INDEMNIFICATION AGREEMENT
Exhibit
10.1
This
Indemnification Agreement (this “Agreement”) is made
and entered into as of September 24, 2008, by and among Xxxxxxx Furniture
Company, Inc., a Delaware corporation (“Company”), and
[Director] (“Indemnitee”).
WHEREAS, the Company desires to attract
and retain the services of highly qualified individuals, such as Indemnitee, to
serve the Company and its related entities:
WHEREAS, in order to induce Indemnitee,
or continue to provide, services to the Company and its related entities, the
Company wishes to provide for the indemnification of, and the advancement of
expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS, the Company and Indemnitee
recognize the continued difficulty in obtaining liability insurance for
directors, officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance;
WHEREAS, the Company and Indemnitee
recognize the substantial increase in corporate litigation in general,
subjecting directors, officers, employees, agents and fiduciaries to expensive
litigation risks and the limitations of coverage of liability
insurance;
WHEREAS, the Company and Indemnitee
desire to continue to have in place the additional protection provided by an
indemnification agreement and to provide indemnification and advancement of
Expenses (as hereinafter defined) to Indemnitee to the maximum extent permitted
by Delaware law;
WHEREAS, the Board of Directors has
determined that contractual indemnification as set forth herein is not only
reasonable and prudent but also promotes the best interests of the Company and
its stockholders;
WHEREAS,
in view of the considerations set forth above, the Company desires that
Indemnitee shall be indemnified and advanced Expenses by the Company as set
forth herein;
NOW,
THEREFORE, the Company and the Indemnitee hereby agree as follows:
1. Indemnity. The
Company shall indemnify and hold harmless Indemnitee to the fullest extent
permitted by the DGCL. In furtherance of the foregoing
indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than
Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a) if, by
reason of his Covered Status (as hereinafter defined), Indemnitee is, or is
threatened to be made, a party to or otherwise involved in any Proceeding (as
hereinafter defined), other than a Proceeding by or in the right of the
Company. Pursuant to this Section 1(a),
Indemnitee shall be indemnified, by the Company against all Expenses (as
hereinafter defined), judgments, penalties, fines, ERISA excise taxes or
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable with or in respect of such Expenses,
judgments, penalties, fines, taxes or amounts paid in settlement) 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 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 Indemnitee’s conduct was unlawful.
(b) Proceedings by or in the
Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 1(b) if, by
reason of his Covered Status, Indemnitee is, or is threatened to be made, a
party to or participant in any Proceeding brought by or in the right of the
Company. Pursuant to this Section 1(b), Indemnitee
shall be indemnified by the Company against all Expenses actually and reasonably
incurred by Indemnitee, or on Indemnitee’s behalf, in connection with such
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; provided,
however, if the General
Corporation Law of the State of Delaware, as such may be amended from time to
time (the “DGLC”) so provides, no indemnification against such Expenses shall be
made in respect of any claim, issue, or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company unless and to
the extent that the Court of Chancery of the State of Delaware shall determine
that such indemnification may be made.
(c) Indemnification for Expenses
of a Party Who is Wholly or Partly Successful. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Covered Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified to the maximum extent
permitted by the DGCL 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 1 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.
2. Additional
Indemnity. In addition to, and without regard to any
limitations on, the indemnification provided for in Section 1 hereof, the
Company shall, and hereby does indemnify and hold harmless Indemnitee against
all Expenses, judgments, penalties, fines, ERISA excise taxes or penalties and
amounts paid in settlement (including all interest, assessments and other
charges paid or payable with or in respect of such Expenses, judgments,
penalties, fines, taxes or amounts paid in settlement) actually and reasonably
incurred by him or on his behalf if, by reason of his Covered Status, he is, or
is threatened to be made, a party to or participant in any Proceeding (including
a Proceeding by or in the right of the Company). The only limitation
that shall exist upon the obligations of the Company pursuant to this Agreement
shall be that the Company shall not be obligated to make any payment to
Indemnitee that is finally determined (under the procedures, and subject to the
presumptions, set forth in Sections 6 and 7 hereof) to be
unlawful.
