{"id":40838,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnity-agreement-salon-com.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnity-agreement-salon-com","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnity-agreement-salon-com.html","title":{"rendered":"Indemnity Agreement &#8211; Salon.com"},"content":{"rendered":"<pre>\n                              INDEMNITY AGREEMENT\n\n\n         This Indemnity Agreement, dated as of __________, 1999, is made by and\nbetween Salon.com, a Delaware corporation (the 'Company'), and (the\n'Indemnitee').\n\n                                   RECITALS\n                                   --------\n\n         A. The Company is aware that competent and experienced persons are\nincreasingly reluctant to serve as directors, officers or agents of corporations\nunless they are protected by comprehensive liability insurance or\nindemnification, due to increased exposure to litigation costs and risks\nresulting from their service to such corporations, and due to the fact that the\nexposure frequently bears no reasonable relationship to the compensation of such\ndirectors, officers and other agents.\n\n         B. The statutes and judicial decisions regarding the duties of\ndirectors and officers are often difficult to apply, ambiguous, or conflicting,\nand therefore fail to provide such directors, officers and agents with adequate,\nreliable knowledge of legal risks to which they are exposed or information\nregarding the proper course of action to take.\n\n         C. Plaintiffs often seek damages in such large amounts and the costs of\nlitigation may be so enormous (whether or not the case is meritorious), that the\ndefense and\/or settlement of such litigation is often beyond the personal\nresources of directors, officers and other agents.\n\n         D. The Company believes that it is unfair for its directors, officers\nand agents and the directors, officers and agents of its subsidiaries to assume\nthe risk of huge judgments and other expenses which may occur in cases in which\nthe director, officer or agent received no personal profit and in cases where\nthe director, officer or agent was not culpable.\n\n         E. The Company recognizes that the issues in controversy in litigation\nagainst a director, officer or agent of a corporation such as the Company or its\nsubsidiaries are often related to the knowledge, motives and intent of such\ndirector, officer or agent, that he is usually the only witness with knowledge\nof the essential facts and exculpating circumstances regarding such matters, and\nthat the long period of time which usually elapses before the trial or other\ndisposition of such litigation often extends beyond the time that the director,\nofficer or agent can reasonably recall such matters; and may extend beyond the\nnormal time for retirement for such director, officer or agent with the result\nthat he, after retirement or in the event of his death, his spouse, heirs,\nexecutors or administrators, may be faced with limited ability and undue\nhardship in maintaining an adequate defense, which may discourage such a\ndirector, officer or agent from serving in that position.\n\n         F. Based upon their experience as business managers, the Board of\nDirectors of the Company (the 'Board') has concluded that, to retain and attract\ntalented and experienced individuals to serve as directors, officers and agents\nof the Company and its subsidiaries and to encourage such individuals to take\nthe business risks necessary for the success of the Company\n\n                                       1\n\n \nand its subsidiaries, it is necessary for the Company to contractually indemnify\nits directors, officers and agents and the directors, officers and agents of its\nsubsidiaries, and to assume for itself maximum liability for expenses and\ndamages in connection with claims against such directors, officers and agents in\nconnection with their service to the Company and its subsidiaries, and has\nfurther concluded that the failure to provide such contractual indemnification\ncould result in great harm to the Company and its subsidiaries and the Company's\nstockholders.\n\n         G. Section 145 of the General Corporation Law of Delaware, under which\nthe Company is organized ('Section 145'), empowers the Company to indemnify its\ndirectors, officers, employees and agents by agreement and to indemnify persons\nwho serve, at the request of the Company, as the directors, officers, employees\nor agents of other corporations or enterprises, and expressly provides that the\nindemnification provided by Section 145 is not exclusive.