FORM OF DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
Exhibit 10.30
This Director and Officer Indemnification Agreement (the “Agreement”) is made and
entered into this day of , , by and among Liberty Acquisition Holdings
Corp., a Delaware corporation (the “Company”) and
_____________
(“Indemnitee”).
WHEREAS, it is essential to the Company that it be able to retain and attract as directors
and officers the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors and officers to litigation
risks and expenses, and the limitations on the availability and terms and conditions of directors
and officers liability insurance have made it increasingly difficult for the Company to attract and
retain such persons;
WHEREAS, the Company’s Certificate of Incorporation (as amended from time to time, the
“Charter”) and/or Bylaws (as amended from time to time, the “Bylaws”), provide for
the indemnification of and advancement of expenses to its directors and officers, and the General
Corporation Law of the State of Delaware (the “DGCL”) and such Charter and Bylaws are not
exclusive and permit the Company to make other or additional indemnification and advancement
arrangements and agreements;
WHEREAS, to further promote the Company’s ability to attract and retain qualified individuals
to serve as directors and/or officers of the Company, the Company intends to maintain, directors
and officers liability insurance to protect the Company’s directors and officers from certain
liabilities;
WHEREAS, the Indemnitee does not regard the protections granted under the Charter and Bylaws
and such insurance agreements to be adequate in the present circumstances, and may not serve as a
director and/or officer of the Company without adequate protection;
WHEREAS, the Company desires that the Indemnitee serve in such capacity;
WHEREAS, to promote the Company’s ability to attract and retain qualified individuals to
serve as directors and/or officers of the Company, the Company desires to provide Indemnitee with
specific contractual assurance of Indemnitee’s rights to indemnification and advancement of
expenses to the greatest extent permitted by law against litigation risks and expenses
(regardless, among other things, of any change in the ownership of the Company or the composition
of its Board of Directors); and
WHEREAS, Indemnitee is relying upon the rights afforded under this Agreement in accepting
Indemnitee’s position as a director and/or officer of the Company.
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1
1. Definitions.
(a) “Change in Control” shall mean any (i) merger, consolidation, share
exchange or business combination involving the Company or any of its subsidiary Entities, (ii) a
sale, lease, exchange, transfer or other disposition in a single transaction or a series of
related
transactions, of 15% or more of the assets of the Company and its subsidiary Entities, taken
as a
whole, (iii) purchase or sale of shares of capital stock or other securities representing 15%
or
more of the voting power of the capital stock of the Company or any of its subsidiary
Entities,
including, without limitation, by way of tender or exchange offer, in a single transaction or
a
series of related transactions, (iv) reorganization, recapitalization, liquidation or
dissolution of
the Company or any of its subsidiary Entities, or (v) change in the composition of a majority
of
the Board of Directors of the Company in a single transaction or a series of related
transactions,
unless, in each case, such transaction described in subsections (i) - (v) hereof was adopted
and
approved by the members of the Board of Directors of the Company (or new or additional
members of the Board of Directors of the Company approved by such directors) in office at the
time of the adoption of this Agreement by the Company.
(b) “Corporate Status” describes the status of a person who is serving or has
served (i) as a director or officer of the Company or any subsidiary, (ii) in any capacity
with
respect to any employee benefit plan of the Company, or (iii) as a director, member, manager,
partner, trustee, officer, employee, or agent of any other Entity at the request of the
Company.
(c) “Entity” shall mean any corporation, partnership (including, without
limitation, any general, limited or limited liability partnership), limited liability company,
joint
venture, trust, foundation, association, organization or other legal entity.
(d) “Expenses” shall mean all fees, costs and expenses actually and
reasonably incurred in connection with any Proceeding (as defined below), including, without
limitation, reasonable attorneys’ fees, disbursements and retainers (including, without
limitation,
any such fees, disbursements and retainers incurred by Indemnitee pursuant to Sections
9 and
11(c) of this Agreement), fees, costs, expenses and disbursements of expert
witnesses, private
investigators and professional advisors (including, without limitation,
accountants and
investment bankers), court costs, transcript costs, fees of experts, travel expenses
(including,
without limitation, those of expert witnesses, private investigators and professional
advisors),
duplicating, printing and binding costs, telephone and fax transmission charges, postage,
delivery
services, secretarial services and other disbursements and expenses.
