INDEMNIFICATION AGREEMENT
EXHIBIT 10.3
THIS INDEMNIFICATION AGREEMENT (“Agreement”) is made this 30th day of August, 2010,
by and between Xxx. A. Bank Clothiers, Inc., a Delaware corporation (the “Company”), and Xxxxxxx X.
Xxxxxx (“Indemnitee”).
WHEREAS, at the request of the Company, Indemnitee currently serves as an officer of the
Company and may, therefore, be subjected to claims, suits or proceedings arising as a result of his
service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as such officer, the Company has
agreed to indemnify and to advance expenses and costs incurred by Indemnitee in connection with any
such claims, suits or proceedings, to the maximum extent permitted by law; and
WHEREAS, the parties by this Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions. For purposes of this Agreement:
(a) “Change in Control” means a change in control of the Company occurring after the Effective
Date of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not the
Company is then subject to such reporting requirement; provided, however, that, without limitation,
such a Change in Control shall be deemed to have occurred if, after the Effective Date (i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) 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 15% or more of the combined voting power of all of the
Company’s then-outstanding securities entitled to vote generally in the election of directors
without the prior approval of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person’s attaining such percentage interest; (ii) the Company is a
party to a merger, consolidation, sale of assets, plan of liquidation or other reorganization not
approved by at least two-thirds of the members of the Board of Directors then in office, as a
consequence of which members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors thereafter; or (iii)
at any time, a majority of the members of the Board of Directors are not individuals (A) who were
directors as of the Effective Date or (B) whose election by the Board of Directors or nomination
for election by the Company’s stockholders was approved by the affirmative vote of at least
two-thirds of the directors then in office who
were directors as of the Effective Date or whose election for nomination for election was
previously so approved.
(b) “Corporate Status” means the status of a person as a present or former director, officer,
employee or agent of the Company or as a director, trustee, officer, partner, manager, managing
member, fiduciary, employee or agent of any other foreign or domestic corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise that
such person is or was serving in such capacity at the request of the Company. As a clarification
and without limiting the circumstances in which Indemnitee may be serving at the request of the
Company, service by Indemnitee shall be deemed to be at the request of the Company if Indemnitee
serves or served as a director, trustee, officer, partner, manager, managing member, fiduciary,
employee or agent of any corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise (i) of which a majority of the voting power or equity
interest is owned directly or indirectly by the Company or (ii) the management of which is
controlled directly or indirectly by the Company.
(c) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification and/or advance of Expenses is sought by
Indemnitee.
(d) “Effective Date” means the date set forth in the first paragraph of this Agreement.
(e) “Expenses” means any and all reasonable and out-of-pocket attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees,
federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement, ERISA excise taxes and penalties and any other
disbursements or expenses 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. Expenses shall also include Expenses incurred in connection with
any appeal resulting from any Proceeding including, without limitation, the premium, security for
and other costs relating to any cost bond, supersedeas bond or other appeal bond or its equivalent.
(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to either such party (other than
with respect to matters concerning Indemnitee under this Agreement or of other indemnitees under
similar indemnification agreements), or (ii) any other party to or participant or witness in the
Proceeding giving rise to a claim for indemnification or advance of Expenses hereunder.
Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s
rights under this Agreement.
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(g) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or any other proceeding, whether brought by or in the right of the Company or otherwise and
whether of a civil (including intentional or unintentional tort claims), criminal, administrative
or investigative (formal or informal) nature, including any appeal therefrom, including those
pending or completed on or before the Effective Date. If Indemnitee reasonably believes that a
given situation may lead to or culminate in the institution of a Proceeding, such situation shall
also be considered a Proceeding.
Section 2. Services by Indemnitee. Indemnitee will serve as an officer of the
Company. However, this Agreement shall not impose any independent obligation on Indemnitee or the
Company to continue Indemnitee’s service to the Company. This Agreement shall not be deemed an
employment contract between the Company (or any other entity) and Indemnitee.
Section 3. General. The Company shall indemnify, and advance Expenses to, Indemnitee
(a) as provided in this Agreement and (b) otherwise to the maximum extent permitted by Delaware
law in effect on the Effective Date and as amended from time to time; provided, however, that no
change in Delaware law shall have the effect of reducing the benefits available to Indemnitee
hereunder based on Delaware law as in effect on the Effective Date. The rights of Indemnitee
provided in this Section 3 shall include, without limitation, the rights set forth in the other
sections of this Agreement, including any additional indemnification permitted by Section 145
(including subsection (f)) of the Delaware General Corporation Law (the “DGCL”).
