Exhibit 10.9
2002 EMPLOYMENT AGREEMENT
BETWEEN J2 COMMUNICATIONS
AND
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
This 2002 EMPLOYMENT AGREEMENT, dated as of May 17, 2002 (the
"Agreement"), is entered into by and between J2 COMMUNICATIONS, a California
corporation (the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Executive").
RECITALS
WHEREAS, Executive has served since 2000 and continues to serve as a
Member of the Board of Directors of the Company;
WHEREAS, National Lampoon Acquisition Group LLC, a California limited
liability company ("NLAG"), and/or certain affiliates of NLAG, are investing an
amount equal to at least Two Million Dollars ($2,000,000) in the Company (the
"NLAG Investment") and have options and warrants to purchase additional shares
of capital stock from the Company pursuant to that certain Preferred Stock and
Warrant Purchase Agreement dated as of April 25, 2002, as amended by the First
Amendment to Preferred Stock and Warrant Purchase Agreement dated May 17, 2002
(the "Stock Purchase Agreement");
WHEREAS, the Company, such investors and certain other shareholders of
the Company are entering into various agreements and certain other transactions
in connection therewith and ancillary thereto (including this Agreement), as set
forth in the Stock Purchase Agreement (the closing of the Stock Purchase
Agreement, the execution and delivery of the Agreement, and the other
transactions contemplated thereby or collectively referred to as the
"Transactions");
WHEREAS, as part of the Transactions the Executive is becoming the Chief
Operating Officer ("COO") of the Company and entering into this Agreement; and
WHEREAS, the Board has determined that this Agreement is in the best
interests of the Company:
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
1. EMPLOYMENT
(a) Executive Employment. The Company hereby employs Executive,
and Executive hereby agrees to perform services for the Company for and
during the term hereof, and to serve as COO of the Company and,
following the retirement, resignation or termination of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇'▇ employment with Company, as President and Chief Executive
Officer ("CEO") of the Company. Executive shall perform such duties and
have such responsibilities as are set forth in the Bylaws of the Company
and as may from time to time be assigned to Executive by the Board. The
Executive shall report solely to the Board and shall be subject to
direction solely from the Board in the performance of his duties
hereunder. For purposes of this Agreement, unless the context otherwise
requires, references to the business of "the Company" shall include any
successor corporation or corporations which may be the eventual
successor to the present or future business and/or assets of the
Company.
(b) Duties. Throughout the period that the Executive is employed
by the Company hereunder (the "Employment Term"), Executive shall devote
substantially all of his time, energy and skill during normal business
hours to the business and affairs of the Company, except for vacation
periods and periods of illness or incapacity, but nothing in this
Agreement shall preclude Executive from devoting reasonable amounts of
time to serve as a director or member of a
committee of any organization involving no material and substantial
conflict of interest with the Company or from pursuing personal
investments provided that Employee shall not, directly or indirectly, as
employee, consultant, agent, investor, principal, partner, stockholder
(except as a holder of less that 1% of the issued and outstanding stock
or debt of a publicly held corporation), officer, director or otherwise,
engage or participate in any business similar to or in competition in
any manner whatsoever with the business as now or hereafter conducted.
(c) Place of Employment. The Company shall not change the
location of the principal office of the Company or Executive's principal
place of employment during the Employment Term of this Agreement without
the prior written approval of Executive. The Executive shall not be
required to travel from Los Angeles on business for unreasonable periods
of time or on an unreasonable number of business trips.
2. COMPENSATION. The Company shall provide to Executive and pay the
following forms of compensation: (a) Base Salary.
(i) During the Employment Term, the Company shall pay to
Executive an annual salary (the "Base Salary") for the services
to be rendered by him hereunder, including all services to be
rendered as an officer, employee or director of the Company or
any of its direct or indirect subsidiaries, which shall
initially be Two Hundred Thousand Dollars ($200,000) per year.
Such salary shall be payable in cash in semi-monthly payments on
the 1st and 15th days of each month. Executive's Base Salary as
in effect from time to time shall not be subject to reduction
without Executive's prior written consent.
(ii) Adjustments to Base Salary. Executive's Base Salary
may be increased (but not decreased) by the Board in its sole
discretion.
(b) Stock Options. On the effective date of this Agreement, the
Board (acting solely by "outside directors" as such term is defined in
the regulations regarding performance based compensation under Section
162(m) of the Internal Revenue Code of 1986, as amended, shall grant to
Executive options to purchase 100,000 shares of the Company's Common
Stock, no par value (the "Common Stock") on the following terms and
conditions:
(i) The options shall be granted under and pursuant to
the Company's Amended and Restated 1999 Stock Option, Deferred
Stock and Restricted Stock Plan (the "Plan").
(ii) The exercise price of each option shall be equal to
(A) the average of the last reported sale price for one share of
Common Stock during the five (5) business days preceding the
date of grant as reported on the NASDAQ Automated Quotation
System; or (B) if (A) is not applicable, then the fair market
value of one share of the Common Stock, as determined in good
faith by the Board.
(iii) All stock options granted to Executive pursuant to
this Section 2(b):
(A) shall be immediately exercisable; (B) shall
expire to the extent not exercised prior to the close of
business on the day ten (10) years from the date of grant;
and (C) shall be governed by the Plan and an agreement
substantially in the form of the agreement attached hereto
as Exhibit A, or as otherwise agreed upon by the parties.
The Company shall use its best efforts to assure that all
options are granted to Executive under the Plan, or a
similar plan later adopted by the Company which satisfies
the conditions of Rule 16b-3 of the Securities and
Exchange Commission or any successor thereto.
(iv) In the event of a change in the number of the
Company's shares of Common
Stock outstanding caused by an event listed in Section 3.3 of
the Plan, the number of shares subject to options granted after
the date of such event shall be adjusted in accordance with the
procedures contained in such Section and the number of options
to be granted to Executive pursuant to this Section 2(b) shall
be correspondingly adjusted.
