EXHIBIT 99.8
INDEMNIFICATION AGREEMENT
This Agreement is made as of the 9th day of September 2002, by and between
Engage, Inc., a Delaware corporation (the "Corporation), and Xxxxx X. Xxxxxxxxx
("Indemnitee").
WHEREAS, Corporation is a party to that certain Transaction Agreement, dated as
of the date hereof, by and between the Corporation and CMGI, Inc. (the
"Transaction Agreement"), and
WHEREAS, the execution and delivery of this Agreement is a condition precedent
to the consummation of the transactions contemplated by the Transaction
Agreement.
NOW THEREFORE, the Corporation and Indemnitee do hereby agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit, or proceeding, whether brought by or in the right of the
Corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature, and any appeal therefrom.
(b) The term "Corporate Status" shall mean the status of a person who
is or was a director of the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise.
(c) The term "Expenses" shall include, without limitation, attorneys'
fees, retainers, court costs, transcript costs, fees of experts, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and other disbursements or expenses of the types
customarily incurred in connection with investigations, judicial or
administrative proceedings or appeals, but shall not include the amount of
judgments, fines or penalties against Indemnitee or amounts paid in settlement
in connection with such matters.
(d) References 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
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the 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 Corporation" as referred to in
this Agreement.
2. INDEMNIFICATION IN THIRD-PARTY PROCEEDINGS. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this Paragraph 2 if
Indemnitee was or is a party to or threatened to be made a party to or otherwise
involved in any Proceeding (other than a Proceeding by or in the right of the
Corporation to procure a judgment in its favor) by reason of
his Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses, judgments, fines,
penalties and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on his behalf in connection with such Proceeding, if Indemnitee
acted in good faith and in a manner which he reasonably believed to be in, or
not opposed to, the best interests of the Corporation and, with respect to any
criminal Proceeding, had no reasonable cause to believe that his conduct was
unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction or upon a plea of NOLO CONTENDERE, or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal Proceeding, had
reasonable cause to believe that his conduct was unlawful.
3. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION.
The Corporation shall indemnify Indemnitee in accordance with the provisions of
this Paragraph 3 if Indemnitee is a party to or threatened to be made a party to
or otherwise involved in any Proceeding by or in the right of the Corporation to
procure a judgment in its favor by reason of his Corporate Status or by reason
of any action alleged to have been taken or omitted in connection therewith,
against all Expenses and, to the extent permitted by law, amounts paid in
settlement actually and reasonably incurred by Indemnitee or on his behalf in
connection with such Proceeding, if he acted in good faith and in a manner which
he reasonably believed to be in, or not opposed to, the best interests of the
Corporation, except that no indemnification shall be made under this Paragraph 3
in respect of any claim, issue, or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation, unless and only to the extent that the
Court of Chancery of Delaware shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as
the Court of Chancery shall deem proper.
4. EXCEPTIONS TO RIGHT OF INDEMNIFICATION. Notwithstanding anything to
the contrary in this Agreement, except as set forth in Paragraph 9, the
Corporation shall not indemnify the Indemnitee in connection with a Proceeding
(or part thereof) initiated by the Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation. Notwithstanding anything
to the contrary in this Agreement, the Corporation shall not indemnify the
Indemnitee to the extent the Indemnitee is reimbursed from the proceeds of
insurance, and in the event the Corporation makes any indemnification payments
to the Indemnitee and the Indemnitee is subsequently reimbursed from the
proceeds of insurance, the Indemnitee shall promptly refund such indemnification
payments to the Corporation to the extent of such insurance reimbursement.
5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful, on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein, Indemnitee shall be indemnified
against all Expenses incurred by him or on his behalf in connection therewith.
Without limiting the foregoing, if any Proceeding or any claim, issue or matter
therein is disposed of, on the merits or otherwise (including a disposition
without prejudice), without (i) the disposition being adverse to the Indemnitee,
(ii) an adjudication that the Indemnitee was liable to the Corporation, (iii) a
plea of guilty or NOLO CONTENDERE by the Indemnitee, (iv) an adjudication that
the Indemnitee did not act in good faith and in a manner he
-2-
reasonably believed to be in or not opposed to the best interests of the
Corporation, and (v) with respect to any criminal proceeding, an adjudication
that the Indemnitee had reasonable cause to believe his conduct was unlawful,
the Indemnitee shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
6. NOTIFICATION AND DEFENSE OF CLAIM. The Indemnitee shall notify the
Corporation in writing as soon as practicable of any Proceeding for which
indemnity will or could be sought by him and provide the Corporation with a copy
of any summons, citation, subpoena, complaint, indictment, information or other
document relating to such Proceeding with which he is served; provided that a
failure to provide such notice shall not, in any way, limit the Indemnitee's
rights under this Agreement. With respect to any Proceeding of which the
Corporation is so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to the Indemnitee. After
notice from the Corporation to the Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any legal or
other expenses subsequently incurred by the Indemnitee in connection with such
claim, other than as provided below in this Paragraph 6. The Indemnitee shall
have the right to employ his own counsel in connection with such claim, but the
fees and expenses of such counsel incurred after notice from the Corporation of
its assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between the Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for the Indemnitee shall be at the expense of the Corporation, except
as otherwise expressly provided by this Agreement. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which counsel for
the Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above. The Corporation shall not be required to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any Proceeding
effected without its written consent. The Corporation shall not settle any
Proceeding in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent. Neither the Corporation nor the
Indemnitee will unreasonably withhold their consent to any proposed settlement.
