Exhibit 10.1
DIRECTOR INDEMNIFICATION AGREEMENT
This DIRECTOR INDEMNIFICATION
AGREEMENT (the “Agreement”) made and entered into as of
the 21 st day of
September, 2007, by and between Haights Cross Communications, Inc.,
a Delaware corporation (the “Company”), and Paul J.
Crecca (the “Indemnitee”).
WHEREAS, it is essential that the
Company be able to retain and attract as directors, officers and
employees the most capable persons available;
WHEREAS, increased corporate
litigation has subjected directors to litigation risks and
expenses, and the limitations on the availability of director and
officer liability insurance has made it increasingly difficult for
the Company to attract and retain such persons;
WHEREAS, the Company’s By-laws
permit it to enter into indemnification arrangements and
agreements;
WHEREAS, the Company desires to
provide the Indemnitee with specific contractual assurances of the
Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to or revocation of the Company’s By-laws or
any change in the ownership of the Company or the composition of
its Board of Directors), which indemnification is intended to be
greater than that which is afforded by the Company’s
Certificate of Incorporation and By-laws and, to the extent
insurance is available, the coverage of the Indemnitee under the
Company’s directors and officers liability insurance
policies; and
WHEREAS, the Indemnitee is relying
upon the rights afforded under this Agreement in accepting
Indemnitee’s position as a director, officer or employee of
the Company.
NOW, THEREFORE, in consideration of
the mutual promises and covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1. Definitions .
(a)
“Corporate Status” describes the status of a person who
is serving or has served (i) as a director, officer or
employee of the Company, (ii) in any capacity with respect to
any employee benefit plan of the Company, or (iii) as a
director, partner, member, trustee, officer, employee, or agent of
any other Entity at the request of the Company.
(b)
“Entity” shall mean any corporation, partnership,
limited liability company, joint venture, trust, foundation,
association, organization or other legal entity and any group or
division of the Company or any of its subsidiaries.
(c)
“Expenses” shall mean all reasonable fees, costs and
expenses incurred in connection with any Proceeding (as defined
below), including, without limitation, attorneys’ fees,
disbursements and retainers (including, without limitation, any
such fees, disbursements and retainers incurred by Indemnitee
pursuant to Section 10 of this Agreement), fees and
disbursements of expert witnesses, private investigators and
professional advisors (including,
without
limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services, and other
disbursements and expenses.
(d)
“Indemnifiable Expenses,” “Indemnifiable
Liabilities” and “Indemnifiable Amounts” shall
have the meanings ascribed to those terms in Section 3(a)
below.
(e)
“Liabilities” shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
paid in settlement.
(f)
“Proceeding” shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute
resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee’s rights hereunder.
2. Services of
Indemnitee . In consideration of the Company’s covenants
and commitments hereunder, Indemnitee agrees to serve or continue
to serve as a director, officer or employee of the Company.
However, this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee’s service to
the Company beyond any period otherwise required by law or by other
agreements or commitments of the parties, if any.
3. Agreement to
Indemnify . The Company agrees to indemnify Indemnitee as
follows:
(a) Subject
to the exceptions contained in Section 4(a) below, if Indemnitee
was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company)
by reason of Indemnitee’s Corporate Status, Indemnitee shall
be indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as “Indemnifiable Expenses” and
“Indemnifiable Liabilities,” respectively, and
collectively as “Indemnifiable Amounts”).
(b) Subject
to the exceptions contained in Section 4(b) below, if Indemnitee
was or is a party or is threatened to be made a party to any
Proceeding by or in the right of the Company to procure a judgment
in its favor by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
4. Exceptions to
Indemnification . Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all
circumstances other than the following:
(a) If
indemnification is requested under Section 3(a) and it has been
adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the
claim for indemnification has arisen, (i) Indemnitee failed to
act in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company,
(ii) with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful or (iii) Indemnitee’s conduct
constituted willful misconduct or recklessness, then Indemnitee
shall not be entitled to payment of Indemnifiable Amounts
hereunder.
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(b) If
indemnification is requested under Section 3(b) and
(i) it
has been adjudicated finally by a court of competent jurisdiction
that, in connection with the subject of the Proceeding out of which
the claim for indemnification has arisen, Indemnitee failed to act
in good faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, Indemnitee
shall not be entitled to payment of Indemnifiable Expenses
hereunder; or
(ii) it
has been adjudicated finally by a court of competent jurisdiction
that Indemnitee is liable to the Company with respect to any claim,
issue or matter involved in the Proceeding out of which the claim
for indemnification has arisen, including, without limitation, a
claim that Indemnitee received an improper personal benefit or
improperly took advantage of a corporate opportunity, Indemnitee
shall not be entitled to payment of Indemnifiable Expenses
hereunder with respect to such claim, issue or matter unless the
court in which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability, but in
view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Indemnifiable Expenses
which such court shall deem proper.
5. Procedure for Payment of
Indemnifiable Amounts . Indemnitee shall submit to the Company
a written request specifying the Indemnifiable Amounts for which
Indemnitee seeks payment under Section 3 of this Agreement and
the basis for the claim. The Company shall pay such Indemnifiable
Amounts to Indemnitee within twenty (20) calendar days of
receipt of the request. At the request of the Company, Indemnitee
shall furnish such documentation and information as are reasonably
available to Indemnitee and necessary to establish that Indemnitee
is entitled to indemnification hereunder.
6. Indemnification for
Expenses of a Party Who is Wholly or Partly Successful .
Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by
reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding,
Indemnitee shall be indemnified against all Expenses reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful,
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