Exhibit 10.11
WPT ENTERTAINMENT, INC.
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of the
___ day of ______________, 200__, by and between WPT Enterprises, Inc., a
Delaware corporation (the "Company"), and _______________, an individual
resident of the State of ______________ (the "Indemnitee").
WHEREAS, the Indemnitee is a director or an officer of the Company; and
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
the Company in an effective manner and Indemnitee's reliance on the provisions
of the Company's Certificate of Incorporation and Bylaws (the "charter
documents") requiring indemnification of the Indemnitee to the fullest extent
permitted by law, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such charter documents will be
available to Indemnitee (regardless of, among other things, any amendment to or
revocation of such charter documents or any change in the composition of the
Company's Board of Directors or acquisition transaction relating to the
Company), the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the full
extent (whether partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and officers' liability
policies.
NOW THEREFORE, in consideration of the premises and of Indemnitee agreeing
to serve or continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. BASIC INDEMNIFICATION ARRANGEMENT. (a) In the event Indemnitee was, is
or becomes a party to or other participant in, or is threatened to be made a
party to or other participant in, a claim by reason of (or arising in part out
of) an Indemnifiable Event (a "Claim"), the Company shall indemnify Indemnitee
to the fullest extent permitted by law as soon as practicable, but in any event
no later than 30 days after written demand is presented to the Company, against
any and all Expenses, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection therewith) of such Claim and any federal, state, local or foreign
taxes imposed on Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement. If requested by Indemnitee in writing, the
Company shall advance (within two business days of such written request) any and
all Expenses to Indemnitee (an "Expense Advance"). Notwithstanding anything in
this Agreement to the contrary, and except as provided in Section 3, prior to a
Change in Control, Indemnitee shall not be entitled to indemnification pursuant
to this Agreement in connection with any Claim initiated by Indemnitee against
the Company or any director or officer of the Company unless the Company has
joined in or consented to the initiation of such Claim.
(b) Notwithstanding the foregoing, (i) the obligations of the Company
under Section 1(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the
special independent counsel referred to in Section 2 hereof is
involved) that Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make an Expense
Advance pursuant to Section 1(a) shall be subject to the condition that, if,
when and to the extent the Reviewing Party determines that Indemnitee would not
be permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced legal proceedings in a court of competent jurisdiction
to secure a determination that Indemnitee should be indemnified under applicable
law, any determination made by the Reviewing Party that the Indemnitee would not
be permitted to be Indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any Expense
Advance until a final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or lapsed).
Indemnitee's obligation to reimburse the Company for Expense Advances shall be
unsecured and no interest shall be charged thereon. If there has not been a
Change in Control, the Reviewing Party shall be selected by the Board of
Directors, and if there has been a Change in Control, the Reviewing Party shall
be the special independent counsel referred to in Section 2 hereof. If there has
been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively would not be permitted to be
indemnified in whole or in party under applicable law, Indemnitee shall have the
right to commence litigation in any court in the State of California having
subject matter jurisdiction thereof and in which venue is proper seeking an
initial determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof and the Company hereby consents to service
of process and to appear in any such proceeding. Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the Company and
Indemnitee.
2. 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 such 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, bylaw or charter document
now or hereafter in effect relating to Claims for Indemnifiable Events, the
Company shall seek legal advice only from special 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 within the last two years (other than in connection with such matters)
or for Indemnitee. In the event Indemnitee and the Company are unable to agree
on the selection of the special independent counsel, such special independent
counsel shall be selected by lot from among at least five law firms having more
than fifty attorneys and having a rating of "av" or better in the then current
Xxxxxxxxxx-Xxxxxxx Law Directory. Such selection shall be made in the presence
of Indemnitee (his legal counsel or either of them, as Indemnitee may elect).
Such counsel, among other things, shall, within 90 days of its retention, render
its written opinion to the Company and Indemnitee as to whether and to what
extent 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 to fully indemnify such counsel against any and all
expenses (including attorneys' fees), claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant thereto.
3. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees) and, if
requested by Indemnitee in writing, shall (within two business days of such
written request) advance such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any Claim asserted against or
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action brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement, bylaw or
charter document now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance expense
payment or insurance recovery, as the case may be.
4. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company of some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement of a Claim,
but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this Agreement, to
the extent that Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an Indemnifiable
Event or in defense of any issue or matter therein, including dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses incurred in
connection therewith. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
5. NO PRESUMPTION. For purposes of this Agreement, the termination of any
action, suit or proceeding by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by Indemnitee
of notice of the commencement of a Claim which may involve an Indemnifiable
Event, Indemnitee will, if a claim in respect thereof is to be made against the
Company under this Agreement, notify the Company of the commencement thereof,
but the omission so to notify the Company will not relieve it from any liability
which it may have to Indemnitee otherwise than under this Agreement. With
respect to any such Claim as to which Indemnitee notifies the Company of the
commencement thereof:
(a) the Company will be entitled to participate therein at its own
expense; and
(b) except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to Indemnitee.
