EXHIBIT 10.1
GREENFIELD ONLINE, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made as of , by
and between Greenfield Online, Inc., a Delaware corporation (the "Company"),
and (the "Indemnitee").
RECITALS
A. The Company desires to attract and retain qualified directors, officers,
employees and other agents, and to provide them with protection against
liability and expenses incurred while acting in that capacity;
B. The Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") and its Amended and Restated Bylaws (the
"Bylaws") contain provisions for indemnifying directors and officers of
the Company, and the Certificate of Incorporation, Bylaws and Delaware
General Corporation Law contemplate that separate contracts may be entered
into between the Company and its directors and officers, employees and
other agents with respect to their indemnification by the Company, which
contracts may provide greater protection than is afforded by the
Certificate of Incorporation and Bylaws;
C. The Company understands that Indemnitee has reservations about serving or
continuing to serve the Company without adequate protection against
personal liability arising from such service, and that it is also of
critical importance to Indemnitee that adequate provision be made for
advancing costs and expenses of legal defense; and
D. The Board of Directors of the Company has approved as being in the best
interests of the Company indemnity agreements substantially in the form of
this Agreement for directors and officers of the Company.
NOW, THEREFORE, in order to induce Indemnitee to serve or to continue to
serve as a director and/or officer of the Company, and in consideration of
Indemnitee's service to the Company, the parties agree as follows:
1. Contractual Indemnity. In addition to the indemnification provisions of the
Certificate of Incorporation and Bylaws of the Company, the Company hereby
agrees, subject to the limitations of Sections 2 and 5 hereof:
(a) To indemnify, defend and hold Indemnitee harmless to the greatest
extent possible under applicable law from and against any and all judgments,
fines, penalties, amounts paid in settlement and any other amounts reasonably
incurred or suffered by Indemnitee (including attorneys' fees) in connection
with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Company, to which
Indemnitee is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Indemnitee is, was or at any time becomes a
director, officer, employee or agent of the Company or is or was serving or at
any time serves at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise (collectively referred to hereafter as a "Claim"), whether or not
arising prior to the date of this Agreement.
(b) To pay any and all expenses reasonably incurred by Indemnitee in
defending any Claim or Claims (including reasonable attorneys' fees and other
reasonable costs of investigation and defense), as the same are incurred and in
advance of the final disposition of any such Claim or Claims, upon receipt of an
undertaking by or on behalf of Indemnitee to reimburse such amounts if it shall
be ultimately determined that Indemnitee (i) is not entitled to be indemnified
by the Company under this Agreement, and (ii) is not entitled to be indemnified
by the Company under the Certificate of Incorporation or the Bylaws of the
Company or under applicable law.
The termination of any action or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that (i) Indemnitee did not act in
good faith and in a manner which Indemnitee reasonably believed to be in the
best interests of the Company, or (ii) with respect to any criminal action or
proceeding, Indemnitee had reasonable cause to believe that Indemnitee's conduct
was unlawful.
2. Limitations on Contractual Indemnity. Indemnitee shall not be entitled to
indemnification or advancement of expenses under Section 1:
(a) if a court of competent jurisdiction, by final judgment or decree,
shall determine that (i) the Claim or Claims in respect of which indemnity is
sought arise from Indemnitee's fraudulent, dishonest or willful misconduct, or
(ii) such indemnity is not permitted under applicable law; or
(b) on account of any suit in which judgment is rendered for an accounting
of profits made from the purchase or sale by Indemnitee of securities of the
Company in violation of the provisions of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law; or
(c) for any acts or omissions or transactions from which a director may
not be relieved of liability under the Delaware General Corporation Law; or
(d) with respect to proceedings or claims initiated or brought voluntarily
by Indemnitee and not by way of defense, except (i) with respect to proceedings
brought in good faith to establish or enforce a right to indemnification under
this Agreement or any other statute or law, or (ii) at the Company's discretion,
in specific cases if the Board of Directors of the Company has approved the
initiation or bringing of such suit; or
(e) for expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) which have been paid directly to Indemnitee by an insurance
carrier under a policy of directors' and officers' liability insurance
maintained by the Company; or
(f) on account of any suit brought against Indemnitee for misuse or
misappropriation of non-public information, or otherwise involving Indemnitee's
status as an "insider" of the Company, in connection with any purchase or sale
by Indemnitee of securities of the Company.
