Exhibit 10.28
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of the 23rd day of March 2001
by and between INTIMATE BRANDS, INC., a Delaware corporation (the "Company"),
and the undersigned (the "Indemnitee").
RECITALS
WHEREAS, it is essential to the Company that it attract and retain as
directors and officers the most capable persons available; and
WHEREAS, Indemnitee is a director and/or officer of the Company; and
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
public companies in the current environment; and
WHEREAS, in recognition of Indemnitee's need for protection against
personal liability in order to enhance Indemnitee's continued service to the
Company in an effective manner, and in order to induce Indemnitee to continue to
provide services to the Company as a director or officer thereof, the Company
wishes to provide in this Agreement for the indemnification of Indemnitee to the
fullest extent permitted by law and as set forth in this Agreement;
NOW THEREFORE, in consideration of the foregoing, the covenants contained
herein and Indemnitee's continued service to the Company, the Company and
Indemnitee, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. The following terms, as used herein, shall have
the following respective meanings:
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings relative to the
foregoing.
"Change in control" shall be deemed to have occurred if, other
than as approved by a majority of the Board of Directors of the Company in
office immediately prior to such event (a) any person, other than (i) a trustee
or other fiduciary holding Voting Securities under an employee benefit plan of
the Company, (ii) a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of stock
of the Company or (iii) The Limited, Inc. ("The Limited"), any subsidiary of The
Limited or any successor to The Limited or any subsidiary thereof or (iv) Xxxxxx
X. Xxxxxx, his heirs, executors or administrators, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of Voting Securities representing 20% or more of the total voting power
represented by the Company's then outstanding Voting Securities, or (b) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company and any new director
whose election by the Board of Directors or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds of the
directors
then still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof, or (c) the stockholders of the
Company approve (i) a merger or consolidation of the Company with any other
corporation, other than (A) a merger or consolidation which would result in the
Voting Securities outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting Securities of
the surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation and (B) a merger or consolidation
with The Limited, any subsidiary of The Limited or any successor to The Limited
or any subsidiary thereof, or (ii) a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company (in one transaction
or a series of transactions) of all or substantially all of the Company's
assets.
"Claim" means (a) any threatened, pending or completed action,
suit, proceeding or arbitration or other alternative dispute resolution
mechanism, or (b) any inquiry, hearing or investigation, whether conducted by
the Company or any other Person, that Indemnitee in good faith believes might
lead to the institution of any such action, suit, proceeding or arbitration or
other alternative dispute resolution mechanism, in each case whether civil,
criminal, administrative or other (whether or not the claims or allegations
therein are groundless, false or fraudulent) and includes, without limitation,
those brought by or in the name of the Company or any director or officer of the
Company.
"Company Agent" means serving as a director, officer, partner,
employee, agent, trustee or fiduciary of the Company, any Subsidiary or any
Other Enterprise.
"Covered Event" means any event or occurrence on or after the date
of this Agreement related to the fact that Indemnitee is or was a Company Agent
or related to anything done or not done by Indemnitee in any such capacity, and
includes, without limitation, any such event or occurrence (a) arising from
performance of the responsibilities, obligations or duties imposed by ERISA or
any similar applicable provisions of state or common law, or (b) arising from
any merger, consolidation or other business combination involving the Company,
any Subsidiary or any Other Enterprise, including without limitation any sale or
other transfer of all or substantially all of the business or assets of the
Company, any Subsidiary or any Other Enterprise.
"D & O Insurance" means the directors' and officers' liability
insurance of the Company in effect on the date of this Agreement, and any
replacement or substitute policies issued by one or more reputable insurers
providing in all respects coverage at least comparable to and in the same amount
as that provided by the policy in effect on the date of this Agreement.
"Determination" means a determination made by (a) a majority vote
of a quorum of Disinterested Directors; (b) Independent Legal Counsel, in a
written opinion addressed to the Company and Indemnitee; (c) the stockholders of
the Company; or (d) a decision by a court of competent jurisdiction not subject
to further appeal.
"Disinterested Director" shall be a director of the Company who is
not or was not a party to the Claim giving rise to the subject matter of a
Determination.
