but is a key employee.
Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not reasonably available,
if the premium costs for such insurance are disproportionate to the amount of coverage provided, if
the coverage provided by such insurance is limited by exclusions so as to provide an insufficient
benefit, or if Indemnitee is covered by similar insurance maintained by a parent or subsidiary of
the Company.
(b) Tail Coverage. In the event of a Change of Control or the Company’s becoming
insolvent (including being placed into receivership or entering the federal bankruptcy process and
the like), the Company shall maintain in force any and all insurance policies then maintained by
the Company in providing insurance (directors’ and officers’ liability, fiduciary, employment
practices or otherwise) in respect of Indemnitee, for a period of six years thereafter.
6. Severability. Nothing in this Agreement is intended to require or shall be
construed as requiring the Company to do or fail to do any act in violation of applicable law. The
Company’s inability, pursuant to court order, to perform its obligations under this Agreement shall
not constitute a breach of this Agreement. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
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portion of this Agreement that shall not have been invalidated, and the balance of this
Agreement not so invalidated shall be enforceable in accordance with its terms.
7. Exclusions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to Indemnitee
with respect to Proceedings initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to Proceedings brought to establish, enforce or interpret a right to
indemnification under this Agreement or any other statute or law or otherwise as required under
Section 145 of the General Corporation Law of Delaware, but such indemnification or advancement of
Expenses may be provided by the Company in specific cases if the Board of Directors finds it to be
appropriate; provided, however, that the exclusion set forth in the first clause of this subsection
shall not be deemed to apply to any investigation initiated or brought by Indemnitee to the extent
reasonably necessary or advisable in support of Indemnitee’s defense of a Proceeding to which
Indemnitee was, is or is threatened to be made, a party;
(b) Lack of Good Faith. To indemnify Indemnitee for any Expenses incurred by
Indemnitee with respect to any Proceeding instituted by Indemnitee to establish, enforce or
interpret a right to indemnification under this Agreement or any other statute or law or otherwise
as required under Section 145 of the General Corporation Law of Delaware, if a court of competent
jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding
was not made in good faith or was frivolous;
(c) Insured Claims. To indemnify Indemnitee for Expenses to the extent such Expenses
have been paid directly to Indemnitee by an insurance carrier under an insurance policy maintained
by the Company; or
(d) Certain Exchange Act Claims. To indemnify Indemnitee in connection with any claim
made against Indemnitee for (i) 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
Exchange Act or any similar successor statute or any similar provisions of state statutory law or
common law, or (ii) any reimbursement of 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, as required in each case under the Exchange Act (including any such
reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of
the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of
profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306
of the Xxxxxxxx-Xxxxx Act); provided, however, that to the fullest extent permitted by applicable
law and to the extent Indemnitee is successful on the merits or otherwise with respect to any such
Proceeding, the Expenses actually and reasonably incurred by Indemnitee in connection with any such
Proceeding shall be deemed to be Expenses that are subject to indemnification hereunder.
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8. Contribution Claims.
(a) If the indemnification provided in Section 1 is unavailable in whole or in part and may
not be paid to Indemnitee for any reason other than those set forth in Section 7, then in respect
to any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in
such Proceeding), to the fullest extent permitted by applicable law, the Company, in lieu of
indemnifying Indemnitee, shall pay, in the first instance, the entire amount incurred by
Indemnitee, whether for Expenses, judgments, fines or amounts paid in settlement, in connection
with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company
hereby waives and relinquishes any right of contribution it may have at any time against
Indemnitee.
(b) With respect to a Proceeding brought against directors, officers, employees or agents of
the Company (other than Indemnitee), to the fullest extent permitted by applicable law, the Company
shall indemnify Indemnitee from any claims for contribution that may be brought by any such
directors, officers, employees or agents of the Company (other than Indemnitee) who may be jointly
liable with Indemnitee, to the same extent Indemnitee would have been entitled to such
indemnification under this Agreement if such Proceeding had been brought against Indemnitee.
9. No Imputation. The knowledge and/or actions, or failure to act, of any director,
officer, agent or employee of the Company or the Company itself shall not be imputed to Indemnitee
for purposes of determining any rights under this Agreement.
10. Determination of Good Faith. For purposes of any determination of good faith,
Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the
records or books of account of the Enterprise, including financial statements, or on information
supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the
advice of legal counsel for the Enterprise or the Board of Directors of the Enterprise or any
counsel selected by any committee of the Board of Directors of the Enterprise or on information or
records given or reports made to the Enterprise by an independent certified public accountant or by
an appraiser, investment banker, compensation consultant, or other expert selected with reasonable
care by the Enterprise or the Board of Directors of the Enterprise or any committee thereof. The
provisions of this Section 10 shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct.