3. Contribution.
(a) Whether
or not the indemnification provided in Sections 1 and 2 hereof is
available, in respect of any Proceeding in which the Company is jointly liable
with Indemnitee (or would be if joined in such Proceeding), the Company shall
pay, in the first instance, the entire amount of any judgment, penalty, fine,
ERISA excise taxes or penalties, or settlement (including all interest,
assessments and other charges paid or payable with or in respect of such
judgments, penalties, fines, taxes or amounts paid in settlement) of such
Proceeding without requiring Indemnitee to contribute to such payment, and the
Company hereby waives and relinquishes any right of contribution it may have
against Indemnitee with respect thereto. 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.
(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 Proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such Proceeding), the Company
shall contribute an amount equal to 100% of Expenses, judgments, penalties,
fines, ERISA excise taxes or penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable with or in respect
of such Expenses, judgments, penalties, fines, taxes or amounts paid in
settlement) actually and reasonably incurred and paid or payable by
Indemnitee. If the Company is prohibited by law from paying 100% of
such Expenses, judgments, fines, penalties, ERISA excise taxes or penalties and
amounts, the Company shall contribute to the amount of Expenses, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable with or in respect
of such Expenses, judgments, penalties, fines, taxes or amounts paid in
settlement) 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 Proceeding), on the one
hand, and Indemnitee, on the other hand, from the transaction from which such
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
Proceeding), on the one hand, and Indemnitee, on the other hand, in connection
with the events that resulted in such Expenses, judgments, penalties, fines,
ERISA excise taxes or penalties or settlement amounts (including all interest,
assessments and other charges paid or payable with or in respect of such
Expenses, judgments, penalties, fines, taxes or amounts paid in settlement), 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 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 was active or
passive.
(c) To the
maximum extent permitted by law, the Company shall fully indemnify and hold
Indemnitee harmless from any claims of contribution which may be brought by
officers, directors, employees, agents or fiduciaries of the Company, other than
Indemnitee, who may be jointly liable with Indemnitee.
(d) To the
fullest extent permissible under the DGCL, if the indemnification provided for
in this Agreement is unavailable to Indemnitee for any reason whatsoever, the
Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, penalties, fines, ERISA excise
taxes or penalties, amounts paid or to be paid in settlement, and/or for
Expenses, in connection with any claim relating to an indemnifiable event under
this Agreement, in such proportion as is deemed fair and reasonable in light of
all of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative
fault of the Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or transaction(s).
4. Indemnification
for Expenses of a Witness. Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee is, by reason of his Covered
Status (or arising out of the same or relating thereto), a witness in any
Proceeding to which Indemnitee is not a party, he shall be indemnified by the
Company against all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith.
5. Advancement
of Expenses. Notwithstanding any other provision of this
Agreement, the Company shall advance all Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding by reason of Indemnitee’s Covered
Status within twenty (20) days after the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee and if and to the extent required by the
DGCL, shall include or be preceded or accompanied by an undertaking by or on
behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal that Indemnitee is not entitled to be indemnified against such
Expenses. Any advances and undertakings to repay pursuant to this
Section 5 shall be
unsecured and interest free.
