Indemnification Agreement - Reader's Digest Association Inc.
INDEMNITY AGREEMENT
This Indemnification Agreement ("Agreement") is made as of April ,
2003 by and between The Reader's Digest Association, Inc., a Delaware
corporation (the "Company"), and ("Indemnitee").
RECITALS
WHEREAS, Indemnitee is a director or officer of the Company and in such
capacity is performing valuable services for the Company;
WHEREAS, the Company recognizes that highly competent persons have
become more reluctant to serve publicly-held corporations as directors or in
other capacities unless they are provided with adequate protection through
insurance and adequate indemnification against risks of claims and actions
against them arising out of their service to and activities on behalf of the
Company, to the extent that they may be lawfully insured and indemnified
against such risks.
WHEREAS, the number of lawsuits challenging the judgement and actions of
directors and officers of Delaware corporations, the costs of defending those
lawsuits and the threat to directors' and officers' personal assets have
materially increased over the past several years;
WHEREAS, recent federal legislation and rules adopted by the Securities
and Exchange Commission have imposed additional disclosure and corporate
governance obligations on directors and officers of public companies and have
exposed directors and officers to new and broadened liabilities;
WHEREAS, the Restated Certificate of Incorporation, as amended, and the
Amended and Restated By-laws of the Company require indemnification of the
officers and directors of the Company, and Indemnitee is under certain
circumstances entitled to indemnification pursuant to the Delaware General
Corporation Law ("DGCL").
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to continue to maintain on an ongoing basis, at its sole
expense, liability insurance to protect persons serving as directors and
officers of the Company and its subsidiaries from certain liabilities.
WHEREAS, the uncertainties relating to such insurance and to
indemnification have increased the difficulty of attracting and retaining
such persons.
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining persons to serve as directors and officers of the
Company and its subsidiaries is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future.
WHEREAS, as a supplement to and in furtherance of the Restated
Certificate of Incorporation, as amended, and the Amended and Restated
By-laws of the Company, it is reasonable, prudent, desirable and necessary
for the Company contractually to obligate itself to indemnify, and to pay in
advance expenses on behalf of, such persons to the fullest extent permitted
by applicable law so that they will serve or continue to serve the Company
free from concern that they will not be so indemnified and that their
expenses will not be so paid in advance.
WHEREAS, this Agreement is not a substitute for, nor does it diminish or
abrogate any rights of Indemnitee under, the Restated Certificate of
Incorporation, as amended, the Amended and Restated By-laws of the Company or
any resolutions adopted pursuant thereto (including any contractual rights of
Indemnitee that may exist).
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that
he or she be so indemnified and that payment for his or her such expenses be
so paid in advance;
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Services to the Company. Indemnitee will serve or continue to serve
as an officer or director of the Company for so long as Indemnitee is duly
elected or appointed or until Indemnitee tenders his or her resignation;
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.
2. Definitions. As used in this Agreement:
(a) "Company" shall mean The Reader's Digest Association, Inc, and
shall include, in addition to any corporation resulting from or surviving any
consolidation or merger, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees, agents, trustees, partners,
managers, members or fiduciaries so that if Indemnitee is or was a director,
officer, employee, agent, trustee, partner, manager, member or fiduciary of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, agent, trustee,
partner, manager, member or fiduciary of another corporation, partnership,
joint venture, trust or other enterprise, Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting
or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) "Corporate Status" describes the status of a person who is or
was a director, officer, employee, agent, trustee, partner, manager, member or
fiduciary of the Company or of any other Enterprise which such person is or
was serving at the request of the Company.
(c) "Disinterested Director" shall mean a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Enterprise" shall mean the Company and any other corporation,
partnership, limited liability company, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the
request of the Company in a Corporate Status.
(e) "Expenses" shall include attorneys' fees and costs, retainers,
court costs, transcript costs, fees of experts, witness fees, private
investigators, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, fax transmission charges, secretarial
services, delivery service fees, and all other disbursements or expenses paid
or incurred in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding or in connection with seeking indemnification
under this Agreement. Expenses also shall include Expenses paid or incurred
in connection with any appeal resulting from any Proceeding, including,
without limitation the premium, security for, and other costs relating to any
cost bond, supersedeas bond, or other appeal bond or its equivalent.
