EXHIBIT 10.2
DIRECTOR INDEMNIFICATION AGREEMENT
This DIRECTOR INDEMNIFICATION AGREEMENT (the "Agreement") made and
entered into this 10th day of December, 1999, by and between Haights Cross
Communications, Inc., a Delaware corporation (the "Company"), and Xxxxxxxxxxx X.
Xxxxxxx (the "Indemnitee").
WHEREAS, it is essential that the Company be able to retain and attract
as directors, officers and employees the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors to
litigation risks and expenses, and the limitations on the availability of
director and officer liability insurance has made it increasingly difficult for
the Company to attract and retain such persons;
WHEREAS, the Company's By-laws permit it to enter into indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide the Indemnitee with specific
contractual assurances of the Indemnitee's rights to full indemnification
against litigation risks and expenses (regardless, among other things, of any
amendment to or revocation of the Company's By-laws or any change in the
ownership of the Company or the composition of its Board of Directors), which
indemnification is intended to be greater than that which is afforded by the
Company's Amended and Restated Articles of Incorporation and By-laws and, to the
extent insurance is available, the coverage of the Indemnitee under the
Company's directors and officers liability insurance policies; and
WHEREAS, the Indemnitee is relying upon the rights afforded under this
Agreement in accepting Indemnitee's position as a director, officer or employee
of the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person
who is serving or has served (i) as a director, officer or employee of the
Company, (ii) in any capacity with respect to any employee benefit plan of the
Company, or (iii) as a director, partner, member, trustee, officer, employee, or
agent of any other Entity at the request of the Company.
(b) "Entity" shall mean any corporation, partnership,
limited liability company, joint venture, trust, foundation, association,
organization or other legal entity and any group or division of the Company or
any of its subsidiaries.
(c) "Expenses" shall mean all reasonable fees, costs and
expenses incurred in connection with any Proceeding (as defined below),
including, without limitation, attorneys'
fees, disbursements and retainers (including, without limitation, any such fees,
disbursements and retainers incurred by Indemnitee pursuant to Section 10 of
this Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without limitation,
accountants and investment bankers), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs, telephone and
fax transmission charges, postage, delivery services, secretarial services, and
other disbursements and expenses.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities"
and "Indemnifiable Amounts" shall have the meanings ascribed to those terms in
Section 3(a) below.
(e) "Liabilities" shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts paid in
settlement.
(f) "Proceeding" shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any other proceeding,
whether civil, criminal, administrative or investigative, whether formal or
informal, including a proceeding initiated by Indemnitee pursuant to Section 10
of this Agreement to enforce Indemnitee's rights hereunder.
2. Services of Indemnitee. In consideration of the Company's
covenants and commitments hereunder, Indemnitee agrees to serve or continue to
serve as a director, officer or employee of the Company. However, this Agreement
shall not impose any obligation on Indemnitee or the Company to continue
Indemnitee's service to the Company beyond any period otherwise required by law
or by other agreements or commitments of the parties, if any.
3. Agreement to Indemnify. The Company agrees to indemnify
Indemnitee as follows:
(a) Subject to the exceptions contained in Section 4(a)
below, if Indemnitee was or is a party or is threatened to be made a party to
any Proceeding (other than an action by or in the right of the Company) by
reason of Indemnitee's Corporate Status, Indemnitee shall be indemnified by the
Company against all Expenses and Liabilities incurred or paid by Indemnitee in
connection with such Proceeding (referred to herein as "Indemnifiable Expenses"
and "Indemnifiable Liabilities," respectively, and collectively as
"Indemnifiable Amounts").
(b) Subject to the exceptions contained in Section 4(b)
below, if Indemnitee was or is a party or is threatened to be made a party to
any Proceeding by or in the right of the Company to procure a judgment in its
favor by reason of Indemnitee's Corporate Status, Indemnitee shall be
indemnified by the Company against all Indemnifiable Expenses.
4. Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all circumstances other
than the following:
(a) If indemnification is requested under Section 3(a)
and it has been adjudicated finally by a court of competent jurisdiction that,
in connection with the subject of the Proceeding out of which the claim for
indemnification has arisen, (i) Indemnitee failed to act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, (ii) with respect to any criminal action or
proceeding, Indemnitee had
reasonable cause to believe that Indemnitee's conduct was unlawful or (iii)
Indemnitee's conduct constituted willful misconduct or recklessness, then
Indemnitee shall not be entitled to payment of Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b)
and
(i) it has been adjudicated finally by a court
of competent jurisdiction that, in connection with the subject of the Proceeding
out of which the claim for indemnification has arisen, Indemnitee failed to act
in good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, Indemnitee shall not be entitled
to payment of Indemnifiable Expenses hereunder; or
(ii) it has been adjudicated finally by a court
of competent jurisdiction that Indemnitee is liable to the Company with respect
to any claim, issue or matter involved in the Proceeding out of which the claim
for indemnification has arisen, including, without limitation, a claim that
Indemnitee received an improper personal benefit or improperly took advantage of
a corporate opportunity, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder with respect to such claim, issue or matter
unless the court in which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such Indemnifiable Expenses which such court shall deem proper.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee
shall submit to the Company a written request specifying the Indemnifiable
Amounts for which Indemnitee seeks payment under Section 3 of this Agreement and
the basis for the claim. The Company shall pay such Indemnifiable Amounts to
Indemnitee within twenty (20) calendar days of receipt of the request. At the
request of the Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary to establish
that Indemnitee is entitled to indemnification hereunder.
6. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, and
without limiting any such provision, to the extent that Indemnitee is, by reason
of Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's 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 those Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, 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.
7. Effect of Certain Resolutions. Neither the settlement nor
termination of any Proceeding nor the failure of the Company to award
indemnification or to determine that indemnification is payable shall create an
adverse presumption that Indemnitee is not entitled to indemnification
hereunder. In addition, the termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not create a presumption 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 or, with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee's action was
unlawful.
8. Agreement to Advance Interim Expenses; Conditions. The Company
shall pay to Indemnitee all Indemnifiable Expenses incurred by Indemnitee in
connection with any Proceeding, including a Proceeding by or in the right of the
Company, in advance of the final disposition of such Proceeding, if Indemnitee
furnishes the Company with a written undertaking to repay the amount of such
Indemnifiable Expenses advanced to Indemnitee if it is finally determined by a
court of competent jurisdiction that Indemnitee is not entitled under this
Agreement to indemnification with respect to such Indemnifiable Expenses. Such
undertaking shall be an unlimited general obligation of Indemnitee, shall be
accepted by the Company without regard to the financial ability of Indemnitee to
make repayment, and in no event shall be required to be secured.
9. Procedure for Payment of Interim Expenses. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Expenses
for which Indemnitee seeks an advancement under Section 8 of this Agreement,
together with documentation evidencing that Indemnitee has incurred such
Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 8 shall
be made no later than twenty (20) calendar days after the Company's receipt of
such request and the undertaking required by Section 8.
10. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee
makes a request for payment of Indemnifiable Amounts under Sections 3 and 5
above or a request for an advancement of Indemnifiable Expenses under Sections 8
and 9 above and the Company fails to make such payment or advancement in a
timely manner pursuant to the terms of this Agreement, Indemnitee may petition
the appropriate judicial authority to enforce the Company's obligations under
this Agreement.
(b) Burden of Proof. In any judicial proceeding brought
under Section 10(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee
in full for any Expenses incurred by Indemnitee in connection with
investigating, preparing for, litigating, defending or settling any action
brought by Indemnitee under Section 10(a) above, or in connection with any claim
or counterclaim brought by the Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded
from asserting in any Proceeding, including, without limitation, an action under
Section 10(a) above, that the provisions of this Agreement are not valid,
binding and enforceable or that there is insufficient consideration for this
Agreement and shall stipulate in court that the Company is bound by all the
provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the
Company (including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the
permissibility of the payment of Indemnifiable Amounts or the advancement of
Indemnifiable Expenses under this Agreement shall not be a defense in any action
brought under Section 10(a) above, and shall not create a presumption that such
payment or advancement is not permissible.
11. Representations and Warranties of the Company. The Company
hereby represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary corporate
power and authority to enter into, and be bound by the terms of, this Agreement,
and the execution, delivery and performance of the undertakings contemplated by
this Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and
delivered by the Company in accordance with the provisions hereof, shall be a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting the enforcement of creditors' rights generally.
12. Insurance. The Company will use commercially reasonable
efforts to obtain and maintain a policy or policies of insurance in an amount
not less than $1,000,000 with a deductible of not greater than $50,000, with
reputable insurance companies providing the Indemnitee with coverage for losses
from wrongful acts, and to ensure the Company's performance of its
indemnification obligations under this Agreement. In all policies of director
and officer liability insurance, Indemnitee shall be named as an insured in such
a manner as to provide Indemnitee at least the same rights and benefits as are
accorded to the most favorably insured of the Company's officers and directors.
Notwithstanding the foregoing, if the Company, after employing commercially
reasonable efforts as provided in this Section, determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, or if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, the Company shall use its commercially reasonable efforts
to obtain and maintain a policy or policies of insurance with coverage having
features as similar as practicable to those described above.
