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Exhibit 10.10
FORM OF INDEMNIFICATION AGREEMENT
Agreement dated as of _________________, between The Knot, Inc., a
Delaware corporation (the "Company", which for the purposes of this Agreement
shall include any Subsidiary as defined herein), and ____________ (the
"Indemnitee").
WHEREAS, the Company desires to attract and retain highly qualified
individuals, such as the Indemnitee, to serve the Company;
WHEREAS, the Company desires to retain the Indemnitee to provide
services to it;
WHEREAS, the Company and the Indemnitee recognize the significant risk of
personal liability for Agents (as defined herein) which arises from corporate
litigation practices;
WHEREAS, the Company and the Indemnitee further recognize that liability
insurance for the Company's Agents, when available, is often available only at
significant expense and provides for coverage of limited scope and that
competent and experienced persons are often unable or unwilling to serve as
Agents unless they are protected by comprehensive liability insurance or
indemnification;
WHEREAS, the Indemnitee is willing to serve the Company, subject to
certain conditions, including execution and delivery of this Agreement by the
Company in order that the Indemnitee be furnished the indemnity provided for
herein;
WHEREAS, the Company's Restated Certificate of Incorporation ("Charter")
and By-Laws do not prohibit or restrict contracts between the Company and its
Agents with respect to indemnification of such Agents; and
WHEREAS, in view of such considerations, the Company desires to provide,
independent from the indemnification to which the Indemnitee is otherwise
entitled by law and under the Company's Charter and By-Laws, indemnification to
the Indemnitee and the Expense Advances (as defined herein), all as set forth in
this Agreement to the maximum extent permitted by law;
NOW, THEREFORE, to induce the Indemnitee to serve the Company and in
consideration of these premises and the mutual agreements set forth in this
Agreement, as well as other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Indemnitee
hereby agree as follows:
1. Definitions. For the purposes of this Agreement,
(a) Agent. "Agent" means any person who (i) is or was a director,
officer, employee, trustee or other agent or fiduciary of the Company; (ii) is
or was serving at the request, for the convenience, or to represent the
interests of the Company or a Company
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employee benefit plan, its participants or its beneficiaries, as a director,
officer, employee, trustee or other agent or fiduciary of another corporation,
limited liability company, partnership, joint venture, trust or other entity
(including, without limitation, any employee benefit plan); or (iii) was a
director, officer, employee, trustee or other agent or fiduciary of a
corporation, limited liability company, partnership, joint venture, trust or
other entity which was a predecessor of the Company, or was a director, officer,
employee, trustee or other agent or fiduciary of any other such entity at the
request of such predecessor. The use of the term "Agent" shall not be construed
to alter the legal relationship between an Agent, as defined herein, and the
Company.
(b) Change in Control. "Change in Control" means that after the date
of this Agreement any of the following shall occur: (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the "Act")), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company acting in such capacity
or a corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company, becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Act), directly or indirectly, of securities of the Company representing more
than 50% of the total voting power represented by the Company's then outstanding
voting securities; (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of the
Company cease to be a majority thereof (otherwise than through death, disability
or retirement in accordance with the Company's normal retirement policies);
(iii) the stockholders of the Company approve a merger or consolidation of the
Company with any other corporation, limited liability company, partnership,
joint venture, trust or other entity other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least 50% of
the total voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such a merger or
consolidation; or (iv) the stockholders of the Company approve a plan of
complete or substantial liquidation of the Company or an agreement for the sale
or disposition by the Company of (in one transaction or a series of related
transactions) all or substantially all of the Company's assets.
(c) Claim. "Claim" means any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution mechanism, or any
hearing, inquiry or investigation, whether conducted by the Company or any other
party, which the Indemnitee believes in good faith might lead to the institution
of any such action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation, whether civil, criminal, administrative,
investigative or any other type whatsoever, with respect to an Indemnifiable
Event.
(d) References to the "Company" shall include, in addition to The
Knot, Inc., any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which The Knot, Inc. (or
any of its wholly owned subsidiaries) is a party which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees, trustees or other agents or fiduciaries, so that
if the Indemnitee is or was a director, officer, employee, trustee or other
agent or fiduciary of such constituent corporation, or is or was serving at the
request of such constituent corporation as a
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director, officer, employee, trustee or other agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, the Indemnitee shall stand in the same position under the provisions
of this Agreement with respect to the resulting or surviving corporation as the
Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.
