Exhibit 10.5
EXECUTION COPY
FORM OF
DIRECTOR INDEMNIFICATION AGREEMENT
THIS DIRECTOR AND INDEMNIFICATION
AGREEMENT (this " Agreement ") is made as of this
15th day of July 2004, by and between ExactTarget, Inc. , a
Delaware corporation (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 director
liability insurance have made it increasingly difficult for the
Company to attract and retain such persons;
WHEREAS , the Company's
governing documents require it to indemnify its directors to the
fullest extent permitted by law and permit it to make other
indemnification arrangements and agreements; and
WHEREAS , the Company
desires to provide the Indemnitee with specific contractual
assurance of Indemnitee's rights to full indemnification against
litigation risks and expenses (regardless of any amendment to or
revocation of the Company's bylaws or any change in the ownership
of the Company or the composition of its Board of
Directors).
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 of any other Entity at the request of the
Company. For purposes of subsection (iii) of this
Section 1(a) , a
director of the Company who is serving or has served as a director
of a Subsidiary shall be deemed to be serving as the request of the
Company.
(b) "
Entity " shall mean any
corporation, partnership, limited liability company, joint venture,
company, foundation, association, organization or other legal
entity.
(c) "
Expenses " shall mean
all fees, costs and expenses incurred in connection with any
Proceeding, including, without limitation, attorneys' fees,
disbursements and retainers (including, without limitation, any
fees, disbursements and retainers incurred by Indemnitee pursuant
to Section 10 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, and, in the case of each of the
foregoing, to the extent such fees, costs and expenses are
reasonable.
(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 or pending 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 Entity of which the Company owns (either directly or
indirectly) 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 Entity,
or (B) 50% or more of the outstanding voting capital stock or
other voting equity interests of such 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 director on the board of directors
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) Subject
to the exceptions contained in Section 4(a) and
Section 6 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) Subject
to the exceptions contained in Section 4(b) and
Section 6 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 to procure a
judgment in its favor 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 Section 3(a) and
Section 3(b) above
in all circumstances other than the following:
-
(a) If
indemnification is requested under Section 3(a) and it has
been adjudicated finally by a court of competent jurisdiction that,
in connection with the subject of the Proceeding out of which the
claim for indemnification has arisen, Indemnitee failed to act
(i) in good faith and (ii) in a manner Indemnitee
reasonably believed to be in 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) If
indemnification is requested under Section 3(b) and
-
(i) it
has been adjudicated finally by a court of competent jurisdiction
that, in connection with the subject of the Proceeding out of which
the claim for indemnification has arisen, Indemnitee failed to act
(A) in good faith and (B) in a manner Indemnitee believed
to be in the best interests of the Company, Indemnitee shall not be
entitled to payment of Indemnifiable Expenses hereunder.
(ii) it
has been adjudicated finally by a court of competent jurisdiction
that Indemnitee is liable to the Company with respect to any claim,
issue or matter involved in the Proceeding out of which the claim
for indemnification has arisen, no Indemnifiable Expenses shall be
paid with respect to such claim, issue or matter unless the court
of competent jurisdiction 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 indemnity for such
Indemnifiable Expenses which such court shall deem
proper.
2
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 a short description of the
basis for the claim. The Company shall pay such Indemnifiable
Amounts to Indemnitee within ten (10) 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 If Indemnitee is Wholly or Partly
Successful . Notwithstanding anything
conta
|
