INDEMNIFICATION AGREEMENT
Exhibit
10.14
This Agreement made and entered into this day of , (the “Agreement”), by and
between Aprimo, Incorporated, a Delaware corporation (the “Company,” which term shall include,
where appropriate, any Entity (as hereinafter defined) controlled directly or indirectly by the
Company) and (the “Indemnitee”):
WHEREAS, it is essential to the Company that it be able to retain and attract as directors and
officers the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors and officers to litigation
risks and expenses, and the limitations on the availability of directors and officers liability
insurance have made it increasingly difficult for the Company to attract and retain such persons;
WHEREAS, the Company’s By-laws (the “By-laws”) require it to indemnify its directors and
officers to the fullest extent permitted by law and permit it to make other indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against litigation risks and expenses (regardless,
among other things, of any amendment to or revocation of the By-laws or any change in the ownership
of the Company or the composition of its Board of Directors);
WHEREAS, the Company intends that this Agreement provide Indemnitee with greater protection
than that which is provided by the Company’s By-laws; and
WHEREAS, Indemnitee is relying upon the rights afforded under this Agreement in [becoming]
[continuing as] a[n] [director] [officer] of the Company.
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
(a) “Corporate Status” describes the status of a person who is serving or has served
(i) as a director or officer of the Company, (ii) in any capacity with respect to
any employee benefit plan of the Company, or (iii) as a director, partner, trustee,
officer, employee, or agent of any other Entity at the request of the Company. For
purposes of subsection (iii) of this Section 1(a), if Indemnitee is serving or has
served as a director, partner, trustee, officer, employee or agent of a Subsidiary,
Indemnitee shall be deemed to be serving at the request of the Company.
(b) “Entity” shall mean any corporation, partnership, limited liability company,
joint venture, trust, foundation, association, organization or other legal entity.
(c) “Expenses” shall mean all fees, costs and expenses incurred by Indemnitee in
connection with any Proceeding (as defined below), including, without limitation,
attorneys’ fees, disbursements and retainers (including, without limitation, any
such fees, disbursements and retainers incurred by Indemnitee pursuant to
Sections 11 and 12(c) of this Agreement), fees and disbursements of expert
witnesses, private investigators and professional advisors (including, without
limitation, accountants and investment bankers), court costs, transcript costs, fees
of experts, travel expenses, duplicating, printing and binding costs, telephone and
fax transmission charges, postage, delivery services, secretarial services, and
other disbursements and expenses.
(d) “Indemnifiable Expenses,” “Indemnifiable Liabilities” and “Indemnifiable
Amounts” shall have the meanings ascribed to those terms in Section 3(a) below.
(e) “Liabilities” shall mean judgments, damages, liabilities, losses, penalties,
excise taxes, fines and amounts paid in settlement.
(f) “Proceeding” shall mean any threatened, pending or completed claim, action,
suit, arbitration, alternate dispute resolution process, investigation,
administrative hearing, appeal, or any other proceeding, whether civil, criminal,
administrative, arbitrative or investigative, whether formal or informal, including
a proceeding initiated by Indemnitee pursuant to Section 11 of this Agreement to
enforce Indemnitee’s rights hereunder.
(g) “Subsidiary” shall mean any corporation, partnership, limited liability company,
joint venture, trust or other Entity of which the Company owns (either directly or
through or together with another Subsidiary of the Company) either (i) a general
partner, managing member or other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such corporation,
partnership, limited liability company, joint venture or other Entity, or (B) 50% or
more of the outstanding voting capital stock or other voting equity interests of
such corporation, partnership, limited liability company, joint venture or other
Entity.
2. Services of Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to serve or continue to serve as a[n] [director] [officer]
of the Company. However, this Agreement shall not impose any obligation on
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Indemnitee or the Company to continue Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of the parties, if any.
3. Agreement to Indemnify. The Company agrees to indemnify Indemnitee as follows:
(a) Proceedings Other Than By or In the Right of the Company. Subject to
the exceptions contained in Section 4(a) below, if Indemnitee was or is a party or
is threatened to be made a party to any Proceeding (other than an action by or in
the right of the Company) by reason of Indemnitee’s Corporate Status, Indemnitee
shall be indemnified by the Company against all Expenses and Liabilities incurred or
paid by Indemnitee in connection with such Proceeding (referred to herein as
“Indemnifiable Expenses” and “Indemnifiable Liabilities,” respectively, and
collectively as “Indemnifiable Amounts”).
