EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT ("Agreement") is made on ________, 199_,
among INTERPLAY ENTERTAINMENT CORP., a Delaware corporation (the "Company"),
INTERPLAY PRODUCTIONS, a California corporation ("Interplay California") and
________________ ("Indemnitee"), an officer and/or member of the Board of
Directors of the Company.
WHEREAS, the Company desires the benefits of having Indemnitee serve as an
officer and/or director of the Company secure in the knowledge that expenses,
liability and losses incurred by him in his good faith service to the Company
will be borne by the Company or its successors and assigns in accordance with
applicable law; and
WHEREAS, the Company desires that Indemnitee resist and defend against what
Indemnitee may consider to be unjustified investigations, claims, actions, suits
and proceedings which have arisen or may arise in the future as a result of
Indemnitee's service to the Company notwithstanding that conditions in the
insurance markets may make directors' and officers' liability insurance coverage
unavailable or available only at premium levels which the Company may deem
inappropriate to pay; and
WHEREAS, the parties believe it appropriate to memorialize and reaffirm the
Company's indemnification obligations to Indemnitee and, in addition, set forth
the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties agree as follows:
1. INDEMNIFICATION.
(a) Indemnitee shall be indemnified and held harmless by the Company
to the fullest extent permitted by the Company's Certificate of Incorporation,
Bylaws and applicable law, as the same exists from time to time, in connection
with any present or future threatened, pending or completed investigation,
claim, action, suit or proceeding, whether civil, criminal, administrative or
investigative (collectively, "Indemnifiable Litigation"), (i) to which
Indemnitee is or was a party or is threatened to be made a party by reason of
any action or inaction in Indemnitee's capacity as a director or officer of the
Company, or (ii) with respect to which Indemnitee is otherwise involved by
reason of the fact that Indemnitee is or was serving as a director, officer,
employee or agent of the Company, or of any subsidiary or division, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
against all reasonable expenses, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, and amounts paid or to be paid in
any settlement approved in advance by the Company, such approval not to be
unreasonably withheld) (collectively, "Indemnifiable Expenses") actually
incurred or suffered by Indemnitee in connection with such Indemnifiable
Litigation, if Indemnitee acted in good faith and in a manner 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 no
reasonable cause to
believe Indemnitee's conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
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contendere or its equivalent, shall not, of itself, create a presumption that
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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, or, with
respect to any criminal action or proceeding, had no reasonable cause to that
Indemnitee's conduct was unlawful. Notwithstanding the foregoing, Indemnitee
shall have no right to indemnification for expenses and the payment of profits
arising from the purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Securities and Exchange Act of 1934, as amended.
(b) Notwithstanding any other provision of this Agreement, the Company
hereby agrees to indemnify Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by the
other provisions of this Agreement, the Company's Certificate of Incorporation
and By-laws or by statute. In the event of any change after the date of this
Agreement in any applicable law, statute or rule which expands the right of a
Delaware corporation to indemnify a member of its board of directors or an
officer, such changes shall be, ipso facto, within the purview of Indemnitee's
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rights and the Company's obligations under this Agreement. In the event of any
change after the date of this Agreement in any applicable law, statute or rule
which narrows the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or the parties' rights and obligations
hereunder.
2. INTERIM EXPENSES. The Company agrees to pay Indemnifiable Expenses
incurred by Indemnitee in connection with any Indemnifiable Litigation in
advance of the final disposition thereof, provided that the Company has received
an undertaking by or on behalf of Indemnitee, substantially in the form attached
hereto as Exhibit A, to repay the amount so advanced to the extent that it is
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ultimately determined that Indemnitee is not entitled to be indemnified by the
Company under this Agreement or otherwise. The advances to be made hereunder
shall be paid by the Company to Indemnitee within twenty (20) days following
delivery of a written request therefor by Indemnitee to the Company.
3. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Indemnifiable Expenses, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee in accordance with
this Agreement for such portion of Indemnifiable Expenses to which Indemnitee is
entitled.
