EXHIBIT (ww)
INFORMATION RESOURCES, INC.
DIRECTORSHIP AGREEMENT
This Agreement is made as of February 13, 2003, by and between Information
Resources, Inc., a Delaware corporation (the "Corporation"), and the individual
whose name and signature appears on the last page hereof under the heading
"Director," a director of the Corporation (the "Director").
WHEREAS, it is essential to the Corporation that it attract and retain as
directors 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 member of the Corporation's Board of Directors; 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, the cost and availability of directors' and officers' liability
insurance has not only fluctuated widely over time, but such insurance
frequently contains express or implied limitations on coverage of specific risks
and may involve protracted claims procedures that prevent the timely payment or
reimbursement of losses incurred by directors and officers in their own defense,
or by the Company on their behalf; 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 duties and responsibilities; and
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its directors to the fullest extent permitted by law;
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 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
1. AGREEMENT TO SERVE
The Director shall serve as a director of the Corporation for as long as
the Director is duly elected or appointed or until said Director tenders a
resignation in writing.
2. DEFINITIONS
As used in this Agreement:
(a) The term "Proceeding" includes, without limitation, any threatened,
pending or completed action, suit or proceeding, 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, may become, 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, 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, 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 tax
assessed 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 reasonably believed to be in the interest 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.
3. LIMITATION OF LIABILITY
(a) To the fullest extent permitted by law, the Director shall have no
monetary liability of any kind or nature with respect to the Director's conduct
in serving the Corporation or any of its subsidiaries, their respective
stockholders or any other enterprise at the request of the Corporation, except
that this Section 3(a) shall not affect liability of the Director for:
2
(i) any breach of the Director's duty of loyalty to the Corporation, such
subsidiaries, stockholders or enterprises;
(ii) any act or omission not in good faith or which involved intentional
misconduct or a knowing violation of law;
(iii) any transaction from which the Director derived an improper personal
benefit; or
(iv) any unlawful payment of dividends.
(b) Without limiting the generality of (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 stockholders or any
other person claiming derivatively through the Corporation or a subsidiary of
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 is 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 conduct of the Director was in good faith and the
Director reasonably believed that the Director's conduct was in, or not opposed
to, the best interests of the Corporation, and, in the case of a criminal
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 was
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 the adjudication of liability, the Director is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances.
5. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION
3
The Corporation shall indemnify the Director in accordance with the
provisions of this Section 5, if the Director is 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 such Proceeding if the conduct of the Director was in good faith
and the Director reasonably believed that the Director's conduct was in the best
interests of the Corporation, or at least, not opposed to its best interests.
However, the Director shall not be entitled to indemnification under this
Section 5 in connection with any issue, claim or matter in a Proceeding to the
extent that the Director has been adjudged liable to the Corporation with
respect to such issue, claim or matter, unless and only to the extent that the
court conducting such Proceeding or any other court of competent jurisdiction
determines upon application, that, despite the adjudication of liability, the
Director is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY
Notwithstanding any other provisions of this Agreement, 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, the Corporation
shall indemnify the Director against all Expenses incurred in connection
therewith.
7. ADDITIONAL INDEMNIFICATION
(a) 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, judgment,
fines and amounts paid in settlement, actually and reasonably incurred by the
Director in connection with such Proceeding, except that the Director shall not
be entitled to indemnification under this Section 7(a) on account of liability
for:
(i) any breach of the Director's duty of loyalty to the Corporation or
any of its subsidiaries, their respective stockholders, or any other
enterprise that the Director was serving at the request of the
Corporation at the time of such breach;
(ii) any act or omission not in good faith or which involved intentional
misconduct or a knowing violation of law; or
(iii) any transaction from which the Director derived an improper personal
benefit.
(b) Notwithstanding any limitation in Sections 4, 5, 6 or 7(a), 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)
4
against all Expenses, judgment, 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) to the extent to which any payment has been made to or on behalf of the
Director under any insurance policy or indemnity arrangement, except with
respect to any excess amount to which the Director is entitled under this
Agreement beyond the amount of payment under such insurance policy or
arrangement;
(b) if a court having jurisdiction in the matter finally determines that
such indemnification is not lawful under any applicable statute or public policy
(and, in this respect, both the Corporation and the Director have been advised
that in the opinion of the Securities and Exchange Commission indemnification
for liabilities arising under the Securities Act of 1933 is against public
policy and is, therefore, unenforceable and that claims for such indemnification
should be submitted to appropriate courts for adjudication unless, in the
opinion of counsel, the matter has been settled by controlling precedent); or
(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 (iii) the Director initiated the Proceeding
pursuant to Section 12 of this Agreement and the Director is successful in whole
or in part in the Proceeding.