6. Procedures
and Presumptions for Determination of Entitlement to
Indemnification. The following procedures and presumptions
shall apply in the event of any question as to whether Indemnitee is entitled to
indemnification under this Agreement:
(a) To obtain
indemnification under this Agreement, Indemnitee shall submit to the Company a
written request together with a brief summary of the Proceeding as to which
indemnification is sought. The Secretary of the Company shall,
promptly upon receipt of such a request for indemnification, advise the Board in
writing that Indemnitee has requested indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 6(a) hereof other
than a request solely for advancement of Expenses pursuant to Section 5, a
determination, if (but only if) required by the DGCL, with respect to
Indemnitee’s entitlement thereto shall be made in the specific case by one of
the following three methods, which shall be at the election of the Indemnitee to
the extent permitted by law: (1) by a majority vote of the Disinterested
Directors (as hereinafter defined), even though less than a quorum; (2) by
Independent Counsel (as hereinafter defined) in a written opinion to the Board,
a copy of which shall be delivered to Indemnitee; or (3) by the stockholders of
the Company. In the event that the Company fails or is unable to
implement an election by Indemnitee, it shall promptly communicate the same to
Indemnitee, and Indemnitee shall be afforded a right to seek a determination by
another method set forth in the preceding sentence, provided, however, that nothing in this
sentence shall preclude Indemnitee from seeking any remedy available to it in
respect of such failure or inability.
(c) If the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(b) hereof, the
Independent Counsel shall be selected as provided in this Section 6(c). The
Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board). The Company or
Indemnitee, as the case may be, may, within ten (10) days after such written
notice of selection shall have been given, deliver to Indemnitee or the Company,
as the case may be, 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 12
hereof, and the objection shall set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the person
so selected by the Indemnitee to the extent permitted by law shall act as
Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel 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 submission by Indemnitee of a written request for indemnification pursuant
to Section 6(a) hereof and a
written request for a determination pursuant to Section 6(b) hereof by
Independent Counsel, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition the Court of Chancery
of the State of Delaware or other court of competent jurisdiction for resolution
of any objection which shall have been made by the Company or Indemnitee to the
other’s 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, and the person with respect to whom all objections
are so resolved or the person so appointed shall act as Independent Counsel
under Section 6(b)
hereof. The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b) hereof, and
the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c), regardless
of the manner in which such Independent Counsel was selected or
appointed.
(d) In making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this
Agreement. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing
evidence. Neither the failure of the Company (including by its
directors or independent legal 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 an actual determination by the Company (including by
its directors or independent legal 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.
(e) Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on
Indemnitee’s reliance on the records or books of account of an Enterprise (as
hereinafter defined), including financial statements, or on information supplied
to Indemnitee by the officers of an Enterprise in the course of their duties, or
on the advice of legal counsel for an Enterprise or on information or records
given or reports made to an Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
an Enterprise. In addition, the knowledge and/or actions, or failure
to act, of any director, officer, employee, agent or fiduciary of an 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 6(e) 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.
(f) If the
person, persons, or entity empowered or selected under Section 6 to determine
whether Indemnitee is entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification; and provided, further, that the foregoing
provisions of this Section 6(f) shall not
apply if the determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 6(b) hereof and
if (A) within fifteen (15) days after receipt by the Company of the request for
such determination, the Board or the Disinterested Directors, if appropriate,
resolve to submit such determination to the stockholders for their consideration
at an annual meeting thereof to be held within seventy-five (75) days after such
receipt and such determination is made thereat, or (B) if an annual meeting is
not to be held within seventy-five (75) days, at a special meeting of the
stockholders to be held for such purpose within seventy-five
(75) days after such receipt.
(g) Indemnitee
shall reasonably cooperate with the person, persons, or entity making such
determination with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons, or entity 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 Independent Counsel,
member of the Board, or stockholder of the Company shall act reasonably and in
good faith in making a determination regarding Indemnitee’s entitlement to
indemnification under this Agreement. Any costs or expenses
(including attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons, or entity making such determination 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.
(h) The
Company acknowledges that a settlement or other disposition short of final
judgment may be successful if such settlement or other disposition permits a
party to avoid expense, delay, distraction, disruption, and
uncertainty. In the event that any action, claim, or proceeding to
which Indemnitee is a party is resolved in any manner other than by adverse
judgment against Indemnitee (including settlement of such action, claim, or
proceeding with or without payment of money or other consideration), it shall be
presumed that Indemnitee has been successful on the merits or otherwise in such
proceeding. Anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion by clear and convincing
evidence.