"Expenses" includes attorneys' fees and all other costs, travel
expenses, fees of experts, transcript costs, filing fees, witness fees,
telephone charges, postage,
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copying costs, delivery services fees and other expenses and obligations of any
nature whatsoever paid or incurred in connection with investigating, prosecuting
or defending, being a witness in or participating in (including on appeal), or
preparing to prosecute or defend, be a witness in or participate in any Claim,
for which Indemnitee is or becomes legally obligated to pay.
"Independent Legal Counsel" shall mean a law firm or a member of a
law firm that (a) neither is nor in the past five years has been retained to
represent in any material matter the Company, any Subsidiary, Indemnitee or any
other party to the Claim, (b) under applicable standards of professional conduct
then prevailing would not have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee's rights to
indemnification under this Agreement and (c) is reasonably acceptable to the
Company and Indemnitee.
"Loss" means any amount which Indemnitee is legally obligated to
pay as a result of any Claim, including, without limitation (a) all judgments,
penalties and fines, and amounts paid or to be paid in settlement, (b) all
interest, assessments and other charges paid or payable in connection therewith
and (c) any federal, state, local or foreign taxes imposed (net of the value to
Indemnitee of any tax benefits resulting from tax deductions or otherwise) as a
result of the actual or deemed receipt of any payments under this Agreement,
including the creation of the Trust.
"Other Enterprise" means any corporation (other than the Company
or any Subsidiary), partnership, joint venture, association, employee benefit
plan, trust or other enterprise or organization for which Indemnitee acts as a
Company Agent at the request of the Company or any Subsidiary. Indemnitee shall
be deemed to be acting as a Company Agent of an Other Enterprise at the request
of the Company with respect to any Other Enterprise in which the Company or any
Subsidiary has an investment as to which Indemnitee shall act as a Company Agent
from time to time. Indemnitee shall be deemed to be acting as a Company Agent of
an Other Enterprise at the request of the Company, if Indemnitee acts as a
Company Agent of an Other Enterprise at the written or oral request of the Board
of Directors of the Company or of any Subsidiary by which the Indemnitee is
employed from time to time, at the written or oral request of an Executive
Officer of the Company or of any Subsidiary by which the Indemnitee is employed
from time to time or if Indemnitee acts as a Company Agent of an Other
Enterprise by reason of being requested, elected, hired or retained to succeed
or assume the responsibilities of a Person who previously acted as a Company
Agent of an Other Enterprise at the request of the Company.
"Parent" shall have the meaning set forth in the regulations of
the Securities and Exchange Commission under the Securities Act of 1933, as
amended; provided the term "Parent" shall not include the board of directors of
a corporation in its capacity as a board of directors, and provided further that
if the other party to any transaction referred to in Section 12.1.2 has no
Parent as so defined above, "Parent" shall mean such other party.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government (or any subdivision, department, commission or agency thereof), and
includes without limitation any "person", as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended.
"Potential Change in Control" shall be deemed to have occurred if
(a) the Company enters into an agreement or arrangement the consummation of
which would
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result in the occurrence of a Change in Control, (b) any Person (including the
Company) publicly announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control or (c) the Board of
Directors of the Company adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change in Control has occurred.
"Subsidiary" means any corporation of which more than 50 % of the
outstanding stock having ordinary voting power to elect a majority of the board
of directors of such corporation is now or hereafter owned, directly or
indirectly, by the Company.
"Trust" has the meaning set forth in Section 9.2.
"Voting Securities" means any securities of the Company, which
vote generally in the election of directors.
Section 2. Indemnification.
2.1. GENERAL INDEMNITY OBLIGATION.
2.1.1. Subject to the remaining provisions of this
Agreement, the Company hereby indemnifies and holds Indemnitee harmless for any
Losses or Expenses arising from any Claims relating to (or arising in whole or
in part out of) any Covered Event, including, without limitation, any Claim the
basis of which is any actual or alleged breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or attempted by
Indemnitee in the capacity as a Company Agent, whether or not Indemnitee is
acting or serving in such capacity at the date of this Agreement, at the time
liability is incurred or at the time the Claim is initiated.
2.1.2. The obligations of the Company under this Agreement
shall apply to the fullest extent authorized or permitted by the provisions of
applicable law, as presently in effect or as changed after the date of this
Agreement, whether by statute or judicial decision (but, in the case of any
subsequent change, only to the extent that such change permits the Company to
provide broader indemnification than permitted prior to giving effect thereto).
