INDEMNIFICATION AGREEMENT
Exhibit 10.3
THIS INDEMNIFICATION AGREEMENT is made on July 21, 2009, between Xxxxxxxxxxx International
Ltd., a corporation incorporated under the laws of Switzerland with its registered address at
Xxxxxxxxxxxx 00, xx 0000 Xxx, Xxxxxxxxxxx (the “Company”); and Xxxxx X. Xxxxxxx
(“Indemnitee”).
WHEREAS Indemnitee is a director and/or an officer of the Company;
WHEREAS highly skilled and competent persons are becoming more reluctant to serve public
companies as directors or officers unless they are provided with adequate protection through
insurance and indemnification against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of such companies;
WHEREAS uncertainties relating to indemnification increase the difficulty of attracting and
retaining such persons;
WHEREAS the Board has determined that an inability to attract and retain such persons is
detrimental to the best interests of the Company and that the Company should act to assure such
persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify Indemnitee to the fullest extent permitted by Swiss law so that Indemnitee will
serve or continue to serve the Company free from undue concern that Indemnitee will not be so
indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the Company on the condition that Indemnitee be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. INTERPRETATION
1.1 In this Agreement unless the context otherwise requires, the following words and
expressions shall have the following meanings:
“Agreement” means this Indemnification Agreement;
“Board” means the board of directors of the Company;
“Business Day” means any day on which banks in Switzerland are open for business;
“Corporate Status” means the status of a person who is or was a director, officer,
employee, agent, or fiduciary of the Company or any other Group Company, or is or was serving at
the request of the Company as a director, officer, employee, agent or fiduciary of any other
company, corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan or other entity or enterprise;
“Disinterested Director” means a director of the Company who is not or was not a party
to a Proceeding in respect of which indemnification is sought by Indemnitee;
“Group Companies” means the Company and each subsidiary of the Company (wherever
incorporated or organized);
“Independent Counsel” means a law firm or a member of a law firm that neither is
presently nor in the past five years has been retained to represent: (i) the Company or Indemnitee
in any matter material to either such party, or (ii) any other party to the Proceeding giving rise
to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either the Company or Indemnitee
in an action to determine Indemnitee’s right to indemnification under this Agreement;
“Parties” means the parties to this Agreement collectively, and “Party” means
any one of them; and
“Proceeding” means any action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative and whether formal or informal;
1.2 In this Agreement unless the context otherwise requires:
1.2.1 references to statutory provisions shall be construed as references to those provisions
as amended or re-enacted or as their application is modified by other provisions from time to time
and shall include references to any provisions of which they are re-enactments (whether with or
without modification);
1.2.2 references to clauses and schedules are references to clauses hereof and schedules
hereto; references to sub-clauses or paragraphs are, unless otherwise stated, references to
sub-clauses of the clause or paragraphs of the schedule in which the reference appears;
1.2.3 references to the singular shall include the plural and vice versa and references to the
masculine shall include the feminine and/or neuter and vice versa; and
1.2.4 references to persons shall include companies, partnerships, associations and bodies of
persons, whether incorporated or unincorporated.
2. AGREEMENT TO SERVE
Indemnitee agrees to serve as a director and/or an officer of the Company. This Agreement does
not create or otherwise establish any right on the part of Indemnitee to be and continue to be
elected or appointed a director and/or an officer of the Company or any other
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Group Company and does not create an employment contract between the Company and Indemnitee.
3. INDEMNITY OF DIRECTOR/OFFICER
3.1 Subject to clause 10, the Company shall indemnify Indemnitee if Indemnitee is a party or
is threatened to be made a party to any threatened, pending or completed Proceeding, including a
Proceeding brought by or in the right of the Company, by reason of the fact that Indemnitee is or
was a director, officer, employee, agent, or fiduciary of the Company or is or was serving at the
request of the Company as a director, officer, employee, agent, or fiduciary of any other company,
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other entity or enterprise or by reason of anything done or not done by Indemnitee in any such
capacity. Subject to clause 10, pursuant to this sub-clause 3.1 Indemnitee shall be indemnified
against expenses (including attorneys’ fees and disbursements), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with such
Proceeding (including, but not limited to, the investigation, defense, settlement or appeal
thereof).
3.2 Notwithstanding any other provision of this Agreement other than clause 10, Indemnitee
shall be indemnified against all expenses (including attorneys’ fees and disbursements) actually
and reasonably incurred by Indemnitee or on Indemnitee’s behalf in defending any Proceedings
referred to in clause 3.1 in which judgment is given in his favour, in which he is acquitted, or in
respect of which relief is granted to him.
Subject to clause 10, the Company shall indemnify Indemnitee for such portion of the expenses
(including attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in settlement
and any other amounts that Indemnitee becomes legally obligated to pay in connection with any
Proceeding referred to in clause 3.1 in respect of which Indemnitee is entitled to indemnification
hereunder, even if Indemnitee is not entitled to indemnification hereunder for the total amount
thereof.
4. INDEMNIFICATION FOR EXPENSES OF A WITNESS
Subject to clause 10, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate
Status, a witness in any proceeding, Indemnitee shall be indemnified by the Company against all
expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
5. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
5.1 Indemnitee shall request indemnification pursuant to this Agreement by notice in writing
to the secretary of the Company. The secretary shall, promptly upon receipt of Indemnitee’s request
for indemnification, advise in writing the Board or such other person or persons empowered to make
the determination as provided in sub-clause 5.2 that Indemnitee has made such request for
indemnification. Subject to clause 10, upon making such request for indemnification, Indemnitee
shall be presumed to be entitled to indemnification hereunder and
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the Company shall have the burden of proof in the making of any determination contrary to such
presumption.
5.2 Upon written request by Indemnitee for indemnification pursuant to sub-clause 3.1, the
entitlement of Indemnitee to indemnification pursuant to the terms of this Agreement shall be
determined by the following person or persons who shall be empowered to make such determination:
5.2.1 the Board, by a majority vote of the Disinterested Directors; or
5.2.2 if such vote is not obtainable or, even if obtainable, if such Disinterested Directors
so direct by majority vote, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee; or
5.2.3 by a majority vote of the shareholders.
5.3 For purposes of sub-clause 5.2, Independent Counsel shall be selected by the Board and
approved by Indemnitee. Upon failure of the Board to so select such Independent Counsel or upon
failure of Indemnitee to so approve, either the Board or Indemnitee may request the International
Chamber of Commerce (the “ICC”) to appoint an Independent Counsel in accordance with the
provisions regarding the appointment of experts contained in the ICC’s Rules for Expertise. Such
determination of entitlement to indemnification shall be made not later than 60 days after receipt
by the Company of a written request for indemnification. Such request shall include documentation
or information which is necessary for such determination and which is reasonably available to
Indemnitee. Subject to clause 10, any expenses (including attorneys’ fees) incurred by Indemnitee
in connection with Indemnitee’s request for indemnification hereunder shall be borne by the Company
irrespective of the outcome of the determination of Indemnitee’s entitlement to indemnification.
If the person or persons making such determination shall determine that Indemnitee is entitled to
indemnification as to part (but not all) of the application for indemnification, such persons may
reasonably prorate such partial indemnification among such claims, issues or matters in respect of
which indemnification is requested.
6. ADVANCEMENT OF EXPENSES
All reasonable expenses incurred by Indemnitee (including attorneys’ fees, retainers and
advances of disbursements required of Indemnitee) shall be paid by the Company in advance of the
final disposition of any Proceeding at the request of Indemnitee as promptly as possible, and in
any event within twenty days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time. Indemnitee’s entitlement to such
expenses shall include those incurred in connection with any Proceeding by Indemnitee seeking an
adjudication or award in arbitration pursuant to this Agreement. Such statement or statements
shall reasonably evidence the expenses incurred by Indemnitee in connection therewith and shall
include or be accompanied by an undertaking by or on behalf of Indemnitee to repay such amount if
it is ultimately determined that Indemnitee is not entitled to be indemnified against such expenses
by the Company as provided by this Agreement or otherwise. Subject to clause 10, the Company shall
have the burden of proof in any
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determination under this clause 6. No amounts advanced hereunder shall be deemed an extension of
credit by the Company to Indemnitee.
7. REMEDIES OF INDEMNITEE IN CASES OF DETERMINATION NOT TO INDEMNIFY OR TO ADVANCE EXPENSES
7.1 In the event that: (a) a determination is made that Indemnitee is not entitled to
indemnification hereunder; (b) payment has not been timely made following a determination of
entitlement to indemnification pursuant to clause 5; or (c) expenses are not advanced pursuant to
clause 6, Indemnitee shall be entitled to apply to a court of competent jurisdiction at the place
of incorporation of the Company for a determination of Indemnitee’s entitlement to such
indemnification or advance.
7.2 Alternatively to sub-clause 7.1, Indemnitee, at Indemnitee’s option, may seek an award in
arbitration to be conducted by an arbitral tribunal administered by the Swiss Xxxxxxxx of Commerce
in accordance with the Swiss Rules of International Arbitration in force on the date when the
notice of arbitration is submitted in accordance with the rules set out in this Agreement. The seat
of the arbitration shall be at the place of incorporation of the Company. The arbitral proceedings
shall be conducted in the English language. The Company shall not oppose Indemnitee’s right to
seek any such adjudication or award in arbitration or any other claim.
7.3 Subject to clause 10, if a determination is made pursuant to the terms of clause 5 that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination and is
precluded from asserting that such determination has not been made or that the procedure by which
such determination was made is not valid, binding and enforceable. If the court or arbitral
tribunal shall determine that Indemnitee is entitled to any indemnification hereunder, the Company
shall pay all reasonable expenses (including attorneys’ fees and disbursements) actually incurred
by Indemnitee in connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).
8. OTHER RIGHTS TO INDEMNIFICATION
The indemnification and advancement of expenses (including attorneys’ fees) provided by this
Agreement shall not be deemed exclusive of any other right to which Indemnitee may now or in the
future be entitled under any provision of the Company’s articles of association or organizational
regulations or any agreement, vote of shareholders, the Board or Disinterested Directors, provision
of law, or otherwise, provided, however, that where the Company may indemnify Indemnitee pursuant
to either this Agreement or the articles of association or organizational regulations of the
Company, the Company may indemnify Indemnitee under either this Agreement or the articles of
association or organizational regulations of the Company but Indemnitee shall, in no case, be
indemnified by the Company in respect of any expense, liability or cost of any type for which
payment is or has been actually made to Indemnitee under any insurance policy, indemnity clause,
articles of association or organizational regulations of the Company or agreement, except in
respect of any excess beyond such payment. This Agreement shall not supersede any indemnification
or other agreements previously entered into between Indemnitee and Xxxxxxxxxxx International Ltd.,
a Bermuda company, and/or Xxxxxxxxxxx International, Inc., a Delaware corporation, it being the
intention of the Parties that
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Indemnitee shall be entitled to the indemnification provided under any or all agreements to the
fullest extent permitted by Swiss or other applicable law.
9. ATTORNEYS’ FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT
In the event that Indemnitee is subject to or intervenes in any Proceeding in which the
validity or enforceability of this Agreement is at issue or seeks an adjudication or award in
arbitration to enforce Indemnitee’s rights under, or to recover damages for breach of, this
Agreement, Indemnitee, if Indemnitee prevails in whole or in part in such action, shall be entitled
to recover from the Company and shall be indemnified by the Company against, any actual expenses
for attorneys’ fees and disbursements reasonably incurred by Indemnitee, provided that in bringing
such action, Indemnitee acted in good faith.
10. LIMITATION OF INDEMNIFICATION
10.1 Notwithstanding any other terms of this Agreement, nothing herein shall indemnify
Indemnitee against, or exempt Indemnitee from, any liability in respect of Indemnitee’s gross
negligence and willful intent pursuant to Art. 100 § 1 of the Swiss Code of Obligations; provided
however, that to the extent Swiss applicable law changes after the date of this Agreement so that
the Company may, under such law, at the applicable time, indemnify Indemnitee to an extent greater
than provided in this clause 10 (as a result of the restrictions contained in this clause 10), the
Company shall indemnify Indemnitee without regard to the restrictions contained in this clause 10
to the fullest extent permitted under applicable law at such time.
10.2 In addition, notwithstanding any other terms of this Agreement, nothing herein shall
indemnify Indemnitee against, or exempt Indemnitee from, any liability in respect of Indemnitee’s
fraud and dishonesty.
11. LIABILITY INSURANCE
To the extent the Company maintains an insurance policy or policies providing directors’ and
officers’ liability insurance, Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage available for any Company
director or officer and to the fullest extent permitted by Swiss law.
12. DURATION OF AGREEMENT
This Agreement shall apply with respect to Indemnitee’s occupation of any of the position(s)
described in sub-clause 3.1 of this Agreement prior to the date of this Agreement and with respect
to all periods of such service after the date of this Agreement, even though Indemnitee may have
ceased to occupy such positions(s).
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13. NOTICE OF PROCEEDINGS BY INDEMNITEE
13.1 Indemnitee agrees promptly to notify the Company in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information or other document relating to any
Proceeding which may be subject to indemnification hereunder, provided, however, that the failure
to so notify the Company will not relieve the Company from any liability it may have to Indemnitee
except to the extent that such failure materially prejudices the Company’s ability to defend such
claim. With respect to any such Proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
13.1.1 the Company will be entitled to participate therein at its own expense; and
13.1.2 except as otherwise provided below, to the extent that it may wish, the Company jointly
with any other indemnifying party similarly notified will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election so to assume the defense thereof, the Company 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 other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such
Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of Indemnitee and not subject to
indemnification hereunder unless: (a) the employment of counsel by Indemnitee has been authorized
by the Company; (b) in the reasonable opinion of counsel to Indemnitee there is or may be a
conflict of interest between the Company and Indemnitee in the conduct of the defense of such
Proceeding; or (c) the Company shall not in fact have employed counsel to assume the defense of
such action, in each of which cases, subject to clause 10, the fees and expenses of counsel shall
be at the expense of the Company.
