INDEMNIFICATION AGREEMENT
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Exhibit 10.8
This Agreement is made and entered into as of the 28th day of July, 1993, by and between AFFINITY GROUP, INC., a Delaware corporation (the "Company") and ("Indemnitee").
WHEREAS, corporate officers and directors and persons who have consented to become directors are faced with the prospects of significant personal liability arising out of recent court decisions dealing with the activities of such individuals and the increasing unavailability and high cost of insurance;
WHEREAS, the Company realizes that, to attract and retain qualified officers and directors and to attract qualified persons who consent to be directors, it must provide them with increased protection against personal liability and the costs of litigation; and
WHEREAS, the Company has requested that the Indemnitee serve as a director of the Company and as an officer, director, employee, or agent of other corporations, subsidiaries, partnerships, joint ventures, trusts and other enterprises as requested by the Company, and the Indemnitee wishes to so serve;
NOW THEREFORE, the parties hereby agree as follows:
1. Agreement to Serve. Indemnitee has consented to serve and will, upon his election, serve the Company and any other corporation, subsidiary, partnership, joint venture, trust or other enterprise which Indemnitee serves at the request of the Company, so long as Indemnitee is duly elected and qualified in accordance with the provisions of the articles of incorporation and bylaws of the Company or until such sooner time as Indemnitee tenders a resignation in writing. The Company expressly confirms and agrees that it has entered into this agreement and assumed the obligations which are imposed on the Company in order to induce Indemnitee to consent to serve and, when elected, to serve as a director of the Company and acknowledges that Indemnitee is relying upon this agreement in consenting to serve and in serving in such capacity.
2. Maintenance of Insurance. The Company currently does not have in effect policies of insurance which provide insurance protection for its directors and officers against liabilities which may be incurred by them on account of their services to the Company. The Company may, but shall not be required to, put such insurance in effect. If such insurance is maintained by the Company, such insurance, to the extent of the coverage it provides, shall be primary and this agreement of indemnity shall be effective only to the extent that Indemnitee is not reimbursed pursuant to such insurance coverage. If such insurance is not maintained by the Company, Indemnitee shall be indemnified fully by the Company in accordance with the provisions of this agreement.
3. Indemnification. The Company shall indemnify Indemnitee from any liability which may be incurred as a result of the Indemnitee's consenting to serve as a director and serving as a director of the Company or as an officer, director, employee or agent of any other corporation, subsidiary, partnership, joint venture, trust or other enterprise which Indemnitee serves at the request of the Company in accordance with, and to the fullest extent authorized by, the provisions of the Delaware General Corporation Law, as it may from time to time be amended.
4. Additional Indemnification. In addition to the indemnification provided in the preceding section and subject to the exclusions set forth in section 6, the Company agrees to hold harmless and to indemnify Indemnitee against any and all expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative to which the Indemnitee is, was, or at any time becomes a witness or party or is threatened to be made a witness or party by reason of the fact that Indemnitee has consented to be, is or was at any time a director, officer, employee, or agent of the Company or is or was serving or at any time serves at the request of the Company as a director, officer, employee, or agent of the Company or
is or was serving or at any time serves at the request of the Company as a director, officer, employee, or agent of another corporation, subsidiary, partnership, joint venture, trust or other enterprise, except with respect to an action commenced by Indemnitee against the Company or by Indemnitee as a derivative action by or in the right of the Company. With respect to an action commenced by Indemnitee against the Company or by Indemnitee as a derivative action by or in the right of the Company, Indemnitee shall only be indemnified as determined by the board of directors in the specific case.
5. Contribution. If the indemnification provisions provided in section 4 should, under applicable law, be unenforceable or insufficient to hold Indemnitee harmless in respect of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee by reason of the fact of Indemnitee's consent to serve or service to or at the request of the Company, then the Company agrees that, for purposes of this section 5, the Company shall be treated as if it were a party who was or was threatened to be made a party defendant to the threatened, pending or completed action, suit or proceeding in which Indemnitee was involved and the Company shall contribute to the amounts paid or payable by Indemnitee as a result of such expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee in such proportion as is appropriate to reflect (i) the relative benefits accruing to the Company on the one hand and Indemnitee on the other and which arose out of the action or inaction or alleged action or inaction underlying the threatened, pending or contemplated suit or proceeding in which Indemnitee was involved, (ii) the relative fault of the Company on the one hand and Indemnitee on the other in connection with such action or inaction, or alleged action or inaction, and (iii) any other relevant equitable considerations. For purposes of this section 5, the relative benefit of the Company shall be deemed to be the benefits accruing to it and to all of the directors, officers, employees and agents (other than Indemnitee) as a group and treated as one entity, and the relative benefit of Indemnitee shall be deemed to be an amount not greater than Indemnitee's yearly base salary or director's compensation from the Company during the first year in which the action or inaction, or alleged action or inaction, forming the basis for the threatened, pending or contemplated suit or proceeding was alleged to have occurred. The relative fault shall be determined by reference to, among other things, the fault of the Company and all of its directors, officers, employees and agents (other than Indemnitee) as a group and treated as one entity, and Indemnitee's and such group's relative intent, knowledge, access to information and opportunity to have altered or prevented the action or inaction, or alleged action or inaction, forming the basis for the threatened, pending or contemplated suit or proceeding. Determinations and authorizations of payments under this section shall be made in the manner specified in section 9, and Indemnitee shall have the same remedies with regard thereto as set forth in section 10.
