Exhibit 10(b)
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of the 21st day of
February, 2002 ("Agreement"), by and between InterTAN, Inc., a Delaware
corporation ("Company"), and Xxxxx Xxxxx ("Indemnitee").
RECITALS:
WHEREAS, highly competent persons have become more reluctant
to serve publicly-held corporations as directors or officers in other capacities
unless they are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to, and activities on behalf of, the corporation;
this is because such persons in service to corporations are being increasingly
subjected to expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only against the
corporation or business enterprise itself; and
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that, to attract and retain qualified individuals, the Company
will attempt to maintain on an ongoing basis, at its sole expense, liability
insurance to protect persons serving the Company and its subsidiaries from
certain liabilities; and
WHEREAS, the Board has determined that the increased
difficulty in attracting and retaining 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, and to advance expenses
on behalf of, such persons to the fullest extent permitted by applicable law so
that they will serve or continue to serve the Company free from undue concern
that they will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance
of the Bylaws of the Company and any resolutions adopted pursuant thereto, and
shall not be deemed a substitute therefore, nor to diminish or abrogate any
rights of Indemnitee thereunder; and
WHEREAS, each of Section 145 of the General Corporation Law of
the State of Delaware ("DGCL") and the Bylaws is nonexclusive, and therefore
contemplates that contracts may be entered into with respect to indemnification
of directors, officers and employees; 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 he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee hereby covenant and agree
as follows:
Section 1. Services by Indemnitee. Indemnitee agrees to
continue to serve as a director or officer of the Company. Indemnitee may at any
time and for any reason resign from such position (subject to any other
contractual obligation or any obligation imposed by operation of law), in which
event the Company shall have no obligation under this Agreement to continue
Indemnitee in such position. This Agreement shall not be deemed an employment
contract between the Company (or any of its subsidiaries) and Indemnitee. This
Agreement shall continue in force after Indemnitee has ceased to serve as a
director or officer of the Company.
Section 2. Indemnification - General. The Company shall
indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as
provided in this Agreement and (b) to the fullest extent permitted by applicable
law in effect on the date hereof and as amended from time to time. The rights of
Indemnitee provided under the preceding sentence shall include, but shall not be
limited to, the rights set forth in the other Sections of this Agreement.
Section 3. Proceedings Other Than Proceedings by or in the
Right of the Company. Indemnitee shall be indemnified under this Section 3 if,
by reason of his Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to or a participant in any threatened, pending,
or completed Proceeding (as hereinafter defined), other than a Proceeding by or
in the right of the Company. Pursuant to this Section 3, Indemnitee shall be
indemnified against all Expenses, judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, if he
acted in Good Faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 4. Proceedings by or in the Right of the Company.
Indemnitee shall be indemnified under this Section 4 if, by reason of his
Corporate Status, he is, or is threatened to be made, a party to or a
participant in any threatened, pending or completed Proceeding brought by or in
the right of the Company to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
if he acted in Good Faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; provided that if applicable law so
provides, no indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which Indemnitee shall have
been adjudged to be liable to the Company unless and to the extent that the
Court of Chancery of the State of Delaware, or the court in which such
Proceeding shall have been brought or is pending, shall determine that such
indemnification may be made.
Section 5. Indemnification for Expenses of a Party Who is
Wholly or Partly Successful. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a party to (or a participant in) and is successful, on the merits or otherwise,
in any Proceeding (including dismissal without prejudice), he shall be
indemnified to the maximum extent permitted by law against all Expenses actually
and reasonably incurred by him or on his behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but
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is successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or matter.
For purposes of this Section and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
Section 6. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding to
which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith; provided that he shall not be paid for time spent as such.
Section 7. Advancement of Expenses. Notwithstanding any
provision of this Agreement to the contrary, the Company shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding in which Indemnitee is involved by reason of Indemnitee's
Corporate Status within 10 days after the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee. Indemnitee hereby undertakes to repay any Expenses advanced if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and undertakings to repay pursuant to this
Section 7 shall be unsecured and interest free.
Section 8. Procedure for Determination of Entitlement to
Indemnification.
