EXHIBIT 10.1
SYNACOR, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement
(“ Agreement ”) is made as of ___, 2007 by and
between Synacor, Inc., a Delaware corporation (the “
Company ”), and ___ (“Indemnitee”).
RECITALS
WHEREAS, highly competent persons
have become more reluctant to serve publicly held corporations as
directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of the
corporation;
WHEREAS, the Amended and Restated
Certificate of Incorporation of the Company (the “
Charter ”) and the Amended and Restated Bylaws of the
Company (the “ Bylaws ”) authorize
indemnification of the officers, directors and employees of the
Company. Indemnitee may also be entitled to indemnification
pursuant to the General Corporation Law of the State of Delaware
(“ DGCL ”). The Charter, Bylaws and DGCL provide
that the indemnification provisions set forth therein are not
exclusive, and thereby contemplate that contracts may be entered
into between the Company and members of the board of directors,
officers and other persons with respect to indemnification;
WHEREAS, the Board of Directors of
the Company (the “ Board ”) has determined that
the increased difficulty in attracting and retaining such persons
is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future;
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, such persons to
the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that
they will not be so indemnified;
WHEREAS, this Agreement is a
supplement to and in furtherance of the indemnification provided in
the Charter and Bylaws and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee is concerned that
the protection available under the Charter, Bylaws and DGCL and any
insurance may not be adequate to protect Indemnitee, and in
consideration of serving as a director, officer or employee (as
applicable), desires to be assured of adequate protection, and the
Company desires Indemnitee to serve in such capacity. Indemnitee is
willing to serve, continue to serve and to take on additional
service for or on behalf of the Company on the condition that
Indemnitee be so indemnified.
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the
Company . Indemnitee agrees to serve as a director, officer or
employee (as applicable) of the Company. Indemnitee may at any time
and for any reason resign from such position (subject to any other
contractual obligation or any obligation imposed by operation of
law), in which event the Company shall have no obligation under
this Agreement to continue Indemnitee in such position. This
Agreement shall not be deemed an employment contract between the
Company (or any of its subsidiaries or any Enterprise) and
Indemnitee. The foregoing notwithstanding, this Agreement shall
continue in force after Indemnitee’s services to the Company
have ceased.
Section 2.
Definitions
As used in this Agreement:
(a)
“ Corporate Status ” describes the status of a
person who is or was a director, officer, employee, trustee or
agent of the Company or of any other corporation, partnership or
joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the
Company.
(b)
“ Enterprise ” shall mean the Company and any
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was
serving at the request of the Company as a director, officer,
employee, trustee, agent or fiduciary.
(c)
“ Expenses ” shall include all reasonable
attorneys’ fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding.
Expenses also shall include Expenses incurred in connection with
any appeal resulting from any Proceeding, including without
limitation the premium, security for, and other costs relating to
any cost bond, supersedes bond, or other appeal bond or its
equivalent. Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(d)
“ Independent Counsel ” means a law firm, or a
partner (or, if applicable, member) of such a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent:
(i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning the
Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), or (ii) any other party
to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees
to pay
- 2 -
the
reasonable fees and expenses of the Independent Counsel referred to
above and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
(e) The
term “ Proceeding ” shall include any
threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed
proceeding, whether brought in the right of the Company or
otherwise and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee was, is or will be
involved as a party or otherwise by reason of Indemnitee’s
Corporate Status, by reason of any action taken by him or of any
action on his part while acting in such capacity, or by reason of
the fact that he is or was serving at the request of the Company as
a director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or 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; provided, however, that,
other than a Proceeding initiated by Indemnitee to enforce his or
her rights under this Agreement, the term “Proceeding”
shall include a Proceeding (or part thereof) initiated by
Indemnitee only if such Proceeding (or part thereof) was authorized
by the Board of Directors.
Section 3. Indemnity in
Third-Party Proceedings . The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3
if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding, other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant
to this Section 3, Indemnitee shall be indemnified against all
Expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee or on his behalf in
connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he
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 that his conduct was unlawful.
Indemnitee shall not enter into any settlement in connection with a
Proceeding without 10 days prior notice to the Company.
Section 4. Indemnity in
Proceedings by or in the Right of the Company . The Company
shall indemnify Indemnitee in accordance with the provisions of
this Section 4 if Indemnitee is, or is threatened to be made,
a party to or a participant in any Proceeding by or in the right of
the Company to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf
in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company. No indemnification for Expenses shall be made under
this Section 4 in respect of any claim, issue or matter as to
which Indemnitee shall have been finally adjudged by a court to be
liable to the Company, unless and only to the extent that the
Delaware Court of Chancery (the “ Delaware Court
”) or any court in which the 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 expenses as the Delaware Court or such other court shall deem
proper.
- 3 -
Section 5. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful .
Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee is a party to, or a participant in, and is
successful, on the merits or otherwise, in any Proceeding or in
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 him 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 (a) all Expenses actually
and reasonably incurred by him or on his behalf in connection with
each successfully resolved claim, issue or matter and (b) any
claim, issue or matter related to any such successfully resolved
claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or matter.
Section 6. 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 incurred by him or on his behalf
in connection therewith.
Section 7. Additional
Indemnification .
(a) Notwithstanding
any limitation in Sections 3, 4, or 5 hereof, the Company
shall indemnify Indemnitee to the fullest extent permitted by law
if Indemnitee is a party to, or threatened to be made a party to,
any Proceeding (including a Proceeding by or in the right of the
Company to procure a judgment in its favor) against all Expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with the
Proceeding.
(b) For
purposes of Section 7(a), the meaning of the phrase “to
the fullest extent permitted by law” shall include, but not
be limited to:
(i) to
the fullest extent permitted by the provision of the DGCL that
authorizes or contemplates additional indemnification by agreement,
or the corresponding provision of any amendment to or replacement
of the DGCL, and
(ii) to
the fullest extent authorized or permitted by any amendments to or
replacements of the DGCL adopted after the date of this Agreement
that increase the extent to which a corporation may indemnify its
officers and directors, employees or agents.
Section 8. Exclusions .
Notwithstanding any provision in this Agreement to the contrary,
the Company shall not be obligated under this Agreement to make any
indemnity with respect to any claim made against Indemnitee:
(a) for
which payment has actually been made to or on behalf of Indemnitee
under any insurance policy or other indemnity provision, except
with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provision.
- 4 -
(b) for
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, as amended, or
similar provisions of state statutory law or common law; or
(c) for
which payment is prohibited by applicable law.
Section 9. Advances of
Expenses . The Company shall advance, to the extent not
prohibited by law, the Expenses incurred by Indemnitee in
connection with any Proceeding, and such advancement shall be made
within 10 days after the receipt by the Company of a statement
or statements requesting such advances (which shall include
invoices received by Indemnitee in connection with such Expenses
but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditures made that
would cause Indemnitee to waive any privilege accorded by
applicable law shall not be included with the invoice) from time to
time, whether prior to or after final disposition of any
Proceeding. Advances shall be unsecured and interest free. Advances
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. Advances shall include any and all reasonable Expenses
incurred pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding statements to
the Company to support the advances claimed. The Indemnitee shall
qualify for advances upon the execution and delivery to the Company
of this Agreement which shall constitute an undertaking providing
that the Indemnitee undertakes to the fullest extent required by
law to repay the advance if and to the extent that it is ultimately
determined by final judicial decision from which there is no
further right to appeal that Indemnitee is not entitled to be
indemnified by the Company. This Section 9 shal
|
