exv10w12






Exhibit 10.12




Form of Indemnification Agreement by and among Harbinger Group Inc. and its Directors or Officers




INDEMNIFICATION AGREEMENT



     This Indemnification Agreement (“Agreement”) is made on                     , by and between
Harbinger Group Inc., a Delaware corporation (the “Company”), and                     
(“Indemnitee”).



RECITALS




     WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and its affiliates, including but not limited
to Zap.com Corporation;



     WHEREAS, in order to induce Indemnitee to continue to provide services to the Company and its
affiliates the Company wishes to provide for the indemnification of, and advancement of expenses
to, Indemnitee to the maximum extent permitted by law;



     WHEREAS, the Certificate of Incorporation (the “Charter”) and the Bylaws (the
“Bylaws”) of the Company provide for indemnification of the officers and directors of the
Company, and Indemnitee may also be entitled to indemnification pursuant to the General Corporation
Law of the State of Delaware (the “DGCL”);



     WHEREAS, the Charter, Bylaws and the DGCL 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 Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the Company’s directors, officers, employees, agents and fiduciaries, the significant
and continual increases in the cost of such insurance and the general trend of insurance companies
to reduce the scope of coverage of such insurance;



     WHEREAS, the Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, agents and fiduciaries to
expensive litigation risks at the same time as the availability and scope of coverage of liability
insurance provide increasing challenges for the Company;



     WHEREAS, Indemnitee does not regard the protection currently provided by applicable law, the
Company’s governing documents and available insurance as adequate under the present circumstances,
and Indemnitee may not be willing to continue to serve in such capacity without additional
protection;



     WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the
increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is
detrimental to the best interests of the Company’s stockholders and that the Company should act to
assure Indemnitee 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, regardless of any amendment or revocation of the Charter or Bylaws, so
that they will serve or continue to serve the Company free from undue concern that they will not be
so indemnified;



     WHEREAS, the Company and Indemnitee acknowledge and agree that, as contemplated by 6 Del. C. §
2708 (“Section 2708”) this Agreement involves at least $100,000 and, therefore, the Company
and Indemnitee intend for Section 2708 and the related legislative commentary, which specifies that
Section 2708 was intended to supersede all Delaware common law limitations on the enforceability of
choice of law provisions (including any



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restrictions contained in the Restatement (Second) of Conflict of Laws), as well as
limitations on contractual consent to jurisdiction or service of process, to apply to this
Agreement; and




     WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided
in the Charter, Bylaws and the DGCL and any resolutions adopted pursuant thereto, and shall not be
deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.



     NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:



     Section 1. Services to the Company. Indemnitee agrees to serve as [a
director/officer] of the Company. [Subject to the terms and conditions of any employment agreement
between Indemnitee and the Company,] Indemnitee may at any time and for any reason resign from such
position, in which event the Company shall have no obligation under this Agreement to continue
Indemnitee in such position. This Agreement shall not be deemed an employment contract between the
Company (or any of its subsidiaries or any Enterprise) and Indemnitee. The foregoing
notwithstanding, this Agreement shall be effective as of the date the Indemnitee commenced services
as a [director/officer] and continue in force after Indemnitee has ceased to serve as [a
director/officer] of the Company and its affiliates.




	 	 	Section 2. Definitions.






	 	 	As used in this Agreement:





          (a) “Corporate Status” describes the status of a person as a current or former
director, officer, employee, agent or trustee of the Company or of any other Enterprise which such
person is or was serving at the request of the Company.




          (b) “Enforcement Expenses” shall include all reasonable attorneys’ fees, 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 of the types customarily incurred in connection with an action to enforce
indemnification or advancement rights, or an appeal from such action, including, without
limitation, the premium, security for and other costs relating to any cost bond, supersedas bond or
other appeal bond or its equivalent.




          (c) “Enterprise” shall mean any corporation (other than the Company), partnership,
joint venture, trust, employee benefit plan or other legal entity of which Indemnitee is or was
serving at the request of the Company as a director, officer, employee, agent, trustee or other
Corporate Status.