6. Limitations on Indemnity and Contribution. No indemnity pursuant to section 4 or contribution pursuant to section 5 shall be paid by the Company:
6.1 for which and to the extent that payment is actually made to Indemnitee under a valid and collectible insurance policy;
6.2 for which and to the extent that Indemnitee is indemnified or receives a recovery other than pursuant to this agreement;
6.3 with respect to any proceeding by or in the right of the Company, except that indemnity or contribution shall be made, to the extent permitted by law, against reasonable expenses in respect of any proceeding in which Indemnitee shall not have been adjudged liable to the Company;
6.4 with respect to acts or omissions which are prohibited under Section 145 of the Delaware General Corporation Law, as amended from time to time;
6.5 if a final decision by a court having jurisdiction in the matter shall determine that such indemnification or contribution is not lawful.
7. Advancement of Expenses. The Company shall pay the costs and expenses reasonably incurred by Indemnitee in investigating, defending, and appealing any threatened, pending or completed civil or criminal action, suit or proceeding, administrative or investigative, against Indemnitee in advance of final determination, upon receipt by the Company of (i) a written affirmation by Indemnitee of Indemnitee's good faith belief that Indemnitee has met the standard of conduct necessary for indemnification or contribution, if any, and (ii) a written undertaking by or on behalf of Indemnitee to repay any amounts so advanced if and to the extent it ultimately shall be determined that Indemnitee is not entitled to indemnification or contribution by the Company. Determinations and authorizations of payments under this section shall be made in the manner specified in section 9, and Indemnitee shall have the same remedies with regard thereto as set forth in section 10.
8. Notification and Defense of Claim. Promptly after receipt by Indemnitee of notice of the commencement of any action, suit or proceeding, Indemnitee shall, if a claim is to be made against the Company under this agreement, notify the Company of the commencement of the action. The omission to notify the Company will not relieve the Company of liability under this agreement unless the Company is prejudiced by the omission, and will not relieve it from any other liability which it may have to Indemnitee. With respect to any such action, suit or proceeding as to which Indemnitee notifies the Company:
8.1 The Company will be entitled to participate in the defense at its own expense.
8.2 Except as otherwise provided below, the Company, jointly with any other indemnifying party similarly notified, will be entitled to assume the defense with counsel reasonably satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense of a suit, 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, other than as provided below. Indemnitee shall have the right to employ Indemnitee's own 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 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 concluded reasonably that there may be a conflict of interest between the Company and 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 action, suit or proceeding brought by or in the right of the Company or as to which Indemnitee shall have made the conclusion provided for in (ii) above.
8.3 The Company shall not be liable to indemnify 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 liability on Indemnitee without Indemnitee's prior written consent. Neither the Company nor Indemnitee will unreasonably withhold their consent to any proposed settlement.
9. Determination of Right to Indemnification.
9.1 To obtain indemnification under this agreement, Indemnitee shall submit to the Company a written request, including 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 secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the board of directors in writing that Indemnitee has requested indemnification.
9.2 A determination with respect to Indemnitee's entitlement to indemnification shall be made in the specific case (i) by the board of directors by a majority vote of a quorum consisting of directors not parties to the proceeding, (ii) by independent legal counsel, (a) selected by the board of directors by vote as set forth in (i), or (b) if the requisite quorum of the board of directors
cannot be obtained, by a majority vote of the full board of directors, in which vote directors who are parties may participate, or (iii) by vote of the shareholders of the Company.
9.3 If the determination of entitlement to indemnification is to be made by independent counsel under section 9.2 of this agreement, the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the independent counsel as selected. 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 this agreement. Upon the commencement of any adjudication or arbitration under section 10 of this agreement, independent counsel shall be discharged and relieved of any further responsibility in such capacity, subject to the applicable standards of professional conduct then prevailing.
9.4 Indemnitee shall cooperate with the person, persons or entity making the determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity 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. All reasonable 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.