4. PROCEDURE FOR MAKING DEMAND. Indemnitee shall, as a condition
precedent to his right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any claim made against Indemnitee
for which indemnification will or could be sought under this Agreement. Notice
to the Company shall be directed to the President of the Company at the address
set forth in Section 12 hereof (or such other address as the Company shall
designate in writing to Indemnitee). In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within Indemnitee's power. Any payment made to Indemnitee pursuant to
this Agreement shall be made no later than forty-five (45) days after receipt of
the written request of Indemnitee.
5. FAILURE TO INDEMNIFY.
(a) If a claim made by Indemnitee under this Agreement, or any
statute, or under any provision of the Company's Certificate of Incorporation or
Bylaws providing for indemnification, is not paid in full by the Company within
forty-five (45) days after a written request for payment thereof has been
received by the Company, Indemnitee may, but need not, at any time thereafter
bring an action against the Company to recover the unpaid amount of the claim
and, subject to Section 13 of this Agreement, if successful in whole or in part,
Indemnitee shall be reimbursed by the Company for all costs and expenses
(including, without limitation, attorneys' fees) of bringing such action.
(b) It shall be a defense to such action (other than an action brought
to enforce a claim for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that Indemnitee has not met the
standard of conduct which make it permissible under applicable law for the
Company to indemnify Indemnitee for the amount claimed, but the burden of
proving such defense shall be on the Company and Indemnitee shall be entitled to
receive interim reimbursements of Indemnifiable Expenses pursuant to Section 2
hereof unless and until such defense may be finally adjudicated by court order
or judgment from which no further right of appeal exists. It is the parties'
intention that if the Company contests Indemnitee's right to indemnification,
the question of Indemnitee's right to indemnification shall be for the court to
decide, and neither the failure of the Company (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Company (including its board
of directors, any committee or subgroup of the board of directors, independent
legal counsel, or its stockholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee has or has not
met the applicable standard of conduct.
6. NOTICE TO INSURERS. If, at the time of the receipt of a notice of a
claim pursuant to Section 4 hereof, the Company has director and/or officer
liability insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable actions to cause such insurers to pay, on behalf
of the indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
7. RETENTION OF COUNSEL. In the event that the Company shall be
obligated to pay Indemnifiable Expenses as a result of any proceeding against
Indemnitee, the Company, if appropriate, shall be entitled to assume the defense
of such proceeding, with counsel approved by Indemnitee, which approval shall
not be unreasonably withheld, upon the delivery to Indemnitee of written notice
of its election to do so. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by that Indemnitee with respect to that same
proceeding, provided that (i) Indemnitee shall have the right to employ his or
her counsel in any such proceeding at Indemnitee's expense, and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (B) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee
in the conduct of any such defense, or (C) the Company shall not have employed
counsel to assume defense of such proceeding within a reasonable period, then
the fees and expenses of Indemnitee's counsel shall be at the expense of the
Company.
8. SUCCESSORS. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors, assigns, heirs
and legal representatives of the parties hereto.
9. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge
that in certain instances, Federal law or applicable public policy may prohibit
the Company from indemnifying its directors and officers under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company may be
required in the future to undertake to the Securities and Exchange Commission to
submit the question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee, and, in that event, the Indemnitee's rights and the Company's
obligations hereunder shall be subject to that determination.
10. CONTRACT RIGHTS NOT EXCLUSIVE. The indemnification provided by this
Agreement shall not be deemed exclusive of any right to which Indemnitee may be
entitled under the Company's Certificate of Incorporation or By-laws, any
agreement, any vote of stockholders or disinterested directors, the Delaware
General Corporation Law, or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such
position. The indemnification provided under this Agreement shall continue as
to Indemnitee for any action taken or not taken while serving in an indemnified
capacity even though he or she is not serving in such capacity or in any
capacity with the Company at the time of any action or other covered proceeding.
11. INDEMNIFICATION OBLIGATION. The parties hereto acknowledge that it is
their intent that Interplay California will, immediately prior to the
consummation of the initial public offering of the Company's common stock, be
merged with and into the Company (the "Merger"). Prior to the effective date of
the Merger, Interplay California hereby agrees to be jointly and severally
liable for all of the Company's obligations hereunder.