(a) To obtain indemnification under 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. 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.
(b) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 8(a), a determination,
if required by applicable law, with respect to Indemnitee's entitlement thereto
shall be made in the specific case, unless Indemnitee and the Company agree
otherwise, by Independent Counsel (as hereinafter defined) in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee;
and, if it is determined that Indemnitee is entitled to indemnification, payment
to Indemnitee shall be made within 10 days after such determination. Indemnitee
shall cooperate with the person, persons or firm making such determination with
respect to Indemnitee's entitlement to indemnification, including providing to
such person, persons or firm 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. Any costs or expenses (including
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attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or firm making such determination shall be paid by the
Company (irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) The Independent Counsel referred to in
Section 8(b) shall be selected as provided in this Section 8(c). The Independent
Counsel shall be selected by the Board of Directors, and the Company shall give
written notice to Indemnitee advising him of the identity of the Independent
Counsel so selected. Within 10 days after such written notice of selection shall
have been given, Indemnitee may deliver to the Company a written objection to
such selection; provided 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 Section 17, 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 such written objection is so made, the Independent Counsel so selected may
not serve as Independent Counsel unless and until such objection is withdrawn or
a court has determined that such objection is without merit. If, within 20 days
after submission by Indemnitee of a written request for indemnification pursuant
to Section 8(a), no Independent Counsel shall have been selected and not
objected to, Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution of any
objection that shall have been made by Indemnitee to the Company's selection of
Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the Court or by such other person as the Court shall
designate, and the person with respect to whom all objections are so resolved or
the person so appointed shall then act as Independent Counsel under Section
8(b). Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 10(a), Independent Counsel shall be discharged and relieved
of any further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
(d) The Company shall not be required to obtain
the consent of Indemnitee to the settlement of any Proceeding the Company has
undertaken to defend if the Company assumes full and sole responsibility for
such settlement and the settlement grants Indemnitee a complete and unqualified
release in respect of the potential liability. The Company shall not be liable
for any amount paid by the Indemnitee in settlement of any Proceeding that is
not defended by the Company, unless the Company has consented to such
settlement, which consent shall not be unreasonably withheld.
Section 9. Presumptions; Reliance and Effect of Certain
Proceedings.
(a) In making a determination with respect to
entitlement to indemnification hereunder, the person, persons or firm making
such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 8(a) and the Company shall have the burden of proof
to overcome that presumption in connection with the making by any person,
persons or firm of any determination contrary to that presumption. Neither the
failure of Independent Legal Counsel to have made a determination prior to the
commencement of any action pursuant to this Agreement that
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indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination thereby that
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct.
(b) If the person, persons or firm empowered under
Section 8 to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within 60 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 (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law; provided that
such 60-day period may be extended for a reasonable time, not to exceed an
additional 30 days, if the person, persons or firm making the determination with
respect to entitlement to indemnification in good faith requests in writing such
additional time for the obtaining or evaluating of documentation and/or
information relating thereto.
(c) The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not (except as otherwise
expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not
act in Good Faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe his conduct was
unlawful.
(d) For purposes of any determination of Good
Faith, Indemnitee shall be deemed to have acted in Good Faith if Indemnitee's
action is based on the records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee by the officers,
agents or employees of the Enterprise in the course of their duties, or on the
advice of legal counsel for the Enterprise or on information or records given or
reports made to the Enterprise by an independent certified public accountant or
by an appraiser, financial advisor or other expert or professional selected with
reasonable care by the Enterprise. The provisions of this Section 9(d) shall
not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to
act, of any director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement.
Section 10. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to
Section 8 that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely
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made pursuant to Section 7, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 8(b) within 90 days
after receipt by the Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 5, Section 6, the last sentence
of Section 8(b) or the last sentence of Section 17(g) within 10 days after
receipt by the Company of a written request therefor, or (v) payment of
indemnification pursuant to Section 3 or Section 4 is not made within 10 days
after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication by the Court of
Chancery of the State of Delaware of his entitlement to such indemnification or
advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. Indemnitee
shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has the
right to commence such proceeding pursuant to this Section 10(a); provided that
the foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce his rights under Section 5. The Company shall not oppose
Indemnitee's right to seek any such adjudication or award in arbitration.
