Exhibit 10.13
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "AGREEMENT") is made and entered
into as of the ___ day of ______ 1999, by and between XxXxxxxxx & Co Inc., a
Delaware corporation (the "COMPANY") and each of the Indemnitees listed on the
signature pages to this agreement (each, an "INDEMNITEE", and collectively, the
"INDEMNITEES") as such signature pages may be amended and supplemented from time
to time.
W I T N E S S E T H
WHEREAS, the Company has become party to (i) a Plan of Incorporation
dated as of June ___, 1999, (the "PLAN OF INCORPORATION") and (ii) an Exchange
Agreement, dated as of June ___, 1999 (the "EXCHANGE AGREEMENT") (such Plan of
Incorporation, together with all exhibits thereto, and such Exchange Agreement,
together with all exhibits thereto, as each may be amended from time to time,
the "TRANSACTION DOCUMENTS");
WHEREAS, as part of the Transaction Documents, the Company has filed a
registration statement (the "REGISTRATION STATEMENT") with the Securities and
Exchange Commission for the public offering and sale of shares of its common
stock (including shares issuable in connection with employee benefit plans);
WHEREAS, the Company has requested and will request certain of the
Indemnitees to execute the Registration Statement in the capacity or capacities
listed and to be listed in such Registration Statement; and
WHEREAS, each Indemnitee is one or more of the following: (i) an
officer or director of the Company or (ii) a person requested or authorized by
the board of directors of the Company or the Managing Committee of LaB Investing
Co. L.L.C., a New York limited liability company ("INVESTING") to take actions
on behalf of the Company, Investing or XxXxxxxxx & Co., a New York limited
partnership, in connection with the Registration Statement or any of the
Transaction Documents.
NOW, THEREFORE, in consideration of each Indemnitee's acting and
agreeing to act in the capacities referred to above, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
Section 1. GENERAL. The Company (A) will indemnify and hold harmless
each Indemnitee against any Losses (as hereinafter defined), joint or several,
to which such Indemnitee may become subject, under the Securities Act of 1933,
as amended (the "ACT") or otherwise, insofar as such Losses (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any related Rule 462(b) Registration Statement or any preliminary
prospectus or prospectus comprising a part thereof, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company shall not be liable in any such case to the extent that any such
Losses arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission relating to such Indemnitee made in
any preliminary prospectus, any registration statement or any prospectus or any
amendment or supplement in reliance upon and in conformity with written
information relating to such Indemnitee furnished to the Company by such
Indemnitee expressly for use therein; and (B) will indemnify and hold harmless
each Indemnitee against any Losses (or actions in respect thereof) which
otherwise arise out of or are based upon or asserted against such Indemnitee in
connection with such Indemnitee's acting in the capacities referred to above in
connection with the transactions contemplated by the Transaction Documents,
except to the extent any such Losses referred to in this clause (B) arise out of
or are based upon the type of conduct for which (x) a director would not be
exempt from liability or (y) the indemnification of a director would be limited
in respect of such Losses, in the case of (x) and (y), within the meaning of
Article Tenth of the Amended and Restated Certificate of Incorporation of the
Company or Section 102(b)(7) of the Delaware General Corporation Law (whether or
not such Indemnitee is a director).
Notwithstanding the foregoing provisions of this Section 1, the
Company and each Indemnitee agree that insofar as indemnification for
liabilities arising under the Act may be permitted under this Agreement to an
Indemnitee who is a director, officer or controlling person of the Company, in
the event that a claim for indemnification against such liabilities is made by
such an Indemnitee (other than the payment by the Company of expenses incurred
or paid by such Indemnitee in the successful defense of any action, suit or
proceeding) in connection with a Registration Statement, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act, and
the Company and such Indemnitee will be governed by the final adjudication of
such question.