Expenses, however, shall not include amounts paid in settlement by Indemnitee
or the amount of judgments or fines against Indemnitee.
(f) "Independent Counsel" shall mean a law firm, or a member of a
law firm, that is experienced in matters of relevant corporation law and neither
presently is, nor in the past five years has been, retained to represent:
(1) the Company or Indemnitee in any matter material to either such party
(other than with respect to matters concerning the Indemnitee under this
Agreement and/or the indemnification provisions of the Restated Certificate
of Incorporation, as amended, or the Amended and Restated By-laws of the
Company or of other indemnitees under similar indemnification agreements or
provisions), or (2) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the applicable
standards of professional conduct or applicable law then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee
in an action to determine Indemnitee's rights under this Agreement.
(g) "Losses" shall mean all loss, liability, judgments, damages,
amounts paid in settlement, fines, penalties (whether civil, criminal or
otherwise)or, with respect to an employee benefit plan, excise taxes or
penalties assessed with respect thereto, including all interest, assessments and
other charges paid or payable in connection with or in respect of any of the
foregoing.
(h) Reference to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with respect
to any employee benefit plan; references to "serving at the request of the
Company" shall include any service as a director, officer, employee, agent,
trustee, partner, manager, member or fiduciary of the Company which imposes
duties on, or involves services by, such director, officer, employee, agent,
trustee, partner, manager, member or fiduciary with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in
good faith and in a manner he or she reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests
of the Company" as referred to under applicable law or in this Agreement.
(i) "Person" shall mean any corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise.
(j) The term "Proceeding" shall include any threatened, pending or
completed action, suit, claim, demand, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, including any and all appeals,
whether brought in the right of the Company or otherwise and whether of a
civil (including intentional or unintentional tort claims), criminal,
administrative, investigative or other nature and whether formal or informal,
in which Indemnitee was, is or will be involved as a party or otherwise by
reason of or relating to Indemnitee's Corporate Status, by reason of or
relating to any action or alleged action taken by him or her (or failure or
alleged failure to act) or of any action or alleged action (or failure or
alleged failure to act) on his or her part while acting as director, officer,
employee, agent, trustee, partner, manager, member or fiduciary of the
Company, or by reason of the fact that he or she is or was serving at the
request of the Company as a director, officer, employee, agent, trustee,
partner, manager, member or fiduciary of another Enterprise, in each case
whether or not serving in such capacity at the time any liability or expense
is paid or incurred for which indemnification, reimbursement, or payment in
advance of expenses can be provided under this Agreement; except one
initiated by Indemnitee to enforce his or her rights under this Agreement.
(k) "Subsidiary" shall mean any Person that is, directly or
indirectly, controlled by the Company. For purposes of this definition,
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, through other voting rights, by
contract or otherwise.
(l) For purposes of Sections 3 and 4, the meaning of the phrase "to
the fullest extent permitted by law" shall include, but not be limited to:
A. to the fullest extent permitted by Section 145 of the DGCL or any
section that replaces or succeeds Section 145 with respect
to such matters of the DGCL, and
B. to the fullest extent authorized or permitted by any amendments
to or replacements of the DGCL adopted after the date of this
Agreement that increase the extent to which a corporation
may indemnify its officers, directors, employees, agents,
trustees, partners, managers, members, fiduciaries and
other persons acting or serving at the Company's request.
3. Indemnity in Third-Party Proceedings. The Company shall indemnify,
hold harmless and defend Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee was or is, or was or is threatened to be made, a
party to or a participant (as a witness or otherwise) or otherwise involved
in any Proceeding, other than a Proceeding by or in the right of the Company
to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee
shall be indemnified against all Expenses and Losses (including all interest,
assessments and other charges paid or payable in connection with or in
respect of such Expenses or Losses) actually and reasonably paid or incurred
or suffered by him or her or on his or her behalf in connection with such
Proceeding or any claim, issue or matter therein to the fullest extent
permitted under law.
