Exhibit 10.11
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered into
effective as of this 12th day of September, 2002, by and between Golfsmith
International, Inc., a Delaware corporation (including any successors thereto,
the "Company"), and Xxxx Xxxxxxxx ("Indemnitee").
RECITALS:
A. Competent and experienced persons are reluctant to serve or to
continue to serve corporations as directors, officers, or in other capacities
unless they are provided with adequate protection through insurance or
indemnification (or both) against claims and actions against them arising out
of their service to and activities on behalf of those corporations.
B. The current uncertainties relating to the availability of adequate
insurance for directors and officers have increased the difficulty for
corporations to attract and retain competent and experienced persons.
C. The Board of Directors of the Company (the "Board") has determined
that the continuation of present trends in litigation will make it more
difficult to attract and retain competent and experienced persons, that this
situation is detrimental to the best interests of the Company's stockholders,
and that the Company should act to assure its directors and officers that there
will be increased certainty of adequate protection in the future.
D. It is reasonable, prudent, and necessary for the Company to obligate
itself contractually to indemnify its directors and officers to the fullest
extent permitted by applicable law in order to induce them to serve or continue
to serve the Company.
E. Indemnitee is willing to serve and continue to serve the Company on
the condition that he be indemnified to the fullest extent permitted by law.
F. Concurrently with the execution of this Agreement, Indemnitee is
agreeing to serve or to continue to serve as a director or officer of the
Company.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises, Indemnitee's
agreement to serve or continue to serve as a director or officer of the
Company, and the covenants contained in this Agreement, the Company and
Indemnitee hereby covenant and agree as follows:
1. Certain Definitions. For purposes of this Agreement:
(a) Affiliate: shall mean any Person that directly, or indirectly,
through one or more intermediaries, controls, is controlled by,
or is under common control with the Person specified.
(b) Change of Control: shall mean the occurrence of any of the
following events:
(i) The acquisition after the date of this Agreement by any
individual, entity, or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 20% or more of either (x) the then
outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (y) the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however,
that for purposes of this paragraph (i), the following
acquisitions shall not constitute a Change of Control: any
acquisition directly from the Company or any Subsidiary
thereof; any acquisition by the Company or any Subsidiary
thereof; any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
Subsidiary of the Company; or any acquisition by any entity or
its security holders pursuant to a transaction which complies
with clauses (A), (B), and (C) of paragraph (iii) below;
(ii) Individuals who, as of the date of this Agreement, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to
the date of this Agreement whose election or appointment by
the Board or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board, shall in
either case be considered as though such individual were a
member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
(iii) Consummation of a reorganization, merger or consolidation or
sale of other disposition of all or substantially all of the
assets of the Company or an acquisition of assets of another
corporation (a "Business Combination"), unless in each case,
following such Business Combination, (A) all or substantially
all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock
and Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may
be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation
which as a result of such transaction owns the Company or all
or substantially all of the Company's assets either directly
or through one or more
S-2
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (B) no Person (excluding any employee
benefit plan (or related trust) of the Company or the corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such
ownership of the Company existed prior to the Business Combination and
(C) at least a majority of the members of the board of directors of
the corporation resulting from such Business Combination were members
of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(iv) Approval by the stockholders of the Company of a complete liquidation
or dissolution of the Company.
(c) Claim: shall mean any threatened, pending, or completed action, suit, or
proceeding (including, without limitation, securities laws actions, suits,
and proceedings and also any cross claim or counterclaim in any action,
suit, or proceeding), whether civil, criminal, arbitral, administrative, or
investigative in nature, or any inquiry or investigation (including
discovery), whether conducted by the Company or any other Person, that
Indemnitee in good faith believes might lead to the institution of any
action, suit, or proceeding.
(d) Expenses: shall mean all costs, expenses (including attorneys' and expert
witnesses' fees), and obligations paid or incurred in connection with
investigating, defending (including affirmative defenses and
counterclaims), being a witness in, or participating in (including on
appeal), or preparing to defend, be a witness in, or participate in, any
Claim relating to any Indemnifiable Event.
(e) Indemnifiable Event: shall mean any actual or alleged act, omission,
statement, misstatement, event, or occurrence related to the fact that
Indemnitee is or was a director, officer, agent, or fiduciary of the
Company, or is or was serving at the request of the Company as a director,
officer, trustee, agent, or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust, or other enterprise, or by
reason of any actual or alleged thing done or not done by Indemnitee in any
such capacity. For purposes of this Agreement, the Company agrees that
Indemnitee's service on behalf of or with respect to any Subsidiary or
employee benefits plan of the Company or any Subsidiary of the Company
shall be deemed to be at the request of the Company.
