EXHIBIT 10.44
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "AGREEMENT") is made as of this ____
day of _______, 200_, by and between DSW Inc., an Ohio corporation (the
"COMPANY"), and ____________, an individual ("INDEMNITEE").
RECITALS
A. The regulations (the "REGULATIONS") of the Company provide for the
indemnification of the directors and officers of the Company to the greatest
extent permitted by Ohio law, including the Ohio General Corporation Law, as
amended (the "OGCL").
B. The Regulations and the OGCL permit contracts between the Company and
the directors and officers of the Company with respect to indemnification of
such directors and officers.
C. In accordance with the OGCL, the Company may purchase and maintain a
policy or policies of directors' and officers' liability insurance covering
certain liabilities that may be incurred by its directors and officers in the
performance of their obligations to the Company.
D. The Company recognizes that capable and qualified individuals are
becoming increasingly reluctant to serve as directors and/or officers of public
corporations as a result of the recent and ongoing enactment of statutes and
regulations pertaining to directors' and officers' responsibilities and the
increasing risk of lawsuits against directors and officers in the current
corporate climate in the United States, unless such individuals are provided
with more certain and secure protection against exposure to unreasonable
personal risk arising from their service and activities on behalf of a
corporation.
E. The Company is aware that individuals recruited to serve on the boards
of public corporations and as officers of public corporations generally are more
likely to agree to provide services to corporations that provide for separate
indemnification agreements with their directors and officers because, unlike
indemnification provisions contained in the articles of incorporation or the
regulations of a company or state statutory provisions, the indemnification
provisions contained in a separate agreement may not be amended or rescinded
without the consent of the director or officer who is a party to the agreement.
F. The Company recognizes that it is in the best interests of the Company
and its shareholders to attract and retain capable and qualified individuals to
serve on its Board of Directors (the "BOARD") and to serve as management of the
Company and to enable such directors and officers to exercise their independent
business judgment in their capacities as directors and officers without being
affected by the threat of exposure to unreasonable personal risk.
G. To induce Indemnitee to serve and/or continue to serve as a director
and/or officer of the Company, the Company desires Indemnitee to be indemnified
and advanced expenses as set forth herein.
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AGREEMENT
In consideration of Indemnitee's service as a director and/or officer of
the Company after the date hereof, the Company and Indemnitee hereby agree as
follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not otherwise defined
in this Agreement shall have the meanings set forth below:
"CORPORATE STATUS" means the fact that a person is or was a director
and/or an officer of the Company or is or was serving at the request of the
Company as a director, trustee, officer, partner, member or manager, of another
corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise. A Proceeding shall be deemed to have
been brought by reason of a person's "Corporate Status" if it is brought because
of the status described in the preceding sentence or because of any action or
inaction on the part of such person in connection with such status.
"DISINTERESTED DIRECTOR" means a director of the Company who is not and
was not a party to or threatened with a Proceeding in respect of which
indemnification is sought by Indemnitee.
"EXPENSES" shall include all reasonable attorneys' fees, disbursements and
retainers, court costs, transcript costs, fees of experts, witness fees, travel
and deposition costs, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees and all other disbursements or expenses
of the types customarily incurred in connection with (a) prosecuting, defending,
preparing to prosecute or defend, investigating, settling or appealing a
Proceeding (including the cost of any appeal bond or its equivalent), (b) being
prepared to be a witness or otherwise participating in a Proceeding or (c)
enforcing a right under this Agreement (including any right to indemnification
or advancement of expenses under this Agreement).
"INDEPENDENT COUNSEL" means an attorney, or a firm having associated with
it an attorney, who neither currently is nor in the past five years has been
retained by or performed services for the Company or any person to be
indemnified by the Company.
"PROCEEDING" includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding,
whether civil, criminal, administrative or investigative, in which Indemnitee
was, is or would be involved as a party or otherwise (including, without
limitation, as a witness) by reason of the Indemnitee's Corporate Status,
including one pending on or before the date of this Agreement; but excluding one
initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce
Indemnitee's rights under this Agreement. For purposes of this definition, the
term "threatened" shall be deemed to include, but not be limited to,
Indemnitee's good faith belief that a claim or other assertion may lead to
initiation of a Proceeding.