(i) The
termination of any Proceeding or of any claim, issue, or matter therein, by
judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement
or required by the DGCL) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and 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.
7. Remedies
of Indemnitee.
(a) In the
event that (i) a determination is made pursuant to Section 6 hereof that
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 5 hereof, (iii)
no determination of entitlement to indemnification is made pursuant to Section 6(b) hereof
within sixty (60) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to this
Agreement within ten (10) days after receipt by the Company of a written request
therefor, or (v) payment of indemnification is not made within ten (10) days
after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 6 hereof,
Indemnitee shall be entitled to an adjudication in an appropriate court of the
State of Delaware, or in any other court of competent jurisdiction, of
Indemnitee’s entitlement to such indemnification. The Company shall
not oppose Indemnitee’s right to seek any such adjudication.
(b) In the
event that a determination shall have been made pursuant to Section 6(b) hereof that
Indemnitee is not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section 7 shall be
conducted in all respects as a de novo trial on the merits,
and Indemnitee shall not be prejudiced by reason of the adverse determination
under Section 6(b).
(c) If a
determination shall have been made pursuant to Section 6(b) hereof that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section 7, absent a
prohibition of such indemnification under the DGCL.
(d) In the
event that Indemnitee, pursuant to this Section 7, seeks a
judicial adjudication of his rights under, or to recover damages for breach of,
this Agreement, or to recover under any directors’ and officers’ liability
insurance policies maintained by the Company, the Company shall pay on his
behalf, in advance (within ten (10) days of receipt by the Company of any
request therefor), any and all expenses (of the types described in the
definition of Expenses in Section 12 hereof)
actually and reasonably incurred by him in such judicial adjudication,
regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advancement of expenses or insurance recovery.
(e) The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 7 that the
procedures and presumptions of this Agreement are not valid, binding, or
enforceable and shall stipulate in any such court that the Company is bound by
all the provisions of this Agreement.
(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.
8. Non-Exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The
rights of indemnification and advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under the DGCL, the Certificate or Bylaws of the
Company, any agreement, a vote of stockholders, a resolution of directors, or
otherwise. No amendment, alteration, or repeal of this Agreement or
of any provision hereof or of the Certificate or Bylaws of the Company or any
provision thereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Covered Status prior to such amendment, alteration, or repeal. To the
extent that a change in the DGCL, whether by statute or judicial decision,
permits greater indemnification than would be afforded currently under this
Agreement, the Certificate or Bylaws of the Company, 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 maintains an insurance policy or policies providing
liability insurance for persons of any category of Covered Status, 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 persons of such
category of Covered Status 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 have 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) In the
event of any payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement, or otherwise.
9. Exception
to Right of Indemnification. Notwithstanding any other
provision of this Agreement, Indemnitee shall not be entitled under this
Agreement
(a) to
indemnification or advancement of Expenses with respect to any Proceeding
brought by Indemnitee, or any claim therein (except Proceedings and claims
brought to enforce rights to indemnification under this Agreement and claims by
way of defense, counterclaim or crossclaim), unless (i) the bringing of such
Proceeding or making of such claim shall have been approved by the Board of
Directors, or (ii) as otherwise required under Section 145 of the DGCL,
regardless of whether Indemnitee is determined to be entitled to such
indemnification or insurance recovery as the case may be; or
(b) to
indemnification or advancement of Expenses with respect to any Proceeding 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.