(f) Indemnifiable Liabilities: shall mean all Expenses and all other
liabilities, damages (including, without limitation, punitive, exemplary,
and the multiplied portion of any damages), judgments, payments, fines,
penalties, amounts paid in
S-3
settlement, and awards paid or incurred that arise out of, or in any
way relate to, any Indemnifiable Event.
(g) Potential Change of Control: shall be deemed to have occurred if (i)
the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change of Control, (ii) any Person
(including the Company) publicly announces an intention to take or to
consider taking actions that, if consummated, would constitute a
Change of Control, or (iii) the Board adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change of
Control has occurred.
(h) Reviewing Party: shall mean a member or members of the Board who are
not parties to the particular Claim for which Indemnitee is seeking
indemnification or if a Change of Control has occurred or if there is
a Potential Change of Control and Indemnitee so requests, or if the
members of the Board so elect, or if all of the members of the Board
are parties to such Claim, Special Counsel.
(i) Special Counsel: shall mean special, independent legal counsel
selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld), and who has not otherwise
performed material services for the Company or for Indemnitee within
the last three years (other than as Special Counsel under this
Agreement or similar agreements).
(j) Subsidiary: shall mean, with respect to any Person, any corporation or
other entity of which a majority of the voting power of the voting
equity securities or equity interest is owned, directly or indirectly,
by that Person.
2. Indemnification and Expense Advancement.
(a) The Company shall indemnify Indemnitee and hold Indemnitee harmless to
the fullest extent permitted by law, as soon as practicable but in any
event no later than 30 days after written demand is presented to the
Company, from and against any and all Indemnifiable Liabilities.
Notwithstanding the foregoing, the obligations of the Company under
Section 2(a) shall be subject to the condition that the Reviewing
Party shall not have determined (in a written opinion, in any case in
which Special Counsel is involved) that Indemnitee is not permitted to
be indemnified under applicable law. Nothing contained in this
Agreement shall require any determination under this Section 2(a) to
be made by the Reviewing Party prior to the disposition or conclusion
of the Claim against the Indemnitee.
(b) If so requested by Indemnitee, the Company shall advance to Indemnitee
all reasonable Expenses incurred by Indemnitee to the fullest extent
permitted by law (or, if applicable, reimburse Indemnitee for any and
all reasonable Expenses incurred by Indemnitee and previously paid by
Indemnitee) within ten business days after such request (an "Expense
Advance") and delivery by Indemnitee of an undertaking to repay
Expense Advances if and to the extent such undertaking is required by
applicable law prior to the Company's payment of Expense
S-4
Advances. The Company shall be obligated from time to time at the
request of Indemnitee to make or pay an Expense Advance in advance of
the final disposition or conclusion of any Claim. In connection with
any request for an Expense Advance, if requested by the Company,
Indemnitee or Indemnitee's counsel shall submit an affidavit stating
that the Expenses to which the Expense Advances relate are reasonable.
Any dispute as to the reasonableness of any Expense shall not delay an
Expense Advance by the Company. If, when, and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be
indemnified with respect to a Claim under applicable law or the amount
of the Expense Advance was not reasonable, the Company shall be
entitled to be reimbursed by Indemnitee and Indemnitee hereby agrees to
reimburse the Company without interest (which agreement shall be an
unsecured obligation of Indemnitee) for (x) all related Expense
Advances theretofore made or paid by the Company in the event that it
is determined that indemnification would not be permitted or (y) the
excessive portion of any Expense Advances in the event that it is
determined that such Expenses Advances were unreasonable, in either
case, if and to the extent such reimbursement is required by applicable
law; provided, however, that if Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee could be indemnified under applicable
law, or that the Expense Advances were reasonable, any determination
made by the Reviewing Party that Indemnitee would not be permitted to
be indemnified under applicable law or that the Expense Advances were
unreasonable shall not be binding, and the Company shall be obligated
to continue to make Expense Advances, until a final judicial
determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed), which determination
shall be conclusive and binding. If there has been a Potential Change
of Control or a Change of Control, the Reviewing Party shall be advised
by or shall be Special Counsel, if Indemnitee so requests. If there has
been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively is not permitted to be
indemnified in whole or part under applicable law or that any Expense
Advances were unreasonable, Indemnitee shall have the right to commence
litigation in any court in the states of Texas or Delaware having
subject matter jurisdiction thereof and in which venue is proper
seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, and the
Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
(c) Nothing in this Agreement, however, shall require the Company to
indemnify Indemnitee with respect to any Claim initiated by Indemnitee,
other than a Claim solely seeking enforcement of the Company's
indemnification obligations to Indemnitee or a Claim authorized by the
Board.