4. Indemnity in Proceedings by or in the Right of the Company. The
Company shall indemnify, hold harmless and defend Indemnitee in accordance
with the provisions of this Section 4 if Indemnitee was or is, or was or is
threatened to be made, a party to or a participant (as a witness or
otherwise) or otherwise involved in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 4,
Indemnitee shall be indemnified against all Expenses and Losses (including
all interest, assessments and other charges paid or payable in connection
with or in respect of such Expenses or Losses) actually and reasonably paid
or incurred or suffered by him or her or on his or her behalf in connection
with such Proceeding or any claim, issue or matter therein to the fullest
extent permitted under law. No indemnification for Expenses shall be made
under this Section 4 in respect of any claim, issue or matter as to which
Indemnitee shall have been finally adjudged by a court to be liable to the
Company, unless and only to the extent that the Court of Chancery of the
State of Delaware (the "Delaware Court") or any court in which the 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 indemnification.
5. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee was or is a party to (or a participant or otherwise
involved in) and is successful, on the merits or otherwise, in any Proceeding
or in defense of any claim, issue or matter therein, in whole or in part, the
Company shall indemnify and hold harmless Indemnitee against all Expenses
actually and reasonably paid or incurred or suffered by him or her 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 and hold harmless Indemnitee against all Expenses actually
and reasonably paid or incurred or suffered by him or her or on his or her
behalf in connection with each successfully resolved claim, issue or matter
and any claim, issue or matter related to any claim, issue, or matter on
which the Indemnitee was successful. For purposes of this Section and
without limitation, 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.
6. Indemnification For Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of his or her Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, he or she shall be indemnified and held harmless against all
Expenses actually and reasonably paid or incurred by him or her or on his or
her behalf in connection therewith.
7. Exclusions. Notwithstanding any provision in this Agreement, the
Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been received by or on behalf of
Indemnitee under any insurance policy or other indemnity provision, except
with respect to any excess beyond the amount received under any insurance
policy or other indemnity provision; or
(b) for an accounting of profits made from the purchase and sale
(or sale and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Exchange Act or similar provisions of state
statutory law or common law; or
(c) in connection with any Proceeding (or any part of any Proceeding)
initiated or brought voluntarily by Indemnitee, including any Proceeding (or
any part of any Proceeding) initiated by Indemnitee against the Company or
its directors, officers, employees or other indemnitees, unless (1) the Board
of Directors of the Company authorized the Proceeding (or any part of any
Proceeding) prior to its initiation or (2) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law or the Company joins in or consents to the
initiation of such Proceeding; provided, however, that nothing in this
Section 7(c) shall limit the right of Indemnitee to be indemnified (with
interest) under Sections 13.
8. Payment in Advance of Expenses. Notwithstanding any other provision
of this Agreement to the contrary (and irregardless of whether any determination
pursuant to Section 11(a) is to be made) and subject to Section 9, the
Company shall pay in advance of the final determination of the Proceeding the
Expenses paid or incurred by Indemnitee or which Indemnitee determines are
reasonably likely to be paid or incurred in connection with any Proceeding
within five (5) days after the receipt by the Company of a statement or
statements (including, at the request of the Company, reasonable detail
underlying the expenses for which payment is requested) requesting such
payments in advance from time to time. Payments in advance of the final
determination shall be unsecured and interest free. Payments in advance of
the final determination shall be made without regard to Indemnitee's ability
to repay the Expenses and without regard to Indemnitee's ultimate entitlement
to indemnification under the other provisions of this Agreement. Payments in
advance of the final determination shall include any and all reasonable
Expenses paid or incurred or which Indemnitee determines are reasonably
likely to be paid or incurred pursuing a Proceeding to enforce the right of
payment in advance hereunder or pursuant to the indemnification provisions of
the Restated Certificate of Incorporation ,as amended, or the Amended and
Restated By-laws, including Expenses paid or incurred or which Indemnitee
determines are reasonably likely to be paid or incurred preparing and
forwarding statements to the Company to support the payments claimed. The
Indemnitee shall qualify for payments in advance solely upon the execution
and delivery to the Company of an undertaking providing that the Indemnitee
undertakes to repay the payment in advance to the extent that it is
ultimately determined pursuant to Section 13(a) that Indemnitee is not
entitled to be indemnified by the Company in respect thereof under the terms
of this Agreement, the Restated Certificate of Incorporation, as amended, of
the Company, the Amended and Restated By-laws of the Company, the DGCL or
otherwise. This Section 8 shall not apply to any claim made by Indemnitee
for which indemnity is excluded pursuant to Section 7.
