Indemnity Agreement - Electronic Arts Inc.
ELECTRONIC ARTS INC.
INDEMNITY AGREEMENT
This Indemnity Agreement is entered into between Electronic Arts Inc. a
corporation incorporated under the laws of Delaware (the "Company") and the
member of the Board of Directors of the Company named below ("Director").
RECITALS
A. The Company has provided in its Articles of Incorporation that a
director's liability as a director of the Company will be limited to the extent
permitted by the Delaware Corporations Code.
B. The Company has provided in its Bylaws that the Company will indemnify
directors to the maximum extent permitted by the Delaware Corporations Code and
will advance expenses of litigation to its directors subject to an undertaking
to repay such expenses if it is determined that they may not be reimbursed by
the Company.
C. In order to induce Director to serve as a member of the Board of
Directors of the Company, the Company desires to provide Director with the
following additional contractual assurances.
NOW, THEREFORE, the Company and Director agree as follows:
1. Reimbursement of Expenses. The Company will reimburse Director for all
reasonable and necessary expenses incurred by Director in connection with
Director's service as a member of the Board of Directors of the Company.
2. Advancement of Expenses. In the event that Director at any time is, or
is threatened to be, sued or made a party to any judicial, administrative or
investigative proceeding as a result of Director's service as a member of the
Board of Directors of the Company (or Director's providing services at the
request of the Company as a director, officer, employee or agent of another
corporation or other entity), the Company will, upon the request of Director
(and within ten (10) days of the presentment of invoices therefor), advance the
costs and expenses, including attorneys' fees, incurred by Director in defending
such suit or other proceeding, or investigating any such threat, subject to an
undertaking by Director, if required by law, to repay the Company if it is
determined by a final judicial decision (from which there is no right of appeal)
that Director is not entitled, under applicable law, the Bylaws, or this
Agreement to be indemnified by the Company for such expenses. The burden of
proving that Director is not so entitled shall be on the Company.
3. Indemnification. The Company agrees to indemnify Director, to the
maximum extent permitted by law, against any and all liabilities, costs,
expenses, amounts paid in settlement and damages incurred by Director as a
result of any lawsuit, judicial, administrative or investigative proceeding
(criminal or civil, including an action by or in the right of the Company) in
which Director at any time is sued or made a party, or is threatened to be made
a party, as a result of Director's service as a member of the Board of Directors
of the Company (or Director's providing services at the request of the Company
as a director, officer, agent or employee of another corporation or other
entity). The termination of any lawsuit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendre or its equivalent,
shall not, of itself,
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create a presumption that (i) Director did not act in good faith, (ii) Director
did not act in a manner which Director reasonably believed to be or not opposed
to the best interests of the Company or (iii) with respect to any criminal
action or proceeding, Director had no reasonable cause to believe that
Director's conduct was unlawful. It is the parties' intention that if the
Company contests Director's right to indemnification, the question of Director's
right to indemnification shall be for the court or arbitration panel to decide,
and neither the failure of the Company (including its Board of Directors,
independent legal counsel or its shareholders) to have made a determination that
indemnification of a director is proper in the circumstances because Director
has met the applicable standard of conduct required by applicable law, nor any
actual determination by the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel or
its shareholders) that Director has not met such applicable standard of conduct,
shall create a presumption that Director has or has not met the applicable
standard of conduct.
4. Directors' and Officers' Insurance. The Company will, to the extent
that it is determined to be economically reasonable by the Company's Board of
Directors, maintain a policy of directors' and officers' liability insurance, on
such terms and conditions as may be approved by the Board of Directors.
5. Contribution. If the indemnification provided in Section 3 is
unavailable and may not be paid to Director for any reason other than statutory
limitations, then in respect of any threatened, pending or completed action,
suit or proceeding in which the Company is jointly liable with Director (or
would be if joined in such action, suit or proceeding), the Company shall
contribute to the amount of expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred and paid
or payable by Director in such proportion as is appropriate to reflect (i) the
relative benefits received by the Company on the one hand and Director on the
other hand from the transaction from which such action, suit or proceeding
arose, and (ii) the relative fault of Company on the one hand and of Director on
the other in connection with the events which resulted in such expenses,
judgments, fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of
Director on the other shall be determined by reference to, among other things,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts. The Company agrees that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or any other method of allocation which does not take account of the
foregoing equitable considerations.
6. Miscellaneous. Each of the provisions of this agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be judicially determined to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other
provision. In the event any provision hereof is determined to be unenforceable,
the provision's effect shall be deemed to be limited so as to be equal to the
maximum effect which would be enforceable. This Agreement shall be interpreted
and enforced in accordance with the laws within the state of California and
shall be binding upon the Company and its successors and assigns and shall inure
to the benefit of Director, his heirs, personal representatives and assigns. No
cancellation, amendment or modification of this Agreement shall be effective
unless in writing signed by both parties.
7. Attorneys' Fees. In the event that any action is instituted or claim is
submitted to arbitration by Director under this Agreement to enforce or
interpret any of the terms hereof, Director shall be entitled to be paid all
court costs and expenses, including reasonable attorneys' fees, incurred by
Director with respect to such action or arbitration, unless as a part of such
action, a court of competent jurisdiction or the arbitrator(s) determines that
each of the material
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assertions made by Director as a basis for such claim was not made in good faith
or was frivolous. In the event of any action instituted or a claim submitted to
arbitration by or in the name of the Company under this Agreement or to enforce
or interpret any of the terms of this Agreement, Director shall be entitled to
be paid all court costs and expenses, including attorneys' fees, incurred by
Director in defense of such action or claim (including with respect to
Director's counterclaims and cross-claims made in such action or arbitration),
unless as a part of such action the court or the arbitrator(s) determines that
each of Director's material defenses to such action or claim was made in bad
faith or was frivolous.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
______ day of ________________, 20__.
ELECTRONIC ARTS INC. DIRECTOR
By: ______________________ ______________________________
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