(e) Expense Advance. "Expense Advance" means a payment to the
Indemnitee of Expenses in advance of the settlement of or final judgment on
any Claim.
(f) Expenses. "Expenses" means all costs and liabilities of any type
or nature whatsoever (including, without limitation, all attorneys' fees and
related disbursements and other out-of-pocket costs, judgments, fines, penalties
and amounts paid in settlements) paid or incurred by or imposed upon the
Indemnitee in the investigation, defense, settlement or appeal of, or otherwise
in connection with, a Claim (including, without limitation, being a witness) or
in establishing or enforcing a right to indemnification under this Agreement,
the Company's Charter or By-Laws, Section 145 of the General Corporation Law of
the State of Delaware or otherwise, and any federal, state, local or foreign
taxes imposed on the Indemnitee as a result of the actual or deemed receipt of
any payments under this Agreement.
(g) Indemnifiable Event. "Indemnifiable Event" means any event or
occurrence related to the fact that the Indemnitee is or was a director,
officer, employee, trustee or other agent or fiduciary of the Company, or any
subsidiary of the Company, or is or was serving at the request of the Company as
a director, officer, employee, trustee or other agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of the Indemnitee while serving in such
capacity.
(h) Independent Legal Counsel. "Independent Legal Counsel" means an
attorney or firm of attorneys, selected in accordance with the provisions of
Section 8(a), whether or not in the event of a Change in Control.
(i) Potential Change in Control. "Potential Change in Control" means
that after the date of this Agreement any of the following shall occur: (i) any
person or entity publicly announces an intention to take or to consider taking
actions which if consummated might result in a Change in Control or (ii) the
Company's Board of Directors adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(j) Reviewing Party. "Reviewing Party" means the person or body
appointed by the Company's Board of Directors pursuant to Section 11(d) and in
accordance with applicable law, which person or body shall be either members of
the Company's Board of Directors who are not interested in the particular Claim
or Independent Legal Counsel. If there has been a Change in Control or Potential
Change in Control, the Reviewing Party shall be Independent Legal Counsel.
(k) Subsidiary. "Subsidiary" means any corporation, limited
liability company, partnership, joint venture, trust or other entity of which
more than 50% of the outstanding voting securities are owned directly or
indirectly by the Company, by the Company and one or more other Subsidiaries, or
by one or more other Subsidiaries.
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2. Agreement to Serve. The Indemnitee agrees to serve the Company as an
Agent, at its will (or under separate agreement if such agreement exists), in
the capacity in which the Indemnitee has been requested to serve by the Company,
so long as the Indemnitee is duly appointed or elected and qualified in
accordance with the Charter and By-Laws of the Company, or until such time as
the Indemnitee tenders the Indemnitee's resignation in writing, provided,
however, that nothing contained in this Agreement is intended to create any
right to continued service by the Indemnitee.
3. Basic Indemnification. Subject to the terms of this Agreement:
(a) Claims Other than Derivative Claims in Favor of the Company. As
to all Claims other than derivative Claims in favor of the Company, the Company
shall indemnify the Indemnitee against all Expenses.
(b) Derivative Claims for Judgment in Favor of the Company. As to
all derivative Claims in favor of the Company, the Company shall indemnify the
Indemnitee against all Expenses, provided that no indemnification shall be made
as to such derivative Claim if the Indemnitee has been finally adjudged to be
liable to the Company in connection with such Claim or any claim, issue or
matter therein, unless and only to the extent that the Court of Chancery of
Delaware or the court in which the Claim was brought shall determine that,
despite the adjudication of liability but in view of all the circumstances, the
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses
which the Court of Chancery or such other court shall deem proper.
(c) Standard of Conduct Required for Entitlement to Basic
Indemnification. The Indemnitee shall be entitled to indemnification under
Sections 3(a) and (b) above if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, provided that in the case of any criminal action or
proceeding, the Indemnitee had no reasonable cause to believe the Indemnitee's
conduct was unlawful and, in the case of Section 3(b), subject to the exclusion
set forth therein. The termination of any Claim by judgment, order, settlement
(whether with or without court approval), conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that (i)
the Indemnitee did not act in good faith and in a manner which the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, (ii) the Indemnitee had reasonable cause to believe that the
Indemnitee's conduct was unlawful or (iii) a court determined that
indemnification is not permitted by applicable law or pursuant to Section 3(b).
