EXHIBIT 10(a)
INDEMNIFICATION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the ____ day
of ____________, 2004, by and between The Bombay Company, Inc., a Delaware
corporation (the "Company"), and _________________________ ("Indemnitee").
RECITALS:
WHEREAS, highly competent persons have become more reluctant to serve
publicly-held corporations as directors or officers or in other capacities
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 corporation;
this is because such persons in service to corporations are being increasingly
subjected to expensive and time-consuming litigation relating to, among other
things, claims that traditionally would have been brought only against the
corporation or business enterprise itself; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that, to attract and retain qualified individuals, the Company will
attempt to maintain on an ongoing basis, at its sole expense, liability
insurance to protect persons serving the Company and its subsidiaries from
certain liabilities; and
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining 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; and
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 so
that they will serve or continue to serve the Company free from undue concern
that they will not be so indemnified; and
WHEREAS, this Agreement is separate from and in addition to the Bylaws of
the Company and any resolutions adopted pursuant thereto, and shall not be
deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS, each of Section 145 of the General Corporation Law of the State
of Delaware ("DGCL") and the Bylaws of the Company is nonexclusive, and
therefore contemplates that contracts may be entered into with respect to
indemnification of directors, officers and employees; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee hereby covenant and agree as
follows:
1. SERVICES BY INDEMNITEE. Indemnitee agrees to continue to serve as
a director or officer of the Company, provided that Indemnitee may
at any time and for any reason resign from such position and the
Company shall have no obligation under this Agreement to continue
Indemnitee in such position (subject, in the case of any
resignation by Indemnitee or termination by the Company, to any
rights and obligations they may have under contracts other than
this Agreement or under applicable law). This Agreement shall not
be deemed an employment contract between the Company (or any of its
subsidiaries) and Indemnitee. This Agreement shall continue in
force after Indemnitee has ceased to serve as a director or officer
of the Company.
2. INDEMNIFICATION-GENERAL. The Company shall indemnify, and advance
Expenses (as hereinafter defined) to, Indemnitee (i) as provided in
this Agreement, and (ii) to the fullest extent permitted by
applicable law in effect on the date hereof and as amended from
time to time (but in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than were permitted prior to the amendment).
The rights of Indemnitee provided under the preceding sentence
shall include, but shall not be limited to, the rights set forth in
the other Sections of this Agreement.
3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. Indemnitee shall be indemnified under this Section 3 if,
by reason of Indemnitee's Corporate Status (as hereinafter defined)
or by reason of any act done or not done by Indemnitee by reason of
or on account of Indemnitee's Corporate Status, Indemnitee is, or
is threatened to be made, a party to or a participant in any
threatened, pending, or completed Proceeding (as hereinafter
defined), other than a Proceeding by or in the right of the
Company. Pursuant to this Section 3, Indemnitee shall be
indemnified against all Expenses, judgments, penalties, fines,
liabilities and amounts paid in settlement actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection with
such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in Good Faith.
4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee shall be
indemnified under this Section 4 if, by reason of Indemnitee's
Corporate Status or by reason of any act done or not done by
Indemnitee by reason of or on account of Indemnitee's Corporate
Status, Indemnitee is, or is threatened to be made, a party to or a
participant in any threatened, pending or completed Proceeding
brought 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 Indemnitee or on Indemnitee's behalf in connection with such
Proceeding if Indemnitee acted in Good Faith; provided that if
applicable law 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, or the court in which such
Proceeding shall have been brought or is pending, shall determine
that such indemnification may be made.
5. 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 Indemnitee's
Corporate Status or by reason of any act done or not done by
Indemnitee by reason of or on account of Indemnitee's Corporate
Status, a party to (or a participant in) and is successful, on the
merits or otherwise, in any Proceeding (including dismissal without
prejudice), Indemnitee shall be indemnified to the maximum extent
permitted by law against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's 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 Indemnitee or on
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.