10. Duration
of Agreement. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is serving in a
Covered Capacity so long as Indemnitee may be subject to any possible Proceeding
(or any proceeding commenced under Section 7
hereof) by reason of (or arising out of or relating to) at Indemnitee’s Covered
Status whether or not Indemnitee is acting or serving in any such capacity at
the time such Proceeding is commenced or at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs, executors, administrators, and personal and legal representatives. The
Company shall not effect any sale, lease, exchange or other disposition of all
or substantially all of its assets determined on either an unconsolidated or
consolidated basis (in one or a series of related transactions) or be party to
any merger, consolidation or similar transaction in which it is not the
surviving entity unless the acquiring or surviving entity agrees in writing to
(and does) assume all obligations of the Company under this Agreement, it being
understood and agreed that this Agreement shall continue in full force and
effect after any such transaction, and such surviving entity shall be bound by
the terms hereof, whether or not this sentence has been complied with. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or any other enterprise at the
Company’s request.
11. 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 or continue to serve in Indemnitee’s Covered Status (and to eliminate
any uncertainty regarding Indemnitee’s continuing enforceable rights to
indemnification, advancement of expenses and contribution for acts or omissions
occurring before, on or after the date hereof), and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving or continuing to serve
in any Covered Status, now or hereafter. The Company and Indemnitee concur that
such service of Indemnitee, and the warranties, covenants and agreements of the
Company and Indemnitee contained herein comprise good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged.
(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 thereto with
respect to the subject matter hereof. It is understood and agreed
that the foregoing does not limit Indemnitee’s rights under the DGCL or the
Certificate or Bylaws of the Company.
(c) The
obligations of the Company and the rights of the Indemnitee pursuant to this
Agreement are fully effective and vested on the date of this Agreement, are for
indemnification, advancement of Expenses and contribution in respect of any
action actually or alleged to have been taken or omitted by Indemnitee in any
Covered Status regardless of whether such action or omission occurred prior to
the date hereof or hereafter, are not contingent or dependent upon the
occurrence or existence of any other fact, circumstance or event, and may not be
limited or narrowed in any way after the date of this Agreement, whether before
or after any Proceeding with respect to any such actual or alleged action or
omission is commenced, except by an amendment hereto expressly agreed to in a
writing manually executed by the Indemnitee and delivered to the
Company.
(d) The
Company and the Indemnitee agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that they each will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
12. Definitions. For
purposes of this Agreement:
(a) “Covered Capacity”
means the capacity, office, or other position (if any) in which a person is
serving by reason of his Covered Status.
(b) “Covered Status”
describes the status of a person (i) who is or was a director, officer,
employee, agent, or fiduciary of the Company, (ii) who, at the request of the
Company, is or was a director, officer, employee, agent, or fiduciary of any
other corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan, or other enterprise, or (iii) who is or was a director,
officer, employee, agent, or fiduciary of any other corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan, or other
enterprise that is or was a direct or indirect subsidiary (whether wholly owned
or otherwise) of the Company at the time of such person’s service as such a
director, officer, employee, agent, or fiduciary.
(c) “Disinterested
Director” means a director of the Company who is not and was not a party
to the Proceeding in respect of which indemnification is sought by
Indemnitee.
(d) “Enterprise” shall
mean (i) the Company, or (ii) any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan, or other
enterprise of which Indemnitee is or was serving as a director, officer,
employee, agent, or fiduciary either (x) at the request of the Company or (y)
that is or was a direct or indirect subsidiary (whether wholly owned or
otherwise) of the Company at the time of Indemnitee’s service as such a
director, officer, employee, agent or fiduciary.
(e) “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 any nature paid or incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, participating, or being or preparing to be a witness in a
Proceeding. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding, including the premium,
security for, and other costs relating to any cost bond, supersede as bond, or
other appeal bond or its equivalent.
(f) “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 (5) 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
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 the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.
(g) “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 by or in
the right of the Company or otherwise and whether civil, criminal,
administrative, or investigative, in which Indemnitee was, is, or will be
involved as a party or otherwise, by reason of the fact that Indemnitee has
Covered Status, by reason of any action taken by him or of any inaction on his
part while acting in a Covered Capacity, or by reason of the fact that he is or
was serving in a Covered Capacity, in each case whether or not he is acting or
serving in any such Covered Capacity at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement;
including one pending on or before the date of this Agreement, but excluding one
initiated by an Indemnitee pursuant to Section 7 hereof to
enforce his rights under this Agreement.
