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EXHIBIT 10.30
OFFICER'S INDEMNIFICATION AGREEMENT
THIS OFFICER'S INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of __________ by and between ARTISTdirect, Inc., a Delaware
corporation (the "Company"), and __________________ ("Officer").
R E C I T A L S
A. Officer, as the _____________ of the Company, performs a
valuable service in such capacity for the Company;
B. The stockholders of the Company have adopted Bylaws (the
"Bylaws") providing for the indemnification of the officers, directors, agents
and employees of the Company to the maximum extent authorized by Section 145 of
the Delaware General Corporation Law, as amended (the "Delaware Law");
C. The Bylaws and the Delaware Law, by their non-exclusive
nature, permit contracts between the Company, its officers and the members of
its Board of Directors with respect to indemnification of such persons; and
D. In accordance with the authorization as provided by the
Delaware Law, the Company has purchased and presently maintains or will shortly
hereafter purchase and thereafter maintain, a policy or policies of directors
and officers liability insurance ("D & O Insurance"), covering certain
liabilities which may be incurred by its directors and officers in the
performance as directors of the Company;
E. As a result of developments affecting the terms, scope and
availability of D & O Insurance, there exists general uncertainty as to the
extent of protection afforded members of the Board of Directors and officers of
the Company by such D & O Insurance and by statutory and Bylaw indemnification
provisions; and
F. In order to induce Officer to continue to serve as an
executive officer of the Company, the Company has determined and agreed to enter
into this contract with Officer.
NOW, THEREFORE, in consideration of Officer's continued service
to the Company after the date hereof, the parties hereto agree as follows:
1. Indemnity of Officer. The Company hereby agrees to hold
harmless and indemnify Officer to the fullest extent authorized or permitted by
the provisions of the Delaware Law, as may be amended from time to time, and by
the Bylaws as they exist as of the date hereof.
2. Additional Indemnity. Subject only to the exclusions set forth
in Section 3 hereof, the Company hereby further agrees to hold harmless and
indemnify Officer:
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(a) against any and all expenses (including reasonable
attorneys' fees), witness fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Officer in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in the right of the
Company) to which Officer is, was or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that Officer is or was an
officer of the Company, or is or was serving or at any time serves at the
request of the Company as an officer or director of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise;
and
(b) otherwise to the fullest extent as may be provided to
Officer by the Company under the non-exclusivity provisions of Section 6 of
Article VII of the Bylaws of the Company.
3. Limitations on Additional Indemnity. No indemnity pursuant to
Section 2 hereof shall be paid by the Company:
(a) except to the extent the aggregate of losses to be
indemnified thereunder exceeds the sum of such losses for which the Officer is
indemnified pursuant to Section 1 hereof or pursuant to any directors and
officers liability insurance purchased and maintained by the Company;
(b) in respect to remuneration paid to Officer if it shall
be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(c) on account of any suit in which judgment is rendered
against Officer for an accounting of profits, made from the purchase or sale by
Officer of securities of the Company, pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(d) on account of Officer's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately dishonest, or to
constitute willful misconduct;
(e) on account of Officer's conduct which is the subject
of an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any action, claim or proceeding (other
than a proceeding referred to in Section 8(b) hereof) initiated by the Officer
unless such action, claim or proceeding was authorized in the specific case by
action of the Board of Directors; and
(g) if a final decision by a court having jurisdiction in
the matter shall determine that such indemnification is not lawful (and, in this
respect, both the Company and Officer have been advised that the Securities and
Exchange Commission believes that indemnification for liabilities arising under
the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication).
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4. Contribution. If the indemnification provided in Sections 1
and 2 hereof is unavailable by reason of a court decision described in Section
3(g) hereof based on grounds other than any of those set forth in paragraphs (b)
through (f) of Section 3 hereof, then in respect of any threatened, pending or
completed action, suit or proceeding in which the Company is jointly liable with
Officer (or would be if joined in such action, suit or proceeding), the Company
shall contribute to the amount of expenses (including reasonable attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Officer in such proportion as is appropriate to
reflect (i) the relative benefits received by the Company on the one hand and
Officer on the other hand from the transaction from which such action, suit or
proceeding arose, and (ii) the relative fault of the Company on the one hand and
of Officer on the other in connection with the events which resulted in such
expenses, judgments, fines or settlement amounts, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of Officer on the other shall be determined by reference to, among other things,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts. The Company agrees that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation or any other method of allocation which does not take account of the
foregoing equitable considerations.
5. Continuation of Obligations. All agreements and obligations of
the Company contained herein shall continue during the period Officer is an
executive officer of the Company (or is or was serving at the request of the
Company as an executive officer or director of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise) and shall
continue thereafter so long as Officer shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Officer was an executive
officer of the Company or serving in any other capacity referred to herein.