6. INDEMNIFICATION FOR OTHER EXPENSES; PER DIEM WHEN NO LONGER
DIRECTOR, OFFICER OR EMPLOYEE. Notwithstanding any other provision
of this Agreement, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred or suffered by Indemnitee
or on Indemnitee's behalf if Indemnitee is, by reason of
Indemnitee's Corporate Status, a witness or otherwise involved in
any manner in any threatened, pending or completed Proceeding to
which Indemnitee neither is, nor is threatened to be made, a party;
provided that Indemnitee shall not otherwise be compensated or
reimbursed for the value of Indemnitee's time spent as such unless
(i) Indemnitee no longer serves as an officer, director or employee
of the Company and (ii) Indemnitee has spent more than 10 business
days as a witness or other non-party participant in such Proceeding
by reason of Indemnitee's prior Corporate Status. After such 10th
business day, the Indemnitee shall be entitled to receive a per
diem rate of $1,500 for each additional business day that
Indemnitee is required to spend as a non-party participant in such
Proceeding. If Indemnitee is, or is threatened to be made, a party
to such Proceeding, then the provisions of Section 3, 4 or 5, as
appropriate, shall apply in accordance with the terms thereof.
7. ADVANCEMENT OF EXPENSES. Notwithstanding any provision of this
Agreement to the contrary, the Company shall advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding referred to in Section 3, 4, 5 or 6 within 10 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. Indemnitee hereby undertakes to repay any
Expenses advanced if it shall ultimately be determined by final
judgment of a court of competent jurisdiction that Indemnitee is
not entitled to be indemnified against such Expenses. Any advances
and undertakings to repay pursuant to this Section 7 shall be
unsecured and interest free. Advances shall include any and all
reasonable Expenses incurred by Indemnitee pursuing an action to
enforce this Agreement, including Indemnitee's right of
advancement, and Expenses incurred in preparing and forwarding
statements to the Company to support the advances claimed;
provided, that the Company shall only be obligated to advance
Expenses incurred by Indemnitee in pursuing an action to enforce
this Agreement to the extent that the Expenses previously paid by
Indemnitee in such action exceed $10,000. In any legal proceedings
commenced by Indemnitee in a court of competent jurisdiction in the
State of Delaware to secure a determination that Indemnitee should
be indemnified under applicable law, or as provided in this
Agreement, any determination made by the Reviewing Party that
Indemnitee would not be permitted to be indemnified under
applicable law or under this Agreement shall not be binding.
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(A)To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to such indemnification. 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)The person, persons or entity (the "Reviewing Party") who shall
determine whether Indemnitee is entitled to indemnification in the first
instance shall be (i) the Board, acting by a majority vote of
Disinterested Directors (as hereinafter defined), whether or not such
majority constitutes a quorum of the Board, (ii) a committee of
Disinterested Directors designated by a majority vote of the
Disinterested Directors, whether or not such majority constitutes a
quorum, or (iii) if there are no Disinterested Directors, or if
Indemnitee so directs in writing at the time a request for
indemnification is made, an Independent Counsel (as hereinafter defined).
Promptly after making the determination the Reviewing Party shall render
its written opinion to the Company and Indemnitee as to whether and to
what extent Indemnitee should be permitted to be indemnified under this
Agreement. If the Reviewing Party determines that Indemnitee is entitled
to indemnification, payment shall be made by the Company within 10 days
after such determination. Indemnitee shall cooperate with the Reviewing
Party with respect to Indemnitee's entitlement to indemnification,
including providing to the Reviewing Party upon reasonable advance
request any documentation or information that is not privileged or
otherwise protected from disclosure and that is reasonably available to
Indemnitee and reasonably necessary to such determination. All
reasonable costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the
Reviewing Party shall be paid 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.