Section 4. Proceedings Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this Section 4 if, by
reason of his Corporate Status, he is, or is threatened to be, made a party to or a witness in any
threatened, pending, or completed Proceeding, other than a Proceeding by or in the right of the
Company. Pursuant to this Section 4, Indemnitee shall be indemnified against all judgments,
penalties, fines and amounts paid in settlement and all Expenses actually and reasonably incurred
by him or on his behalf in connection with a Proceeding by reason of his Corporate Status if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company and, with respect to a criminal Proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 5. Proceedings by or in the Right of the Company. Indemnitee shall be
entitled to the rights of indemnification provided in this Section 5 if, by reason of his Corporate
Status, he is, or is threatened to be, made a party to or a witness 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 5, Indemnitee shall be indemnified against all amounts paid in settlement
and all Expenses actually and reasonably incurred by him or on his behalf in connection with such
Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company and except that no indemnification shall be
made in respect of any Proceeding where the Indemnitee has been adjudged to be liable to the
Company.
Section 6. Court-Ordered Indemnification. Notwithstanding any other provision of this
Agreement, the Court of Chancery of the State of Delaware or the court in which such action or suit
was brought may determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for any claim, issue or matter.
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Section 7. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any such provision, to
the extent that Indemnitee was or is, by reason of his Corporate Status, made a party to (or
otherwise becomes a participant in) any Proceeding and is successful, on the merits or otherwise,
in the defense of such Proceeding, Indemnitee shall be indemnified for all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee
under this Section 7 for all Expenses actually and reasonably incurred by him or on his behalf in
connection with each such claim, issue or matter, allocated on a reasonable and proportionate
basis. For purposes of this Section 7 and, without limitation, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
Section 8. Advance of Expenses for a Party. If, by reason of Indemnitee’s Corporate
Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, the Company shall,
without requiring a preliminary determination of Indemnitee’s ultimate entitlement to
indemnification hereunder, advance all reasonable Expenses incurred by or on behalf of Indemnitee
in connection with such Proceeding within ten days after the receipt by the Company of a statement
or statements requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall set forth in reasonable
detail the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a
written undertaking by or on behalf of Indemnitee, in substantially the form attached hereto as
Exhibit A or in such form as may be required under applicable law as in effect at the time
of the execution thereof, to reimburse the portion of any Expenses advanced to Indemnitee relating
to any claim, issue or matter in the Proceeding as to which it is ultimately determined that the
Indemnitee is not entitled to be indemnified and which has not been successfully resolved as
described in Section 7 of this Agreement. To the extent that Expenses advanced to Indemnitee do
not relate to a specific claim, issue or matter in the Proceeding, such Expenses shall be allocated
on a reasonable and proportionate basis. The undertaking required by this Section 8 shall be an
unlimited general obligation by or on behalf of Indemnitee and shall be accepted without reference
to Indemnitee’s financial ability to repay such advanced Expenses and without any requirement to
post security therefor.
Section 9. Indemnification and Advance of Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is or may be, by reason of his
Corporate Status, made a witness or otherwise required to participate in any Proceeding, whether
instituted by the Company or any other party, and to which Indemnitee is not a party, he shall be
advanced all reasonable Expenses and indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith within ten days after the receipt by the
Company of a statement or statements requesting such advance or advances from time to time, whether
prior to or after final disposition of such Proceeding. Such statement or statements shall set
forth in reasonable detail the Expenses incurred by Indemnitee.