          (d) “Expenses” shall include all reasonable attorneys’ fees, 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 of the types customarily incurred 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 or an appeal resulting from a Proceeding, including, without
limitation, the premium, security for and other costs relating to any cost bond, supersedas bond or
other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines against Indemnitee.




          (e) “Independent Counsel” means a law firm, or a partner (or, if applicable, member)
of such a law firm, that is experienced in matters of Delaware corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i) the Company,
Harbinger Holdings, LLC, any Enterprise or Indemnitee or any of their affiliates in any matter
material to any such party (other than with respect to matters concerning Indemnitee under this
Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the applicable
standards of professional conduct then prevailing, would 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 agrees to pay the reasonable fees and






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expenses of the Independent Counsel and to fully indemnify such counsel against any and all
expenses, claims, liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.]




          (f) The term “Proceeding” shall include 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, 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 or is or was serving at the request of
the Company as a director, officer, employee, agent or trustee of any Enterprise or by reason of
any action taken by him or of any action taken on his part while acting as director or officer of
the Company or while serving at the request of the Company as a director, officer, employee, agent
or trustee of any 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; provided, however, that the term
“Proceeding” shall not include any action, suit or arbitration, or part thereof, initiated by
Indemnitee to enforce Indemnitee’s rights under this Agreement as provided for in Section 13(e) of
this Agreement.




     Section 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, 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, judgments, fines and amounts paid in settlement actually
and reasonably 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 and in a manner he 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 conduct was unlawful.



     Section 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, 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 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 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 Court or such other court shall deem proper.



     Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement and except as provided in Section 8, 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, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf
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 Indemnitee against all Expenses actually
and reasonably incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter. 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.



     Section 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, or is made (or asked to) respond to discovery requests, in any Proceeding to which
Indemnitee is not a party and is not threatened to be made a party, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.



     Section 7. Additional Indemnification.



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          (a) Except as provided in Section 8, notwithstanding any limitation in Sections 3, 4 or 5, the
Company shall indemnify Indemnitee to the fullest extent permitted by law if Indemnitee is a party
to 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 and
amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with the
Proceeding.




          (b) For purposes of Section 7(a), the meaning of the phrase “to the fullest extent permitted
by law” shall include, but not be limited to:




               (i) to the fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL or such provision thereof; and



               (ii) to the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.



     Section 8. Exclusions. Notwithstanding any provision in this Agreement to the
contrary, the Company shall not be obligated under this Agreement:



          (a) to make any indemnity for amounts otherwise indemnifiable hereunder (or for which
advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually
received such amounts under any insurance policy, contract, agreement or otherwise;




          (b) to make any indemnity 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) to make any indemnity or advancement that is prohibited by applicable law.




     Section 9. Advances of Expenses. The Company shall advance the Expenses incurred by
Indemnitee in connection with any Proceeding, and such advancement shall be made within twenty (20)
days after the receipt by the Company of a statement or statements requesting such advances (which
shall include invoices received by Indemnitee in connection with such Expenses but, in the case of
invoices in connection with legal services, any references to legal work performed or to
expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law
shall not be included with the invoice) from time to time, whether prior to or after final
disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be
made without regard to Indemnitee’s ability to repay the expenses and without regard to
Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.
Indemnitee shall qualify for advances upon the execution and delivery to the Company of this
Agreement which shall constitute an undertaking providing that Indemnitee undertakes to the fullest
extent required by law to repay the advance if and to the extent that it is ultimately determined
by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is
not entitled to be indemnified by the Company. The right to advances under this paragraph shall in
all events continue until final disposition of any Proceeding, including any appeal therein.
Nothing in this Section 9 shall limit Indemnitee’s right to advancement pursuant to Section 13(e)
of this Agreement.




	 	 	Section 10. Procedure for Notification and Defense of Claim.





          (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request therefor and, if Indemnitee so chooses pursuant to Section 11 of this Agreement,
such written request shall also include a request for Indemnitee to have the right to
indemnification determined by Independent Counsel.




          (b) The Company will be entitled to participate in the Proceeding at its own expense.




     Section 11. Procedure Upon Application for Indemnification.