(e) “Liabilities” shall mean judgments, damages, liabilities, losses, penalties,
excise taxes, fines and amounts paid in settlement.
(f) “Potential Change in Control” shall mean (i) any agreement, instrument or
contract entered into by the Company that would result in a Change in Control, (ii) the
announcement by any person of an intention to take any action which would result in a Change
in Control, (iii) the increase in the beneficial ownership of not less than 5% of the voting
power
of the capital stock of the Company or any subsidiary Entity, by any person or Entity after
the
adoption of this Agreement by the Company, or (iv) the Board of Directors of the Company
adopts a resolution providing that a Potential Change in Control has occurred. For purposes
hereof, the term “beneficial owner” shall have the meaning ascribed to such term in Rule
13d-3 of the Securities Exchange Act of 1934, as amended.
2
(g) “Proceeding” shall mean any threatened, pending or completed claim, action,
suit, arbitration, mediation, alternate dispute resolution process, investigation, administrative
hearing, appeal, or any other proceeding, whether civil, criminal, administrative, arbitrative or
investigative, whether formal or informal, including a proceeding initiated by Indemnitee pursuant
to Section 11 of this Agreement to enforce Indemnitee’s rights hereunder.
2. Services
of Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to serve or continue to serve as a director and/or
officer of the Company. However, this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of the parties, if any.
3. Agreement to Indemnify and Hold Harmless. The Company agrees to
indemnify and hold harmless Indemnitee as follows:
(a) To the greatest extent permitted by applicable law and subject to the
exceptions contained in Section 4(a) below, if Indemnitee was or is a party or is
threatened to be
made a party to, or otherwise becomes a participant (as a witness or otherwise) in, any
Proceeding (other than an action by or in the right of the Company) by reason of Indemnitee’s
Corporate Status, Indemnitee shall be indemnified by the Company against all Expenses and
Liabilities incurred or paid by Indemnitee in connection with such Proceeding (referred to
herein
as “Indemnifiable Expenses” and “Indemnifiable Liabilities,” respectively, and
collectively as
“Indemnifiable Amounts”).
(b) To the greatest extent permitted by applicable law and subject to the
exceptions contained in Section 4(b) below, if Indemnitee was or is a party or is
threatened to be
made a party to, or otherwise becomes a participant (as a witness or otherwise) in, any
Proceeding by or in the right of the Company to procure a judgment in Indemnitee’s favor by
reason of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company
against all Indemnifiable Expenses.
4. Exceptions to Indemnification. Indemnitee shall be entitled to
the
indemnification provided in Sections 3 (a) and 3(b) above in all circumstances
other than the following:
(a) If indemnification is requested under Section 3(a) and it has been
adjudicated finally by a court of competent jurisdiction evidenced by a final nonappealable
order
that, in connection with the subject of the Proceeding out of which the claim for
indemnification
has arisen, Indemnitee failed to act in good faith and in a manner 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, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was
unlawful, Indemnitee shall not be entitled to payment of Indemnifiable Amounts hereunder.
3
(b) If indemnification is requested under Section 3(b) and:
(i) it has been adjudicated finally by a court of competent jurisdiction evidenced
by a final nonappealable order that, in connection with the subject of the Proceeding out of
which the claim for indemnification has arisen, Indemnitee failed to act in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, Indemnitee shall not be entitled to payment of Indemnifiable Expenses
hereunder; or
(ii) it has been adjudicated finally by a court of competent jurisdiction evidenced by
a final nonappealable order that Indemnitee is liable to the Company with respect to any
claim, issue or matter involved in the Proceeding out of which the claim for
indemnification has arisen, Indemnitee shall not be entitled to Indemnifiable Expenses
hereunder with respect to such claim, issue or matter unless the Court of Chancery (as
defined below) 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, Indemnitee is fairly and reasonably entitled to indemnity for
such Indemnifiable Expenses which such court shall deem proper.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Amounts for which Indemnitee
seeks payment under Section 3 of this Agreement and the basis for the claim. The
Company
shall pay such Indemnifiable Amounts to Indemnitee within thirty (30) calendar days of receipt
of the request. At the reasonable request of the Company, Indemnitee shall furnish such
documentation and information as are reasonably available to Indemnitee and necessary to
establish that Indemnitee is entitled to indemnification hereunder, and the Company shall pay
any Expenses incurred by Indemnitee in furnishing such documentation and information.
