INDEMNIFICATION AGREEMENT
Exhibit
(e)(13)
INDEMNIFICATION
AGREEMENT, dated as of __________, between Simon Worldwide, Inc.
(“SWWI”), a Delaware corporation, or its subsidiary, and Simon Marketing, Inc.
(“SMI”), a Delaware corporation and wholly-owned subsidiary of SWWI (SWWI and
SMI are collectively referred to herein as the “Company”), and _____________
(the “Indemnitee”).
WHEREAS,
Indemnitee performs valuable services for the Company as an officer, director or
consultant; and
WHEREAS,
SWWI’s Restated Certificate of Incorporation and SMI’s Amended and Restated
Certificate of Incorporation (collectively referred to herein as the “Charter”)
provide for the indemnification of the officers and directors of the Company to
the maximum extent authorized by General Corporation Law of the State of
Delaware (the “Law”); and
WHEREAS,
the Charter and the Law permit contracts between the Company and the officers,
directors or consultant of the Company with respect to indemnification of such
officers and directors; and
WHEREAS,
in accordance with the authorization as provided by the Law, the Company may
purchase and maintain a policy or policies of directors’ and officers liability
insurance (“D & O Insurance”), covering certain liabilities which may be
incurred by its officers, directors or consultant in the performance of their
obligations to the Company; and
WHEREAS,
in furtherance of the intent of the parties, in recognition of past services
of Indemnitee and in order to induce Indemnitee to continue to serve
as an officer, director, or consultant of the Company, the Company has
determined and agreed to enter into this contract with Indemnitee;
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows:
1. Indemnity. The
Company hereby agrees to hold harmless and indemnify Indemnitee to the full
extent authorized or permitted by the Law, as such may be amended from time to
time, the Bylaws of the Company, and the Charter, as such may be
amended. In furtherance of the foregoing indemnification, and without
limiting the generality thereof:
(a) Proceedings other than
Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a)
if, by reason of his Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to or participant in any Proceeding (as
hereinafter defined) other than a Proceeding by or in the right of the
Company. Pursuant to this Section 1(a), Indemnitee shall be
indemnified against all Expenses (as hereinafter defined), judgments, penalties,
fines, liabilities and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, 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 Proceeding, had no reasonable cause to believe
his conduct was unlawful.
(b) Proceedings by or in the
Right of the Company. The Indemnitee shall be entitled to the
rights of indemnification provided in this Section 1(b) if, by reason of his
Corporate Status, he is, or is threatened to be made, a party to or participant
in any Proceeding brought by or in the right of the Company. Pursuant
to this Section 1(b), Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection with 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; provided, however,
that, if applicable law so provides, no indemnification against such Expenses
shall be made in respect of any claim, issue or matter in such Proceeding as to
which Indemnitee shall have been finally adjudged to be liable to the Company
unless and to the extent that the Court of Chancery of the State of Delaware
shall determine that such indemnification may be made.
(c) Indemnification for Expenses
of Indemnitee where he is Wholly or Partly
Successful. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a party to and is successful, on the merits or otherwise, in any Proceeding, he
shall be indemnified to the maximum extent permitted by law against all Expenses
actually and reasonably incurred by him or on his behalf 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 all Expenses actually and reasonably incurred by him or on
his behalf in connection with each 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.
2. Additional
Indemnity. In addition to, and without regard to any
limitations on, the indemnification provided for in Section 1, the Company shall
and hereby does indemnify and hold harmless Indemnitee against all Expenses,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf if, by reason of his Corporate
Status he is, or is threatened to be made, a party to or participant in any
Proceeding (including a Proceeding by or in the right of the
Company). The only limitation that shall exist upon the Company's
obligations pursuant to this Agreement shall be that the Company shall not be
obligated to make any payment to Indemnitee that is finally determined (under
the procedures, and subject to the presumptions, set forth in Sections 6 and 7
hereof) to be unlawful under Delaware law.
3. Contribution In The Event Of
Joint Liability.
(a) Whether
or not the indemnification provided in Sections 1 and 2 hereof is available, in
respect of any threatened, pending or completed action, suit or proceeding in
which Company is jointly liable with Indemnitee (or would be jointly liable if
joined in such action, suit or proceeding), Company shall pay, in the first
instance, the entire amount of any judgment or settlement of such action, suit
or proceeding without requiring Indemnitee to contribute to such payment and the
Company hereby waives and relinquishes any right of contribution it may have
against Indemnitee. The Company shall not enter into any settlement
of any action, suit or proceeding in which the Company is jointly liable with
Indemnitee (or would be jointly liable if joined in such action, suit or
proceeding) unless such settlement provides for a full and final release of all
claims asserted against Indemnitee.
