EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT made and entered into effective as of
September 4, 2002, ("Agreement"), by and between XXXXXXXXXXX INTERNATIONAL,
INC., a Delaware corporation ("Company"), and Xxxxxxx X. Duroc-Xxxxxx
("Indemnitee").
W I T N E S S E T H:
WHEREAS, highly skilled and competent persons are becoming more
reluctant to serve public corporations 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 the corporation; and
WHEREAS, uncertainties relating to indemnification have increased the
difficulty of attracting and retaining such persons; and
WHEREAS, the Board of Directors has determined that the inability to
attract and retain such persons is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify Indemnitee to the fullest extent
permitted by applicable 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:
Section 1. Services by Indemnitee. Indemnitee agrees to continue to
serve as a director and/or 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 nominated to be a director and/or officer of the Company and does
not create an employment contract between the Company and Indemnitee.
Section 2. Indemnification. The Company shall indemnify Indemnitee to
the fullest extent permitted by applicable law in effect on the date hereof or
as such laws may from time to time be amended. Without diminishing the scope of
the indemnification provided by this Section 2, the rights of indemnification of
Indemnitee provided hereunder shall include but shall not be limited to those
rights, except to the extent expressly prohibited by applicable law.
Section 3. Action or Proceeding Other Than an Action by or in the Right
of the Company. Indemnitee shall be entitled to the indemnification rights
provided in this Section 3 if Indemnitee is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature, other
than an action 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 entity or by reason of
anything done or not done by him or her in any such capacity. Pursuant to this
Section 3, 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 action, suit or proceeding (including, but not limited to, the
investigation, defense or appeal thereof), if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 4. Actions by or in the Right of the Company. Indemnitee shall
be entitled to the indemnification rights provided in this Section 4 if
Indemnitee was or is made a party or is threatened to be made a party to any
threatened, pending or completed action or suit brought by or in the right of
the Company to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee, 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 entity by reason of anything
done or not done by Indemnitee in any such capacity. Pursuant to this Section 4
Indemnitee shall be indemnified against expenses (including attorneys' fees and
disbursements) actually and reasonably incurred by Indemnitee in connection with
such action or suit (including, but not limited to, the investigation, defense,
settlement or appeal thereof) 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 no such indemnification shall be made in
respect of any claim, issue or matter as to which applicable law expressly
prohibits such indemnification by reason of an adjudication of liability of
Indemnitee to the Company, unless, and only to the extent that, the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite such adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification for such expenses as such court shall
deem proper.
Section 5. Indemnification for Expenses of Successful Party.
Notwithstanding the other provisions of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
action, suit or proceeding referred to in Section 4 hereof, or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against all
expenses (including attorneys' fees and disbursements) actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection therewith.
Section 6. Indemnification for Expenses of a Witness. To the extent
that Indemnitee is, by reason of Indemnitee's Corporate Status (as hereinafter
defined), 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.
Section 7. Partial Indemnification. If Indemnitee is only partially
successful in the defense, investigation, settlement or appeal of any action,
suit, investigation or proceeding
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described in Section 4 hereof, and as a result is not entitled under Section 5
hereof to indemnification by the Company for the total amount of the expenses
(including attorneys' fees and disbursements), judgments, penalties, fines, and
amounts paid in settlement actually and reasonably incurred by Indemnitee, the
Company shall nevertheless indemnify Indemnitee, as a matter of right pursuant
to Section 5 hereof, to the extent Indemnitee has been partially successful.