12. INDEMNITEE'S OBLIGATIONS. The Indemnitee shall promptly advise the
Company in writing of the institution of any investigation, claim, action, suit
or proceeding which is or may be subject to this Agreement and keep the Company
generally informed of, and consult with the Company with respect to, the status
of any such investigation, claim, action, suit or proceeding. Notices to the
Company shall be directed to Interplay Entertainment Corp., 00000 Xxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attn: President (or other such address as the
Company shall designate in writing to Indemnitee). Notice shall be deemed
received, if properly addressed, (i) three days after the date postmarked if
sent by certified or registered mail, or (ii) upon receipt if sent by messenger
with signed receipt, or (iii) one business day after the day sent, if sent via a
nationally recognized overnight delivery carrier.
13. ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be reimbursed by the Company for all court costs and expenses,
including, without limitation, reasonable attorneys' fees,
incurred by Indemnitee with respect to such action, unless as a part of such
action, a court of competent jurisdiction determines that each of the material
assertions made by Indemnitee as a basis for such action were not made in good
faith or were frivolous. In the event of an action instituted by or in the name
of the Company under this Agreement, or to enforce or interpret any terms of
this Agreement, Indemnitee shall be reimbursed by the Company for all court
costs and expenses, including, without limitation, reasonable attorneys' fees,
incurred by Indemnitee in defense of such action (including with respect to
Indemnitee's counterclaims and cross-claims made in such action), unless as a
part of such action the court determines that each of Indemnitee's material
defenses to such action were made in bad faith or were frivolous.
14. SEVERABILITY. Should any provision of this Agreement, or any clause
hereof, be held to be invalid, illegal or unenforceable, in whole or in part,
the remaining provisions and clauses of this Agreement shall remain fully
enforceable and binding on the parties.
15. MODIFICATION AND WAIVER. No supplement, modification or amendment 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 of
not similar) nor shall such waiver constitute a continuing waiver.
16. CHOICE OF LAW. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
INTERPLAY ENTERTAINMENT CORP.,
a Delaware corporation
By: ________________________
Its: ________________________
INTERPLAY PRODUCTIONS,
a California corporation
By: ________________________
Its: ________________________
INDEMNITEE:
_______________________________
(Signature)
_______________________________
(Print Name)
EXHIBIT A
UNDERTAKING AGREEMENT
This UNDERTAKING AGREEMENT is made on _______________, 19__, between
INTERPLAY ENTERTAINMENT CORP., a Delaware corporation (the "Company") and
__________________, a member of the board of directors or an officer of the
Company ("Indemnitee").
WHEREAS, Indemnitee may become involved in investigations, claims, actions,
suits or proceedings which have arisen or may arise in the future as a result of
Indemnitee's service to the Company; and
WHEREAS, Indemnitee desires that the Company pay any and all expenses
(including, but not limited to, attorneys' fees and court costs) actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in defending or
investigating any such suits or claims and that such payment be made in advance
of the final disposition of such investigations, claims, actions, suits or
proceedings to the extent that Indemnitee has not been previously reimbursed by
insurance; and
WHEREAS, the Company is willing to make such payments but, in accordance
with Section 145 of the General Corporation Law of the State of Delaware, the
Company may make such payments only if it receives an undertaking to repay from
Indemnitee; and
WHEREAS, Indemnitee is willing to give such an undertaking;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. In regard to any payments made by the Company to Indemnitee pursuant to
the terms of the Indemnification Agreement dated __________, 19__, between the
Company and Indemnitee, Indemnitee hereby undertakes and agrees to repay to the
Company any and all amounts so paid promptly and in any event within thirty (30)
days after the disposition, including any appeals, of any litigation or
threatened litigation on account of which payments were made, but only to the
extent that Indemnitee is ultimately found not entitled to be indemnified by the
Company under the Company's Certificate of Incorporation or Bylaws and Section
145 of the General Corporation Law of the State of Delaware, or other applicable
law.
2. This Agreement shall not affect in any manner rights which Indemnitee
may have against the Company, any insurer or any other person to seek
indemnification for or reimbursement of any expenses referred to herein or any
judgment which may be rendered in any litigation or proceeding.
IN WITNESS WHEREOF, the parties have caused this Undertaking Agreement to
be executed on the date first above written.
INTERPLAY ENTERTAINMENT CORP.
By: _________________________
INDEMNITEE:
_______________________________
(Signature)
_______________________________
(Print Name)
