Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Agreement is made as of
28 August 2009, between Vistaprint N.V., a public limited
company ( naamloze vennootschap ) incorporated under the
laws of the Netherlands, having its corporate seat ( statutaire
zetel ) in Venlo, the Netherlands, its registered office at
5928 LW Venlo, Hudsonweg 8, the Netherlands (the
“Company”), and [*] (the
“Indemnitee”).
WHEREAS, it is essential to the
Company to retain and attract as members of the [Management
Board][Supervisory Board] the most capable persons
available;
WHEREAS, certain directors and
officers of the Company’s subsidiaries perform policy-making
functions for the Company;
WHEREAS, the substantial increase in
corporate litigation subjects members of the [Management
Board][Supervisory Board] to expensive litigation risks at the same
time that the availability of directors’ and officers’
liability insurance has been severely limited;
WHEREAS, the Indemnitee does not
regard the protection available under the Company’s Articles
of Association and insurance as adequate in the present
circumstances, and may not be willing to serve or continue to serve
as a member of the [Management Board][Supervisory Board] without
adequate protection; and
WHEREAS, the Company has determined
that it is in the best interest of the Company to provide the
indemnification and advancement of expenses set forth below in
order to induce the Indemnitee to serve, or continue to serve, as a
member of the [Management Board][Supervisory Board] for the
Company;
WHEREAS, on 28 August 2009, the
Indemnitee was appointed a member of the [Management
Board][Supervisory Board] of the Company.
WHEREAS, on 28 August 2009 the
General Meeting approved the entering into this Agreement by the
Indemnitee, and for the purposes of 2:146 Dutch Civil Code
appointed the members of the Management Board of the Company to
represent the Company in this respect.
NOW THEREFORE, the Company and the
Indemnitee do hereby agree as follows:
1. Agreement to Serve . The
Indemnitee agrees to serve or continue to serve as a member of the
[Management Board][Supervisory Board] of the Company for so long as
the Indemnitee is duly elected or appointed or until such time as
the Indemnitee tenders a resignation in writing.
2. Definitions . As used in
this Agreement:
(a) The term
“Proceeding” shall include any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution
proceeding, administrative hearing or other proceeding, whether
brought by or in the right of the Company or otherwise and whether
of a civil, criminal, administrative or investigative nature, and
any appeal therefrom.
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(b) The term “Corporate
Status” shall mean the status of a person who is or was a
member of the [Management Board][Supervisory Board] of, or performs
other policy making functions for, the Company, or is or was
serving, or has agreed to serve, at the request of the Company or
as a director, officer, partner, trustee, member, employee or agent
of another corporation, partnership, joint venture, trust, limited
liability company or other enterprise.
(c) The term “Expenses”
shall include, without limitation, attorneys’ fees,
retainers, court costs, transcript costs, fees and expenses of
experts, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and other
disbursements or expenses of the types customarily incurred in
connection with investigations, judicial or administrative
proceedings or appeals, but shall not include the amount of
judgments, fines or penalties against Indemnitee or amounts paid in
settlement in connection with such matters.
(d) References to “other
enterprise” shall include employee benefit plans; references
to “fines” shall include any excise tax assessed with
respect to any employee benefit plan; references to “serving
at the request of the Company” shall include any service as a
director, officer, employee or agent of the Company which imposes
duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the
interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Company” as referred to
in this Agreement.
3. Indemnification in Third-Party
Proceedings . The Company shall indemnify the Indemnitee in
accordance with the provisions of this Paragraph 3 if the
Indemnitee was or is a party to or threatened to be made a party to
or otherwise involved in any Proceeding (other than a Proceeding by
or in the right of the Company to procure a judgment in its favor)
by reason of the Indemnitee’s Corporate Status or by reason
of any action alleged to have been taken or omitted in connection
therewith, against all Expenses, judgments, fines, penalties and
amounts paid in settlement actually and reasonably incurred by or
on behalf of the Indemnitee in connection with such Proceeding, if
the Indemnitee acted in good faith and in a manner which the
Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe that his or her
conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Indemnitee did not act in good faith and in a
manner which the Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Company, and, with respect to
any criminal Proceeding, had reasonable cause to believe that his
or her conduct was unlawful.
4. Indemnification in Proceedings
by or in the Right of the Company . The Company shall indemnify
the Indemnitee in accordance with the provisions of this
Paragraph 4 if the Indemnitee was or is a party to or
threatened to be made a party to or otherwise involved in any
Proceeding by or in the right of the Company to procure a judgment
in its favor by reason of the Indemnitee’s Corporate Status
or by reason of any action alleged to have been taken or omitted in
connection therewith, against all Expenses and, to the extent
permitted by law, amounts paid in settlement actually and
reasonably incurred by or on behalf of the Indemnitee in
connection
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with such Proceeding, if the Indemnitee acted in
good faith and in a manner which the Indemnitee reasonably believed
to be in, or not opposed to, the best interests of the Company,
except that no indemnification shall be made under this
Paragraph 4 in respect of any claim, issue, or matter as to
which the Indemnitee shall have been adjudged to be liable to the
Company, unless, and only to the extent, that a court of competent
jurisdiction or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the case,
the Indemnitee is fairly and reasonably entitled to indemnity for
such Expenses as the court shall deem proper.
5. Exceptions to Right of
Indemnification . Notwithstanding anything to the contrary in
this Agreement, except as set forth in Paragraph 10, the
Company shall not indemnify the Indemnitee in connection with a
Proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the [Supervisory Board] of the
Company. Notwithstanding anything to the contrary in this
Agreement, the Company shall not indemnify the Indemnitee to the
extent the Indemnitee is reimbursed from the proceeds of insurance,
and in the event the Company makes any indemnification payments to
the Indemnitee and the Indemnitee is subsequently reimbursed from
the proceeds of insurance, the Indemnitee shall promptly refund
such indemnification payments to the Company to the extent of such
insurance reimbursement.
6. Indemnification of Expenses of
Successful Party . Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful,
on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein, the Indemnitee shall
be indemnified against all Expenses incurred by or on behalf of the
Indemnitee in connection therewith. Without limiting the foregoing,
if any Proceeding or any claim, issue or matter therein is disposed
of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the
Indemnitee, (ii) an adjudication that the Indemnitee was
liable to the Company, (iii) a plea of guilty or nolo
contendere by the Indemnitee, (iv) an adjudication that
the Indemnitee did not act in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and (v) with respect to any criminal
proceeding, an adjudication that the Indemnitee had reasonable
cause to believe his or her conduct was unlawful, the Indemnitee
shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
7. Notification and Defense of
Claim . As a condition precedent to the Indemnitee’s
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