Whether or not the foregoing provisions of this Section are satisfied, it shall in any event be
presumed that Indemnitee has at all times acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company.
11. Defined Terms and Phrases. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) “Beneficial Owner” and “Beneficial Ownership” shall have the meanings set
forth in Rule 13d-3 promulgated under the Exchange Act as in effect on the date hereof.
(b) “Change of Control” shall be deemed to occur upon the earliest of any of the
following events:
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(i) Acquisition of Stock by Third Party. Any Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or
more of the combined voting power of the Company’s then outstanding securities entitled to vote
generally in the election of directors, unless (1) the change in the relative Beneficial Ownership
of the Company’s securities by any Person results solely from a reduction in the aggregate number
of outstanding shares of securities entitled to vote generally in the election of directors, or (2)
such acquisition was approved in advance by the Continuing Directors and such acquisition would not
constitute a Change of Control under part (iii) of this definition.
(ii) Change in Board of Directors. Individuals who, as of the date of this Agreement,
constitute the Company’s Board of Directors (the “Board”), and any new director whose
election by the Board or nomination for election by the Company’s stockholders was approved by a
vote of at least two thirds of the directors then still in office who were directors on the date of
this Agreement (collectively, the “Continuing Directors”), cease for any reason to
constitute at least a majority of the members of the Board.
(iii) Corporate Transaction. The effective date of a reorganization, merger, or
consolidation of the Company (a “Business Combination”), in each case, unless, following
such Business Combination: (1) all or substantially all of the individuals and entities who were
the Beneficial Owners of securities entitled to vote generally in the election of directors
immediately prior to such Business Combination beneficially own, directly or indirectly, more than
51% of the combined voting power of the then outstanding securities of the Company entitled to vote
generally in the election of directors resulting from such Business Combination (including a
corporation which as a result of such transaction owns the Company or all or substantially all of
the Company’s assets either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination, of the securities
entitled to vote generally in the election of directors and with the power to elect at least a
majority of the Board or other governing body of the surviving entity; (2) no Person (excluding any
corporation resulting from such Business Combination) is the Beneficial Owner, directly or
indirectly, of 15% or more of the combined voting power of the then outstanding securities entitled
to vote generally in the election of directors of such corporation except to the extent that such
ownership existed prior to the Business Combination; and (3) at least a majority of the Board of
Directors of the corporation resulting from such Business Combination were Continuing Directors at
the time of the execution of the initial agreement, or of the action of the Board of Directors,
providing for such Business Combination.
(iv) Liquidation. The approval by the Company’s stockholders of a complete
liquidation of the Company or an agreement or series of agreements for the sale or disposition by
the Company of all or substantially all of the Company’s assets, other than factoring the Company’s
current receivables or escrows due (or, if such approval is not required, the decision by the Board
to proceed with such a liquidation, sale or disposition in one transaction or a series of related
transactions).
(v) Other Events. There occurs any other event of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a
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response to any similar item or any similar schedule or form) promulgated under the Exchange
Act whether or not the Company is then subject to such reporting requirement.
(c) “Company” shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that if Indemnitee is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, trustee, general partner, managing member,
fiduciary, employee or agent of any other enterprise, Indemnitee shall stand in the same position
under the provisions of this Agreement with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation if its separate existence had
continued.
(d) “Enterprise” means the Company and any other enterprise that Indemnitee was or is
serving at the request of the Company as a director, officer, partner (general, limited or
otherwise), member (managing or otherwise), trustee, fiduciary, employee or agent.
(e) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(f) “Expenses” shall include all direct and indirect costs, fees and expenses of any
type or nature whatsoever, including all attorneys’ fees and costs, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, fees of private investigators and
professional advisors, duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result
of the actual or deemed receipt of any payment under this Agreement (including taxes that may be
imposed upon the actual or deemed receipt of payments under this Agreement with respect to the
imposition of federal, state, local or foreign taxes), fax transmission charges, secretarial
services and all other disbursements, obligations or expenses in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in,
settlement or appeal of, or otherwise participating in a Proceeding. Expenses also shall include
any of the forgoing expenses incurred in connection with any appeal resulting from any Proceeding,
including the principal, premium, security for, and other costs relating to any costs bond,
supersedes bond, or other appeal bond or its equivalent. Expenses also shall include any interest,
assessment or other charges imposed thereon and costs incurred in preparing statements in support
of payment requests hereunder. Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee.
