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