\n\n         H. The Company desires and has requested the Indemnitee to serve or\ncontinue to serve as a director, officer or agent of the Company and\/or one or\nmore subsidiaries of the Company free from undue concern for claims for damages\narising out of or related to such services to the Company and\/or one or more\nsubsidiaries of the Company.\n\n         I. Indemnitee is willing to serve, or to continue to serve, the Company\nand\/or one or more subsidiaries of the Company, provided that he is furnished\nthe indemnity provided for herein.\n\n                                   AGREEMENT\n                                   ---------\n\n         NOW, THEREFORE, the parties hereto, intending to be legally bound,\nhereby agree as follows:\n\n         1.    Definitions.\n               -----------\n\n               (a)  Agent. For the purposes of this Agreement, 'agent' of the\n                    -----\nCompany means any person who is or was a director, officer, employee or other\nagent of the Company or a subsidiary of the Company; or is or was serving at the\nrequest of, for the convenience of, or to represent the interests of the Company\nor a subsidiary of the Company as a director, officer, employee or agent of\nanother foreign or domestic corporation, partnership, joint venture, trust or\nother enterprise; or was a director, officer, employee or agent of a foreign or\ndomestic corporation which was a predecessor corporation of the Company or a\nsubsidiary of the Company, or was a director, officer, employee or agent of\nanother enterprise at the request of, for the convenience of, or to represent\nthe interests of such predecessor corporation.\n\n               (b)  Expenses. For purposes of this Agreement, 'expenses' include\n                    --------   \nall out of pocket expenses costs of any type or nature whatsoever (including,\nwithout limitation, all attorneys' fees and related disbursements), actually and\nreasonably incurred by the Indemnitee in connection with either the\ninvestigation, defense or appeal of a proceeding or establishing or enforcing a\nright to indemnification under this Agreement or Section 145 or otherwise;\nprovided,\n\n                                       2\n\n \nhowever, that 'expenses' shall not include any judgments, fines, ERISA excise\ntaxes or penalties, or amounts paid in settlement of a proceeding.\n\n          (c)  Proceeding. For the purposes of this Agreement, 'proceeding'\n               ---------- \nmeans any threatened, pending, or completed action, suit or other proceeding,\nwhether civil, criminal, administrative, or investigative.\n\n          (d)  Subsidiary. For purposes of this Agreement, 'subsidiary' means\n               ----------\nany corporation of which more than 50% of the outstanding voting securities is\nowned directly or indirectly by the Company, by the Company and one or more\nother subsidiaries, or by one or more other subsidiaries.\n\n     2.   Agreement to Serve. The Indemnitee agrees to serve and\/or continue to\n          ------------------  \nserve as agent of the Company, at its will (or under separate agreement, if such\nagreement exists), in the capacity Indemnitee currently serves as an agent of\nthe Company, so long as he is duly appointed or elected and qualified in\naccordance with the applicable provisions of the Bylaws of the Company or any\nsubsidiary of the Company or until such time as he tenders his resignation in\nwriting; provided, however, that nothing contained in this Agreement is intended\nto create any right to continued employment by Indemnitee.\n\n     3.   Liability Insurance.\n          -------------------\n\n          (a)  Maintenance of D&amp;O Insurance. The Company hereby covenants and\n               ----------------------------\nagrees that, so long as the Indemnitee shall continue to serve as an agent of\nthe Company and thereafter so long as the Indemnitee shall be subject to any\npossible proceeding by reason of the fact that the Indemnitee was an agent of\nthe Company, the Company, subject to Section 3(c), shall promptly obtain and\nmaintain in full force and effect directors' and officers' liability insurance\n('D&amp;O Insurance') in reasonable amounts from established and reputable insurers.\n\n          (b)  Rights and Benefits. In all policies of D&amp;O Insurance, the\n               -------------------\nIndemnitee shall be named as an insured in such a manner as to provide the\nIndemnitee the same rights and benefits as are accorded to the most favorably\ninsured of the Company's directors, if the Indemnitee is a director; or of the\nCompany's officers, if the Indemnitee is not a director of the Company but is an\nofficer; or of the Company's key employees, if the Indemnitee is not a director\nor officer but is a key employee.