INDEMNIFICATION AGREEMENT
Exhibit 10.3
This Indemnification Agreement is made as of this 3rd day of June, 2005, by and between
OAKLEY, INC., a Washington corporation (the “Company”), and
XXXXXXX X. XXXXXXXX (“Indemnified Party”).
WHEREAS, as of the date hereof, the Company has provisions for indemnification of its
directors and officers in Article V of its Articles of Incorporation (the “Articles of
Incorporation”) and Article VII of its Amended and Restated Bylaws (the “Bylaws”) which provide for
indemnification of the Company’s directors and officers to the fullest extent permitted by law;
WHEREAS, the indemnification provisions in the Bylaws provide that the right of
indemnification is a contract right of the covered parties;
WHEREAS, the Bylaws provide that the Company may maintain, at its expense, insurance to
protect itself and any of its directors and officers against liability asserted against such
persons incurred in such capacity whether or not the Company has the power to indemnify such
persons against the same liability under Section 23B.08.510 or .520 of the Act (as defined below)
or a successor statute;
WHEREAS, the Company and the Indemnified Party recognize that the officers and directors of
publicly owned companies are frequently joined as parties to Proceedings (as defined below) against
their respective companies as a result of their serving in such capacity; and
WHEREAS, in order to induce Indemnified Party to serve or continue to serve the Company, the
Company wishes to confirm the contract indemnification rights provided in the Bylaws and agrees to
provide Indemnified Party with the benefits contemplated by this Agreement and to supplement the
provisions of this Agreement with directors’ and officers’ liability insurance maintained by the
Company.
NOW, THEREFORE, in consideration of the promises, conditions, representations and warranties
set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and Indemnified Party hereby agree as follows:
1. Definitions. The following terms, as used herein, shall have the following respective
meanings; other capitalized terms used and not specifically defined in this Section 1 shall have
the meanings provided elsewhere in the Agreement and in the Bylaws:
(a) “Act” means the Washington Business Corporation Act RCW Title 23B, as amended from time to
time.
(b) “Adjudication” shall refer to a final, non-appealable decision by a court of competent
jurisdiction. “Adjudged” shall have a correlative meaning.
(c) “Covered Amount” means any Loss, Fine and Expense, to the extent such Loss, Fine or
Expense, in type or amount, is not insured under the D&O Insurance maintained by the Company from
time to time.
(d) “Covered Act” means any act or omission of the Indemnified Party in his or her capacity as
a director, officer, employee, agent, fiduciary or consultant of the Company alleged by any
claimant or any claim against Indemnified Party by reason of him or her serving in such a capacity,
or by reason of Indemnified Party serving, at the request of the Company, in such capacity with
another corporation, partnership, employee benefit plan, trust or other enterprise, in all cases,
whether such alleged act or omission occurred before or after the date of this Agreement.
(e) “D&O Insurance” means the liability insurance which the Company may purchase on behalf of
Indemnified Party against liability asserted against or incurred by Indemnified Party in connection
with claims arising from Covered Acts, whether or not the Company would have the power to indemnify
the individual against the same liability under Section 23B.08.510 or 23B.08.520 of the Act.
(f) “Determination” means a determination, based on the facts known at the time, made:
(i) by the Board of Directors by majority vote of a quorum consisting of directors not at the
time parties to the Proceeding;
(ii) if a quorum cannot be obtained under clause (i), by majority vote of a duly designated
committee of the Board of Directors, in the manner provided by Section 23B.08.550(2)(b) of the Act;
(iii) by special legal counsel, selected in the manner provided by Section 23B.08.550(2)(c) of
the Act, in a written opinion; or
(iv) by a majority of the shareholders of the Company, excluding shares owned or voted under
the control of directors who are at the time parties to the Proceeding.
“Determined” shall have a correlative meaning.
(g) “Excluded Claim” means any payment for Losses, Fines or Expenses in connection with any
claim relating to or arising out of:
(i) acts or omissions of the Indemnified Party Adjudged to be intentional misconduct or a
knowing violation of law;
(ii) conduct of the Indemnified Party Adjudged to be in violation of Section 23B.08.310 of the
Act; or
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(iii) any transaction with respect to which it was Adjudged that such Indemnified Party
personally received a benefit in money, property, or services to which the Indemnified Party was
not legally entitled.
(h) “Expenses” means any reasonable expenses incurred by Indemnified Party as a result of a
claim or claims made against Indemnified Party from Covered Acts, including, without limitation,
reasonable counsel fees and costs of investigative, judicial or administrative proceedings or
appeals.
(i) “Fines” means any fine or penalty including, with respect to an employee benefit plan, any
excise tax assessed with respect thereto.
(j) “Losses” means amounts, as determined by an Adjudication, which the Indemnified Party is
legally obligated to pay as a result of a claim or claims arising from Covered Acts, including,
without limitation, Fines, damages and judgments and sums paid in settlement of such claim or
claims.
(k) “Proceeding” means any threatened, pending or completed action, suit, proceeding or
investigation, whether civil, criminal or administrative whether formal or informal.