"REVIEWING PARTY" means the person, persons or entity selected to make the
determination of the entitlement to indemnification pursuant to Section 5.3
hereof.
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2. INDEMNIFICATION.
2.1 PROCEEDINGS NOT BY OR IN RIGHT OF COMPANY. The Company hereby
agrees to hold harmless and indemnify Indemnitee to the greatest extent
permitted by Ohio law, including but not limited to the provisions of the OGCL
and the Regulations, as such may be amended from time to time, if Indemnitee was
or is a party, witness, or other participant, or is threatened to be made a
party, witness, or other participant, to any Proceeding, other than a Proceeding
by or in the right of the Company, by reason of Indemnitee's Corporate Status,
against all Expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
with such Proceeding, if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company and, with respect to any criminal Proceeding, had no reasonable
cause to believe that his or her conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not satisfy the foregoing standard of conduct to the extent
applicable thereto.
2.2 PROCEEDINGS BY OR IN RIGHT OF COMPANY. The Company hereby agrees
to hold harmless and indemnify Indemnitee to the greatest extent permitted by
Ohio law, including but not limited to the provisions of the OGCL and the
Regulations, as such may be amended from time to time, if Indemnitee was or is a
party or is threatened to be made a party to any Proceeding by or in the right
of the Company, by reason of Indemnitee's Corporate Status, against all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with the defense or settlement of such Proceeding, if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company; provided, however, that, if
applicable law so provides, no indemnification against such Expenses shall be
paid in respect of (a) any claim, issue or matter in such Proceeding by or in
the right of the Company as to which the Indemnitee shall have been adjudged to
be liable to the Company for an act or omission undertaken by such Indemnitee in
his or her capacity as a director of the Company with deliberate intent to cause
injury to the Company or with reckless disregard for the best interests of the
Company, (b) any claim, issue or matter asserted in a Proceeding by or in the
right of the Company as to which the Indemnitee shall have been adjudged to be
liable to the Company for negligence or misconduct in his or her capacity other
than that of a director of the Company, or (c) any Proceeding by or in the right
of the Company in which the only liability is asserted pursuant to Section
1701.95 of the OGCL against the Indemnitee, unless and only to the extent that
the Franklin County Court of Common Pleas of the State of Ohio or the court of
competent jurisdiction in which such Proceeding is brought shall determine, upon
application of either the Indemnitee or the Company, that, despite the
adjudication or assertion of such liability, and in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to
such indemnity as such court shall deem proper.
2.3 INDEMNIFICATION FOR EXPENSES OF AN INDEMNITEE WHO IS WHOLLY OR
PARTLY SUCCESSFUL. To the extent that the Indemnitee has been successful on the
merits or otherwise in defense of any Proceeding referred to in Section 2.1 or
2.2 of this Agreement, or in defense of any claim, issue or matter in such
Proceeding, Indemnitee shall be indemnified
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against Expenses actually and reasonably incurred by the Indemnitee or on
Indemnitee's behalf in connection with such Proceeding.
3. ADVANCEMENT OF EXPENSES.
3.1 The Company shall advance all Expenses incurred by or on behalf
of Indemnitee in connection with any Proceeding prior to the final disposition
of such Proceeding upon receipt of an undertaking by or on behalf of Indemnitee
to repay such amount if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified by the Company. Any advances and undertakings to
repay pursuant to this Section 3.1 shall not be secured, shall not bear interest
and shall provide 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 with respect to such
Proceeding, Indemnitee shall not be required to reimburse the Company for any
advancement of Expenses in respect of such Proceeding until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed).
3.2 Any advancement of Expenses pursuant to Section 3.1 hereof shall
be made within ten (10) days after the receipt by the Company of a written
statement from Indemnitee requesting such advancement from time to time and
accompanied by or preceded by the undertaking referred to in Section 3.1 above.
Each statement requesting advancement shall reasonably evidence the Expenses
incurred by or on behalf of the Indemnitee in connection with such Proceeding
for which advancement is being sought.
4. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY. Whether or not the
indemnification provided in this Agreement is available, in respect of any
Proceeding in which the Company is jointly liable with Indemnitee (or would be
if joined in such Proceeding), the Company shall contribute to the amount of
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company, 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 Company, on the one hand, and Indemnitee, on the other
hand, in connection with the events that resulted in such Expenses, judgments,
fines or settlement amounts, as well as any other equitable considerations that
applicable law may require to be considered. The relative fault of the Company,
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.
5. PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
5.1 TIMING OF PAYMENTS. All payments of Expenses, judgments, fines,
amounts paid in settlement and other amounts by the Company to Indemnitee
pursuant to this Agreement shall be made as soon as practicable after written
demand therefor by Indemnitee is
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presented to the Company, but in no event later than (a) 30 days after such
demand is presented or (b) such later date as may be permitted for the
determination of entitlement to indemnification pursuant to Section 5.7 hereof,
if applicable; provided, however, that advances of Expenses shall be made within
the time period provided in Section 3.2 hereof.
5.2 REQUEST FOR INDEMNIFICATION. Whenever Indemnitee believes that
he or she is entitled to indemnification pursuant to this Agreement, Indemnitee
shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and
is reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. Indemnitee shall submit such claim for
Indemnification within a reasonable time, not to exceed five years, after any
judgment, order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere (or its equivalent) or other full or
partial final determination or disposition of the Proceeding (with the latest
date of the occurrence of any such event to be considered the commencement of
the five-year period). The Secretary of the Company shall, promptly upon receipt
of such a request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
5.3 REVIEWING PARTY. Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 5.2 hereof, to the
extent that the Indemnitee's entitlement to such indemnification is governed by
Section 2.1 or 2.2 of this Agreement, a determination with respect to
Indemnitee's entitlement thereto shall be made in the specific case by one of
the following methods: (a) by a majority vote of a quorum of the Board
consisting of Disinterested Directors; or (b) if such a quorum of Disinterested
Directors is not available or if a majority of such quorum so directs, in a
written opinion by Independent Counsel (designated for such purpose by the
Board).
5.4 DETERMINATION BY INDEPENDENT COUNSEL. If the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to
Section 5.3 hereof, the Independent Counsel shall be selected as provided in
this Section 5.4. The Independent Counsel shall be selected by the Board of
Directors, and the Company shall promptly give written notice to Indemnitee
advising him or her of the identity of the Independent Counsel so selected.
Indemnitee may, within ten days after such written notice of selection shall
have been given, deliver to the Company a written objection to such selection;
provided, however, that such objection may be asserted only on the ground that
the Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected shall act as Independent Counsel.
If a written objection is made and substantiated, the Independent Counsel
selected may not serve as Independent Counsel unless and until such objection is
withdrawn or a court has ruled against such objection. If, within 30 days after
submission by Indemnitee of a written request for indemnification pursuant to
Section 5.2 hereof, no Independent Counsel shall have been selected or an
Independent Counsel shall have been selected but an objection thereto shall have
been properly made and remained unresolved, either the Company or Indemnitee may
petition the Franklin County Court of Common Pleas of the State of Ohio or other
court of competent jurisdiction for resolution of any objection that shall have
been made by the Indemnitee to the 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
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respect to whom all objections are so resolved or the person so appointed shall
act as Independent Counsel under Section 5.3 hereof. The Company shall pay any
and all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 5.4 hereof.