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          (a) Upon written request by Indemnitee for indemnification pursuant to Section 10(a), a
determination, if such determination is required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case: (i) by Independent Counsel in a written
opinion to the Board if Indemnitee so requests in such written request for indemnification pursuant
to Section 10(a), or (ii) by the Company in accordance with applicable law if Indemnitee does not
so request such determination be made by Independent Counsel. In the case that such determination
is made by Independent Counsel, a copy of Independent Counsel’s written opinion shall be delivered
to Indemnitee and, if it is so determined that Indemnitee is entitled to indemnification, payment
to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall
cooperate with the Independent Counsel or the Company, as applicable, making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing to such counsel or
the Company, upon reasonable advance request, any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee
and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees
and disbursements) incurred by Indemnitee in so cooperating with the Independent Counsel or the
Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee
harmless therefrom.




          (b) In the event that Indemnitee exercises his right to have his entitlement to
indemnification determined by Independent Counsel pursuant to Sections 10(a) and 11(a)(i), the
Independent Counsel shall be selected by Indemnitee. The Company may, within ten (10) days after
written notice of such selection, deliver to Indemnitee a written objection to such selection;
provided, however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined
in Section 2 of this Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the person so selected shall act as
Independent Counsel. If such written objection is so made and substantiated, the Independent
Counsel so selected may not serve as Independent Counsel unless and until such objection is
withdrawn or a court has determined that such objection is without merit. If, within twenty (20)
days after the later of (i) submission by Indemnitee of a written request for indemnification and
Independent Counsel pursuant to Sections 10(a) and 11(a)(i) hereof, respectively, and (ii) the
final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall
have been selected without objection, Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by the Company to the selection of
Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the
court or by such other person as the court shall designate. The person with respect to whom all
objections are so resolved or the person so appointed shall act as Independent Counsel under
Section 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant
to Section 13(a) of this Agreement, Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of professional
conduct then prevailing).




     Section 12. Presumptions and Effect of Certain Proceedings.



          (a) In making a determination with respect to entitlement to indemnification hereunder, it
shall be presumed that Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 10(a) of this Agreement, and
the Company shall have the burden of proof to overcome that presumption in connection with the
making of any determination contrary to that presumption. In an action to enforce this Agreement,
neither (i) the failure of the Company or of Independent Counsel to have made a determination prior
to the commencement of any action pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor (ii) an actual
determination by the Company or by Independent Counsel that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has
not met the applicable standard of conduct.




          (b) Indemnitee shall be deemed to have acted in good faith to the extent Indemnitee’s action
is based on the records or books of account of the Company or any other Enterprise, including
financial statements, or on information supplied to Indemnitee by the officers of the Company or
any other Enterprise in the course of their duties, or on the advice of legal counsel for the
Company or any other Enterprise, or for any committee of the Board or the board of directors of any
other Enterprise, or on information or records given or reports made to the






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Company or any other Enterprise, or to any committee of the Board or the board of directors of
any other Enterprise, by an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Company or any other Enterprise, or by any committee of
the Board or the board of directors of any other Enterprise.




          (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of guilty, nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith or in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful. The Company acknowledges that a
settlement or other disposition short of final judgment may be successful if it permits a party to
avoid expense, delay, distraction, disruption and uncertainty.




          (d) The knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Company or any Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement. Whether or not the foregoing
provisions of this Section 12 are satisfied, it shall in any event be presumed that Indemnitee has
at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing evidence.




     Section 13. Remedies of Indemnitee.



          (a) Subject to Section 13(f), in the event that (i) a determination is made pursuant to
Section 11 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 9 of this Agreement,
(iii) Indemnitee has submitted a request for indemnification that does not include a request for
Independent Counsel and no determination of entitlement to indemnification shall have been made
pursuant to Section 11(a) of this Agreement within sixty (60) days after receipt by the Company of
such request, (iv) Indemnitee has submitted a request for indemnification that does include a
request for Independent Counsel and no determination of entitlement to indemnification shall have
been made pursuant to Section 11(a) of this Agreement within sixty (60) days after either (A) the
ten (10) day period for objection to the selection of Independent Counsel has expired with no
objection made or (B), if such an objection has been made, resolution of any such objection, (v)
payment of indemnification is not made pursuant to Section 5 or 6 or the last sentence of Section
11(a) of this Agreement within ten (10) days after receipt by the Company of a written request
therefor, or (vi) payment of indemnification pursuant to Section 3, 4 or 7 of this Agreement is not
made within ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication by a court of his entitlement to
such indemnification or advancement. Alternatively, Indemnitee, at his option, may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section 13(a); provided,
however, that the foregoing time limitation shall not apply in respect of a proceeding
brought by Indemnitee to enforce his rights under Section 5 of this Agreement. The Company shall
not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.