2. Maintenance of D&O Insurance.
(a) The Company hereby covenants and agrees that, so long as Indemnified Party shall continue
to serve as a director or executive officer of the Company and thereafter, for so long as
Indemnified Party shall be subject to any possible Proceeding arising from any Covered Act, the
Company, subject to Section 2(c), shall maintain in full force and effect D&O Insurance.
(b) In all policies of D&O Insurance, Indemnified Party shall be named as an insured in such a
manner as to provide Indemnified Party the same rights and benefits, and the same limitations, as
are accorded to the Company’s directors or executive officers most favorably insured by such
policy.
(c) The Company shall have no obligation to maintain D&O Insurance if the Company, by majority
vote of the Board of Directors, determines in good faith that such insurance is not reasonably
available, the premium costs for such insurance are disproportionate to the amount of coverage
provided, or the coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit; provided, however, that such decision shall not adversely
affect coverage of D&O Insurance for periods prior to such decision without the unanimous vote of
all directors.
3. Indemnification. The Company shall indemnify Indemnified Party up to the Covered Amount
and shall advance any and all Expenses to Indemnified Party in connection with any Proceeding or
any Covered Act, subject, in each case, to the further
provisions of this Agreement. This Agreement is made pursuant to and to effectuate the
indemnification provisions set forth in Article V of the Articles of Incorporation and Article VII
of the Bylaws. Notwithstanding any other provision of this Agreement, the
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Company shall indemnify
Indemnified Party to the extent Indemnified Party is successful, on the merits or otherwise, in the
defense of any Proceeding to which Indemnified Party was a party because of being a director,
officer, employee, agent, fiduciary or consultant of the Company, against reasonable Expenses
incurred by Indemnified Party in connection with the Proceeding.
4. Excluded Coverage. The Company shall have no obligation to indemnify Indemnified Party for
any Losses or Expenses which arise from an Excluded Claim.
5. Indemnification Procedures.
(a) Promptly after receipt by Indemnified Party of notice of the commencement of or the threat
of commencement of any Proceeding, Indemnified Party shall, if indemnification or advancement of
Expenses with respect thereto may be sought from the Company under this Agreement, notify the
Company of the commencement or the threat of commencement thereof.
(b) If, at the time of the receipt of such notice, the Company has D&O Insurance in effect,
the Company shall give prompt notice of the commencement or the threat of commencement of such
Proceeding to the appropriate insurers in accordance with the procedures set forth in the
respective policies in favor of Indemnified Party. The Company shall thereafter take all necessary
or desirable action to cause such insurers to, in accordance with the terms of such policies: (i)
advance, to the extent permitted by law, any and all Expenses to Indemnified Party, (ii) pay, on
behalf of Indemnified Party, all amounts (including, without limitation, Losses and Expenses)
payable as a result of, or in connection with, such Proceeding and (iii) reimburse Indemnified
Party for all amounts (including, without limitation, Losses and Expenses) paid by Indemnified
Party as a result of, or in connection with, such Proceeding.
(c) To the extent the Company does not, at the time of the commencement of or the threat of
commencement of such Proceeding, have applicable D&O Insurance, or if a Determination is made that
any Loss, Fine or Expense of the Indemnified Party arising out of such Proceeding will not be
payable under the D&O Insurance then in effect, the Company shall be obligated to pay the Covered
Amount with respect to any Proceeding and to provide counsel satisfactory to Indemnified Party upon
the delivery to Indemnified Party of written notice of the Company’s election to do so. After
delivery of such notice, the Company will not be liable to Indemnified Party under this Agreement
for any legal or other Expenses subsequently incurred by the Indemnified Party in connection with
such defense other than the reasonable Expenses of investigation of Indemnified Party;
provided, that Indemnified Party shall have the right to employ his or her own counsel in
connection with the defense of any such Proceeding, the fees and expenses of such counsel incurred
after delivery of notice from the Company of its assumption of such defense to be at the
Indemnified Party’s sole expense. Notwithstanding the foregoing, if (i) the employment of counsel
by Indemnified Party
has been previously authorized by the Company, (ii) Indemnified Party shall have been advised
by counsel that there may be a conflict of interest between the Company and Indemnified Party in
the conduct of any such defense or (iii) the Company shall not, in
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fact, have employed counsel to
assume the defense of such Proceeding, in each such case, the fees and expenses of such counsel
retained by Indemnified Party shall be at the expense of the Company. In the event Indemnified
Party is entitled to employ counsel at the Company’s expense pursuant to the terms of this
Paragraph 5(c), and if so requested in writing by Indemnified Party, the Company shall advance any
and all Expenses to Indemnified Party to the extent permitted by law.
(d) All payments on account of the Company’s indemnification or advancement obligations under
Paragraph 5(b) of this Agreement shall be made within sixty (60) days of Indemnified Party’s
written request therefor unless a Determination is made that the claims giving rise to Indemnified
Party’s request are Excluded Claims or otherwise not payable under this Agreement. All payments on
account of the Company’s obligations under Paragraph 5(c) of this Agreement shall be made within 20
days of Indemnified Party’s written request therefor, subject to Paragraph 5(e) of this Agreement.
