EXHIBIT 10.8
RIGHTNOW TECHNOLOGIES, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the ____ day of
_______, 2000, by and between RightNow Technologies, Inc., a Delaware
corporation (the "Company"), and ___________________ (the "Indemnitee").
WHEREAS, competent persons are reluctant to serve a corporation as a
director or in another capacity 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 corporations;
WHEREAS, the Board of Directors of the Company has determined that the
ability to attract and retain such persons is in 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; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify 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.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein set forth below, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Initial Indemnity. (a) The Company shall indemnify the Indemnitee
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when he was or is a party or is threatened to be made party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Company), by reason of the fact that he is or was or had agreed to become a
director, officer, employee or agent of the Company, or is or was serving or had
agreed to serve at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) actually and
reasonably incurred by the Indemnitee in connection with such action, suit or
proceeding and any appeal therefrom it the 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, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendre or its equivalent, shall not, of itself, create a
presumption that the Indemnitee did not act in good faith and in a manner which
the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal action or proceeding,
that the Indemnitee had reasonable cause to believe that the Indemnitee's
conduct was unlawful.
(b) The Company shall indemnify the Indemnitee when he was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or 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 or had agreed to become a
director, officer, employee or agent of the Company, or is or was serving or had
agreed to serve at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit (if such settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld) or any appeal therefrom 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 that except that no indemnification shall be made
in respect of any claim, issue or matter as to which the Indemnitee shall have
been adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery or the court in which such action, suit or proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that the Indemnitee has been successful on the merits or
otherwise, including without limitation the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in Sections
1(a) or 1(b) hereof or in defense of any claim, issue or matter therein, he
shall be indemnified against costs, charges and expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under Sections 1(a) or 1(b) (unless ordered by a
court) shall be made by the Company only as authorized in the specific case upon
a determination, in accordance with Sections 1(d) and 3 hereof or any applicable
provision of the Certificate, the Bylaws, other agreement, resolution or
otherwise, that indemnification of the Indemnitee is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 1(a)
or 1(b). Such determination shall be made (i) by the Board of Directors of the
Company (the "Board") by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if such a quorum of
disinterested directors is not available or so directs, by independent legal
counsel (designated in the manner provided below in this subsection (d)) in a
written opinion, or (iii) by the stockholders of the Company (the
"Stockholders"). Independent legal counsel shall be designated by vote of a
majority of the disinterested directors; provided, however, that if the Board is
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unable or fails to so designate, such designation shall be made by the
Indemnitee subject to the approval of the Company (which approval shall not be
unreasonably withheld). Independent legal counsel shall not be any person or
firm who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company
or the Indemnitee in an action to determine the Indemnitee's rights under this
Agreement. The Company agrees to pay the reasonable fees and expenses of such
independent legal counsel and to indemnify fully such counsel against costs,
charges and expenses (including attorneys' and others' fees and expenses)
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actually and reasonably incurred by such counsel in connection with this
Agreement or the opinion of such counsel pursuant hereto.
(e) All expenses (including without limitation attorneys' and others' fees
and expenses) incurred by the Indemnitee in his capacity as a director, officer,
employee or agent of the Company in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
in accordance with Section 3(b) hereof.
(f) The Company shall not adopt any amendment to the Certificate or the
Bylaws the effect of which would be to deny, diminish or encumber the
Indemnitee's rights to indemnity pursuant to the Certificate, the Bylaws, the
General Corporation Law of the State of Delaware (the "GCL") or any other
applicable law as applied to any act or failure to act occurring in whole or in
part prior to the date (the "Effective Date") upon which the amendment was
approved by the Board or the Stockholders, as the case may be. In the event
that the Company shall adopt any amendment to the Certificate or Bylaws the
effect of which is to so deny, diminish or encumber the Indemnitee's rights to
indemnity, such amendment shall apply only to acts or failures to act occurring
entirely after the Effective Date thereof.