2.1.3. Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with any Claim initiated by Indemnitee
against the Company or any director or officer of the Company, unless the
Company has joined in or consented to the initiation of such Claim; provided,
the provisions of this Section 2.1.3 shall not apply following a Change in
Control to Claims seeking enforcement of this Agreement, the Certificate of
Incorporation or Bylaws of the Company or any other agreement now or hereafter
in effect relating to indemnification for Covered Events.
2.1.4. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Losses
or Expenses paid with respect to a Claim but not, however, for the total amount
thereof, the Company shall nevertheless indemnify and hold Indemnitee harmless
against the portion thereof to which Indemnitee is entitled.
2.1.5. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating to (or arising in whole or in
part out of) a Covered Event or
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in defense of any issue or matter therein, including dismissal without
prejudice, the Company shall indemnify and hold Indemnitee harmless against all
expenses incurred in connection therewith.
2.2. INDEMNIFICATION FOR SERVING AS WITNESS AND CERTAIN OTHER
CLAIMS. Notwithstanding any other provision of this Agreement, the Company
hereby indemnifies and holds Indemnitee harmless for all Expenses in connection
with (a) the preparation to serve or service as a witness in any Claim in which
Indemnitee is not a party, if such actual or proposed service as a witness arose
by reason of Indemnitee having served as a Company Agent on or the date of this
Agreement and (b) any Claim initiated by Indemnitee on or after the date of this
Agreement (i) for recovery under any directors' and officers' liability
insurance maintained by the Company or (ii) following a Change in Control, for
enforcement of the indemnification obligations of the Company under this
Agreement, the Certificate of Incorporation or Bylaws of the Company or any
other agreement now or hereafter in effect relating to indemnification for
Covered Events, regardless of whether Indemnitee ultimately is determined to be
entitled to such insurance recovery or indemnification, as the case may be.
Section 3. Limitations on Indemnification.
3.1. COVERAGE LIMITATIONS. No indemnification is available
pursuant to the provisions of this Agreement:
3.1.1. If such indemnification is not lawful;
3.1.2. If Indemnitee's conduct giving rise to the Claim with
respect to which indemnification is requested was knowingly fraudulent, a
knowing violation of law, deliberately dishonest or in bad faith or constituted
willful misconduct;
3.1.3. In respect of any Claim based upon or attributable
to Indemnitee gaining in fact any personal profit or advantage to which
Indemnitee was not legally entitled;
3.1.4. In respect of any Claim for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Company within
the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended;
or
3.1.5. In respect of any Claim based upon any violation of
Section 174 of the Delaware General Corporation Law, as amended.
3.2. NO DUPLICATION OF PAYMENTS. The Company shall not be liable
under this Agreement to make any payment otherwise due and payable to the extent
Indemnitee has otherwise actually received payment (whether under the
Certificate of Incorporation or the Bylaws of the Company, the D & O Insurance
or otherwise) of any amounts otherwise due and payable under this Agreement.
Section 4. Payments and Determinations.
4.1. ADVANCEMENT AND REIMBURSEMENT OF EXPENSES. If requested by
Indemnitee, the Company shall advance to Indemnitee, no later than two business
days following any such request, any and all Expenses for which indemnification
is available under Section 2. Upon any Determination that Indemnitee is not
permitted to be indemnified for any expenses so advanced, Indemnitee hereby
agrees to reimburse the Company (or, as appropriate, any Trust established
pursuant to Section 9.2) for all
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such amounts previously paid. Such obligation of reimbursement shall be
unsecured and no interest shall be charged thereon.
4.2. PAYMENT AND DETERMINATION PROCEDURES.
4.2.1. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, together with 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 of Directors in
writing that Indemnitee has requested indemnification.
4.2.2. Upon written request by Indemnitee for
indemnification pursuant to Section 4.2.1, a Determination with respect to
Indemnitee's entitlement thereto shall be made in the specific case (a) if a
Change in Control shall have occurred, as provided in Section 9.1; and (b) if a
Change in Control shall not have occurred, by (i) the Board of Directors by a
majority vote of a quorum of Disinterested Directors, (ii) Independent Legal
Counsel, if either (A) a quorum of Disinterested Directors is not obtainable or
(B) a majority vote of a quorum of Disinterested Directors otherwise so directs
or (iii) the stockholders of the Company (if submitted by the Board of
Directors). If a Determination is made that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 10 days after such
Determination.
