Exhibit 10.33
FORM OF INDEMNIFICATION
AGREEMENT
THIS AGREEMENT
is entered into, effective as of
[EFFECTIVE DATE], between R.R. DONNELLEY & SONS COMPANY, a
Delaware corporation (the “Company”) and [NAME OF
DIRECTOR] (“Indemnitee”).
WHEREAS, it is essential to the Company to retain and
attract as directors the most capable persons available;
WHEREAS, Indemnitee is a director of the
Company;
WHEREAS, both the Company and Indemnitee recognize the
increased risk of litigation and other claims currently being
asserted against directors of corporations; and
WHEREAS, in recognition of Indemnitee’s need for
substantial protection against personal liability in order to
enhance Indemnitee’s continued and effective service to the
Company, and in order to induce Indemnitee to provide continued
services to the Company as a director, the Company wishes to
provide in this Agreement for the indemnification of and the
advancing of expenses to Indemnitee to the fullest extent (whether
partial or complete) permitted by law and as set forth in this
Agreement and for the coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies.
NOW, THEREFORE,
in consideration of the above
premises and of Indemnitee’s continuing to serve as a
director of the Company and intending to be legally bound hereby,
the parties agree as follows:
1. Certain Definitions
:
(a) Board : The Board of
Directors of the Company.
(b) Change in Control
:
(i) any “person,” as
such term is defined in Section 3(a)(9) of the Securities
Exchange Act of 1934 (the “Exchange Act”), as modified
and used in Section 13(d) and 14(d) thereof (but not including
(a) the Company or any of its subsidiaries, (b) a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company or any of its subsidiaries, (c) an
underwriter temporarily holding securities pursuant to an offering
of such securities, or (d) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company)
(hereinafter a “Person”) is or becomes the beneficial
owner, as defined in Rule 13d-3 of the Exchange Act, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities
acquired directly from the Company or its affiliates, excluding an
acquisition resulting from the exercise of a conversion or exchange
privilege in respect of outstanding convertible or exchangeable
securities) representing 50% or more of the combined voting power
of the Company’s then outstanding securities; or
(ii) during any period of two
consecutive years beginning on the date hereof, individuals who at
the beginning of such period constitute the Board and any new
director (other than a director designated by a Person who has
entered into any agreement with the Company to effect a transaction
described in Clause (i), (iii) or (iv) of this Section)
whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved (each such
director, a “Continuing Director”), cease for any
reason to constitute a majority thereof; or
(iii) the stockholders of the
Company approve a merger or consolidation of the Company with any
other corporation, other than (a) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving or acquiring entity), in combination
with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, at least
50% of the combined voting power of the voting securities of the
Company or such surviving or acquiring entity outstanding
immediately after such merger or consolidation, or (b) a
merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no Person acquires
more than 50% of the combined voting power of the Company’s
then outstanding securities; or
(iv) the stockholders of the Company
approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets.
(c) Disinterested Director :
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.
(d) Expenses : Any reasonable
expense, including without limitation, attorneys’ fees,
retainers, court costs, transcript costs, fees and expenses of
experts, including accountants and other advisors, travel expenses,
duplicating costs, postage, delivery service fees, filing fees, and
all other disbursements or expenses of the types typically paid or
incurred in connection with investigating, defending, being a
witness in, or participating (including on appeal), or preparing
for any of the foregoing, in any Proceeding relating to any
Indemnifiable Event, and any expenses of establishing a right to
indemnification under any of Sections 2, 4 or 5 of this Agreement,
in each case, to the extent reasonable.
(e) Indemnifiable Costs : Any
and all Expenses, liability or loss, judgments, fines and amounts
paid in settlement and any interest, assessments, or other charges
imposed thereon, and any federal, state, local, or foreign taxes
imposed as a result of the actual or deemed receipt of any payments
under this Agreement.