In addition, neither the failure of any Reviewing Party to have made a
determination as to whether the Indemnitee has met the standard of conduct set
forth in this Section 3(c) or had any particular belief, nor an actual
determination by any Reviewing Party that the Indemnitee has not met such
standard of conduct or did not have such belief, shall be a defense to the
Indemnitee's right to indemnification or create a presumption that the
Indemnitee did not meet any particular standard of conduct or did not have any
particular belief. If the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interest of
the participants and beneficiaries of an employee benefit plan, the Indemnitee
shall be deemed to have acted in a manner in or not opposed to the best
interests of the Company.
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(d) Success on the Merits. To the extent that the Indemnitee has
been successful on the merits or otherwise (including, without limitation,
dismissal or withdrawal of a Claim with or without prejudice) in defense of any
Claim or in defense of any claim, issue or matter therein, the Company shall
indemnify the Indemnitee against Expenses in connection with such Claim.
4. Additional Indemnification Rights. The Company further agrees to
indemnify the Indemnitee in connection with any Claim and to make Expense
Advances to the Indemnitee, in each case to the fullest extent as may be
provided for under the Company's Charter, By-Laws, vote of the stockholders or
disinterested directors and/or applicable law notwithstanding that any such
indemnification or Expense Advance is not specifically authorized by the other
provisions of this Agreement. It is the intent of the parties hereto that (i) in
the event of any change, after the date of this Agreement, in any applicable
law, statute or rule which expands the right of a Delaware corporation to
indemnify or make Expense Advances to an Agent to a greater degree than would be
afforded currently under the Company's Charter, By-Laws, vote of the
stockholders or disinterested directors and this Agreement, the Indemnitee shall
enjoy by this Agreement the greater benefits afforded by such change; (ii) in
the event of any change, after the Date of this Agreement, in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify or make Expense Advances to an Agent to a greater degree than would be
afforded currently under the Company's Charter, By-Laws, vote of the
stockholders or disinterested directors and this Agreement, such change, to the
extent not otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties' rights and
obligations hereunder except as set forth in Section 5(a) hereof; and (iii) this
Agreement be interpreted and enforced so as to provide indemnification and
Expense Advances under such circumstances as set forth in this Agreement, if
any, in which the providing of indemnification or Expense Advances would
otherwise be discretionary.
5. Exclusions. Any other provision of this Agreement to the contrary
notwithstanding, the Company shall not be obligated to indemnify or provide
Expenses Advances to the Indemnitee:
(a) to the extent any such indemnification or Expense Advance would
be prohibited under applicable law; or
(b) to the extent that the Indemnitee actually received from any
other source (including an insurer) amounts otherwise payable hereunder;
(c) to the extent the Claims are initiated or brought voluntarily by
the Indemnitee and not by way of defense, counterclaim or crossclaim, except (i)
with respect to actions or proceedings brought to establish or enforce a right
to indemnification under this Agreement or any other agreement or insurance
policy or under the Charter or Bylaws now or hereafter in effect relating to
Claims for Indemnifiable Events, (ii) in specific cases if the Board of
Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under Section 145 of the Delaware General Corporation Law,
regardless of whether the Indemnitee ultimately is determined to be entitled to
such indemnification, Expense Advances, or insurance recovery, as the case may
be;
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(d) to the extent any Expenses are incurred by the Indemnitee with
respect to any action instituted (i) by the Indemnitee to enforce or interpret
this Agreement, if a court having jurisdiction over such action makes a final
judicial determination (as to which all rights of appeal therefrom have been
exhausted or have lapsed) that each of the material assertions made by the
Indemnitee as a basis for such action was not made in good faith or was
frivolous, or (ii) by or in the name of the Company to enforce or interpret this
Agreement, if a court having jurisdiction over such action makes a final
judicial determination (as to which all rights of appeal therefrom have been
exhausted or have lapsed) that each of the material defenses asserted by the
Indemnitee in such action was made in bad faith or was frivolous;
(e) for Expenses and the payment of profits arising from the
purchase and sale by the Indemnitee of securities in violation of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or any similar successor
statute;
provided that notwithstanding the foregoing provisions of this Section 5, the
Indemnitee shall be entitled under Section 6 to receive Expense Advances with
respect to any Claim unless and until a court having jurisdiction over such
Claim shall have made a final determination (as to which all rights of appeal
therefrom shall have been exhausted or lapsed) that the Indemnitee is prohibited
from receiving indemnification with respect thereto.