          (b) In the event that a determination shall have been made pursuant to Section 11(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 13 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 13, the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement, as the case may be.




          (c) If a determination shall have been made pursuant to Section 11(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 13, to the fullest extent
permitted by law.







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          (d) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 13 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.




          (e) The Company shall indemnify Indemnitee against any and all Enforcement Expenses and, if
requested by Indemnitee, subject to Section 9, shall (within ten (10) days after receipt by the
Company of a written request therefor) advance, to the extent not prohibited by law, such
Enforcement Expenses to Indemnitee, which are incurred by Indemnitee in connection with any action
brought by Indemnitee for indemnification or advancement from the Company under this Agreement or
under any directors’ and officers’ liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification,
advancement or insurance recovery, as the case may be, in the suit for which indemnification or
advancement is being sought.




          (f) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding, including any appeal therein.





	 	 	Section 14. Non-exclusivity; Survival of Rights; Insurance.





          (a) The rights of indemnification and to receive advancement as provided by this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in
respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in Delaware law, whether by statute
or judicial decision, permits greater indemnification or advancement than would be afforded
currently under the Charter, Bylaws and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.




          (b) To the extent that the Company or any of its affiliates maintains an insurance policy or
policies providing liability insurance for directors, officers, employees, agents or trustees of
the Company or of any other Enterprise, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage available for any such
director, officer, employee, agent or trustee under such policy or policies. If, at the time of
the receipt of a notice of a claim pursuant to the terms 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 Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.




          (c) The Company’s obligation to provide indemnification or advancement hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer, employee, agent or
trustee of any other Enterprise shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement from such other Enterprise.




          (d) All references in this Agreement to the Company shall include Zapata Corporation
(“Zapata”) during the period of time prior to the merger of Zapata with and into the
Company.




     Section 15. Duration of Agreement. This Agreement shall continue until and terminate
upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as
a director or officer (or in any other Corporate Status) of any of the Company or its affiliates or
(b) one (1) year after the final termination of any Proceeding, including any appeal, then pending
in respect of which Indemnitee is granted rights of indemnification



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or advancement hereunder and of any proceeding, including any appeal, commenced by Indemnitee
pursuant to Section 13 of this Agreement relating thereto. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his
heirs, executors and administrators. The Company shall require and cause any successor, and any
direct or indirect parent of any successor, whether direct or indirect by purchase, merger,
consolidation or otherwise, to all, substantially all or a substantial part, of the business and/or
assets of the Company, by written agreement in form and substance satisfactory to Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken place.




     Section 16. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including, without limitation,
each portion of any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by
law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform
to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to
the fullest extent possible, the provisions of this Agreement (including, without limitation, each
portion of any section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.



     Section 17. Enforcement.



          (a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a
[director/officer] of the Company, and the Company acknowledges that Indemnitee is relying upon
this Agreement in serving as a [director/officer] of the Company.




          (b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided,
however, that this Agreement is a supplement to and in furtherance of the Charter, the
Bylaws, applicable law and prior agreements, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder. For the avoidance of doubt, this
Agreement shall not diminish or abrogate any rights of Indemnitee with regard to indemnification or
advancement agreements undertaken with Zapata.




     Section 18. Modification and Waiver. No supplement, modification or amendment, or
waiver of any provision, of this Agreement shall be binding unless executed in writing by the
parties thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a
continuing waiver.



     Section 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in
writing upon being served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may be subject to indemnification or
advancement as provided hereunder. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation which it may have to Indemnitee under this Agreement or
otherwise.