(b) Proceedings By or In the Right of the Company. Subject to the
exceptions contained in Section 4(b) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the Company by
reason of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the
Company against all Indemnifiable Expenses.
(c) Conclusive Presumption Regarding Standard of Care. In making any
determination required to be made under Delaware law with respect to entitlement to
indemnification hereunder, the person, persons or entity making such determination
shall presume that Indemnitee is entitled to indemnification under this Agreement if
Indemnitee submitted a request therefor in accordance with Section 5 of this
Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of any
determination contrary to that presumption.
4. Exceptions to Indemnification. Indemnitee shall be entitled to indemnification
under Sections 3(a) and 3(b) above in all circumstances other than with respect to any specific
claim, issue or matter involved in the Proceeding out of which Indemnitee’s claim for
indemnification has arisen, as follows:
(a) Proceedings Other Than By or In the Right of the Company. If
indemnification is requested under Section 3(a) and it has been finally adjudicated
by a court of competent jurisdiction that, in connection with such specific claim,
issue or matter, Indemnitee failed to act (i) in good faith and (ii) in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company, or, with respect to any criminal Proceeding, Indemnitee had reasonable
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cause to believe that Indemnitee’s conduct was unlawful, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder.
(b) Proceedings By or In the Right of the Company. If indemnification is
requested under Section 3(b) and
(i) it has been finally adjudicated by a court of competent
jurisdiction that, in connection with such specific claim, issue or
matter, Indemnitee failed to act (A) in good faith and (B) in a
manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, Indemnitee shall not be entitled to
payment of Indemnifiable Expenses hereunder; or
(ii) it has been finally adjudicated by a court of competent
jurisdiction that Indemnitee is liable to the Company with respect to
such specific claim, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder with respect to such claim, issue or
matter unless the Court of Chancery or another court in which such
Proceeding was brought 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 Indemnifiable Expenses which such court
shall deem proper; or
(iii) it has been finally adjudicated by a court of competent
jurisdiction that Indemnitee is liable to the Company for an
accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934, the rules and
regulations promulgated thereunder and amendments thereto or similar
provisions of any federal, state or local statutory law, Indemnitee
shall not be entitled to payment of Indemnifiable Expenses hereunder.
(c) Insurance Proceeds. To the extent payment is actually made to the
Indemnitee under a valid and collectible insurance policy in respect of
Indemnifiable Amounts in connection with such specific claim, issue or matter,
Indemnitee shall not be entitled to payment of Indemnifiable Amounts hereunder
except in respect of any excess beyond the amount of payment under such insurance.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to the
Company a written request specifying the Indemnifiable Amounts for which Indemnitee seeks payment
under Section 3 of this Agreement and the basis for the claim. The Company shall pay
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such Indemnifiable Amounts to Indemnitee promptly upon receipt of its request. At the request
of the Company, Indemnitee shall furnish such documentation and information as are reasonably
available to Indemnitee and necessary to establish that Indemnitee is entitled to indemnification
hereunder.
6. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any such provision, to
the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified against
all Expenses reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. For
purposes of this Agreement, the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, by reason of settlement, judgment, order or otherwise, shall
be deemed to be a successful result as to such claim, issue or matter.
7. Effect of Certain Resolutions. Neither the settlement or termination of any
Proceeding nor the failure of the Company to award indemnification or to determine that
indemnification is payable shall create a presumption that Indemnitee is not entitled to
indemnification hereunder. In addition, the termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not 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, with respect to any
criminal Proceeding, had reasonable cause to believe that Indemnitee’s action was unlawful.
8. Agreement to Advance Expenses; Undertaking. The Company shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding, including a Proceeding by
or in the right of the Company, in which Indemnitee is involved by reason of such Indemnitee’s
Corporate Status within ten (10) calendar days after the receipt by the Company of a written
statement from Indemnitee requesting such advance or advances from time to time, whether prior to
or after final disposition of such Proceeding. To the extent required by Delaware law, Indemnitee
hereby undertakes to repay any and all of the amount of Indemnifiable Expenses paid to Indemnitee
if it is finally determined by a court of competent jurisdiction that Indemnitee is not entitled
under this Agreement to indemnification with respect to such Expenses. This undertaking is an
unlimited general obligation of Indemnitee.