(C)If Indemnitee directs that an Independent Counsel be appointed,
the Independent Counsel shall be selected by the Board, and promptly
following such selection the Company shall give written notice to
Indemnitee advising Indemnitee of the identity of the Independent Counsel
so selected. Within 10 days after such written notice of selection has
been given, Indemnitee may deliver to the Company a written objection to
such selection; provided 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 18, and the
objection shall set forth with particularity the factual basis for such
assertion. Absent a proper and timely objection, the person so selected
shall act as Independent Counsel. If such written objection is so made,
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 45 days after submission
by Indemnitee of a written request for indemnification pursuant to
Section 8(a) that directs the Board to appoint an Independent Counsel,
no Independent Counsel has 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 the appointment of
such person or entity as Independent Counsel as the court shall
designate, and the person with respect to whom all objections are so
resolved or the person so appointed by the court shall then act as
Independent Counsel under this Agreement. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 10(a), the
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
1. PRESUMPTIONS; RELIANCE AND EFFECT OF CERTAIN PROCEEDINGS.
(A)In making a determination with respect to entitlement to
indemnification hereunder, the Reviewing Party shall presume that
Indemnitee is entitled to indemnification under this Agreement if
Indemnitee has submitted a request for indemnification in accordance with
Section 8(a), and the Company shall have the burden of proof to overcome
that presumption by clear and convincing evidence in connection with the
making by any person, persons or firm of any determination contrary to
that presumption. Neither the failure of the Reviewing Party 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 any
determination thereby that Indemnitee has not met such applicable
standard of conduct, shall be a defense or admissible as evidence in any
action for any purpose or create a presumption that Indemnitee has not
acted in Good Faith or met any other applicable standard of conduct.
(B)If the Reviewing Party shall not have made a determination
within 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, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided that such 60-day period may be extended for a
reasonable time, not to exceed an additional 30 days, if the Reviewing
Party in good faith requests in writing such additional time for the
obtaining or evaluating of documentation and/or information relating
thereto.
(C)The termination of any Proceeding or of any claim, issue or
matter therein , by judgment, order, settlement (whether with or without
court approval) 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 Indemnitee to
indemnification or create a presumption that (i) Indemnitee did not act
in Good Faith or failed to meet any other applicable standard of conduct,
or (ii) a court has determined that indemnification is not permitted
under applicable law.
(D)The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
1. REMEDIES OF INDEMNITEE.
(A)If (i) a determination is made pursuant to Section 8 that
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 7, (iii)
no determination of entitlement to indemnification shall have been made
pursuant to Section 8(b) within 90 days after receipt by the Company of
the request for indemnification, (iv) payment of indemnification is not
made pursuant to Section 5, Section 6, the last sentence of Section
8(b) or the last sentence of Section 18(j) within 10 days after receipt
by the Company of a written request therefor, or (v) payment of
indemnification pursuant to Section 3 or Section 4 is not made within 10
days after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication by the
Court of Chancery of the State of Delaware of Indemnitee's entitlement to
such indemnification or advancement of Expenses. Alternatively,
Indemnitee, at Indemnitee's 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 10(a);
provided that the foregoing clause shall not apply in respect of a
proceeding brought by Indemnitee to enforce Indemnitee's rights under
Section 5. The Company shall not oppose Indemnitee's right to seek any
such adjudication or award in arbitration.
(B)If a determination shall have been made pursuant to Section 8(b)
that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 10 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.
(C)If a determination shall have been made pursuant to Section 8(b)
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 10, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee's statements not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition
of such indemnification under applicable law.
(D)If Indemnitee, pursuant to this Section 10, seeks a judicial
adjudication of or an award in arbitration to enforce Indemnitee's rights
under, or to recover damages for breach of, this Agreement, 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 18 of this Agreement) actually and
reasonably incurred by Indemnitee in such judicial adjudication or
arbitration unless it shall be finally determined by the court or
arbitrator before which such claim was brought that it was brought in bad
faith. Even if it shall be determined in such judicial adjudication or
arbitration that Indemnitee is entitled to receive part but not all of
the indemnification or advancement of Expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be paid in full.
(E)The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 10 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and hereby stipulates, and shall so stipulate in any such
court or before any such arbitrator, that the Company is bound by all the
provisions of this Agreement.
1. NOTIFICATION AND DEFENSE OF PROCEEDING.
(A)Indemnitee shall promptly 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 that
may be subject to indemnification or advancement of Expenses pursuant to
this Agreement, but subject to the last sentence of Section 11(c), the
omission so to notify the Company will not relieve it from any liability
that it may have to Indemnitee.