6. Expense Advances. Within five business days of receipt by the Company
of an undertaking (the "Undertaking"), substantially in the form attached hereto
as Exhibit 1, by or on behalf of the Indemnitee to repay the amount of any
Expense Advance with respect to any Claim if and to the extent that it shall
ultimately be determined that the Indemnitee is not entitled to indemnification
for such amount, the Company shall make Expense Advances to the Indemnitee. The
Undertaking shall be unsecured and shall bear no interest.
7. Non-Exclusivity; Continuation. The indemnification and Expense Advances
pursuant to this Agreement shall not be deemed exclusive of any other rights to
which the Indemnitee may be entitled under the Company's Charter or By-Laws, any
vote of the Company's stockholders or disinterested directors, any other
agreement, any law or otherwise, both as to actions in the Indemnitee's official
capacity and as to actions in another capacity while an Agent. All agreements
and obligations of the Company contained in this Agreement shall continue as to
the Indemnitee while the Indemnitee is an Agent and after the Indemnitee has
ceased to be an Agent.
8. Change in Control; Potential Change in Control.
(a) The Company agrees that if there is a Change in Control, then
with respect to all matters concerning the rights of the Indemnitee to
indemnification and Expense Advances under this Agreement, the Company's Charter
or By-Laws, any vote of the Company's stockholders or disinterested directors,
any other agreement, any law or otherwise, the Company shall seek legal advice
only from Independent Legal Counsel. For all purposes of this Agreement, such
Independent Legal Counsel shall be such person or firm selected by the
Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld) which has not otherwise performed services for the Company or the
Indemnitee within the prior three years (other than in connection with such
matters). The Independent Legal Counsel shall,
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among other things, render its written opinion to the Company and the Indemnitee
as to whether and to what extent the Indemnitee is permitted to be indemnified
and receive Expense Advances. The Company agrees to pay the fees and expenses of
the Independent Legal Counsel relating to its engagement pursuant to this
Agreement.
(b) In the event of a Potential Change in Control, the Company may,
in its sole discretion, create a trust for the benefit of the Indemnitee and
from time to time fund such trust in such amounts as the Company's Board of
Directors may determine to satisfy Expenses reasonably anticipated or proposed
to be incurred or paid from time to time in connection with any Claims. The
terms of any trust established pursuant hereto shall provide that upon a Change
in Control (i) the trust shall not be revoked or the principal thereof invaded,
without the written consent of the Indemnitee, (ii) the trustee shall advance
(solely to the extent of trust assets), within two business days of a request by
the Indemnitee, all Expenses to the Indemnitee (and the Indemnitee hereby agrees
to reimburse the trust under the circumstances under which the Indemnitee would
be required to reimburse the Company under Section 6), (iii) the trustee shall
promptly pay (solely to the extent of trust assets) to the Indemnitee all
amounts for which the Indemnitee shall be entitled to indemnification pursuant
to this Agreement or otherwise, and (iv) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing Party or
a court of competent jurisdiction, as the case may be, that the Indemnitee has
been fully indemnified (or is not entitled to be indemnified) under the terms of
this Agreement as to all Claims. The trustee shall be a person or entity
reasonably satisfactory to the Indemnitee. Nothing in this Section 8(b) shall
relieve the Company of any of its obligations under any other provision of this
Agreement.
9. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement or otherwise to indemnification or Expense Advances
by the Company for a portion, but not all, of any Expenses incurred by the
Indemnitee, the Company shall indemnify or provide Expense Advances to the
Indemnitee (as the case may be) for the portion thereof to which the Indemnitee
is entitled.
