EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "AGREEMENT") is entered into as of
_______ __, 2005, by and among Ritz Interactive, Inc., a Delaware corporation
(the "COMPANY") and the undersigned party (the "INDEMNITEE").
RECITALS
A. Indemnitee, as an officer and/or director of the Company, performs
valuable services in such capacity for the Company.
B. In order to induce the Indemnitee to continue to serve as a director
and/or an officer of the Company, the Company has determined and agreed to
enter into this contract with the Indemnitee.
NOW, THEREFORE, in consideration of the Indemnitee's continued service as
an officer and/or director after the date hereof, the parties hereto agree as
follows:
1. Indemnification.
a. Indemnification of Expenses. The Company shall indemnify and hold
harmless the Indemnitee (including the Indemnitee's spouse, heirs,
estate, executor or personal or legal representatives) and each
person who controls the Indemnitee or who may be liable within the
meaning of Section 15 of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), or Section 20 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), to the fullest extent
permitted by law, if the Indemnitee was or is or becomes a party to
or witness or other participant in, or is threatened to be made a
party to or witness or other participant in, any threatened, pending
or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that
the Indemnitee believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution
mechanism, whether civil, criminal, administrative, investigative or
other (hereinafter a "CLAIM") by reason of (or arising in part out
of) any event or occurrence related to the fact that the Indemnitee
is or was a director, officer, employee, controlling person, agent
or fiduciary of the Company, or any direct or indirect subsidiary of
the Company or any direct or indirect parent of the Company, or is
or was serving at the request of the Company as a director, officer,
employee, controlling person, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action or inaction on the part of the Indemnitee
while serving in such capacity including, without limitation, any
and all losses, claims, damages, expenses and liabilities, joint or
several (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of,
any action, suit, proceeding or any claim asserted) under the
Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, that relate directly
or indirectly to the registration, purchase, sale or ownership of
any securities of the Company or to any fiduciary obligation owed
with respect thereto (hereinafter an "INDEMNIFICATION EVENT")
against any and all expenses (including attorneys' fees and all
other costs, expenses and obligations incurred in connection with
investigating, defending, serving as a witness in or participating
in (including on appeal), or preparing to defend, be a witness in or
participate in, any such action, suit, proceeding, alternative
dispute resolution mechanism, hearing, inquiry or investigation),
judgments, fines, penalties and amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld or delayed) of such Claim, and
any federal, state, local or foreign taxes imposed on the Indemnitee
as a result of the actual or deemed receipt of any payments under
this Agreement, and all interest, assessments and other charges paid
or payable thereon or in respect thereto (collectively, hereinafter
"EXPENSES"). Except as set forth below in SECTION 1(b), such payment
of Expenses shall be made by the Company as soon as practicable but
in any event no later than five (5) days after written demand by the
Indemnitee therefor is presented to the Company.
b. Reviewing Party. Notwithstanding the foregoing, (i) the obligations
of the Company under SECTION 1(a) and SECTION 2(a) shall be subject
to the condition that the Reviewing Party (as described in SECTION
10(e) hereof) shall not have determined (in a written opinion, in
any case in which the Independent Legal Counsel referred to in
SECTION 10(d) hereof is involved) that the Indemnitee would not be
permitted to be indemnified under the terms of this Agreement or
applicable law and communicates this in writing to the Indemnitee,
and (ii) the Indemnitee acknowledges and agrees that the obligation
of the Company to make an advance payment of Expenses to the
Indemnitee pursuant to SECTION 1(a) and SECTION 2(a) (an "EXPENSE
ADVANCE") shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that the Indemnitee
would not be permitted to be so indemnified under applicable law,
the Company shall be entitled to be reimbursed by the Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if the Indemnitee has
commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that the Indemnitee
should be indemnified under applicable law, any determination made
by the Reviewing Party that the Indemnitee would not be permitted to
be indemnified under applicable law shall not be binding and the
Indemnitee shall not be required to reimburse the Company for any
Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed). The Indemnitee's obligation to reimburse
the Company for any Expense Advance shall be unsecured and no
interest shall be charged thereon.
If there has not been a Change in Control (as defined in SECTION
10(c) hereof), the Reviewing Party shall be selected by the Board of
Directors or similar governing body of the Company, and if there has
been such a Change in Control (other than a Change in Control that
has been approved by a majority of the Company's Board of Directors
or similar governing body who were in office immediately
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prior to such Change in Control), the Reviewing Party shall be the
Independent Legal Counsel referred to in SECTION 10(d) hereof.
