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EXHIBIT 14
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, dated as of the ___ day of _______, ____, is made by
and between Donnelley Enterprise Solutions Incorporated, a Delaware corporation
having its principal place of business in the State of Illinois (the "Company")
and ________________ (the "Indemnitee"), a resident of the state of __________.
WHEREAS, it is essential to the Company to retain and attract the most
capable persons available as officers and directors; and
WHEREAS, Indemnitee is currently serving as the _________________
of the Company (the "Positions"); and
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against officers and directors of
corporations, as a result of which competent and experienced persons have
become more reluctant to serve in such positions, and as a result of which
creative management and decision making has been deterred; and
WHEREAS, the provision of indemnification will assist the Company in
attracting and retaining the most skilled and competent officers and directors;
and
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enable Indemnitee to continue
to provide service to the Company in an effective manner, the Company wishes to
provide in this Agreement for the indemnification of the Indemnitee and for the
advancing of expenses to Indemnitee, in each case to the full extent permitted
by law and as set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee agree as follows:
1. Agreement to Serve. Indemnitee will continue to serve faithfully
and to the best of his/her ability in the Positions, at the will of the Company
or pursuant to the terms of any separate agreement which may exist, so long as
he is duly elected or appointed and qualified or until such time as he/she
tenders his/her resignation in writing.
2. Right to Indemnification. In the event Indemnitee was or is made a
party or was or is threatened to be made a party to or was or is involved in or
called as a witness in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, and any appeal therefrom (hereinafter,
collectively a "proceeding"), by reason of the fact that he was, is or had
agreed to become a director, officer, employee, agent, fiduciary or Delegate
(as defined herein) of the Company, Indemnitee shall be indemnified and held
harmless by the Company to the fullest extent permitted under the Delaware
General Corporation Law (the "DGCL"), as the same now exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Company to provide broader
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indemnification rights than the DGCL permitted the corporation to provide prior
to such amendment) against all expenses (including, but not limited to,
attorneys' fees and expenses of litigation) and all liabilities and losses
(including, but not limited to, judgments; fines; liabilities under ERISA for
damages; excise taxes or penalties; damages, fines or penalties arising out of
violation of any law related to the protection of the public health, welfare or
the environment; and amounts paid or to be paid in settlement) incurred or
suffered by such person in connection therewith; provided, that except as
provided in Section 4 hereof, the Company shall indemnify any such person
seeking indemnity in connection with a proceeding (or part thereof) initiated
by such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Company.
For purposes of this Agreement, a "Delegate" is any person serving at
the request of the corporation as a director, officer, trustee, fiduciary,
partner, employee or agent of an entity or enterprise other than the
corporation (including, but not limited to, service with respect to employee
benefit plans and trusts).
3. Expenses. Expenses, including attorneys' fees, incurred by
Indemnitee in defending or otherwise being involved in a proceeding shall be
paid by the corporation in advance of the final disposition of such proceeding,
including any appeal therefrom, upon receipt of an undertaking (the
"Undertaking") by or on behalf of Indemnitee to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Company; provided, that in connection with a proceeding (or part thereof)
initiated by Indemnitee, except as provided in Section 4 hereof, the Company
shall pay such expenses in advance of the final disposition only if such
proceeding (or part thereof) was authorized by the Board of Directors of the
Company. The Undertaking shall provide that if Indemnitee has commenced
proceedings in a court of competent jurisdiction to secure a determination that
he/she should be indemnified by the Company, he/she shall not be obligated to
repay the Company during the pendency of such proceeding.
4. Protection of Rights. If a claim under Section 2 or any agreement
("Other Agreement") providing indemnification to Indemnitee is not promptly
paid in full by the Company after a written claim has been received by the
Company or if expenses pursuant to Section 3 or an Other Agreement have not
been promptly advanced after a written request for such advancement accompanied
by the Undertaking has been received by the Company, the claimant may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or the advancement of expenses. If successful, in whole or in part,
in such suit Indemnitee shall also be entitled to be paid the reasonable
expense thereof. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required Undertaking
has been tendered to the Company) that Indemnitee has not met the standards of
conduct which make it permissible under the DGCL for the Company to indemnify
Indemnitee for the amount claimed, but the burden of proving such defense shall
be on the Company. Neither the failure of the Company (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination that indemnification of
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Indemnitee is proper in the circumstances because he/she has met the applicable
standard of conduct required under the DGCL, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee had
not met the applicable standard of conduct.