(b) If a determination shall have been made
pursuant to Section 8(b) that Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section 10 shall
be conducted in all respects as a de novo trial, or arbitration, on the merits
and Indemnitee shall not be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made
pursuant to Section 8(b) that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 10, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statements not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d) If Indemnitee, pursuant to this Section 10,
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Agreement, Indemnitee
shall be entitled to recover from the Company, and shall be indemnified by the
Company against, any and all expenses (of the types described in the definition
of Expenses in Section 17 of this Agreement) actually and reasonably incurred by
him in such judicial adjudication or arbitration unless it shall be finally
determined by the court or arbitrator before which such claim was brought that
it was brought in bad faith. Even if it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of Expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be paid in full.
(e) The Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 10 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and hereby stipulates, and shall so stipulate in any
such court or before any such arbitrator, that the Company is bound by all the
provisions of this Agreement.
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Section 11. Nonexclusivity; Insurance; Subrogation.
(a) The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Company's Certificate of Incorporation, the Company's
Bylaws, any agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. To the extent
that a change in the DGCL, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would be afforded
currently under the Company's Certificate of Incorporation, Bylaws and this
Agreement, it is the agreement and intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change.
No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an
insurance policy or policies providing liability insurance for directors,
officers, employees, or agents of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
such person serves at the request of the Company, Indemnitee shall be covered by
such policy or policies in accordance with its or their terms to the maximum
extent of the coverage available for any such director, officer, employee or
agent under such policy or policies.
(c) In the event of any 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 documents
required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit
to enforce such rights.
(d) The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable (or for which
advancement is provided hereunder) hereunder if and to the extent that
Indemnitee has otherwise theretofore actually received such payment under any
insurance policy, contract, agreement or otherwise.
(e) The Company's obligation to indemnify or
advance Expenses hereunder to Indemnitee who is or was serving at the request of
the Company as a director, officer, employee or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
shall be reduced by any amount Indemnitee has actually theretofore received as
indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
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Section 12. Duration of Agreement. This Agreement shall
continue until and terminate upon the later of: (i) 10 years after the date that
Indemnitee shall have ceased to serve as a director or officer of the Company
(or of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise that Indemnitee served at the request of the
Company); or (ii) the final termination of any Proceeding then pending in
respect of which Indemnitee is granted rights of indemnification or advancement
of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 10 relating thereto. This Agreement shall be binding upon the Company
and its successors and assigns and shall inure to the benefit of Indemnitee and
his heirs, executors and administrators.
Section 13. Severability. If any provision or provisions of
this Agreement shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (i) the validity, legality and enforceability of the
remaining provisions of this Agreement (including without limitation each
portion of any Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; (ii) such provision
or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties
hereto; and (iii) to the fullest extent possible, the provisions of this
Agreement (including without limitation each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.
Section 14. Exception to Right of Indemnification or
Advancement of Expenses. Notwithstanding any other provision of this Agreement,
but subject to Section 10, Indemnitee shall not be entitled to indemnification
or advancement of Expenses under this Agreement with respect to any Proceeding
brought by Indemnitee, or any claim therein, unless the bringing of such
Proceeding or making of such claim shall have been approved by the Board of
Directors.
Section 15. 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 16. Headings. The headings of the paragraphs 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 17. Definitions. For purposes or this Agreement:
(a) "Corporate Status" describes the status of a
person who is or was a director,
officer, employee or agent of the Company or of any other corporation,
partnership, joint
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venture, trust, employee benefit plan or other enterprise that such person is or
was serving at the request of the Company.
(b) "Disinterested Director" means a director of
the Company who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(c) "Effective Date" means the date first above
written.
(d) "Enterprise" shall mean the Company and any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving at the request of the
Company as a director, officer, employee, agent or fiduciary.
(e) "Expenses" shall include all reasonable
attorneys' fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel and lodging expenses, 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
prosecuting, defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in, or otherwise participating in, a Proceeding.