6. Indemnification for Expenses of a Participant. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate
Status, a
participant (as a witness or otherwise) in any Proceeding to which Indemnitee is not a party
or is
not threatened to be made a party, the Indemnitee shall be indemnified as provided in
Section 3
hereof.
7. Indemnification for Expenses When Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any such provision, to
the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified against
all Expenses. 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 with respect to each
successfully resolved claim, issue or matter. For purposes of this Agreement, and, without
limiting the generality of the foregoing, 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.
4
8. Effect of Certain Resolutions; Waiver of Right of Contribution; Other Sources. Neither the termination of any Proceeding by judgment, order, settlement,
conviction,
or upon a plea of nolo contedere or its equivalent, nor the failure of the Company to award
indemnification or to determine that indemnification is payable, shall create a presumption
that Indemnitee is not entitled to indemnification hereunder. The Company hereby waives any right
of contribution that it may have against Indemnitee with respect to any Proceeding in which the
Company and Indemnitee are jointly liable. The Company’s obligation to indemnify or advance
expenses to Indemnitee, if any, hereunder shall be reduced by the amount Indemnitee may collect as
indemnification or advancement of expense from any other Entity or any insurance policy.
9. Agreement to Advance Expenses; Conditions. The Company shall pay to
Indemnitee all Expenses incurred by Indemnitee in connection with any Proceeding, including a
Proceeding by or in the right of the Company and a Proceeding to enforce indemnification and
advancement rights under this Agreement, in advance of the final disposition of such
Proceeding,
if Indemnitee furnishes the Company with a written undertaking to repay the amount of such
Expenses advanced to Indemnitee if it is finally determined by a court of competent
jurisdiction
evidenced by a final nonappealable order that Indemnitee is not entitled under this Agreement
to
indemnification with respect to such Expenses. To the greatest extent permitted by
applicable
law, this undertaking is an unlimited general obligation of Indemnitee, shall be accepted by
the
Company without regard to the financial ability of Indemnitee to make repayment, and in no
event shall be required to be secured.
10. Procedure for Advance Payment of Expenses. Indemnitee shall submit to the
Company a written request specifying the Expenses for which Indemnitee seeks an advancement
under Section 9 of this Agreement, together with documentation evidencing that
Indemnitee has
actually and reasonably incurred such Expenses. Payment of Expenses under Section 9
shall be
made no later than thirty (30) calendar days after the Company’s receipt of such request.
11. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request for
payment of Indemnifiable Amounts under Sections 3 and 5 above or a request for an
advancement of Expenses under Sections 9 and 10 above, and the Company fails to make
such
payment or advancement in a timely manner pursuant to the terms of this Agreement, Indemnitee
may petition the Court of Chancery of the State of Delaware (the “Court of Chancery”)
to
enforce the Company’s obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section 11(a)
above, the Company shall have the burden of proving that Indemnitee is not entitled to payment
of Indemnifiable Amounts or Expenses, as applicable, hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any
Expenses incurred by Indemnitee in connection with investigating, preparing for, litigating,
defending, prosecuting or settling any action brought by Indemnitee under Section 11(a) above,
except where such action or any claim or counterclaim brought by the Company in connection
therewith is resolved in favor of the Company by a final nonappealable order.
5
(d) Validity of Agreement. The Company shall be precluded from asserting
in any Proceeding, including, without limitation, an action under Section 11(a)
above, that the
provisions of this Agreement are not valid, binding and enforceable or that there is
insufficient consideration for this Agreement and shall stipulate in such court that the Company
is bound by all the provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of the payment of Indemnifiable Amounts shall not be a
defense in any action brought under Section 11(a) above, and shall not create a
presumption that such indemnification is not permissible.
12. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the Company promptly
upon being served with any summons, citation, subpoena, complaint, indictment, information, or
other document relating to any Proceeding which may result in the payment of Indemnifiable
Amounts or the advancement of Expenses hereunder; provided, however, that the
failure to give
any such notice shall not disqualify Indemnitee from the right, or otherwise affect in any
manner
any right of Indemnitee, to receive payments of Indemnifiable Amounts or advancements of
Expenses hereunder, except to the extent the Company’s ability to defend in such Proceeding is
materially prejudiced thereby.
(b) Defense by Company. Subject to the provisions of the last sentence of this
Section 12(b) and of Section 12(c) below, the Company shall have the right to
defend Indemnitee
in any Proceeding which may give rise to the payment of Indemnifiable Amounts hereunder;
provided, however, that the Company shall notify Indemnitee of any such
decision to defend
within ten (10) calendar days of receipt of notice of any such Proceeding under Section
12(a)
above. The Company shall not, without the prior written consent of Indemnitee, consent to the
entry of any judgment against Indemnitee or enter into any settlement or compromise which (i)
includes an admission of fault of Indemnitee, or (ii) does not include, as an unconditional
term
thereof, the full release of Indemnitee from all liability in respect of such Proceeding,
which
release shall be in form and substance reasonably satisfactory to Indemnitee. Indemnitee
shall
not, without the prior written consent of the Company (which consent will not be unreasonably
withheld or delayed), consent to the entry of any judgment against Indemnitee or enter into
any
settlement or compromise with respect to which the Company has indemnification obligations to
Indemnitee. This Section 12(b) shall not apply to a Proceeding brought by
Indemnitee under
Section 11(a) above or pursuant to Section 20 below.
(c) Indemnitee’s Right to Counsel. Notwithstanding the provisions of
Section 12(b) above, (i) if in a Proceeding to which Indemnitee is a party by reason
of
Indemnitee’s Corporate Status, (A) Indemnitee reasonably concludes that he or she may have
separate defenses or counterclaims to assert with respect to any issue which are inconsistent
with
the position of other defendants in such Proceeding, or (B) a conflict of interest or
potential
conflict of interest exists between Indemnitee and the Company, or (ii) if the Company fails
to
assume the defense of such proceeding in a timely manner, Indemnitee shall be entitled to be
represented by separate legal counsel, which shall represent other persons’ similarly
situated, of
Indemnitee’s and such other persons’ choice and reasonably acceptable to the Company at the
expense of the Company. In addition, if the Company fails to comply with any of its
obligations
6
under this Agreement or in the event that the Company or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any action, suit or proceeding to deny
or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, except
with respect to such actions suits or proceedings brought by the Company that are resolved in favor
of the Company, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, at the
expense of the Company, to represent Indemnitee in connection with any such matter.
13. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to enter
into, and be bound by the terms of, this Agreement, and the execution, delivery and
performance
of the undertakings contemplated by this Agreement has been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the
Company in accordance with the provisions hereof, shall be a legal, valid and binding
obligation
of the Company, enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws affecting the enforcement of creditors’ rights generally or equitable
principles.
14. Establishment of Trust; Insurance. The Company shall, to the maximum
extent available, cover Indemnitee under any insurance policy secured for the directors and
officers of the Company or other Entity for which Indemnitee has Corporate Status. In the
event
of a Potential Change in Control, the Company shall, upon the written request of Indemnitee,
create a trust for the benefit of Indemnitee (a “Trust”), and shall deliver to the
Trust cash
proceeds sufficient to satisfy any Expenses and Indemnifiable Amounts reasonably anticipated
by Indemnitee at the time of such request to be payable pursuant to this Agreement.
15. Contract Rights Not Exclusive. The rights to payment of Indemnifiable
Amounts and advancement of Expenses provided by this Agreement shall be in addition to, but
not exclusive of, any other rights which Indemnitee may have at any time under applicable law
or the Charter or Bylaws, or any other agreement, vote of stockholders or directors (or a
committee of directors), or otherwise, both as to action in Indemnitee’s official capacity and
as to
action in any other capacity as a result of Indemnitee’s serving as a director and/or officer
of the
Company.
16. Successors. This Agreement shall be (a) binding upon all successors and assigns
of the Company (including any transferee of all or a substantial portion of the business,
stock
and/or assets of the Company and any direct or indirect successor by merger or consolidation
or
otherwise by operation of law), and (b) binding on and shall inure to the benefit of the
heirs,
personal representatives, executors and administrators of Indemnitee. To the greatest extent
permitted by applicable law, the Company shall cause any successor to the business, stock
and/or
assets of the Company (whether by operation of law or otherwise) to assume and agree to
perform this Agreement in the same manner as if no such succession had taken place. This
Agreement shall continue for the benefit of Indemnitee and such heirs, personal
representatives,
executors and administrators after Indemnitee has ceased to have Corporate Status.
7
17. Subrogation. In the event of any payment of Indemnifiable Amounts or
Expenses under this Agreement, the Company shall be subrogated to the extent of such payment
to all of the rights of contribution or recovery of Indemnitee against other persons, and
Indemnitee shall take, at the request of the Company, all reasonable action necessary to
secure
such rights, including the execution of such documents as are reasonably necessary to enable
the
Company to bring suit to enforce such rights.
18. Governing Law; Change in Law; Exclusive Jurisdiction. This Agreement
shall be governed by and construed and enforced under the laws of the State of Delaware,
without giving effect to the provisions thereof relating to conflicts of law (the
“Governing Law”). To the extent that a change in the Governing Law (whether by statute or judicial
decision) shall permit broader indemnification or advancement of expenses than is provided
under the terms of the Charter and Bylaws and this Agreement, Indemnitee shall be entitled to
such broader indemnification and advancements, and this Agreement shall be deemed to be
amended to such extent. To the greatest extent permitted by applicable law, the parties hereto
(i)
irrevocably submit to the personal jurisdiction of the Court of Chancery, and (ii) waive any
claim
of improper venue or any claim that the Court of Chancery is an inconvenient forum. To the
greatest extent permitted by applicable law, the parties hereby agree that the mailing of
process
and other papers in connection with any such proceeding in the manner provided in Section
22 or
in such other manner as may be permitted by law, shall be valid and sufficient service
thereof.
19. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement, or any clause thereof, shall be determined by a court of
competent
jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such provision or
clause
shall be limited or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions and clauses of
this
Agreement shall remain fully enforceable and binding on the parties.
20. Indemnitee as Plaintiff. Except as provided in Section 11 of this
Agreement and
in the next sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts or
advancement of Expenses with respect to any Proceeding brought by Indemnitee against the
Company, any Entity which it controls, or any director or officer thereof, prior to a Change
in
Control, unless the Board of Directors of the Company has consented to the initiation of such
Proceeding. This Section shall not apply to affirmative defenses asserted by Indemnitee or
any
counterclaims by Indemnitee which are resolved successfully (from the Company’s point of
view) in an action brought against Indemnitee or to any Proceeding brought by Indemnitee
against the Company, any Entity which it controls, or any director thereof, from and after a
Change in Control.
21. Modifications and Waiver. Except as provided in Section 18 above with
respect
to changes in the Governing Law which broaden the right of Indemnitee to be indemnified or
advanced expenses by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each of the parties hereto.
Notwithstanding any other provision of this Agreement, no supplement, modification or
amendment of this Agreement shall adversely affect any right or protection of Indemnitee in
respect of any act or omission occurring prior to the time of such supplement, modification or
amendment. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions of this Agreement (whether or not similar), nor shall
such waiver constitute a continuing waiver.
8
22. General Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered
by
hand, (b) when transmitted by facsimile and receipt is acknowledged, or (c) if mailed by
certified
or registered mail with postage prepaid, on the third business day after the date on which it
is so
mailed to such address as may have been furnished by any party to the others.
23. Termination. This Agreement shall terminate ten (10) years after Indemnitee
discontinues service to the Company as a director and/or officer thereof, or one (1) year
after the
conclusion (by final nonappealable order) of any Proceeding in respect of which Indemnitee is
granted rights of indemnification or advancement of expenses hereunder, whichever is later.
[The remainder of this page has been intentionally left blank]
9
IN WITNESS WHEREOF, the parties hereto have executed this Director and Officer
Indemnification Agreement as of the date first above written.
| THE COMPANY: LIBERTY ACQUISITION HOLDINGS CORP. |
||||
| By: | ||||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| INDEMNITEE: |
||||
| Name: | ||||
10