2. Additional Indemnification. (a) Pursuant to Section 145(f) of the
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GCL, without limiting any right which the Indemnitee may have pursuant to
Section 1 hereof, the Certificate, the Bylaws, the GCL, any policy of insurance
or otherwise, but subject to the limitations on the maximum permissible
indemnity which may exist under applicable law at the time of any request for
indemnity hereunder determined as contemplated by Section 2(a) hereof, the
Company shall indemnify the Indemnitee against any amount which he is or becomes
legally obligated to pay relating to or arising out of any claim made against
him because of any act, failure to act or neglect or breach of duty, including
any actual or alleged error, misstatement or misleading statement, which he
commits, suffers, permits or acquiesces in while acting in his capacity as a
director, officer, employee or agent of the Company, or, at the request of the
Company, as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The payments which the
Company is obligated to make pursuant to this Section 2 shall include, without
limitation, damages, judgments, settlements and charges, costs, expenses,
expenses of investigation and expenses of defense of legal actions, suits,
proceedings or claims and appeals therefrom, and expenses of appeal, attachment
or similar bonds; provided, however, that the Company shall not be obligated
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under this Section 2(a) to make any payment in connection with any claim against
the Indemnitee:
(i) to the extent of any fine or similar governmental imposition
which the Company is prohibited by applicable law from paying which results
in a final, nonappealable order; or
(ii) to the extent based upon or attributable to the Indemnitee
gaining in fact a personal profit to which he was not legally entitled,
including without limitation profits made from the purchase and sale by the
Indemnitee of equity securities of the Company which are recoverable by the
Company pursuant to Section 16(b) of the Securities Exchange Act of 1934,
as amended, and profits arising from transactions in publicly
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traded securities of the Company which were effected by the Indemnitee in
violation of Section 10(b) of the Securities Exchange Act of 1934, as
amended, including Rule 10b-5 promulgated thereunder; or
(iii) subject to the provisions of Section 6(c), to the extent based
upon or attributable to any actions, suits or proceedings initiated or
brought voluntarily by the Indemnitee and not by way of defense, but
indemnification may be provided by the Company if the Board of Directors
finds it to be appropriate.
The determination of whether the Indemnitee shall be entitled to indemnification
under this Section 2(a) may be, but shall not be required to, be made in
accordance with Section 3(a) hereof. If that determination is so made, it shall
be binding upon the Company and the Indemnitee for all purposes.
(b) All expenses (including without limitation attorneys' and others' fees
and expenses) incurred by the Indemnitee in his capacity as a director, officer,
employee or agent of the Company in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
in accordance with Section 3(b) hereof.
3. Certain Procedures Relating to Indemnification and Advancement of
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Expenses. (a) Except as otherwise permitted or required by the GCL, for
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purposes of pursuing his rights to indemnification under Sections 1(a), 1(b) or
2(a) hereof, as the case may be, the Indemnitee may, but shall not be required
to, (i) submit to the Board a sworn statement of request for indemnification
substantially in the form of Exhibit 1 attached hereto and made a part hereof
(the "Indemnification Statement") and (ii) present to the Company reasonable
evidence of all expenses for which payment is requested. Submission of an
Indemnification Statement to the Board shall create a presumption that the
Indemnitee is entitled to indemnification under Sections 1(a), 1(b) or 2(a)
hereof, as the case may be, and the Board shall be deemed to have determined
that the Indemnitee is entitled to such indemnification unless within 30
calendar days after submission of the Indemnification Statement the Board shall
determine by vote of a majority of the directors at a meeting at which a quorum
is present, based upon clear and convincing evidence (sufficient to rebut the
foregoing presumption), and the Indemnitee shall have received notice within
such period in writing of such determination that the Indemnitee is not so
entitled to indemnification, which notice shall disclose with particularity the
evidence in support of the Board's determination. The foregoing notice shall be
sworn to by all persons who participated in the determination and voted to deny
indemnification. The provisions of this Section 3(a) are intended to be
procedural only and shall not affect the right of the Indemnitee to
indemnification under this Agreement, and any determination by the Board that
the Indemnitee is not entitled to indemnification and any failure to make the
payments requested in the Indemnification Statement shall be subject to judicial
review as provided in Section 6 hereof.
(b) For purposes of determining whether to authorize advancement of
expenses pursuant to Section 1(e) or 2(b) hereof, the Indemnitee shall submit to
the Board a sworn statement of request for advancement of expenses substantially
in the form of Exhibit 2 attached hereto and made a part hereof (the
"Undertaking"), affirming that (i) he has reasonably incurred
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or will reasonably incur actual expenses in defending an actual civil or
criminal action, suit, proceeding or claim and (ii) he undertakes to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Company under this Agreement or otherwise. Upon receipt of an
Undertaking, the Board shall within 10 calendar days authorize immediate payment
of the expenses stated in the Undertaking, whereupon such payments shall
immediately be made by the Company. No security shall be required in connection
with any Undertaking and any Undertaking shall be accepted without reference to
the Indemnitee's ability to make repayment.
