Exhibit 10.2
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement, dated as of April 29, 2008 is made by
and between Hampshire Group, Limited, a Delaware corporation (the "Company"),
and Xxxxxxx Xxxxx (the "Indemnitee").
RECITALS
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A. The Company recognizes that competent and experienced persons are
increasingly reluctant to serve or to continue to serve as directors of
corporations unless they are protected by comprehensive liability insurance or
indemnification, or both, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to the fact
that the exposure frequently bears no reasonable relationship to the
compensation of such directors.
B. The Company's Certificate of Incorporation and Bylaws require the
Company to indemnify its directors and officers to the fullest extent permitted
by the Delaware General Corporate Law (the "DGCL"). The Certificate of
Incorporation expressly provides that the indemnification provisions set forth
therein are not exclusive, and contemplates that contracts may be entered into
between the Company and its directors and officers with respect to
indemnification.
C. Section 145 of the DGCL, under which the Company is organized, empowers
the Company to indemnify its officers, directors, employees and agents by
agreement and to indemnify persons who serve, at the request of the Company, as
the directors, officers, employees or agents of other corporations or
enterprises, and expressly provides that the indemnification provided by Section
145 is not exclusive.
D. The Executive Committee of the Board of Directors has determined that
contractual indemnification as set forth herein is not only reasonable and
prudent but also promotes the best interests of the Company and its
stockholders.
E. In connection with Indemnitee's service on the Board of Directors, the
Company and Indemnitee agree that the Company will furnish Indemnitee the
indemnity provided for herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Generally.
To the fullest extent permitted by the laws of the State of Delaware:
(a) The Company shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee is or was or has agreed to
serve at the request of the Company as a director, officer, employee or agent of
the Company or, while serving as a director or officer of the Company, is or was
serving or has agreed to serve at the request of the Company as a director,
officer, trustee, employee or agent of or in any other capacity with another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity.
(b) The indemnification provided by this Section 1 shall be from and
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection with such action, suit or proceeding and any appeal
therefrom, but shall only be provided if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action, suit or
proceeding, had no reasonable cause to believe Indemnitee's conduct was
unlawful.
(c) Notwithstanding the foregoing provisions of this Section 1, in the
case of any threatened, pending or completed action or suit by or in the right
of the Company to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Company, or
while serving as a director or officer of the Company, is or was serving or has
agreed to serve at the request of the Company as a director, officer, trustee,
employee or agent of or in any other capacity with another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(including, without limitation, the Derivative Suit), no indemnification shall
be made in respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Company unless, and only to the extent
that, the Delaware Court of Chancery or the court in which such action or suit
was brought shall 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 such expenses which the Delaware Court
of Chancery or such other court shall deem proper.
(d) The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that Indemnitee's
conduct was unlawful.
Section 2. Successful Defense; Partial Indemnification. To the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 hereof or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred in connection
therewith. For purposes of this Agreement and without limiting the foregoing, if
any action, suit or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition being
adverse to Indemnitee, (ii) an
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adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty
or nolo contendere by Indemnitee, (iv) an adjudication that Indemnitee did not
act in good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, or (v) with respect to any
criminal proceeding, an adjudication that Indemnitee had reasonable cause to
believe Indemnitee's conduct was unlawful, Indemnitee shall be considered for
the purposes hereof to have been wholly successful with respect thereto.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with
any action, suit, proceeding or investigation, or in defense of any claim, issue
or matter therein, and any appeal therefrom but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion of such expenses (including attorneys' fees), judgments, fines or
amounts paid in settlement to which Indemnitee is entitled.
Section 3. Determination That Indemnification Is Proper. Any
indemnification hereunder shall (unless otherwise ordered by a court) be made by
the Company unless a determination is made that indemnification of such person
is not proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Section 1(b) hereof. Any such determination
shall be made by one of the following methods, at the election of Indemnitee:
(i) by a majority vote of the directors who are not parties to the action, suit
or proceeding in question ("disinterested directors"), even if less than a
quorum, (ii) by a majority vote of a committee of disinterested directors
designated by majority vote of disinterested directors, even if less than a
quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock
of all classes entitled to vote on the matter, voting as a single class, which
quorum shall consist of stockholders who are not at that time parties to the
action, suit or proceeding in question, (iv) by independent legal counsel
mutually agreed upon by the Company and Indemnitee in a written opinion
addressed to the Board of Directors, a copy of which shall be delivered to
Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall
cooperate with reasonable requests of the persons making such standard of
conduct determination, including providing to such persons 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 without incurring any unreimbursed cost in connection therewith.