4.2.3. If no Determination is made within 60 days after
receipt by the Company of a request for indemnification by Indemnitee pursuant
to Section 4.2.1, a Determination shall be deemed to have been made that
Indemnitee is entitled to the requested indemnification (and the Company shall
pay the related Losses and Expenses no later than 10 days after the expiration
of such 60-day period), except where such indemnification is not lawful;
provided, however, that (a) such 60-day period may be extended for a reasonable
time, not to exceed an additional 30 days, if the Person or Persons making the
Determination in good faith require such additional time for obtaining or
evaluating the documentation and information relating thereto; and (b) the
foregoing provisions of this Section 4.2.3 shall not apply (i) if the
Determination is to be made by the stockholders of the Company and if (A) within
15 days after receipt by the Company of the request by Indemnitee pursuant to
Section 4.2.1 the Board of Directors has resolved to submit such Determination
to the stockholders at an annual meeting of the stockholders to be held within
75 days after such receipt, and such Determination is made at such annual
meeting, or (B) a special meeting of stockholders is called within 15 days after
such receipt for the purpose of making such Determination, such meeting is held
for such purpose within 60 days after having been so called and such
Determination is made at such special meeting, or (ii) if the Determination is
to be made by Independent Legal Counsel.
Section 5. D & O Insurance.
5.1. CURRENT POLICIES. The Company hereby represents and
warrants to Indemnitee that the D & O Insurance is in full force and effect.
5.2. CONTINUED COVERAGE. The Company shall maintain the D & O
Insurance for so long as this Agreement remains in effect. The Company shall
cause the D & O Insurance to cover Indemnitee, in accordance with its terms and
at all times such
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insurance is in effect, to the maximum extent of the coverage provided thereby
for any director or officer of the Company.
5.3. INDEMNIFICATION. In the event of any reduction in, or
cancellation of, the D & O Insurance (whether voluntary or involuntary on behalf
of the Company), the Company shall, and hereby agrees to, indemnify and hold
Indemnitee harmless against any Losses or Expenses which Indemnitee is or
becomes obligated to pay as a result of the Company's failure to maintain the D
& O Insurance in effect in accordance with the provisions of Section 5.2, to the
fullest extent permitted by applicable law, notwithstanding any provision of the
Certificate of Incorporation or the Bylaws of the Company, or any other
agreement now or hereafter in effect relating to indemnification for Covered
Events. The indemnification available under this Section 5.3 is in addition to
all other obligations of indemnification of the Company under this Agreement and
shall be the only remedy of Indemnitee for a breach by the Company of its
obligations set forth in Section 5.2.
Section 6. Subrogation. In the event of any payment under this Agreement
to or on behalf of Indemnitee, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery of Indemnitee against any Person
other than the Company or Indemnitee in respect of the Claim giving rise to such
payment. Indemnitee shall execute all papers reasonably required and shall do
everything reasonably necessary to secure such rights, including the execution
of such documents reasonably necessary to enable the Company effectively to
bring suit to enforce such rights.
Section 7. Notifications and Defense of Claims.
7.1. NOTICE BY INDEMNITEE. Indemnitee shall give notice in writing
to the Company as soon as practicable after Indemnitee becomes aware of any
Claim with respect to which indemnification will or could be sought under this
Agreement; provided the failure of Indemnitee to give such notice, or any delay
in giving such notice, shall not relieve the Company of its obligations under
this Agreement except to the extent the Company is actually prejudiced by any
such failure or delay.
7.2. INSURANCE. The Company shall give prompt notice of the
commencement of any Claim relating to Covered Events to the insurers on the D &
O Insurance, if any, in accordance with the procedures set forth in the
respective policies in favor of Indemnitee. The Company shall thereafter take
all necessary action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Claims in accordance with the terms of such
policies.
7.3. DEFENSE.
7.3.1. In the event any Claim relating to Covered Events is
by or in the right of the Company, Indemnitee may, at the option of Indemnitee,
either control the defense therefor or accept the defense provided under the D &
O Insurance; provided, however, that Indemnitee may not control the defense if
such decision would jeopardize the coverage provided by the D & O Insurance, if
any, to the Company or the other directors and officers covered thereby.