9.5 In making any determination with respect to entitlement or indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this agreement, and the Company shall have the burden of proof to overcome the presumption. The termination of any action, suit or proceeding which is covered by this agreement, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption for the purpose of this agreement that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had reasonable cause to believe that the conduct was unlawful.
9.6 A determination with respect to entitlement to indemnification shall be made and delivered in a written opinion within 90 days after receipt by the Company of the request for indemnification. If it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within 10 days after such determination.
10. Remedies of Indemnitee.
10.1 In the event that (i) a determination is made pursuant to section 9 of this agreement that Indemnitee is not entitled to indemnification under this agreement, (ii) the determination of entitlement to indemnification pursuant to section 9 of this agreement shall not have been made and delivered in a written opinion within 90 days after receipt by the Company of the request for indemnification, or (iii) any payment is not made within 10 days after a determination has been made that Indemnitee is entitled thereto, then Indemnitee shall be entitled to an adjudication in an appropriate court of the State of California, or in any other court of competent jurisdiction, of Indemnitee's entitlement to such indemnification. Alternatively, Indemnitee, at Indemnitee's option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this section. The Company shall not oppose Indemnitee's right to seek any such adjudication or award in arbitration.
10.2 In the event that a determination shall have been made pursuant to section 9 of this agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this section shall be conducted in all respects as a de novo trial or
arbitration, on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination.
10.3 If a determination shall have been made pursuant to section 9 of this agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this section, 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.
10.4 The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this section that the procedures and presumptions of this agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this agreement.
10.5 The obligations of the Company to make the payments required to be made hereunder, and to perform and observe the other agreements on its part contained herein, shall not be subject to diminution by set off, counterclaim, abatement or otherwise; provided, however, that the Indemnitee shall not be released from any liability or obligation which Indemnitee may owe the Company, whether hereunder or otherwise.
10.6 In the event that Indemnitee, pursuant to this section, seeks a judicial adjudication or an award in arbitration or enforce rights under, or to recover damages for breach of, this agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all expense (including attorneys' fees) actually and reasonably incurred in such judicial adjudication or arbitration, but only if Indemnitee prevails therein.
11. Continuation of Indemnity. All agreements and obligations of the Company contained in this agreement shall continue during the period Indemnitee has consented to be or is a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, subsidiary, partnership, joint venture, trust or other enterprise and shall continue thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that Indemnitee has consented to be or is or was a director or officer of the Company or is or was serving in any other capacity referred to in this agreement.
12. Other Rights and Remedies. The indemnification, contribution and advance payment of expenses provided by any provision of this agreement shall not be deemed exclusive of any other rights to which Indemnitee may be entitled under any provision of law, the articles of incorporation, any bylaw, other agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in Indemnitee's official capacity and as to action in any other capacity after consenting to serve as a director or while occupying any of the positions or having any of the relationships referred to in this agreement.
13. Other.
13.1 All notices, requests, demands, and other communications relating to this agreement shall be in writing and shall be deemed to be duly given if or served when personally delivered to any individual party, or on the first day after the date of deposit with Federal Express for next day delivery, postage prepaid, or on the third day after deposit in the United States mail, certified or registered, return receipt requested, postage prepaid, or on the date of telecopy, fax or similar telephonic transmission during normal business hours, provided that the recipient has specifically acknowledged by telephone receipt of such telecopy, fax or telephonic transmission; addressed, in all cases, to the party at his address set forth below, or to such other address as such party may hereafter designate by written notice to the other party.
If to Indemnitee, to:
or such other address as may have been furnished to the Company by Indemnitee and
if to the Company, to:
with a copy to:
or to such other address as may have been furnished to Indemnitee by the Company.
13.2 If any provision or provisions of this agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever (i) the validity, legality and enforceability of the remaining provisions of this agreement (including without limitation, all portions of any paragraphs of this agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions of this agreement (including, without limitation, all portions of any paragraph of this agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
13.3 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 of it.
13.4 No supplement, modification, or amendment of this agreement shall be binding unless executed in writing by both parties. No waiver of any of the provisions of this agreement shall be deemed or shall constitute a wavier of any other provisions (whether or not similar); nor shall such waiver constitute a continuing waiver.
13.5 The parties agree that this agreement shall be construed and enforced in accordance with and governed by the laws of the state of Minnesota applicable to contracts made and to be performed in that state.
13.6 This agreement shall be binding upon the Company and its successors and assigns and shall inure to the benefit of Indemnitee and Indemnitee's spouse, heirs, executors, personal representatives and administrators.
Entered into as of the day and year first above written.
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INDEMNIFICATION AGREEMENT