The Company shall indemnify and hold harmless Indemnitee against and, if
requested by Indemnitee, shall reimburse Indemnitee for, or advance to
Indemnitee, within five business days of such request accompanied by supporting
documentation for specific costs and expenses to be reimbursed or advanced, any
and all costs and expenses (including attorneys' and experts' fees and expenses)
incurred by Indemnitee in connection with making this standard of conduct
determination.
Section 4. Advance Payment of Expenses; Notification and Defense of Claim.
(a) Expenses (including attorneys' fees) incurred by Indemnitee in
defending a threatened or pending civil, criminal, administrative or
investigative action, suit or proceeding, or in connection with an enforcement
action pursuant to Section 5(b), shall be paid by the Company
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in advance of the final disposition of such action, suit or proceeding within
five business days after receipt by the Company of (i) a statement or statements
from Indemnitee requesting such advance or advances from time to time, and (ii)
an undertaking by or on behalf of Indemnitee to repay such amount or amounts,
only if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Company as authorized by
this Agreement or otherwise. Such undertaking shall be accepted without
reference to the financial ability of Indemnitee to make such repayment.
Advances shall be unsecured and interest-free. Without limiting the generality
or effect of the foregoing, the Company shall indemnify and hold harmless
Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee
for, or advance to Indemnitee, within five business days of such request
accompanied by supporting documentation for specific expenses to be reimbursed
or advanced, any and all expenses paid or incurred by Indemnitee or which
Indemnitee determines in good faith are reasonably likely to be paid or incurred
by Indemnitee in connection with any claim made, instituted or conducted by
Indemnitee for (x) indemnification or reimbursement or advance payment of
expenses by the Company under any provision of this Agreement, the Certificate
of Incorporation, or the Bylaws, and (y) recovery under any directors' and
officers' liability insurance policies maintained by the Company, regardless in
each case of whether Indemnitee ultimately is determined to be entitled to such
indemnification, reimbursement, advance or insurance recovery, as the case may
be; provided, however, that Indemnitee shall return, without interest, any such
advance of expenses (or portion thereof) which remains unspent at the final
disposition of the claim to which the advance related.
(b) Promptly, and in any event within twenty business days, after
receipt by Indemnitee of notice of the commencement of any action, suit or
proceeding, Indemnitee shall, if a claim thereof is to be made against the
Company hereunder, notify the Company of the commencement thereof. The failure
to notify the Company promptly and in any event within twenty business days of
the commencement of the action, suit or proceeding, or Indemnitee's request for
indemnification, will not relieve the Company from any liability that it may
have to Indemnitee hereunder, except to the extent the Company is prejudiced in
its defense of such action, suit or proceeding as a result of such failure.
(c) In the event the Company shall be obligated to pay the expenses of
Indemnitee with respect to an action, suit or proceeding, as provided in this
Agreement, the Company, if appropriate, shall be entitled to assume the defense
of such action, suit or proceeding, with counsel reasonably acceptable to
Indemnitee, upon the delivery to Indemnitee of written notice of its election to
do so within twenty business days after the Company's receipt of the notice of
the commencement of an action, suit or proceeding provided by Indemnitee to the
Company pursuant to Section 4(b) above. After delivery of such notice, approval
of such counsel by Indemnitee (which approval will not be unreasonably withheld)
and the retention of such counsel by the Company, the Company will not be liable
to Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same action, suit or proceeding, provided that
(1) Indemnitee shall have the right to employ Indemnitee's own counsel in such
action, suit or proceeding at Indemnitee's expense and (2) if (i) the employment
of counsel by Indemnitee has been previously authorized in writing by the
Company or counsel has been employed by Indemnitee to advise and assist
Indemnitee in connection with preparation for or participation in any SEC
interviews or depositions, (ii) counsel to the Company or
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Indemnitee shall have reasonably concluded that there may be a conflict of
interest or position, or reasonably believes that a conflict is likely to arise,
on any significant issue between the Company and Indemnitee in the conduct of
any such defense or (iii) the Company shall not, in fact, have employed counsel
to assume the defense of such action, suit or proceeding (or fails to diligently
conduct such defense), then the fees and expenses of Indemnitee's counsel shall
be at the expense of the Company, except as otherwise expressly provided by this
Agreement. The Company shall not be entitled, without the consent of Indemnitee,
to assume the defense of any claim brought by or in the right of the Company or
as to which counsel for the Company or Indemnitee shall have reasonably made the
conclusion provided for in clause (ii) above.