Section 2. LOSSES. As used in this Agreement, the term "LOSSES" shall
include, without limitation, damages, losses, claims, judgments, liabilities,
fines, penalties, excise taxes, settlements, and costs, attorneys' fees,
accountants' fees, and disbursements and costs of attachment or similar bonds,
investigation costs, defense preparation costs, costs of preparing for and
presenting evidence or testimony, and any expenses of establishing a right to
indemnification under this Agreement. The term "Losses" shall not include taxes,
except to the extent taxes are imposed in respect of payments otherwise made
pursuant to this Agreement, in which case such Indemnitee's Losses shall include
an amount not greater than the net taxes payable (taking into account any
deductions or other tax benefits available to such Indemnitee as a result of the
Losses in respect of which such payment is made).
Section 3. ENFORCEMENT. Subject to the provisions of the second
paragraph of Section 1 hereof, if a claim or request by an Indemnitee under this
Agreement is not paid by the
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Company, or on its behalf, within thirty days after a written claim of request
has been received by the Company and, if applicable, the affirmation in Section
6 hereof has been received by the Company, such Indemnitee may at any time
thereafter commence an arbitration proceeding in accordance with Section 9
hereof against the Company to recover the unpaid amount of the claim or request
and, if successful in whole or in part, such Indemnitee shall also be entitled
to be paid the expenses of prosecuting such proceeding. It shall be a defense to
any such proceeding (other than a proceeding commenced to enforce a claim for
expenses incurred in defending any actual or threatened proceeding in advance of
its final disposition where the required affirmation and undertaking, if any is
required, have been tendered to the Company) that such Indemnitee has not met
the standards of conduct for the Company to indemnify such Indemnitee herein for
the amount claimed, but the burden of proving such defense shall be on the
Company. Neither the failure of the Company (including its board of directors,
legal counsel or shareholders) to have made a determination prior to the
commencement of such proceeding that indemnification of such Indemnitee is
proper in the circumstances because such Indemnitee has met the applicable
standard of conduct set forth herein, nor an actual determination by the Company
(including its board of directors, legal counsel or shareholders) that such
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the proceeding or create a presumption that such Indemnitee has not met the
applicable standard of conduct.
Section 4. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any Losses, but not for the total amount thereof, the Company shall
nevertheless indemnify such Indemnitee for the portion of such losses to which
such Indemnitee is entitled.
Section 5. EXPENSES. Expenses incurred by an Indemnitee in connection
with any proceeding shall be paid by the Company upon request of such Indemnitee
that the Company pay such expenses, but only upon receipt by the Company of (i)
a written affirmation of such Indemnitee's good faith belief that the applicable
standard of conduct necessary for indemnification by the Company has been met,
(ii) a written undertaking by or on behalf of such Indemnitee to reimburse the
Company for expenses if and to the extent that it is ultimately determined that
the applicable standard of conduct has not been met and (iii) satisfactory
evidence of the amount of such expenses.
Section 6. NOTICE OF CLAIM. Each Indemnitee shall promptly notify the
Company in writing of any claim against such Indemnitee for which
indemnification will or could be sought under this Agreement. In addition, each
Indemnitee shall give the Company such information and cooperation as it may
reasonably require and as shall be within such Indemnitee's power and at such
times and places as are not unduly burdensome for such Indemnitee.
Section 7. DEFENSE OF CLAIM. With respect to any proceeding as to
which an Indemnitee notifies the Company of the commencement thereof:
(a) the Company will be entitled to participate at its own expense;
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(b) subject to Section 7(c) hereof, the Company shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction against any Indemnitee and any other Indemnitees, be liable to
such Indemnitee and such other Indemnitees for the fees and expenses of
more than one separate law firm (in addition to a single firm of local
counsel);
(c) except as otherwise provided below, to the extent that it may
wish, the Company will be entitled to assume the defense thereof, with
counsel reasonably satisfactory to such Indemnitee, which in the Company's
sole discretion may be regular counsel to the Company and may be counsel to
other Indemnitees. The Indemnitees also shall have the right to employ one
separate counsel for such Indemnitees in such action, suit or proceeding if
such Indemnitees reasonably conclude that if they did not there would be a
conflict of interest between the Company and such Indemnitees, and under
such circumstances the fees and expenses of such counsel shall be paid by
the Company; and
(d) the Company shall not be liable to indemnify an Indemnitee under
this Agreement for any amounts paid in settlement of any action or claim
effected without the Company's written consent. The Company shall not
settle any action or claim in any manner which would impose any cost or
limitation on an Indemnitee without such Indemnitee's written consent.