(v) Notwithstanding the foregoing, if and to the extent
that, in the opinion of counsel, the Company is unable to grant
the Executive any stock options due Executive pursuant to this
Section 2(b) because such grant would violate any state or
federal securities law, regulation, permit or approval obtained
by the Company, then the Company shall to the extent it is able
to do so without violation of the foregoing, at the time such
stock options would otherwise be granted to Executive hereunder;
agree with the Executive on a reasonably equivalent, alternative
form of compensation, with the agreement of neither party to be
unreasonably withheld.
(vi) The Board may grant additional stock options to
Executive in its sole discretion.
(c) Vacation. During the Employment Term, Executive shall be
entitled to four (4) weeks annual paid vacation to be taken at such
times as are mutually satisfactory to Executive and to the Company.
(d) Other Benefits. During the Employment Term, the Company shall
provide Executive with benefits substantially similar to those enjoyed
by the President under any of the Company's vacation, pension,
retirement, life insurance, medical, health and accident, or disability
plans or policies in which the President is presently participating and
the Company shall not take any action which would directly or indirectly
materially reduce any of such benefits or deprive Executive of any
material fringe benefit presently enjoyed by the President immediately
prior to the date of this Agreement. During the Employment Term,
Executive shall also be entitled to participate in or receive benefits
under all of the Company's employee benefit plans, policies, practices
and arrangements made available by the Company in the future to its
executive employees subject to and on a basis consistent with the terms,
conditions and overall administration of such benefit plans and the
terms of this Agreement. Without limiting the foregoing, during the
Employment Term, the Company shall provide Executive with support
services comparable to those currently provided to the President,
including without limitation the exclusive use of an appropriate office
and the services (at a level comparable to the President) of a secretary
of his choice. At its discretion, the Board may grant to Executive
benefits under the Company's existing employee benefit plans in addition
to those presently enjoyed by Executive or specified herein, based upon
Executive's contributions to the success of the Company.
3. EXPENSES. Executive shall be reimbursed for expenses incurred for
business purposes by the Company upon presenting satisfactory vouchers
evidencing such expenses. Executive shall be provided with and the Company shall
pay all insurance, maintenance, license, registration and operational expenses
for an automobile of his choice (luxury class).
4. TERMINATION.
(a) Term. This Agreement shall be in effect from the date hereof
through a period ending one year after the date hereof, and shall
automatically be extended for successive one year terms thereafter
unless and until the Board of Directors elects not to renew this
Agreement and cause the Company to so notify Executive in writing of
such nonrenewal at least sixty (60) days prior to the end of the
then-current one-year term of this Agreement or unless earlier
terminated in accordance with this Section 4 (the "Employment Term");
provided, however, that, prior to the first annual meeting of the
shareholders of the Company following the "Payment Satisfaction Date"
(as defined in that certain Voting Agreement dated May 17, 2002, among
Executive, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and various other shareholders of the
Company (the "Voting Agreement")), for purposes of deciding not to renew
Executive's employment for an additional one-year term hereunder a
majority of the "Independent Director" (as defined in the Voting
Agreement) and the "Series B Directors" (as defined in the Voting
Agreement), acting as a group, shall make that decision for the Board of
Directors, and the remaining Directors shall not participate in such
decision, notwithstanding any provision of the Bylaws of the Company to
the contrary, and the Board of Directors shall abide by, and act in
accordance with, the decision of such group.
(b) Notice of Termination. "Notice of Termination" shall be a
written notice terminating Executive's employment hereunder which shall
indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of employment
under the provision so indicated.
(c) Death. This Agreement shall be terminated automatically upon
the death of Executive.
(d) Disability. This Agreement shall be terminated automatically
upon the permanent disability of Executive. For purposes of this
Agreement, a permanent disability shall be deemed to have occurred if
(i) Executive is unable to perform his material duties hereunder for a
period of ninety (90) consecutive days, or one hundred eighty (180) days
in any one (1) year, on account of any physical or mental disability; or
(ii) a licensed physician selected by the Company and approved by
Executive (or his closest relative if Executive is unable to act), which
approval shall not be unreasonably withheld, makes a medical
determination of physical or medical disability or incapacity of
Executive.
(e) Termination by the Company For Cause. This Agreement may be
terminated voluntarily by the Company immediately at any time during its
term for "Cause" which shall mean (i) the willful and continued failure
by Executive to substantially perform his duties with the Company in
good faith (other than any such failure resulting from his incapacity
due to physical or mental illness), after a demand for substantial
performance is delivered to him by the Board which specifically
identifies the manner in which the Board believes that Executive has not
substantially performed his duties in good faith; or (ii) the willful
engaging by Executive in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise. For purposes of this
Section 4(e), no act, or failure to act, on the Executive's part shall
be considered "willful" unless done, or omitted to be done, by him in
bad faith and without reasonable belief that his action or omission was
in the best interest of the Company. Notwithstanding the foregoing,
Executive shall not be deemed to have been terminated for cause unless
and until there shall have been delivered to him a Notice of Termination
and a copy of a resolution duly adopted by the affirmative vote of at
least five of the six members of the Board excluding Executive at a
meeting of the Board called and held for such purpose (after reasonable
written notice to Executive, not less than 10 days prior to the date of
such meeting, detailing the alleged basis for such determination; and an
opportunity for Executive, together with his counsel, to be heard before
such meeting), finding that in the good faith opinion of the Board,
Executive was guilty of conduct set forth above in clause (i) or (ii) of
the first sentence of this Section 4(e) and specifying the particulars
thereof in detail. Any dispute concerning a determination of "Cause"
pursuant hereto shall be subject to arbitration pursuant to Section 9(c)
hereof.
(f) Date of Termination. Subject to Section 4(g), "Date of
Termination" means (i) if employment is terminated upon the death of
Executive, the date of such death; (ii) if employment is terminated upon
the permanent disability of Executive as provided for in Section 4(d),
on the date permanent disability is first established pursuant to that
Section; or (iii) if employment is terminated pursuant to Section 4(e),
the date specified in the second to last sentence of Section 4(e).