3. Continuation of Contractual Indemnity. Subject to the termination provisions
of Section 11, all agreements and obligations of the Company contained herein
shall continue for so long as Indemnitee shall be subject to any possible
action, suit, proceeding or other assertion of a Claim or Claims.
4. Expenses; Advancement Procedure. The Company shall advance all expenses
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of any civil or criminal action or proceeding referenced in Section 1
hereof (it being understood that amounts actually paid in settlement of any such
action or proceeding shall not be treated as expenses under this Agreement).
Indemnitee hereby undertakes to repay such amounts advanced if, and to the
extent that, it shall ultimately be determined that Indemnitee is not entitled
to be indemnified by the Company as authorized hereby. The advances to be made
hereunder shall be paid by the Company to Indemnitee within twenty (20) days
following receipt by the Company of a written request therefor from Indemnitee.
5. Notification and Defense of Claim. If any action, suit, proceeding or other
Claim is brought against Indemnitee in respect of which indemnity may be sought
under this Agreement:
(a) Indemnitee will promptly notify the Company in writing of the
commencement thereof, and the Company and any other indemnifying party similarly
notified will be entitled to participate therein at its own expense or to assume
the defense thereof and to employ counsel reasonably satisfactory to Indemnitee.
Notice to the Company shall be directed to the Chief Executive Officer of the
Company at the address shown on the signature page of this Agreement (or such
other address as the Company shall designate in writing to Indemnitee). Notice
shall be deemed received three (3) business days after the date postmarked if
sent by domestic certified or registered mail, properly addressed; otherwise
notice shall be deemed received when such notice shall actually be received by
the Company. Indemnitee shall have the right to employ its own counsel in
connection with any such Claim and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of Indemnitee
unless (i) the Company shall not have assumed the defense of the Claim and
employed counsel for such defense, or (ii) the named parties to any such action
(including any impleaded parties) include both Indemnitee and the Company, and
Indemnitee shall have reasonably concluded that joint representation is
inappropriate under applicable standards of professional conduct due to a
material conflict of interest between Indemnitee and the
Company, in either of which events the reasonable fees and expenses of such
counsel to the Indemnitee shall be borne by the Company upon receipt by the
Company of the undertaking referred to in subparagraph (b) of Section 1.
However, in no event will the Company be obligated to pay the fees or expenses
of more than one firm of attorneys representing Indemnitee and any other agents
of the Company in connection with any one Claim or separate but substantially
similar or related Claims in the same jurisdiction arising out of the same
general allegations or circumstances.
(b) The Company shall not be liable to indemnify Indemnitee for any
amounts paid in settlement of any Claim effected without the Company's written
consent, and the Company shall not settle any Claim in a manner which would
impose any penalty or limitation on Indemnitee without Indemnitee's written
consent; provided, however, that neither the Company nor Indemnitee will
unreasonably withhold its consent to any proposed settlement and, provided
further, that if a claim is settled by the Indemnitee with the Company's written
consent, or if there be a final judgment or decree for the plaintiff in
connection with the Claim by a court of competent jurisdiction, the Company
shall indemnify and hold harmless Indemnitee from and against any and all
losses, costs, expenses and liabilities incurred by reason of such settlement or
judgment.
(c) Indemnitee shall give the Company such information and cooperation as
it may reasonably require and as shall be within Indemnitee's power.
(d) Any indemnification provided for in Section 1 shall be made no later
than forty-five (45) days after receipt of the written request of Indemnitee. If
a Claim under this Agreement, under any statute, or under any provision of the
Certificate of Incorporation or Bylaws providing for indemnification, is not
paid in full by the Company within forty-five (45) days, or any advance of
expenses pursuant to Section 4 is not paid in full by the Company within twenty
(20) 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 to recover the unpaid amount of the claim and,
subject to Section 13 of this Agreement, Indemnitee shall also be entitled to be
reimbursed for the expenses (including attorneys' fees) of bringing such action.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in connection with any action or
proceeding in advance of its final disposition) 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 but the burden of proving
such defense shall be on the Company, and Indemnitee shall be entitled to
receive interim payments of expenses pursuant to Subsection 4 unless and until
such defense may be finally adjudicated by court order or judgment from which no
further right of appeal exists. 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 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.