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Section 10. 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 indemnification. Indemnitee may submit one or more such requests from
time to time and at such time(s) as Indemnitee deems appropriate in his sole discretion. The
officer of the Company receiving any such request from Indemnitee shall, promptly upon receipt of
such a request for indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a) above, a
determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall promptly be made in the specific case: (i) if a Change in Control shall have occurred, by
Independent Counsel, in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approved
by the Board of Directors in accordance with Section 145(d)(3) of the DGCL, which approval will not
be unreasonably withheld or delayed; or (ii) if a Change in Control shall not have occurred, (A) by
the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, (B) by
a majority vote of a committee of Disinterested Directors designated by a majority of Disinterested
Directors even if less than a quorum, (C) if Independent Counsel has been selected by the Board of
Directors in accordance with Section 145(d)(3) of the DGCL and approved by the Indemnitee, which
approval shall not be unreasonably withheld or delayed, by Independent Counsel, in a written
opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (D) if so
directed by the Board of Directors, by the stockholders of the Company. If it is so determined
that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten days
after such determination. Indemnitee shall cooperate with the person, persons or entity making
such determination with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination in the discretion of the Board of
Directors or Independent Counsel if retained pursuant to clause (ii)(B) of this Section 10(b). Any
Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company shall indemnify and hold Indemnitee harmless
therefrom.
(c) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is
appointed.
Section 11. Presumptions; Effect of Certain Proceedings; No Imputed Knowledge;
Pleading.
(a) In making any determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 10(a) of this Agreement, and the
Company shall have the burden of proof to overcome that presumption in connection with the making
of any determination contrary to that presumption.
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(b) The knowledge and/or actions, or failure to act, of any other director, officer, employee
or agent of the Company or any other director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise shall not be
imputed to Indemnitee for purposes of determining any other right to indemnification under this
Agreement.
(c) In any Proceeding with respect to entitlement to indemnification, the Company shall have
the burden of pleading with particularity or providing a detailed writing setting forth the alleged
factual basis for each defense to Indemnitee’s claim for indemnification and, without limiting the
generality of the foregoing, the pleading or writing filed by the Company objecting to the granting
of indemnification shall be verified and shall set forth a detailed statement of the time and place
of any act, omission or statement by Indemnitee, or others, which allegedly supports any such
defense.
Section 12. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 10(b) of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement, (ii) advance of Expenses is not timely
made pursuant to Section 8 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 10(b) of this Agreement within 60 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 7 of this Agreement within ten days after receipt by the Company of a
written request therefor, or (v) payment of indemnification pursuant to any other section of this
Agreement or the charter or Bylaws of the Company is not made within ten 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 or in any other court of competent
jurisdiction of his entitlement to such indemnification or advance of Expenses. Alternatively,
Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee
shall commence a 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 12(a); provided, however, that the foregoing time limit shall not apply to a
proceeding brought by Indemnitee to enforce his rights under Section 7 of this Agreement. Except
as set forth herein, the provisions of Delaware law (without regard to its conflicts of laws rules)
shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any
such adjudication or award in arbitration.
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(b) In any judicial proceeding or arbitration commenced pursuant to this Section 12,
Indemnitee shall be presumed to be entitled to indemnification or advance of Expenses, as the case
may be, under this Agreement and the Company shall have the burden of proving that Indemnitee is
not entitled to indemnification or advance of Expenses, as the case may be. If
Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 12,
Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 8 of
this Agreement until a final determination is made with respect to Indemnitee’s entitlement to
indemnification (as to which all rights of appeal have been exhausted or lapsed). The Company
shall, to the fullest extent not prohibited by law, be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 12 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 of the provisions of this
Agreement.
(c) If a determination shall have been made pursuant to Section 10(b) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 12, absent 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.
(d) In the event that Indemnitee, pursuant to this Section 12, seeks a judicial adjudication
of or an award in arbitration to enforce his 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 for, any and all Expenses actually and reasonably incurred by him or on his behalf
in such judicial adjudication or arbitration. 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 advance of Expenses sought, the Expenses incurred by Indemnitee in connection
with such judicial adjudication or arbitration shall be paid on a reasonable and proportionate
basis.
(e) Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to be
charged for judgments under Delaware law for amounts which the Company pays or is obligated to pay
for the period commencing with the date on which the Company was requested to advance expenses in
accordance with Section 8 of this Agreement or to make the determination of entitlement to
indemnification under Section 12(a) above and ending on the date such payment is made to Indemnitee
by the Company.
Section 13. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly in writing upon being served with any
summons, citation, subpoena, complaint, indictment, request or other document relating to any
Proceeding which may result in the right to indemnification or the advance of Expenses hereunder
and shall include with such notice a description of the nature of the Proceeding and a summary of
the facts underlying the Proceeding. The failure to give any such notice shall not disqualify
Indemnitee from the right, or otherwise affect in any manner any right of Indemnitee, to
indemnification or the advance of Expenses under this Agreement unless the Company’s ability to
defend in such Proceeding or to obtain proceeds under any insurance policy is materially and
adversely prejudiced thereby, and then only to the extent the Company is thereby actually so
prejudiced.