7.3.2. In the event any Claim relating to Covered Events is
other than by or in the right of the Company, Indemnitee may, at the option of
Indemnitee, either control the defense thereof, require the Company to defend or
accept the defense provided under the D & O Insurance; provided, however, that
Indemnitee may
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not control the defense or require the Company to defend if such decision would
jeopardize the coverage provided by the D & O Insurance to the Company or the
other directors and officers covered thereby. In the event that Indemnitee
requires the Company to so defend, or in the event that Indemnitee proceeds
under the D & O Insurance but Indemnitee determines that such insurers under the
D & O Insurance are unable or unwilling to adequately defend Indemnitee against
any such Claim, the Company shall promptly undertake to defend any such Claim,
at the Company's sole cost and expense, utilizing counsel of Indemnitee's choice
who has been approved by the Company. If appropriate, the Company shall have the
right to participate in the defense of any such Claim.
7.3.3. In the event the Company shall fail, as required by
any election by Indemnitee pursuant to Section 7.3.2, timely to defend
Indemnitee against any such Claim, Indemnitee shall have the right to do so,
including without limitation, the right (notwithstanding Section 7.3.4) to make
any settlement thereof, and to recover from the Company, to the extent otherwise
permitted by this Agreement, all Expenses and Losses paid as a result thereof.
7.3.4. The Company shall have no obligation under this
Agreement with respect to any amounts paid or to be paid in settlement of any
Claim without the express prior written consent of the Company to any related
settlement. In no event shall the Company authorize any settlement imposing any
liability or other obligations on Indemnitee without the express prior written
consent of Indemnitee. Neither the Company nor Indemnitee shall unreasonably
withhold consent to any proposed settlement.
Section 8. Determinations and Related Matters.
8.1. PRESUMPTIONS.
8.1.1. If a Change in Control shall have occurred,
Indemnitee shall be entitled to a rebuttable presumption that Indemnitee is
entitled to indemnification under this Agreement and the Company shall have the
burden of proof in rebutting such presumption.
8.1.2. 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, shall not adversely affect either the
right of Indemnitee to indemnification under this Agreement or the presumptions
to which Indemnitee is otherwise entitled pursuant to the provisions of this
Agreement nor create a presumption that Indemnitee did not meet any particular
standard of conduct or have a particular belief or that a court has determined
that indemnification is not permitted by applicable law.
8.2. APPEALS; ENFORCEMENT.
8.2.1. In the event that (a) a Determination is made that
Indemnitee shall not be entitled to indemnification under this Agreement, (b)
any Determination to be made by Independent Legal Counsel is not made within 90
days of receipt by the Company of a request for indemnification pursuant to
Section 4.2.1 or (c) the Company fails to otherwise perform any of its
obligations under this Agreement (including, without limitation, its obligation
to make payments to Indemnitee following any Determination made or deemed to
have been made that such payments are appropriate), Indemnitee shall have the
right to commence a Claim in any court of
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competent jurisdiction, as appropriate, to seek a Determination by the court, to
challenge or appeal any Determination which has been made, or to otherwise
enforce this Agreement. If a Change of Control shall have occurred, Indemnitee
shall have the option to have any such Claim conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. Any such judicial
proceeding challenging or appealing any Determination shall be deemed to be
conducted DE NOVO and without prejudice by reason of any prior Determination to
the effect that Indemnitee is not entitled to indemnification under this
Agreement. Any such Claim shall be at the sole expense of Indemnitee except as
provided in Section 9.3.
8.2.2. If a Determination shall have been made or deemed to
have been made pursuant to this Agreement 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 8.2,
except if such indemnification is unlawful.
8.2.3. The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 8.2 that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement. The Company
hereby consents to service of process and to appear in any such judicial or
arbitration proceedings and shall not oppose Indemnitee's right to commence any
such proceedings.
8.3. PROCEDURES. Indemnitee shall cooperate with the Company and
with any Person making any Determination with respect to any Claim for which a
claim for indemnification under this Agreement has been made, as the Company may
reasonably require. Indemnitee shall provide to the Company or the Person making
any Determination, upon reasonable advance request, any documentation or
information reasonably available to Indemnitee and necessary to (a) the Company
with respect to any such Claim or (b) the Person making any Determination with
respect thereto.