3. Change of Control. The Company agrees that, if there is a Potential Change in
Control or a Change of Control and if Indemnitee requests in writing that
Special Counsel be the Reviewing Party, then Special Counsel shall be the
Reviewing Party. In such a case, the Company agrees
S-5
not to request or seek reimbursement from Indemnitee of any indemnification
payment or Expense Advances unless Special Counsel has rendered its written
opinion to the Company and Indemnitee (i) that the Company was not or is not
permitted under applicable law to pay Indemnitee and to allow Indemnitee to
retain such indemnification payment or Expense Advances or (ii) that such
Expense Advances were unreasonable. However, if Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to secure a determination that
Indemnitee could be indemnified under applicable law or that the Expense
Advances were reasonable, any determination made by Special Counsel that
Indemnitee would not be permitted to be indemnified under applicable law or that
the Expense Advances were unreasonable shall not be binding, and Indemnitee
shall not be required to reimburse the Company for any Expense Advance, and the
Company shall be obligated to continue to make Expense Advances, until a final
judicial determination is made with respect thereto (as to which all rights of
appeal therefore have been exhausted or lapsed), which determination shall be
conclusive and binding. The Company agrees to pay the reasonable fees of Special
Counsel and to indemnify Special Counsel against any and all expenses (including
attorneys' fees), claims, liabilities, and damages arising out of or relating to
this Agreement or Special Counsel's engagement pursuant hereto.
4. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all costs and expenses (including attorneys' and
expert witnesses' fees) and, if requested by Indemnitee, shall (within two
business days of that request) advance those costs and expenses to Indemnitee,
that are incurred by Indemnitee if Indemnitee, whether by formal proceedings or
through demand and negotiation without formal proceedings: (a) seeks to enforce
Indemnitee's rights under this Agreement, (b) seeks to enforce Indemnitee's
rights to expense advancement or indemnification under any other agreement or
provision of the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), or Bylaws (the "Bylaws") now or hereafter in
effect relating to Claims for Indemnifiable Events; or (c) seeks recovery under
any directors' and officers' liability insurance policies maintained by the
Company, in each case regardless of whether Indemnitee ultimately prevails;
provided that a court of competent jurisdiction has not found Indemnitee's claim
for indemnification or expense advancements under the foregoing clause (a), (b)
or (c) to be frivolous, presented for an improper purpose, without evidentiary
support, or otherwise sanctionable under Federal Rule of Civil Procedure No. 11
or an analogous rule or law, and provided further, that if a court makes such a
finding, Indemnitee shall reimburse the Company for all amounts previously
advanced to Indemnitee pursuant to this Section 4. Subject to the provisos
contained in the preceding sentence, to the fullest extent permitted by law, the
Company waives any and all rights that it may have to recover its costs and
expenses from Indemnitee.
5. Partial Indemnity. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some, but not all, of
Indemnitee's Indemnifiable Liabilities, the Company shall indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
6. Contribution.
(a) Contribution Payment. To the extent the indemnification provided for
under any provision of this Agreement is determined (in the manner
hereinabove provided) not to be permitted under applicable law, the
Company, in lieu of indemnifying Indemnitee, shall, to the extent
permitted by law, contribute to the amount of any
S-6
and all Indemnifiable Liabilities incurred or paid by Indemnitee for
which such indemnification is not permitted. The amount the Company
contributes shall be in such proportion as is appropriate to reflect
the relative fault of Indemnitee, on the one hand, and of the Company
and any and all other parties (including officers and directors of the
Company other than Indemnitee) who may be at fault (collectively,
including the Company, the "Third Parties"), on the other hand.
(b) Relative Fault. The relative fault of the Third Parties and the
Indemnitee shall be determined by reference to the relative fault of
Indemnitee as determined by the court or other governmental agency or
to the extent such court or other governmental agency does not
apportion relative fault, by the Reviewing Party (which shall include
Special Counsel) after giving effect to, among other things, the
relative intent, knowledge, access to information, and opportunity to
prevent or correct the relevant events, of each party, and other
relevant equitable considerations. The Company and Indemnitee agree
that it would not be just and equitable if contribution were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in this Section 6(b).