Section 8. Determination of Entitlement to Indemnification. Upon
written request by Indemnitee for indemnification pursuant to Section 3 or 4
hereof, the entitlement of the 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: (a) the Board of Directors of
the Company by a majority vote of the Disinterested Directors (as hereinafter
defined) even if less than a quorum; or (b) if such vote is not obtainable or,
even if obtainable, if such Disinterested Directors so direct by majority vote,
by Independent Counsel (as hereinafter defined) in a written opinion to the
Board of Directors, a copy of which shall be delivered to Indemnitee; or (c) by
the stockholder or stockholders of the Company. Such Independent Counsel shall
be selected by the Board of Directors and approved by Indemnitee. Upon failure
of the Board to so select such Independent Counsel or upon failure of Indemnitee
to so approve, such Independent Counsel shall be selected by the Chancellor of
the State of Delaware or such other Person as such Chancellor shall designate to
make such selection. 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. Any expenses (including attorneys' fees) incurred by Indemnitee in
connection with Indemnitee's request for indemnification hereunder shall be
borne by the Company. The Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom irrespective of the outcome of the determination
of Indemnitee's entitlement to indemnification. If the Person making such
determination shall determine that Indemnitee is entitled to indemnification as
to part (but not all) of the application for indemnification, such Person shall
reasonably prorate such partial indemnification among such claims, issues or
matters.
Section 9. Presumptions and Effect of Certain Proceedings. The
Secretary of the Company shall, promptly upon receipt of Indemnitee's request
for indemnification, advise in writing the Board of Directors or such other
Person or Persons empowered to make the determination as provided in Section 8
that Indemnitee has made such request for indemnification. Upon making such
request for indemnification, Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Company shall have the burden of proof in the
making of any determination contrary to such presumption. If the Person or
Persons so empowered to make such determination shall have failed to make the
requested indemnification within 60 days after receipt by the Company of such
request, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be absolutely entitled to such
indemnification, absent actual and material fraud in the request for
indemnification. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself: (a) create a presumption that Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action or
proceeding, that
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Indemnitee had reasonable cause to believe that his or her conduct was unlawful;
or (b) otherwise adversely affect the rights of Indemnitee to indemnification
except as may be provided herein.
Section 10. 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 such action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature, at the request of
Indemnitee as soon as practical, 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 and costs by the Company as provided by this Agreement or
otherwise. The Company shall have the burden of proof in any determination under
this Section 10. No amounts advanced hereunder shall be deemed an extension of
credit by the Company to Indemnitee.
Section 11. Remedies of Indemnitee in Cases of Determination Not to
Indemnify or to Advance Expenses. In the event that a determination is made that
Indemnitee is not entitled to indemnification hereunder or if payment has not
been timely made following a determination of entitlement to indemnification
pursuant to Sections 8 and 9, or if expenses are not advanced pursuant to
Section 10, Indemnitee shall be entitled to a final adjudication in the Delaware
Court of Chancery, first, and then in any other court of competent jurisdiction
of Indemnitee's entitlement to such indemnification or advance. Alternatively,
Indemnitee, at Indemnitee's option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association, such award to be made within sixty days following the
filing of the demand for arbitration. The Company shall not oppose Indemnitee's
right to seek any such adjudication or award in arbitration or any other claim.
Such judicial proceeding or arbitration shall be made de novo and Indemnitee
shall not be prejudiced by reason of a determination (if so made) that
Indemnitee is not entitled to indemnification. If a determination is made or
deemed to have been made pursuant to the terms of Section 8 or 9 hereof 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. The Company further agrees to stipulate in any
such court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement and is precluded from making any assertion to the
contrary. If the court or arbitrator 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).
Section 12. 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 rights to which Indemnitee may now or
in the future be entitled under any provision
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of the by-laws, agreement, provision of the Certificate of Incorporation, as
amended, vote of stockholders or Disinterested Directors, provision of law, or
otherwise; provided, however, that this Agreement supersedes any other Agreement
that has been entered into by the Company with the Indemnitee which has as its
principal purpose the indemnification of Indemnitee; provided, further, that
this Agreement does not supersede that certain Indemnification Agreement entered
into on or about the date hereof between Indemnitee and Xxxxxxxxxxx
International Ltd., the ultimate parent company of the Company, it being the
intention of the parties that Indemnitee shall be entitled to the
indemnification provided under either or both agreements to the fullest extent
permitted by law.