9. Procedure for Advance Payment of Expenses. Indemnitee shall submit to the Company
a written request specifying the Indemnifiable Expenses for which Indemnitee seeks an advancement
under Section 8 of this Agreement, together with documentation evidencing that Indemnitee has
incurred such Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 8 shall be
made no later than ten (10) calendar days after the Company’s receipt of such request.
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10. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in
any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably by incurred by him or on his behalf in connection therewith.
11. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request
for payment of Indemnifiable Amounts under Sections 3 and 5 above or a request for
an advancement of Indemnifiable Expenses under Sections 8 and 9 above and the
Company fails to make such payment or advancement in a timely manner pursuant to the
terms of this Agreement, Indemnitee may petition the Court of Chancery to enforce
the Company’s obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section 11(a)
above, the Company shall have the burden of proving that Indemnitee is not entitled
to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any
Expenses incurred by Indemnitee in connection with investigating, preparing for,
litigating, defending or settling any action brought by Indemnitee under Section
11(a) above, or in connection with any claim or counterclaim brought by the Company
in connection therewith, whether or not Indemnitee is successful in whole or in part
in connection with any such action.
(d) Failure to Act Not a Defense. The failure of the Company (including its
Board of Directors or any committee thereof, independent legal counsel, or
stockholders) to make a determination concerning the permissibility of the payment
of Indemnifiable Amounts or the advancement of Indemnifiable Expenses under this
Agreement shall not be a defense in any action brought under Section 11(a) above,
and shall not create a presumption that such payment or advancement is not
permissible.
12. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the Company promptly
upon being served with any summons, citation, subpoena, complaint, indictment,
information, or other document relating to any Proceeding which may result in the
payment of Indemnifiable Amounts or the advancement of Indemnifiable Expenses
hereunder; provided, however, that the failure to give any such notice shall not
disqualify Indemnitee from the right, or otherwise affect in any manner any right of
Indemnitee, to receive payments of Indemnifiable Amounts or
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advancements of Indemnifiable Expenses unless the Company’s ability to defend in
such Proceeding is materially and adversely prejudiced thereby.
(b) Defense by Company. Subject to the provisions of the last sentence of
this Section 12(b) and of Section 12(c) below, the Company shall have the right to
defend Indemnitee in any Proceeding which may give rise to the payment of
Indemnifiable Amounts hereunder; provided, however that the Company shall notify
Indemnitee of any such decision to defend within ten (10) calendar days of receipt
of notice of any such Proceeding under Section 12(a) above. The Company shall not,
without the prior written consent of Indemnitee, consent to the entry of any
judgment against Indemnitee or enter into any settlement or compromise which (i)
includes an admission of fault of Indemnitee or (ii) does not include, as an
unconditional term thereof, the full release of Indemnitee from all liability in
respect of such Proceeding, which release shall be in form and substance reasonably
satisfactory to Indemnitee. This Section 12(b) shall not apply to a Proceeding
brought by Indemnitee under Section 11(a) above or pursuant to Section 20 below.
(c) Indemnitee’s Right to Counsel. Notwithstanding the provisions of
Section 12(b) above, if in a Proceeding to which Indemnitee is a party by reason of
Indemnitee’s Corporate Status, (i) Indemnitee reasonably concludes that he or she
may have separate defenses or counterclaims to assert with respect to any issue
which may not be consistent with the position of other defendants in such
Proceeding, (ii) a conflict of interest or potential conflict of interest exists
between Indemnitee and the Company, or (iii) if the Company fails to assume the
defense of such proceeding in a timely manner, Indemnitee shall be entitled to be
represented by separate legal counsel of Indemnitee’s choice at the expense of the
Company. In addition, if the Company fails to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes any
action to declare this Agreement void or unenforceable, or institutes any action,
suit or proceeding to deny or to recover from Indemnitee the benefits intended to be
provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel
of Indemnitee’s choice, at the expense of the Company, to represent Indemnitee in
connection with any such matter.
13. Representations and Warranties of the Company. The Company hereby represents and
warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to enter
into, and be bound by the terms of, this Agreement, and the execution, delivery and
performance of the undertakings contemplated by this Agreement have been duly
authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the
Company in accordance with the provisions hereof, shall be a legal, valid and
binding obligation of the Company, enforceable against the Company in
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accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting the enforcement of creditors’ rights generally.
14. Insurance. 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 a reputable insurance company providing the Indemnitee with coverage for
losses from wrongful acts. For so long as Indemnitee shall remain a[n] [director] [officer] of the
Company and with respect to any such prior service, 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 officers and directors. 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, or if the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit. The Company shall promptly notify Indemnitee
of any good faith determination not to provide such coverage.