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(b) Without
diminishing or impairing the obligations of the Company set forth in the
preceding subparagraph or in paragraphs 1 and 2 hereof, if, for any reason,
Indemnitee shall elect or be required to pay all or any portion of any judgment
or settlement in any threatened, pending or completed action, suit or proceeding
in which Company is jointly liable with Indemnitee, (or would be jointly liable
if joined in such action, suit or proceeding), the Company shall contribute to
the amount of Expenses, judgments, fines, liabilities and amounts paid in
settlement actually and reasonably incurred and paid or payable by Indemnitee in
proportion to the relative benefits received by the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly
liable with him (or would be jointly liable if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, from the
transaction from which such action, suit or proceeding arose; provided, however,
that the proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by reference to the
relative fault of the Company and all officers, directors or employees of the
Company other than Indemnitee who are jointly liable with Indemnitee (or would
be jointly liable if joined in such action, suit or proceeding), on the one
hand, and Indemnitee, on the other hand, in connection with the events that
resulted in such Expenses, judgments, fines, liabilities or settlement amounts,
as well as any other equitable considerations which the law may require to be
considered. The relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly
liable with him (or would be jointly liable if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary, and the degree to which
their conduct is active or passive.
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from any
claims of contribution which may be brought by officers, directors or employees
of the Company who may be jointly liable with Indemnitee.
4. 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 reasonable incurred by him or on
his behalf in connection therewith.
5. Advancement Of
Expenses. Notwithstanding any other provision of this
Agreement, the Company shall advance all reasonable Expenses incurred by or on
behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee's
Corporate Status within 15 days after the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses. Any advances and
undertakings to repay pursuant to this Section 5 shall be unsecured and interest
free. Notwithstanding the foregoing, the obligation of the Company to
advance Expenses pursuant to this Section 5 shall be subject to the condition
that, if, when and to the extent that the Company determines that Indemnitee
would not be permitted to be indemnified under the Law, the Company shall be
entitled to be reimbursed, within 30 days of such determination, by him for all
such amounts theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that he should be indemnified under the
Law, any determination made by the Company that Indemnitee would not be
permitted to be indemnified under the Law shall not be binding and Indemnitee
shall not be required to reimburse the Company for any advance of Expenses, and
the Company shall continue to advance Expenses, until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed).
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6. Procedures And Presumptions
For Determination Of Entitlement To Indemnification. It is the
intent of this Agreement to secure for Indemnitee rights of indemnity that are
as favorable as may be permitted under the law and public policy of the State of
Delaware. Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any question as to
whether Indemnitee is entitled to indemnification under this
Agreement:
(a) To obtain
indemnification (including, but not limited to, the advancement of Expenses and
contribution by the Company) under this Agreement, Indemnitee shall submit to
the Company a written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The President, any Vice President or the General Counsel of the
Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee has requested
indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 6(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto shall be made in the specific case
by one of the following three methods, which shall be at the election of
Indemnitee: (1) by a majority vote of the disinterested directors,
even though less than a quorum, or (2) by independent legal counsel in a written
opinion, or (3) by the stockholders.
(c) If the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be
selected as provided in this Section 6(c). The Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board). Indemnitee or the Company, as the
case may be, may, within 10 days after such written notice of selection shall
have been given, deliver to the Company or to Indemnitee, as the case may be, a
written objection to such selection; provided, however, that such objection may
be asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of “Independent Counsel” as defined in Section 13(e) of
this Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If a written
objection is made and substantiated, the Independent Counsel selected may not
serve as Independent Counsel unless and until such objection is withdrawn or a
court has determined that such objection is without merit. If, within
30 days after submission by Indemnitee of a written request for indemnification
pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected
and not objected to, either the Company or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or
Indemnitee to the other’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 6(b) hereof. The Company shall pay
any and all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 6(b) hereof,
and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c), regardless of the manner in which such
Independent Counsel was selected or appointed.
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(d) In making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume (unless
there is clear and convincing evidence to the contrary) that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 6(a) of this
Agreement. Anyone seeking to overcome this presumption shall have the
burden of proof and burden of persuasion, by clear and convincing
evidence.
(e) Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers, employees
or agents of the Enterprise in the course of their duties, or on the advice of
legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise or the Board by an independent certified public
accountant, by an independent public accountant, a financial advisor or by an
appraiser or other expert selected with reasonable care by the Enterprise or the
Board. In addition, the knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement. Whether or not the foregoing provisions of this
Section 6(e) are satisfied, it shall in any event by presumed (unless there is
clear and convincing evidence to the contrary) that Indemnitee has at all times
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. Anyone seeking to
overcome this presumption shall have the burden of proof and the burden of
persuasion, by clear and convincing evidence.
