FORM OF PERSONAL
INDEMNIFICATION AGREEMENT
This Personal
Indemnification Agreement is entered into as
, 2009 (the “ Agreement ”), by and between
Majesco Entertainment Company, a Delaware corporation (the “
Company ,” which term shall include, where
appropriate, any Entity (as hereinafter defined) controlled,
directly or indirectly, by the Company) and
(the “ Indemnitee ”).
WHEREAS, it is
essential to the Company that it be able to retain and attract as
directors and officers the most capable persons
available;
WHEREAS, increased
corporate litigation has subjected directors and officers to
litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have
made it increasingly difficult for the Company to attract and
retain such persons;
WHEREAS, the
Company’s Restated Bylaws (the “ Bylaws ”)
require it to indemnify its directors to the fullest extent
permitted by law and permit it to make other indemnification
arrangements and agreements;
WHEREAS, the
Company desires to provide Indemnitee with specific contractual
assurance of 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
Amended and Restated Certificate of Incorporation (the “
Certificate of Incorporation ”) or Bylaws or any
change in the ownership of the Company or the composition of its
board of directors);
WHEREAS, the
Company intends that this Agreement provide Indemnitee with greater
protection than that which is provided by the Company’s
Bylaws; and
WHEREAS,
Indemnitee is relying upon the rights afforded under this Agreement
in becoming or continuing as a director or officer of the
Company.
NOW, THEREFORE, in
consideration of the promises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
(a)
“ Corporate Status ” describes the status of a
person who is serving or has served (i) as a director of the
Company, (ii) in any capacity with respect to any employee
benefit plan of the Company, or (iii) as a director, partner,
trustee, officer, employee, or agent of any other Entity at the
request of the Company. For purposes of subsection (iii) of
this Section 1(a), if Indemnitee is serving or has served as a
director, partner, trustee, officer, employee or agent of a
Subsidiary, Indemnitee shall be deemed to be serving 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.
(c)
“ Enterprise” shall mean the Company and any
Entity of which Indemnitee is or was serving at the request of the
Company as a director, officer, employee, agent or
fiduciary.
(d)
“ Expenses ” shall mean all fees, costs and
expenses incurred by Indemnitee 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
Sections 13 and 14(c) of this Agreement), fees and
disbursements of expert witnesses, private investigators and
professional advisors and other disbursements and
expenses.
(e)
“ Indemnifiable Amounts ” shall have the meaning
ascribed to that term in Section 3 below.
(f)
“ Liabilities ” shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
paid in settlement.
(g)
“ 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, arbitrative or investigative, whether formal or
informal, including a proceeding initiated by Indemnitee pursuant
to Section 13 of this Agreement to enforce Indemnitee’s
rights hereunder.
(h)
“ Subsidiary ” shall mean any Entity of which
the Company owns (either directly or through or together with
another Subsidiary of the Company) either (i) a general
partner, managing member or other similar interest or (ii)
(A) 50% or more of the voting power of the voting capital
equity interests of such Entity, or (B) 50% or more of the
outstanding voting capital stock or other voting equity interests
of such Entity.
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 or officer 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. Indemnitee may at any time and for any reason
resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law), upon
which event the Company shall have no obligation under this
Agreement to continue Indemnitee in such position. Notwithstanding
the forgoing, this Agreement shall continue in force until and
terminate upon the later of: (a) ten (10) years after the
date that the Corporate Status of Indemnitee has been terminated
and (b) the final termination of all pending
Proceedings.
3.
Indemnity in Third-Party Proceedings . The Company
shall indemnify Indemnitee in accordance with the provisions of
this Section 3 if Indemnitee is, or is threatened to be made,
by reason of Indemnitee’s Corporate Status, a party to or a
participant in any Proceeding, other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant
to this Section 3, Indemnitee shall be indemnified against all
Expenses and Liabilities actually and reasonably incurred by
Indemnitee or on his behalf in connection with such Proceeding or
any claim, issue or matter therein (indemnifiable Expenses and
Liabilities collectively referred herein as “
Indemnifiable Amounts ”), if Indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company and, in the case of a
criminal Proceeding, had no reasonable cause to believe that his or
her conduct was unlawful. Indemnitee shall not enter into any
settlement in connection with a Proceeding without the consent of
the Company, which consent shall not be unreasonably withheld or
delayed.
4.
Indemnity in Proceedings by or in the Right of the
Company . The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 4 if Indemnitee
is, or is threatened to be made, by reason of Indemnitee’s
Corporate Status, a party to or a participant in any Proceeding by
or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 4, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by him or on
his behalf in connection with such Proceeding or any claim, issue
or matter therein, if Indemnitee acted in good faith
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and in a manner
he reasonably believed to be in or not opposed to the best
interests of the Company. No indemnification for Expenses shall be
made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a
court to be liable to the Company, unless and only to the extent
that the Delaware Court of Chancery (the “ Delaware
Chancery Court ”) or any court in which the 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
indemnification for such Expenses as the Delaware Chancery Court or
such other court shall deem proper.
5.
Indemnification for Expenses of a Party Who is Wholly or
Partly Successful . 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:
(a) all Expenses reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter; and (b) any claim, issue or
matter related to any such successfully resolved claim, issue or
matter. For purposes of this Agreement, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, by reason of settlement, judgment, order or
otherwise, shall be deemed to be a successful result as to such
claim, issue or matter.
6.
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
Sections 3, 4 or 5 of this Agreement and the basis for the
claim. The Company shall pay such Indemnifiable Amounts to
Indemnitee promptly upon receipt of Indemnitee’s written
request. If the Indemnifiable Amounts have not been paid in full
within sixty (60) days after the written request has been
received by the Company, Indemnitee may at any time thereafter
bring suit against the Company to recover any such unpaid amounts.
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.
7.
Indemnification for Expenses as a Witness .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his or her Corporate
Status, a witness in any Proceeding to which Indemnitee is not a
party, he or she shall be indemnified against all Expenses actually
and reasonably incurred by him or her or on his or her behalf in
connection therewith.
8.
Effect of Certain Resolutions . Neither the
settlement or termination of any Proceeding nor the failure of the
Company to award indemnification or to determine that
indemnification is payable shall create a presumption that
Indemnitee is not entitled to indemnification hereunder. In
addition, the termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not create a presumption that Indemnitee did
not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, had reasonable
cause to believe that Indemnitee’s action was
unlawful.
9.
Exclusions . Notwithstanding any provision in this
Agreement to the contrary, the Company shall not be obligated under
this Agreement to make any indemnity in connection with any claim
made against Indemnitee:
(a) for
which payment has actually been made to or on behalf of Indemnitee
under any insurance policy or other indemnity provision, except
with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provisions;
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(b) for
an accounting of profits made from the purchase and sale (or sale
and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of state statutory law or common
law; or
(c) for
which payment is prohibited by applicable law.
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