10. Contribution. If indemnification is unavailable by reason of a court
decision described in Section 11(e) based on grounds other than that set forth
in Section 5(a), then in respect of any Claim in which the Company is jointly
liable with the Indemnitee (or would be if joined in such Claim), the Company
shall contribute to the amount of the Indemnitee's Expenses in such proportion
as is appropriate to reflect (i) the relative benefits received by the Company
on the one hand and by the Indemnitee on the other hand from the transaction
from which such Claim arose, and (ii) the relative fault of the Company on the
one hand and of the Indemnitee on the other hand in connection with the events
which resulted in such Expenses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Indemnitee 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. The Company
agrees that it would not be just and equitable if contribution pursuant to this
Section 10 were determined by pro rata allocation or any other method of
allocation which does not take account of the foregoing equitable
considerations.
11. Procedures.
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(a) Timing of Payments. All payments of Expenses (including, without
limitation, Expense Advances) by the Company to the Indemnitee pursuant to this
Agreement shall be made to the fullest extent permitted by law as soon as
practicable after written demand by the Indemnitee therefor is presented to the
Company, but in no event later than thirty (30) business days after such written
demand by the Indemnitee is presented to the Company, except in the case of
Expense Advances, which shall be made no later than ten (10) business days after
such written demand by the Indemnitee is presented to the Company.
(b) Notice. Promptly after receipt by the Indemnitee of notice of
the commencement, or the threat of commencement, of any Claim, the Indemnitee
shall, if the Indemnitee believes that indemnification or Expense Advances with
respect thereto may be sought from the Company by the Indemnitee pursuant to
this Agreement, notify the Company of the commencement or threat of commencement
thereof; the Indemnitee's notice to the Company may, but need not, be
substantially in the form attached hereto as Exhibit 2. Any failure of the
Indemnitee to provide such notice to the Company shall not, however, relieve the
Company of any liability which it may have to the Indemnitee unless and to the
extent such failure causes material adverse impact upon the interests of the
Company. If, at the time it receives such notice from the Indemnitee, the
Company has directors' and officers' liability insurance in effect, the Company
shall give prompt notice of the commencement, or the threat of commencement, of
such Claim to the insurers in accordance with the procedures set forth in the
respective applicable insurance policies. 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 Claim in accordance with the
terms of such policies; provided that no such payments by such insurers shall
relieve the Company of any liability or obligation which it may have to the
Indemnitee except as and to the extent expressly provided under this Agreement.
(c) Assumption of Defense. If the Company shall be obligated to pay
Expenses arising in connection with any Claim against the Indemnitee, the
Company shall be entitled to assume the defense of such Claim, with counsel
approved by the Indemnitee (whose approval shall not be unreasonably withheld),
upon the delivery to the Indemnitee of notice of its election to do so. After
delivery of such notice, approval of such counsel by the Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees and expenses of counsel
subsequently incurred by the Indemnitee with respect to the same Claim, provided
that (i) the Indemnitee shall have the right to employ the Indemnitee's own
counsel in connection with any Claim at the Indemnitee's expense; (ii) if (A)
the employment of counsel by the Indemnitee shall have been previously
authorized by the Company, (B) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of such defense, or (C) the Company shall not, in fact, have
employed counsel to assume the defense of such Claim, in each such case the fees
and expenses of the Indemnitee's counsel shall be paid by the Company; and (iii)
the Company shall not settle any Claim in any manner which would impose any
penalty, limitation or unindemnified Expense on the Indemnitee without the
Indemnitee's consent.
(d) Determination of Entitlement to Indemnification. In the event of
any demand by the Indemnitee for indemnification under this Agreement or
otherwise, the
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Board of Directors of the Company shall promptly designate a Reviewing Party.
The Reviewing Party shall determine that indemnification is proper if it finds
that the Indemnitee has met the required standard of conduct set forth in
Section 3(c) and that indemnification is not prohibited pursuant to Section 5.
