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Exhibit 10.1
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (“Agreement”) is made as of
_______________, 20___ by and between OMNICOM GROUP INC., a New
York corporation (the “Company”), and
____________________ (“Indemnitee”).
RECITALS
WHEREAS, highly
competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities unless they are
provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the corporation and the uncertainties relating to such
insurance and to indemnification have increased the difficulty of
attracting and retaining such persons;
WHEREAS, the
Board of Directors of the Company (the “Board”) has
determined that, (i) in order to attract and retain qualified
individuals, the Company will attempt to maintain on an ongoing
basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain liabilities;
(ii) although the furnishing of such insurance has been a customary
and widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be
available to it in the future only at higher premiums and with more
exclusions; (iii) at the same time, directors, officers and other
persons in service to corporations or business enterprises are
being increasingly subjected to expensive and time-consuming
litigation relating to, among other things, matters that
traditionally would have been brought only against the Company or
business enterprise itself;
WHEREAS, the
Bylaws of the Company require indemnification of the officers and
directors of the Company, and, although Indemnitee may also be
entitled to indemnification pursuant to applicable provisions of
the Business Corporation Law of the State of New York
(“BCL”), the Bylaws and the BCL expressly provide that
the indemnification provisions set forth therein are not exclusive,
and thereby contemplate that contracts may be entered into between
the Company and members of the board of directors, officers and
other persons with respect to indemnification;
WHEREAS, the
Board has determined that the increased difficulty in attracting
and retaining such persons is detrimental to the best interests of
the Company’s stockholders and that the Company should act to
assure such persons that there will be increased certainty of such
protection in the future;
WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of,
such persons to the fullest extent permitted by applicable law so
that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified;
WHEREAS, this
Agreement is a supplement to and in furtherance of the Bylaws of
the Company and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefor, nor to diminish or abrogate
any rights of Indemnitee thereunder; and
WHEREAS,
Indemnitee does not regard the protection available under the
Company’s Bylaws and insurance as adequate in the present
circumstances, and may not be willing to serve as an officer or
director without adequate protection, and the Company desires
Indemnitee to serve in such capacity and Indemnitee is willing to
serve, continue to serve and to take on additional service for or
on behalf of the Company on the condition that he be so
indemnified;
NOW, THEREFORE,
in consideration of the premises and the covenants contained
herein, the Company and Indemnitee, intending to be legally bound,
do hereby covenant and agree as follows:
1.
Services to the Company. Indemnitee will serve or continue
to serve as an officer, director or key employee of the Company for
so long as Indemnitee is duly elected or appointed or until
Indemnitee tenders his resignation.
2.
Definitions. As used in this Agreement:
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(a) |
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“ Agent ” means any person who is or was a
director, officer, or employee of the Company or a subsidiary of
the Company or other person authorized by the Company to act for
the Company or any Enterprise (as defined below) relating thereto,
including any such person serving in such capacity as a director,
officer, employee, trustee, general partner, managing member,
fiduciary, agent or other official of another corporation,
partnership, limited liability company, joint venture, trust or
other enterprise at the request of, for the convenience of, or to
represent the interests of the Company or a subsidiary of the
Company. |
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(b) |
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“ Beneficial Owner ” and “
Beneficial Ownership ” have the meanings set forth in
Rule 13d-3 promulgated under the Exchange Act (as defined below) as
in effect on the date hereof. |
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(c) |
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“ Change in Control ” means the earliest to
occur after the date of this Agreement of any of the following
events: |
1.
Acquisition of Stock by Third Party. Any Person (as defined
below) is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing fifteen percent (15%) or
more of the combined voting power of the Company’s then
outstanding securities entitled to vote generally in the election
of directors, unless (i) the change in the relative Beneficial
Ownership of the Company’s securities by any Person results
solely from a reduction in the aggregate number of outstanding
shares of securities entitled to vote generally in the election of
directors, or (ii) such acquisition was approved in advance by the
Continuing Directors (as defined below) and such acquisition would
not constitute a Change in Control under part (3) of this
definition;
2.
Change in Board of Directors. Individuals who, as of the
date hereof, constitute the Board, and any new director 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 were directors
on the date hereof or whose election for nomination for election
was previously so approved (collectively, the “Continuing
Directors”), cease for any reason to constitute at least a
majority of the members of the Board;
3.
Corporate Transactions. The effective date of a
reorganization, merger or consolidation of the Company (a “
Business Combination ”), in each case, unless,
following such Business Combination: (i) all or substantially all
of the individuals and entities who were the Beneficial Owners of
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 51% of the combined voting power
of the then outstanding securities of the Company entitled to vote
generally in the election of directors resulting from such Business
Combination (including, without limitation, a corporation which as
a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or
through one or more Subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination, of the securities entitled to vote generally in the
election of directors; (ii) no Person (excluding any corporation
resulting from such Business Combination) is the Beneficial Owner,
directly or indirectly, of 15% or more of the combined voting power
of the then outstanding securities entitled to vote generally in
the election of directors of such corporation except to the extent
that such ownership existed prior to the Business Combination; and
(iii) at least a majority of the Board of Directors of the
corporation resulting from such Business Combination were
Continuing Directors at the time of the execution of the initial
agreement, or of the action of the Board of Directors, providing
for such Business Combination;
4.