If the Indemnitee is required to testify (in a court proceeding, deposition,
informal interview or otherwise), consult with counsel, furnish documents or
take any other action, by reason of the Indemnitee's present or former Corporate
Status, in connection with any Proceeding, whether or not the Indemnitee was or
is a party to or threatened to be made a party to such Proceeding, the
Corporation shall pay the Indemnitee a fee at a per diem rate of $750 (to be
prorated in the event of any partial day), and shall reimburse the Indemnitee
for all Expenses; provided that the Corporation shall not have any obligation
under this sentence to pay such fee or reimburse any such Expense in connection
with any Proceeding to the extent this Agreement expressly entitles the
Corporation not to indemnify Indemnitee for Expenses incurred in that
Proceeding.
7. ADVANCEMENT OF EXPENSES. Any Expenses incurred by the Indemnitee in
connection with any such Proceeding to which the Indemnitee was or is a party or
is threatened to be a party by reason of his Corporate Status or by reason of
any action alleged to have been
-3-
taken or omitted in connection therewith shall be paid by the Corporation in
advance of the final disposition of such matter; PROVIDED, HOWEVER, that the
payment of such Expenses incurred by the Indemnitee in advance of the final
disposition of such matter shall be made only upon receipt of an undertaking by
or on behalf of the Indemnitee to repay all amounts so advanced in the event
that it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Corporation as authorized in this Agreement. No security
shall be required for such an undertaking, and such undertaking will be accepted
without reference to the Indemnitee's financial ability to make repayment. Such
Expenses shall be paid immediately upon the written request of the Indemnitee to
the Corporation.
8. PROCEDURE FOR INDEMNIFICATION. In order to obtain indemnification
pursuant to Paragraphs 2, 3 or 5 of this Agreement, Indemnitee shall submit to
the Corporation a written request, including in such request such documentation
and information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification or advancement of Expenses. Any such indemnification shall be
made promptly, and in any event within 60 days after receipt by the Corporation
of the written request of the Indemnitee, unless with respect to requests under
Paragraphs 2 or 3 the Corporation determines within such 60-day period that such
Indemnitee did not meet the applicable standard of conduct set forth in
Paragraph 2 or 3, as the case may be. Such determination, and any determination
pursuant to Paragraph 7 that advanced Expenses must be repaid to the
Corporation, shall be made in each instance (a) by a majority vote of the
directors of the Corporation consisting of persons who are not at that time
parties to the Proceeding ("disinterested directors"), whether or not a quorum,
(b) by a committee of disinterested directors designated by majority vote of
disinterested directors, whether or not a quorum, (c) if there are no
disinterested directors, or if disinterested directors so direct, by independent
legal counsel (who may, to the extent permitted by applicable law, be regular
legal counsel to the Corporation) in a written opinion, or (d) by the
stockholders.
9. REMEDIES. The right to indemnification and immediate advancement of
Expenses as provided by this Agreement shall be enforceable by the Indemnitee in
any court of competent jurisdiction. Unless otherwise required by law, the
burden of proving that indemnification is not appropriate shall be on the
Corporation. Neither the failure of the Corporation to have made a determination
prior to the commencement of such action that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Corporation pursuant to Paragraph 8 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. Indemnitee's expenses (of the type described in the
definition of "Expenses" in Paragraph 1(c)) reasonably incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such Proceeding shall also be indemnified by the Corporation.
10. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some or a portion of
the Expenses, judgments, fines, penalties or amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection with any
Proceeding but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such
-4-
Expenses, judgments, fines, penalties or amounts paid in settlement to which
Indemnitee is entitled.
11. SUBROGATION. In the event of any payment under this Agreement, the
Corporation 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 Corporation to bring suit to enforce
such rights.
12. TERM OF AGREEMENT. This Agreement shall continue until and terminate
upon the later of (a) six years after the date that Indemnitee shall have ceased
to serve as a director of the Corporation or, at the request of the Corporation,
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise or (b) the final termination of all
Proceedings pending on the date set forth in clause (a) in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to Paragraph 9
of this Agreement relating thereto.
13. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may be entitled under the Certification
of Incorporation, the By-Laws, any agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of Delaware, any other law
(common or statutory), or otherwise, both as to action in his official capacity
and as to action in another capacity while holding office for the Corporation.
Nothing contained in this Agreement shall be deemed to prohibit the Corporation
from purchasing and maintaining insurance, at its expense, to protect itself or
the Indemnitee against any expense, liability or loss incurred by it or him in
any such capacity, or arising out of his status as such, whether or not the
Indemnitee would be indemnified against such expense, liability or loss under
this Agreement; provided that the Corporation shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
14. NO SPECIAL RIGHTS. Nothing herein shall confer upon Indemnitee any
right to continue to serve as a director of the Corporation for any period of
time or at any particular rate of compensation.
15. SAVINGS CLAUSE. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines, penalties and amounts paid in settlement with respect to any Proceeding
to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
-5-
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Corporation and its successors and assigns and shall inure to the benefit of the
estate, heirs, executors, administrators and personal representatives of
Indemnitee.
18. HEADINGS. 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.
19. MODIFICATION AND WAIVER. This Agreement may be amended from time to
time to reflect changes in Delaware law or for other reasons. 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
provision hereof nor shall any such waiver constitute a continuing waiver.
20. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (i) when
delivered by hand or (ii) if mailed by certified or registered mail with postage
prepaid, on the third day after the date on which it is so mailed:
(a) if to the Indemnitee, to:
Xxxxx X. Xxxxxxxxx
CMGI, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
(b) if to the Corporation, to:
Engage, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
21. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
22. ENFORCEMENT. The Corporation expressly confirms and agrees that it has
entered into this Agreement in order to induce Indemnitee to continue to serve
as a director of the Corporation, and acknowledges that Indemnitee is relying
upon this Agreement in continuing in such capacity.
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
ENGAGE, INC.
By: /s/ Xxxxxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: President and CEO
INDEMNITEE:
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
-7-