5.5 BURDEN OF PROOF. In making a determination with respect to
entitlement to indemnification hereunder, the Reviewing Party shall presume that
Indemnitee is entitled to indemnification under this Agreement. Anyone seeking
to overcome this presumption shall have the burden of proof and the burden of
persuasion, by clear and convincing evidence. In making a determination with
respect to entitlement to indemnification hereunder which under this Agreement
or applicable law requires a determination of Indemnitee's good faith, and/or
whether Indemnitee acted in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Company, and, with respect to any
criminal Proceeding, if Indemnitee had no reasonable cause to believe that
Indemnitee's conduct was unlawful, the Reviewing Party shall presume that (a)
Indemnitee has at all times acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Company, and (b) with respect to any criminal Proceeding, that Indemnitee had no
reasonable cause to believe that Indemnitee's conduct was unlawful. Anyone
seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion, by clear and convincing evidence. Indemnitee in their
capacity as a director of the Company shall be deemed to have acted in good
faith if Indemnitee's action or inaction is based on Indemnitee's reliance on
information, opinions, reports or statements, including financial statements and
other financial data, that were prepared or presented by (a) one or more
directors, officers, or employees of the Company who the Indemnitee reasonably
believes are reliable and competent in the matters prepared or presented; (b)
counsel, public accountants, or other persons as to matters that the Indemnitee
reasonably believes are within the person's professional or expert competence;
or (c) a committee of the Board upon which the Indemnitee does not serve, duly
established in accordance with a provision of the Company's Regulations, as to
matters within its designated authority, which committee the Indemnitee
reasonably believes to merit confidence. In addition, the knowledge and/or
actions, or failure to act, of any other director, officer, agent or employee of
the Company shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
5.6 NO PRESUMPTION IN ABSENCE OF DETERMINATION OR AS RESULT OF
ADVERSE DETERMINATION. Neither the failure of any Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by any
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination under this Agreement or applicable law that
Indemnitee should be indemnified under this Agreement, shall be a defense to
Indemnitee's claim or create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any particular belief.
5.7 TIMING OF DETERMINATION. If the Reviewing Party shall not have
made a determination within 30 days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (a) a misstatement by Indemnitee of
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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 (b) a prohibition of such indemnification under
applicable law; provided, however, that such 30-day period may be extended for a
reasonable time, not to exceed an additional 45 days, if the Reviewing Party in
good faith requires such additional time for obtaining or evaluating
documentation and/or information relating thereto; and provided, further,
however, that if the determination is to be made by Independent Counsel as the
Reviewing Party, such 30-day period shall be deemed to commence after a final
appointment of an Independent Counsel has been made pursuant to the provisions
of Section 5.4 hereof.
5.8 COOPERATION. Indemnitee shall cooperate with the Reviewing Party
with respect to Indemnitee's entitlement to indemnification, including providing
to such Reviewing Party upon reasonable advance request any documentation or
information that is not privileged or otherwise protected from disclosure and
that is reasonably available to Indemnitee and reasonably necessary to such
determination. The Reviewing Party shall act reasonably and in good faith in
making a determination under this Agreement of Indemnitee's entitlement to
indemnification.
6. LIABILITY INSURANCE. The Company shall, from time to time, make the
good faith determination whether or not it is practicable for the Company to
obtain and maintain a policy or policies of directors' and officers' liability
insurance with one or more reputable insurance companies. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionately high compared to the amount of coverage provided, or if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit. The Company shall promptly notify Indemnitee of any such
determination not to provide insurance coverage. In the event that the Company
does maintain such insurance for the benefit of Indemnitee, the right to
indemnification and advancement of Expenses as provided herein shall apply only
to the extent that Indemnitee has not been indemnified and actually reimbursed
pursuant to such insurance or otherwise has not had Expenses advanced in
accordance with the terms of such insurance.
7. REMEDIES OF INDEMNITEE RELATING TO INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES.
7.1 In the event that (a) a determination is made pursuant to
Section 5 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (b) advancement of Expenses is not timely made pursuant to
Section 3.2 of this Agreement, (c) no determination of entitlement to
indemnification shall have been made within the time period specified in Section
5.7 of this Agreement, or (d) payment of indemnified amounts is not made within
the applicable time periods specified in Section 5.1 of this Agreement,
Indemnitee shall thereafter be entitled under this Agreement to commence a
proceeding in the Franklin County Court of Common Pleas of the State of Ohio, or
in any other court of competent jurisdiction, seeking an adjudication of
Indemnitee's entitlement to such indemnification or advancement of Expenses.
Indemnitee shall commence such proceeding seeking an adjudication within 180
days
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following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 7.1. The Company shall not oppose
Indemnitee's right to seek any such adjudication.
7.2 In the event that a determination shall have been made pursuant
to Section 5.3 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section 7
shall be conducted in all respects as a de novo review on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination under
Section 5.3.
