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EXHIBIT 10-19
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INDEMNIFICATION AGREEMENT
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Agreement, dated June 27, 2001 between Genesee Corporation, a New York
corporation (the "Company"), and Xxxxxx X. Xxxxx (the "Indemnitee").
WHEREAS, highly competent persons are becoming more reluctant to serve
as directors and officers of the Company unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their service to and
activities on behalf of the Company;
WHEREAS, the current impracticability of obtaining adequate insurance
and the uncertainties relating to indemnification have increased the difficulty
of attracting and retaining such persons;
WHEREAS, the Board of Directors of the Company has determined that the
inability to attract and retain such persons is detrimental to the best
interests of the Company's stockholders and that the Company should act to
assure such persons that there will be increased certainty of such protection in
the future;
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve and to
take an additional service for or on behalf of the Company on the condition that
the Indemnitee be so indemnified;
NOW, THEREFORE, the Company and the Indemnitee hereby agree as follows:
ARTICLE I - DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings given:
1.1 "Board" shall mean the Board of Directors of the Company.
1.2 A "Change in Control" shall be deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than (a) the
Company or (b) any corporation owned, directly or
indirectly, by the Company or the stockholders of the
Company in substantially the same proportions as
their ownership of stock of the Company), is or
becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing
20% or more of the combined voting power of the
Company's then outstanding securities (provided,
however, that none of the direct descendants of Xxxx
X. Xxxxx, Xx., the trust established under the will
of Xxxxx X. Xxxxx and any trustee thereunder shall be
a "person" for purposes of this Section 1.2);
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(ii) during any period of two consecutive years, there is
elected 20% or more of the members of the Board of
Directors of Company without the approval of the
nomination of such members by a majority of that
portion of the Board consisting of members who were
serving at the beginning of the two-year period;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other
corporation, other than (a) a merger or consolidation
which would result in the voting securities of the
Company outstanding immediately prior thereto
continuing to represent more than 80% of the combined
voting power of the voting securities of the Company,
or such surviving entity, outstanding immediately
after such merger or consolidation; or (b) a merger
or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no "person" (as defined above)
acquires more than 20% of the combined voting power
of the Company's then-outstanding securities; or
(iv) the stockholders of the Company approve an agreement
for the sale or disposition by the Company of all or
substantially all of the Company's assets, including
a sale or disposition of Genesee Brewing Co., Inc. or
its assets.
1.3 "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 the Indemnitee.
1.4 "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, or being or preparing to be a witness in a
Proceeding.
1.5 "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 three years has been, retained to represent (i) the Company or the
Indemnitee in any matter material to either such party 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 any conflict of interest in representing either the
Company or the Indemnitee in an action to determine the Indemnitee's rights
under this Agreement.
1.6 "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
actual, threatened or completed proceeding, whether civil, criminal,
administrative or investigative, other than, one initiated by the Indemnitee.
For purposes of the foregoing sentence, a "Proceeding" shall not be deemed to
have been initiated by the Indemnitee where the Indemnitee seeks pursuant to
ARTICLE VII of this Agreement to enforce the Indemnitee's rights under this
Agreement.
ARTICLE II - SERVICES BY THE INDEMNITEE,
NOTICE OF PROCEEDINGS
2.1 Services. The Indemnitee agrees to continue to serve as a director
and/or officer of the Company. The Indemnitee may at any time and for any reason
resign from such position(s) (subject to any other contractual obligation or any
obligation imposed by operation of law).
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2.2 Notice of Proceeding. The Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document or communication relating
to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder; provided, however, that the failure
by the Indemnitee to give such notice, or any delay in giving such notice, shall
not relieve the Company of its obligations under this Agreement except to the
extent that the Company is actually prejudiced by any such failure or delay.
ARTICLE III - INDEMNIFICATION
3.1 In General. In connection with any Proceeding, whether relating to
events occurring before or after the date hereof, the Company shall indemnify,
and advance Expenses, to the Indemnitee as provided in this Agreement and to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may thereafter from time to time permit.