(d) Notwithstanding any other provision of this Agreement to the
contrary, to the extent that Indemnitee is, by reason of Indemnitee's current,
future or former corporate status with respect to the Company or any
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which Indemnitee is or was serving or has agreed to or may otherwise
in the future serve at the request of the Company, a witness or otherwise
participates in any action, suit or proceeding at a time when Indemnitee is not
a party in the action, suit or proceeding, the Company shall indemnify
Indemnitee against all expenses (including attorneys' fees) actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
therewith (including, without limitation, fees and expenses of counsel employed
by Indemnitee to advise and assist Indemnitee in connection with preparation for
or participation in any SEC interviews or depositions).
Section 5. Procedure for Indemnification
(a) To obtain indemnification, Indemnitee shall promptly 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. The Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) The Company's determination whether to grant Indemnitee's
indemnification request shall be made promptly, and in any event within 30 days
following receipt of a request for indemnification pursuant to Section 5(a). The
right to indemnification as granted by Section 1 of this Agreement shall be
enforceable by Indemnitee in any court of competent jurisdiction if the Company
denies such request, in whole or in part, or fails to respond within such 30-day
period. It shall be a defense to any such action (other than an action brought
to enforce a claim for the advance of costs, charges and expenses under Section
4 hereof where the required undertaking, if any, has been received by the
Company) that Indemnitee has not met the standard of conduct set forth in
Section 1 hereof, but the burden of proving such defense by clear and convincing
evidence shall be on the Company. Neither the failure of the Company (including
its Board of Directors or one of its committees, its independent legal counsel,
or its stockholders) to have made a determination prior to the commencement of
such action that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct set forth in
Section 1 hereof, nor the fact that there has been an actual determination by
the Company (including its Board of Directors or one of its committees, its
independent legal
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counsel, or its stockholders) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has or has not met the applicable standard of conduct. The
Indemnitee's expenses (including attorneys' fees) incurred in connection with
successfully establishing Indemnitee's right to indemnification, in whole or in
part, in any such proceeding or otherwise shall also be indemnified by the
Company.
(c) The Indemnitee shall be presumed to be entitled to indemnification
under this Agreement upon submission of a request for indemnification pursuant
to this Section 5, and the Company shall have the burden of proof in overcoming
that presumption in reaching a determination contrary to that presumption. Such
presumption shall be used as a basis for a determination of entitlement to
indemnification unless the Company overcomes such presumption by clear and
convincing evidence.
Section 6. Insurance and Subrogation.
(a) For the duration of Indemnitee's service as a director, officer,
employee, or agent of the Company and for not less than six years thereafter or,
if later, for so long as Indemnitee is subject to any possible action, suit or
proceeding described in Section 1(a) above, the Company shall provide directors'
and officers' liability insurance coverage for Indemnitee that is at least as
favorable in scope and amount as that provided as of such time for the Company's
directors and other executive officers. Upon request, the Company shall provide
Indemnitee or his counsel with a copy of all directors' and officers' liability
insurance applications, binders, policies, declarations, endorsements and other
related materials. In all policies of directors' and officers' liability
insurance obtained by the Company, Indemnitee shall be named as an insured in
such a manner as to provide Indemnitee the same rights and benefits, subject to
the same limitations, as are accorded to the Company's directors and officers
most favorably insured by such policy.
(b) In the event of any payment by the Company under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee with respect to any insurance policy, 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 in accordance with the terms of such insurance
policy. The Company shall pay or reimburse all expenses actually and reasonably
incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder (including, but not limited
to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) if and to the extent that Indemnitee has otherwise actually received
such payment under this Agreement or any insurance policy, contract, agreement
or otherwise.
Section 7. Certain Definitions. For purposes of this Agreement, the
following definitions shall apply:
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(a) The term "action, suit or proceeding" shall be broadly construed
and shall include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and the giving of
testimony in, any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
any inquiry, investigation, or examination, whether made, instituted, or
conducted by the Company or any other person, including without limitation any
federal, state or other governmental entity, that Indemnitee determines might
lead to the institution of any such action, suit or proceeding. For the
avoidance of doubt, the Company intends indemnity to be provided hereunder in
respect of acts or failure to act prior to, on, or after the date hereof.
(b) The term "by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or while serving as a
director or officer of the Company, is or was serving or has agreed to serve at
the request of the Company as a director, officer, employee or agent of or in
any other capacity with another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise" shall be broadly construed and shall
include, without limitation, any actual or alleged act or omission to act.
(c) The term "expenses" shall be broadly and reasonably construed and
shall include, without limitation, all direct and indirect costs of any type or
nature whatsoever actually and reasonably incurred by Indemnitee in connection
with either the investigation, defense or appeal of a proceeding (including
serving as a witness in or participating in (including on appeal), or preparing
to investigate, defend, be a witness in or participate in (including on appeal),
a proceeding, or establishing or enforcing a right to indemnification under this
Agreement, Section 145 of the DGCL, or otherwise. For the avoidance of doubt,
the term "expenses" shall include, without limitation, all reasonable attorneys'
fees and related disbursements, appeal bonds, other out-of-pocket costs.