7.3 If a determination shall have been made pursuant to Section 5.3
of this Agreement that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding commenced
pursuant to this Section 7, absent (a) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee's
statement not misleading, in connection with the request for indemnification or
(b) a prohibition of such indemnification under applicable law.
7.4 Both the Company and the Indemnitee shall be precluded from
asserting in any judicial proceeding commenced pursuant to this Section 7 that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court that the Company and the
Indemnitee are bound by all the provisions of this Agreement.
7.5 In the event that Indemnitee commences a proceeding pursuant to
this Section 7 to enforce a right of Indemnitee under this Agreement, then, to
the extent that Indemnitee is successful on the merits or otherwise in such
proceeding, or in connection with any claim, issue or matter therein, Indemnitee
shall be indemnified by the Company against Expenses actually and reasonably
incurred by the Indemnitee in connection with such proceeding.
8. EXCEPTIONS TO RIGHT OF INDEMNIFICATION. Notwithstanding any other
provision of this Agreement, Indemnitee shall not be entitled to indemnification
under this Agreement:
(a) with respect to any claim (whether an original claim,
counterclaim, cross-claim or third party claim) brought or made by Indemnitee in
a Proceeding, unless the bringing or making of such claim shall have been
approved or ratified by the Board; provided, however, that the foregoing shall
not apply to any claim brought or made by an Indemnitee to enforce a right of
the Indemnitee under this Agreement;
(b) for Expenses incurred by Indemnitee with respect to any action
instituted by or in the name of the Company against Indemnitee, if and to the
extent that a court of competent jurisdiction declares or otherwise determines
in a final, unappealable judgment that each of the material defenses asserted by
Indemnitee was made in bad faith or was frivolous;
(c) for Expenses and other liabilities arising from the purchase and
sale by Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, or any similar state or successor statute; and
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(d) for Expenses and other liabilities if and to the extent that a
court of competent jurisdiction declares or otherwise determines in a final,
unappealable judgment that the Company is prohibited by applicable law from
making such indemnification payment or that such indemnification payment is
otherwise unlawful.
9. NOTIFICATION AND DEFENSE OF CLAIM.
9.1 NOTIFICATION. 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 or matter
that may be subject to indemnification covered hereunder. The failure to so
notify the Company shall not relieve the Company of any obligation that it may
have to Indemnitee under this Agreement or otherwise unless and only to the
extent that such failure or delay materially prejudices the Company.
9.2 DEFENSE OF CLAIM. With respect to any Proceeding (other than a
Proceeding brought by or in the right of the Company) as to which Indemnitee
notifies the Company of the commencement thereof:
(a) The Company may participate therein at its own expense;
(b) The Company, jointly with any other indemnifying party
similarly notified, may assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to assume the defense thereof, the Company shall not be liable to
Indemnitee under this Agreement for any Expenses subsequently incurred by
Indemnitee in connection with the defense thereof unless (i) the employment of
counsel by Indemnitee or the incurrence of any other Expense has been authorized
by the Company, (ii) Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company (or any other person or persons
included in the joint defense) and Indemnitee in the conduct of the defense of
such Proceeding, or (iii) the Company shall not, in fact, have employed counsel
to assume the defense of such Proceeding;
(c) The Company shall not be liable to Indemnitee under this
Agreement for any amounts paid in settlement in any Proceeding effected without
its written consent;
(d) The Company shall not settle any Proceeding in any manner
that would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent; and
(e) Neither the Company nor Indemnitee shall unreasonably
withhold its consent to any proposed settlement, provided that Indemnitee may
withhold consent to any settlement that does not provide a complete release of
Indemnitee.
10. DURATION OF AGREEMENT. All agreements and obligations of the Company
and Indemnitee contained herein shall continue during the period Indemnitee is a
director and/or officer of the Company and shall continue thereafter so long as
Indemnitee shall be subject under applicable law to the assertion of any
Proceeding (or any proceeding commenced under Section 7 hereof) by reason of
Indemnitee's Corporate Status, whether or not Indemnitee is acting or
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serving in any such capacity at the time any liability or expense is incurred
for which indemnification can be provided under this Agreement.