9. Selection of Counsel. In the event the Company shall be obligated
under Section 8 hereof to pay the expenses 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 so to do. 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 paid or incurred by Indemnitee with respect to the same
Proceeding, provided that (a) Indemnitee shall have the right to employ his
or her counsel in any such Proceeding at Indemnitee's expense; and (b) if (1)
the employment of counsel by Indemnitee has been authorized by the Company,
(2) Indemnitee shall have reasonably concluded that there may be a conflict
of interest between the Company (or any other person or persons included in a
joint defense) and Indemnitee in the conduct of any such defense or
representation by such counsel retained by the Company would be precluded
under the applicable standards of professional conduct, or (3) the Company
shall not, in fact, have employed counsel to assume the defense of such
Proceeding, then the fees and expenses of Indemnitee's counsel shall be at
the expense of the Company. The Company shall not be entitled to assume the
defense of any Proceeding brought by or on behalf of the Company or as to
which Indemnitee shall have reasonably made the conclusion provided for in
(2) above.
10. Procedure for Notification and Defense of Claim.
(a) Indemnitee agrees to notify promptly the Company in writing of
any claim made against Indemnitee for which indemnification will or could be
sought under this Agreement, provided, however, that a delay in giving such
notice shall not deprive Indemnitee of any right to be indemnified under this
Agreement unless, and then only to the extent that, the Company did not
otherwise learn of the claim and such delay is materially prejudicial to the
Company's ability to defend such claim; and, provided, further that notice
shall be deemed to have been given without any action on the part of
Indemnitee in the event that the Company is a party to the same Proceeding.
The omission to notify the Company will not relieve the Company from any
liability for indemnification which it may have to Indemnitee otherwise than
under this Agreement. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing
that Indemnitee has requested indemnification.
(b) Indemnitee may deliver to the Company a written application to
have the Company indemnify and hold harmless Indemnitee in accordance with this
Agreement. Such application(s) may be delivered from time to time and at
such time(s) as Indemnitee deems appropriate in his sole discretion.
Following such a written application for indemnification by Indemnitee,
Indemnitee's entitlement to indemnification shall be determined according to
Section 11(a).
(c) The Company will be entitled to participate in the Proceeding
at its own expense.
11. Procedure Upon Application for Indemnification.
(a) A determination, if but only if required by applicable law, with
respect to Indemnitee's entitlement to indemnification shall be made in the
specific case by one of the following methods, which shall be at the election of
Indemnitee: (1) by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee, (2) by a
majority vote of the Disinterested Directors, even though less than a quorum
of the Board, or (3) by a committee of Disinterested Directors designated by
a majority vote of the Disinterested Directors, even though less than a
quorum of the Board; and, if it is so determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within five (5)
business days after such determination. Indemnitee shall reasonably
cooperate with the person, persons or entity making such determination with
respect to Indemnitee's entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request 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. Any costs or Expenses (including
attorneys' and experts' fees and disbursements) paid or incurred or which
Indemnitee determines are reasonably likely to be paid or 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), and the
Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
For the sake of clarity, no determination of entitlement shall be required to
the extent that Indemnitee is successful, on the merits or otherwise
(including by dismissal with or without prejudice), in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part.