(f) The
Company acknowledges that a settlement or other disposition short of final
judgment may be successful if it permits a party to avoid expense, delay,
distraction, disruption and uncertainty. In the event that any
action, claim or proceeding to which Indemnitee is a party is resolved in any
manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without
payment of money or other consideration) it shall be presumed (unless there is
clear and convincing evidence to the contrary) that Indemnitee has been
successful on the merits or otherwise in such action, suit or
proceeding. Anyone seeking to overcome this presumption shall have
the burden of proof and persuasion, by clear and convincing
evidence.
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(g) If the
person, persons, or entity empowered or selected under Section 6(b) to determine
whether Indemnitee is entitled to indemnification shall not have made a
determination within 60 days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law; provided,
however, that such 60 day period may be extended for a reasonable time, not to
exceed an additional 15 days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating document and/or
information relating thereto; provided, further, that the foregoing provisions
of this Section 6(g) shall not apply if the determination of entitlement to
indemnification is to be made by the stockholders pursuant to Section 6(b) of
this Agreement and if within 15 days after receipt by the Company of the request
for such determination the Board or the Disinterested Directors, if appropriate,
resolve to submit such determination to the stockholders for their consideration
at the next annual meeting thereof and such determination is made
thereat.
(h) Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any Independent Counsel, member of
the Board or Directors, or stockholder of the Company shall act reasonably and
in good faith in making a determination under the Agreement of Indemnitee’s
entitlement to indemnification. Any costs or expenses (including
attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
7. Remedies.
(a) In the
event that (i) a determination is made pursuant to Section 6 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 5 of this
Agreement, (iii) no determination of entitlement to indemnification shall have
been made pursuant to Section 6(b) of this Agreement within 90 days after
receipt by the Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to this Agreement within ten days after
receipt by the Company of a written request therefor, or (v) payment of
indemnification is not made within ten days after a determination has been made
by Indemnitee is entitled to indemnification or such determination is deemed to
have been made pursuant to Section 6 of this Agreement and such matter has not
been cured, Indemnitee shall be entitled to an adjudication in an appropriate
court of the State of Delaware, or in any other court of competent jurisdiction,
of his entitlement to such indemnification. Indemnitee shall commence
such proceeding seeking an adjudication within 180 days following the date on
which Indemnitee first has the right to commence such proceeding pursuant to
this Section 7(a). The Company shall not oppose Indemnitee’s right to
seek any such adjudication.
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(b) In the
event that a determination shall have been made pursuant to Section 6(b) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section 7 shall be conducted in all
respects as a de novo trial, on the merits and Indemnitee shall not be
prejudiced by reason of that adverse determination.
(c) If a
determination shall have been made pursuant to Section 6(b) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in any judicial proceeding commenced pursuant to this Section
7, absent a prohibition of such indemnification under applicable
law.
(d) In the
event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication
of his right under, or to recover damages for breach of, this Agreement, or to
recover under any directors’ and officers’ liability insurance policies
maintained by the Company, the Company shall pay on his behalf, in advance, any
and all expenses (of the types described in the definition of Expenses in
Section 13 of this Agreement) actually and reasonably incurred by him in such
judicial adjudication, regardless of whether Indemnitee ultimately is determined
to be entitled to such indemnification, advancement of expenses or insurance
recovery.
(e) The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 7 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any such
court that the Company is bound by all the provisions of this
Agreement.
8. Non-Exclusivity; Survival Of
Rights; Insurance; Subrogation.
(a) The
rights of indemnification as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Charter, the Bylaws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by Indemnitee in his Corporate Status prior to
such amendment, alteration or repeal. To the extent that a change in
the law, whether by statute or judicial decision, permits greater
indemnification than would be afforded currently under the Charter, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change. No right or remedy
herein conferred is intended to be exclusive of any other right or remedy, and
every other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
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(b) To the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, consultants, or agents
or fiduciaries of the Company or of any other corporation, partnership, joint
venture, trust employee benefit plan or other enterprise which such person
serves at the request of the Company, 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 such director, officer, employee, consultant or agent
under such policy or policies.