(f) "Good Faith" shall mean Indemnitee having
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, having had no reasonable cause to believe Indemnitee's
conduct was unlawful.
(g) "Independent Counsel" means a law firm, or a
member of a law firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained to
represent: (i) the Company or any affiliate thereof or Indemnitee (other than
with respect to matters concerning the Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing the Company or
Indemnitee in an action to determine Indemnitee's rights under this Agreement.
The Company shall promptly pay the reasonable fees and expenses of the
Independent Counsel referred to above and shall fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
(h) "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 brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of the
fact that Indemnitee is or was a director or officer of the Company, by reason
of any action taken by him or of any inaction on his part while acting as
director or officer of the Company, or by reason of the fact that he is or
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was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, in each case whether or not he is acting or serving in any such
capacity at the time any liability or expense is incurred for which
indemnification or advancement of expenses can be provided under this Agreement;
except one initiated by a Indemnitee pursuant to Section 10 to enforce his
rights under this Agreement.
(i) References to "other enterprise" shall
include employee benefit plans; references to "fines" shall include any excise
tax assessed with respect to any employee benefit plan; references to "serving
at the request of the Company" shall include any service as a director, officer,
employee or agent of the Company that imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee
benefit plan, as participants or beneficiaries; and a person who acted in good
faith and in the manner he reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan shall not be deemed
to have acted in manner "not opposed to the best interests of the Company" as
referred to in this Agreement.
(j) "Affiliate" means with respect to any person
or entity, any other person or entity that, directly or indirectly, through one
or more intermediaries, controls, is controlled by or is under common control
with, such person or entity.
Section 18. Enforcement.
(a) The Company expressly confirms and agrees
that it has entered into this Agreement and assumed the obligations imposed on
it hereby in order to induce Indemnitee to continue to serve as a director
and/or officer of the Company, and to serve upon any committee of the Board of
Directors of the Company as requested by such Board, and the Company
acknowledges that Indemnitee is relying upon this Agreement in serving as a
director and/or officer of the Company and a member of any such committee.
(b) This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof.
Section 19. 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 20. Notice by Indemnitee. 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 or
advancement of Expenses covered hereunder. The failure of Indemnitee to so
notify the Company shall not relieve the Company of any obligation it may have
to the Indemnitee
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under this Agreement or otherwise, except to the extent the Company is
materially prejudiced by such failure.
Section 21. Notices. All notices, requests, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if (i) delivered by hand and receipted for by the party to whom
the notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to:
00 Xxxxxx Xxxx.
Xxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
(b) If to the Company, to:
InterTAN, Inc.
000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx X0x 0X0
Xxxxxx
Attention: Senior Vice President, Secretary &
General Counsel
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.
Section 22. Contribution. To the fullest extent permissible
under applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding in
order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
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Section 23. Governing Law; Submission to Jurisdiction;
Appointment of Agent for Service of Process. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without regard to its
conflict of laws rules. Except with respect to any arbitration commenced by
Indemnitee pursuant to Section 10(a), the Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the
Chancery Court of the State of Delaware (the "Delaware Court"), and not in any
other state or federal court in the United States of America or any court in any
other country, (ii) consent to and submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) appoint, to the extent such party is not a
resident of the State of Delaware, irrevocably CT Corporation, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 as its agent in the State of Delaware as such
party's agent for acceptance of legal process in connection with any such action
or proceeding against such party with the same legal force and validity as if
served upon such party personally within the State of Delaware, (iv) waive any
objection to the laying of venue of any such action or proceeding in the
Delaware Court, and (v) waive, and agree not to plead or to make, any claim that
any such action or proceeding brought in the Delaware Court has been brought in
an improper or otherwise inconvenient forum.
Section 24. Miscellaneous. Use of the masculine pronoun
shall be deemed to include usage of the feminine pronoun where appropriate. All
references in this Agreement to Sections shall be deemed to be references to
Sections of this Agreement unless the context indicates otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
InterTAN, Inc.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx
Xx. Vice President,
Secretary & General Counsel
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
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