(b) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 11(a)
hereof, the Independent Counsel shall be selected as provided in this Section
11(b). The Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board of Directors,
in which event the immediately following sentence shall apply), and Indemnitee
shall give written notice to the Company advising it of the identity of the
Independent Counsel so selected. If the Independent Counsel is selected by the
Board, the Company shall give written notice to Indemnitee advising him or her
of the identity of the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within five (5) business
days after such written notice of selection shall have been received, deliver
to the Company or to Indemnitee, as the case may be, a written objection to
such selection; provided, however, that such objection may be asserted only
on the ground that the Independent Counsel so selected does not meet the
requirements of "Independent Counsel" as defined in Section 2 of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If such written objection is so
made and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court
has determined that such objection is without merit. If, within 20 days
after submission by Indemnitee of a written request for indemnification
pursuant to Section 11(a) hereof, no Independent Counsel shall have been
selected and not objected to, either the Company or Indemnitee may petition
the Delaware Court for resolution of any objection which shall have been made
by the Company or Indemnitee to the other's selection of Independent Counsel
and/or for the appointment as Independent Counsel of a person selected by the
Delaware Court or by such other person as the Delaware Court shall designate,
and the person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under Section 11(a)
hereof. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 13(a) 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). The Company shall use its reasonable best efforts to cause the
determination of entitlement to indemnification to be made as promptly as
practicable.
(c) The Company agrees to pay the reasonable fees and expenses of
the Independent Counsel (including such fees and expenses incurred in connection
with the Independent Counsel's determination pursuant to Section 11(a)) and
to fully indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
12. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 10 of this Agreement, and the Company shall have the
burden of proof to overcome that presumption by adducing clear and convincing
evidence in connection with the making by any person, persons or entity of any
determination contrary to that presumption. Neither the failure of the
Company (including by its directors or Independent Counsel) to have made a
determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including by its directors or Independent
Counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has
not met the applicable standard of conduct.
(b) If the person, persons or entity empowered or selected under
Section 11 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within thirty (30) days
after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification, absent (1) 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 (2) a final judicial
determination that any or all such indemnification is expressly prohibited
under applicable law; provided, however, that such 30-day period may be
extended for a reasonable time, not to exceed an additional fifteen (15)
days, if the person, persons or entity making the determination with respect
to entitlement to indemnification in good faith requires such additional time
for the obtaining or evaluating of documentation and/or information relating
thereto.
(c) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere or its equivalent,
shall not of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not meet any
applicable standard of conduct under applicable law (or did or did not hold
any particular state of knowledge referred to under applicable law).
(d) For purposes of any determination of good faith, Indemnitee
shall be deemed to have acted in good faith if Indemnitee's action is based on
the records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel
for the Enterprise or on information or records given or reports made to the
Enterprise by an independent certified public accountant or by an appraiser
or other expert selected by the Enterprise. The provisions of this Section
12(d) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any
director, officer, agent, employee, trustee, partner, manager, member, fiduciary
or employee of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
(f) Indemnitee shall be deemed to be serving or to have served at
the request of the Company as a director, officer, employee, agent, trustee,
partner, manager, member or fiduciary of another Person if Indemnitee was
serving as a director, officer, employee, agent, trustee, partner, manager,
member or fiduciary of such other Person and (1) such Person is or at the
time of such service was a Subsidiary, (2) such Person is or at the time of
such service was an employee benefit plan (or related trust) sponsored or
maintained by the Company or a Subsidiary or (3) the Company or a Subsidiary,
directly or indirectly, caused Indemnitee to be nominated, elected,
appointed, designated, employed, engaged or selected to serve such other
Person in such capacity.
13. Remedies of Indemnitee.
(a) In the event that (1) a determination is made pursuant to
Section 11 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (2) payment in advance of Expenses is not timely made
pursuant to Section 8 of this Agreement, (3) no determination of entitlement to
indemnification shall have been made pursuant to Section 11(a) of this
Agreement within 30 days after receipt by the Company of the request for
indemnification, (4) payment of indemnification is not made pursuant to
Section 5 or 6 or the last sentence of Section 11(a) of this Agreement within
five (5) business days after receipt by the Company of a written request
therefor, or (5) payment of indemnification pursuant to Section 3 or 4 of
this Agreement is not made within five (5) business days of receipt by the
Company of a written request therefor or, if a determination is required by
law, within five (5) business days after a determination has been made that
Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an
adjudication (or, in the case of clause (1), to seek an adjudication) by the
Delaware Court (in accordance with Section 25) of his or her entitlement to
such indemnification or payment in advance of Expenses. Alternatively,
Indemnitee, at Indemnitee's option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. Except as set forth herein, the
provisions of Delaware law (without regard to its conflict of laws rules)
shall apply to any such arbitration. The Company shall not oppose
Indemnitee's right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Section 13(a) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 13 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 (or by reason of no determination having been
made at all). In any judicial proceeding or arbitration commenced pursuant
to this Section 13, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement, the Company shall have the burden of
proving Indemnitee is not entitled to indemnification, and the Company may
not refer to or introduce evidence of any determination pursuant to Section
11(a) of this Agreement adverse to Indemnitee for any purpose. If Indemnitee
commences a judicial proceeding or arbitration pursuant to this Section 13,
Indemnitee shall not be required to reimburse the Company for any payments in
advance pursuant to Section 8 until a final determination is made with
respect to Indemnitee's entitlement to indemnification (as to which all
rights of appeal have been exhausted or lapsed).