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(f) Indemnifiable Event : Any
event or occurrence that takes place either prior to or after the
execution of this Agreement, related to the fact that Indemnitee is
or was a director of the Company, or while a director is or was
serving at the request of the Company as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise or related to anything done or not done by Indemnitee in
any such capacity, whether or not the basis of the Proceeding is
alleged action in an official capacity as a director of the
Company, or in any other capacity, as described above.
(g) Independent Counsel :
means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the
past three years has been, retained to represent: (i) the
Company or any of its subsidiaries or affiliates, (ii) the
Indemnitee or (iii) any other party to the Proceeding giving
rise to a claim for indemnification or Expense Advances hereunder,
in any matter (other than with respect to matters relating to
indemnification and advancement of expenses). No law firm or lawyer
shall qualify to serve as Independent Counsel if that person would,
under the applicable standards of professional conduct then
prevailing, have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s
rights under this Agreement. The Company shall select a law firm or
lawyer to serve as Independent Counsel, subject to the consent of
the Indemnitee, which consent shall not be unreasonably
withheld.
(h) Proceeding : Any
threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative that
relates to an Indemnifiable Event.
(i) Reviewing Party :
Reviewing Party shall have the meaning ascribed to such term in
Section 3.
2. Agreement to
Indemnify .
(a) General Agreement regarding
Indemnification . In the event Indemnitee was, is, or becomes a
party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, a Proceeding by
reason of (or arising in part out of) an Indemnifiable Event, the
Company shall indemnify Indemnitee from and against Indemnifiable
Costs, to the fullest extent permitted by applicable law, as the
same exists or may hereafter be amended or interpreted (but in the
case of any such amendment or interpretation, only to the extent
that such amendment or interpretation permits the Company to
provide broader indemnification rights than were permitted prior
thereto); provided that the Company’s commitment set forth in
this Section 2(a) to indemnify the Indemnitee shall be subject
to the limitations and procedural requirements set forth in this
Agreement.
(b) Partial Indemnification .
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of
Indemnifiable Costs, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
(c) Advancement of Expenses .
If so requested by Indemnitee, the Company shall advance to
Indemnitee, to the fullest extent permitted by applicable law, any
and all
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Expenses incurred by Indemnitee (an
“Expense Advance” or an “Advance”) within
21 calendar days after the receipt by the Company of a request from
Indemnitee for an Advance, whether prior to or after final
disposition of any Proceeding; provided that the Company shall not
advance any expenses to Indemnitee unless and until it shall have
received a request and undertaking substantially in the form
attached hereto as Exhibit A . Any request for an Expense
Advance shall be accompanied by an itemization, in reasonable
detail, of the Expenses for which advancement is sought. Advances
shall be made without regard to Indemnitee’s ability to repay
the Expenses. If Indemnitee has commenced legal proceedings in a
court of competent jurisdiction in the State of Delaware to secure
a determination that Indemnitee should be indemnified under
applicable law, as provided in Section 4, any determination
made by the Reviewing Party 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
Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted or have lapsed). Indemnitee’s obligation to
reimburse the Company for Expense Advances shall be unsecured and
no interest shall be charged thereon.
(d) Exception to Obligation to
Indemnify and Advance Expenses . Notwithstanding anything in
this Agreement to the contrary, Indemnitee shall not be entitled to
indemnification or advancement pursuant to this Agreement in
connection with any Proceeding initiated by Indemnitee against the
Company or any director or officer of the Company unless
(i) the Company has joined in or the Board has consented to
the initiation of such Proceeding; or (ii) the Proceeding is
one to enforce indemnification rights under
Section 5.
3. Reviewing Party
.
(a) Definition of Reviewing
Party . Other than as contemplated by Section 3(b), the
person, persons or entity who shall determine whether Indemnitee is
entitled to indemnification in the first instance (“the
Reviewing Party”) shall be (i) the Board of Directors of
the Company acting by a majority vote of a quorum