13. Severability. If
any provision or provisions of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void, illegal or otherwise 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, void, illegal or unenforceable, that is not itself invalid, illegal,
void or otherwise unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; (b)
to the fullest extent possible, this Agreement and the provisions hereof
(including, without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal, void or otherwise
unenforceable, that is not itself invalid, illegal, void or otherwise
unenforceable) shall be construed so as to give effect to the intent manifested
thereby and the intended interpretation of this Agreement as expressed herein;
and (c) a court shall have the power to fashion and enforce another provision
(or portion thereof), instead of any invalid, void, illegal or otherwise
unenforceable provision hereof (or portion thereof), that is enforceable to
carry out the intent of such provision and this Agreement as expressed
herein.
14. Modification
and Waiver. No supplement, modification, termination or
amendment of this Agreement shall be binding or enforceable against the parties
hereto unless the same is (i) made by a court of competent jurisdiction pursuant
to Section 13 hereof, (ii) if enforcement is sought against Indemnitee, set
forth in a writing manually executed by Indemnitee and delivered to the Company;
or (iii) if enforcement is sought against the Company, set forth in a writing
manually executed by the Company and delivered to the Indemnitee. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
15. Notice By
Indemnitee. Indemnitee shall promptly notify the Company in
writing upon being served with or otherwise receiving any summons, citation,
subpoena, complaint, indictment, information, or other document relating to any
Proceeding or matter which may be subject to indemnification covered
hereunder. The failure to so notify the Company shall not relieve the
Company of any obligations which it may have to Indemnitee under this Agreement
or otherwise.
16. Notices. All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the party to be notified, (b) when sent by confirmed electronic mail or
facsimile if sent during normal business hours of the recipient, and if not so
confirmed, then on the next business day, (c) five (5) days after having been
sent by registered or certified mail, return receipt requested, postage prepaid,
or (d) one day after deposit with a nationally recognized overnight courier,
specifying next-day delivery, with written verification of
receipt. All communications shall be sent:
(a) To
Indemnitee, at the address set forth below the signature of Indemnitee to this
Agreement.
(b) To the
Company, at:
Xxxxxxx
Furniture Company
0000
Xxxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxx
Executive Vice President –
Finance
and
Administration
Telephone: (000)
000-0000
Fax: (000)
000-0000
(c) With
copies to:
McGuireWoods
LLP
000 Xxxx
Xxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxxx
Telephone: (000)
000-0000
Fax: (000)
000-0000
or to
such other address as may have been furnished by a party hereto to the other
parties hereto, by like notice.
17. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by
facsimile signature and in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
18. Headings,
etc. The headings of the sections, paragraphs, and
subparagraphs 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. Unless the context of this Agreement otherwise requires: (i)
words of any gender or neuter shall be deemed to include the neuter and each
other gender; (ii) words using the singular or plural number shall also include
the plural or singular number, respectively; (iii) the word “including” and
words of similar import when used in this Agreement shall mean “including,
without limitation,” unless otherwise specified; and (iv) “or” is not
exclusive.
19. Governing
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. 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 Chancery Court of
the State of Delaware (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 purposes of any action or proceeding arising out of or
in connection with this Agreement, (iii) waive any objection to the laying of
venue of any such action or proceeding in the Delaware Court, and (iv) 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.
[REMAINDER
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
COMPANY:
XXXXXXX
FURNITURE COMPANY, INC.
By: ____________________________
Xxxxxx X.
Xxxxxxxxx
Chairman
[SIGNATURE
PAGE 1 OF 2 TO INDEMNIFICATION AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
INDEMNITEE:
[Name]
[Address]
[SIGNATURE
PAGE 2 OF 2 TO INDEMNIFICATION AGREEMENT]