11. MISCELLANEOUS.
11.1 NO EMPLOYMENT AGREEMENT. Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the
employment of the Company or any of its subsidiaries or affiliated entities.
11.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the Company and Indemnitee in respect of its
subject matter and supersedes all prior understandings, agreements and
representations by or among the Company and Indemnitee, written or oral, to the
extent they relate in any way to the subject matter hereof.(1)
11.3 SUCCESSORS. All of the terms, agreements, covenants,
representations, warranties and conditions of this Agreement are binding upon,
and inure to the benefit of and are enforceable by, the Company and Indemnitee
and their respective heirs, executors, administrators, personal representatives,
successors and permitted assigns.
11.4 ASSIGNMENT. Neither the Company nor Indemnitee may assign
either this Agreement or any of its rights, interests or obligations hereunder
without the prior written approval of the other; provided, however, that the
Company may assign all (but not less than all) of its rights and interests
hereunder to any direct or indirect successor to all or substantially all of the
business or assets of the Company by purchase, merger, consolidation or
otherwise.
11.5 MERGER OR CONSOLIDATION. In the event that the Company shall be
a constituent corporation in a consolidation, merger or other reorganization,
the Company, if it shall not be the surviving, resulting or acquiring entity
therein, shall require as a condition thereto that the surviving, resulting or
acquiring entity agree to assume all of the obligations of the Company hereunder
and to indemnify Indemnitee to the full extent provided herein. Whether or not
the Company is the resulting, surviving or acquiring entity in any such
transaction, Indemnitee shall also stand in the same position under this
Agreement with respect to the resulting, surviving or acquiring entity as the
Indemnitee would have with respect to the Company if its separate existence had
continued.
11.6 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given if (and then three
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Company:
DSW Inc.
0000 Xxxx 0xx Xxxxxx
-----------------
(1) This provision will need to be individualized for any officers who execute
employment agreements with the Company which contain indemnification provisions.
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Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
DSW Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Tel: (000) 000-0000
Fax: (614) ___-____
If to Indemnitee:
[Name] [Address] Tel: [( ) ]
Fax: [( ) ]
[with a copy to:]
[Name] [Address] Tel: [( ) ]
Fax: [( ) ]
Either party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address or facsimile
number set forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex or ordinary mail), but no
such notice, request, demand, claim or other communication will be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Either party may change the address or facsimile number to which
notices, requests, demands, claims and other communications hereunder are to be
delivered by giving the other parties notice in the manner herein set forth.
11.7 SPECIFIC PERFORMANCE. Each of the Company and Indemnitee
acknowledges and agrees that the other would be damaged irreparably if any
provision of this Agreement is not performed in accordance with its specific
terms or is otherwise breached. Accordingly, each party agrees that the other
party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
its terms and provisions in any action instituted in any court of the United
States or any state thereof having jurisdiction over the parties and the matter,
in addition to any other remedy to which they may be entitled at law or in
equity.
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11.8 COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same instrument.
11.9 GOVERNING LAW. This Agreement and the performance of the
parties' obligations hereunder shall be governed by and construed in accordance
with the laws of the State of Ohio, without giving effect to any choice of law
principles.
11.10 AMENDMENTS AND WAIVERS. No amendment, modification,
replacement, termination or cancellation of any provision of this Agreement will
be valid, unless the same is in writing and signed by the parties. No waiver by
either party of any default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, may be deemed to extend to any prior or
subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising because of any prior or
subsequent such occurrence.
11.11 NONEXCLUSIVITY OF RIGHTS; SURVIVAL OF RIGHTS; SEVERABILITY.
(a) The rights provided by this Agreement (including rights to
indemnification, advancement of expenses and contribution) (i) shall not be
exclusive of, and shall be in addition to, any other rights to indemnification,
advancement of expenses or contribution to which Indemnitee may at any time be
entitled under the Regulations, applicable law (including the OGCL), any
insurance policy, agreement, vote of shareholders or Disinterested Directors or
otherwise, as to any actions or failures to act by Indemnitee, (ii) shall
continue after the Indemnitee has ceased to be a director and/or an officer of
the Company and (iii) shall inure to the benefit of the Indemnitee's heirs,
executors, administrators and personal representatives. In the event of any
change, after the date of this Agreement, in any applicable law which expands
the right of the Company to indemnify a member of its Board and/or its officers,
such changes shall be deemed to be within the purview of Indemnitee's rights and
the Company's obligations under this Agreement. In the event of any change in
any applicable law which narrows the right of the Company to indemnify a member
of its Board and/or its officers, such changes, to the extent not otherwise
required by applicable law to be applied to this Agreement, shall have no effect
on this Agreement or the parties' rights and obligations hereunder.