6. Notification and Defense of Claim. Not later than thirty (30)
days after receipt by Officer of notice of the commencement of any action, suit
or proceeding, Officer will, if a claim in respect thereof is to be made against
the Company under this Agreement, notify the Company of the commencement
thereof, but the omission so to notify the Company will not relieve the Company
from any liability which it may have to Officer otherwise than under this
Agreement. With respect to any such action, suit or proceeding as to which
Officer notifies the Company of the commencement thereof:
(a) the Company will be entitled to participate therein at
its own expense;
(b) except as otherwise provided below, to the extent that
it may wish, the Company jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Officer. After notice from the Company to Officer of its
election so as to assume the defense thereof, the Company will not be liable to
Officer under this Agreement for any legal or other expenses subsequently
incurred
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by Officer in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Officer shall have the right to
employ its counsel in such action, suit or proceeding, but the fees and expenses
of such counsel incurred after notice from the Company of its assumption of the
defense thereof shall be at the expense of Officer unless (i) the employment of
counsel by Officer has been authorized by the Company, (ii) Officer shall have
reasonably concluded, based on the advice of counsel, that there may be a
conflict of interest between the Company and Officer in the conduct of the
defense of such action or (iii) the Company shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of Officer's separate counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of any action,
suit or proceeding brought by or on behalf of the Company or as to which Officer
shall have made the conclusion provided for in (ii) above; and
(c) the Company shall not be liable to indemnify Officer
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. Company shall be permitted to settle any
action except that it shall not settle any action or claim in any manner which
would impose any penalty or limitation on Officer without Officer's written
consent. Neither the Company nor Officer will unreasonably withhold its consent
to any proposed settlement.
7. Advancement and Repayment of Expenses.
(a) In the event that Officer employs his own counsel
pursuant to Section 6(b)(i) through (iii) above, the Company shall advance to
Officer, prior to any final disposition of any threatened or pending action,
suit or proceeding, whether civil, criminal, administrative or investigative,
any and all reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding within ten (10)
days after receiving copies of invoices presented to Officer for such expenses.
(b) Officer agrees that Officer will reimburse the Company
for all reasonable expenses paid by the Company in defending any civil or
criminal action, suit or proceeding against Officer in the event and only to the
extent it shall be ultimately determined by a final judicial decision (from
which there is no right of appeal) that Officer is not entitled, under the
provisions of the Delaware Law, the Bylaws, this Agreement or otherwise, to be
indemnified by the Company for such expenses.
(c) Notwithstanding the foregoing, the Company shall not
be required to advance such expenses to Officer if Officer (i) commences any
action, suit or proceeding as a plaintiff unless such advance is specifically
approved by a majority of the Board of Directors or (ii) is a party to an
action, suit or proceeding brought by the Company and approved by a majority of
the Board which alleges willful misappropriation of corporate assets by Officer,
wilfull disclosure of confidential information in bad faith and in violation of
Officer's fiduciary or contractual obligations to the Company, or any other
willful and deliberate breach in bad faith of Officer's duty to the Company or
its stockholders.
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8. Enforcement.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the Company
hereby in order to induce Officer to continue as an officer of the Company, and
acknowledges that Officer is relying upon this Agreement in continuing in such
capacity.
(b) In the event Officer is required to bring any action
to enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Company shall reimburse Officer for all Officer's
reasonable fees and expenses in bringing and pursuing such action.
9. Subrogation. In the event of payment under this agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Officer, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
10. Non-Exclusivity of Rights. The rights conferred on Officer by
this Agreement shall not be exclusive of any other right which Officer may have
or hereafter acquire under any statute, provision of the Company's Certificate
of Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
11. Survival of Rights. The rights conferred on Officer by this
Agreement shall continue after Officer has ceased to be an officer, employee or
other agent of the Company and shall inure to the benefit of Officer's heirs,
executors and administrators.
12. Severability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any or
all of the provisions hereof shall be held to be invalid or unenforceable for
any reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof or the obligation of the Company
to indemnify the Officer to the full extent provided by the Bylaws or the
Delaware Law.
13. Governing Law; Venue and Jurisdiction. This Agreement shall
be interpreted and enforced in accordance with the laws of the State of
Delaware, without regard to the conflicts of law provisions thereof. The Company
and Officer hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought
only in the Court of Chancery of the State of Delaware (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, (ii) 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, (iii) waive any objection
to the laying of venue of any such action or proceeding in the Delaware Court,
and (iv) 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 otherwise
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inconvenient forum.
14. Binding Effect. This Agreement shall be binding upon Officer
and upon the Company, its successors and assigns, and shall inure to the benefit
of Officer, his heirs, personal representatives and assigns and to the benefit
of the Company, its successors and assigns.
15. Amendment and Termination. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
ARTISTdirect, Inc.
a Delaware corporation
By: Xxxx X. Xxxxxx
Its Chief Executive Officer
OFFICER
Name:
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