If there has been no determination by the Reviewing Party within
thirty (30) days after a written demand for indemnification has been
presented to the Company by the Indemnitee or if the Reviewing Party
determines that the Indemnitee substantively would not be permitted
to be indemnified in whole or in part under the terms of this
Agreement or applicable law and the Reviewing Party notifies the
Indemnitee in writing of such determination, then the Indemnitee
shall have the right to commence litigation seeking an initial
determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, including the legal or
factual bases therefor, and the Company hereby consents to service
of process and to appear in any such proceeding.
Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and the Indemnitee.
c. Contribution. If the indemnification provided for in SECTION 1(a)
above for any reason is held by a court of competent jurisdiction to
be unavailable to the Indemnitee in respect of any losses, claims,
damages, expenses or liabilities referred to therein, then the
Company, in lieu of indemnifying the Indemnitee thereunder, shall
contribute to the amount paid or payable by the Indemnitee as a
result of such losses, claims, damages, expenses or liabilities (i)
in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Indemnitee, or (ii) if the
allocation provided by CLAUSE (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in CLAUSE (i) above but also
the relative fault of the Company and the Indemnitee in connection
with the action or inaction that resulted in such losses, claims,
damages, expenses or liabilities, as well as any other relevant
equitable considerations. In connection with any registration of the
Company's securities, the relative benefits received by the Company
and the Indemnitee shall be deemed to be in the same respective
proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and the Indemnitee, in
each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price
of the securities so offered. The relative fault of the Company and
the Indemnitee shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Indemnitee and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Indemnitee agree that it would not be just and
equitable if contribution pursuant to this SECTION 1(c) were
determined by pro rata or per capita allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
In connection with any registration of the Company's securities, in
no
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event shall the Indemnitee be required to contribute any amount
under this SECTION 1(c) in excess of the lesser of: (i) that
proportion of the total of such losses, claims, damages or
liabilities that are indemnified against, equal to the proportion of
the total securities sold under such registration statement that is
being sold by the Indemnitee or (ii) the proceeds received by the
Indemnitee from its sale of securities under such registration
statement. No person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.
d. Survival Regardless of Investigation. The indemnification and
contribution provided for in this SECTION 1 will remain in full
force and effect regardless of any investigation made by or on
behalf of the Indemnitee or the spouse, estate, heirs or personal or
legal representative of the Indemnitee.
e. Change in Control. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control that has been
approved by a majority of the Company's Board of Directors or
similar governing body who were in office immediately prior to such
Change in Control) then, with respect to all matters thereafter
arising concerning the rights of the Indemnitee to payments of
Expenses under this Agreement or any other agreement or under the
Company's charter documents as now or hereafter in effect,
Independent Legal Counsel (as defined in SECTION 10(d) hereof) shall
be selected by the Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld or delayed). Such
counsel, among other things, shall, within thirty (30) days after a
written demand for indemnification has been presented to the Company
by the Indemnitee, render its written opinion to the Company and the
Indemnitee as to whether and to what extent the Indemnitee would be
permitted to be indemnified under the terms of this Agreement or
applicable law. The Company agrees to abide by such opinion and to
pay the reasonable fees of the Independent Legal Counsel referred to
above and to fully indemnify such counsel against any and all
expenses (including attorneys' fees), claims, liabilities and
damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
f. Mandatory Payment of Expenses. Notwithstanding any other provision
of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in the
defense of any action, suit, proceeding, inquiry or investigation
referred to in SECTION 1(a) hereof or in the defense of any claim,
issue or matter therein, the Indemnitee shall be indemnified against
all Expenses incurred by the Indemnitee in connection herewith.
2. Expenses; Indemnification Procedure.
a. Advancement of Expenses. Subject to SECTION 1(b), the Company shall
advance all Expenses incurred by the Indemnitee as soon as
practicable but in any event no
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later than five (5) days after written demand by the Indemnitee
therefor to the Company.