3.2 Proceeding Other Than Proceedings by or in the Right of the
Company. The Indemnitee shall be entitled to the rights of indemnification
provided in this Section if, because the Indemnitee is or was a director or
officer of the Company, the Indemnitee is, or is threatened to be made, a party
to any Proceeding, other than a Proceeding by or in the right of the Company.
Subject to SECTION 3.1, the Indemnitee shall be indemnified against Expenses,
judgments, penalties, fines and amounts paid in settlement, actually and
reasonably incurred by the Indemnitee or on the Indemnitee's behalf in
connection with such Proceeding.
3.3 Proceedings by or in the Right of the Company. The Indemnitee shall
be entitled to the rights of indemnification provided in this Section if,
because the Indemnitee is or was a director or officer of the Company, the
Indemnitee is, or is threatened to be made, a party to any Proceeding brought by
or in the right of the Company to procure a judgment in its favor. Subject to
SECTION 3.1, the Indemnitee shall be indemnified against Expenses, judgments,
penalties, fines and amounts paid in settlement, actually and reasonably
incurred by the Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding.
Notwithstanding the foregoing, no such indemnification shall be made in
respect of any claim, issue or matter in such Proceeding as to which the
Indemnitee shall have been adjudged to be liable to the Company if applicable
law prohibits such indemnification or if such claim, issue or matter involves an
accounting of profits by the Indemnitee to the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended
("Section 16").
3.4 Indemnification of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee is, because the Indemnitee is or was a director or officer of the
Company, a party to and is successful, on the merits or otherwise, in any
Proceeding, the Indemnitee shall be indemnified to the fullest extent permitted
by law, against all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred by the Indemnitee or on the
Indemnitee's behalf in connection therewith. If the 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 the Indemnitee to the fullest extent permitted by
law, against all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred by the Indemnitee or on the
Indemnitee's 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.
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3.5 Indemnification for Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee is, because
the Indemnitee is or was a director or officer of the Company, a witness in any
Proceeding, the Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by the Indemnitee or on the Indemnitee's behalf in
connection therewith.
ARTICLE IV - ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in ARTICLE V, the Company shall
advance all reasonable Expenses which, because the Indemnitee is or was a
director or officer of the Company, were incurred by or on behalf of the
Indemnitee in connection with any Proceeding, within 10 days after the receipt
by the Company of a statement or statements from the Indemnitee requesting such
advance or advances, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
and shall include or be preceded or accompanied by an undertaking by or on
behalf of the Indemnitee to repay any Expenses if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified against such
Expenses. Any advance and undertakings to repay pursuant to this ARTICLE IV
shall be unsecured and interest free.
ARTICLE V - PROCEDURES FOR DETERMINATION OF ENTITLEMENT
5.1 Initial Request. To obtain indemnification under this Agreement,
the Indemnitee shall submit to the Company a written request, including such
documentation and information as is reasonably available to the Indemnitee and
is reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification. The Secretary of the Company shall promptly
advise the Board in writing that the Indemnitee has requested indemnification.
5.2 Method of Determination. A determination (if required by applicable
law) with respect to the Indemnitee's entitlement to indemnification shall be
made as follows:
(a) if a Change of Control has occurred, unless the
Indemnitee shall request in writing that such
determination be made in accordance with clause (b)
of this Section, the determination shall be made by
Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered to the
Indemnitee.
(b) if a Change of Control has not occurred, the
determination shall be made by the Board by a
majority vote of a quorum consisting of Disinterested
Directors. In the event that a quorum of the Board
consisting of Disinterested Directors is not
obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, the determination
shall be made by Independent Counsel in a written
opinion to the Board, a copy of which shall be
delivered to the Indemnitee.
5.3 Selection, Payment and Discharge of Independent Counsel. In the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to the preceding Section, the Independent Counsel
shall be selected, paid, and discharged in the following manner:
(a) If a Change of Control has not occurred, the
Independent Counsel shall be selected by the Board,
and the Company shall give written notice to the
Indemnitee advising the Indemnitee of the identity of
the Independent Counsel so selected.