If the Reviewing Party is more than one member of the Company's Board of
Directors, it shall act by a majority vote. If the Reviewing Party is
Independent Legal Counsel, the determination of the Reviewing Party shall be
rendered in the form of a written legal opinion. Subject to Sections 11(e) and
12, any indemnification under Sections 3 and 4 (unless ordered by a court or
pursuant to Section 3(d)) shall be made by the Company only as authorized in the
specific case and upon the determination of the Reviewing Party that the
Indemnitee is entitled to indemnification in the circumstances because the
Indemnitee has met the standard of conduct set forth in Section 3(c) and that
indemnification is not prohibited pursuant to Section 5. The Indemnitee's demand
for indemnification shall create a presumption that the Indemnitee is entitled
to indemnification and the Reviewing Party shall have 30 days from the date of
receipt of the Indemnitee's demand in which to render in writing and deliver to
the Indemnitee its determination. If the Reviewing Party makes no timely
determination, the Reviewing Party shall be deemed to have determined that the
Indemnitee is entitled to the indemnification demanded. If the Reviewing Party
determines, which determination shall be based upon clear and convincing
evidence sufficient to rebut the aforesaid presumption of entitlement, that the
Indemnitee is not entitled to indemnification, in whole or in part, in the
circumstances because the Indemnitee has not met the standard of conduct set
forth in Section 3(c) or because the indemnification is prohibited pursuant to
Section 5, the Indemnitee shall (i) be entitled to obtain a favorable
determination or to appeal such negative determination in the manner provided in
Sections 11(e) and 12 and (ii) not be required to reimburse the Company for any
Expense Advances or Expenses theretofore paid to or on behalf of the Indemnitee
until a final determination has been made with respect to the Indemnitee's legal
entitlement to indemnification (as to which all rights of appeal therefrom shall
have been exhausted or shall have lapsed).
(e) Indemnitee's Rights on Unfavorable Determination.
Notwithstanding a determination by a Reviewing Party or any forum listed in
Section 12 that the Indemnitee is not entitled to indemnification with respect
to a specific Claim, or any claim, issue or matter therein, the Indemnitee shall
have the right to apply to the Court of Chancery of Delaware or any other court
of competent jurisdiction for the purpose of determining and enforcing the
Indemnitee's right to indemnification pursuant to this Agreement or otherwise
and the Company hereby consents to service of process and agrees to appear in
any such proceeding. Such court shall find that the Indemnitee is entitled to
indemnification unless the Company shall prove by clear and convincing evidence
that (i) the Indemnitee did not meet the applicable standard of conduct required
to entitle the Indemnitee to such indemnification or that indemnification is
prohibited pursuant to Section 5, and (ii) the requirements of Section 3(d) have
not been met.
12. Appeal of a Reviewing Party's Determination of No Right to
Indemnification.
(a) The Indemnitee shall be entitled to select from the following
alternatives a forum in which the validity of a Reviewing Party's determination
that the Indemnitee is not entitled to indemnification will be heard, which
forum shall determine that the Indemnitee is entitled to such indemnification
unless such forum determines that there is clear and convincing evidence that
(i) the Indemnitee did not meet the applicable standard of conduct required to
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entitle the Indemnitee to such indemnification or that indemnification is
prohibited pursuant to Section 5, and (ii) the requirements of Section 3(d) have
not been met:
(A) those members of the Company's Board of Directors who are
disinterested parties with respect to the Claim, acting by a majority vote;
(B) Independent Legal Counsel, in a written opinion; or
(C) those stockholders of the Company who are disinterested parties
with respect to the Claim, acting by a majority vote.
(b) As soon as practicable, and in no event later than 30 days after
notice of the Indemnitee's choice of forum pursuant to Section 12(a), the
Company shall, at its own expense, submit to the selected forum in such manner
as the Indemnitee or the Indemnitee's counsel may reasonably request, the basis
for the determination that the Indemnitee is not entitled to indemnification,
and the Company shall act in the utmost good faith to assure the Indemnitee a
complete opportunity to defend against and appeal such determination.
13. Binding Effect; Successors and Assigns. This Agreement shall bind and
inure to the benefit of the successors, heirs, personal and legal
representatives and assigns of the parties hereto, including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all,
substantially all or a substantial part of the business or assets of the
Company. The Company shall require and cause any successor (whether direct or
indirect, and whether by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part of the business 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.