(B)In the event Indemnitee notifies the Company of the commencement
of a Proceeding, the Company will be entitled to participate in the
Proceeding at its own expense, and except as otherwise provided below, if
the Company so wishes, it may assume the defense thereof with counsel
reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election to assume the defense of any Proceeding, the
Company will not be liable to Indemnitee under this Agreement or
otherwise for any Expenses subsequently incurred by Indemnitee in
connection with the defense of such Proceeding other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall
have the right to retain Indemnitee's own counsel in such Proceeding, but
Indemnitee shall be obligated to pay all Expenses related thereto
incurred by Indemnitee after notice from the Company of its assumption of
the defense unless: (i) the retention of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee has reasonably determined,
based upon a written opinion of Indemnitee's counsel, that there is a
substantial possibility that a conflict of interest will arise between
Indemnitee and the Company in the defense of the Proceeding, (iii) after
a Change of Control (as hereinafter defined), the retention of counsel by
Indemnitee has been approved by an Independent Counsel, or (iv) the
Company shall not within 60 calendar days have retained counsel
reasonably satisfactory to Indemnitee to assume the defense of such
Proceeding, in each of which cases all Expenses incurred by Indemnitee in
connection with such Proceeding shall be borne by the Company. In the
event separate counsel is retained by Indemnitee pursuant to this Section
11(b), the Company shall cooperate with Indemnitee with respect to the
defense of the Proceeding, including making documents, witnesses and
other reasonable information related to the defense available to
Indemnitee and such separate counsel pursuant to joint-defense agreements
or confidentiality agreements, as appropriate. Notwithstanding any
provision herein to the contrary, the Company shall not be entitled to
assume the defense of any Proceeding brought by or on behalf of the
Company or as to which Indemnitee shall have made the determination
provided for in (ii) above.
(C)The Company shall not be liable to indemnify Indemnitee under
this Agreement or otherwise for any amounts paid in settlement of any
Proceeding effected without the Company's prior written consent; provided
that if a Change of Control has occurred, the Company shall be liable for
indemnification of Indemnitee for amounts paid in settlement if an
Independent Counsel has approved the settlement. The Company shall not
settle any Proceeding in any manner that would impose any penalty,
liability or limitation on Indemnitee without Indemnitee's prior written
consent; provided that the Company shall not be required to obtain the
consent of Indemnitee to the settlement of any Proceeding the Company has
undertaken to defend if the settlement grants Indemnitee a complete and
unqualified release in respect of the potential liability. The Company
shall not be liable for any amount paid by Indemnitee in settlement of
any Proceeding that is not defended by the Company unless the Company has
consented to such settlement. Neither the Company nor Indemnitee will
unreasonably withhold their consent to any proposed settlement. The
Company shall have no obligation to indemnify Indemnitee under this
Agreement with regard to any judicial award issued in a Proceeding, or
any related Expenses of Indemnitee, if the Company was not given a
reasonable and timely opportunity, at its expense, to participate in the
defense of such Proceeding, except to the extent the Company was not
materially prejudiced thereby.
1. NONEXCLUSIVITY; INSURANCE; SUBROGATION.
(A)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 Indemnitee may at any time be entitled under
applicable law, the Company's Certificate of Incorporation, the Company's
Bylaws, any other agreement, any vote of stockholders, any resolution of
the Board, 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 Indemnitee's Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in the DGCL
or the manner in which the DGCL is judicially construed permits greater
indemnification or advancement of Expenses than would be afforded
currently under the Company's Certificate of Incorporation, Bylaws and
this Agreement, it is the agreement and 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 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)The Company shall use reasonable best efforts to provide
directors' and officers' liability insurance coverage for the benefit of
Indemnitee and Indemnitee's estate at all times while Indemnitee
continues to serve as a director or an executive officer of the Company
on the same terms and in the same amount as the Company then provides for
its other directors and executive officers. Upon the termination of
Indemnitee's service as a director or executive officer of the Company
and for a period thereafter equal to the shorter of (i) six years or (ii)
the expiration of the applicable statute of limitations (the "Post-
Termination Coverage Period"), the Company will use reasonable best
efforts to maintain directors' and officers' liability insurance coverage
for its directors and executive officers in a manner that will continue
to provide coverage for Indemnitee's acts and omissions during
Indemnitee's service as a director or executive officer of the Company.