Neither the Company nor an Indemnitee will unreasonably withhold or delay
its consent to any proposed settlement.
Section 8. NON-EXCLUSIVITY. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Agreement shall not be exclusive of or affected in
any way by any other right which an Indemnitee may have or hereafter may acquire
under any statute, certificate of incorporation, bylaws, agreement, arrangement,
resolution or instrument providing indemnification or expense payment, except
that any payments otherwise required to be made by the Company hereunder shall
be offset by any and all amounts received by an Indemnitee from any other
indemnitor or under one or more liability insurance policies maintained by an
indemnitor or otherwise and shall not be duplicative of any other payments
received by an Indemnitee from the Company in respect of the matter giving rise
to the indemnity hereunder. When an Indemnitee is entitled to indemnification,
expense advancement or reimbursement under this Agreement and any other
agreement, arrangement, resolution or instrument of the Company, the Indemnitee
may choose to pursue its rights under one or more, but less than all, of such
applicable agreements, arrangements, resolutions or instruments, in which case
such Indemnitee need only comply with the standards and procedures of the
agreements, arrangements, resolutions or instruments under which it chooses to
pursue its rights.
Section 9. ARBITRATION. (a) Subject to the provisions of the second
paragraph of Section 1 and Section 9(b) hereof, any dispute, controversy or
claim between an Indemnitee and the Company arising out of or relating to or
concerning the provisions of this Agreement shall be finally settled by
arbitration in New York City before, and in accordance with
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the rules then obtaining of, the New York Stock Exchange, Inc. ("NYSE") or, if
the NYSE declines to arbitrate the matter, the American Arbitration Association
(the "AAA") in accordance with the commercial arbitration rules of the AAA.
(b) Notwithstanding the provisions of Section 9(a) and in addition to
its right to submit any dispute or controversy to arbitration, the Company may
bring an action or special proceeding in a state or federal court of competent
jurisdiction sitting in the State of New York, whether or not an arbitration
proceeding has theretofore been or is ever initiated, for the purpose of
temporarily, preliminarily or permanently enforcing the provisions of this
Agreement or to enforce an arbitration award, and, for the purposes of this
Section 9(b), each Indemnitee (i) expressly consents to the application of
Section 9(c) hereof to any such action or proceeding, (ii) agrees that proof
shall not be required that monetary damages for breach of the provisions of this
Agreement would be difficult to calculate and that remedies at law would be
inadequate and (iii) irrevocably appoints the Secretary of the Company, Xxx
Xxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as such Indemnitee's agent for service
of process in connection with any such action or proceeding, who shall promptly
advise such Indemnitee of any such service of process.
(c) (i) EACH INDEMNITEE HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW YORK OVER
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO OR CONCERNING THIS
AGREEMENT THAT IS NOT OTHERWISE ARBITRATED ACCORDING TO THE PROVISIONS OF
SECTION 9(a) HEREOF. This includes any suit, action or proceeding to compel
arbitration or to enforce an arbitration award. The parties acknowledge that the
forum designated by this Section 9(c) has a reasonable relation to this
Agreement, and to the parties' relationship with one another. Notwithstanding
the foregoing, nothing herein shall preclude the Company from bringing any
action or proceeding in any other court for the purpose of enforcing the
provisions of this Section 9.