7. Burden of Proof. In connection with any determination by the Reviewing Party
or otherwise as to whether Indemnitee is entitled to be indemnified under any
provision of this Agreement or to receive contribution pursuant to Section 6 of
this Agreement, to the extent permitted by law the burden of proof shall be on
the Company to establish that Indemnitee is not so entitled.
8. No Presumption. For purposes of this Agreement, the termination of any Claim
by judgment, order, settlement (whether with or without court approval), or
conviction, or upon a plea of nolo contendere, or its equivalent, or an entry of
an order of probation prior to judgment shall not create a presumption (other
than any presumption arising as a matter of law that the parties may not
contractually agree to disregard) that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has determined
that indemnification is not permitted by applicable law.
9. Non-exclusivity. The rights of Indemnitee hereunder shall be in addition to
any other rights Indemnitee may have under the Bylaws or Certificate of
Incorporation or the Delaware General Corporation Law or otherwise. To the
extent that a change in the Delaware General Corporation Law (whether by statute
or judicial decision) permits greater indemnification by agreement than would be
afforded currently under the Bylaws or Certificate of Incorporation and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by that change. Indemnitee's
rights under this Agreement shall not be diminished by any amendment to the
Certificate of Incorporation or Bylaws, or of any other agreement or instrument
to which Indemnitee is not a party, and shall not diminish any other rights that
Indemnitee now or in the future has against the Company.
10. Liability Insurance. Except as otherwise agreed to by the Company in a
written agreement with Indemnitee or for the benefit of Indemnitee, to the
extent the Company maintains an insurance policy or policies providing
directors' and officers' liability insurance, Indemnitee
S-7
shall be covered by that policy or those policies, in accordance with its or
their terms, to the maximum extent of the coverage available for any Company
director or officer.
11. Period of Limitations. No action, lawsuit, or proceeding may be brought
against Indemnitee or Indemnitee's spouse, heirs, executors, or personal or
legal representatives, nor may any cause of action be asserted in any such
action, lawsuit, or proceeding, by or on behalf of the Company, after the
expiration of two years after the statute of limitations commences with respect
to Indemnitee's act or omission that gave rise to the action, lawsuit,
proceeding, or cause of action; provided, however, that, if any shorter period
of limitations is otherwise applicable to any such action, lawsuit, proceeding,
or cause of action, the shorter period shall govern.
12. Amendments. 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 provision of this Agreement shall be effective unless in a
writing signed by the party granting the waiver. 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) not shall that waiver
constitute a continuing waiver.
13. Other Sources. Indemnitee shall not be required to exercise any rights that
Indemnitee may have against any other Person (for example, under an insurance
policy) before Indemnitee enforces his rights under this Agreement. However, to
the extent that the Company actually indemnifies Indemnitee or advances him
Expenses, the Company shall be subrogated to the rights of Indemnitee and shall
be entitled to enforce any such rights which Indemnitee may have against third
parties. Indemnitee shall assist the Company in enforcing those rights if it
pays his costs and expenses of doing so. If Indemnitee is actually indemnified
or advanced Expenses by any third party, then, for so long as Indemnitee is not
required to disgorge the amounts so received, to that extent the Company shall
be relieved of its obligation to indemnify Indemnitee or advance Indemnitee
Expenses.
14. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by merger or
consolidation), spouses, heirs, and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues
to serve as an officer or director of the Company or another enterprise at the
Company's request.
15. Severability. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future laws effective during the
term hereof, that provision shall be fully severable; this Agreement shall be
construed and enforced as if that illegal, invalid, or unenforceable provision
had never comprised part hereof; and the remaining provisions shall remain in
full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to the illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
S-8
16. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in that state without giving effect to the
principles of conflicts of laws.
17. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
18. Notices. Whenever this Agreement requires or permits notice to be given by
one party to the other, such notice must be in writing to be effective and
shall be deemed delivered and received by the party to whom it is sent upon
actual receipt (by any means) of such notice. Receipt of a notice by the
Secretary of the Company shall be deemed receipt of such notice by the Company.
19. Complete Agreement. This Agreement constitutes the complete understanding
and agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof, other than any indemnification rights
that Indemnitee may enjoy under the Certificate of Incorporation, the Bylaws,
or the Delaware General Corporation Law.
20. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but in making proof hereof it shall
not be necessary to produce or account for more than one such counterpart.
S-9
EXECUTED as of the date first written above.
GOLFSMITH INTERNATIONAL, INC.
By: /s/ Xxxxxxxx X. Xxxx
----------------------
Name: Xxxxxxxx X. Xxxx
----------------------
Title: President
----------------------
INDEMNITEE:
/s/ Xxxx Xxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxx
S-1