13. Fees and Expenses. During the term of the Indemnitee's service
as a director, the Company shall promptly reimburse the Indemnitee for all
expenses incurred by him in connection with his service as a director or member
of any board committee or otherwise in connection with the Company's business
and shall pay or provide the Indemnitee with fees and other compensation,
including stock options or awards, in amounts and value which are at least equal
to those provided to any of the Company's other directors from time to time.
14. Contract Rights Not Exclusive. The rights to payment of
Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, the Company's By-laws or
Amended and Restated Articles of Incorporation, or any other
agreement, vote of stockholders or directors, or otherwise, both as to action in
Indemnitee's official capacity and as to action in any other capacity as a
result of Indemnitee's serving as a director of the Company.
15. Successors. This Agreement shall be (a) binding upon all
successors and assigns of the Company (including any transferee of all or a
substantial portion of the business, stock and/or assets of the Company and any
direct or indirect successor by merger or consolidation or otherwise by
operation of law) and (b) binding on and shall inure to the benefit of the
heirs, personal representatives, executors and administrators of Indemnitee.
This Agreement shall continue for the benefit of Indemnitee and such heirs,
personal representatives, executors and administrators after Indemnitee has
ceased to have Corporate Status.
16. Subrogation. In the event of any payment of Indemnifiable
Amounts under this Agreement, the Company shall be subrogated to the extent of
such payment to all of the rights of contribution or recovery of Indemnitee
against other persons, and Indemnitee shall take, at the request of the Company,
all reasonable action necessary to secure such rights, including the execution
of such documents as are necessary to enable the Company to bring suit to
enforce such rights.
17. Change in Law. To the extent that a change in applicable law
(whether by statute or judicial decision) shall permit broader indemnification
than is provided under the terms of the Amended and Restated Articles of
Incorporation or By-laws of the Company and this Agreement, Indemnitee shall be
entitled to such broader indemnification and this Agreement shall be deemed to
be amended to such extent.
18. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement, or any clause
thereof, shall be determined by a court of competent jurisdiction to be illegal,
invalid or unenforceable, in whole or in part, such provision or clause shall be
limited or modified in its application to the minimum extent necessary to make
such provision or clause valid, legal and enforceable, and the remaining
provisions and clauses of this Agreement shall remain fully enforceable and
binding on the parties.
19. Indemnitee as Plaintiff. Except as provided in Section 10(c)
of this Agreement and in the next sentence, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses with
respect to any Proceeding brought by Indemnitee against the Company, any Entity
which it controls, any director or officer thereof, or any third party, unless
the Company has consented to the initiation of such Proceeding. This Section
shall not apply to counterclaims or affirmative defenses asserted by Indemnitee
in an action brought against Indemnitee.
20. Modifications and Waiver. Except as provided in Section 17
above with respect to changes in applicable law which broaden the right of
Indemnitee to be indemnified by the Company, no supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by each
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 of this
Agreement (whether or not similar), nor shall such waiver constitute a
continuing waiver.
21. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(i) If to Indemnitee, to: Xxxxxxxxxxx X. Xxxxxxx
c/o Great Hill Partners
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
(ii) If to the Company, to: Haights Cross
Communications, Inc.
00 Xxx Xxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX
Facsimile: (000) 000-0000
Attn: President
or to such other address as may have been furnished in the same manner by any
party to the others.
22. Governing Law. This Agreement shall be governed by and
construed and enforced under the laws of the State of New York without giving
effect to the provisions thereof relating to conflicts of law.
23. Consent to Jurisdiction. The Company hereby irrevocably and
unconditionally consents to the jurisdiction of the courts located in the State
of Massachusetts and the State of New York to construe and enforce the covenants
contained in this Agreement. The Company hereby irrevocably and unconditionally
waives any objection to the laying of venue of any Proceeding arising out of or
relating to this Agreement in the courts located in the State of Massachusetts
and the State of New York, and hereby irrevocably and unconditionally waives and
agrees not to plead or claim that any such Proceeding brought in any such court
has been brought in an inconvenient forum.
24. Agreement Governs. This Agreement is to be deemed consistent
wherever possible with relevant provisions of the Company's Amended and Restated
By-laws and Amended and Restated Articles of Incorporation; however, in the
event of a conflict between this Agreement and such provisions, the provisions
of this Agreement shall control.
[End of Text]
IN WITNESS WHEREOF, the parties hereto have executed this Director
Indemnification Agreement as of the day and year first above written.
THE COMPANY:
HAIGHTS CROSS COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
____________________________________
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
INDEMNITEE:
/s/ Xxxxxxxxxxx X. Xxxxxxx
________________________________________
Xxxxxxxxxxx X. Xxxxxxx