Notwithstanding the foregoing sentences of this Section 12(b), from and
after the occurrence of a Change of Control, the Company shall be
obligated to use best efforts to maintain directors' and officers'
liability insurance coverage while Indemnitee continues to serve as a
director or an executive officer of the Company and during the Post-
Termination Coverage Period on terms and in amounts substantially similar
to those maintained by the Company immediately prior to the Change of
Control.
(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 documents required and take
all actions 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 (or for which advancement is
provided hereunder) hereunder if and to the extent that Indemnitee has
already received payment of such amounts under any insurance policy,
contract, agreement or otherwise.
(E)The Company's obligation to indemnify or advance Expenses
hereunder to Indemnitee due to the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or agent
of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise shall be reduced by any amount
Indemnitee has already received as indemnification or advancement of
expenses from such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise.
1. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (i) the expiration of the applicable
limitations periods as to all possible claims in respect of which
Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder upon commencement of a related Proceeding, or
(ii) the final termination of any Proceeding then pending in
respect of which Indemnitee is granted rights of indemnification or
advancement of Expenses hereunder and of any proceeding commenced
by Indemnitee pursuant to Section 10 relating thereto. This
Agreement shall be binding upon the Company and its successors and
assigns and shall inure to the benefit of Indemnitee and
Indemnitee's heirs, executors and administrators.
2. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (i) 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, (ii) 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 (iii) 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.
3. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES.
Notwithstanding any other provision of this Agreement, but subject
to Section 10, Indemnitee shall not be entitled to indemnification
or advancement of Expenses under this Agreement with respect to any
Proceeding brought by Indemnitee, or any claim therein, unless the
bringing of such Proceeding or making of such claim shall have been
approved by the Board.
4. 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 to
evidence the existence of this Agreement.
5. HEADINGS. The headings of the Sections 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.
6. DEFINITIONS. For purposes of this Agreement:
(A)"Affiliate" means with respect to any person or entity, any
other person or entity that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control
with, such person or entity.
(B)"Board" shall have the meaning given such term in the recitals
at the beginning of this Agreement.
(C)"Change of Control" shall mean the occurrence of any of the
following events:
(i) the acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act")) of beneficial ownership of 20% or more of either the then
outstanding shares of common stock of the Company or the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors;
provided that any acquisition by the Company or any of its
subsidiaries, or any corporation with respect to which following
such acquisition, more than 50% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the common stock and voting
securities of the Company immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately
prior to such acquisition, of the then outstanding shares of common
stock of the Company or the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors, as the case may be, shall
not constitute a Change of Control;
(ii) individuals, who, as of August 8, 2003, constituted the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided that any individual
becoming a director subsequent to such date whose election, or
nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest
relating to the election of the directors of the Company (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act); or
(iii) approval by the shareholders of the Company of a
reorganization, merger or consolidation of the Company and the
satisfaction of all conditions precedent to the transaction, in
each case, with respect to which the individuals and entities who
were the respective beneficial owners of the common stock and
voting securities of the Company immediately prior to such
reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own, directly
or indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such reorganization, merger or consolidation, or a
complete liquidation or dissolution of the Company or of the sale
or other disposition of all or substantially all of the assets of
the Company.
(D)"Corporate Status" describes the status of a person who is or
was a director, officer, employee, agent or fiduciary of an Enterprise.
(E)"DGCL" shall have the meaning given such term in the recitals at
the beginning of this Agreement.
(F)"Disinterested Director" means a member of the Board who is not
and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(G)"Enterprise" shall mean the Company and any other corporation,
partnership, limited liability company, joint venture, trust, employee
benefit plan or other entity, enterprise or association of which
Indemnitee is or was serving at the request of the Company as a director,
manager, officer, employee, agent or fiduciary.
