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EXHIBIT 10.1
FORM OF
INDEMNIFICATION AGREEMENT
This Agreement made and entered into this ____ day of ______, (the
"Agreement"), by and between FairMarket, Inc., 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 the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors 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 Amended and Restated Certificate of
Incorporation and Amended and Restated By-Laws (the "Certificate of
Incorporation" and "By-laws," respectively) require it to indemnify its
directors 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 Certificate of Incorporation or 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 Certificate
of Incorporation and By-laws; and
WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in a director 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 of the Company, (ii)
in any capacity with respect to any employee benefit plan of
the Company, or (iii) as a director, partner, trustee,
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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 10 and 11(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 10 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.
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2. SERVICES OF INDEMNITEE. In consideration of the Company's covenants
and commitments hereunder, Indemnitee agrees to serve or continue to serve as a
director of the Company. However, this Agreement shall not impose any obligation
on 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.
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 action or proceeding, Indemnitee had reasonable 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
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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, no
Indemnifiable Expenses shall be paid 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.
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 such Indemnifiable Amounts to Indemnitee
within sixty (60) calendar days of receipt of the 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
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respect to any criminal action or 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 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.
10. 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 10(a) above, the Company shall have the burden of
proving that Indemnitee is not entitled to payment of
Indemnifiable Amounts hereunder.
(c) Expenses. If Indemnitee is successful in whole or in part
in connection with any action brought by Indemnitee under
Section 10(a) above, 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 such action, or in connection with
any claim or counterclaim brought by the Company in connection
therewith.
(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
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payment of Indemnifiable Amounts or the advancement of
Indemnifiable Expenses under this Agreement shall not be a
defense in any action brought under Section 10(a) above, and
shall not create a presumption that such payment or
advancement is not permissible.
11. 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 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 11(b) and of Section 11(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 11(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
11(b) shall not apply to a Proceeding brought by Indemnitee
under Section 10(a) above or pursuant to Section 19 below.
(c) Indemnitee's Right to Counsel. Notwithstanding the
provisions of Section 11(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 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
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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.
12. 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 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.
13. 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,
and to ensure the Company's performance of its indemnification obligations under
this Agreement. 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.
14. 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 Certificate
of Incorporation or 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 director of the Company.
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15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. MODIFICATIONS AND WAIVER. Except as provided in Section 17 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
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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.
21. 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:
or to such other address as may have been furnished in the same manner by any
party to the others.
22. 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
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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.
FAIRMARKET, INC.
By:
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Name:
Title:
INDEMNITEE
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