(d) The term "judgments, fines and amounts paid in settlement" shall
be broadly construed and shall include, without limitation, all direct and
indirect payments of any type or nature whatsoever (including, without
limitation, all penalties and amounts required to be forfeited or reimbursed to
the Company), as well as any penalties or excise taxes assessed on a person with
respect to an employee benefit plan).
(e) The term "Company" shall include, without limitation and in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of or in any other capacity with
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate
existence had continued.
(f) The term "other enterprises" shall include, without limitation,
employee benefit plans.
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(g) The term "serving at the request of the Company" shall include,
without limitation, any service as a director, officer, employee or agent of the
Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.
(h) A person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Company" as referred to in this Agreement.
Section 8. Limitation on Indemnification. Notwithstanding any other
provision herein to the contrary, the Company shall not be obligated pursuant to
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses
to Indemnitee with respect to an action, suit or proceeding (or part thereof)
initiated by Indemnitee unless such action, suit or proceeding (or part thereof)
was authorized or consented to by the Board of Directors of the Company.
(b) Action for Indemnification. To indemnify Indemnitee for any
expenses incurred by Indemnitee with respect to any action, suit or proceeding
instituted by Indemnitee to enforce or interpret this Agreement, unless
Indemnitee is successful in establishing Indemnitee's right to indemnification
in such action, suit or proceeding, in whole or in part, or unless and to the
extent that the court in such action, suit or proceeding shall determine that,
despite Indemnitee's failure to establish the right to indemnification,
Indemnitee is entitled to indemnity for such expenses; provided, however, that
nothing in this Section 8(b) is intended to limit the Company's obligation with
respect to the advancement of expenses to Indemnitee in connection with any such
action, suit or proceeding instituted by Indemnitee to enforce or interpret this
Agreement, as provided in Section 4 hereof.
(c) Section 16 Violations. To indemnify Indemnitee on account of any
proceeding with respect to which final judgment is rendered against Indemnitee
for payment or an accounting of profits arising from the purchase or sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, or any similar successor statute.
Section 9. Certain Settlement Provisions. The Company shall have no
obligation to indemnify Indemnitee under this Agreement for amounts paid in
settlement of any action, suit or proceeding without the Company's prior written
consent, which shall not be unreasonably withheld. The Company shall not settle
any action, suit or proceeding in any manner that would impose any fine or other
obligation on Indemnitee without Indemnitee's prior written consent, which shall
not be unreasonably withheld.
Section 10. Savings Clause. If any provision or provisions of this
Agreement shall be invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify Indemnitee as to
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
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whether civil, criminal, administrative or investigative, including an action by
or in the right of the Company, to the fullest extent permitted by any
applicable portion of this Agreement that shall not have been invalidated and to
the fullest extent permitted by applicable law.
Section 11. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for herein
is held by a court of competent jurisdiction to be unavailable to Indemnitee in
whole or in part, it is agreed that, in such event, the Company shall, to the
fullest extent permitted by law, contribute to the payment of Indemnitee's
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, in an amount that is
just and equitable in the circumstances, taking into account, among other
things, contributions by other directors and officers of the Company or others
pursuant to indemnification agreements or otherwise; provided, that, without
limiting the generality of the foregoing, such contribution shall not be
required where such holding by the court is due to (i) the failure of Indemnitee
to meet the standard of conduct set forth in Section 1 hereof, or (ii) any
limitation on indemnification set forth in Section 6(c), 8 or 9 hereof.
Section 12. Reimbursement of Legal Fees and Expenses.
(a) It is the intent of the Company that Indemnitee not be required to
incur legal fees and or other expenses associated with the interpretation,
enforcement or defense of Indemnitee's rights under this Agreement by litigation
or otherwise because the cost and expense thereof would substantially detract
from the benefits intended to be extended to Indemnitee hereunder. Accordingly,
without limiting the generality or effect of any other provision hereof, if it
should reasonably appear to Indemnitee that the Company has failed to comply
with any of its obligations under this Agreement or in the event that the
Company or any other person takes or threatens to take any action to declare
this Agreement void or unenforceable, or institutes any litigation or other
action or proceeding designed to improperly deny, or to improperly recover from,
Indemnitee the benefits provided or intended to be provided to Indemnitee
hereunder, the Company irrevocably authorizes the Indemnitee from time to time
to retain counsel of Indemnitee's choice, at the expense of the Company, to
advise and represent Indemnitee in connection with any such interpretation,
enforcement or defense, including without limitation the initiation or defense
of any litigation or other legal action, whether by or against the Company or
any director, officer, employee, stockholder or other person affiliated with the
Company, in any jurisdiction. Without limiting the generality or effect of any
other provision hereof or respect to whether Indemnitee prevails, in whole or in
part, in connection with any of the foregoing, the Company will pay and be
solely financially responsible for any and all attorneys' and related fees and
expenses actually and reasonably incurred by Indemnitee in connection with any
of the foregoing.
