EXHIBIT 10.2
XXXX MEDIA CORPORATION
AGREEMENT CONCERNING INDEMNIFICATION AND RELATED MATTERS
(DIRECTORS)
This Agreement is made as of , 1998, by and between
XXXX MEDIA CORPORATION, an Oregon corporation (the "Corporation"), and
(the "Director"), a director of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors of the Corporation the most capable persons available and persons who
have significant experience in business, corporate and financial matters; and
WHEREAS, the Corporation has identified the Director as a person
possessing the background and abilities desired by the Corporation and desires
the Director to serve as a director of the Corporation; and
WHEREAS, the substantial increase in corporate litigation may, from
time to time, subject directors to burdensome litigation, the risks of which
frequently far outweigh the advantages of serving in such capacity; and
WHEREAS, in recent times the cost of liability insurance has increased
and the availability of such insurance is, from time to time, severely limited;
and
WHEREAS, the Corporation and the Director recognize that serving as a
director of a corporation at times calls for subjective evaluations and
judgments upon which reasonable persons may differ and that, in that context, it
is anticipated and expected that directors of corporations will and do from time
to time commit actual or alleged errors or omissions in the good faith exercise
of their corporate duties and responsibilities; and
WHEREAS, it is the express policy of the Corporation to indemnify its
directors to the fullest extent permitted by law; and
WHEREAS, the Restated Articles of Incorporation of the Corporation
permit, and the Restated Bylaws of the Corporation require, indemnification of
the directors and officers of the Corporation to the fullest extent permitted by
law, including but not limited to the Oregon Business Corporation Act (the
"Act"), and the Act expressly provides that the indemnification provisions set
forth therein are not exclusive, and thereby contemplates that contracts may be
entered into between the Corporation and its directors and officers with respect
to indemnification; and
WHEREAS, the Corporation and the Director desire to articulate clearly
in contractual form their respective rights and obligations with regard to the
Director's service on behalf of the Corporation as a director and with regard to
claims for loss, liability, expense or damage which, directly or indirectly, may
arise out of or relate to such service.
NOW THEREFORE, the Corporation and the Director agree as follows:
1. AGREEMENT TO SERVE.
The Director shall serve as a director of the Corporation for so long
as the Director is duly elected or until the Director tenders a resignation in
writing. This Agreement creates no obligation on either party to continue the
service of the Director for a particular term or any term.
2. DEFINITIONS.
As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending
or completed action, suit or proceeding, whether formal or informal,
whether brought in the right of the Corporation or otherwise, and whether
of a civil, criminal, administrative or investigative nature, in which the
Director may be or may have been involved as a party, witness or otherwise,
by reason of the fact that the Director is or was a director of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, whether
or not serving in such capacity at the time any liability or expense is
incurred for which exculpation, indemnification or reimbursement can be
provided under this Agreement.
(b) The term "Expenses" includes, without limitation thereto,
expenses of investigations, judicial or administrative proceedings or
appeals, attorney, accountant and other professional fees and disbursements
and any expenses of establishing a right to indemnification under
Section 12 of this Agreement, but shall not include amounts paid in
settlement by the Director or the amount of judgments or fines against the
Director.
(c) References to "other enterprise" include, without
limitation, employee benefit plans; references to "fines" include, without
limitation, any excise taxes assessed on a person with respect to any
employee benefit plan; references to "serving at the request of the
Corporation" include, without limitation, any service as a director,
officer, employee or agent which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee
benefit plan, its participants, or its beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be
in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation" as referred to in this Agreement.
(d) References to the "Corporation" shall include, in addition
to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer or employee of
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such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this Agreement with respect to the
resulting or surviving corporation as such person would have with respect
to such constituent corporation if its separate existence had continued.
(e) For purposes of this Agreement, the meaning of the phrase
"to the fullest extent permitted by law" shall include, but not be limited
to:
(i) to the fullest extent authorized or permitted by any
amendments to or replacements of the Act adopted after the date of
this Agreement that increase the extent to which a corporation may
indemnify or exculpate its directors; and
(ii) to the fullest extent permitted by the provision of
the Act that authorizes or contemplates additional indemnification by
agreement, or the corresponding provision of any amendment to or
replacement of the Act.
3. LIMITATION OF LIABILITY.
(a) To the fullest extent permitted by law, the Director shall
have no monetary liability of any kind or nature whatsoever in respect of
the Director's errors or omissions (or alleged errors or omissions) in
serving the Corporation or any of its subsidiaries, their respective
shareholders or any other enterprise at the request of the Corporation, so
long as such errors or omissions (or alleged errors or omissions), if any,
are not shown by clear and convincing evidence to have involved:
(i) any breach of the Director's duty of loyalty to such
corporations, shareholders or enterprises;
(ii) any act or omission not in good faith or which
involved intentional misconduct or a knowing violation of law;
(iii) any unlawful distribution under Section 60.367 of the
Act (including, without limitation, dividends, stock repurchases and
stock redemptions);
(iv) any transaction from which the Director derived an
improper personal benefit; or
(v) profits made from the purchase and sale by the
Director of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provision of any state statutory law or common law.