b. Notice/Cooperation by the Indemnitee. The Indemnitee shall give the
Company notice in writing as soon as practicable of any Claim made
against the Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be directed
to the Chief Executive Officer of the Company (the "CEO") at the
Company's address (or such other address as the Company shall
designate in writing to the Indemnitee). The CEO shall, promptly
upon receipt of such a request for indemnification, advise the
Company's Board of Directors in writing that Indemnitee has
requested indemnification. In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power. The omission to
so notify the Company will not relieve it from any liability which
it may have to Indemnitee other than under this Agreement
c. No Presumptions; Burden of Proof. For purposes of this Agreement,
the termination of any Claim by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of
nolo contendere, or its equivalent, shall not create a presumption
that the Indemnitee did not meet any particular standard of conduct
or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a
determination as to whether the Indemnitee has met any particular
standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that the Indemnitee has not met
such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by the Indemnitee to secure a
judicial determination that the Indemnitee should be indemnified
under applicable law, shall be a defense to the Indemnitee's claim
or create a presumption that the Indemnitee has not met any
particular standard of conduct or did not have any particular
belief. In connection with any determination by the Reviewing Party
or otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company
to establish that the Indemnitee is not so entitled.
d. Notice to Insurers. If, at the time of the receipt by the Company of
a notice of a Claim pursuant to SECTION 2(b) hereof, the Company has
liability insurance in effect that may cover such Claim, the Company
shall give prompt notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in each of the
policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such action, suit,
proceeding, inquiry or investigation in accordance with the terms of
such policies.
e. Selection of Counsel. If the Company shall be obligated hereunder to
pay the Expenses of any Claim, the Company shall be entitled to
assume the defense of such Claim, with counsel approved by the
Indemnitee, upon the delivery to the
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Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by the Indemnitee
and the retention of such counsel by the Company, the Company will
not be liable to the Indemnitee under this Agreement for any fees of
counsel subsequently incurred by the Indemnitee with respect to the
same Claim; provided that, (i) the Indemnitee shall have the right
to employ the Indemnitee's counsel in any such Claim at the
Indemnitee's expense and (ii) if (A) the employment of counsel by
the Indemnitee has been previously authorized by the Company, (B)
the Indemnitee shall have reasonably concluded that there is a
conflict of interest between the Company and the Indemnitee in the
conduct of any such defense and shall have promptly notified the
Company in writing of such determination, or (C) the Company shall
not continue to retain such counsel to defend such Claim, then the
fees and expenses of the Indemnitee's counsel shall be at the
expense of the Company. The Company shall not settle any proceeding
in any manner which would impose any penalty or limitation on the
Indemnitee without the Indemnitee's prior written consent, which
consent shall not be unreasonably withheld or delayed.
3. Additional Indemnification Rights; Nonexclusivity.
a. Scope. The Company hereby agrees to indemnify the Indemnitee to the
fullest extent permitted by law, even if such indemnification is not
specifically authorized by the other provisions of this Agreement.
In the event of any change after the date of this Agreement in any
applicable law, statute or rule that expands the right of the
Company to indemnify a director, manager, officer, employee,
controlling person, agent or fiduciary, it is the intent of the
parties hereto that the Indemnitee shall enjoy by this Agreement the
greater benefits afforded by such change. Upon any change in any
applicable law, statute or rule that narrows the right of the
Company to indemnify a director, manager, officer, employee, agent
or fiduciary, such change, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or the parties' rights and
obligations hereunder except as set forth in SECTION 8(a) hereof.
b. Nonexclusivity. The indemnification provided by this Agreement shall
be in addition to any rights to which the Indemnitee may be entitled
under the Company's governance documents, any agreement, any vote of
the equityholders of the Company or disinterested members of the
Company's Board of Directors or similar governing body, applicable
law, or otherwise. The indemnification provided under this Agreement
shall continue as to the Indemnitee for any action the Indemnitee
took or did not take while serving in an indemnified capacity even
though the Indemnitee may have ceased to serve in such capacity.
4. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any Claim made against
the Indemnitee to the extent the Indemnitee has otherwise actually
received payment (under any insurance policy or otherwise) of the amounts
otherwise indemnifiable hereunder.
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5. Partial Indemnification. If the Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for any portion of
Expenses incurred in connection with any Claim, but not, however, for all
of the total amount thereof, the Company shall nevertheless indemnify the
Indemnitee for the portion of such Expenses to which the Indemnitee is
entitled.
6. Mutual Acknowledgement. The Company and the Indemnitee acknowledge that in
certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying its directors, managers, officers,
employees, controlling persons, agents or fiduciaries under this Agreement
or otherwise. The Indemnitee understands and acknowledges that the Company
has undertaken or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of
the Company's rights under public policy to indemnify the Indemnitee.
7. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, managers, officers, employees, control
persons, agents or fiduciaries, the Indemnitee shall be covered by such
policies in such a manner as to provide the Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Company's
directors, if the Indemnitee is a director, or of the Company's officers,
if the Indemnitee is not a director of the Company but is an officer; or
of the Company's key employees, controlling persons, agents or
fiduciaries, if the Indemnitee is not an officer or director but is a key
employee, agent, control person or fiduciary.