(g) Notice of Dispute. Within fifteen (15) days after Notice of
Termination is given pursuant to Section 4(e), the party receiving such
Notice of Termination may notify the other party that a dispute exists
concerning the termination ("Notice of Dispute"), and the Date of
Termination shall be the date on which the dispute is finally resolved,
either by mutual written agreement of the parties, by a binding
arbitration award, or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and
no appeal
having been perfected); and provided, however, that the Date of
Termination shall be extended by a Notice of Dispute only if the party
delivering such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of a Notice of
Dispute, the Company will continue to pay Executive his full
compensation in effect when the notice giving rise to the dispute was
given and continue him as a participant in all compensation, bonus,
benefit and insurance plans in which he was participating when the
notice giving rise to the dispute was given, until the dispute is
finally resolved. Notwithstanding anything expressed or implied to the
contrary in this Section 4(i), the failure of a party to give a Notice
of Dispute or to pursue a dispute with reasonable diligence shall not
foreclose the party from disputing such termination or otherwise pursing
any rights to damages or other remedies to which the party may be
entitled at law.
5. COMPENSATION AND BENEFITS UPON CERTAIN EARLY TERMINATIONS. If
Executive's employment shall be terminated by the Company for Cause, or by
Executive, or upon the death or disability of Executive, in addition to any
benefits mandated by law, the Company shall pay Executive his full Base Salary
in effect at the Date of Termination and other benefits to which he is entitled
through the Date of Termination at the rate in effect at the time Notice of
Termination is given.
6. SUCCESSORS. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
7. REGISTRATION RIGHTS.
(a) The Company shall register all options of Executive
(regardless of whether such options have been granted under this
Agreement or otherwise), and the Common Stock with respect to which such
options are exercisable, as soon as practicable after issuance on Form
S-8 or any successor form thereto pursuant to the rules and regulations
of the Securities and Exchange Commission.
8. INDEMNITY. Concurrently with the execution of this Agreement, the
Company and the Executive shall execute and deliver to each other an Indemnity
Agreement in the form attached as Exhibit "B" hereto. The delivery of such
agreement by the Company is in consideration for the performance by Executive of
his obligations under this Agreement.
9. MISCELLANEOUS.
(a) Severability. The provisions of this Agreement shall be
severable and if any provision hereof shall be judged to be invalid,
such invalidity shall not affect any other portion of this Agreement
which can be given effect.
(b) Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be duly given if
actually received or if duly mailed, registered or certified mail,
return receipt requested, postage prepaid:
If to the Company, to:
J2 Communications
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Executive, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as either party may furnish to the other in writing,
making specific reference to this
Section 9(b).
(c) Arbitration. In the event that there shall be a dispute
between the parties hereto concerning the meaning, application or
interpretation of this Agreement or of the legal relations connected
therewith, or concerning any alleged breach hereof, or to enforce the
terms hereof or to seek damages in respect of a breach hereof or
otherwise relating hereto, then such dispute shall be referred to the
American Arbitration Association for arbitration before a single
arbitration in Los Angeles, California, according to the rules of the
arbitrator appointed by said Association; and the decision of such
Association shall be final and binding on the parties hereto.
(d) Rights to Work Product. Executive grants to the Company all
rights of every kind whatsoever, exclusively and perpetually, in and to
all services performed by him for the Company hereunder, during the term
hereof, and the results and proceeds thereof, including all of
Executive's creative works including without limitation ideas, concepts,
formats, themes, screenplays, and/or adaptations of the foregoing,
whether or not reduced to writing, and whether or not otherwise
protected by copyrights, or rights thereto, or at common law or
otherwise during the term hereof. Executive agrees that all films, film
rights, videotapes, distribution rights, literary material, photoplays,
music rights, ideas for photoplays, scripts and similar rights,
presentations, ideas, formats and all other material (collectively
referred to as "Material") submitted to him by third parties during the
term of his employment hereunder shall be deemed to be submitted to the
Company and upon the termination of his employment hereunder Executive
shall forthwith deliver all such Material in his possession, if any, to
the Company.
(e) Confidentiality. Without the express prior written consent of
the Company, Executive shall not, except in the ordinary course of
performing his duties for the Company, disclose or make available to
anyone outside the Company, any confidential or proprietary information
of the Company its subsidiaries, or affiliated corporations or entities
including, without limitation, trade secrets, customer lists, financial
data, programming plans or other information not generally known to any
competitor of the Company, its subsidiaries or affiliated corporations
or entities. Upon termination of his employment, Executive shall deliver
to the Company all documents in his possession containing any such
confidential or proprietary information; provided, however, that
Employee shall be entitled to retain a copy (but not the original) of
his personal correspondence file. The agreements of Executive set forth
in this Section 9(e) shall survive the end of the Employment Term.
(f) Attorneys' Fees. In the event of any dispute hereunder, or
in the event of any action to enforce the terms and provisions of this
Agreement, the prevailing party shall be entitled to recover from the
other his reasonable attorneys' fees and disbursements and other costs
incurred in connection therewith.
(g) Assignment. Neither this Agreement nor any right or interest
under this Agreement shall be assignable by Executive. This Agreement
shall not be assignable by the Company without the prior written consent
of Executive.
(h) Entire Agreement. This Agreement sets forth the entire
understanding and agreement of the parties with respect to Executive's
employment by the Company on and after the date hereof. Said Agreement
shall be binding upon the heirs, administrators, successors and assigns
of the parties hereto. There are no oral agreements, modifications,
representations or understandings relating to Executive's employment by
the Company on and after the date hereof which are not specifically set
forth herein. All negotiations regarding Executive's employment by the
Company on and after the date hereof are merged into this Agreement.
(i) Governing Law. This Agreement and each of the provisions
hereunder shall be interpreted according to and governed by the internal
laws of the State of California regardless of the principles of choice
of law of that or any other jurisdiction. The parties hereto submit to
the jurisdiction of the state and federal courts of the State of
California.
(j) No Mitigation of Damages. Executive shall not be required to
mitigate the amount of any payment provided for in Sections 2 or 3 by
seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in Sections 2 or 3 be reduced by any
compensation earned by him as the result of employment by another
employer, or by retirement benefits, after the Date of Termination. The
Company shall not be entitled to any rights to offset, mitigate or
otherwise reduce the amounts owing to Executive by virtue of Sections 2
or 3 with respect to any rights, claims or damages which the Company may
have against Executive.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its officer thereunto duly authorized, and Executive has executed this
Agreement as of the day and year first above written.