9. ADVANCES OF EXPENSES
The Corporation shall pay the Expenses incurred by the Director in any
Proceeding 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, except as otherwise
provided herein.
5
Advances pursuant to this Section 9 shall be made no later than ten days
after receipt by the Corporation of the affirmation and undertaking described in
Sections 9(a) and 9(b) above, and, except as provided in Section 11, 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, any articles of
incorporation, bylaws or vote of shareholders or directors, or otherwise, both
as to action in the Director's official capacity and as to action in another
capacity while holding such office. The indemnification under this Agreement
shall cover the Director's service as a director and all of his acts in such
capacity, whether prior to or on or after the date of this Agreement, and such
indemnification shall continue as to the Director even though the Director may
have ceased to be 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.
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 said Director, unless a
determination is made within such 45 day period by (a) the Board of Directors by
a majority vote of a quorum consisting of directors who were not parties to the
applicable Proceeding, even though less than a quorum; (b) a committee of such
directors designated by a majority vote of such directors, even though less than
a quorum; (c) independent legal counsel in a written opinion or (d) a majority
vote of the shareholders that, on the basis of facts then known, the said
Director is not entitled to indemnification under this Agreement. In the event
that the Board of Directors, committee, independent counsel or shareholders, as
the case may be, determine that they cannot reasonably determine entitlement to
indemnification within the 45 day period, the director shall be entitled to an
advancement of the amount of the indemnification requested, subject to such
security for repayment as the board of directors may require.
12. ENFORCEMENT
The Director may enforce any right to indemnification or advances provided
by this Agreement in any court of competent jurisdiction if (a) the Corporation
denies the claim for indemnification or advances, in whole or in part, or (b)
the Corporation does not dispose of such
6
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 under this
Agreement. However, except as provided in Section 13 of this Agreement, the
Corporation shall have no 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 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 advancement of Expenses is proper in the
circumstances because the Director has met the applicable standard of conduct
nor an actual determination by the Corporation (including its Board of Directors
or independent legal counsel) that indemnification is improper because the said
Director has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the Director is not entitled to
indemnification 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 indemnified by the Corporation.
The termination of any Proceeding by judgment, order of court, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that (a) the Director is not entitled to
indemnification under Sections 4, 5 or 7 of this Agreement, or (b) the Director
is not entitled to exculpation under Section 3 of this Agreement.
13. NOTIFICATION AND DEFENSE OF CLAIM
Not later than 90 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 of the commencement of the Proceeding. The omission to notify
the Corporation will not relieve the Corporation from any liability which it may
have to the Director otherwise than under this Agreement. With respect to any
Proceeding as to which the Director 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 below, 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
7
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 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) Notwithstanding any other provision of this agreement, 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 or limitation on the Director without the
Director's written consent, which may be given or withheld in the said
Director's sole discretion.
14. PARTIAL INDEMNIFICATION
If the Director is entitled under any provisions 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,
and advance Expenses, for the portion of such Expenses, judgments, fines or
amounts paid in settlement to which the Director is entitled.
15. SEVERABILITY
If this Agreement or any portion thereof shall be invalidated on any ground
by any court of competent jurisdiction, then 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 or by any other
applicable law.
16. SUBROGATION
8
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.
17. NOTICES
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (a)
upon delivery by hand to the party to whom the notice or other communication
shall have been directed, or (b) on the third business day after the date on
which it is mailed by certified or registered mail with postage prepaid,
addressed as follows:
(i) If to the Director, to the address indicated on the signature page of
this Agreement, below said Director's signature.
(ii) If to the Corporation, to: Information Resources, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
or to any other address as either party may designate to the other in
writing.
18. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall constitute the original.
9
19. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware without regard to the principles of
conflict of laws.
20. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the Corporation and its successors and
assigns.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
CORPORATION:
INFORMATION RESOURCES, INC.,
a Delaware corporation
Attest: By:
--------------------------- -----------------------------------
Secretary Chief Executive Officer
DIRECTOR:
--------------------------------------
Address:
10