8. Exceptions. Any other provision herein to the contrary notwithstanding,
the Company shall not be obligated pursuant to the terms of this
Agreement:
a. Claims Initiated by the Indemnitee. To indemnify or advance expenses
to the Indemnitee with respect to Claims initiated or brought
voluntarily by the Indemnitee and not by way of defense, except: (i)
with respect to actions or proceedings to establish or enforce a
right to indemnify under this Agreement or any other agreement or
insurance policy or under the Company's governance documents now or
hereafter in effect relating to Claims for Indemnifiable Events;
(ii) in specific cases if the Board of Directors or similar
governing body has approved the initiation or bringing of such
Claim; or (iii) as otherwise required under applicable law,
regardless of whether the Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be; or
b. Claims Under Section 16(b). To indemnify the Indemnitee for expenses
and the payment of profits arising from the purchase and sale by the
Indemnitee of securities in violation of Section 16(b) of the
Exchange Act or any similar successor statute; or
c. Claims Excluded Under Law. To indemnify the Indemnitee if: (i) the
Indemnitee did not act in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the
Company or (ii) with respect to any criminal
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action or proceeding, the Indemnitee had reasonable cause to believe
the conduct was unlawful or (iii) the Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent
the court in which such action was brought shall permit
indemnification as provided by applicable law.
9. 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 against the
Indemnitee or the Indemnitee's estate, spouse, heirs, executors or
personal or legal representatives after the expiration of two (2) years
from the date of accrual of such cause of action, and any claim or cause
of action of the Company shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two (2)-year
period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period
shall govern.
10. Construction of Certain Phrases.
a. For purposes of this Agreement, references to the "COMPANY" shall
include any other constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger that, if its
separate existence had continued, would have had power and authority
to indemnify its directors, managers, officers, employees, agents or
fiduciaries, so that if an Indemnitee is or was a director, manager,
officer, employee, agent, control person, or fiduciary of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, manager, officer, employee,
control person, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other
enterprise, the Indemnitee shall stand in the same position under
the provisions of this Agreement with respect to the resulting or
surviving entity as the Indemnitee would have with respect to such
constituent entity if its separate existence had continued.
b. For purposes of this Agreement, references to "OTHER ENTERPRISES"
shall include employee benefit plans; references to "FINES" shall
include any excise taxes assessed on the Indemnitee with respect to
an employee benefit plan; and references to "SERVING AT THE REQUEST
OF THE COMPANY" shall include any service as a director, manager,
officer, employee, agent or fiduciary of the Company that imposes
duties on, or involves services by, such director, manager, officer,
employee, agent or fiduciary with respect to an employee benefit
plan, its participants or its beneficiaries; and if the Indemnitee
acted in good faith and in a manner the Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, the Indemnitee shall be deemed to have
acted in a manner "NOT OPPOSED TO THE BEST INTERESTS OF THE COMPANY"
as referred to in this Agreement.
c. For purposes of this Agreement a "CHANGE IN CONTROL" shall be deemed
to have occurred if: (i) any "person" (as such term is used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than the
Principals and their Related Parties, (A) who is or becomes the
beneficial owner, directly or indirectly, of securities of
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the Company representing ten percent (10%) or more of the combined
voting power of the Company's then outstanding Voting Securities,
increases his beneficial ownership of such securities by five
percent (5%) or more over the percentage so owned by such person, or
(B) becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing more than twenty percent (20%) of the total
voting power represented by the Company's then outstanding Voting
Securities, (ii) during any period of two (2) consecutive years,
individuals who at the beginning of such period constitute the Board
of Directors or similar governing body 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 (2/3) 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 (iii) the
stockholders of the Company approve a merger or consolidation of the
Company with any other corporation other than a merger or
consolidation that would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least eighty
percent (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, or the stockholders
of the Company approve a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company of (in
one transaction or a series of transactions) all or substantially
all of the Company's assets. For purposes of this definition,
"PRINCIPALS" means Xxxxx Xxxx, Xxxx X. Xxxxxx and Xxxx X. Xxxxxxxx
and "RELATED PARTY" means (1) any family member, spouse, heirs,
estate, executor or personal or legal representative of any
Principal; or (2) any trust, corporation, partnership or other
entity, the beneficiaries, stockholders, partners, owners or persons
beneficially holding an 80% or more controlling interest of which
consist of any one or more Principals and/or such other persons
referred to in the immediately preceding clause (1).