Section 9. Change in Control Procedures.
9.1. DETERMINATIONS. If there is a Change in Control, any
Determination to be made under Section 4 shall be made by Independent Legal
Counsel selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld). The Company shall pay the reasonable fees of the
Independent Legal Counsel and indemnify fully such Independent Legal Counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or the engagement of
Independent Legal Counsel pursuant hereto.
9.2. ESTABLISHMENT OF TRUST. Following the occurrence of any
Potential Change in Control, the Company, upon receipt of a written request from
Indemnitee, shall create a Trust (the "Trust") for the benefit of Indemnitee,
the trustee of which shall be a bank or similar financial institution with trust
powers chosen by Indemnitee. From time to time, upon the written request of
Indemnitee, the Company shall fund the Trust in amounts sufficient to satisfy
any and all Losses and Expenses reasonably anticipated at the time of each such
request to be incurred by Indemnitee for which indemnification may be available
under this Agreement. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by mutual
agreement of Indemnitee and the Company or, if the Company
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and Indemnitee are unable to reach such an agreement or, in any event, a Change
in Control has occurred, by Independent Legal Counsel (selected pursuant to
Section 9.1). The terms of the Trust shall provide that, except upon the prior
written consent of Indemnitee and the Company, (a) the Trust shall not be
revoked or the principal thereof invaded, other than to make payments to
unsatisfied judgment creditors of the Company, (b) the Trust shall continue to
be funded by the Company in accordance with the funding obligations set forth in
this Section, (c) the Trustee shall promptly pay or advance to Indemnitee any
amounts to which Indemnitee shall be entitled pursuant to this Agreement, and
(d) all unexpended funds in the Trust shall revert to the Company upon a
Determination by Independent Legal Counsel (selected pursuant to Section 9.1) or
a court of competent jurisdiction that Indemnitee has been fully indemnified
under the terms of this Agreement. All income earned on the assets held in the
trust shall be reported as income by the Company for federal, state, local and
foreign tax purposes.
9.3. EXPENSES. Following any Change in Control, the Company shall
be liable for, and shall pay the Expenses paid or incurred by Indemnitee in
connection with the making of any Determination (irrespective of the
determination as to Indemnitee's entitlement to indemnification) or the
prosecution of any Claim pursuant to Section 8.2, and the Company hereby agrees
to indemnify and hold Indemnitee harmless therefrom. If requested by counsel for
Indemnitee, the Company shall promptly give such counsel an appropriate written
agreement with respect to the payment of its fees and expenses and such other
matters as may be reasonably requested by such counsel.
Section 10. Period of Limitations. No legal action shall be brought and
no cause of action shall be asserted by or in the right of the Company, any
Subsidiary, any Other Enterprise or any Affiliate of the Company against
Indemnitee or Indemnitee's spouse, heirs, executors, administrators or personal
or legal representatives after the expiration of two years from the date of
accrual of such cause of action, and any claim or cause of action of the
Company, any Subsidiary, any Other Enterprise or any Affiliate of the Company
shall be extinguished and deemed released unless asserted by the timely filing
of a legal action within such two-year period; provided, however, that if any
shorter period of limitations, whether established by statute or judicial
decision, is otherwise applicable to any such cause of action such shorter
period shall govern.
Section 11. Contribution. If the indemnification provisions of this
Agreement should be unenforceable under applicable law in whole or in part or
insufficient to hold Indemnitee harmless in respect of any Losses and Expenses
incurred by Indemnitee, then for purposes of this Section 11, the Company shall
be treated as if it were, or was threatened to be made, a party defendant to the
subject Claim and the Company shall contribute to the amounts paid or payable by
Indemnitee as a result of such Losses and Expenses incurred by Indemnitee in
such proportion as is appropriate to reflect the relative benefits accruing to
the Company on the one hand and Indemnitee on the other and the relative fault
of the Company on the one hand and Indemnitee on the other in connection with
such Claim, as well as any other relevant equitable considerations. For purposes
of this Section 11 the relative benefit of the Company shall be deemed to be the
benefits accruing to it and to all of its directors, officers, employees and
agents (other than Indemnitee) on the one hand, as a group and treated as one
entity, and the relative benefit of Indemnitee shall be deemed to be an amount
not greater than the Indemnitee's yearly base salary or Indemnitee's
compensation from the Company during the first year in which the Covered Event
forming the basis for the subject Claim was alleged to have occurred. The
relative fault
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shall be determined by reference to, among other things, the fault of the
Company and all of its directors, officers, employees and agents (other than
Indemnitee) on the one hand, as a group and treated as one entity, and
Indemnitee's and such group's relative intent, knowledge, access to information
and opportunity to have altered or prevented the Covered Event forming the basis
for the subject Claim.