4. Subrogation; Duplication of Payments. (a) In the event of payment to
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the Indemnitee under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of the Indemnitee, who
shall execute all papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such rights.
(b) The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against the Indemnitee to the extent
the Indemnitee has actually received payment (under any insurance policy, the
Certificate, the Bylaws or otherwise) of the amounts otherwise payable
hereunder.
5. Stockholder Ratification. The Company may, at its option, propose at
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any future meeting of the Stockholders that this Agreement be ratified by the
Stockholders; provided, however, that the Indemnitee's rights hereunder shall be
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fully enforceable in accordance with the terms hereof whether or not such
ratification is sought or obtained; and provided further, however, that if such
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ratification is sought and not obtained, the Company, in the discretion of and
upon action by the Board, may rescind this Agreement; provided, however, that
such rescission shall not affect the rights granted to Indemnitee under this
Agreement pertaining to acts which occurred prior to the date of rescission.
6. Enforcement. (a) If a claim for indemnification made to the Company
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pursuant to Section 3 hereof is not paid in full by the Company within 30
calendar days after a written claim has been received by the Company, the
Indemnitee may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim.
(b) In any action brought under Section 4(a) hereof, it shall be a defense
to a claim for indemnification pursuant to Sections 1(a) or 1(b) hereof (other
than an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the Undertaking, if any is
required, has been tendered to the Company) that the Indemnitee has not met the
standards of conduct which make it permissible under the GCL for the Company to
indemnify the Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the Company (including
the Board, independent legal counsel or the Stockholders) to have made a
determination prior to commencement of such action that indemnification of the
Indemnitee is proper in the circumstances because he has met the applicable
standard of conduct set forth in the GCL, nor an actual determination by the
Company (including the Board, independent legal counsel or the Stockholders)
that the Indemnitee has not met such applicable standard of conduct, shall be a
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defense to the action or create a presumption that the Indemnitee has not met
the applicable standard of conduct.
(c) It is the intent of the Company that the Indemnitee not be required to
incur the expenses associated with the enforcement of his rights under this
Agreement by litigation or other legal action because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
the Indemnitee hereunder. Accordingly, if it should appear to the Indemnitee
that the Company has failed to comply with any of its obligations under the
Agreement or in the event that the Company or any other person takes any action
to declare the Agreement void or unenforceable, or institutes any action, suit
or proceeding designed (or having the effect of being designed) to deny, or to
recover from, the Indemnitee the benefits intended to be provided to the
Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee from
time to time to retain counsel of his choice, at the expense of the Company as
hereafter provided, to represent the Indemnitee in connection with the
initiation or defense of any litigation or other legal action, whether by or
against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. Regardless of the outcome
thereof, the Company shall pay and be solely responsible for any and all costs,
charges and expenses, including without limitation attorneys' and others' fees
and expenses, reasonably incurred by the Indemnitee (i) as a result of the
Company's failure to perform this Agreement or any provision thereof or (ii) as
a result of the Company or any person contesting the validity or enforceability
of this Agreement or any provision thereof as aforesaid.
7. Merger or Consolidation. In the event that the Company shall be a
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constituent corporation in a consolidation, merger or other reorganization, the
Company, if it shall not be the surviving, resulting or other corporation
therein, shall require as a condition thereto the surviving, resulting or
acquiring corporation to agree to indemnify the Indemnitee to the full extent
provided in Section 2 hereof. Whether or not the Company is the resulting,
surviving or acquiring corporation in any such transaction, the Indemnitee shall
also stand in the same position under this Agreement with respect to the
resulting, surviving or acquiring corporation as he would have with respect to
the Company if its separate existence had continued.
8. Nonexclusivity and Severability. (a) The right to indemnification
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provided by this Agreement shall not be exclusive of any other rights to which
the Indemnitee may be entitled under the Certificate, the Bylaws, the GCL, any
other statute, insurance policy, agreement, vote of stockholders or of directors
or otherwise, both as to actions in his official capacity and as to actions in
another capacity while holding such office, and shall continue after the
Indemnitee has ceased to be a director, officer, employee or agent and shall
inure to the benefit of his heirs, executors and administrators.