(g) “Person” shall have the meaning as set forth in Section 13(d) and 14(d) of the
Exchange Act as in effect on the date hereof; provided, however, that “Person” shall exclude: (i)
the Company; (ii) any direct or indirect majority owned subsidiaries of the Company; (iii) any
employee benefit plan of the Company or any direct or indirect majority owned subsidiaries of the
Company or of any corporation owned, directly or indirectly, by the Company’s stockholders in
substantially the same proportions as their ownership of stock of the Company (an “Employee
Benefit Plan”); and (iv) any trustee or other fiduciary holding securities under an Employee
Benefit Plan.
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(h) “Proceeding” shall include any actual, threatened, pending or completed action,
suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding, whether brought by
a third party, a government agency, the Company or its Board of Directors or a committee thereof,
whether in the right of the Company or otherwise and whether of a civil (including intentional or
unintentional tort claims), criminal, administrative, legislative or investigative (formal or
informal) nature, including any appeal therefrom, in which Indemnitee was, is, will or might be
involved as a party, potential party, non-party witness or otherwise by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Company, by reason of any action
(or failure to act) taken by Indemnitee or of any action (or failure to act) on Indemnitee’s part
while acting as a director, officer, employee or agent of the Company, or by reason of the fact
that Indemnitee is or was serving at the request of the Company as a director, officer, partner
(general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee or
agent of any other enterprise, in each case whether or not serving in such capacity at the time any
liability or expense is incurred for which indemnification, reimbursement or advancement of
expenses can be provided under this Agreement.
(i) In addition, references to “other enterprise” shall include another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or any other
enterprise; references to “fines” shall include any excise taxes assessed on Indemnitee
with respect to an employee benefit plan; references to “serving at the request of the
Company” shall include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by Indemnitee with respect to an employee benefit
plan, its participants, or beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the
best interests of the Company” as referred to in this Agreement; references to
“include” or “including” shall mean include or including, without limitation; and
references to Sections, paragraphs or clauses are to Sections, paragraphs or clauses in this
Agreement unless otherwise specified.
12. Attorneys’ Fees. In the event that any Proceeding is instituted by Indemnitee
under this Agreement to enforce or interpret any of the terms hereof, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with
such Proceeding, unless a court of competent jurisdiction determines that each of the material
assertions made by Indemnitee as a basis for such Proceeding were not made in good faith or were
frivolous. In the event of a Proceeding instituted by or in the name of the Company under this
Agreement or to enforce or interpret any of the terms of this Agreement, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in
connection with such Proceeding (including with respect to Indemnitee’s counterclaims and
cross-claims made in such action), unless a court of competent jurisdiction determines that each of
Indemnitee’s material defenses to such action were made in bad faith or were frivolous.
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13. Miscellaneous.
(a) Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to principles of conflicts
of law.
(b) Entire Agreement; Binding Effect. Without limiting any of the rights of
Indemnitee described in Section 3(b), this Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and merges all prior discussions
and supersedes any and all previous agreements between them covering the subject matter herein.
The indemnification provided under this Agreement applies with respect to events occurring before
or after the effective date of this Agreement, and shall continue to apply even after Indemnitee
has ceased to serve the Company in any and all indemnified capacities.
(c) Amendments and Waivers. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, shall be effective unless in writing signed by the
parties to this Agreement. The failure by either party to enforce any rights under this Agreement
shall not be construed as a waiver of any rights of such party.
(d) Notices. Any notice, demand or request required or permitted to be given under
this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent
by fax or 48 hours after being sent by nationally-recognized courier or deposited in the U.S. mail,
as certified or registered mail, with postage prepaid, and addressed to the party to be notified at
such party’s address or fax number as set forth below or as subsequently modified by written
notice.
(e) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
(f) Successors and Assigns. This Agreement shall be binding upon the Company and its
successors (including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of the Company) and assigns,
and inure to the benefit of Indemnitee and Indemnitee’s heirs, executors, administrators, legal
representatives and assigns. The Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all or substantially all 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.
(g) No Employment Rights. Nothing contained in this Agreement is intended to create
in Indemnitee any right to continued employment.
(h) Company Position. The Company shall be precluded from asserting, in any
Proceeding brought for purposes of establishing, enforcing or interpreting any right to
indemnification under this Agreement, that the procedures and presumptions of this Agreement
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are not valid, binding and enforceable and shall stipulate in any such court that the Company
is bound by all the provisions of this Agreement and is precluded from making any assertion to the
contrary.
(i) Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all documents required and shall do all acts that may be necessary to secure such rights
and to enable the Company to effectively bring suit to enforce such rights.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first set forth above.
| THE COMPANY: | ||||
| IRONPLANET, INC. | ||||
| By: | ||||
| (Signature) | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| Fax: | ||||
| AGREED TO AND ACCEPTED: | ||||
| INDEMNITEE: | ||||
| (PRINT NAME) | ||||
| (Signature) | ||||
Address: |
||||
Fax: |
||||
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