\n\n          (c)  Limitation on Required Maintenance of D&amp;O Insurance.\n               --------------------------------------------------- \nNotwithstanding the foregoing, the Company shall have no obligation to obtain or\nmaintain D&amp;O Insurance if the Company determines in good faith that such\ninsurance is not reasonably available, the premium costs for such insurance are\ndisproportionate to the amount of coverage provided, the coverage provided by\nsuch insurance is limited by exclusions so as to provide an insufficient\nbenefit, or the Indemnitee is covered by similar insurance maintained by a\nsubsidiary of the Company.\n\n     4.  Mandatory Indemnification. Subject to Section 9 below, the Company\n         -------------------------\nshall indemnify the Indemnitee as follows:\n\n                                       3\n\n \n          (a)  Successful Defense. To the extent the Indemnitee has been\n               ------------------\nsuccessful on the merits or otherwise in defense of any proceeding (including,\nwithout limitation, an action by or in the right of the Company) to which the\nIndemnitee was a party by reason of the fact that he is or was an Agent of the\nCompany at any time, against all expenses of any type whatsoever actually and\nreasonably incurred by him in connection with the investigation, defense or\nappeal of such proceeding.\n\n          (b)  Third Party Actions. If the Indemnitee is a person who was or is\n               -------------------\na party or is threatened to be made a party to any proceeding (other than an\naction by or in the right of the Company) by reason of the fact that he is or\nwas an agent of the Company, or by reason of anything done or not done by him in\nany such capacity, the Company shall indemnify the Indemnitee against any and\nall expenses and liabilities of any type whatsoever (including, but not limited\nto, judgments, fines, ERISA excise taxes and penalties, and amounts paid in\nsettlement) actually and reasonably incurred by him in connection with the\ninvestigation, defense, settlement or appeal of such proceeding, provided the\nIndemnitee acted in good faith and in a manner he reasonably believed to be in\nor not opposed to the best interests of the Company and its stockholders, and,\nwith respect to any criminal action or proceeding, had no reasonable cause to\nbelieve his conduct was unlawful.\n\n          (c)  Derivative Actions. If the Indemnitee is a person who was or is a\n               ------------------ \nparty or is threatened to be made a party to any proceeding by or in the right\nof the Company by reason of the fact that he is or was an agent of the Company,\nor by reason of anything done or not done by him in any such capacity, the\nCompany shall indemnify the Indemnitee against all expenses actually and\nreasonably incurred by him in connection with the investigation, defense,\nsettlement, or appeal of such proceeding, provided the Indemnitee acted in good\nfaith and in a manner he reasonably believed to be in or not opposed to the best\ninterests of the Company and its stockholders; except that no indemnification\nunder this subsection 4(c) shall be made in respect to any claim, issue or\nmatter as to which such person shall have been finally adjudged to be liable to\nthe Company by a court of competent jurisdiction unless and only to the extent\nthat the court in which such proceeding was brought shall determine upon\napplication that, despite the adjudication of liability but in view of all the\ncircumstances of the case, such person is fairly and reasonably entitled to\nindemnity for such amounts which the court shall deem proper.\n\n          (d)  Actions where Indemnitee is Deceased. If the Indemnitee is a\n               ------------------------------------\nperson who was or is a party or is threatened to be made a party to any\nproceeding by reason of the fact that he is or was an agent of the Company, or\nby reason of anything done or not done by him in any such capacity, and if prior\nto, during the pendency of after completion of such proceeding Indemnitee\nbecomes deceased, the Company shall indemnify the Indemnitee's heirs, executors\nand administrators against any and all expenses and liabilities of any type\nwhatsoever (including, but not limited to, judgments, fines, ERISA excise taxes\nand penalties, and amounts paid in settlement) actually and reasonably incurred\nto the extent Indemnitee would have been entitled to indemnification pursuant to\nSections 4(a), 4(b), or 4(c) above were Indemnitee still alive.