15. Contract Rights Not Exclusive. The rights to payment of Indemnifiable Amounts and
advancement of Indemnifiable Expenses provided by this Agreement shall be in addition to, but not
exclusive of, any other rights which Indemnitee may have at any time under applicable law, the
Company’s By-laws, or any other agreement, vote of stockholders or directors (or a committee of
directors), or otherwise, both as to action in Indemnitee’s official capacity and as to action in
any other capacity as a result of Indemnitee’s serving as a[n] [director] [officer] of the Company.
16. Successors. This Agreement shall be (a) binding upon all successors and assigns
of the Company (including any transferee of all or a substantial portion of the business, stock
and/or assets of the Company and any direct or indirect successor by merger or consolidation or
otherwise by operation of law) and (b) binding on and shall inure to the benefit of the heirs,
personal representatives, executors and administrators of Indemnitee. This Agreement shall
continue for the benefit of Indemnitee and such heirs, personal representatives, executors and
administrators after Indemnitee has ceased to have Corporate Status.
17. Subrogation. In the event of any payment of Indemnifiable Amounts under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
contribution or recovery of Indemnitee against other persons, and Indemnitee shall take, at the
request of the Company, all reasonable action necessary to secure such rights, including the
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
18. Change in Law. To the extent that a change in Delaware law (whether by statute or
judicial decision) shall permit broader indemnification or advancement of expenses than is
provided under the terms of the By-laws and this Agreement, Indemnitee shall be entitled to such
broader indemnification and advancements, and this Agreement shall be deemed to be amended to such
extent.
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19. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement, or any clause thereof, shall be determined by a court of competent
jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such provision or clause
shall be limited or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions and clauses of this
Agreement shall remain fully enforceable and binding on the parties.
20. Indemnitee as Plaintiff. Except as provided in Section 10(c) of this Agreement
and in the next sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts or
advancement of Indemnifiable Expenses with respect to any Proceeding brought by Indemnitee against
the Company, any Entity which it controls, any director or officer thereof, or any third party,
unless the Board of Directors of the Company has consented to the initiation of such Proceeding.
This Section shall not apply to counterclaims or affirmative defenses asserted by Indemnitee in an
action brought against Indemnitee.
21. Modifications and Waiver. Except as provided in Section 18 above with respect to
changes in Delaware law which broaden the right of Indemnitee to be indemnified by the Company, no
supplement, modification or amendment of this Agreement shall be binding unless executed in writing
by each 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 provisions of this Agreement (whether or not
similar), nor shall such waiver constitute a continuing waiver.
22. General Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by
hand, (b) when transmitted by facsimile and receipt is acknowledged, or (c) if mailed by certified
or registered mail with postage prepaid, on the third business day after the date on which it is so
mailed:
| (i) | If to Indemnitee, to: | |||||
| (ii) | If to the Company, to: | |||||
| Aprimo, Incorporated | ||||||
| 000 Xxxx 00xx Xxxxxx, Xxxxx 000 | ||||||
| Xxxxxxxxxxxx, XX 00000 | ||||||
| Attn: Chief Financial Officer |
or to such other address as may have been furnished in the same manner by any party to the others.
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23. Governing Law; Consent to Jurisdiction; Service of Process. This Agreement shall
be governed by and construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company and the Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Court of Chancery of the
State of Delaware and the courts of the United States of America located in the State of Delaware
(the “Delaware Courts”) for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation relating thereto except
in such courts), waives any objection to the laying of venue of any such litigation in the Delaware
Courts and agrees not to plead or claim in any Delaware Court that such litigation brought therein
has been brought in an inconvenient forum. Each of the parties hereto agrees, (a) to the extent
such party is not otherwise subject to service of process in the State of Delaware, to appoint and
maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process,
and (b) that service of process may also be made on such party by prepaid certified mail with a
proof of mailing receipt validated by the United States Postal Service constituting evidence of
valid service. Service made pursuant to (a) or (b) above shall have the same legal force and
effect as if served upon such party personally within the State of Delaware. For purposes of
implementing the parties’ agreement to appoint and maintain an agent for service of process in the
State of Delaware, each such party does hereby appoint The Corporation Trust Company, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, as such agent and each such party hereby
agrees to complete all actions necessary for such appointment.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| APRIMO, INCORPORATED | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE | ||||