Section 12. Miscellaneous Provisions.
12.1. SUCCESSORS AND ASSIGNS, ETC.
12.1.1. This Agreement shall be binding upon and inure to
the benefit of (a) the Company, its successors and assigns (including any direct
or indirect successor by merger, consolidation or operation of law or by
transfer of all or substantially all of its assets) and (b) Indemnitee and the
heirs, personal and legal representatives, executors, administrators or assigns
of Indemnitee.
12.1.2. The Company shall not consummate any consolidation,
merger or other business combination, nor will it transfer 50% or more of its
assets (in one or a series of related transactions), unless the ultimate Parent
of the successor to the business or assets of the Company shall have first
executed an agreement, in form and substance satisfactory to Indemnitee, to
expressly assume all obligations of the Company under this Agreement and agree
to perform this Agreement in accordance with its terms, in the same manner and
to the same extent that the Company would be required to perform this Agreement
if no such transaction had taken place; provided that, if the Parent is not the
Company, the legality of payment of indemnity by the Parent shall be determined
by reference to the fact that such indemnity is to be paid by the Parent rather
than the Company.
12.2. SEVERABILITY. The provisions of this Agreement are
severable. If any provision of this Agreement shall be held by any court of
competent jurisdiction to be invalid, void or unenforceable, such provision
shall be deemed to be modified to the minimum extent necessary to avoid a
violation of law and, as so modified, such provision and the remaining
provisions shall remain valid and enforceable in accordance with their terms to
the fullest extent permitted by law.
12.3. RIGHTS NOT EXCLUSIVE; CONTINUATION OF RIGHT OF
INDEMNIFICATION. Nothing in this Agreement shall be deemed to diminish or
otherwise restrict Indemnitee's right to indemnification pursuant to any
provision of the Certificate of Incorporation or Bylaws of the Company, any
agreement, vote of stockholders or Disinterested Directors, applicable law or
otherwise. This Agreement shall be effective as of the date first above written
and continue in effect until no Claims relating to any Covered Event may be
asserted against Indemnitee and until any Claims commenced prior thereto are
finally terminated and resolved, regardless of whether Indemnitee continues to
serve as an officer of the Company, any Subsidiary or any Other Enterprise.
12.4. NO EMPLOYMENT AGREEMENT. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company, any Subsidiary or any Other Enterprise.
12.5. SUBSEQUENT AMENDMENT. No amendment, termination or repeal of
any provision of the Certificate of Incorporation or Bylaws of the Company, or
any respective successors thereto, or of any relevant provision of any
applicable law, shall affect or diminish in any way the rights of Indemnitee to
indemnification, or the
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obligations of the Company, arising under this Agreement, whether the alleged
actions or conduct of Indemnitee giving rise to the necessity of such
indemnification arose before or after any such amendment, termination or repeal.
12.6. NOTICES. Notices required under this Agreement shall be
given in writing and shall be deemed given when delivered in person or sent by
certified or registered mail, return receipt requested, postage prepaid. Notices
shall be directed to the Company Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000,
Attention: Chairman of the Board, and to Indemnitee at the residential address
as shown on the Company's records (or such other address as either party may
designate in writing to the other).
12.7. 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 performed in such state without giving
effect to the principles of conflict of laws.
12.8. 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.
12.9. COUNTERPARTS. This Agreement may be executed in any
number of counterparts all of which taken together shall constitute one
instrument.
12.10. 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 or any of the provisions of this Agreement
shall constitute, or be deemed to constitute, a waiver of any other provision
hereof (whether or not similar) nor shall any such waiver constitute a
continuing waiver.
The parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
INTIMATE BRANDS, INC. INDEMNITEE
By /s/ Xxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
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Xxxxxx X. Xxxxx Xxxxx X. Xxxxx
Senior Vice President
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