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EXHIBIT 10.1
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this " Agreement ")
dated as of
, 20 , is made
by and between FAVRILLE, INC. , a Delaware
corporation (the " Company "), and
(" Indemnitee ").
R E C I T A L S :
A.
The Company desires to attract and retain the services of highly
qualified individuals as directors, officers, employees and
agents.
B.
The Company’s Amended and Restated Bylaws (the "
Bylaws "), require that the Company indemnify its
directors, and empowers the Company to indemnify its officers,
employees and agents, as authorized by the Delaware General
Corporation Law, as amended (the " Code "), under
which the Company is organized and such Bylaws expressly provide
that the indemnification provided therein is not exclusive and
contemplates that the Company may enter into separate agreements
with its directors, officers and other persons to set forth
specific indemnification provisions.
C.
Indemnitee does not regard the protection currently provided by
applicable law, the Company’s governing documents and
available insurance as adequate under the present circumstances,
and the Company has determined that Indemnitee and other directors,
officers, employees and agents of the Company may not be willing to
serve or continue to serve in such capacities without additional
protection.
D.
The Company desires and has requested Indemnitee to serve or
continue to serve as a director, officer, employee or agent of the
Company, as the case may be, and has proferred this Agreement to
Indemnitee as an additional inducement to serve in such
capacity.
E.
Indemnitee is willing to serve, or to continue to serve, as a
director, officer, employee or agent of the Company, as the case
may be, if Indemnitee is furnished the indemnity provided for
herein by the Company.
A G R E E M E N T :
NOW THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1.
Definitions .
(a) Agent .
For purposes of this Agreement, the term "agent" of the
Company means any person who: (i) is or was a director,
officer, employee or other fiduciary of the Company or a subsidiary
of the Company; or (ii) is or was serving at the request or
for the convenience of, or representing the interests of, the
Company or a subsidiary of the Company, as a director, officer,
employee or other fiduciary of a foreign or domestic corporation,
partnership, joint venture, trust or other enterprise.
(b)
Expenses . For purposes of this Agreement, the term
"expenses" shall be broadly construed and shall include, without
limitation, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, all attorneys’,
witness, or other professional fees and related disbursements, and
other out-of-pocket costs of whatever nature), actually and
reasonably incurred by Indemnitee in connection with the
investigation, defense or appeal of a proceeding or establishing or
enforcing a right to indemnification under this Agreement, the Code
or otherwise, and amounts paid in settlement by or on behalf of
Indemnitee, but shall not include any judgments, fines or penalties
actually levied against Indemnitee for such individual’s
violations of law. The term "expenses" shall also include
reasonable compensation for time spent by Indemnitee for which he
is not compensated by the Company or any subsidiary or third party
(i) for any period during which Indemnitee is not an agent, in the
employment of, or providing services for compensation to, the
Company or any subsidiary; and (ii) if the rate of compensation and
estimated time involved is approved by the directors of the Company
who are not parties to any action with respect to which expenses
are incurred, for Indemnitee while an agent of, employed by, or
providing services for compensation to, the Company or any
subsidiary.
(c)
Proceedings . For purposes of this Agreement, the term
"proceeding" shall be broadly construed and shall include, without
limitation, 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, and whether formal or informal in any case,
in which Indemnitee was, is or will be involved as a party or
otherwise by reason of: (i) the fact that Indemnitee is or
was a director or officer of the Company; (ii) the fact that any
action taken by Indemnitee or of any action on Indemnitee’s
part while acting as director, officer, employee or agent of the
Company; or (iii) the fact that Indemnitee 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, and in any such case described
above, whether or not serving in any such capacity at the time any
liability or expense is incurred for which indemnification,
reimbursement, or advancement of expenses may be provided under
this Agreement.
(d) Subsidiary
. For purposes of this Agreement, the term "subsidiary" means
any corporation or limited liability company of which more than 50%
of the outstanding voting securities or equity interests are owned,
directly or indirectly, by the Company and one or more of its
subsidiaries, and any other corporation, limited liability company,
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.