(b) The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof; provided, however,
that if any provision of this Agreement, as applied to any party or to any
circumstance, is adjudged by a court, arbitrator or mediator not to be
enforceable in accordance with its terms, the parties agree that the court,
arbitrator or mediator making such determination shall have the power to modify
the provision in a manner consistent with its objectives (and only to the extent
necessary) such that it is enforceable, and/or to delete specific words or
phrases, and in its reduced form, such provision shall then be enforceable and
shall be enforced.
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11.12 SUBROGATION; NO DUPLICATIVE PAYMENTS.
(a) In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
(b) The Company shall not be liable to make any payment under
this Agreement to Indemnitee if and to the extent that Indemnitee has actually
received payment under any insurance policy, contract, the Regulations or
otherwise of the amounts otherwise payable hereunder.
11.13 EXPENSES. Except as otherwise expressly provided in this
Agreement, each party shall bear its own costs and expenses incurred in
connection with the preparation, execution and performance of this Agreement,
including all fees and expenses of agents, representatives, financial advisors,
legal counsel and accountants.
11.14 CONSTRUCTION. If any provision of this Agreement should be
deemed to exceed the authority granted to the Company by Ohio law in effect as
of the date hereof, then such provision shall be deemed to be amended to the
extent (and only to the extent) necessary to comply with Ohio law. The parties
have participated jointly in the negotiation and drafting of this Agreement. If
an ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties and no presumption or
burden of proof shall arise favoring or disfavoring any party because of the
authorship of any provision of this Agreement. Any reference to any federal,
state, local or foreign law shall be deemed also to refer to such law as amended
and all rules and regulations promulgated thereunder, unless the context
requires otherwise. The words "include," "includes," and "including" shall be
deemed to be followed by "without limitation." Pronouns in masculine, feminine
and neuter genders shall be construed to include any other gender, and words in
the singular form shall be construed to include the plural and vice versa,
unless the context otherwise requires. The words "this Agreement," "herein,"
"hereof," "hereby," "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless expressly so
limited. The parties intend that each representation, warranty and covenant
contained herein will have independent significance. If either party has
breached any representation, warranty or covenant contained herein in any
respect, the fact that there exists another representation, warranty or covenant
relating to the same subject matter (regardless of the relative levels of
specificity) that the party has not breached shall not detract from or mitigate
the fact that the party is in breach of the first representation, warranty or
covenant. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
11.15 REMEDIES. Except as expressly provided herein, the rights and
remedies created by this Agreement are cumulative and in addition to any other
rights or remedies now or hereafter available at law or in equity or otherwise.
Except as expressly provided herein, nothing herein shall be considered an
election of remedies. The assertion or employment of any right or remedy shall
not prevent the concurrent assertion or employment of any other remedy.
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11.16 MUTUAL ACKNOWLEDGEMENT. Nothing in this Agreement is intended
to require or shall be construed as requiring the Company to do or fail to do
any act in violation of applicable law. Both the Company and Indemnitee
acknowledge that in certain instances, Federal law or applicable public policy
may prohibit the Company from indemnifying the Indemnitee under this Agreement
or otherwise. Indemnitee understands and acknowledges that the Company has
undertaken and may be required in the future to undertake with the Securities
and Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee. The Company's inability, pursuant to court
order, to perform its obligations under this Agreement shall not constitute a
breach of this Agreement.
[The next page is the signature page]
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first hereinabove written.
DSW INC.
By:________________________________
Name:___________________________
Title:____________________________
INDEMNITEE
___________________________________
Name: _____________________________
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