(b) If any provision of this Agreement or the application of any provision
hereof to any person or circumstances is held invalid, unenforceable or
otherwise illegal, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal.
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9. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware, without giving effect to the
principles of conflict of law thereof.
10. Modification; Survival. This Agreement contains the entire agreement
----------------------
of the parties relating to the subject matter hereof. This Agreement may be
modified only by an instrument in writing signed by both parties hereto. The
provisions of this Agreement shall survive the death, disability or incapacity
of the Indemnitee or the termination of the Indemnitee's service as an officer
of the Company and shall inure to the benefit of the Indemnitee's heirs,
executors and administrators.
11. Certain Terms. For purposes of this Agreement, references to "other
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enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on Indemnitee with respect to any employee
benefit plan; references to "serving at the request of the Company" shall
include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, the Indemnitee with respect to
an employee benefit plan, its participants or beneficiaries; references to the
masculine shall include the feminine; references to the singular shall include
the plural and vice versa; and if the Indemnitee acted in good faith and in a
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manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan he shall be deemed to have acted in a
manner "not opposed to the best interest of the Company" as referred to herein.
12. Director and Executive Officer Liability Insurance. The Company
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shall, from time to time, make the good faith determination whether or not it is
practicable for the Company to obtain and maintain a policy or policies with
reputable insurance companies covering certain liabilities that may be incurred
by its directors and executive officers. Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain such insurance if the
Company determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or if the
Indemnitee is covered by similar insurance maintained by a parent or subsidiary
of the Company. The Indemnitee shall be entitled to the protection of any such
insurance policies the Company may elect to maintain generally for the benefit
of its directors and officers (and to the extent the Company maintains such an
insurance policy or policies, the Indemnitee shall be covered by such policy or
policies in accordance with its or their terms, to the maximum extent of the
coverage available for any officer or director of the Company).
13. Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail, with postage prepaid, on the third business day after the date
on which it is so mailed:
If to Indemnitee, to:
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If to the Company, to:
RightNow Technologies, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
RIGHTNOW TECHNOLOGIES, INC.
BY: ________________________________
Its: _________________________
[NAME]
________________________________
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Exhibit 1
INDEMNIFICATION STATEMENT
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STATE OF _____________)
: ss.
COUNTY OF_____________)
I, ____________________, being first duly sworn, do depose and say as
follows:
1. This Indemnification Statement is submitted pursuant to the
Indemnification Agreement dated as of ___________, 2000, between RightNow
Technologies, Inc., a Delaware corporation (the "Company"), and the undersigned.
2. I am requesting indemnification against charges, costs, expenses
(including attorneys' and others' fees and expenses), judgments, fines and
amounts paid in settlement, all of which (collectively, "Liabilities") have been
or will be incurred by me in connection with an actual or threatened action,
suit, proceeding or claim to which I am a party or am threatened to be made a
party.
3. With respect to all matters related to any such action, suit,
proceeding or claim, I am entitled to be indemnified as herein contemplated
pursuant to the aforesaid Indemnification Agreement.
4. Without limiting any other rights which I have or may have, I am
requesting indemnification against Liabilities which have or may arise out of
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________.
____________________________________
Signature
Subscribed and sworn to before me, a Notary Public in and for said County
and State, this ____ day of ____________, 2000.
____________________________________
Notary Public
(Seal) My commission expires _____________.
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Exhibit 2
UNDERTAKING
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STATE OF _____________)
: ss.
COUNTY OF ____________)
I, __________________, being first duly sworn, do depose and say as
follows:
1. This Undertaking is submitted pursuant to the Indemnification
Agreement, dated as of _____________, 2000, between RightNow Technologies, Inc.,
a Delaware corporation (the "Company"), and the undersigned.
2. I am requesting advancement of certain costs, charges and expenses
which I have incurred or will incur in defending an actual or pending civil or
criminal action, suit, proceeding or claim.
3. I hereby undertake to repay this advancement of expenses if it shall
ultimately be determined that I am not entitled to be indemnified by the Company
under the aforesaid Agreement or otherwise.
4. The costs, charges and expenses for which advancement is requested
are, in general, all expenses related to ______________________________________
_______________________________________________________________________________
______________________________________________________________________________.
___________________________________
Signature
Subscribed and sworn to before me, a Notary Public in and for said County
and State, this ____ day of ____________, 2000.
____________________________________
Notary Public
(Seal) My commission expires _____________.
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