(b) If a Change of Control has occurred, the Independent
Counsel shall be selected by the Indemnitee (unless
the Indemnitee shall request that such selection be
made by the Board, in which event clause (a) of this
Section shall apply), and the Indemnitee shall give
written notice to the Company advising it of the
identity of the Independent Counsel so selected.
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(c) Following the initial selection described in clauses
(a) and (b) of this Section, the Indemnitee or the
Company, as the case may be, may, within seven days
after such written notice of selection has been
given, deliver to the other party a written objection
to such selection. 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 1.5 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 or firm so selected shall act as Independent
Counsel. If such written objection is made, the
Independent Counsel so selected may not serve as
Independent Counsel unless and until a court has
determined that such objection is without merit.
(d) Either the Company or the Indemnitee may petition the
Supreme Court of the State of New York or other court
of competent jurisdiction if the parties have been
unable to agree on the selection of Independent
Counsel within 20 days after submission by the
Indemnitee of a written request for indemnification
pursuant to SECTION 5.1 of this Agreement. Such
petition may request a determination whether an
objection to the party's selection is without merit
and/or seek the appointment as Independent Counsel of
a person or firm selected by the court or by such
other person as the court shall designate. A person
or firm so appointed shall act as Independent Counsel
under SECTION 5.2 of this Agreement.
(e) The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such
Independent Counsel in connection with its actions
pursuant to this Agreement, and the Company shall pay
all reasonable fees and expenses incident to the
procedures of this Section, regardless of the manner
in which such Independent Counsel was selected or
appointed.
(f) Upon the due commencement of any judicial proceeding
or arbitration pursuant to SECTION 7.2 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).
5.4 Cooperation. The Indemnitee shall cooperate with the person, persons
or entity making the determination with respect to the Indemnitee's entitlement
to indemnification under this Agreement, 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 the Indemnitee and reasonably necessary to such
determination. Any reasonable costs or expenses (including attorneys' fees and
disbursements) incurred by the 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 the Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold the
Indemnitee harmless therefrom.
5.5 Payment. If it is determined that the Indemnitee is entitled to
indemnification, payment to the Indemnitee shall be made within ten days after
such determination.
ARTICLE VI - PRESUMPTIONS AND EFFECT OF
CERTAIN PROCEEDINGS
6.1 Burden of Proof. In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or entity making
such determination shall presume that the Indemnitee is entitled to
indemnification under this Agreement if the Indemnitee has submitted a request
for indemnification in accordance with SECTION 5.1 of this Agreement, and the
Company shall have the burden of proof to overcome
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that presumption in connection with the making by any person, persons or entity
of any determination contrary to that presumption.
6.2 Effect of Other Proceedings. 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) of itself adversely
affect the right of the Indemnitee to indemnification or create a presumption
that the Indemnitee did not meet any applicable standard of conduct.
6.3 Actions of Others. The knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Company shall not be imputed
to the Indemnitee for purposes of determining the right to indemnification under
this Agreement.
ARTICLE VII - REMEDIES OF THE INDEMNITEE
7.1 Application. This ARTICLE VII shall apply in the event of a Dispute.
For purposes of this Article, "Dispute", shall mean any of the following events:
(a) a determination is made pursuant to ARTICLE V of this
Agreement that the Indemnitee is not entitled to
indemnification under this Agreement;
(b) advance of Expenses is not timely made pursuant to
ARTICLE IV of this Agreement;
(c) the determination of entitlement to be made pursuant
to SECTION 5.2 of this Agreement has not been made
within 30 days after receipt by the Company of the
request for indemnification;
(d) payment of indemnification is not made pursuant to
SECTION 3.5 of this Agreement within 20 days after
receipt by the Company of a written request therefor;
or
(e) payment of indemnification is not made within 20 days
after a determination has been made that the
Indemnitee is entitled to indemnification pursuant to
ARTICLE V of this Agreement.
7.2 Adjudication. In the event of a Dispute, the Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of New York, or
in any other court of competent jurisdiction, of the Indemnitee's entitlement to
such indemnification or advancement of Expenses. Alternatively, the Indemnitee,
at the Indemnitee's option, may seek an award in arbitration to be conducted by
a single arbitrator pursuant to the rules of the American Arbitration
Association. The Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on
which the Indemnitee first has the right to commence such proceeding pursuant to
this Section. The Company shall not oppose the Indemnitee's right to seek any
such adjudication or award in arbitration.