(ii) The agreement of an Indemnitee as to forum is independent of
the law that may be applied in the action, and each Indemnitee agrees to this
forum even if the forum may under applicable law choose to apply non-forum law.
Each Indemnitee hereby waives, to the fullest extent permitted by applicable
law, any objection which such Indemnitee now or hereafter may have to personal
jurisdiction or to the laying of venue of any such suit, action or proceeding in
any court referred to in section 9(c)(i). The parties undertake not to commence
any action arising out of or relating to this Agreement in any forum other than
the forum described in this Section 9(c). The parties agree that, to the fullest
extent permitted by applicable law, a final and non-appealable judgment in any
such suit, action or proceeding in any such court shall be conclusive and
binding upon the parties.
Section 10. 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), heirs, executors and administrators.
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Section 11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 12. AMENDMENT. Each party understands that from time to time
certain other persons may become Indemnitees and certain Indemnitees will cease
to be Indemnitees to the extent provided in this Section 12. Accordingly, this
Agreement may be amended by action of the Company from time to time to add
additional Indemnitees, without the approval of any other person other than such
proposed Indemnitees, each of whom shall execute a counterpart of the signature
page of this Agreement. This Agreement may also be amended by action of the
Company and without the approval of any other person to remove an Indemnitee;
provided that such amendment shall not be effective unless the Company has
provided 30 days prior written notice to the Indemnitee and, in any event, such
amendment shall not affect any rights of such Indemnitee to be indemnified in
respect of Losses associated with the acts, omissions or status of such
Indemnitee through the effective date of such amendment (including the right to
subsequent indemnification and expense advancement and reimbursement relating to
such acts, omissions or status).
Section 13. WAIVER OF BREACH. The failure or delay of a party at any
time to require performance by any other party of any provision of this
Agreement, even if known, shall not affect the right of such party to require
performance of that provision or to exercise any right, power, or remedy
hereunder, and any waiver by any party of any breach of any provision of this
Agreement shall not be construed as a waiver of any continuing or succeeding
breach of such provision, a waiver of the provision itself, or a waiver of any
right, power, or remedy under this Agreement. No notice to or demand on any
party in any case shall, of itself, entitle such party to other or further
notice or demand in similar or other circumstances.
Section 14. SEVERABILITY. The Company and each Indemnitee agree that
the agreements and provisions contained in this Agreement are severable and
divisible, that each such agreement and provision does not depend upon any other
provision or agreement for its enforceability, and that each such agreement and
provision set forth herein constitutes an enforceable obligation between the
Company and such Indemnitee. Consequently, the Company and each Indemnitee
agrees that neither the invalidity nor the unenforceability of any provision of
this Agreement shall affect the other provisions hereof, and this Agreement
shall remain in full force and effect and be construed in all respects as if
such invalid or unenforceable provision were omitted.
Section 15. NO PRESUMPTION. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that an
Indemnitee did not meet the applicable standard of conduct for indemnification
under this Agreement.
Section 16. NOTICES. Any communication, demand or notice to be given
hereunder will be duly given when delivered in writing by hand or first class
mail to the Company at its principal executive office or to an Indemnitee at its
last address appearing in the business
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records of the Company (or to such other addresses as a party may
designate by written notice to the Company).
Section 17. NO ASSIGNMENTS. No Indemnitee may assign its rights or
obligations under this Agreement without the prior written consent of the
Company
Section 18. NO THIRD PARTY RIGHTS. Nothing expressed or referred to in
this Agreement will be construed to give any person other than the parties to
this Agreement any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions are for the sole and exclusive benefit of the parties to
this Agreement and their successors and permitted assigns.
Section 19. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first written above.
XxXXXXXXX & CO INC.
By:
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Name: Xxxxxx X.X. XxXxxxxxx, XX
Title: Chairman and Chief Executive Officer
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INDEMNITEES
Name: Signature:
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