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(b) Subject to the provisions of the last sentence of this Section 13(b) and of Section 13(c)
below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise
to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any
such decision to defend within 15 calendar days following receipt of notice of any such Proceeding
under Section 13(a) above. The Company shall not, without the prior written consent of Indemnitee,
which shall not be unreasonably withheld or delayed, consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of
Indemnitee, (ii) does not include, as an unconditional term thereof, the full release of Indemnitee
from all liability in respect of such Proceeding, which release shall be in form and substance
reasonably satisfactory to Indemnitee, or (iii) would impose any Expense, judgment, fine, penalty
or limitation on Indemnitee. This Section 13(b) shall not apply to a Proceeding brought by
Indemnitee under Section 12 of this Agreement.
(c) Notwithstanding the provisions of Section 13(b) above, if in a Proceeding to which
Indemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably
concludes, based upon an opinion of counsel approved by the Company, which approval shall not be
unreasonably withheld or delayed, that he may have separate defenses or counterclaims to assert
with respect to any issue which may not be consistent with other defendants in such Proceeding,
(ii) Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company,
which approval shall not be unreasonably withheld or delayed, that an actual or apparent conflict
of interest or potential conflict of interest exists between Indemnitee and the Company, or (iii)
if the Company fails to assume the defense of such Proceeding in a timely manner, Indemnitee shall
be entitled to be represented by separate legal counsel of Indemnitee’s choice, subject to the
prior approval of the Company, which shall not be unreasonably withheld or delayed, at the expense
of the Company. In addition, if the Company fails to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes any action to declare this
Agreement void or unenforceable, or institutes any Proceeding to deny or to recover from Indemnitee
the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to
retain counsel of Indemnitee’s choice, subject to the prior approval of the Company, which shall
not be unreasonably withheld or delayed, at the expense of the Company (subject to Section 12(d) of
this Agreement), to represent Indemnitee in connection with any such matter.
Section 14. Non-Exclusivity; Survival of Rights; Subrogation.
(a) The rights of indemnification and advance 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 Certificate of Incorporation or Bylaws of the Company, any agreement or a
resolution of the Board of Directors or of the stockholders entitled to vote generally in the
election of directors, or otherwise. Unless consented to in writing by Indemnitee, no amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right
of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in
his Corporate Status prior to such amendment, alteration or repeal, regardless of whether a claim
with respect to such action or inaction is raised prior or subsequent to such amendment, alteration
or repeal. No right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right or remedy shall be cumulative and in addition to every other right or
remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion of any right or remedy hereunder, or
otherwise, shall not prohibit the concurrent assertion or employment of any other right or remedy.
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(b) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
Section 15. Coordination of Payments. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable or payable or reimbursable as
Expenses hereunder if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
Section 16. Exception to Right of Indemnification or Advance of Expenses.
Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to
indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee
unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then
only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (ii)
the Company’s Certificate of Incorporation or Bylaws, a resolution of the Board of Directors or of
the stockholders entitled to vote generally in the election of directors or an agreement approved
by the Board of Directors to which the Company is a party expressly provide otherwise.
Section 17. Insurance. The Company will use its reasonable best efforts to acquire
directors and officers liability insurance, on terms and conditions deemed appropriate by the Board
of Directors, with the advice of counsel, covering Indemnitee or any claim made against Indemnitee
by reason of his Corporate Status and covering the Company for any indemnification or advance of
Expenses made by the Company to Indemnitee for any claims made against Indemnitee by reason of his
Corporate Status. Without in any way limiting any other obligation under this Agreement, the
Company shall indemnify Indemnitee for any payment by Indemnitee arising out of the amount of any
deductible or retention and the amount of any excess of the aggregate of all judgments, penalties,
fines, settlements and Expenses incurred by Indemnitee in connection with a Proceeding over the
coverage of any insurance referred to in the previous sentence. The purchase, establishment and
maintenance of any such insurance shall not in any way limit or affect the rights or obligations of
the Company or Indemnitee under this Agreement except as expressly provided herein, and the
execution and delivery of this Agreement by the Company and the Indemnitee shall not in any way
limit or affect the rights or obligations of the Company under any such insurance policies. If, at
the time the Company receives notice from any source of a Proceeding to which Indemnitee is a party
or a participant (as a witness or otherwise) the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of such Proceeding for itself and on
behalf of the Indemnitee to the insurers in accordance with the procedures set forth in the
respective policies.