14. Expenses and Expense Advances to Enforce the Agreement. It is the
intent of the Company that the Indemnitee shall not be required to incur any
Expenses arising from any effort to enforce the Indemnitee's rights under this
Agreement, because incurring such Expenses would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. Accordingly, if it
should appear to the Indemnitee that the Company has failed to comply with any
of its obligations under this Agreement or if the Company or any other person or
entity (other than the Court of Chancery of Delaware or any other court of
competent jurisdiction in a final determination, as which all rights of appeal
therefrom shall have been exhausted or shall have lapsed) takes any action to
declare this Agreement or any provision hereof void or unenforceable, or
institutes any action, suit or proceeding designed (or having the effect of
being designed) to deny or recover from the Indemnitee the benefits intended to
be provided to the Indemnitee hereunder, the Company hereby irrevocably
authorizes the Indemnitee from time to time to retain counsel of the
Indemnitee's choice to represent the Indemnitee in connection with the
enforcement of the Indemnitee's rights under this Agreement. If the Indemnitee
is successful in whole or in part in enforcing the Indemnitee's rights under
this Agreement, the Company shall pay and be solely responsible for any and all
costs and liabilities (including, without limitation, all attorneys' fees and
related disbursements and other out-of-pocket costs) incurred by the Indemnitee
in connection therewith.
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15. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) when
delivered by hand or (ii) if mailed by certified or registered mail with postage
prepaid, on the third business day after the mailing date. Addresses for notice
to either party shall be as shown on the signature page of this Agreement or as
subsequently modified by the addressee by such written notice.
16. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever, (i)
the validity, legality and enforceability of the remaining provisions of the
Agreement (including, without limitation, all portions of any paragraph of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and (iii) to
the fullest extent possible, any such provision held to be invalid, illegal or
unenforceable shall be reformed so as to be valid, legal and enforceable and to
give effect to the intent manifested by such provision.
17. Modifications, Amendments, and Waivers. No modification or amendment
of this Agreement, or waiver of any of the provisions hereof, shall be binding
unless executed in writing by both of the parties hereto, in the case of a
modification or amendment, or by the waiving party, in the case of a waiver. No
waiver of any such provision shall be deemed to constitute a waiver of such
provision on any other occasion or a waiver of any other provision.
18. Consent to Jurisdiction. The Company and the Indemnitee each hereby
irrevocably consent to the non-exclusive jurisdiction of the Court of Chancery
of Delaware for any purpose in connection with any action or proceeding which
arises out of or relates to this Agreement.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of Delaware, as applied to contracts between
Delaware residents entered into and to be performed entirely within Delaware.
20. Subrogation. In the event of payment by the Company under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Indemnitee, who agrees, at the sole expense of
the Company, to execute all papers reasonably required and to do all other acts
and things that may be reasonably necessary on the part of the Indemnitee to
secure such rights, including the execution of documents necessary to enable the
Company to bring suit to enforce such rights.
21. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof.
22. No Construction as Employment Agreement. In the case of any Indemnitee
who is an employee of the Company, nothing contained in this Agreement shall be
construed as
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giving the Indemnitee any right to be retained in the employ of the
Company or affiliated entities.
23. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
THE KNOT, INC.
By:________________________ ____________________________
Name:______________________ Indemnitee
Title:_______________________
Address: ____________________ Address: _____________________
____________________ _____________________
____________________ _____________________
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Exhibit 1
UNDERTAKING
1. This Undertaking is submitted pursuant to the Indemnification Agreement
dated as of ________________ between The Knot, Inc., a Delaware corporation (the
"Company"), and the undersigned (the "Agreement"). Capitalized terms used but
not defined herein shall have the respective meanings set forth in the
Agreement.
2. I am requesting certain Expense Advances in connection with a Claim.
3. I hereby undertake to repay such Expense Advances if it shall
ultimately be determined that I am not entitled to be indemnified by the Company
therefor under the Agreement or otherwise.
4. The Expense Advances are, in general, all related to:
Signed: ______________________________
Dated: ______________________________
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Exhibit 2
NOTICE AND DEMAND FOR INDEMNIFICATION
1. This Notice and Demand for Indemnification is submitted pursuant to the
Indemnification Agreement dated as of _________________ between The Knot, Inc.,
a Delaware corporation (the "Company"), and the undersigned (the "Agreement").
Capitalized terms used but not defined herein shall have the respective meanings
set forth in the Agreement.
2. I am notifying the Company as to the following Claim:
3. I am requesting indemnification and Expense Advances with respect to
such Claim to the full extent provided for in the Agreement or to which I may
otherwise be entitled.
Signed: ______________________________
Dated: ______________________________