\n\n          (e)  Notwithstanding the foregoing, the Company shall not be obligated\nto indemnify the Indemnitee for expenses or liabilities of any type whatsoever\n(including, but not limited to, judgments, fines, ERISA excise taxes and\npenalties, and amounts paid in settlement)\n\n                                       4\n\n \nfor which payment is actually made to Indemnitee under a valid and collectible\ninsurance policy of D&amp;O Insurance, or under a valid and enforceable indemnity\nclause, by-law or agreement.\n\n     5.   Partial Indemnification. If the Indemnitee is entitled under any\n          -----------------------  \nprovision of this Agreement to indemnification by the Company for some or a\nportion of any expenses or liabilities of any type whatsoever (including, but\nnot limited to, judgments, fines, ERISA excise taxes and penalties, and amounts\npaid in settlement) incurred by him in the investigation, defense, settlement or\nappeal of a proceeding, but not entitled, however, to indemnification for all of\nthe total amount hereof, the Company shall nevertheless indemnify the Indemnitee\nfor such total amount except as to the portion hereof to which the Indemnitee is\nnot entitled.\n\n     6.   Mandatory Advancement of Expenses. Subject to Section 8(a) below, the\n          --------------------------------- \nCompany shall advance all expenses incurred by the Indemnitee in connection with\nthe investigation, defense, settlement or appeal of any proceeding to which the\nIndemnitee is a party or is threatened to be made a party by reason of the fact\nthat the Indemnitee is or was an agent of the Company. Indemnitee hereby\nundertakes to repay such amounts advanced only if, and to the extent that, it\nshall be determined ultimately that the Indemnitee is not entitled to be\nindemnified by the Company as authorized hereby. The advances to be made\nhereunder shall be paid by the Company to the Indemnitee within twenty (20) days\nfollowing delivery of a written request therefor by the Indemnitee to the\nCompany.\n\n     7.   Notice and Other Indemnification Procedures.\n          ------------------------------------------- \n\n          (a)  Promptly after receipt by the Indemnitee of notice of the\ncommencement of or the threat of commencement of any proceeding, the Indemnitee\nshall, if the Indemnitee believes that indemnification with respect thereto may\nbe sought from the Company under this Agreement, notify the Company of the\ncommencement or threat of commencement thereof.\n\n          (b)  If, at the time of the receipt of a notice of the commencement of\na proceeding pursuant to Section 7(a) hereof, the Company has D&amp;O Insurance in\neffect, the Company shall give prompt notice of the commencement of such\nproceeding to the insurers in accordance with the procedures set forth in the\nrespective policies. The Company shall thereafter take all necessary or\ndesirable action to cause such insurers to pay, on behalf of the Indemnitee, all\namounts payable as a result of such proceeding in accordance with the terms of\nsuch policies.\n\n          (c)  In the event the Company shall be obligated to pay the expenses\nof any proceeding against the Indemnitee, the Company, if appropriate, shall be\nentitled to assume the defense of such proceeding, with counsel approved by the\nIndemnitee, upon the delivery to the Indemnitee of written notice of its\nelection so to do. After delivery of such notice, approval of such counsel by\nthe Indemnitee and the retention of such counsel by the Company, the Company\nwill not be liable to the Indemnitee under this Agreement for any fees of\ncounsel subsequently incurred by the Indemnitee with respect to the same\nproceeding, provided that (i) the Indemnitee shall have the right to employ his\ncounsel in any such proceeding at the Indemnitee's expense; and (ii) if (A) the\nemployment of counsel by the Indemnitee has been previously authorized by the\nCompany, (B) the Indemnitee shall have reasonably concluded that there may be a\nconflict of interest between the Company and the Indemnitee in the conduct of\nany such defense; or (C) the\n\n                                       5\n\n \nCompany shall not, in fact, have employed counsel to assume the defense of such\nproceeding, the fees and expenses of Indemnitee's counsel shall be at the\nexpense of the Company.\n\n     8.   