(c) In the
event of any payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
9. Exception To Right Of
Indemnification. Notwithstanding any other provision of this
Agreement, Indemnitee shall not be entitled to indemnification under this
Agreement with respect to any Proceeding brought by him, or any claim therein,
unless (a) the bringing of such Proceeding or making of such claim shall have
been approved by the Board or (b) such Proceeding is being brought by Indemnitee
to assert, interpret or enforce his rights under this Agreement.
10. Duration Of
Agreement. All agreements and obligations of the Company
contained herein shall be effective as of the first date Indemnitee performed
services for the Company (even if this Agreement is signed after such date) and
shall continue during the period Indemnitee is an officer, director or
consultant of the Company (or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise) and shall continue thereafter so long
as Indemnitee shall be subject to any Proceeding (or any proceeding commenced
under Section 6 hereof) by reason of his Corporate Status, whether or not
he is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this
Agreement. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets
of the Company), assigns, spouses, heirs, executors and personal and legal
representatives. This Agreement shall continue in effect regardless
of whether Indemnitee continues to serve as an officer or director or consultant
of the Company or any other Enterprise at the Company's request.
11. Security. The
Company shall provide security to Indemnitee for the Company's obligations
hereunder through an irrevocable funded indemnification trust agreement. Any
such security, once provided to Indemnitee, may not be revoked or released
without the prior written consent of Indemnitee.
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12. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as an officer or director of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as an officer or
director of the Company. The Company further expressly confirms and
acknowledges that Indemnitee undertook and maintained his service as an officer
or director in reliance on Company's expressed intention to provide
indemnification to the fullest extent permitted by the Law.
(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
13. Obligations of
Company. SWWI and SMI agree to be jointly and severally liable
to the Indemnitee for all of their obligations to the Indemnitee under this
Agreement to the fullest extent permitted by the Law.
14. Definitions. For
purposes of this Agreement:
(a) “Corporate Status” describes
the status of a person who is or was a director, officer, employee, consultant
or agent or fiduciary of SWWI, SMI or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such
person is or was serving at the express written request of the
Company.
(b) “Disinterested Director” means
a director of the Company who (i) is not and was not a party to the Proceeding
in respect of which indemnification is sought by Indemnitee and (ii) does not
derive a personal or financial benefit (other than as a shareholder) from the
Proceeding in which indemnification is sought.
(c) “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 express written request of the Company as a director, officer,
employee, agent or fiduciary.
(d) “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, participating, or being or preparing to be a witness in a
Proceeding.
(e) “Independent
Counsel” means a law firm, or a member of 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
Indemnitee under this Agreement), 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 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.
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(f) “Proceeding”
includes 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
by or in the right of the Company or otherwise and whether civil, criminal,
administrative or investigative, in which Indemnitee was, is or will be involved
as a party or otherwise, by reason of the fact that Indemnitee is or was a
member of the Board or an officer of the Company, by reason of any action taken
by him or of any inaction on his part while acting as a member of the Board, 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 or other enterprise; in each case whether or not he is
acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement; and
excluding one initiated by Indemnitee pursuant to Section 7 of this Agreement to
enforce his rights under this Agreement.
15. Severability. If
any provision or provisions of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void, illegal or otherwise unenforceable
for any reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Agreement (including without limitation, each
portion of any section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; and (b) to the
fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
16. Modification And
Waiver. No supplement, modification, termination or amendment
of this Agreement shall be binding unless executed in writing by the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
17. Notice By Indemnitee.
Indemnitee agrees promptly to notify the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the
Company shall not relieve the Company of any obligation which it may have to
Indemnitee under this Agreement or otherwise.
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18. Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by and
receipted for by the party to whom said notice or other communication shall have
been directed (ii) sent by nationally recognized overnight courier or if (iii)
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:
(a)
If to
Indemnitee, to:
______________________________
______________________________
______________________________
______________________________
______________________________
with a
copy to:
______________________________
______________________________
______________________________
______________________________
______________________________
(b) If to the
Company, to:
Simon
Marketing, Inc.
Simon
Worldwide, Inc.
c/o Simon
Marketing, Inc.
1900
Avenue of the Stars
Xxxxx
000
Xxx
Xxxxxxx, XX 00000-0000
Attn: Corporate
Secretary
with a
copy to:
Cameron
Read, Esq.
Xxxxxx,
Xxxx & Xxxxxxx
Exchange
Place
00 Xxxxx
Xxxxxx
Xxxxxx,
XX 00000
or to
such other address as may have been furnished to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.
19. Identical
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
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20. Headings. The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
21. Governing
Law. The parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of
Delaware without application of the conflict of laws principles
thereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
SIMON
WORLDWIDE, INC.
AND SIMON MARKETING, INC.
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By:
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By:
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, Indemnitee |
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