Exhibit 10.1
INDEMNITY AGREEMENT
This Indemnity Agreement (this
“ Agreement ”), dated as of
_, 2007, is made by and between SuccessFactors, Inc., a Delaware
corporation (the “ Company ”), and
, a director and/or officer of the Company (the “
Indemnitee ”).
RECITALS
A. The Company is aware that
competent and experienced persons are increasingly reluctant to
serve as directors or officers of corporations unless they are
protected by comprehensive liability insurance and/or
indemnification, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and
because the exposure frequently bears no reasonable relationship to
the compensation of such directors and officers;
B. Based on their experience as
business managers, the Board of Directors of the Company (the
“ Board ”) has concluded that, to retain
and attract talented and experienced individuals to serve as
officers and directors of the Company, and to encourage such
individuals to take the business risks necessary for the success of
the Company, it is necessary for the Company contractually to
indemnify officers and directors and to assume for itself maximum
liability for expenses and damages in connection with claims
against such officers and directors in connection with their
service to the Company;
C. Section 145 of the
General Corporation Law of Delaware, under which the Company is
organized (the “ Law ”), empowers the
Company to indemnify by agreement its officers, directors,
employees and agents, and persons who serve, at the request of the
Company, as directors, officers, employees or agents of other
corporations or enterprises, and expressly provides that the
indemnification provided by the Law is not exclusive; and
D. The Company desires and has
requested the Indemnitee to serve or continue to serve as a
director or officer of the Company free from undue concern for
claims for damages arising out of or related to such services to
the Company.
NOW, THEREFORE, the parties
hereto, intending to be legally bound, hereby agree as
follows:
1.
Definitions .
1.1 Agent . For the purposes of this
Agreement, “ agent ” of the Company means
any person who is or was a director or officer of the Company or a
subsidiary of the Company; or is or was serving at the request of,
for the convenience of, or to represent the interest of the Company
or a subsidiary of the Company as a director or officer of another
foreign or domestic corporation, partnership, joint venture, trust
or other enterprise or an affiliate of the Company; or was a
director or officer of a foreign or domestic corporation which was
a predecessor corporation of the Company, including, without
limitation, SuccessFactors, Inc., a California corporation, or was
a director or officer of another enterprise or affiliate of the
Company at the request of, for the convenience of, or to represent
the interests of such
predecessor corporation. The term “ enterprise
” includes any employee benefit plan of the Company, its
subsidiaries, affiliates and predecessor corporations.
1.2 Expenses . For purposes of this Agreement,
“ expenses ” includes all direct and
indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys’ fees and related disbursements and
other out-of-pocket costs) actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense or appeal
of a proceeding or establishing or enforcing a right to
indemnification or advancement of expenses under this Agreement,
Section 4 or otherwise.
1.3 Proceeding . For the purposes of this
Agreement, “ proceeding ” means any
threatened, pending or completed action, suit or other proceeding,
whether civil, criminal, administrative, investigative or any other
type whatsoever.
1.4 Subsidiary . For purposes of this
Agreement, “ subsidiary ” means any
corporation of which more than fifty percent (50%) of the
outstanding voting securities is owned directly or indirectly by
the Company, by the Company and one or more of its subsidiaries or
by one or more of the Company’s subsidiaries.
2. Agreement to
Serve . The Indemnitee agrees to serve and/or
continue to serve as an agent of the Company, at the will of the
Company (or under separate agreement, if such agreement exists), in
the capacity the Indemnitee currently serves as an agent of the
Company, faithfully and to the best of his ability, so long as he
or she is duly appointed or elected and qualified in accordance
with the applicable provisions of the charter documents of the
Company or any subsidiary of the Company; provided ,
however , that the Indemnitee may at any time and for any
reason resign from such position (subject to any contractual
obligation that the Indemnitee may have assumed apart from this
Agreement), and the Company or any subsidiary shall have no
obligation under this Agreement to continue the Indemnitee in any
such position.
3.
Directors’ and Officers’ Insurance
. The Company shall, to the extent that the Board determines
it to be economically reasonable, maintain a policy of
directors’ and officers’ liability insurance (“
D&O Insurance ”), on such terms and
conditions as may be approved by the Board.
4. Mandatory
Indemnification . Subject to Section 9 below,
the Company shall indemnify the Indemnitee:
4.1 Third Party Actions . If the Indemnitee is
a person who 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 the fact that he is or was an agent of the
Company, or by reason of anything done or not done by him in any
such capacity, against any and all expenses and liabilities of any
type whatsoever (including, but not limited to, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement)
actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal of such proceeding if
he 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, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful; and
4.2 Derivative Actions . If the Indemnitee is
a person who 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 the fact that he is or was an
agent of the Company, or by reason of anything done or not done by
him in any such capacity, against any amounts paid in settlement of
any such proceeding and all expenses actually and reasonably
incurred by him in connection with the investigation, defense,
settlement or appeal of such proceeding if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Company; except that no
indemnification under this subsection shall be made in respect of
any claim, issue or matter as to which such person shall have been
finally adjudged to be liable to the Company by a court of
competent jurisdiction due to willful misconduct of a culpable
nature in the performance of his duty to the Company, unless and
only to the extent that the Court of Chancery or the court 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, such person is fairly and reasonably
entitled to indemnity for such amounts which the Court of Chancery
or such other court shall deem proper; and
4.3 Exception for Amounts Covered by Insurance
. Notwithstanding the foregoing, the Company shall not be obligated
to indemnify the Indemnitee 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) to the
extent such have been paid directly to the Indemnitee by D&O
Insurance.
5. Partial
Indemnification and Contribution .
5.1 Partial Indemnification . If the
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any
expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) incurred by him or her in the
investigation, defense, settlement or appeal of a proceeding but is
not entitled, however, to indemnification for all of the total
amount thereof, then the Company shall nevertheless indemnify the
Indemnitee for such total amount except as to the portion thereof
to which the Indemnitee is not entitled to indemnification.
5.2 Contribution . If the Indemnitee is not
entitled to the indemnification provided in Section 4 for any
reason other than the statutory limitations set forth in the Law,
then in respect of any threatened, pending or completed proceeding
in which the Company is jointly liable with the Indemnitee (or
would be if joined in such proceeding), the Company shall
contribute to the amount of expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by the Indemnitee in such
proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and the Indemnitee
on the other hand from the transaction from which such proceeding
arose and (ii) the relative fault of the Company on the one
hand and of the Indemnitee on the other hand in connection with the
events which resulted in such expenses, judgments, fines or
settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand
and of the Indemnitee on the other hand shall be determined by
reference to, among other things, the parties’ relative
intent, knowledge, access to information and opportunity to correct
or prevent the circumstances resulting in such
expenses, judgments, fines or settlement amounts. The Company
agrees that it would not be just and equitable i
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