INDEMNIFICATION AGREEMENT
AGREEMENT made this 12th day of June, 1996, between Edison Brothers
Stores, Inc., a Delaware corporation, with offices at 000 Xxxxx Xxxxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000 (the Corporation ) and _________________,
presently residing at ______________________, ( Indemnitee ).
WHEREAS, Indemnitee is a member of the Board of Directors of the
Corporation and in such capacity is performing a valuable service for the
Corporation; and
WHEREAS, it appears that lawsuits against directors of publicly-held
corporations questioning their decisions and actions have increased in
number in recent years; and
WHEREAS, the judgments sought by plaintiffs in such cases are often
very large, exposing directors to financial risks far out of proportion to
the amount of compensation (if any) received by them for their services as
directors; and
WHEREAS, regardless of whether a case is meritorious, the costs of
defending it can be substantial; and
WHEREAS, as a result of the above factors, competent and experienced
persons are becoming more reluctant to serve as directors of a corporation
unless they are protected by indemnification; and
WHEREAS, Section 145 of the General Corporation Law of the State of
Delaware, under which the Corporation is organized, empowers a corporation,
with certain limitations, to indemnify a director against such claims and
to advance to such director the expenses of defending such actions brought
against him, and further provides that the indemnification and advancement
of expenses provided by or granted pursuant to said Section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise; and
WHEREAS, the Corporation desires to have Indemnitee serve as a member
of its Board of Directors and as a director, officer, employee or agent of
this or any other corporation, partnership, joint venture, trust or other
enterprise of which he has been or is serving or may in the future serve at
the request of the Corporation, free from undue concern as to the possible
effect of claims for damages by reason of his decisions or actions in such
capacity; and to that end, and to thereby induce Indemnitee to serve as
aforesaid, the Corporation has determined that it is in its best interests
to enter into this Agreement;
NOW, THEREFORE, in consideration of Indemnitee's service to the
Corporation as a member of its Board of Directors and in any of the other
capacities aforementioned after the date hereof, the parties hereto agree
as follows:
Section 1. Statutory Indemnification. 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 he is or was a
director of the Corporation, or, while a director of the Corporation, is or
was serving as an officer of the Corporation or at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, the
Corporation shall indemnify and hold harmless Indemnitee against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection
with such action, suit or proceeding to the fullest extent authorized or
permitted by the provisions of Section 145 of the General Corporation Law
of the State of Delaware, or by any amendment thereof or other statutory
provisions authorizing or permitting such indemnification adopted after the
date hereof.
Section 2. Additional Indemnification. Subject only to the
exclusions set forth in Section 3 hereof, the Corporation hereby further
agrees to hold harmless and indemnify Indemnitee against any and all
expenses (including attorneys' fees), judgments, penalties (including ERISA
excise taxes), fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with any threatened, pending or
completed action, suit or proceeding (including without limitation expenses
incurred in the investigation, defense, settlement or appeal thereof),
whether civil, criminal, administrative or investigative (including an
action by or in the right of the Corporation) to which Indemnitee was or is
a party or is threatened to be made a party by reason of the fact that
Indemnitee is or was a director of the Corporation or, while a director of
the Corporation, is or was serving as an officer of the Corporation or at
the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust or other
enterprise (hereinafter collectively referred to as an affiliated
enterprise ) (including without limitation the Edison Brothers Stock
Ownership Plan, the Edison Brothers Stores, Inc. 1975 Stock Bonus Plan, the
Edison Brothers Stores, Inc. 1982 Incentive Stock Option Plan, the Edison
Brothers Stores, Inc. 1986 Stock Option Plan, the Edison Brothers Stores
Pension Plan and any other employee benefit plan or similar plan of or
sponsored by the Corporation or any of its subsidiaries now or hereafter in
effect), or by reason of any action alleged to have been taken or omitted
by Indemnitee in any such capacity.