If a Change of Control has occurred, Indemnitee upon making a claim
under Section 2 or seeking to avoid repayment to the Company pursuant to an
Undertaking under Section 3 shall have (i) the right, but not the obligation,
to have a determination made by independent legal counsel, at the expense of
the Company, as to whether indemnification of the claimant is proper because
he/she has met the applicable standard of conduct required under the DGCL; and
(ii) shall have the right to select as independent legal counsel for such
purpose any law firm as designated (or within a category designated) for such
purpose in a resolution adopted by the Board of Directors of the Company prior
to the Change of Control and in full force and effect immediately prior to the
Change of Control (or if no such law firm has been so designated by the Board
of Directors, any law firm selected by such Indemnitee provided that such firm
has an AV rating by Martindale Xxxxxxx). If a determination has been made in
accordance with the preceding sentence, no determination inconsistent therewith
by other legal counsel, by the Board of Directors, or by stockholders shall be
of any force or effect, provided however, that Indemnitee shall maintain all
rights granted hereby to bring an action as specified in the preceding
paragraph.
A "Change of Control" shall be deemed to have occurred if (i)
individuals who as of _________, ____ constitute the Board of Directors of the
Company (the "Incumbent Directors") cease for any reason to constitute at least
a majority of the Board of Directors of the Company, or (ii) there is a merger,
consolidation or reorganization ("Merger") of the Company in which the Company
is not the surviving entity (the "Survivor") and at any time following such
Merger, Incumbent Directors do not constitute a majority of the Board of
Directors of the Survivor; provided that any individual who becomes a director
after May 6, 1998 whose election, or nomination for election by the Company's
stockholders was approved by a vote or written consent of at least two-thirds
of the directors then comprising the Incumbent Directors shall be deemed to be
an Incumbent Director, but excluding, for this purpose, any such individual
whose initial assumption of office is in connection with an actual or
threatened election contest (as such term is used in Rule 14a-11 under the
Securities Exchange Act of 1934, as amended) relating to the election of the
directors of the Company.
5. No Presumption. For purposes of this Agreement, the termination of
any proceeding, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere or its equivalent,
shall not create a presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has
determined that indemnification or contribution is not permitted by applicable
law.
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6. Non-Exclusivity of Rights. The rights conferred on Indemnitee by
this Agreement shall not be exclusive of any other right which Indemnitee may
have or hereafter acquire under any statute, provision of the Company's
Certificate of Incorporation or By-Laws, insurance policy, other agreement,
vote of stockholders or directors or otherwise.
7. Subrogation. In the event of any payment under this Agreement to
Indemnitee, 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 shall do everything that may be necessary to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.
8. Amendment; Waiver. No provision of this Agreement may be amended
or modified except with the consent in writing of Indemnitee and the Company,
nor may any provision of this Agreement be waived except in writing by the
party granting such waiver. A waiver of any provision hereof shall not be
deemed a waiver of any other provision hereof. Failure of either of the
parties hereto to insist upon strict compliance with any provision hereof shall
not be deemed to be a waiver of such provision or any other provision hereof.
9. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any proceeding to the
extent Indemnitee has otherwise actually received payment under any insurance
policy, statute, provision of the Company's Certificate of Incorporation or
By-Laws, other agreement, vote of stockholders or directors or otherwise of the
amounts otherwise indemnifiable.
10. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns (including, without limitation, any successor by
purchase, merger, consolidation, reorganization or otherwise to all or
substantially all of the business and/or assets of the Company) and their
spouses, heirs, and personal and legal representatives.
11. Term. The provisions of this Agreement shall be applicable to all
proceedings, regardless of when commenced and regardless of whether relating to
events, acts or omissions occurring before, on or after the date on which this
Agreement becomes effective. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve in the Positions; provided,
however, that notwithstanding any other provision hereof, the Company shall
have no obligations hereunder with respect to liability, losses and expenses of
any proceeding to the extent that such liability, losses and expenses relate to
conduct of the Indemnitee which occurs after the earliest date on which
Indemnitee no longer holds the Positions nor a position of a corporate officer
or director of the Company or a President of any of the divisions of the
Company.
12. Severability. If this Agreement or any portion hereof shall be
invalidated or held to be unenforceable, such invalidity or unenforceability
shall not affect the other provisions
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hereof, and this Agreement shall be deemed to be modified to the minimum extent
necessary to avoid such invalidity or unenforceability, and as so modified this
Agreement and the remaining provisions hereof shall remain valid and
enforceable in accordance with their terms to the fullest extent permitted by
law.
13. Notice. All notices and other communications hereunder shall be in
writing and delivered by hand or by first class registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Indemnitee:
____________________
____________________
____________________
If to the Company:
Donnelley Enterprise Solutions Incorporated
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
14. Governing Law. This agreement shall be governed by and construed
and enforced in accordance with the laws of the state of Delaware, without
regard to its choice of law principles.
15. Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
16. Counterparts. This agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument originals.
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IN WITNESS WHEREOF, Indemnitee and the Company, pursuant to the
authorization of its Board of Directors, execute and approve this Agreement in
all respects as to form and substance and make it fully effective as of the
date first above written.
________________________________________
Indemnitee
DONNELLEY ENTERPRISE SOLUTIONS INCORPORATED
By:_____________________________________
Its:_________________________________
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