(e) Independent
Counsel . For purposes of this Agreement, the term
"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 (5) years has been, retained to represent: (i) the
Company or Indemnitee in any matter material to either such party,
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
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conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s
rights under this Agreement.
2.
Agreement to Serve . Indemnitee will serve, or
continue to serve, as a director, officer, employee or agent of the
Company or any subsidiary, as the case may be, faithfully and to
the best of his or her ability, at the will of such corporation (or
under separate agreement, if such agreement exists), in the
capacity Indemnitee currently serves as an agent of such
corporation, so long as Indemnitee is duly appointed or elected and
qualified in accordance with the applicable provisions of the
bylaws or other applicable charter documents of such corporation,
or until such time as Indemnitee tenders his or her resignation in
writing; provided, however, that nothing contained in this
Agreement is intended as an employment agreement between Indemnitee
and the Company or any of its subsidiaries or to create any right
to continued employment of Indemnitee with the Company or any of
its subsidiaries in any capacity.
The Company acknowledges that it has entered into this Agreement
and assumes the obligations imposed on it hereby, in addition to
and separate from its obligations to Indemnitee under the Bylaws,
to induce Indemnitee to serve, or continue to serve, as a director,
officer, employee or agent of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in
serving as a director, officer, employee or agent of the
Company.
3.
Indemnification .
(a)
Indemnification in Third Party Proceedings . Subject
to Section 10 below, the Company shall indemnify Indemnitee to
the fullest extent permitted by the Code, as the same may be
amended from time to time (but, only to the extent that such
amendment permits Indemnitee to broader indemnification rights than
the Code permitted prior to adoption of such amendment), if
Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any proceeding, for any and all expenses,
actually and reasonably incurred by Indemnitee in connection with
the investigation, defense, settlement or appeal of such
proceeding.
(b)
Indemnification in Derivative Actions and Direct Actions by the
Company . Subject to Section 10 below, the Company shall
indemnify Indemnitee to the fullest extent permitted by the Code,
as the same may be amended from time to time (but, only to the
extent that such amendment permits Indemnitee to broader
indemnification rights than the Code permitted prior to adoption of
such amendment), if Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any proceeding by or in
the right of the Company to procure a judgment in its favor,
against any and all expenses actually and reasonably incurred by
Indemnitee in connection with the investigation, defense,
settlement, or appeal of such proceedings.
4.
Indemnification of Expenses of Successful Party .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any proceeding or in defense of any claim,
issue or matter therein, including the dismissal of any action
without prejudice, the Company shall indemnify Indemnitee against
all expenses actually and reasonably incurred in connection with
the investigation, defense or appeal of such proceeding.
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5.
Partial Indemnification . If Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Company for some or a portion of any expenses actually and
reasonably incurred by Indemnitee in the investigation, defense,
settlement or appeal of a proceeding, but is precluded by
applicable law or the specific terms of this Agreement to
indemnification for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
6.
Advancement of Expenses . To the extent not prohibited
by law, the Company shall advance the expenses incurred by
Indemnitee in connection with any proceeding, and such advancement
shall be made within twenty (20) 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) and upon request of the Company, an undertaking to repay
the advancement of expenses if and to the extent that it is
ultimately determined by a court of competent jurisdiction in a
final judgment, not subject to appeal, that Indemnitee is not
entitled to be indemnified by the Company. Advances shall be
unsecured, interest free and without regard to Indemnitee’s
ability to repay the expenses. Advances shall include any and all
expenses actually and reasonably incurred by Indemnitee pursuing an
action to enforce Indemnitee’s right to indemnification under
this Agreement, or otherwise and this right of advancement,
including expenses incurred preparing and forwarding statements to
the Company to support the advances claimed. Indemnitee
acknowledges that the execution and delivery of this Agreement
shall constitute an undertaking providing that Indemnitee shall, to
the fullest extent required by law, repay the advance if and to the
extent that it is ultimately determined by
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