Exceptions. Any other provision herein to the contrary\n          ----------  \nnotwithstanding, the Company shall not be obligated pursuant to the terms of\nthis Agreement:\n\n          (a)  Claims Initiated by Indemnitee. To indemnify or advance expenses\n               ------------------------------\nto the Indemnitee with respect to proceedings or claims initiated or brought\nvoluntarily by the Indemnitee and not by way of defense, unless (i) such\nindemnification is expressly required to be made by law, (ii) the proceeding was\nauthorized by the Board, (iii) such indemnification is provided by the Company,\nin its sole discretion, pursuant to the powers vested in the Company under the\nGeneral Corporation Law of Delaware or (iv) the proceeding is brought to\nestablish or enforce a right to indemnification under this Agreement or any\nother statute or law or otherwise as required under Section 145.\n\n          (b)  Lack of Good Faith. To indemnify the Indemnitee for any expenses\n               ------------------\nincurred by the Indemnitee with respect to any proceeding instituted by the\nIndemnitee to enforce or interpret this Agreement, if a court of competent\njurisdiction determines that each of the material assertions made by the\nIndemnitee in such proceeding was not made in good faith or was frivolous; or\n\n          (c)  Unauthorized Settlements. To indemnify the Indemnitee under this\n               ------------------------  \nAgreement for any amounts paid in settlement of a proceeding unless the Company\nconsents to such settlement, which consent shall not be unreasonably withheld.\n\n     9.   Non-exclusivity. The provisions for indemnification and advancement of\n          ---------------      \nexpenses set forth in this Agreement shall not be deemed exclusive of any other\nrights which the Indemnitee may have under any provision of law, the Company's\nCertificate of Incorporation or Bylaws, the vote of the Company's stockholders\nor disinterested directors, other agreements, or otherwise, both as to action in\nhis official capacity and to action in another capacity while occupying his\nposition as an agent of the Company, and the Indemnitee's rights hereunder shall\ncontinue after the Indemnitee has ceased acting as an agent of the Company and\nshall inure to the benefit of the heirs, executors and administrators of the\nIndemnitee.\n\n     10.  Enforcement. Any right to indemnification or advances granted by this\n          -----------\nAgreement to Indemnitee shall be enforceable by or on behalf of Indemnitee in\nany court of competent jurisdiction if (i) the claim for indemnification or\nadvances is denied, in whole or in part, or (ii) no disposition of such claim is\nmade within ninety (90) days of request therefor. Indemnitee, in such\nenforcement action, if successful in whole or in part, shall be entitled to be\npaid also the expense of prosecuting his claim. It shall be a defense to any\naction for which a claim for indemnification is made under this Agreement (other\nthan an action brought to enforce a claim for expenses pursuant to Section 6\nhereof, provided that the required undertaking has been tendered to the Company)\nthat Indemnitee is not entitled to indemnification because of the limitations\nset forth in Sections 4 and 8 hereof. Neither the failure of the Corporation\n(including its Board of Directors or its stockholders) to have made a\ndetermination prior to the commencement of such enforcement action that\nindemnification of Indemnitee is proper in the\n\n                                       6\n\n \ncircumstances, nor an actual determination by the Company (including its Board\nof Directors or its stockholders) that such indemnification is improper, shall\nbe a defense to the action or create a presumption that Indemnitee is not\nentitled to indemnification under this Agreement or otherwise.\n\n     11.  Subrogation. In the event of payment under this Agreement, the Company\n          -----------\nshall be subrogated to the extent of such payment to all of the rights of\nrecovery of Indemnitee, who shall execute all documents required and shall do\nall acts that may be necessary to secure such rights and to enable the Company\neffectively to bring suit to enforce such rights.\n\n     12.  Survival of Rights.\n          ------------------\n\n          (a)  All agreements and obligations of the Company contained herein\nshall continue during the period Indemnitee is an agent of the Company and shall\ncontinue thereafter so long as Indemnitee shall be subject to any possible claim\nor threatened, pending or completed action, suit or proceeding, whether civil,\ncriminal, arbitrational, administrative or investigative, by reason of the fact\nthat Indemnitee was serving in the capacity referred to herein.\n\n          (b)  The Company shall require any successor to the Company (whether\ndirect or indirect, by purchase, merger, consolidation or otherwise) to all or\nsubstantially all of the business or assets of the Company, expressly to assume\nand agree to perform this Agreement in the same manner and to the same extent\nthat the Company would be required to perform if no such succession had taken\nplace.\n\n     13.  Interpretation of Agreement. It is understood that the parties hereto\n          ---------------------------   \nintend this Agreement to be interpreted and enforced so as to provide\nindemnification to the Indemnitee to the fullest extent permitted by law\nincluding those circumstances in which indemnification would otherwise be\ndiscretionary.\n\n     14.  Severability. If any provision or provisions of this Agreement shall\n          ------------\nbe held to be invalid, illegal or unenforceable for any reason whatsoever, (i)\nthe validity, legality and enforceability of the remaining provisions of the\nAgreement (including without limitation, all portions of any paragraphs of this\nAgreement containing any such provision held to be invalid, illegal or\nunenforceable, that are not themselves invalid, illegal or unenforceable) shall\nnot in any way be affected or impaired thereby, and (ii) to the fullest extent\npossible, the provisions of this Agreement (including, without limitation, all\nportions of any paragraph of this Agreement containing any such provision held\nto be invalid, illegal or unenforceable, that are not themselves invalid,\nillegal or unenforceable) shall be construed so as to give effect to the intent\nmanifested by the provision held invalid, illegal or unenforceable and to give\neffect to Section 13 hereof.\n\n     15.  Modification and Waiver. No supplement, modification or amendment of\n          -----------------------\nthis Agreement shall be binding unless executed in writing by both of the\nparties hereto. No waiver of any of the provisions of this Agreement shall be\ndeemed or shall constitute a waiver of any other provisions hereof (whether or\nnot similar) nor shall such waiver constitute a continuing waiver.\n\n                                       7\n\n \n          16.  Notice. All notices, requests, demands and other communications\n               ------    \nunder this Agreement shall be in writing and shall be deemed duly given (i) if\ndelivered by hand and receipted for by the party addressee or (ii) if mailed by\ncertified or registered mail with postage prepaid, on the third business day\nafter the mailing date. Addresses for notice to either party are as shown on the\nsignature page of this Agreement, or as subsequently modified by written notice.\n\n         17. Governing Law. This Agreement shall be governed exclusively by and\n             -------------\nconstrued according to the laws of the State of Delaware as applied to contracts\nbetween Delaware residents entered into and to be performed entirely within\nDelaware.\n\n         18. Consent to Jurisdiction. The Company and the Indemnitee each hereby\n             -----------------------\nconsent to the jurisdiction of the courts of the State of Delaware with respect\nto any action or proceeding which arises out of or relates to this Agreement.\n\n                                       8\n\n \n         The parties hereto have entered into this Indemnity Agreement effective\nas of the date first above written.\n\n                                          THE COMPANY:\n\n                                          Salon.com\n\n\n                                          By _______________________________\n\n                                          Its ______________________________\n\n                                Address:  706 Mission Street\n                                          San Francisco, California 94103\n\n\n                                          INDEMNITEE:\n\n\n                                          __________________________________  \n                                          [NAME]\n\n                                Address:  __________________________________\n                                          __________________________________   \n                                       \n\n                                       9\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8749],"corporate_contracts_industries":[9468],"corporate_contracts_types":[9553,9557],"class_list":["post-40838","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-salon-media-group-inc","corporate_contracts_industries-media__other","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40838","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40838"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40838"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40838"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40838"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}