Section 13. 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 the advancement action, Indemnitee acted in good
faith.
Section 14. 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.
Section 15. Duration of Agreement. This Agreement shall apply with
respect to Indemnitee's occupation of any of the position(s) described in
Sections 3 and 4 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 the Indemnitee may have ceased to occupy such positions(s). 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 by merger of operation of law) and shall inure to the benefit
Indemnitee and Indemnitee's spouse, assigns, estate, heirs, devises, executors,
administrators or other legal representatives. This Agreement supersedes any
prior indemnification arrangement between the Company (or its predecessor) and
Indemnitee.
Section 16. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, all portions of any
paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; (b) the
court holding such provision or provisions to be invalid, illegal or
unenforceable, or any other court of competent jurisdiction, shall be empowered
upon the request of either party hereto to reform such provision or provisions
to give effect as nearly as possible to the intent manifested by such provision
or provisions to the fullest extent allowed by law, and (c) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, all portions of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or
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unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
Section 17. Identical Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
Section 18. Headings. The headings of the sections of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.
Section 19. Definitions. For purposes of this Agreement:
(a) "Disinterested Director" shall mean a director of the
Company who is not or was not a party to the action, suit, investigation or
proceeding in respect of which indemnification is being sought by Indemnitee.
(b) "Independent Counsel" shall mean 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 action, suit, investigation or
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.
(c) "Corporate Status" shall mean the status of an idividual
who is or was a director, officer, employee, agent or fiduciary of the Company
or any majority-owned subsidiary or of any other corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other
enterprise that such individual is or was serving at the request of the Company.
(d) "Person" shall mean an individual, corporation,
association, trust, limited liability company, limited partnership, limited
liability partnership, partnership, incorporated organization, other entity or
group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934).
Section 20. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 21. Notice by Indemnitee. (a) 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
matter which may be subject to
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indemnification covered hereunder, either civil, criminal, administrative,
investigative or otherwise, 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 action, suit,
proceeding, inquiry or investigation as to which Indemnitee notifies the Company
of the commencement thereof:
(i) The Company will be entitled to participate therein at its
own expense; and
(ii) 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 action, suit,
proceeding, inquiry or investigation, 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 (x) the employment of counsel by
Indemnitee has been authorized by the Company; (y) 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 action; or (z) the Company shall not in fact have
employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
Company.
(b) Neither the Company nor the Indemnitee shall settle any
claim without the prior written consent of the other (which shall not be
unreasonably withheld).
Section 22. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (a) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed or if (b) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(i) If to Indemnitee, to the address set forth below his or
her signature.
(ii) If to the Company to:
Xxxxxxxxxxx International, Inc.
000 Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attn: Chief Executive Officer
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
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Section 23. Governing Law. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware.
Section 24. Payments in Ordinary Course of Business. 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 parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President & General Counsel
/s/ Xxxxxxx X. Duroc-Xxxxxx
----------------------------------------------
Xxxxxxx X. Duroc-Xxxxxx
Address:
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
----------------------------------------------
Xxxxxxx, Xxxxx 00000
----------------------------------------------
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SCHEDULE TO EXHIBIT 10.1
The agreements listed below have been omitted pursuant to Instruction 2
to Item 601 of Regulation S-K. There are no material details in which these
agreements differ from the agreement filed herewith.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxx X. Xxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxx X. Xxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxx X. Xxxxxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and E. Xxx Xxxxxx, III.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxxx X. Xxxxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxx X. Xxxxxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxx X. Parmigiano.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxx X. Xxxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxxx X. Rayne.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxxx X. Xxxxx, Xx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxxx Xxxxxxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxxx X. Xxxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxxxx X. Xxxxxxxx.
Indemnification Agreement dated September 4, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxxxx X. Xxxxx.
Indemnification Agreement dated September 27, 2002, between Xxxxxxxxxxx
International, Inc. and Xxxxxx X. Xxxxxxxx.
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