Liquidation. The approval by the stockholders of the Company
of a complete liquidation of the Company or an agreement or series
of agreements for the sale or disposition by the Company of all or
substantially all of the Company’s assets, other than
factoring the Company’s current receivables or escrows due
(or, if such approval is not required, the decision by the Board to
proceed with such a liquidation, sale, or disposition in one
transaction or a series of related transactions); or
5.
Other Events. There occurs any other event of a nature that
would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or a response to any similar item
on any similar schedule or form) promulgated under the Exchange Act
(as defined below), whether or not the Company is then subject to
such reporting requirement.
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(d) |
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“ Corporate Status ” means the status of a
Person (as defined below) who is or was an Agent of the Company or
of any other Enterprise (as defined below) which such Person is or
was serving at the request of the Company. |
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(e) |
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“ Disinterested Director ” means a director
of the Company who is not and was not a party to a Proceeding (as
defined below) in respect of which indemnification is sought by
Indemnitee. |
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(f) |
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“ Enterprise ” means the Company and any
other corporation, constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
to which the Company (or any of its wholly owned subsidiaries) is a
party, Subsidiary (as defined below), limited liability company,
partnership, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of
the Company as an Agent. |
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(g) |
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“ Exchange Act ” means the Securities
Exchange Act of 1934, as amended. |
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(h) |
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“ Expenses ” means (i) attorneys’ fees
and costs, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding (as defined below); and (ii)
includes Expenses incurred in connection with any appeal resulting
from any Proceeding (as defined below), including without
limitation the premium, security for, and other costs relating to
any cost bond, supersedeas bond, or other appeal bond or its
equivalent; provided, however, that Expenses excludes amounts paid
in settlement by Indemnitee or the amount of judgments or fines
against Indemnitee. |
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(i) |
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“ Fines ” includes any excise tax assessed
on Indemnitee with respect to any employee benefit plan; references
to “serving at the request of the Company” shall
include any service as an Agent of the Company which imposes duties
on, or involves services by, such Agent with respect to an employee
benefit plan, its participants or beneficiaries; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in the best interests of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement. |
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(j) |
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“ 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 five
years has been, retained to represent (i) the Company or Indemnitee
in any matter material to either such party (other than with
respect to matters concerning the Indemnitee under this Agreement,
or of other indemnitees under similar indemnification agreements);
or (ii) any other party to a Proceeding (as defined below) giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not
include any Person (as defined below) who, under the applicable
standards of professional conduct then prevailing, would have a
conflict of interest in representing either the |
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Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. |
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(k) |
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“ New York Court ” means The Supreme Court,
New York County or the United States District Court for the
Southern District of New York. |
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(l) |
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“ Person ” has the meaning set forth in
Sections 13(d) and 14(d) of the Exchange Act as in effect on the
date hereof; provided, however, that “Person” shall
exclude: (i) the Company; (ii) any Subsidiaries (as defined below)
of the Company; (iii) any employee benefit plan or employment plan
of the Company or of a Subsidiary (as defined below) of the Company
or of any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company; and (iv) any trustee or
other fiduciary holding securities under an employee benefit plan
or employment plan of the Company or of a Subsidiary (as defined
below) of the Company or of 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. |
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(m) |
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“ Potential Change in Control ” means the
occurrence of any of the following events: (i) the Company enters
into any written or oral agreement, undertaking or arrangement, the
consummation of which would result in the occurrence of a Change in
Control; (ii) any Person or the Company publicly announces an
intention to take or consider taking actions which if consummated
would constitute a Change in Control; (iii) any Person who becomes
the Beneficial Owner, directly or indirectly, of securities of the
Company representing 5% or more of the combined voting power of the
Company’s then outstanding securities entitled to vote
generally in the election of directors increases his Beneficial
Ownership of such securities by 5% or more over the percentage so
owned by such Person on the date hereof; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred. |
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(n) |
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“ 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 in the right of the Company or otherwise and
whether of a civil (including intentional or unintentional tort
claims), criminal, administrative or investigative nature, in which
Indemnitee was, is or will be involved as a party or otherwise by
reason of the fact that Indemnitee is or was a director or officer
of the Company, by reason of any action (or failure to act) taken
by him or of any action (or failure to act) on his part while
acting as an Agent of the Company, or by reason of the fact that he
is or was serving at the request of the Company as an Agent of any
other Enterprise, in each case whether or not serving in such
capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement. |
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(o) |
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“ Subsidiary, ” with respect to any Person,
means any corporation or other entity of which a majority of the
voting power of the voting equity securities or equity interest is
owned, directly or indirectly, by that Person. |
3.