(H)"Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, fees of
witnesses other than Indemnitee, travel and lodging expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery
service fees, and all other reasonable 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, including,
subject to the advancement provisions of Section 7 hereof, a Proceeding
brought by Indemnitee to enforce this Agreement. Expenses also shall
include expenses reasonably incurred in connection with any appeal
resulting from any Proceeding, including without limitation, any premium,
security for, and other costs relating to any cost bond, supersedeas
bond, or other appeal bond or its equivalent.
(I)"Good Faith" shall mean Indemnitee having 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, having had no reasonable cause to believe Indemnitee's
conduct was unlawful. For purposes of any determination of Good Faith,
Indemnitee shall be deemed to have acted in Good Faith if Indemnitee's
action is based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to Indemnitee
by a committee of the Board upon which Indemnitee does not serve as to
matters within its designated authority, or the officers, agents or
employees of the Enterprise in the course of their duties, or on the
advice of legal counsel for the Enterprise or on information or records
given or reports made to the Enterprise by an independent certified
public accountant or by an appraiser, financial advisor or other expert
or professional selected with reasonable care by the Enterprise. The
provisions of this Section 18(i) shall not be deemed to be exclusive or
to limit in any way the other circumstances in which Indemnitee may be
deemed to have met the applicable standard of conduct set forth in this
Agreement.
(J)"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 years has been, retained to represent:
(i) the Company or any Affiliate thereof or Indemnitee (other than with
respect to matters concerning Indemnitee's rights under this Agreement,
or the rights 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. The
Company shall promptly pay the reasonable fees and expenses of the
Independent Counsel referred to above and shall 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.
(K)"Post-Termination Coverage Period" shall have the meaning given
in Section 12(b) hereof.
(L)"Proceeding" includes any claim seeking money or other relief,
however made or presented, as well as 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
is or was a director or officer of the Company, by reason of any action
taken by Indemnitee or of any inaction on Indemnitee's part while acting
in a Corporate Status, or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, limited liability company,
joint venture, trust or other enterprise, in each case whether or not
Indemnitee is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification or advancement
of expenses can be provided under this Agreement.
(M)"Reviewing Party" shall have the meaning given such term in
Section 8(b).
(N)References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with
respect to any employee benefit plan; references to "serving at the
request of the Company" shall include any service as a director, officer,
employee or agent of an Enterprise that imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, as participants or beneficiaries; and an
Indemnitee who acted in good faith and in a manner Indemnitee reasonably
believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted
in Good Faith.
1. 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 a Corporate
Status as requested by the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving in a Corporate
Status.
(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.
(C)The right to be indemnified or to receive advancement of
Expenses under this Agreement (i) is a contract right based upon good and
valuable consideration, pursuant to which Indemnitee may xxx, (ii) is and
is intended to be retroactive to the date Indemnitee assumed a Corporate
Status and shall be available as to events occurring prior to the date of
this Agreement, and (iii) shall continue after any rescission or
restrictive modification of this Agreement as to events occurring prior
thereto.
1. 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.
2. 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 and receipted for by the party to
whom the notice or other communication shall have been directed, or
(ii) mailed by certified or registered mail with postage prepaid,
on the third business day after the date on which it is so mailed:
(A)If to Indemnitee, to:
with a copy to:
(B)If to the Company, to:
The Bombay Company, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attention: Corporate Secretary
with a copy to:
or to such other address as may have been furnished to the Company by
Indemnitee or to Indemnitee by the Company, as the case may be.
1. CONTRIBUTION. To the fullest extent permissible under applicable
law, 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, fines, penalties,
excise taxes, 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 rise 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).
2. GOVERNING LAW; SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS. This Agreement and the legal relations between
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 10(a), 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 and 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) agree that service to of their respective addresses
referenced herein, as amended from time to time, is good service of
process, (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 otherwise inconvenient forum.
3. MISCELLANEOUS. All references in this Agreement to Sections shall
be deemed to be references to Sections of this Agreement unless the
context indicates otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
The Bombay Company, Inc.
By:
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Vice President, Secretary and
General Counsel
Indemnitee:
