EXHIBIT 10.19
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT is made as of the 11th day of May, 2004 by and
between PHOENIX FOOTWEAR GROUP, INC., a Delaware corporation (the "Corporation")
and Xxxxxxx X. Xxxx ("Indemnitee"), a director and/or officer of the
Corporation.
R E C I T A L S :
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available;
WHEREAS, the Indemnitee has indicated that he does not regard the
protection available under the Corporation's Certificate of Incorporation and
insurance as adequate to protect him against the risks associated with his
service to the Corporation;
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its directors and officers so as to provide them with
the maximum possible protection permitted by law; and
WHEREAS, the Indemnitee is willing to serve, or continued to serve, the
Corporation, provided, and on the expressed condition, that he is furnished with
the indemnification provided for in this Agreement.
P R O V I S I O N S :
NOW, THEREFORE, in order to induce Indemnitee to serve or to continue to
serve in his current position as a director and/or officer for the Corporation,
and in consideration of his continued service, the Corporation and Indemnitee
hereby agree as follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to serve
as a director and/or officer of the Corporation for so long as he is duly
elected or appointed or until such time as he may resign. This Agreement shall
not impose any obligation on the Indemnitee or the Corporation to continue the
Indemnitee's position with the Corporation beyond any period otherwise
applicable, nor to create any right to continued employment of the Indemnitee in
any capacity.
2. DEFINITIONS. As used in this Agreement:
(a) "Change in Control" means a change in control of the
Corporation occurring hereafter 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) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not
the Corporation is then subject to such reporting requirement; provided,
however, that, without limiting the generality of the foregoing, a Change in
Control shall be deemed to have occurred (irrespective of the applicability of
the initial clause of this definition) if at any time hereafter (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
Corporation representing 50% or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of at least
two-thirds of the members of the whole Board in office immediately prior to such
person attaining such percentage interest; or (ii) the Corporation is a party to
a merger, consolidation, share exchange, sale of assets or other reorganization,
or a proxy contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less than a majority
of the whole Board thereafter.
(b) "Corporate Status" describes the status of a person who is or
was or has agreed to become a director, officer, employee or agent or fiduciary
of the Corporation or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person is or was
serving at the express request of the Corporation.
(c) "DGCL" means the Delaware General Corporation Law and any
successor statute thereto as either of them may be amended from time to time.
(d) "Disinterested Director" means a director of the Corporation
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(e) The term "Expenses" includes, without limitation thereto,
expenses of investigations, judicial or administrative proceedings or appeals,
attorneys' fees, retainers, disbursements (including transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, etc.), costs of
attachment or similar bonds and any expenses of establishing a right to
indemnification under Section 7 of this Agreement, but shall not include the
amount of judgements, Fines or penalties against, or amounts paid in settlement
by or on behalf of, Indemnitee.
(f) "Fines" includes any excise tax assessed with respect to any
employee benefit plan.
(g) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five (5) years has been, retained to represent: (i) the
Corporation or Indemnitee in any matter material to either such party (other
than with respect to matters concerning the Indemnitee under this Agreement, or
of other indemnitees under similar indemnification agreements), or (ii) any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" does
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Corporation or Indemnitee in an action to determine Indemnitee's
rights under this Agreement. The Corporation agrees to pay the reasonable fees
of the Independent Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
(h) The phrase "not opposed to the best interests of the
Corporation" includes, in the case of employee benefit plans, any action taken
in good faith and in a manner the Indemnitee reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan.
(i) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the right of the
Corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee may be or may have been involved as a
party or
otherwise, by reason of (i) Indemnitee's Corporate Status; or (ii) the fact that
Indemnitee took or failed to take any action in his Corporate Status, in each
case whether or not he had such Corporate Status at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.
3. INDEMNITY IN THIRD PARTY PROCEEDING. Subject to the terms and
conditions herein, the Corporation shall and does hereby hold harmless and
indemnify Indemnitee if Indemnitee by reason of his Corporate Status is a party
to or threatened to be made a party to or otherwise involved in any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a
judgment in its favor) against all Expenses and all judgments against and Fines
and penalties imposed on Indemnitee and amounts paid in settlement by him or on
his behalf actually and reasonably incurred by Indemnitee in connection with the
defense or settlement of such Proceeding if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION.
Subject to the terms and conditions herein, the Corporation shall and does
hereby hold harmless and indemnify Indemnitee if by reason of his Corporate
Status Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding by or in the right of the Corporation to procure a
judgment in its favor against all Expenses actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such Proceeding if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except that, if applicable
law so provides, no indemnification for Expenses shall be made under this
Section 4 in respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Corporation (and is not exonerated from
liability under the Certificate of Incorporation) unless and only to the extent
that any court in which such Proceeding was brought (or an appropriate appellate
court) shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonable entitled to indemnity for such expenses as such court shall deem
proper.
5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provisions of this Agreement, to the extent that Indemnitee is a party by
reason of his Corporate Status and is successful on the merits or otherwise, in
defense of any Proceeding or in defense of any claim, issue or matter therein,
including the dismissal of an action without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
6. ASSUMPTION OF DEFENSE. In the event the Corporation shall be
obligated to pay the Expenses of any Proceeding against the Indemnitee, the
Corporation, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel reasonably acceptable to the Indemnitee, upon the
delivery to the Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by the Indemnitee and the
retention of such counsel by the Corporation, the Corporation will not be liable
to the Indemnitee under this Agreement for any fees of counsel subsequently
incurred by the Indemnitee with respect to the same Proceeding, provided that
(i) the Indemnitee shall have the right to employ his counsel in such Proceeding
at the Indemnitee's expense; and (ii) if (a) the employment of counsel by the
Indemnitee has been previously authorized in writing by the Corporation, (b) the
Corporation shall have reasonably concluded that there may be a conflict of
interest between the Corporation and the Indemnitee in the conduct of any such
defense, or (c) the Corporation shall not, in fact, have employed counsel to
assume the defense of such Proceeding, then the fees and Expenses of the
Indemnitee's counsel shall be at the expense of the Corporation.
7. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.
(a) Whether or not the indemnification provided in Sections 3, 4,
5 and 6 hereof is available, in respect of any Proceeding in which the
Corporation is jointly liable with Indemnitee (or would be if joined in such
Proceeding), the Corporation shall pay, in the first instance, the entire amount
of any judgment or amounts paid in settlement of such Proceeding without
requiring Indemnitee to contribute to such payment and the Corporation hereby
waives and relinquishes any right of contribution it may have against
Indemnitee. The Corporation shall not enter into any settlement of any
Proceeding in which the Corporation is jointly liable with Indemnitee (or would
be if joined in such Proceeding) unless such settlement provides for a full and
final release of all claims asserted against Indemnitee and does not impose any
restrictions on Indemnitee.
(b) Without diminishing or impairing the obligations of the
Corporation set forth in the preceding subparagraph, if, for any reason,
Indemnitee shall elect or be required to pay all or any portion of any judgment
or amounts paid in settlement in any Proceeding in which the Corporation is
jointly liable with Indemnitee (or would be if joined in such Proceeding), the
Corporation shall contribute to the amount of Expenses, judgments, Fines,
penalties and amounts paid in settlement actually and reasonably incurred and
paid or payable by Indemnitee in proportion to the relative benefits received by
the Corporation and all officers, directors or employees of the Corporation
other than Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such Proceeding), on the one hand, and Indemnitee, on the other hand,
from the transaction from which such Proceeding arose; provided, however, that
the proportion determined on the basis of relative benefit may, to the extent
necessary to conform to law, be further adjusted by reference to the relative
fault of the Corporation and all officers, directors or employees of the
Corporation other than Indemnitee who are jointly liable with Indemnitee (or
would be if joined in such Proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the events that resulted in such Expenses,
judgments, Fines, penalties or settlement amounts, as well as any other
equitable considerations which the law may require to be considered. The
relative fault of Corporation and all officers, directors or employees of the
Corporation other than Indemnitee who are jointly liable with Indemnitee (or
would be if joined in such Proceeding), on the one hand, and Indemnitee, on the
other hand, shall be determined by reference to, among other things, the degree
to which their actions were motivated by intent to gain personal profit or
advantage, the degree to which their liability is primary or secondary, and the
degree to which their conduct is active or passive.
(c) The Corporation hereby agrees to fully indemnify and hold
Indemnitee harmless from any claims of contribution which may be brought by
officers, directors or employees of the Corporation other than Indemnitee who
may be jointly liable with Indemnitee.
8. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding to which Indemnitee is not a
party, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.
9. ADVANCES OF EXPENSES. Notwithstanding any other provision of this
Agreement, the Expenses that Indemnitee incurs in any Proceeding shall be paid
by the Corporation in advance at Indemnitee's written request if Indemnitee
shall undertake to repay such amount (i) if it is ultimately determined that
Indemnitee is
not entitled to indemnification, or (ii) if Indemnitee shall be otherwise
reimbursed for such Expenses (as, for example, from insurance). Any advances and
undertakings to repay pursuant to this Section 9 shall be unsecured and interest
free. Notwithstanding the foregoing, the obligation of the Corporation to
advance Expenses pursuant to this Section 9 shall be subject to the condition
that, if, when and to the extent that the Corporation determines that Indemnitee
would not be permitted to be indemnified under applicable law, the Corporation
shall be entitled to be reimbursed, within thirty (30) days of such
determination, by Indemnitee (who hereby agrees to reimburse the Corporation)
for all such amounts theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Corporation that Indemnitee
would not be permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the Corporation for
any advance of Expenses until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed).
10. APPLICATION FOR AND APPROVAL OF INDEMNIFICATION.
(a) In order to obtain indemnification (including, but not limited
to, the advances of Expenses and contribution) under this Agreement, Indemnitee
must make a written application to the Corporation as soon as reasonably
practicable after learning of any claim made or the threat of a claim to be made
against him for which indemnity will or could be sought under this Agreement.
Notice shall be deemed to be received, without limitation, upon Indemnitee being
served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Corporation
shall not relieve the Corporation of any obligation which it may have to the
Indemnitee under this Agreement or otherwise unless and only to the extent that
such failure or delay materially prejudices the Corporation. The application
should be sent to:
Phoenix Footwear Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President
The application shall be deemed received on the date postmarked if sent by
prepaid first class mail properly addressed. Indemnitee shall submit to the
Corporation with his written request for indemnification 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 Secretary of the Corporation 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 the first sentence of Section 10(a) hereof, a determination, if
required by applicable law, with respect to Indemnitee's entitlement thereto
shall be made in the specific case as follows:
(i) If a Change in Control shall have occurred, by
Independent Counsel (selected in accordance with Section 10(c) hereof), in a
written opinion to the Board, a copy of which shall be delivered to
Indemnitee unless Indemnitee shall request that such determination be made by
the Disinterested Directors, in which case in the manner provided for in Section
10 (c) below;
(ii) If a Change in Control shall not have occurred, (A) by a
majority vote of the Disinterested Directors, even though less than a quorum of
the Board, or (B) if there are no Disinterested Directors, or if such
Disinterested Directors so direct, by Independent Counsel in a written opinion
to the Board, a copy of which shall be delivered to the Indemnitee, or (C) if
Indemnitee and the Corporation mutually agree, by the stockholders of the
Corporation.
(c) If a Change in Control shall not have occurred and the
determination of entitlement to indemnification is to be made by Independent
Counsel, the Independent Counsel shall be selected by (a) a majority vote of the
Disinterested Directors, even though less than a quorum of the Board or (b) if
there are no Disinterested Directors, by a majority vote of the Board, and the
Corporation shall give written notice to Indemnitee, within ten (10) days after
receipt by the Corporation of Indemnitee's request for indemnification,
specifying the identity and address of the Independent Counsel so selected. If a
Change in Control shall have occurred and the determination of entitlement to
indemnification is to be made by Independent Counsel, the Independent Counsel
shall be selected by Indemnitee, and Indemnitee shall give written notice to the
Corporation, within ten (10) days after submission of Indemnitee's request for
indemnification, specifying the identity and address of the Independent Counsel
so selected (unless Indemnitee shall request that such selection be made by the
Disinterested Directors, in which event the Corporation shall give written
notice to Indemnitee, within ten (10) days after receipt of Indemnitee's request
for the Disinterested Directors to make such selection, specifying the identity
and address of the Independent Counsel so selected). In either event, (i) such
notice to Indemnitee or the Corporation, as the case may be, shall be
accompanied by a written affirmation of the Independent Counsel so selected that
it satisfies the requirements of the definition of "Independent Counsel" in
Section 2 and that it agrees to serve in such capacity and (ii) Indemnitee or
the Corporation, as the case may be, may, within seven days after such written
notice of selection shall have been given, deliver to the Corporation or to
Indemnitee, as the case may be, a written objection to such selection. Any
objection to selection of Independent Counsel pursuant to this Section 10(c) may
be asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of the definition of "Independent Counsel" in Section 2,
and the objection shall set forth with particularity the factual basis of such
assertion. If such written objection is timely made, the Independent Counsel so
selected may not serve as Independent Counsel unless and until the Court has
determined that such objection is without merit. In the event of a timely
written objection to a choice of Independent Counsel, the party originally
selecting the Independent Counsel shall have seven days to make an alternate
selection of Independent Counsel and to give written notice of such selection to
the other party, after which time such other party shall have five days to make
a written objection to such alternate selection. If, within thirty (30) days
after submission of Indemnitee's request for indemnification pursuant to Section
10(a) hereof, no Independent Counsel shall have been selected and not objected
to, either the Corporation or Indemnitee may petition the Court for resolution
of any objection that shall have been made by the Corporation or Indemnitee to
the other's selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the Court or by such other person as
the Court shall designate, and the person with respect to whom an objection is
so resolved or the person so appointed shall act as Independent Counsel under
Section 10(b) hereof. The Corporation shall pay any and all reasonable fees and
expenses incurred by such Independent Counsel in connection with acting pursuant
to Section 10(b) hereof, and the Corporation shall pay all reasonable fees and
expenses incident to the procedures of this Section 10 (c), regardless of the
manner in which such Independent Counsel was selected or appointed. Upon the due
commencement of any judicial
proceeding pursuant to Section 16 hereof, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then in effect)
11. PROCEDURE AND PRESUMPTION FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION UPON Application.
(a) Any indemnification or advance under this Agreement shall be
made prior to the later of the forty-fifth (45th) day after the Corporation's
receipt of the written request therefor by Indemnitee or the thirtieth (30th)
day after the selection of Independent Counsel. These time periods may be
extended for a reasonable time, not to exceed , if the person, persons or entity
making the determination with respect to entitlement to indemnification in good
faith requires such additional time, an additional fifteen (15) days for the
obtaining or evaluating documentation and/or information relating thereto; and
provided, further, that the foregoing provisions of this Section 11 shall not
apply if the determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 10(b)(ii) of this Agreement and if (A)
within fifteen (15) days after receipt by the Corporation of the request for
such determination the Board of Directors or the Disinterested Directors, if
appropriate, resolve to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy five (75)
days after such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within fifteen (15) days after such receipt
for the purpose of making such determination, such meeting is held for such
purpose within sixty (60) days after having been so called and such
determination is made thereat.
(b) The right to indemnification or advances as provided by this
Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction. The burden of proving that indemnification or advances are not
appropriate either because Indemnitee has been adjudged liable to the
Corporation as contemplated under Section 4 or because one of the exclusions in
Section 14 applies, shall be on the Corporation. Accordingly, in making a
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. The Corporation may overcome this presumption and its burden of proof
and burden of persuasion only by clear and convincing evidence. Neither the
failure of the Corporation (including the Board of Directors or Independent
Counsel) to have made a determination prior to the commencement of such action
that indemnification or advances are proper in the circumstances nor an actual
determination by the Corporation (including its Board of Directors or
Independent Counsel) that indemnification is not proper in the circumstances
shall be a defense to the action or create a presumption that Indemnitee is not
entitled to indemnification. In addition, where indemnification in a Proceeding
is being denied on the basis of Indemnitee's failure to act in good faith or in
a manner that Indemnitee believes to be in or not opposed to the best interests
of the Corporation, or on the basis of intentional misconduct or knowing
violation of the law, the termination of any such Proceeding by judgement, order
of court, 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 or in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, or knowingly violated the law
and, with respect to any criminal proceeding, had no reasonable cause to believe
his conduct was unlawful. Indemnitee's Expenses incurred in connection with
successfully establishing his right to indemnification or advances, in whole or
in part, in any such Proceeding shall also be indemnified by the Corporation.