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Section 18. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate on the later of (i) the date that
Indemnitee shall have ceased to serve as a director, officer, employee or agent of the Company or
as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of
any other foreign or domestic corporation, real estate investment trust, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise that such person
is or was serving in such capacity at the request of the Company and (ii) the date that Indemnitee
is no longer subject to any actual or possible Proceeding (including any rights of appeal thereto
and any Proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement).
(b) The indemnification and advance of Expenses provided by, or granted pursuant to, this
Agreement shall be binding upon and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company),
shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of
the Company or a director, trustee, officer, partner, manager, managing member, fiduciary, employee
or agent of any other foreign or domestic corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving
in such capacity at the request of the Company, and shall inure to the benefit of Indemnitee and
his spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
(c) The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all or substantially all of the business and/or assets of
the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
(d) The Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto
agree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific
performance hereof, without any necessity of showing actual damage or irreparable harm and that by
seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from
seeking or obtaining any other relief to which he may be entitled. Indemnitee shall further be
entitled to such specific performance and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds
or other undertakings in connection therewith. The Company acknowledges that, in the absence of a
waiver, a bond or undertaking may be required of Indemnitee by a court, and the Company hereby
waives any such requirement of such a bond or undertaking.
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Section 19. 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, paragraph or sentence of this Agreement containing any
such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to
the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to
the extent necessary to conform to applicable law and to give the maximum effect to the intent of
the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section, paragraph or sentence of this
Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
Section 20. 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. One such counterpart signed by the party
against whom enforceability is sought shall be sufficient to evidence the existence of this
Agreement.
Section 21. 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.
Section 22. 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.
Section 23. 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 said 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 the address set forth on the signature page hereto.
(b) If to the Company, to:
| Xxx. A. Bank Clothiers, Inc. | ||||
| Attn: | Xxxxx X. Xxxxxx | |||
| Executive Vice President-Chief Financial Officer | ||||
| 000 Xxxxxxx Xxxx | ||||
| Xxxxxxxxx, Xxxxxxxx 00000-0000 | ||||
| Xxxxxx Xxxxxx of America | ||||
or to such other address as may have been furnished in writing to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.
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Section 24. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard to its conflicts of
laws rules.
Section 25. Miscellaneous. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| COMPANY: XXX. A. BANK CLOTHIERS, INC., |
||||
| By: | /s/ XXXXX X. XXXXXX | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President-Chief Financial Officer | |||
| INDEMNITEE |
||||
| /s/ XXXXXXX X. XXXXXX | ||||
| Name: Xxxxxxx X. Xxxxxx | ||||
| Address: 000 Xxxxxxx Xxxx Xxxxxxxxx, XX 00000 |
||||
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
To: The Board of Directors of Xxx. A. Bank Clothiers, Inc.
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain Indemnification Agreement dated
the
_____
day of , 2009, by and between Xxx. A. Bank Clothiers, Inc., a Delaware
corporation (the “Company”), and the undersigned Indemnitee (the “Indemnification Agreement”),
pursuant to which I am entitled to advance of expenses in connection with [ ] (the
“Proceeding”).
Terms used herein and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by reason of alleged acts
or omissions by me in such capacity. In consideration of the advance by the Company of Expenses
incurred by me in connection with the Proceeding (the “Advanced Expenses”), I hereby agree that if,
in connection with the Proceeding, it is ultimately determined that I am not entitled to be
indemnified, then I shall promptly reimburse the portion of the Advanced Expenses relating to the
claims, issues or matters in the Proceeding as to which I am not entitled to indemnification and
which have not been successfully resolved as described in Section 7 of the Indemnification
Agreement. To the extent that Advanced Expenses do not relate to a specific claim, issue or matter
in the Proceeding, I agree that such Expenses shall be allocated on a reasonable and proportionate
basis.
IN WITNESS WHEREOF, I have executed this Undertaking on this
_____ day of ,
20_____.
A-1