Section 13. Form and Delivery of Communications. Any notice, request or
other communication required or permitted to be given to the parties under this
Agreement shall be in writing and either delivered in person or sent by
telecopy, overnight mail or courier service, or certified or registered mail,
return receipt requested, postage prepaid, to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice):
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If to the Company:
Hampshire Group, Limited
000 X. 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
General Counsel
Facsimile: 212-512-0388
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
If to Indemnitee, to such address provided in writing from time to
time by Indemnitee.
Section 14. Subsequent Legislation. If the General Corporate Law of
Delaware is amended after adoption of this Agreement to expand further the
indemnification permitted to directors or officers, then the Company shall
indemnify Indemnitee to the fullest extent permitted by the General Corporate
Law of Delaware, as so amended.
Section 15. Nonexclusivity. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which Indemnitee may have under any provision of
law, the Company's Certificate of Incorporation or Bylaws, in any court in which
a proceeding is brought, the vote of the Company's stockholders or disinterested
directors, other agreements or otherwise, and Indemnitee's rights hereunder
shall continue after Indemnitee has ceased acting as an agent of the Company and
shall inure to the benefit of the heirs, executors and administrators of
Indemnitee. However, no amendment or alteration of the Company's Certificate of
Incorporation or Bylaws or any other agreement shall adversely affect the rights
provided to Indemnitee under this Agreement.
Section 16. Enforcement. The Company shall be precluded from asserting in
any judicial proceeding that the procedures and presumptions of this Agreement
are not valid, binding and enforceable. The Company agrees that its execution of
this Agreement shall constitute a stipulation by which it shall be irrevocably
bound in any court of competent jurisdiction in which a proceeding by Indemnitee
for enforcement of his rights hereunder shall have been commenced, continued or
appealed, that its obligations set forth in this Agreement are unique and
special, and that failure of the Company to comply with the provisions of this
Agreement will cause irreparable and irremediable injury to Indemnitee, for
which a remedy at law will be inadequate.
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As a result, in addition to any other right or remedy Indemnitee may have at law
or in equity with respect to breach of this Agreement, Indemnitee shall be
entitled to injunctive or mandatory relief directing specific performance by the
Company of its obligations under this Agreement.
Section 17. Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent now or hereafter permitted
by law.
Section 18. Entire Agreement. This Agreement and the documents expressly
referred to herein constitute the entire agreement between the parties hereto
with respect to the matters covered hereby, and any other prior or
contemporaneous oral or written understandings or agreements with respect to the
matters covered hereby are expressly superseded by this Agreement.
Section 19. 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 provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 20. Successor and Assigns. All of the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and their respective successors, assigns,
heirs, executors, administrators and legal representatives. The Company shall
require and cause any direct or indirect successor (whether by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Company, by written agreement in form and substance reasonably
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.
Section 21. Service of Process and Venue. For purposes of any claims or
proceedings to enforce this agreement, the Company consents to the jurisdiction
and venue of any federal or state court of competent jurisdiction in the states
of Delaware and South Carolina, and waives and agrees not to raise any defense
that any such court is an inconvenient forum or any similar claim.
Section 22. Supersedes Prior Agreement. This Agreement supersedes any prior
indemnification agreement between Indemnitee and the Company or its
predecessors.
Section 23. Governing Law. This Agreement shall be governed exclusively by
and construed according to the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware. If a court of competent jurisdiction shall make a final
determination that the provisions of the law of any state other than Delaware
govern indemnification by the Company of its officers and directors, then the
indemnification provided under this Agreement shall in all instances be
enforceable to the
11
fullest extent permitted under such law, notwithstanding any provision of this
Agreement to the contrary.
Section 24. Employment Rights. Nothing in this Agreement is intended to
create in Indemnitee any right to employment or continued employment.
Section 25. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument, notwithstanding that
both parties are not signatories to the original or same counterpart.
Section 26. Headings. The section and subsection headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to
be effective as of the date first above written.
HAMPSHIRE GROUP, LIMITED
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and General Counsel
INDEMNITEE:
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