"The Company"
J2 COMMUNICATIONS
By:_____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"Executive"
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
EXHIBIT A
J2 COMMUNICATIONS
NON-QUALIFIED STOCK OPTION AGREEMENT
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date Option Granted: May 17, 2002
Name of Optionee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Residence Address
THIS AGREEMENT (this "Agreement") is made as of the date set forth above
between J2 COMMUNICATIONS, a California corporation (hereinafter called the
"Company"), and the optionee named above (hereinafter called the "Optionee").
RECITAL
The Board of Directors of the Company, or a duly appointed Committee (as
such term is defined in the J2 COMMUNICATIONS Amended and Restated 1999 Stock
Option, Deferred Stock and Restricted Stock Plan (the "Plan")) (acting solely by
"outside directors" as such term is defined in the regulations regarding
performance based compensation under Section 162(m) of the Internal Revenue Code
of 1986, as amended), has determined that it is to the advantage and interest of
the Company and its shareholders to grant the option provided for herein to the
Optionee as an inducement to associate with, and remain in the service of, the
Company or any of its Subsidiaries (as such term is defined in the Plan) and as
an incentive for increased effort during such service. All capitalized terms
used herein which are not otherwise defined herein, shall have the meaning
ascribed to them in the Plan.
In consideration of the mutual covenants herein contained, the parties
hereto agree as follows:
(a) Grant of Option. Pursuant to and subject to the terms and
conditions of the Plan, the Company grants to the Optionee the right and
option (the "Stock Option") to purchase on the terms and conditions
hereinafter set forth all or any part of an aggregate of one hundred
thousand (100,000) shares (the "Shares") of the presently authorized and
unissued Common Stock of the Company at the purchase price of $_____ per
share as the Optionee may, from time to time, elect. The Stock Option
shall vest in its entirety immediately upon being granted.
(b) Exercise. The right to exercise the Stock Option granted
hereunder, to the extent unexercised, shall remain in effect for a
period of ten years from the date of grant, and thereafter shall
terminate and expire.
(c) Method of Exercise. The Stock Option may be exercised by the
Optionee from time to time by delivering written notice to the Company
(in the form attached hereto as Exhibit A) stating the number of Shares
with respect to which the Stock Option is being exercised, together with
payment in full of the purchase price for the number of Shares being
exercised. Payment of the
purchase price, in whole or in part, may be made (A) in cash or by
certified or cashier's check payable to the order of the Company, (B) in
the form of unrestricted Stock (if held for at least six 6 months)
already owned by the Optionee, (C) by cancellation of any indebtedness
owed by the Company to the Optionee, (D) through the surrender of shares
of Stock then issuable upon exercise of the Stock Option having a Fair
Market Value on the date of exercise thereof equal to the aggregate
exercise price of the Stock Option exercised or portion thereof, or (E)
by any combination of the foregoing. If requested by the Board of
Directors of the Company or the Committee, prior to the delivery of any
Shares, the Optionee, or any other person entitled to exercise the Stock
Option, shall supply the Board of Directors of the Company or the
Committee with a representation that the Shares are not being acquired
with a view to distribution and will be sold or otherwise disposed of
only in accordance with applicable federal and state statutes, rules and
regulations. As soon after the notice of exercise as the Company is
reasonably able to comply, the Company shall, without transfer or issue
tax to the Optionee or other person entitled to exercise the Stock
Option, deliver to the Optionee or such other person, at the main office
of the Company or such other place as shall be mutually acceptable, a
certificate or certificates for the shares being exercised.
The Optionee may exercise the Stock Option for less than the total
number of Shares for which the Stock Option is exercisable, provided that a
partial exercise may not (i) be for less than 100 shares, except in the final
year of the Stock Option, and (ii) include any fractional shares.
(d) Termination of Stock Option. Notwithstanding anything in this
Agreement or the Plan to the contrary, this Stock Option shall terminate
and expire as provided in paragraph (b) of this Agreement or at such
earlier times and on such terms as follows:
(1) Termination by Death. If the Optionee's employment
with the Company, any Subsidiary or Parent Corporation
terminates by reason of death, the Stock Option may thereafter
be immediately exercised by the legal representative of the
estate or by the legatee of the Optionee under the will of the
Optionee, until the expiration of the stated term of the Stock
Option;
(2) Termination by Reason of Disability. No termination
of the Optionee's employment with the Company, any Subsidiary or
Parent Corporation by reason of Disability shall affect the
exercisability of the Stock Option; and
(3) Other Termination. Except as otherwise provided in
this paragraph or otherwise determined by the Administrator, if
the Optionee's employment with the Company, any Subsidiary or
Parent Corporation terminates for any reason other than death or
Disability, the Stock Option may be exercised until the
expiration of the stated term of this Stock Option; provided,
however, that if the expiration of the stated term of the Stock
Option is less than 30 days from the date of termination, then
the Stock Option shall expire 30 days from the date of
termination.
(e) Adjustments. The number and kind of shares subject to this
Stock Option and the price to be paid therefor shall be subject to
adjustment as provided in the Plan.
(f) Non-Transferability. This Stock Option is not assignable or
transferable by the Optionee, either voluntarily or by operation of law,
other than by will or by the laws of descent and distribution, and is
exercisable, during the Optionee's lifetime, only by the Optionee.
(g) No Shareholder Rights. The Optionee or other person entitled
to exercise the Stock Option shall have no rights or privileges as a
shareholder with respect to any Shares subject hereto until the Optionee
or such person has (1) given written notice of exercise, (2) paid in
full for such Shares, and (3) if requested, given the representations
provided for in paragraphs (c) and (i) of this Agreement (the "Exercise
Conditions"), and no adjustment (except such adjustments as may be
effected pursuant to the provisions of paragraph (e) hereof) shall be
made for dividends or distributions of rights in respect of such Shares
if the record date is prior to the date on which the Optionee or such
person shall have satisfied all of the Exercise Conditions.