(e) If, at the time of the receipt of a notice of a Claim, 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 the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.
6. Scope. Notwithstanding any other provision of this Agreement, the Company
hereby agrees to indemnify the Indemnitee against any Claim to the fullest
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the
Certificate of Incorporation, the 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, an officer or other corporate agent, such changes shall be,
ipso facto, within the purview of Indemnitee's rights and 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, an officer, or other corporate agent, such changes,
to the extent not otherwise required by applicable law to be applied to this
Agreement, shall have no effect on this Agreement or the parties' rights and
obligations hereunder.
7. 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 penalties actually or reasonably incurred by him
in the investigation, defense, appeal or settlement of any civil or criminal
action or proceeding, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of such
expenses, judgments, fines or penalties to which Indemnitee is entitled.
8. Public Policy. Both the Company and Indemnitee acknowledge that in certain
instances, Federal law or applicable public policy may prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise.
Indemnitee understands and acknowledges that the Company has undertaken or may
be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain
circumstances for a determination of the Company's right under public policy to
indemnify Indemnitee.
9. Insurance. Although the Company may from time to time maintain insurance for
the purpose of indemnifying Indemnitee and other agents of the Company against
personal liability, including costs of legal defense, nothing in this Agreement
shall obligate the Company to do so.
10. No Restrictions. The rights and remedies of Indemnitee under this Agreement
shall not be deemed to exclude or impair any other rights or remedies to which
Indemnitee may be entitled under the Certificate of Incorporation or Bylaws, or
under any other agreement, provision of law or otherwise, nor shall anything
contained herein restrict the right of the Company to indemnify Indemnitee in
any proper case even though not specifically provided for in this Agreement, nor
shall anything contained herein restrict Indemnitee's right to contribution as
may be available under applicable law.
11. Termination. The Company may terminate this Agreement at any time upon 90
days written notice, but any such termination will not affect Claims relating to
events occurring prior to the effective date of termination.
12. Severability. Each of the provisions of this Agreement is a separate and
distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
13. Attorneys' Fees. In the event of any litigation or other action or
proceeding to enforce or interpret this Agreement, the prevailing party as
determined by the court shall be entitled to an award of its reasonable
attorneys' fees and other costs, in addition to such relief as may be awarded by
a court or other tribunal.
14. Further Assurances. The parties will do, execute and deliver, or will cause
to be done, executed and delivered, all such further acts, documents and things
as may be reasonably required for the purpose of giving effect to this Agreement
and the transactions contemplated hereby.
15. Acknowledgment. The Company expressly acknowledges that it has entered into
this Agreement and assumed the obligations imposed on the Company hereunder in
order to induce Indemnitee to serve or to continue to serve as an agent of the
Company, and acknowledges that Indemnitee is relying on this Agreement in
serving or continuing to serve in such capacity.
16. Construction of Certain Phrases.
(a) Company: For purposes of this Agreement, references to the "Company"
shall also include, in addition to the resulting corporation in any
consolidation or merger to which the Company is a party, any constituent
corporation (including any constituent of a constituent) absorbed in
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, 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, employee or agent of another
corporation, partnership, joint venture, trust or 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.
(b) Benefit Plans: References to "fines" contained in this Agreement shall
include any excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and 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, such director, officer,
employee or agent with respect to an employee benefit plan, its participants, or
beneficiaries.
17. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original.
18. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by
hand and receipted for by the party addressee, on the date of such receipt, or
(ii) if mailed by domestic certified or registered mail with postage prepaid, on
the third business day after the date postmarked. Addresses for notice to either
party are as shown on the signature page of this Agreement, or as subsequently
modified by written notice.
19. Governing Law; Binding Effect; Amendment.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Delaware applicable to contracts entered into in
Delaware.
(b) This Agreement shall be binding upon Indemnitee and the Company, their
successors and assigns, and shall inure to the benefit of Indemnitee, his heirs,
personal representatives and assigns and to the benefit of the Company, its
successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto. IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
GREENFIELD ONLINE, INC.
By:
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Its:
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Address:
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INDEMNITEE
Signature:
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Name:
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Address:
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