(c) Indemnitee shall be deemed to have acted in good faith if
Indemnitee's action is based on the records or books of account of the
Corporation, including financial statements, or on information supplied to
Indemnitee by the officers of the Corporation in the course of his duties, or on
the advice of legal counsel for the Corporation or on information or records
given or reports made to the Indemnitee by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Corporation. In addition, the knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Corporation shall not be
imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement.
(d) The Corporation acknowledges that a settlement or other
disposition short of final judgment may be successful resolution of a Proceeding
if it permits a party to avoid expense, delay, distraction, disruption and
uncertainty. In the event that any Proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against Indemnitee
(including, without limitation, settlement of such Proceeding with or without
payment of money or other consideration) it shall be presumed that Indemnitee
has been successful on the merits or otherwise in such action, suit or
proceeding. Anyone seeking to overcome this presumption shall have the burden of
proof and the burden of persuasion, by clear and convincing evidence.
12. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE, DIRECTORS & OFFICERS
INSURANCE, ETC.
(a) The indemnification provided by this Agreement shall not be
deemed exclusive of any other rights or remedies to which Indemnitee may be
entitled under the Certificate of Incorporation, the By-Laws, any agreement, any
vote of stockholders or Disinterested Directors, the DGCL, or otherwise, both as
to action in his Corporate Status and as to action in another capacity while
holding such Corporate Status and every other right and remedy shall be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
(b) 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. To the extent
that a change in the DGCL, whether by statute or judicial decision, permits
greater indemnification than would be afforded currently under the By-Laws and
this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.
(c) To the extent that the Corporation maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees or agents or fiduciaries of the Corporation or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the Corporation,
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 such
director, officer, employee or agent under such policy or policies.
(d) For a period of three years after the date the Indemnitee
shall have ceased to serve as an officer or director of the Corporation, the
Corporation will provide officers and directors liability insurance for
Indemnitee on terms no less favorable than the terms of the liability insurance
which the Corporation then provides to the current officers and directors;
provided, that the Corporation provides officers and directors
liability insurance to its current officers and directors; and provided further,
that the annual premiums for the liability insurance to be provided to the
Indemnitee do not exceed by more than 50% the premium charged for the coverage
available for any of the Corporation's current officers and directors.
13. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, Fines, penalties or amounts paid in
settlement by or on behalf of Indemnitee actually and reasonably incurred by him
in the investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, the Corporation shall nevertheless
indemnify Indemnitee for the portion of such Expenses, judgments, Fines,
penalties or amounts paid in settlement to which Indemnitee is entitled.
14. EXCLUSIONS FROM INDEMNIFICATION. Notwithstanding anything else
herein to the contrary, the Corporation shall not indemnify Indemnitee for any
Expenses or, if applicable, any judgments, Fines, penalties or amounts paid in
settlement by or on behalf of Indemnitee, in the following instances:
(a) Where payment is actually made to the Indemnitee under a valid
and collectible insurance policy, except in respect of any excess beyond the
amount of payment under such insurance;
(b) Where Indemnitee is indemnified by the Corporation otherwise
than pursuant to this Agreement;
(c) Where it is established in a judgment or other final
adjudication that the Indemnitee is guilty of (i) any breach of the Indemnitee's
duty of loyalty to the Corporation or its stockholders, (ii) failing to act in
good faith or in a manner that Indemnitee reasonably believes to be in or not
opposed to the best interests of the Corporation, (iii) acts or omissions which
involve intentional misconduct or knowing violation of law, (iv) paying a
dividend or approving a stock repurchase which was illegal under Section 174 (or
a successor section) of the DGCL or (v) any transaction where the Indemnitee
derived an improper personal benefit;
(d) Where the Proceeding giving rise to the claim for
indemnification is for an accounting of profits made from the purchase or sale
by the Indemnitee of securities of the Corporation within the meaning of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any state statutory law or common law; or
(e) Any Proceeding brought by Indemnitee, or any claim therein,
unless and to the extent that (i) the bringing of such Proceeding or making of
such claim shall have been approved by the Board of Directors of the Corporation
or (ii) such Proceeding is being brought by the Indemnitee to assert, interpret
or enforce his rights under this Agreement.