(h) Plan Controls. The Stock Option shall be subject to and
governed by the provisions of the Plan (a copy of which is attached
hereto as Exhibit B), which the Committee alone shall have the authority
to interpret and construe. In the event of any conflict between the
provisions of this Agreement and the Plan, the Plan shall govern. All
determinations and interpretations thereof made by the Committee shall
be conclusive and binding on all parties hereto and upon their
successors and assigns. This Stock Option is not intended to meet the
requirements of an incentive stock option within the meaning of Section
422A of the Code.
(i) Conditions to Issuance of Shares. THE COMPANY'S OBLIGATION
TO ISSUE SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE STOCK OPTION IS
EXPRESSLY CONDITIONED UPON THE COMPLETION BY THE COMPANY OF ANY
REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES UNDER ANY STATE
AND/OR FEDERAL LAW OR RULINGS OR REGULATIONS OF ANY GOVERNMENT
REGULATORY BODY or THE MAKING OF SUCH INVESTMENT REPRESENTATIONS OR
OTHER REPRESENTATIONS AND AGREEMENTS BY THE OPTIONEE OR ANY PERSON
ENTITLED TO EXERCISE THE STOCK OPTION IN ORDER TO COMPLY WITH THE
REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH REGISTRATION OR OTHER
QUALIFICATION OF SUCH SHARES WHICH THE COMMITTEE SHALL, IN ITS SOLE
DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS
AND AGREEMENTS INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE OPTIONEE,
OR ANY OTHER PERSON ENTITLED TO EXERCISE THE STOCK OPTION, (A) IS NOT
PURCHASING SUCH SHARES FOR DISTRIBUTION AND (B) AGREES TO HAVE PLACED
UPON THE FACE AND REVERSE OF ANY CERTIFICATES FOR SUCH SHARES A LEGEND
SETTING FORTH ANY REPRESENTATIONS AND AGREEMENTS WHICH HAVE BEEN GIVEN
TO THE COMMITTEE OR A REFERENCE THERETO AND STATING THAT, PRIOR TO
MAKING ANY SALE OR OTHER DISPOSITION OF ANY SUCH SHARES, THE OPTIONEE,
OR ANY OTHER PERSON ENTITLED
TO EXERCISE THE STOCK OPTION, WILL GIVE THE COMPANY NOTICE OF INTENTION
TO SELL OR DISPOSE OF THE SHARES NOT LESS THAN FIVE DAYS PRIOR TO SUCH
SALE OR DISPOSITION.
(j) Method of Acceptance. This Agreement is addressed to the
Optionee in duplicate and shall not be effective until the Optionee
executes the acceptance below and returns one copy to the Company,
thereby acknowledging that he has read and agreed to all the terms and
conditions of this Agreement and the Plan.
(k) Governing Law. THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA
APPLICABLE TO CONTRACTS MADE IN, AND TO BE PERFORMED WITHIN, THAT STATE.
EXECUTED as of the 17th day of May, 2002.
J2 COMMUNICATIONS
----------------------------
▇▇▇▇▇ TOLL
Chief Financial Officer
ACCEPTED:
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Optionee
--------------------------
Date
EXHIBIT "A"
J2 COMMUNICATIONS
AMENDED AND RESTATED 1999 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
Notice of Exercise
Corporate Secretary
J2 Communications.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sir:
1. I am the holder of an option granted under the Company's Amended and Restated
1999 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan"). I
hereby exercise my option (the "Option") to purchase ___________________________
(______) shares (the "Shares") of the Company's Common Stock at an exercise
price of ____________ Dollars and __________ Cents ($ ) per Share. Payment to
the Company of the aggregate exercise price for the Shares, in accordance with
the provisions of the Stock Option Agreement between me and the Company
regarding the Option (the "Option Agreement"), is enclosed.
2. Tax Representation. I understand that I may suffer adverse tax consequences
as a result of my purchase or disposition of the Shares. I represent that I have
consulted any tax consultants I deem advisable in connection with the purchase
or disposition of the Shares (or have knowingly chosen not to consult a tax
advisor) and that I am not relying on the Company or its employees, directors,
officers, attorneys or accountants for any tax advice. The Option I am hereby
exercising is a Non-Qualified Stock Option, which is a taxable event.
3. Other Acknowledgments.
a. I acknowledge receipt of copies of the Company's current Prospectus
with respect to the Plan and its most recent Annual Report to Shareholders.
b. I am aware that the Securities Act of 1933, as amended, and the
regulations and requirements of the Securities and Exchange Commission
thereunder, may impose limitations on the resale of the Company's stock acquired
pursuant to this option exercise. I hereby certify that any resale of such stock
will be made in compliance with the Act and those regulations and requirements
and any applicable state securities laws, rules and regulations.
c. I hereby appoint U.S. Stock Transfer Corporation as my agent to
accept delivery of the shares of the Company's stock being purchased on my
behalf pursuant to this option exercise, and request U.S. Stock Transfer
Corporation to forward the certificates representing those shares to me at the
address shown above.
d. Prior to delivery of the Shares, I agree to make such representations
as are required by or pursuant to the Plan or the Option Agreement.
e. I agree to have placed on the face and reverse of any certificates
for the Shares such legend as is required by or pursuant to the Option
Agreement.
Date: __________________________
Very truly yours,
--------------------
Optionee
------------------------------
Social Security Number
------------------------------
------------------------------
(Address)
EXHIBIT B
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "AGREEMENT") is made and entered
into this 17th day of May, 2002 between J2 Communications, a California
corporation (the "COMPANY") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("INDEMNITEE").