13.2 Neither the Company nor Indemnitee shall settle any claim without the prior written
consent of the other (which shall not be unreasonably withheld).
14. NOTICES
Any notice required to be given hereunder shall be in writing in the English language and
shall be served by sending the same by prepaid recorded post, facsimile or by delivering the same
by hand to the address of the Party or Parties in question as set out below (or such other address
as such Party or Parties shall notify the other Parties of in accordance with this clause). Any
notice sent by post as provided in this clause shall be deemed to have been served five Business
Days after dispatch and any notice sent by facsimile as provided in this clause shall be deemed to
have been served at the time of dispatch and in proving the service of the same it will be
sufficient to prove in the case of a letter that such letter was properly stamped, addressed and
placed in the post; and in the case of a facsimile that such facsimile was duly dispatched to a
current facsimile number of the addressee.
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Company
Xxxxxxxxxxx International Ltd.
Xxxxxxxxxxxx 00
0000 Xxx
Xxxxxxxxxxx
Attn: Secretary
Xxxxxxxxxxxx 00
0000 Xxx
Xxxxxxxxxxx
Attn: Secretary
Indemnitee
Xxxxx X. Xxxxxxx
000 Xxxx Xxx Xxxx.
Xxxxxxx, XX 00000
000 Xxxx Xxx Xxxx.
Xxxxxxx, XX 00000
15. MISCELLANEOUS
15.1 Notwithstanding the expiration or termination of this Agreement howsoever arising, such
expiration or termination shall not operate to affect such of the provisions hereof as are
expressed or intended to remain in full force and effect.
15.2 If any of the clauses, conditions, covenants or restrictions of this Agreement or any
deed or document emanating from it shall be found to be void but would be valid if some part
thereof were deleted or modified, then such clause, condition, covenant or restriction shall apply
with such deletion or modification as may be necessary to make it valid and effective so as to give
effect as nearly as possible to the intent manifested by such clause, condition, covenant or
restriction.
15.3 This Agreement shall be binding upon the Company and its successors and assigns
(including any transferee of all or substantially all of its assets and any successor or resulting
company by merger, amalgamation or operation of law) and shall inure to the benefit of Indemnitee
and Indemnitee’s spouse, assigns, heirs, estate, devises, executors, administrators or other legal
representatives.
15.4 This Agreement (together with any documents referred to herein) constitutes the whole
agreement between the Parties relating to its subject matter and supersedes any prior
indemnification arrangement between the Company (or its predecessor) and Indemnitee (except as
specifically set forth in clause 8).
15.5 No provision in this Agreement may be amended unless such amendment is agreed to in
writing, signed by Indemnitee and by a duly authorized officer of the Company. No waiver by either
Party of any breach by the other Party of any condition or provision of this Agreement to be
performed by such other Party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver must be in writing and signed by
Indemnitee or a duly authorized officer of the Company, as the case may be.
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15.6 The headings in this Agreement are inserted for convenience only and shall not affect the
construction of this Agreement.
15.7 This Agreement may be executed in counterparts each of which when executed and delivered
shall constitute an original but all such counterparts together shall constitute one and the same
instrument.
15.8 The terms and conditions of this Agreement and the rights of the parties hereunder shall
be governed by and construed in all respects in accordance with the laws of Switzerland. The
Parties to this Agreement hereby irrevocably agree that the court at the place of incorporation of
the Company shall have non-exclusive jurisdiction in respect of any dispute, suit, action,
arbitration or proceedings (“Agreement Proceedings”) which may arise out of or in
connection with this Agreement and waive any objection to Agreement Proceedings in such court on
the grounds of venue or on the basis that the Agreement Proceedings have been brought in an
inconvenient forum.
15.9 All payments made by the Company to Indemnitee hereunder shall be deemed to have been
made in the ordinary course of business of the Company, and shall not be deemed to be extraordinary
payments.
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IN WITNESS WHEREOF, the undersigned, intending to be bound hereby, have duly executed this
Agreement as of the date first written above.
SIGNED by and on behalf of:
XXXXXXXXXXX INTERNATIONAL LTD.
By: Name: |
/s/ XXXXXXX X. DUROC-XXXXXX
|
|||
Title:
|
Chairman, President and CEO | |||
| SIGNED by: | ||||
| INDEMNITEE | ||||
| /S/ XXXXX X. XXXXXXX | ||||
| Xxxxx X. Xxxxxxx | ||||
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