7.3 De Novo Review. In the event that a determination shall have been
made pursuant to ARTICLE V of this Agreement that the Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration commenced pursuant to
this ARTICLE VII shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and the Indemnitee shall not be prejudiced by reason
of that adverse determination or by reason of the absence of a determination
pursuant to ARTICLE V. In any such proceeding or arbitration, the Company shall
have the burden of proving that the Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
7.4 Company Bound. If a determination shall have been made or deemed to
have been made pursuant to ARTICLE V of this Agreement that the Indemnitee is
entitled to indemnification, the Company shall be bound
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by such determination in any judicial proceeding or arbitration absent (i) a
misstatement by the Indemnitee of a material fact, or an omission of a material
fact necessary to make the Indemnitee's statement not materially misleading, in
connection with the request for indemnification or (ii) a prohibition of such
indemnification under applicable law.
7.5 Procedures Valid. The Company shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this ARTICLE VII
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.
7.6 Expenses of Adjudication. In the event that the Indemnitee,
pursuant to this ARTICLE VII, seeks a judicial adjudication of, or an award in
arbitration to enforce the Indemnitee's rights under, or to recover damages for
breach of, this Agreement, the Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all expenses
(of the types described in the definition of Expenses in SECTION 1.4 of this
Agreement) actually and reasonably incurred by the Indemnitee in such
adjudication or arbitration, but only if the Indemnitee prevails therein. If it
shall be determined in such adjudication or arbitration that the Indemnitee is
entitled to receive part, but not all of the indemnification or advancement of
expenses sought, the expenses incurred by the Indemnitee in connection with such
adjudication or arbitration shall be appropriately prorated.
ARTICLE VIII - NON-EXCLUSIVITY, INSURANCE, SUBROGATION
8.1 Non-Exclusivity. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which the Indemnitee may at any time be
entitled under applicable law, the Certificate of Incorporation or By-Laws of
the Company, any agreement, a vote of shareholders or a resolution of directors,
or otherwise. No amendment, alteration, rescission or replacement of this
Agreement or any provision hereof shall be effective as to the Indemnitee with
respect to any action taken or omitted by the Indemnitee as a director of the
Company prior to such amendment, alteration, rescission or replacement.
8.2 Insurance. The Company may maintain an insurance policy or policies
against liability arising out of this Agreement or otherwise.
8.3 Subrogation. 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 the 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.
8.4 No Duplicative Payment. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that the Indemnitee has otherwise actually unconditionally
received such payment under any insurance policy, contract, agreement or
otherwise.
ARTICLE IX - GENERAL PROVISIONS
9.1 Binding Effect. This Agreement shall be binding upon the Company
and its successors and assigns, shall inure to the benefit of the Indemnitee and
the Indemnitee's heirs, executors and administrators and shall continue in
effect regardless of whether the Indemnitee continues to serve as a director of
the Company.
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9.2 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
(b) 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 by the provision held
invalid, illegal or unenforceable.
9.3 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.
9.4 Headings. 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.
9.5 Modification and Waiver. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by both of the
parties hereto. 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.
9.6 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the day on which it is so mailed:
If to the Indemnitee:
Xxxxxx X. Xxxxx
0000 Xxxxxxxx-Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
If to the Company:
Attn: The President
600 Powers Building
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
or to such other address as may have been furnished to the Indemnitee by the
Company or to the Company by the Indemnitee, as the case may be.
9.7 Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York without application of the conflict of laws principles
thereof.
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9.8 Entire Agreement. This Agreement ,constitutes the entire agreement
and understanding between the parties hereto in reference to all the matters
herein agreed upon. This Agreement replaces all prior indemnification agreements
or understandings of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
COMPANY:
GENESEE CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
INDEMNITEE:
/s/ Xxxxxx X. Xxxxx
-------------------------------------------
Xxxxxx X. Xxxxx