WITNESSETH THAT:
WHEREAS, the Board of Directors of the Company having adopted the Second
Amended and Restated Articles of Incorporation (the "CERTIFICATE") permitting
the Board of Directors to indemnify certain agents and employees designated by
the Board of Directors (the "OFFICERS") and directors (the "DIRECTORS") of the
Company; and
WHEREAS, the Certificate and Section 317 of the California General
Corporation Law, as amended ("LAW"), permits the Company to indemnify its
Officers and Directors; and
WHEREAS, as a result of recent developments affecting the terms, scope
and availability of D & O Insurance there exists general uncertainty as to the
extent of protection afforded the Company's Officers and Directors by such D&O
Insurance and said uncertainty also exists under statutory and bylaw
indemnification provisions; and
WHEREAS, in order to induce Indemnitee to serve as an officer and a
director of the Company, the Company has determined and agreed to enter into
this contract with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's service as an Officer
and a Director after the date hereof, the parties hereto agree as follows:
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless
and indemnity Indemnitee to the fullest extent authorized or permitted by the
provisions of the Law, as such may be amended from time to time, and Article IV
of the Certificate, as such may be amended. The benefits afforded hereby may not
be reduced at a subsequent date without the express written permission of the
Indemnitee. In furtherance of the foregoing indemnification, and without
limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 1(a) if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party to or
participant in any Proceeding (as hereinafter defined) other than a
Proceeding by or in the right of the Company. Pursuant to this Section
1(a), Indemnitee shall be indemnified against all Expenses (as
hereinafter defined), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection
with such Proceeding or any claim, issue or matter therein, if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and, with respect to any
criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 1(b) if, by reason of his Corporate Status, he is, or is
threatened to be made, a party to or participant in any Proceeding
brought by or in the right of the Company to procure a judgment in its
favor. Pursuant to this Section 1(b), Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by him or on his
behalf in connection with such Proceeding if be acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, that, if applicable law so
provides, no indemnification against such Expenses shall be made in
respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company unless
and to the extent that the Superior Court of the State of California, or
the court in which such Proceeding shall have been brought or is
pending, shall determine that such indemnification may be made.
(c) Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate
Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, he shall be indemnified to the tiniest extent permitted by
law against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters
in such Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or on his behalf in
connection with each successfully resolved claim, issue or matter. For
purposes of this Section and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
2. Additional Indemnity.
(a) Subject only to the exclusions set forth in Section 2(b)
hereof, the Company hereby further agrees to hold harmless and indemnify
Indemnitee against any and all Expenses, judgments, fines and amounts
paid in settlement actually and reasonably incurred by Indemnitee in
connection with any Proceeding (including an action by or on behalf of
the Company) to which Indemnitee is, was or at any time becomes a party,
or is threatened to be made a party, by reason of his Corporate Status;
provided, however, that with respect to actions by or on behalf of the
Company, indemnification of Indemnitee against
any judgments shall be made by the Company only as authorized in the
specific case upon a determination that Indemnitee acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company; and
(b) No indemnity pursuant to this Section 2 shall be paid by the
Company:
(i) In respect to remuneration paid to Indemnitee if it
shall be determined by a final judgment or other final
adjudication that such remuneration was in violation of law;
(ii) On account of any suit in which judgment is rendered
against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee 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;
(iii) On account of Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately
dishonest, or to constitute willful misconduct; or
(iv) If a final decision by a court having jurisdiction in
the matter shall determine that such indemnification is not
lawful.
3. Contribution. If the indemnification provided in Sections 1 and 2 is
unavailable and may not be paid to Indemnitee for any reason other than those
set forth in paragraphs (i), (ii) and (iii) of Section 2(b), then in respect to
any Proceeding in which the Company is jointly liable with Indemnitee (or would
be if joined in such Proceeding), the Company shall contribute to the amount of
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee 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 Proceeding 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, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one band and of the Indemnitee on the other hand 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 3 were determined by pro rata allocation or any other method of
allocation which does not take account of the foregoing equitable
considerations.
4. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding to which Indemnitee is not a
party, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his
behalf in connection therewith.
5. Advancement of Expenses. Notwithstanding any other provision of this
Agreement, the Company shall advance all reasonable Expenses incurred by or on
behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee's
Corporate Status within ten days after the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by an undertaking by
or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately
be determined that Indemnitee is not entitled to be indemnified against such
Expenses. Any advances and undertakings to repay pursuant to this Section 5
shall be unsecured and interest free. Notwithstanding the foregoing, the
obligation of the Company to advance Expenses pursuant to this Section 5 shall
be subject to the condition that, if, when and to the extent that the Company
determines that Indemnitee would not be permitted to be indemnified under
applicable law, the Company shall be entitled to be reimbursed, within thirty
(30) days of such determination, by Indemnitee (who hereby agrees to reimburse
the Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Company that
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to .reimburse the Company
for any advance of Expenses until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed).
6. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification (including, but not limited to, the
advancement of Expenses and contribution by the Company) under this
Agreement, Indemnitee shall submit to the Chief Executive Officer (if
Indemnitee is not then serving as the Chief Executive Officer) or Chief
Financial Officer a written request, including therein or therewith 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. The Secretary or any
Assistant Secretary of the Company shall, promptly upon receipt of such
a request for indemnification, advise the Board of Directors in writing
that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 6(a) hereof, a determination,
if required by applicable law, with respect to Indemnitee's entitlement
thereto shall be made in the specific case:
(i) if a Change in Control (as hereinafter defined)
shall have
occurred, by Independent Counsel (as hereinafter defined) in a
written opinion to the Board of Directors, a copy of which shall
be delivered to Indemnitee (unless Indemnitee shall request that
such determination be made by the Board of Directors or the
stockholders, in which case the determination shall be made in
the manner provided in Clause (ii) below), or
(ii) if a Change in Control shall not have occurred, (A)
by the Board of Directors by a majority vote of a quorum
consisting of Disinterested Directors (as hereinafter defined),
or (B) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if
obtainable, said Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee, or
(C) if so directed by said Disinterested Directors, by the
stockholders of the Company. If it is determined that Indemnitee
is entitled to indemnification, payment to Indemnitee shall be
made within ten (10) days after such determination. Indemnitee
shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination.. Any Independent
Counsel, member of the Board of Directors, or stockholder of the
Company shall act reasonably and in good faith in making a
determination under the Agreement of the Indemnitee's
entitlement to indemnification. Any Expenses incurred by
Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee's
entitlement to indemnification) and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) If the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 6(b) hereof, the
Independent Counsel shall be selected as provided in this Section 6(c).