     Section 20. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by
hand and receipted for by the party to whom said notice or other communication shall have been
directed, (b) mailed by certified or registered mail with postage prepaid, on the third business
day after the date on which it is so mailed, (c) mailed by reputable overnight courier and
receipted for by the party to whom said notice or other communication shall have been directed or
(d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has
been received:



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          (a) If to Indemnitee, to:




               Attn: [INDEMNITEE]



          (b) If to the Company to:




               Harbinger Group Inc.



               450 Park Avenue, 30th Floor



               New York, NY 10022


or to any other address as may have been furnished to Indemnitee by the Company.




     Section 21. Contribution.



          (a) Whether or not the indemnification provided for in this Agreement is available, in respect
of any threatened, pending or completed action, suit or proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company
shall pay, in the first instance, the entire amount of any judgments, fines, penalties, excise
taxes, amounts paid or to be paid in settlement and Expenses without requiring Indemnitee to
contribute to such payment and the Company hereby waives and relinquishes any right of contribution
it may have against Indemnitee. The Company shall not enter into any settlement of any action,
suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding) unless such settlement provides for a full and final release of
all claims asserted against Indemnitee.




          (b) Without diminishing or impairing the obligations of the Company set forth in the preceding
subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion
of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in
which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), the Company shall contribute to the amount of judgments, fines, penalties, excise
taxes, amounts paid or to be paid in settlement and Expenses actually and reasonably incurred and
paid or payable by Indemnitee in proportion to the relative benefits received by the Company and
all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable
with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, from the transaction from which such action, suit or proceeding
arose; provided, however, that the proportion determined on the basis of relative
benefit may, to the extent necessary to conform to law, be further adjusted by reference to the
relative fault of the Company and all officers, directors or employees of the Company other than
Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events
that resulted in such Expenses, judgments, fines or settlement amounts, as well as any other
equitable considerations which applicable law may require to be considered. The relative fault of
the Company and all officers, directors or employees of the Company, other than Indemnitee, who are
jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other
things, the degree to which their actions were motivated by intent to gain personal profit or
advantage, the degree to which their liability is primary or secondary and the degree to which
their conduct is active or passive.




          (c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution which may be brought by officers, directors or employees of the Company or its
affiliates, other than Indemnitee, who may be jointly liable with Indemnitee.




     Section 22. Applicable Law and Consent to Jurisdiction. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 13(a) of this Agreement, the
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought only in the
Delaware Court, and not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware
Court for



55









 




purposes of any action or proceeding arising out of or in connection with this Agreement,
(iii) consent to service of process at the address set forth in Section 20 of this Agreement with
the same legal force and validity as if served upon such party personally within the State of
Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the
Delaware Court and (v) waive, and agree not to plead or to make, any claim that any such action or
proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.




     Section 23. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced in order to evidence the existence
of this Agreement.



     Section 24. Miscellaneous. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this Agreement or to
affect the construction thereof.



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     IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.



	 	 	 	 	 	 	 
	 	 	HARBINGER GROUP INC.
	 
	 

	 	By:	 	 	 	 
	 

	 	
	 	Name:

	 	 
	 

	 		 	Office:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	[INDEMNITEE]
	 	 	 	 	Name:






57









 





Schedule to Exhibit 10.12 – Form of Indemnification Agreement by and

Among Harbinger Group Inc. and its Directors and Officers



The Indemnification Agreement filed as Exhibit 10.12 is substantially identical in all
material respects to the indemnification agreements which have been entered into by
Harbinger Group Inc. and the following directors and officers with the associated
effective dates:




	 	 	 
	Indemnitee	 	Effective Date
	Lap Wai Chan

	 	December 23, 2009
	Leonard DiSalvo

	 	December 23, 2009
	Lawrence M. Clark, Jr.

	 	December 23, 2009
	Philip A. Falcone

	 	December 23, 2009
	Peter A. Jenson

	 	December 23, 2009
	Robert V. Leffler, Jr.

	 	December 23, 2009
	Keith M. Hladek

	 	December 23, 2009
	Thomas M. Hudgins

	 	December 23, 2009
	Francis T. McCarron

	 	December 23, 2009






58