After notice from the Company to Indemnitee of its election to assume the
defense thereof, the Company will not be liable to Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by Indemnitee in
connection with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the right to
employ its counsel in such action, suit or proceeding, but the fees and expenses
of such counsel incurred after notice from the Company of its assumption of the
defense thereof shall be at the expense of Indemnitee unless (i) the employment
of counsel by Indemnitee has been authorized by the Company, (ii) 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 such action, or
(iii) the Company shall not in fact have employed counsel to assume the defense
of such action, in each of which cases the fees and expenses of counsel shall be
at the expense of the Company. The Company shall not be entitled to assume the
defense of any claim
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brought by or on behalf of the Company or as to which the Indemnitee shall have
made the conclusion provided for in (ii) above; and
(c) the Company shall not be liable to indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner which would impose any penalty or limitation on the Indemnitee
without the Indemnitee's written consent. Neither the Company nor the Indemnitee
will unreasonably withhold their consent to any proposed settlement.
7. NON-EXCLUSIVITY, ETC. The rights of the Indemnitee hereunder shall be
in addition to any other rights Indemnitee may have under the charter documents
or the Delaware General Corporation Law or otherwise. To the extent that a
change in the Delaware General Corporation Law (whether by statute or judicial
decision) or in the charter documents permits greater indemnification by
agreement than would be afforded currently under the charter documents and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change.
8. LIABILITY INSURANCE. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
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 Company
director.
9. CERTAIN DEFINITIONS.
(a) CHANGE IN CONTROL: shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than Lakes
Entertainment, Inc. (including any subsidiary of Lakes Entertainment,
Inc.) and 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, becomes the
"beneficial owner" (as defined in Rule 13d-3 under said 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 such 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 shareholders was
approved by a vote of at least two-thirds 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 thereof, or (iii) the shareholders 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
thereto 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 such surviving entity outstanding immediately after such merger
or consolidation, or the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
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(b) CLAIM: any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution mechanism, or any inquiry,
hearing or investigation whether conducted by the Company or any other
party, whether civil, criminal, administrative, investigative or other.
(c) EXPENSES: include attorneys' fees and all other costs, fees,
disbursements, expenses and obligations of any nature whatsoever paid or
incurred in connection with investigating, defending, being a witness in
or participating in (including on appeal), or preparing to defend, be a
witness in or participate in any Claim relating to any Indemnifiable
Event.
(d) INDEMNIFIABLE EVENT: any event or occurrence (whether before or
after the date hereof) related to the fact that Indemnitee is or was a
director, officer, employee, agent or fiduciary for the Company, or is or
was serving at the request of the Company as a director, officer,
employee, trustee, agent or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, or by
reason of anything done or not done by Indemnitee in any such capacity.
(e) REVIEWING PARTY: (i) the Company's Board of Directors (provided
that a majority of directors are not parties to the particular claim for
which the Indemnitee is seeking indemnification) or (ii) any other person
or body appointed by the Company's Board of Directors, who is not a party
to the particular Claim for which Indemnitee is seeking indemnification,
or (iii) if there has been a Change in Control, the special independent
counsel referred to in Section 2 hereof.
(f) VOTING SECURITIES: any securities of the Company which vote
generally in the election of directors.
10. AMENDMENT, TERMINATION AND WAIVER. No supplement, modification,
amendment or termination of this Agreement shall be binding unless executed in
writing by both of 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.
11. SUBROGATION. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
12. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under insurance policy, charter documents or otherwise) of the amounts
otherwise indemnifiable hereunder; notwithstanding the foregoing, any payments
actually received by either Indemnitee or any professional association with
which Indemnitee may be affiliated, pursuant to any insurance policy covering
acts or omissions of the Indemnitee effected by him in any professional capacity
shall not be considered to be "duplicative payments" for purposes of this
Section 12.
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13. BINDING EFFECT, ETC. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as a director (or in one of the capacities
enumerated in Section 9(d) hereof) of the Company or of any other enterprise at
the Company's request.
14. SEVERABILITY. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
15. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
Executed as of this __ day of ___________, 200__.
WPT ENTERPRISES, INC.
By:
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Name:
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Title:
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[Name]
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Schedule A
Parties to Indemnification Agreements
NAME OF DIRECTOR/OFFICER DATE OF AGREEMENT
------------------------ -----------------
Xxxx Xxxxxx July 28, 2004
Xxxx Xxxxxx July 28, 2004
Xxxxxxx X. Xxxx July 28, 2004
Xxxxxx X. Xxxxxx, Xx. July 28, 2004
Xxx X. Xxxxxx July 28, 2004
Xxxxx Xxxxxxx July 28, 2004
Xxxxxx Xxxxx July 28, 2004
Xxxxx Xxxxx July 28, 2004
W. Xxxx Xxxxxx July 28, 2004
Xxxx Xxxxxx July 28, 2004
