RONCO
CORPORATION
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (“
Agreement” ) is made as of this ___ day of
___________, ______, by and between Ronco Corporation, a Delaware
corporation (the “ Company” ), and
_____________________ (“ Indemnitee
”).
WHEREAS , the Company and Indemnitee recognize the
significant cost of directors’ and officers’ liability
insurance and the general reductions in the coverage of such
insurance;
WHEREAS , the Company and Indemnitee further recognize
the substantial increase in corporate litigation in general,
subjecting officers and directors to expensive litigation risks at
the same time as the coverage of liability insurance has been
severely limited; and
WHEREAS , the Company desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to
serve as officers and directors of the Company and to indemnify its
officers and directors so as to provide them with the maximum
protection permitted by law.
NOW, THEREFORE , in consideration for Indemnitee’s
services as an officer or director of the Company, the Company and
Indemnitee hereby agree as follows:
1.
Indemnification .
(a) Third Party Proceedings . The Company shall indemnify Indemnitee if
Indemnitee is or was a party or is threatened to be made a party to
any threatened, pending or completed action, suit, proceeding or
any alternative dispute resolution mechanism, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the Company) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the
Company, or any subsidiary of the Company, or by reason of the fact
that Indemnitee is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in
connection with such action, suit or proceeding if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe Indemnitee’s conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, 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, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(b) Proceedings By or in the Right of the
Company . The Company
shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company or any
subsidiary of the Company to procure a judgment in its favor by
reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or any subsidiary of the Company,
or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees) and,
to the fullest extent permitted by law, amounts paid in settlement
actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of such action or suit if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company,
except that no indemnification shall be made in respect of 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 of Chancery of the State of Delaware or the court in
which such action or suit 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 expenses which the Court
of Chancery of the State of Delaware or such other court shall deem
proper.
(c) Mandatory Payment of Expenses
. To the extent that Indemnitee has
been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Subsections (a) and
(b) of this Section 1, or in defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
by Indemnitee in connection therewith.
2.
Expenses; Indemnification
Procedure .
(a) Advancement of Expenses . The Company shall advance all expenses
incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of any civil or criminal action, suit
or proceeding referenced in Section 1(a) or (b) hereof (but
not amounts actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the
Company as authorized hereby. The advances to be made hereunder
shall be paid by the Company to Indemnitee within thirty (30)
days following delivery of a written request therefor by Indemnitee
to the Company.
(b) Notice/Cooperation by Indemnitee
. Indemnitee shall, as a condition
precedent to his right to be indemnified under this Agreement, give
the Company notice in writing as soon as practicable of any claim
made against Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be
directed to the President of the Company at the address shown on
the signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). Notice shall be
deemed received three business days after the date postmarked if
sent by domestic certified or registered mail, properly addressed,
five business days if sent by airmail to a country outside of North
America; otherwise notice shall be deemed received when such notice
shall actually be received by the Company. In addition, Indemnitee
shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s
power.
(c) Procedure . Any indemnification and advances provided for
in Section 1 and this Section 2 shall be made no later
than thirty (30) days after receipt of the written request of
Indemnitee. If a claim under this Agreement, under any statute, or
under any provision of the Company’s Certificate of
Incorporation or Bylaws providing for indemnification, is not paid
in full by the Company within thirty (30) days after a written
request for payment thereof has first been received by the Company,
Indemnitee may, but need not, at any time thereafter bring an
action against the Company to recover the unpaid amount of the
claim and, subject to Section 12 of this Agreement, Indemnitee
shall also be entitled to be paid for the expenses (including
attorneys’ fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce
a claim for expenses incurred in connection with any action, suit
or proceeding in advance of its final disposition) that Indemnitee
has not met the standards of conduct which make it permissible
under applicable law for the Company to indemnify Indemnitee for
the amount claimed. However, Indemnitee shall be entitled to
receive interim payments of expenses pursuant to
Subsection 2(a) unless and until such defense may be finally
adjudicated by court order or judgment from which no further right
of appeal exists. It is the parties’ intention that if the
Company contests Indemnitee’s right to indemnification, the
question of Indemnitee’s right to indemnification shall be
for the court to decide, and neither the failure of the Company
(including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its stockholders)
to have made a determination that indemnification of Indemnitee is
proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by applicable law, nor an
actual determination by the Company (including it Board of
Directors, any committee or subgroup of the Board of Directors,
independent legal counsel, or its stockholders) that Indemnitee has
not met such applicable standard of conduct, shall create a
presumption that Indemnitee has or has not met the applicable
standard of conduct.
(d) Notice to Insurers . If, at the time of the receipt of a notice of
a claim pursuant to Section 2(b) hereof, the Company has
director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to
the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such
policies.
(e) Selection of Counsel . In the event the Company shall be obligated
under Section 2(a) hereof to pay the expenses of any
proceeding against Indemnitee, the Company, if appropriate, shall
be entitled to assume the defense of such proceeding, with
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