(c) If a determination shall have been made pursuant to Section
11(a) 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 13, absent (1) 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 (2) a prohibition of such indemnification
under applicable law.
(d) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 13 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.
(e) The Company shall to the fullest extent permitted under law
indemnify and hold harmless Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (within five (5) days after receipt by the
Company of a written request therefor) to the fullest extent permitted under law
pay in advance such Expenses to Indemnitee, which are paid or incurred or which
Indemnitee determines are reasonably likely to be paid or incurred by
Indemnitee in connection with any judicial proceeding or arbitration brought
by Indemnitee to enforce his or her rights under, or to recover damages for
breach of this Agreement or any other indemnification, payment in advance or
contribution agreement or provision of the Company's certificate of
incorporation or by-laws as in effect from time to time or 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, payment in advance, contribution or
insurance recovery, as the case may be.
(f) Interest shall be paid by the Company to Indemnitee at the legal
rate under Delaware law for amounts which the Company indemnifies or is obliged
to indemnify for the period commencing with the date on which Indemnitee
requests indemnification, contribution, reimbursement or payment in advance
of any Expenses and ending with the date on which such payment is made to
Indemnitee by the Company.
14. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive payment in
advance of Expenses as provided by this Agreement are not exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Company's Restated Certificate of Incorporation, as amended, the
Company's Amended and Restated By-laws, any agreement, a vote of stockholders or
a resolution of directors, or otherwise. To the extent Indemnitee otherwise
would have any greater right to indemnification or payment in advance of
expenses under any other provisions under applicable law, the Company's
Restated Certificate of Incorporation, as amended, the Company's Amended and
Restated By-laws, any agreement, a vote of stockholders, a resolution of
directors or otherwise, Indemnitee will be deemed to have such greater right
hereunder. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
or her Corporate Status prior to such amendment, alteration or repeal. To
the extent that a change in Delaware law, whether by statute or judicial
decision, permits greater indemnification or payment in advance of Expenses
than would be afforded currently under the Company's Amended and Restated
By-laws and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy, and Indemnitee shall enjoy, by this Agreement the
greater benefits so afforded by such change. No right or remedy herein
conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
(b) The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of insurance with reputable insurance companies
providing the directors, officers, employees, trustees, partners, managers,
members, fiduciaries or agents of the Company with coverage for losses from
wrongful acts, or to ensure the Company's performance of its indemnification
obligations under this Agreement. Among other considerations, the Company
will weigh the costs of obtaining such insurance coverage against the
protection afforded by such coverage. To the extent that the Company
maintains an insurance policy or policies providing liability insurance for
directors, officers, employees, trustees, partners, managers, members,
fiduciaries or agents of the Company or of any other Enterprise which such
person serves at the request of the Company, 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 such director, officer, employee,
trustee, partner, manager, member, fiduciary or agent under such policy or
policies. If, at the time of the receipt by the Company of a notice from any
source of a Proceeding as to which Indemnitee is a party or participant (as a
witness or otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of such Proceeding
to the insurers in accordance with the procedures set forth in the respective
policies, and the Company shall provide Indemnitee with a copy of such notice
and copies of all subsequent correspondence between the Company and such
insurers related thereto. The Company shall thereafter take all necessary or
desirable action 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.
(c) In the event of any 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 take all
action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights (it
being understood that all of Indemnitee's reasonable Expenses, including
attorneys' fees and expenses, related thereto shall be borne by the Company).