Indemnification in Third-Party Proceedings. The Company
hereby covenants and agrees to indemnify and hold harmless
Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is, or is threatened to be made, a party to or a
participant (as a witness or otherwise) 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, judgments, Fines, liabilities,
penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or
in respect of such Expenses, judgments, Fines, liabilities,
penalties and amounts paid in settlement) actually and necessarily
incurred by Indemnitee or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith, for a purpose which he reasonably believed to
be in, or, in the case of service for any other Enterprise, not
opposed to, the best interests of the Company and, in criminal
actions or Proceedings, in addition, had no reasonable cause to
believe that his conduct was unlawful.
4.
Indemnification in Proceedings by or in the Right of the
Company. The Company hereby covenants and agrees to indemnify
and hold harmless Indemnitee in accordance with the provisions of
this Section 4 if Indemnitee is, or is threatened to be made, a
party to or a participant (as a witness or otherwise) in any
Proceeding by or in the right of the Company or any other
Enterprise to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee shall be indemnified against all Expenses
actually and necessarily 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, for a purpose which he
reasonably believed to be in, or, in the case of service for any
other Enterprise, not opposed to, the best interests of the
Company. No indemnification for Expenses shall be made under this
Section 4 in respect of (i) a threatened action, or a pending
action which is settled or otherwise disposed of, or (ii) any
claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company, unless and only to the extent
that the court in which the action was brought, or, if no action
was brought, any court of competent jurisdiction, determines upon
application that, in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for
such portion of the settlement amount and Expenses as the court
deems proper.
5.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provisions of this
Agreement (and in furtherance of, and not as a limitation to, the
indemnification provided thereunder), to the extent that Indemnitee
is a party to (or a participant in) and is successful, on the
merits or otherwise, in any Proceeding or in defense of any claim,
issue or matter therein, in whole or in part, the Company shall
indemnify and hold harmless Indemnitee against all Expenses
actually and necessarily incurred by him 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 and hold harmless Indemnitee against all Expenses
actually and necessarily incurred by him or on his behalf in
connection with each successfully resolved claim, issue or matter.
If the Indemnitee is not wholly successful in such Proceeding, the
Company also shall indemnify and hold harmless Indemnitee against
all Expenses
necessarily
incurred in connection with a claim, issue or matter related to any
claim, issue, or matter on which the Indemnitee was successful. 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.
6.
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, the Company hereby
covenants and agrees to indemnify and hold harmless the Indemnitee
against all Expenses actually and necessarily incurred by him or on
his behalf in connection therewith.
7.
Additional
Indemnification.
(a)
Notwithstanding any limitation in Sections 3, 4, or 5 or in
Sections 721 through 726 of the BCL or any other applicable
statutory provision, the Company hereby covenants and agrees to
indemnify and hold harmless Indemnitee to the fullest extent
permitted by applicable law if Indemnitee is made, or is threatened
to be made, a party to any Proceeding (including a Proceeding by or
in the right of the Company to procure a judgment in its favor)
against all Expenses, judgments, Fines, penalties and amounts paid
in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such
Expenses, judgments, Fines, penalties and amounts paid in
settlement) actually and necessarily incurred by Indemnitee in
connection with the Proceeding. No indemnification shall be made
under this Section 7(a) on account of Indemnitee’s conduct
which, through a final judicial adjudication, has been determined
to constitute either a breach of Indemnitee’s duty of loyalty
to the Company or its investors or is an act or omission not in
good faith or which involves intentional misconduct or a knowing
violation of the law.
(b)
For purposes of this Agreement, including without limitation
Section 7(a) hereof, “to the fullest extent permitted by
applicable law” includes, without limitation: (i) to the
fullest extent authorized or permitted by the then-applicable
provisions of the BCL or any other applicable statutory provision,
that authorize or contemplate indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the
BCL or other applicable statutory provision; and (ii) to the
fullest extent authorized or permitted by any amendments to or
replacements of the BCL or other applicable statutory provision,
adopted after the date of this Agreement that increase the extent
to which the Company or any other Enterprise may indemnify its
Agents or other Persons holding similar fiduciary
responsibilities.
8.
Contribution in
the Event of Joint Liability.
(a)
To the fullest extent permitted by applicable law, if the
indemnification and hold harmless rights provided for in this
Agreement are unavailable to Indemnitee in whole or in part for any
reason whatsoever, the Company, in lieu of indemnifying and holding
harmless Indemnitee, shall pay, in the first instance, the entire
amount incurred by Indemnitee, whether for judgments, liabilities,
Fines, penalties, amounts paid or to be paid in settlement and/or
for Expenses, in connection with any Proceeding without requiring
Indemnitee to contribute to such payment, and the Company hereby
waives and relinquishes any right of contribution it may have at
any time against Indemnitee.
(b)
The Company shall not enter into any settlement of any Proceeding
in which the Company is jointly liable with Indemnitee (or would be
if joined in such Proceeding) unless such settlement provides for a
full and final release of all claims asserted against
Indemnitee.
(c)
The Company hereby covenants and agrees to fully indemnify and hold
harmless Indemnitee from any claims for contribution which may be
brought by officers, directors or employees of the Company other
than Indemnitee who may be jointly liable with
Indemnitee.
9.
Exclusions. Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to make any
indemnification in connection w
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