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EXHIBIT 10.1
SYNCHRONOSS TECHNOLOGIES, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of [DATE]
by
and between Synchronoss Technologies, 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 Board of Directors of the Company (the "Board")
has
determined that, in order to attract and retain qualified
individuals, the
Company will attempt to maintain on an ongoing basis, at its sole
expense,
liability insurance to protect persons serving the Company and its
subsidiaries
from certain liabilities. Although the furnishing of such insurance
has been a
customary and widespread practice among United States-based
corporations and
other business enterprises, the Company believes that, given
current market
conditions and trends, such insurance may be available to it in the
future only
at higher premiums and with more exclusions. At the same time,
directors,
officers, and other persons in service to corporations or business
enterprises
are being increasingly subjected to expensive and time-consuming
litigation
relating to, among other things, matters that traditionally would
have been
brought only against the business enterprise itself. The Restated
Certificate of
Incorporation of the Company (the "Charter") authorizes
indemnification of the
officers and directors of the Company and the By-laws of the
Company (the
"By-laws") require such indemnification. Indemnitee may also be
entitled to
indemnification pursuant to the General Corporation Law of the
State of Delaware
("DGCL"). The Charter, By-laws 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 uncertainties relating to such insurance and to
indemnification have increased the difficulty of attracting and
retaining such
persons;
WHEREAS, 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
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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 By-laws and any
resolutions adopted
pursuant thereto, and shall not be deemed a substitute therefor,
nor to diminish
or abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee is concerned that the protection available
under
the Charter, By-laws and DGCL and insurance may not be adequate in
the present
circumstances, and in consideration of serving as a director
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; and
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, ETC.] 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 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, 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
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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
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 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; except one initiated by Indemnitee to enforce
his rights
under this Agreement.
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
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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.
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, 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
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(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.
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 in connection with any claim made against
Indemnitee:
(a) 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 Securities Exchange Act of
1934, as amended,
or similar provisions of state statutory law or common law; or
(b) 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 30
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
st