(e) In the event that (i) a Determination is made that the claims giving rise to Indemnified
Party’s request are Excluded Claims or otherwise not payable under this Agreement or (ii) it is
Adjudged that the Indemnified Party is not entitled to be indemnified by the Company for Losses or
Expenses under this Agreement, the Articles of Incorporation, the Bylaws or the Act, the Company
shall have no obligation to indemnify, or advance any Expenses to Indemnified Party. Further, in
either case, Indemnified Party agrees that he or she will reimburse the Company for all Losses and
Expenses paid by the Company and all Expenses advanced by the Company in connection with such
Proceeding against Indemnified Party.
6. Settlement. The Company shall have no obligation to indemnify Indemnified Party under this
Agreement for any amounts paid in settlement of any Proceeding effected without the Company’s prior
written consent. The Company shall not settle any claim in any manner which would impose any loss
or expense on Indemnified Party without Indemnified Party’s prior written consent, unless the
Company provides a written undertaking to the Indemnified Party to pay for such loss or expense on
behalf of the Indemnified Party. Neither the Company nor Indemnified Party shall unreasonably
withhold their consent to any proposed settlement.
7. Rights Not Exclusive. The rights provided hereunder shall be in addition to any other
rights to which Indemnified Party may be entitled under the Articles of Incorporation, the Bylaws,
the Act, any agreement or vote of shareholders or directors or otherwise, both as to action in
Indemnified Party’s official capacity and as to action in any other capacity, and such rights shall
continue after Indemnified Party ceases to serve the Company as a director or officer.
8. Enforcement.
(a) Indemnified Party’s rights to indemnification or advancement of Expenses hereunder shall
be enforceable by Indemnified Party notwithstanding any adverse Determination. In any such action,
if a prior adverse Determination has been made, the burden of proving that indemnification or
advancement of Expenses is required
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under this Agreement, the Articles of Incorporation, the Bylaws
or the Act shall be on the Indemnified Party. The Company shall have the burden of proving that
indemnification or advancement of Expenses is not required under this Agreement if no prior adverse
Determination shall have been made.
(b) In the event that any action is instituted by Indemnified Party under this Agreement, or
to enforce or interpret any of the terms of this Agreement, Indemnified Party shall be entitled to
be paid all court costs and expenses, including reasonable counsel fees, incurred by Indemnified
Party with respect to such action, unless the court determines that each of the material assertions
made by Indemnified Party as a basis for such action were not made in good faith or were frivolous.
9. No Presumptions. For purposes of this Agreement, the termination of any Proceeding by
judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea
of nolo contendre, or its equivalent, shall not create a presumption that the Indemnified Party did
not meet any particular standard of conduct or have any particular belief or that a court has
determined that indemnification or advancement of Expenses by the Company is not permitted
hereunder or by applicable law. In addition, neither the absence of a Determination as to whether
Indemnified Party has met any particular standard of conduct or had any particular belief or the
existence of a Determination that Indemnified Party has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnified Party to secure an
Adjudication that Indemnified Party should be indemnified or advanced or reimbursed Expenses
hereunder or under applicable law, shall be a defense to Indemnified Party’s claim or create a
presumption that Indemnified Party has not met any particular standard of conduct or did not have
any particular belief.
10. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnified Party, who
shall execute all papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the Company to effectively
bring suit to enforce such rights.
11. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment in connection with any Proceeding against Indemnified Party to the extent Indemnified
Party has otherwise actually received payment (under any D&O Insurance , the Articles of
Incorporation, the Bylaws, the Act or otherwise) of the amounts which may be paid hereunder.
12. Severability. In the event that any provision of this Agreement is determined by a court
of competent jurisdiction to require the Company to do or to fail to do an act which is in
violation of the Articles of Incorporation, the Bylaws or the Act or other applicable law, such
provision shall be limited or modified in its application to the
minimum extent necessary to avoid such violation, and, as so limited or modified, such
provision and the remainder of this Agreement shall be enforceable in accordance with the
respective terms.
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13. Choice of Law. This Agreement shall be governed by, construed and enforced in accordance
with the laws of the State of Washington, without reference to conflicts of law principles therein.
14. Successors and Assigns. This Agreement shall be (i) binding upon all successors and
assigns of the Company (including any transferee of all or substantially all of the Company’s
assets and any successor by merger or otherwise by operation of law) and (ii) binding on and inure
to the benefit of the heirs, personal representatives and estate of Indemnified Party. Indemnified
Party may not assign this Agreement or any of Indemnified Party’s rights hereunder without the
prior written consent of the Company.
15. Amendment. No amendment, modification, termination or cancellation of this Agreement
shall be effective unless made in a writing signed by each of the parties hereto.
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IN WITNESS WHEREOF, the Company and Indemnified Party have executed this Indemnification
Agreement as of the date first above written.
| OAKLEY, INC. |
||||
| By: | /s/ Link Xxxxxxx | |||
| Name: Link Xxxxxxx | ||||
| Title: Chief Operating Officer | ||||
| /s/ Colombe M. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx, Indemnified Party | ||||
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