EXHIBIT 10.2.8.2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as
of May __, 2003 by and between Ask Jeeves, Inc., a Delaware corporation (the
"Company"), and [name of director/officer] (the "Indemnitee"), a
[director/officer] of the Company.
BACKGROUND
A. The Indemnitee is currently serving as a
[director/officer] of the Company and in such capacity has rendered valuable
services to the Company.
B. The Company has investigated the availability and
sufficiency of liability insurance and Delaware statutory indemnification
provisions to provide its directors and officers with adequate protection
against various legal risks and potential liabilities to which directors and
officers are subject due to their position with the Company and has concluded
that insurance and statutory provisions may provide inadequate and unacceptable
protection to certain individuals requested to serve as its directors and
officers.
C. In order to induce and encourage highly experienced
and capable persons such as the Indemnitee to continue to serve as a
[director/officer] of the Company, the Board of Directors has determined, after
due consideration and investigation of the terms and provisions of this
Agreement and the various other options available to the Company and the
Indemnitee in lieu of this Agreement, that this Agreement is not only
reasonable and prudent but necessary to promote and ensure the best interests
of the Company and its shareholders.
AGREEMENT
In consideration of the continued services of the Indemnitee
and in order to induce the Indemnitee to continue to serve as a
[director/officer], the Company and the Indemnitee agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement:
(a) A "Change in Control" shall be deemed to
have occurred if (i) any "person" (as that term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the total voting power
represented by the Company's then outstanding voting securities, or (ii) during
any period of two consecutive years, individuals who at the beginning of the two
year period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election by
the Company's stockholders was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board of
Directors, or (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior to such a merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 80% of the total voting power
represented by the voting securities of the Company or the surviving entity
outstanding immediately after the merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company (in one transaction or a
series of transactions) of all or substantially all the Company's assets.
(b) The term "Expenses" includes, without
limitation, attorneys' fees, disbursements and retainers, accounting and witness
fees, travel and deposition costs, expenses of investigations, judicial or
administrative proceedings or appeals, amounts paid in settlement
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by or on behalf of Indemnitee, and any expenses of establishing a right to
indemnification, pursuant to this Agreement or otherwise including reasonable
compensation for time spent by the Indemnitee in connection with the
investigation, defense or appeal of a Proceeding or action for indemnification
for which he is not otherwise compensated by the Company or any third party. The
term "Expenses" does not include the amount of judgments, fines, penalties or
ERISA excise taxes actually levied against the Indemnitee.
(c) A "Potential Change in Control" shall be
deemed to have occurred if (i) the Company enters into an agreement or
arrangement, the consummation of which would result in the occurrence of a
Change in Control; (ii) any person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control; (iii) any person (other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company
acting in such capacity or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company), who is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 10% or more of
the combined voting power of the Company's then outstanding voting securities
increases his beneficial ownership of the securities by 5% or more over the
percentage so owned by that person on the date this Agreement is executed; or
(iv) the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
(d) The term "Proceeding" shall include any
threatened, pending or completed action, suit or proceeding, whether brought by
or in the name of the Company or otherwise and whether of a civil, criminal or
administrative or investigative nature, by reason of the fact that the
Indemnitee is or was a [director/officer] the Company, or is or was serving at
the request of the Company as a director, officer, employee or agent of another
enterprise, whether or not he is serving in such capacity at the time any
liability or Expense is incurred for which indemnification or reimbursement is
to be provided under this Agreement.
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SECTION 2. INDEMNIFICATION
2.1 INDEMNIFICATION IN THIRD PARTY ACTIONS
The Company shall indemnify the Indemnitee in accordance with
the provisions of this subsection 2.1 if the Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any Proceeding (other
than a Proceeding by or in the name of the Corporation to procure a judgment in
its favor), by reason of the fact that the Indemnitee is or was a
[director/officer] of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another enterprise against
all Expenses, judgments, fines, penalties and ERISA excise tax actually and
reasonably incurred by the Indemnitee in connection with the defense or
settlement of the Proceeding, to the fullest extent permitted by applicable
law; provided that any settlement be approved in writing by the Company.
2.2 INDEMNIFICATION IN PROCEEDINGS BY OR IN THE NAME OF
THE COMPANY
The Company shall indemnify the Indemnitee in accordance with
the provisions of this subsection 2.2 if the Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any Proceeding by or
in the name of the Company to procure a judgment in its favor by reason of the
fact that Indemnitee was or is a [director/officer] of the Company, or is or
was serving at the request of the Company as a director, officer, employee or
agent of another enterprise, against all Expenses actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of the
Proceeding, to the fullest extent permitted by applicable law.
2.3 PARTIAL INDEMNIFICATION
If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of, but not
the total amount of, the Expenses, judgments, fines, penalties or ERISA excise
taxes actually and reasonably incurred by him in the investigation, defense,
appeal or settlement of any Proceeding, the Company shall nevertheless indemnify
the Indemnitee for the portion of the Expenses, judgments, fines, penalties or
ERISA excise taxes to which the Indemnitee is entitled.
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2.4 INDEMNIFICATION HEREUNDER NOT EXCLUSIVE
The indemnification provided by this Agreement shall not be
deemed exclusive of any other rights to which the Indemnitee may be entitled
under the Articles of Incorporation, the Bylaws, any agreement, any vote of
shareholders or disinterested directors, applicable law, or otherwise, both as
to action in his official capacity and as to action in another capacity on
behalf of the Company while holding office.
2.5 INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY
Notwithstanding any other provisions of this Agreement, to the
extent that the Indemnitee has been successful in defense of any Proceeding or
in defense of any claim, issue or matter in the Proceeding, on the merits or
otherwise, including the dismissal of a Proceeding without prejudice, the
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith to the fullest extent permitted by applicable law.
2.6 CONTRIBUTION
If the indemnification provided in this Agreement is
unavailable by reason of a decision of a court of competent jurisdiction based
on grounds other than any of those set forth in Section 7, then in respect of
any Proceeding in which the Company is jointly liable with Indemnitee (or would
be if joined in such Proceeding), the Company shall contribute to the amount of
Expenses, judgments, fines, penalties and ERISA excise tax actually and
reasonably incurred and paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and Indemnitee on the other hand from the transaction or event from
which such Proceeding arose, and (ii) the relative fault of the Company on the
one hand and Indemnitee on the other in connection with the events which
resulted in such Expenses, judgments, fines, penalties and ERISA excise tax, as
well as any other relevant equitable considerations. The relative fault of the
Company on the one hand and Indemnitee on the other shall be determined by
reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the circumstances
resulting in such Expenses, judgments, fines, penalties and ERISA excise tax.
The Company agrees that it would not be just and equitable if contribution
pursuant to this
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subsection 2.6 were determined by pro rata allocation or any other method of
allocation which does not take account of the foregoing equitable
considerations.
SECTION 3. PRESUMPTIONS
3.1 PRESUMPTION REGARDING STANDARD OF CONDUCT
The Indemnitee shall be conclusively presumed to have met the
relevant standards of conduct as defined by applicable law for indemnification
pursuant to this Agreement, unless a determination that the Indemnitee has not
met the relevant standards is made by (i) the Board of Directors of the Company
by a majority vote of a quorum consisting of directors who were not parties to
the Proceedings, (ii) the stockholders of the Company by majority vote, or (iii)
in a written opinion by independent legal counsel, selection of whom has been
approved by the Indemnitee in writing.
3.2 DETERMINATION OF RIGHT TO INDEMNIFICATION
If a claim under this Agreement is not paid by the Company
within 30 days of receipt of written notice, the right to indemnification as
provided by this Agreement shall be enforceable by the Indemnitee in any court
of competent jurisdiction. The burden of proving by clear and convincing
evidence that indemnification or advances are not appropriate shall be on the
Company. Neither the failure of the directors or shareholders of the Company or
independent legal counsel to have made a determination prior to the commencement
of the action that indemnification or advances are proper in the circumstances
because the Indemnitee has met the applicable standard of conduct, nor an actual
determination by the directors or shareholders of the Company or independent
legal counsel that the Indemnitee has not met the applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(a) The Indemnitee's Expenses incurred in
connection with any Proceeding concerning his right to indemnification or
advances in whole or in part pursuant to this Agreement shall also be
indemnified by the Company regardless of the outcome of the Proceeding, unless a
court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in the Proceeding was not made in good faith or was
frivolous.
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SECTION 4. ADVANCES OF EXPENSES
The Expenses incurred by the Indemnitee in any Proceeding
shall be paid promptly by the Company in advance of the final disposition of the
Proceeding at the written request of the Indemnitee to the fullest extent
permitted by applicable law; provided that if applicable law requires an
undertaking, the Indemnitee shall undertake in writing to repay the amount
advanced to the extent that it is ultimately determined that the Indemnitee is
not entitled to indemnification.
SECTION 5. CHANGE IN CONTROL
The Company agrees that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by a majority of
the Company's Board of Directors who were directors immediately prior to the
Change in Control) then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and Expense advances
under this Agreement or any other agreement, the Company's Articles of
Incorporation, or the Company's Bylaws in effect relating to claims for
indemnifiable events, the Company shall seek legal advice only from independent
counsel selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld), and who has not otherwise performed services for
the Company or Indemnitee within the last five years (other than in connection
with such matters) ("Special Independent Counsel"). The Special Independent
Counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the reasonable
fees of the Special Independent Counsel referred to above and may fully
indemnify the Special Independent Counsel against any and all expenses
(including attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement.
SECTION 6. INDEMNIFICATION PROCEDURE
6.1 NOTICE
Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the Indemnitee will, if a claim is to be made
against the Company under this
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Agreement, notify the Company of the commencement of the Proceeding. The
omission to notify the Company will not relieve it from any liability which it
may have to the Indemnitee otherwise than under this Agreement.