15. COOPERATION OF INDEMNITEE. Indemnitee shall cooperate with the
person, persons or entity making a 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. Any
Independent Counsel, member of the Board of Directors, or stockholder of the
Corporation shall act reasonably and in good faith in making a determination
under the Agreement of the Indemnitee's entitlement to indemnification. Any
costs or Expenses incurred by Indemnitee in so cooperating with the person,
persons or entity making such determination shall be borne by the
Corporation (irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
16. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to
Sections 10 and 11 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 9 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Sections 10 and
11 of this Agreement within the required time periods, or (iv) payment of
indemnification is not made within ten (10) days after a determination has been
made that Indemnitee is entitled to indemnification or such determination is
deemed to have been made pursuant to Sections 10 and 11 of this Agreement,
Indemnitee shall be entitled to an adjudication in an appropriate court of the
State of Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification. Indemnitee shall commence such proceeding
seeking an adjudication within one hundred eighty (180) days following the date
on which Indemnitee first has the right to commence such proceeding pursuant to
this Section 16(a). The Corporation shall not oppose Indemnitee's right to seek
any such adjudication.
(b) In the event that a determination shall have been made
pursuant to Sections 10 and 11 of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding commenced pursuant to this Section
16 shall be conducted in all respects as a de novo trial, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made pursuant to Sections
10 and 11 of this Agreement that Indemnitee is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to this Section 16, absent a prohibition of such
indemnification under applicable law absent (i) 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, or (ii) a prohibition of such indemnification under
applicable law.
(d) In the event that Indemnitee, pursuant to this Section 16,
seeks a judicial adjudication of his rights under, or to recover damages for
breach of, this Agreement, or to recover under any directors' and officers'
liability insurance policies maintained by the Corporation, the Corporation
shall pay on his behalf, in advance, any and all expenses (of the types
described in the definition of Expenses in Section 2 of this Agreement) actually
and reasonably incurred by him in such judicial adjudication, regardless of
whether Indemnitee ultimately is determined to be entitled to such
indemnification, advancement of expenses or insurance recovery.
(e) The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 16 that the procedures
and presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court that the Corporation is bound by all the
provisions of this Agreement.
17. SUBROGATION. If the Corporation makes payment under this Agreement,
it shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee. Indemnitee shall execute all
papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the
Corporation effectively to bring suit to enforce such rights.
18. SAVINGS CLAUSE. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
Fines, penalties and amounts paid in settlement by or on behalf of Indemnitee
with respect to any Proceeding to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated or by any other
applicable law.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
20. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
21. SUCCESSORS AND ASSIGNS. The indemnification under this Agreement
shall inure to the benefit of the heirs, executors and personal and legal
representatives of Indemnitee. This Agreement shall be binding upon the
Corporation and its successors (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business or assets of the Corporation) and assigns.
22. ENTIRE AGREEMENT; AMENDMENT. This Agreement amends and restates the
Previous Agreement and constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all other
agreements and understandings, oral, written and implied, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended except in a writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereby caused this Agreement to be duly
executed and signed as of the day and year first above written.
PHOENIX FOOTWEAR GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
INDEMNITEE
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
SCHEDULE TO EXHIBIT 10.19 - FORM OF INDEMNITY AGREEMENT
BY AND AMONG PHOENIX FOOTWEAR GROUP, INC. AND THE
DIRECTORS AND OFFICERS OF THE COMPANY
The Indemnity Agreement filed as Exhibit 10.19 is substantially identical in all
material respects to the indemnity agreements which have been entered into by
Phoenix Footwear Group, Inc. and the following directors and officers of the
Company effective as of May 11, 2004:
Xxxxx X. Xxxxxxx
Xxxxx XxXxxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxxxx X. Port
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