Section 3. Limitations on Additional Indemnification. Indemnitee
shall have no right to indemnification under Section 2 hereof:
(a) on account of any action, suit or proceeding in respect to
remuneration paid to Indemnitee if it is determined by final judgment
or other final adjudication that such remuneration was in violation of
law;
(b) on account of any action, suit or proceeding in which final
judgment is rendered against Indemnitee for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the
Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or similar provisions of
any federal, state or local statute;
(c) on account of any action, suit or proceeding in which it is
determined by final judgment or other final adjudication that
Indemnitee defrauded the Corporation or an affiliated enterprise or
converted to his personal use or benefit business or properties of the
Corporation or an affiliated enterprise or improperly used for his
personal benefit confidential information regarding the business or
plans of the Corporation or an affiliated enterprise or was otherwise
knowingly dishonest;
(d) if a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
Section 4. Notification and Defense of Claim. As promptly as
practicable after receipt by Indemnitee of notice of the commencement of
any action, suit or proceeding against him, Indemnitee will, if a claim in
respect thereof is to be made against the Corporation under this agreement,
notify the Corporation of the commencement thereof. Except as otherwise
provided below, following its receipt of such notice the Corporation may
(but shall not be obligated to) assume the defense of such action, suit or
proceeding, with counsel satisfactory to Indemnitee. After written notice
from the Corporation to Indemnitee of the Corporation's election so to
assume the defense of such action, suit or proceeding, the Corporation will
not be liable to Indemnitee under this agreement for any legal or other
expenses subsequently incurred by Indemnitee in connection with the defense
thereof except as provided below. Indemnitee shall have the right to
employ his own counsel in such action, suit or proceeding, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of Indemnitee
unless (a) the employment of counsel by Indemnitee has been authorized by
the Corporation, (b) Indemnitee shall have reasonably concluded that there
may be a conflict of interest between the Corporation and Indemnitee in the
conduct of the defense of such action or (c) the Corporation shall not in
fact have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of Indemnitee's counsel shall be at the
expense of the Corporation. The Corporation shall not be entitled to
assume the defense of any action, suit or proceeding brought by or on
behalf of the Corporation or as to which Indemnitee shall have made the
conclusion provided for in (b) above. In the event the Corporation assumes
the defense of any such action, suit or proceeding pursuant to this
Section 4, the Corporation shall not settle such action, suit or proceeding
in any manner which would impose any penalty or limitation on Indemnitee
without Indemnitee's written consent, which consent shall not be
unreasonably withheld.
Section 5. Advancement of Expenses. The Corporation shall, upon
Indemnitee's request, pay the costs and expenses incurred by Indemnitee in
connection with any action, suit or proceeding described in Section 1
and/or Section 2 of this Agreement in advance of the final disposition of
such action, suit or proceeding, with the understanding and agreement
hereby made and entered into by Indemnitee and the Corporation that in the
event it shall ultimately be determined that Indemnitee was not entitled to
be indemnified for such expenses under the terms of this Agreement, that
Indemnitee shall repay to the Corporation all amounts so paid or advanced
in such manner and on such terms as the Board of Directors of the
Corporation shall direct. Indemnitee further agrees that if the
Corporation assumes the defense of any action, suit or proceeding against
Indemnitee pursuant to Section 4 hereof, Indemnitee will reimburse the
Corporation for all reasonable expenses paid by the Corporation in
defending such action, suit or proceeding in the event and to the extent
that it shall ultimately be determined that Indemnitee was not entitled to
be indemnified by the Corporation for such expenses under the terms of this
Agreement. Any determination required to be made under the provisions of
this Section 5 shall be made (a) by the Board of Directors of the
Corporation by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (b) if such a quorum is
not obtainable, or even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (c) by a
majority vote of the stockholders of the Corporation.
Section 6. Procedure for Indemnification; Enforcement. Any
indemnification under Sections 1 or 2 or advance of costs and expenses
under Section 5 of this Agreement shall be made promptly upon the written
request of Indemnitee. If the Corporation denies such request, in whole or
in part, or if no disposition thereof is made within sixty days following
the Corporation's receipt of the request, Indemnitee may bring suit against
the Corporation in any court of competent jurisdiction to enforce his
rights thereto, and, if such suit is successful in whole or in part, the
Corporation shall also pay to Indemnitee the fees and expenses incurred by
Indemnitee in prosecuting such claim. It shall be a defense to any action
seeking to enforce a right to indemnification under Section 1 of this
Agreement that the Indemnitee has not met the standards of conduct which
make it permissible under the Delaware General Corporation Law to indemnify
the Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, 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 he has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors, its independent legal 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 the Indemnitee has not
met the applicable standard of conduct.
Section 7. Other Rights and Remedies. The rights to indemnification
and advance payment of expenses conferred on Indemnitee by this Agreement
shall not be deemed exclusive of any other rights which Indemnitee may now
or hereafter have under any provision of law, the Certificate of
Incorporation or By-laws of the Corporation, any other agreement, vote of
stockholders or disinterested directors or otherwise.
Section 8. Severability. If any provision of this Agreement shall be
held to be invalid or unenforceable for any reason whatsoever, the validity
and enforceability of the remaining portions of this Agreement shall not in
any way be affected or impaired thereby, and the Corporation shall continue
to indemnify Indemnitee to the full extent permitted by any portion of this
Agreement that shall not have been invalidated and to the full extent
permitted by applicable law.
Section 9. Notices. All notices, requests, and other communications
hereunder shall be in writing and shall be deemed to have been duly given
when delivered personally or when mailed by certified or registered mail,
postage prepaid, addressed to the party to whom directed at the address
indicated above or to such other address as may have been furnished by such
party by notice to the other party.
Section 10. Continuation of Indemnity; Binding Effect. The parties'
respective rights and obligations contained herein shall continue after
Indemnitee has ceased to be a director of the Corporation or to occupy any
of the other positions referred to in Section 2 hereof. This Agreement
shall be binding upon and inure to the benefit of Indemnitee and the
Corporation and their respective heirs, executors, administrators,
successors and assigns.
Section 11. Governing Law. This agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware.
Section 12. Amendment and Termination. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by both of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EDISON BROTHERS STORES, INC.
By_/S/_______________________________
Xxxx X. Xxxxxx
________________________________
[Name]