(d) The Company shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable (or for which payment in advance
is provided hereunder) hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
(e) The Company's obligation to indemnify or pay in advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company
as a director, officer, employee, trustee, partner, manager, member,
fiduciary or agent of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or payment in advance of
Expenses from such other Enterprise.
15. Settlement. (a) Notwithstanding anything in this Agreement to the
contrary, the Company shall have no obligation to indemnify Indemnitee under
this Agreement for any amounts paid in settlement of any Proceeding effected
without the Company's prior written consent.
(b) The Company shall not, without the prior written consent of
Indemnitee, consent to the entry of any judgment against Indemnitee or enter
into any settlement or compromise which (1) includes an admission of fault of
Indemnitee, any non-monetary remedy affecting or obligation of Indemnitee, or
monetary loss for which Indemnitee is not wholly indemnified hereunder or (2)
with respect to any Proceeding with respect to which Indemnitee may be or is
made a party, witness or participant or may be or is otherwise entitled to
seek indemnification hereunder, does not include, as an unconditional term
thereof, the full release of Indemnitee from all liability in respect of such
Proceeding, which release shall be in form and substance reasonably
satisfactory to Indemnitee. Neither the Company nor Indemnitee shall
unreasonably withhold its consent to any proposed settlement; provided that
Indemnitee may withhold consent to any settlement that does not provide a
full and unconditional release of Indemnitee from all liability in respect of
such Proceeding.
16. Duration of Agreement. This Agreement shall continue until and
terminate upon the latest of: (a) the statute of limitations applicable to
any claim that could be asserted against an Indemnitee with respect to which
Indemnitee may be entitled to indemnification and/or payment of expenses in
advance under this Agreement; (b) 10 years after the date that Indemnitee
shall have ceased to serve as a director or officer of the Company or as a
director, officer, employee, trustee, partner, manager, member, fiduciary or
agent of any other Enterprise which Indemnitee served at the request of the
Company; or (c) one (1) year after the final termination of any Proceeding,
including any and all appeals, then pending in respect of which Indemnitee is
granted rights of indemnification or payment in advance of Expenses hereunder
and of any Proceeding commenced by Indemnitee pursuant to Section 13 of this
Agreement relating thereto (including any right of appeal of any Proceeding
commenced by Indemnitee pursuant to Section 13).
17. Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and his or her heirs, executors and administrators; provided that,
subject to the last sentence hereof, this Agreement may not be assigned or
delegated by either party hereto without the prior written consent of the
other party. The indemnification and payment in advance of Expenses provided
by, or granted pursuant to this Agreement shall be binding upon and be
enforceable by the parties hereto and their respective successors and assigns
(including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or
assets of the Company), shall continue as to an Indemnitee who has ceased to
be a director, officer, employee, trustee, partner, manager, member,
fiduciary or agent of the Company or of any other Enterprise at the Company's
request, and shall inure to the benefit of Indemnitee and his or her spouse,
assigns, heirs, devisees, executors and administrators and other legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part, of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to the
Indemnitee, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform if no such succession had taken place.
18. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any Section,
paragraph or sentence of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; (b) such provision
or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section,
paragraph or sentence of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
19. Enforcement; Entire Agreement.
(a) The Company expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to serve or continue to serve as a director or officer of the
Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director or officer of the Company.
(b) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied, between the
parties hereto with respect to the subject matter hereof (provided that it is
understood and agreed that the provisions contained herein are a supplement
to, and not a substitute for, any provisions regarding the subject matter
hereof contained in any employment or similar agreement between the parties
hereto).
20. Effectiveness of Agreement. This Agreement shall be effective as of
the date set forth on the first page and may apply to acts or omissions of
Indemnitee which occurred prior to such date if Indemnitee was an officer,
director, employee or other agent of the Company, or was serving at the
request of the Company as a director, officer, employee, trustee, partner,
manager, member, fiduciary or agent of another Enterprise, at the time such
act or omission occurred.
21. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties
thereto. 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
nor shall any waiver constitute a continuing waiver.