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(b) Without limiting the generality of subparagraph (a) above
and to the fullest extent permitted by law, the Director shall have no
personal liability to the Corporation or any of its subsidiaries, their
respective shareholders or any other person claiming derivatively through
the Corporation, regardless of the theory or principle under which such
liability may be asserted, for:
(i) punitive, exemplary or consequential damages;
(ii) treble or other damages computed based upon any
multiple of damages actually and directly proved to have been
sustained;
(iii) fees of attorneys, accountants, expert witnesses or
professional consultants; or
(iv) civil fines or penalties of any kind or nature
whatsoever.
4. INDEMNITY IN THIRD-PARTY PROCEEDINGS.
The Corporation shall indemnify the Director in accordance with the
provisions of this Section 4 if the Director was or is a party to, or is
threatened to be made a party to, any Proceeding (other than a Proceeding by or
in the right of the Corporation to procure a judgment in its favor), against all
Expenses, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by the Director in connection with such Proceeding if the
Director acted in good faith and in a manner the Director reasonably believed
was in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, the Director, in addition, had no
reasonable cause to believe that the Director's conduct was unlawful. However,
the Director shall not be entitled to indemnification under this Section 4 in
connection with any Proceeding charging improper personal benefit to the
Director in which the Director is adjudged liable on the basis that personal
benefit was improperly received by the Director unless and only to the extent
that the court conducting such Proceeding or any other court of competent
jurisdiction determines upon application that, despite such adjudication of
liability, the Director is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances of the case.
5. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION.
The Corporation shall indemnify the Director in accordance with the
provisions of this Section 5 if the Director was or is a party to, or is
threatened to be made a party to, any Proceeding by or in the right of the
Corporation to procure a judgment in its favor, against all Expenses actually
and reasonably incurred by the Director in connection with the defense or
settlement of such Proceeding if the Director acted in good faith and in a
manner the Director reasonably believed was in or not opposed to the best
interests of the Corporation. However, the Director shall not be entitled to
indemnification under this Section 5 in connection with any Proceeding in which
the Director has been adjudged liable to the Corporation unless and only to the
extent that the court conducting such Proceeding or any other court of competent
jurisdiction determines upon application that, despite such adjudication of
liability, the Director is fairly and
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reasonably entitled to indemnification for such Expenses in view of all the
relevant circumstances of the case.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provisions of this Agreement other than
Section 8, to the extent that the Director has been successful, on the merits or
otherwise, in defense of any Proceeding or in defense of any claim, issue or
matter therein, including the dismissal of an action without prejudice, the
Corporation shall indemnify the Director against all Expenses actually and
reasonably incurred in connection therewith.
7. ADDITIONAL INDEMNIFICATION.
Notwithstanding any limitation in Sections 4, 5 or 6, the Corporation
shall indemnify the Director to the fullest extent permitted by law with respect
to any Proceeding (including a Proceeding by or in the right of the Corporation
to procure a judgment in its favor), against all Expenses, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by the Director in
connection with such Proceeding.
8. EXCLUSIONS.
Notwithstanding any provision in this Agreement, the Corporation shall
not be obligated under this Agreement to make any indemnification in connection
with any claim made against the Director:
(a) for which payment is made to or required to be made to or on
behalf of the Director under any insurance policy, except with respect to
any deductible amount, self-insured retention or any excess amount to which
the Director is entitled under this Agreement beyond the amount of payment
under such insurance policy;
(b) if a court having jurisdiction in the matter finally
determines that such indemnification is not lawful under any applicable
statute or public policy;
(c) in connection with any Proceeding (or part of any
Proceeding) initiated by the Director, or any Proceeding by the Director
against the Corporation or its directors, officers, employees or other
persons entitled to be indemnified by the Corporation, unless:
(i) the Corporation is expressly required by law to make
the indemnification;
(ii) the Proceeding was authorized by the Board of
Directors of the Corporation; or
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(iii) the Director initiated the Proceeding pursuant to
Section 12 of this Agreement and the Director is successful in whole
or in part in such Proceeding; or
(d) for an accounting of profits made from the purchase and sale
by the Director of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provision of any state statutory law or common law.
9. ADVANCES FOR EXPENSES.
The Corporation shall pay the Expenses incurred by the Director in any
Proceeding (other than a Proceeding brought for an accounting of profits made
from the purchase and sale by the Director of securities of the Corporation
within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provision of any state statutory law or common law) in
advance of the final disposition of the Proceeding at the written request of the
Director, if the Director:
(a) furnishes the Corporation a written affirmation of the
Director's good faith belief that the Director is entitled to be
indemnified under this Agreement; and
(b) furnishes the Corporation a written undertaking to repay the
advance to the extent that it is ultimately determined that the Director is
not entitled to be indemnified by the Corporation. Such undertaking shall
be an unlimited general obligation of the Director but need not be secured.
Advances pursuant to this Section 9 shall be made no later than 10
days after receipt by the Corporation of the affirmation and undertaking
described in subparagraphs (a) and (b) above, and shall be made without regard
to the Director's ability to repay the amount advanced and without regard to the
Director's ultimate entitlement to indemnification under this Agreement. The
Corporation may establish a trust, escrow account or other secured funding
source for the payment of advances made and to be made pursuant to this
Section 9 or of other liability incurred by the Director in connection with any
Proceeding.
10. NONEXCLUSIVITY AND CONTINUITY OF RIGHTS.
The indemnification, advancement of Expenses, and exculpation from
liability provided by this Agreement shall not be deemed exclusive of any other
rights to which the Director may be entitled under any other agreement, articles
of incorporation, bylaws, vote of shareholders or directors, the Act, or
otherwise, both as to action in the Director's official capacity and as to
action in another capacity while holding such office or occupying such position.
The indemnification under this Agreement shall continue as to the Director even
though the Director may have ceased to be a director of the Corporation or a
director, officer, employee or agent of an enterprise related to the Corporation
and shall inure to the benefit of the heirs, executors, administrators and
personal representatives of the Director.
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11. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
Any indemnification under Sections 4, 5, 6 or 7 shall be made no later
than 45 days after receipt of the written request of the Director, unless a
determination that the Director is not entitled to indemnification under this
Agreement is made within such 45-day period by:
(a) the Board of Directors by majority vote of a quorum
consisting of directors not at the time parties to the applicable
Proceeding;
(b) if such quorum cannot be obtained, majority vote of a
committee duly designated by the Board of Directors consisting solely of
two or more directors not at the time parties to the proceeding;
(c) special legal counsel selected by the Board of Directors or
its committee in the manner prescribed in subparagraph (a) or (b) above or,
if a quorum of the Board of Directors cannot be obtained under subparagraph
(a) above and a committee cannot be designated under subparagraph (b)
above, the special legal counsel shall be selected by majority vote of the
full Board of Directors, including directors who are parties to the
proceeding; or
(d) the shareholders of the Corporation.
12. ENFORCEMENT.
The Director may enforce any right to indemnification, advances or
exculpation provided by this Agreement in any court of competent jurisdiction
if:
(a) the Corporation denies the claim for indemnification,
advances or exculpation, in whole or in part; or
(b) the Corporation does not dispose of such claim within the
time period required by this Agreement.
It shall be a defense to any such enforcement action (other than an action
brought to enforce a claim for advancement of Expenses pursuant to, and in
compliance with, Section 9 of this Agreement) that the Director is not entitled
to indemnification or exculpation under this Agreement. However, except as
provided in Section 13 of this Agreement, the Corporation shall not assert any
defense to an action brought to enforce a claim for advancement of Expenses
pursuant to Section 9 of this Agreement if the Director has tendered to the
Corporation the affirmation and undertaking required thereunder. The burden of
proving by clear and convincing evidence that indemnification or exculpation is
not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors or independent legal counsel) to
have made a determination prior to the commencement of such action that
indemnification or exculpation is proper in the circumstances because the
Director has met the applicable standard of conduct nor an actual
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determination by the Corporation (including its Board of Directors or
independent legal counsel) that indemnification or exculpation is improper
because the Director has not met such applicable standard of conduct, shall be
asserted as a defense to the action or create a presumption that the Director is
not entitled to indemnification or exculpation under this Agreement or
otherwise. The Director's expenses incurred in connection with successfully
establishing the Director's right to indemnification, advances or exculpation,
in whole or in part, in any Proceeding shall also be paid or reimbursed by the
Corporation.
The termination of any Proceeding by judgment, order, settlement,
conviction or upon a plea of NOLO CONTENDERE, or its equivalent, shall not, of
itself, create a presumption that:
(i) the Director is not entitled to indemnification under
Sections 4, 5 or 7 of this Agreement because the Director did not act in
good faith and in a manner which the Director reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
the Director's conduct was unlawful; or
(ii) the Director is not entitled to exculpation under
Section 3 of this Agreement.
13. NOTIFICATION AND DEFENSE OF CLAIM.
As a condition precedent to indemnification under this Agreement, not
later than 30 days after receipt by the Director of notice of the commencement
of any Proceeding the Director shall, if a claim in respect of the Proceeding is
to be made against the Corporation under this Agreement, notify the Corporation
in writing of the commencement of the Proceeding. The failure to properly
notify the Corporation shall not relieve the Corporation from any liability
which it may have to the Director: (a) unless the Corporation shall be shown to
have suffered actual damages as a result of such failure; or (b) otherwise than
under this Agreement. With respect to any Proceeding as to which the Director
so notifies the Corporation of the commencement:
(a) The Corporation shall be entitled to participate in the
Proceeding at its own expense.
(b) Except as otherwise provided in this Section 13, the
Corporation may, at its option and jointly with any other indemnifying
party similarly notified and electing to assume such defense, assume the
defense of the Proceeding, with legal counsel reasonably satisfactory to
the Director. The Director shall have the right to use separate legal
counsel in the Proceeding, but the Corporation shall not be liable to the
Director under this Agreement, including Section 9 above, for the fees and
expenses of separate legal counsel incurred after notice from the
Corporation of its assumption of the defense, unless (i) the Director
reasonably concludes that there may be a conflict of interest between the
Corporation and the Director in the conduct of the defense of the
Proceeding, or (ii) the Corporation does not use legal counsel to assume
the defense of such Proceeding. The Corporation shall not be entitled to
assume the defense of any Proceeding brought by or on
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behalf of the Corporation or as to which the Director has made the
conclusion provided for in (i) above.
(c) If two or more persons who may be entitled to
indemnification from the Corporation, including the Director, are parties
to any Proceeding, the Corporation may require the Director to use the same
legal counsel as the other parties. The Director shall have the right to
use separate legal counsel in the Proceeding, but the Corporation shall not
be liable to the Director under this Agreement, including Section 9 above,
for the fees and expenses of separate legal counsel incurred after notice
from the Corporation of the requirement to use the same legal counsel as
the other parties, unless the Director reasonably concludes that there may
be a conflict of interest between the Director and any of the other parties
required by the Corporation to be represented by the same legal counsel.
(d) The Corporation shall not be liable to indemnify the
Director under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent, which shall not be
unreasonably withheld. The Director shall permit the Corporation to settle
any Proceeding that the Corporation assumes the defense of, except that the
Corporation shall not settle any action or claim in any manner that would
impose any penalty, limitation, disqualification or disenfranchisement on
the Director without the Director's written consent.
14. PARTIAL INDEMNIFICATION.
If the Director is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the Expenses,
judgments, fines or amounts paid in settlement, actually and reasonably incurred
by the Director in connection with such Proceeding, but not, however, for the
total amount thereof, the Corporation shall nevertheless indemnify the Director
for the portion of such Expenses, judgments, fines or amounts paid in settlement
to which the Director is entitled.
15. INTERPRETATION AND SCOPE OF AGREEMENT.
Nothing in this Agreement shall be interpreted to constitute a
contract of service for any particular period or pursuant to any particular
terms or conditions. The Corporation retains the right, in its discretion, to
terminate the service relationship of the Director, with or without cause, or to
alter the terms and conditions of the Director's service all without prejudice
to any rights of the Director which may have accrued or vested prior to such
action by the Corporation.
16. SEVERABILITY.
If this Agreement or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, the remainder of this Agreement
shall continue to be valid and the Corporation shall nevertheless indemnify the
Director as to Expenses, judgments, fines and amounts paid in settlement with
respect to any Proceeding to the fullest extent permitted by any applicable
portion of this Agreement that shall not have been invalidated.
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17. SUBROGATION.
In the event of payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Director. The Director shall execute all documents required and shall do all
acts that may be necessary to secure such rights and to enable the Corporation
effectively to bring suit to enforce such rights.
18. NOTICES.
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given upon
delivery by hand to the party to whom the notice or other communication shall
have been directed, or on the third business day after the date on which it is
mailed by United States mail with first-class postage prepaid, addressed as
follows:
(a) If to the Director, to the address indicated on the
signature page of this Agreement.
(b) If to the Corporation, to
Xxxx Media Corporation
0000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Chairman
With a copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxx LLP
1600 Pioneer Tower
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
or to any other address as either party may designate to the other in writing.
19. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall constitute the original.
20. APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with
the internal laws of the state of Oregon without regard to the conflict of laws
provisions thereof.
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21. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the Corporation and its
successors and assigns.
22. ATTORNEY FEES.
If any suit or action (including, without limitation, any bankruptcy
proceeding) is instituted to enforce or interpret any provision of this
Agreement, the prevailing party shall be entitled to recover from the party not
prevailing, in addition to other relief that may be provided by law, an amount
determined reasonable as attorney fees at trial and on any appeal of such suit
or action.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
XXXX MEDIA CORPORATION DIRECTOR
By:
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Title:
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Address
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