6.2 COMPANY PARTICIPATION
With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate in the Proceeding at its
own expense and, except as otherwise provided below, to the extent that it may
wish, the Company may assume the defense of the Proceeding, with counsel
satisfactory to the Indemnitee. After notice from the Company to the Indemnitee
of its election to assume the defense of a Proceeding, during the Company's good
faith active defense the Company will not be liable to the Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense of the Proceeding, other than
reasonable costs of investigation or as otherwise provided below. The Company
shall not settle any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent. The
Indemnitee shall have the right to employ his counsel in any Proceeding but the
fees and expenses of the counsel incurred after notice from the Company of its
assumption of the defense of the Proceeding shall be at the expense of the
Indemnitee, unless (i) the employment of counsel by the Indemnitee has been
authorized by the Company, (ii) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of the defense of a Proceeding, or (iii) the Company shall not in
fact have employed counsel to assume the defense of a Proceeding, in each of
which cases the fees and expenses of the Indemnitee's counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the defense
of any Proceeding brought by or on behalf of the Company or as to which the
Indemnitee has made the conclusion that there may be a conflict of interest
between the Company and the Indemnitee.
SECTION 7. LIMITATIONS ON INDEMNIFICATION
No payments pursuant to this Agreement shall be made by the
Company:
(a) to indemnify or advance Expenses to the Indemnitee with
respect to Proceedings initiated or brought voluntarily by the Indemnitee and
not by way of defense, except
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with respect to Proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise
as required under applicable law, but the indemnification or advancement of
Expenses may be provided by the Company in specific cases if the Board of
Directors finds it to be appropriate;
(b) to indemnify the Indemnitee for any Expenses, judgements,
fines, penalties or ERISA excise taxes for which payment is actually made to the
Indemnitee under a valid and collectible insurance policy, except in respect of
any excess beyond the amount of payment under the insurance;
(c) to indemnify the Indemnitee for any Expenses, judgements,
fines or penalties sustained in any Proceeding for an accounting of profits made
from the purchase or sale by Indemnitee of securities of the Company pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934, the
rules and regulations promulgated thereunder and amendments thereto or similar
provisions of any federal, state or local statutory law;
(d) to indemnify the Indemnitee for any Expenses, judgements,
fines, penalties or ERISA excise taxes resulting from Indemnitee's conduct which
is finally adjudged to have been willful misconduct, knowingly fraudulent or
deliberately dishonest; or
(e) if a court of competent jurisdiction shall finally
determine that any indemnification hereunder is unlawful.
SECTION 8. MAINTENANCE OF LIABILITY INSURANCE
8.1 AFFIRMATIVE COVENANT OF THE COMPANY
The Company covenants and agrees that, as long as the
Indemnitee shall continue to serve as a [director/officer] of the Company and
thereafter so long as the Indemnitee shall be subject to any possible
Proceeding, the Company, subject to subsection 8.3 of this Agreement, shall
promptly obtain and maintain in full force and effect directors' and officers'
liability insurance ("D&O Insurance") in reasonable amounts from established
and reputable insurers.
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8.2 INDEMNITEE NAMED AS INSURED
In all D&O Insurance policies, the Indemnitee shall be named
as an insured in a manner that provides the Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Company's
directors and officers.
8.3 EXEMPTION FROM MAINTENANCE OF INSURANCE
Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines in good
faith that insurance is not reasonably available, the premium costs for
insurance are disproportionate to the amount of coverage provided, the coverage
provided by insurance is so limited by exclusions that it provides an
insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company.
SECTION 9. MISCELLANEOUS
9.1 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon, and shall inure to the
benefit of the Indemnitee and his heirs, personal representatives and assigns,
and the Company and its successors and assigns.
9.2 SEPARABILITY
Each provision of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision of this
Agreement shall be held to be invalid or unenforceable for any reason, the
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions of this Agreement. To the extent required, any provision
of this Agreement may be modified by a court of competent jurisdiction to
preserve its validity and to provide the Indemnitee with the broadest possible
indemnification permitted under applicable law.
9.3 SAVINGS CLAUSE
If this Agreement or any portion of it is invalidated on any
ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee as to Expenses, judgments, fines, penalties or
ERISA excise taxes with respect to any Proceeding to
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the full extent permitted by any applicable portion of this Agreement that shall
not have been invalidated or by any other applicable law.
9.4 INTERPRETATION; GOVERNING LAW
This Agreement shall be construed as a whole and in accordance
with its fair meaning. Headings are for convenience only and shall not be used
in construing meaning. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Delaware.
9.5 AMENDMENTS
No amendment, waiver, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
the party against whom enforcement is sought. The indemnification rights
afforded to the Indemnitee by this Agreement are contract rights and may not be
diminished, eliminated or otherwise affected by amendments to the Company's
Certificate of Incorporation, Bylaws or agreements including D&O Insurance
policies.
9.6 COUNTERPARTS
This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other.
9.7 NOTICES
Any notice required to be given under this Agreement shall be
directed to Ask Jeeves, Inc. at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxx 00000, Fax: (000) 000-0000, Attention: Xxxxx Xxxxxxxxx and to
Indemnitee at _______________________________________________________________ or
to another address as either shall designate in writing.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
[name of director/officer], Indemnitee
_________________________________________________
ASK JEEVES, INC.
By:_____________________________________________
Name: __________________________________________
Title:__________________________________________
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