d. For purposes of this Agreement, "INDEPENDENT LEGAL COUNSEL" shall
mean an attorney or firm of attorneys, selected in accordance with
the provisions of SECTION 1(e) hereof, who shall not have otherwise
performed services for the Company or the Indemnitee within the last
three (3) years (other than with respect to matters concerning the
right of the Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
e. For purposes of this Agreement, a "REVIEWING PARTY" shall mean any
appropriate person or body consisting of a member or members of the
Company's Board of Directors or similar governing party, or any
other person or body appointed by such body, who is not a party to
the particular Claim for which the Indemnitee is seeking
indemnification, or Independent Legal Counsel.
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f. For purposes of this Agreement, "VOTING SECURITIES" shall mean any
securities of the Company that vote generally in the election of
directors.
11. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original.
12. Binding Effect; Successors and Assigns. 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 purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company and
including any estate, spouse, heirs or personal or legal representatives
of the Indemnitee. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the
business and/or assets of the Company, by written agreement in form and
substance satisfactory to the Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken
place. This Agreement shall continue in effect with respect to Claims
relating to Indemnifiable Events regardless of whether the Indemnitee
continues to serve as a director, officer, employee, agent, controlling
person or fiduciary of the Company or of any other enterprise, including
subsidiaries of the Company, at the Company's request.
13. Attorneys' Fees. In the event that any action is instituted by the
Indemnitee under this Agreement or under any liability insurance policies
maintained by the Company to enforce or interpret any of the terms hereof
or thereof, the Indemnitee shall be entitled to be paid all Expenses
incurred by the Indemnitee with respect to such action, regardless of
whether the Indemnitee is ultimately successful in such action, and shall
be entitled to the advancement of Expenses with respect to such action,
unless, as a part of such action, a court of competent jurisdiction over
such action determines that each of the material assertions made by the
Indemnitee as a basis for such action was not made in good faith or was
frivolous. In the event of an action instituted by or in the name of the
Company under this Agreement to enforce or interpret any of the terms of
this Agreement, the Indemnitee shall be entitled to be paid all Expenses
incurred by the Indemnitee in defense of such action (including costs and
expenses incurred with respect to the Indemnitee counterclaims and
cross-claims made in such action), and shall be entitled to the
advancement of Expenses with respect to such action, unless, as a part of
such action, a court having jurisdiction over such action determines that
each of the Indemnitee's material defenses to such action was made in bad
faith or was frivolous.
14. Notice. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in
any event be deemed to be given: (a) five (5) days after deposit with the
U.S. Postal Service or other applicable postal service, if delivered by
first class mail, postage prepaid; (b) upon delivery, if delivered by
hand; (c) one (1) business day after the business day of deposit with
Federal Express or similar overnight courier, freight prepaid; or (d) one
(1) day after the business day of delivery by facsimile transmission, if
deliverable by facsimile transmission, with copy by first class mail,
postage prepaid, and shall be addressed if to the Indemnitee, at the
Indemnitee's
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address as set forth beneath the Indemnitee's signature to this Agreement
and if to the Company at the address of its principal corporate offices
(attention: Secretary) or at such other address as such party may
designate by ten (10) days' advance written notice to the other party
hereto.
15. Consent to Jurisdiction. The Company and the Indemnitee hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all
purposes in connection with any action or proceeding that arises out of or
relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court
of Chancery of the State of Delaware in and for New Castle County, which
shall be the exclusive and only proper forum for adjudicating such a
claim.
16. Severability. The provisions of this Agreement shall be severable in the
event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the
provisions of this Agreement (including, without limitations, each portion
of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
17. Choice of Law. This Agreement shall be governed by and its provisions
construed and enforced in accordance with the laws of the State of
Delaware, as applied to contracts between Delaware residents, entered into
and to be performed entirely within the State of Delaware, without regard
to the conflict of laws principles thereof.
18. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to
enable the Company effectively to bring suit to enforce such rights.
19. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing
signed by all 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.
20. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties
hereto.
21. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving the Indemnitee any right to be
retained in the employ of the Company or any of its subsidiaries.
11
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement on and as of the day and year first above written.
COMPANY:
RITZ INTERACTIVE, INC.,
a Delaware corporation
By: ___________________________
Name: _________________________
Title: ________________________
INDEMNITEE:
By: ___________________________
Name: _________________________
Address for notices:
________________________________
________________________________
________________________________
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