If a Change in Control shall not have occurred, the Independent Counsel
shall be selected by the Board of Directors, and the Company shall give
written notice to Indemnitee advising him of the identity of the
Independent Counsel so selected. If a Change in Control shall have
occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the
Board of Directors, in which event the preceding sentence shall apply),
and Indemnitee shall give written notice to the Company advising it of
the identity of the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within 10 days after
such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to
such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so selected
does not meet the requirements of "Independent Counsel" as defined in
Section 14 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and
timely objection, the person so selected shall act as Independent
Counsel. If a written objection is made and substantiated, the
Independent Counsel selected may not serve as Independent Counsel unless
and until such objection is withdrawn or a court has determined that
such objection is without merit. If, within 20 days after submission by
Indemnitee of a written request for indemnification pursuant to Section
6(a) hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition the Superior
Court of the State of California or other court of competent
jurisdiction for resolution of any objection which shall have been made
by the Company or Indemnitee to the other's selection of Independent
Counsel and/or for the appointment as independent Counsel of a person
selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel
under Section 6(b) hereof. The Company shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 6(b) hereof, and
the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c), regardless of the manner in which such
Independent Counsel was selected or appointed. Upon the due commencement
of any judicial proceeding or arbitration pursuant to Section 8(a)(iii)
of this Agreement, Independent Counsel shall be discharged and relieved
of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
(d) The Company shall not be required to obtain the consent of
the Indemnitee to the settlement of any Proceeding which the Company has
undertaken to defend if the Company assumes full and sole responsibility
for such settlement and the settlement grants the Indemnitee a complete
and unqualified release in respect of the potential liability.
7. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 6(a) of this
Agreement, and the Company shall have the burden of proof to overcome
that presumption in connection with the making by any person, persons or
entity of any determination contrary to that presumption.
(b) If the person, persons or entity empowered or selected under
Section 5 of this Agreement to determine whether Indemnitee is entitled
to indemnification shall not have made a determination within thirty(30)
days after receipt by the
Company of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and
Indemnitee shall be entitled to such indemnification, absent
(i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the
request for indemnification, or
(ii) a prohibition of such indemnification under
applicable law; provided, however, that such 30 day period may
be extended for a reasonable time, not to exceed an additional
fifteen (15) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in
good faith requires such additional time for the obtaining or
evaluating documentation and/or information relating thereto;
and provided, further, that the foregoing provisions of this
Section 7(b) shall not apply if the determination of entitlement
to indemnification is to be made by the stockholders pursuant to
Section 5(b) of this Agreement and if(A) within fifteen (15)
days after receipt by the Company of the request for such
determination the Board of Directors or the Disinterested
Directors, if appropriate, resolve to submit such determination
to the stockholders for their consideration at an annual meeting
thereof to be held within seventy-five (75) days after such
receipt and such determination is made thereat, or (B) a special
meeting of' stockholders is called within fifteen (15) days
after such receipt for the purpose of making such determination,
such meeting is held for such purpose within sixty (60) days
after having been so called and such determination is made
thereat, or
(iii) if the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 6(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement (with or without court
approval), conviction, or upon a plea of nolo contendre or its
equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to
indemnification or 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 Company or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe
that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee
shall be deemed to have acted in good faith if Indemnitee's action is
based on the records or books of account of the Enterprise (as
hereinafter defined), including financial statements, or on information
supplied to Indemnitee by the Officers and Directors of the Enterprise
in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the
Enterprise. In addition, the knowledge and/or actions, or failure to
act, of any director, officer, agent or employee of the Enterprise shall
not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. The provisions of this Section
7(d) shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed to have met
the applicable standard of conduct set forth in this Agreement.
8. Remedies of Indemnitee.
(a)In the event that:
(i) a determination is made pursuant to Section 6 of this
Agreement that Indemnitee is not entitled to indemnification under
this Agreement,
(ii) advancement of Expenses is not timely made pursuant to
Section 5 of this Agreement,
(iii) no determination of entitlement to indemnification shall
have been made pursuant to Section 6(b) of this Agreement within
ninety (90) days after receipt by the Company of the request for
indemnification,
(iv) payment of indemnification is not made pursuant to
Section 3 or 4 of this Agreement within ten (10) days after receipt
by the Company of a written request therefor, or
(v) payment of indemnification is not made within ten (10)
days after a determination has been made that Indemnitee is entitled
to indemnification or such determination is deemed to have been made
pursuant to Section 6 or 7 of this Agreement, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of
California, or in any other court of competent jurisdiction, of his
entitlement to such indemnification. Alternatively, Indemnitee, at
his option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within
one hundred eighty (180) days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this
Section 8(a). The Company shall not oppose Indemnitee's right to seek
any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Section 6(b) of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 8 shall be conducted in all respects
as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse
determination.
(c) If a determination shall have been made pursuant to Section
6(b) of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this Section 8, absent:
(i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the
request for indemnification, or
(ii) a prohibition of such indemnification under
applicable law.
(d) In the event that Indemnitee, pursuant to this Section 8,
seeks a judicial adjudication of or an award in arbitration to enforce
his rights under, or to recover damages for breach of this Agreement,
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all expenses (of the types
described in the definition of Expenses in Section 14 of this Agreement)
actually and reasonably incurred by him in such judicial adjudication or
arbitration, but only if he prevails therein. If it shall be determined
in said judicial adjudication or arbitration that Indemnitee is entitled
to receive part but not all of the indemnification sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated. The Company shall indemnify
Indemnitee against any and all expenses and, if requested by Indemnitee,
shall (within ten (10) days after receipt by the Company of a written
request therefor) advance such expenses to Indemnitee, which are
incurred by Indemnitee in connection with any action brought by
Indemnitee to recover under any Directors' and Officers' liability
insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such
indemnification, advancement of expenses or insurance recovery, as the
case may be.
(e) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 8
that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of
this Agreement.
9. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee
may at anytime be entitled under applicable law, the Certificate, any
agreement, a vote of stockholders or a resolution of Directors, or
otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee
under this Agreement in respect of any action taken or
omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in the Law,
whether by statute or judicial decision, permits greater indemnification
than would be afforded currently under the Certificate and this
Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.
No right or remedy herein conferred is intended to be exclusive of any
other right or remedy, and every other right and remedy shall be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of
any other right or remedy.
(b) To the extent that the Company maintains an insurance policy
or policies providing liability insurance for Directors, Officers,
employees, or agents or fiduciaries of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such person serves at the request of the Company,
Indemnitee shall be covered by such policy or policies in accordance
with its or their terms to the maximum extent of the coverage available
fir any such director, officer, employee or agent under such policy or
policies. A minimum of One Million Dollars ($1,000,000) of insurance
shall be maintained at all times.
(c) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and
take all action necessary to secure such rights, including execution of
such documents as are necessary to enable the Company to bring suit to
enforce such rights; provided, however, the Company may not be
subrogated to any rights until Indemnitee has been paid in full all
amounts owed to him hereunder, or unless Indemnitee shall have secured
all benefits owing to him hereunder.
(d) The Company 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.
10. Exception to Right of Indemnification. Notwithstanding any other
provision of this Agreement, Indemnitee shall nor be entitled to indemnification
under this Agreement with respect to any Proceeding brought by Indemnitee, or
any claim therein, unless
(a) the bringing of such Proceeding or making of such claim
shall have been approved by the Board of Directors or
(b) such Proceeding is being brought by the Indemnitee to assert
his rights under this Agreement.
11. Duration of Agreement. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is an officer
and/or a director of the Company (or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Indemnitee shall be subject to any Proceeding (or any
proceeding commenced under Section 3 hereof) by reason of his Corporate Status,
whether or not he is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification can be provided under
this Agreement. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of the
Company), assigns, spouses, heirs, executors and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an officer and/or a director of the Company or
any other enterprise at the Company's request.
12. Security. To the extent requested by the Indemnitee and approved by
the Board of Directors, the Company may at any time and from time to time
provide security to the Indemnitee for the Company's obligations hereunder
through an irrevocable bank line of credit, funded trust or other collateral.
Any and all such security, once provided to the Indemnitee, may not be revoked
or released without the prior written consent of the Indemnitee.
13. Enforcement.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it
hereby in order to induce Indemnitee to serve as an officer and/or a
director of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as an officer and/or a director
of the Company.
(b) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and understandings, oral, written and implied,
between the parties hereto with respect to the subject matter hereof.
14. Definitions. For purposes of this Agreement:
(a) "CHANGE IN CONTROL" means a change in control of the Company
occurring after the date of this Agreement of a nature that would
constitute a Change in Control under that certain Employment Agreement,
dated as of May 17, 2002 between the Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
(b) "CORPORATE STATUS" describes the status of a person who is
or was a director, officer, employee or agent or fiduciary of the
Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other
enterprise for which such person is or was serving in such capacity at
the express request of the Company.
(c) "DISINTERESTED DIRECTOR" means a director of the Company who
is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee; provided, however, that neither
Indemnitee nor ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be "Disinterested Directors"
hereunder, and both Indemnitee and ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall recuse themselves
from any determinations made or to be made by the Board of Directors
pursuant to this Agreement.
(d) "ENTERPRISE" shall mean the Company and any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving at the express
written request of the Company as a director, officer, employee, agent
or fiduciary.
(e) "EXPENSES" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, fees of
accountants, witness fees, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating, or being or preparing
to be a witness in a Proceeding.
(f) "INDEPENDENT COUNSEL" means a law firm of national
reputation, that is experienced in matters of California corporation law
and neither presently is, nor in the past five years has been, retained
to represent:
(i) the Company or Indemnitee in any matter including with
respect to matters concerning other indemnitees under similar
indemnification agreements, or
(ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any
person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to
determine Indemnitee's rights under this Agreement. Without
limiting the foregoing, the term "Independent Counsel" shall not
include ▇▇▇▇▇▇▇▇▇ Traurig LLP or any other law firm in which ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ is a partner or with which he is otherwise affiliated
or associated. The Company agrees to pay the reasonable fees of
the Independent Counsel referred to above and to fully indemnify
such counsel against any and all Expenses, claims, liabilities
and damages arising our of or relating to this Agreement or its
engagement pursuant hereto.
(g) "PROCEEDING" includes any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed proceeding, whether
brought by or in the right of the Company or otherwise and
whether civil, criminal, administrative or investigative, in
which Indemnitee was, is or will be involved as a party or
otherwise, by reason of the fact that Indemnitee is or was an
officer and/or a director of the Company, by reason of any
action taken by him or of any inaction on his part while acting
as an officer and/or a director of the Company, or by reason of
the fact that he is or was serving at the request of the Company
as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise; in each ease whether or not he is acting or serving
in any such capacity at the time any liability or expense is
incurred for which indemnification can be provided under this
Agreement, including one pending on or before the date of this
Agreement, and excluding one initiated by an Indemnitee pursuant
to Section 8 of this Agreement to enforce his rights under this
Agreement.
15. Severability. If any provision or provisions of this Agreement shall
be held by a court of competent jurisdiction to be invalid, void, illegal or
otherwise unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each portion
of any section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by
law; and
(b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested
thereby.
16. Modification and Waiver. No supplement, modification, termination 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 provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
17. Notice by Indemnitee. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification covered hereunder. The failure
to so notify the Company shall not relieve the Company of any obligation which
it may have to the Indemnitee under this
Agreement or otherwise.
18. Notices. All notices, requests, demands and other communications
hereunder stall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to Indemnitee, to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 317/870-1104
(b) If to the Company, to:
J2 Communications
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: 310/474-1219
or to such other address as may have been furnished in writing to Indemnitee by
the Company or in writing to the Company by Indemnitee, as the case may be.
19. Identical Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
20. 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.
21. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of California without application of the conflict of laws principles
thereof.
22. Gender. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
COMPANY:
J2 COMMUNICATIONS,
a California corporation
By:__________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
INDEMNITEE:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