22. Notice by Indemnitee. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or payment in advance of
Expenses covered hereunder. The failure of Indemnitee to so notify the
Company shall not relieve the Company of any obligation which it may have to
the Indemnitee under this Agreement or otherwise, except to the extent
expressly set forth in Section 10(a).
23. Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (a) if delivered by hand, by personal delivery or by overnight courier
and, in each case, receipted for by the party to whom said notice or other
communication shall have been directed, or (b) mailed by certified or
registered mail with postage prepaid, on the third business day after the
date on which it is so mailed or (c) if sent by telecopier, on the first
business day after confirmation is received:
(a) If to Indemnitee, at the address (or facsimile number) indicated
on the signature page of this Agreement, or such other address as Indemnitee
shall provide to the Company.
(b) If to the Company to
The Reader's Digest Association, Inc.
Reader's Digest Road
Pleasantville, New York 10570
Attention: General Counsel
Telecopier: (914) 244-5644
or to any other address (or facsimile number) as may have been furnished to
Indemnitee by the Company.
24. Contribution. To the fullest extent permissible under applicable
law, if the indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying
Indemnitee, shall contribute to the amount paid or incurred by Indemnitee,
whether for Losses and/or for Expenses, in connection with any claim relating
to an indemnifiable event under this Agreement, in such proportion as is
deemed fair and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (1) the relative benefits received by the
Company (and its officers, directors, employees or agents), on the one hand,
and Indemnitee, on the other hand, as a result of the event(s) and/or
transaction(s) giving cause to such Proceeding; and/or (b) the relative fault
of the Company (and its directors, officers, employees and agents), on the
one hand, and Indemnitee, on the other hand, in connection with such event(s)
and/or transaction(s).
25. Applicable Law, Consent to Jurisdiction and Injunctive Relief. (a)
This Agreement and the legal relations among the parties shall be governed
by, and construed and enforced in accordance with, the laws of the State of
Delaware, without regard to its conflict of laws rules. Except with respect
to any arbitration commenced by Indemnitee pursuant to Section 13(a) of this
Agreement, the Company and Indemnitee hereby irrevocably and unconditionally
(a) agree that any action or proceeding arising out of or in connection with
this Agreement shall be brought only in the Delaware Court, and not in any
other state or federal court in the United States of America or any court in
any other country, (b) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (c) appoint, to the extent such party is not
otherwise subject to service of process in the State of Delaware, irrevocably
The Prentice-Hall Corporation System, Inc., 2711 Centerville Road, Suite 400,
Wilmington, DE 19808, New Castle County, as its agent in the State of
Delaware as such party's agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same legal
force and validity as if served upon such party personally within the State
of Delaware, (d) waive any objection to the laying of venue of any such
action or proceeding in the Delaware Court, and (e) waive, and agree not to
plead or to make, any claim that any such action or proceeding brought in the
Delaware Court has been brought in an improper or inconvenient forum or is
subject (in whole or in part) to a jury trial.
(b) The Company and Indemnitee agree herein that a monetary remedy
for breach of this Agreement, at some later date, may be inadequate,
impracticable and difficult of proof, and further agree that such breach may
cause Indemnitee irreparable harm. Accordingly, the parties hereto agree
that Indemnitee may enforce this Agreement by seeking injunctive relief
and/or specific performance hereof, without any necessity of showing actual
damage or irreparable harm and that by seeking injunctive relief and/or
specific performance, Indemnitee shall not be precluded from seeking or
obtaining any other relief to which he or she may be entitled. The Company
and Indemnitee further agree that Indemnitee shall be entitled to such
specific performance and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, without the
necessity of posting bonds or other undertaking in connection therewith. The
Company acknowledges that in the absence of a waiver, a bond or undertaking
may be required of Indemnitee by the Court, and the Company hereby waives any
such requirement of such a bond or undertaking.
26. Identical Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of
this Agreement.
27. Miscellaneous. Use of the masculine pronoun shall be deemed to
include usage of the feminine pronoun where appropriate. 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
thereof.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the day and year first above written.
COMPANY INDEMNITEE
By:
Name: Michael A. Brizel Name:
Office: Senior Vice President & General Counsel Address:
Telecopier: