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Exhibit 10.1
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of July 21, 1993, between
XXXX CORPORATION, a Delaware corporation (the "Corporation"), and the Person
named on Annex A hereto (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the Corporation has been a debtor in possession in
proceedings under Chapter 11 of the United States Bankruptcy Code since January
1, 1992;
WHEREAS, the Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code (the "Code") for Xxxx Corporation and Its Affiliated Debtors
dated March 24, 1993, as modified, has been confirmed by order, entered May 20,
1993, of the United States Bankruptcy Court for the Northern District of Texas,
Dallas Division (as so confirmed, the "Plan");
WHEREAS, the Plan of Reorganization is expected to be
consummated on or about July 28, 1993 or as soon thereafter as practicable;
WHEREAS, it is essential to the Corporation to attract as
directors the most capable persons available;
WHEREAS, the Corporation has requested that the Indemnitee
become a member of the Board of Directors of the Corporation effective as of
8:00 a.m. on July 21 (the "Commencement Time") and the Indemnitee has agreed so
to serve in part upon the basis of the indemnification and other agreements
provided for and referred to in this Agreement, including Section 10 hereof;
WHEREAS, both the Corporation and the Indemnitee recognize the
increased risk of litigation and other claims being asserted against directors
of public companies in today's environment and take account especially of the
Corporation's recent history as a debtor-in-possession;
WHEREAS, the Corporation's Restated Certificate of
Incorporation requires the Corporation to indemnify its directors as set forth
therein and expressly authorizes the Corporation to enter into agreements with
its directors for the purpose of providing for such indemnification, and the
Indemnitee has agreed to serve as a director of the Corporation in part in
reliance on such provisions;
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WHEREAS, in recognition of the Indemnitee's need for
substantial protection against personal liability in order to enhance the
Indemnitee's commencement and continued service to the Corporation in an
effective manner, the difficulty of finding adequate director and officer
liability insurance coverage and the Indemnitee's reliance on the aforesaid
provisions in the Corporation's Restated Certificate of Incorporation, and, in
part to provide the Indemnitee with specific contractual assurance that the
protection promised by such provisions will be available to the Indemnitee
(regardless of, among other things, any amendment to or revocation of such
provisions of the Certificate of Incorporation, future financial difficulties
of the Corporation, any change in the composition of the Corporation's board of
directors or the occurrence of any acquisition transaction relating to the
Corporation); and
WHEREAS, the Corporation wishes to provide in this Agreement
for the effective indemnification of and the advancing of expenses to the
Indemnitee as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
Indemnitee agreeing to serve the Corporation directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Indemnification
(a) Agreement to Indemnify. Subject to Section 3 hereof,
the Corporation shall indemnify the Indemnitee to the full extent permitted by
law against expenses (including attorneys' and other professionals' fees and
other out-of-pocket expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature ("Proceeding") in which the
Indemnitee was or is or is threatened to be made a party or in which the
Indemnitee testifies by reason of (i) the fact that the Indemnitee is or was a
director, officer, employee or agent at any time after the Commencement Time of
the Corporation or is or was at any time after the Commencement Time serving at
the request of the Corporation as a director, officer, employee, trustee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and (ii) any acts or omissions by the
Indemnitee in such capacity that occurred after the Commencement Time, so long
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as the Indemnitee acted or omitted to act in good faith and in a manner that
the Indemnitee (x) reasonably believed to be in or not opposed to the best
interests of the Corporation and (y) with respect to any criminal action or
proceeding, had reasonable cause to believe was lawful; provided, however, that
if a court of competent jurisdiction, after exhaustion of all appeals
therefrom, adjudges the Indemnitee to be liable to the Corporation for any
amount or if the Indemnitee pays an amount in settlement to the Corporation,
the Corporation may indemnify the Indemnitee for such amount only with the
approval of such court.
(b) Exclusions. The Corporation shall not be liable
under this Agreement to make any payment to the Indemnitee:
(i) for which payment has previously been actually made
to the Indemnitee under a valid and collectible insurance policy,
except in respect of any excess beyond the amount of payment under
such insurance;
(ii) for which payment has previously been actually made
to the Indemnitee by the Corporation other than pursuant to this
Agreement, except in respect of any excess beyond the amount of such
payment; and
(iii) for an accounting of profits made from the purchase
or sale by the Indemnitee of securities of the Corporation within the
meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of any state law;
(c) Standards of Indemnification. In connection with any
determination as to whether the Indemnitee is entitled to be indemnified or
advanced expenses hereunder, to the maximum extent permitted by law, the burden
of proof shall be on the Corporation to establish that Indemnitee is not so
entitled. In connection with any action by the Indemnitee to enforce this
Agreement, to the maximum extent permitted by law, neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of any
action by the Indemnitee under Section 5 hereof that indemnification of the
claimant is proper under the circumstances because the Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Corporation
(including its Board of
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Directors, independent legal counsel, or its stockholders) that the Indemnitee
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the Indemnitee has not met the applicable
standard of conduct. For purposes of this Agreement, the termination of any
Proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner which the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation or with respect to any criminal Proceeding, had reasonable cause to
believe that the conduct of the Indemnitee was unlawful.
2. Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Agreement, after the Indemnitee
has been successful on the merits or otherwise, including the dismissal of a
Proceeding without prejudice or the settlement of a Proceeding without
admission of liability, in defense of any Proceeding or in defense of any
claim, issue or matter therein, the Corporation, in accordance with Section
145(c) of the General Corporation Law of the State of Delaware, shall indemnify
the Indemnitee against all expenses (including attorneys' and other
professionals' fees and other out-of-pocket expenses) actually and reasonably
incurred by the Indemnitee in connection therewith.
3. Determination of Right of Indemnification. Any
indemnification under Section 1 (unless otherwise ordered by a court) shall be
made by the Corporation only following receipt of a written demand by the
Indemnitee and only (x) if, in the specific case there has been no
determination that indemnification of the Indemnitee is not proper in the
circumstances because the Indemnitee has not met the applicable standard of
conduct set forth in Section 1 or (y) if (but only if) required by Delaware
law, upon a determination that indemnification of the Indemnitee is proper in
the circumstances because the Indemnitee has met the applicable standard of
conduct set forth in Section 1. Any such determination shall be made within
thirty (30) days from the date the written request of the Indemnitee is
received by the Corporation either (i) by the Board of Directors by a majority
vote of a quorum consisting of directors who are not or were not parties to
such Proceeding, (ii) if such a quorum is not obtainable or, even if obtainable
if a quorum of disinterested directors so directs, or, if a change in control
(as defined below) has occurred subsequent to the Effective Date of the Plan of
Reorganization, by the written opinion of independent legal
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counsel selected by the Board of Directors of the Corporation (or if a change
of control has so occurred, selected by the Indemnitee with the consent of the
Corporation, which consent shall not be unreasonably withheld) or (iii) by the
stockholders of the Corporation.
A "change in control" shall be deemed to have occurred if (i)
any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a Trustee or other
fiduciary holding securities under an employee benefit plan of the Corporation
or a corporation owned directly or indirectly by the stockholders of the
Corporation in substantially the same proportions as their ownership of stock
in the Corporation, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under such Act), directly or indirectly of securities of the Corporation
representing 51% or more of the total voting power represented by the
Corporation's then outstanding Voting Securities, (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the board of directors of the Corporation and any new director whose election
by the board of directors or nomination for election by the Corporation'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 (iii) the stockholders of
the Corporation approve a merger or consolidation of the Corporation with any
other corporation, other than a merger or consolidation which would result in
the Voting Securities of the Corporation 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 Corporation or such
surviving entity outstanding immediately after such merger or consolidation, or
the stockholders of the Corporation approve a plan of complete liquidation and
dissolution of the Corporation or an agreement for the sale or disposition by
the Corporation of all or substantially all the Corporation's assets; provided,
however, that any transaction that would otherwise be a change in control under
clause (iii) hereof which is approved and recommended in advance by the
Corporation's board of directors shall not be deemed a change in control. For
purpose of the definition of change in control, the term "Voting Securities"
shall mean any securities of the Corporation which vote generally in the
election of directors.
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The term "independent legal counsel" as used herein, means a
law firm, an attorney or a member of a law firm that is experienced in matters
of corporate law and neither at the time of engagement is, nor at any time
during the five (5) years preceding the date of the engagement by the
Indemnitee has been, retained to represent (i) either the Corporation or the
Indemnitee in any matter material to either party or (ii) any other party to a
Proceeding giving rise to a claim for indemnification hereunder. The term
"independent legal counsel" shall not include any person who, under the
applicable standards of professional conduct prevailing at the time of the
representation, would have a conflict of interest in representing either the
Corporation or the Indemnitee in an action to determine the Indemnitee's rights
under the provisions of the Corporation's Certificate of Incorporation, Bylaws
or any agreement upon which the Indemnitee relies to establish the Indemnitee's
right to indemnification or advancement of expenses.
The Corporation agrees to pay the reasonable fees of the
independent legal counsel and to 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
such independent legal counsel pursuant hereto.
4. Advances of Expenses. Expenses (including attorneys'
fees) incurred by the Indemnitee in defending any Proceeding shall be paid by
the Corporation upon written request of the Indemnitee in advance of the final
disposition of such Proceeding if the Corporation has received an undertaking
by or on behalf of the Indemnitee, in substantially the form attached hereto as
Annex B. The obligation of the Corporation to advance expenses pursuant to
this Section 4 shall be subject to the condition that if, when and to the
extent a determination is made as provided under Section 3 hereof that the
Indemnitee would not be permitted to be indemnified as provided therein, then
the Corporation shall be entitled to be reimbursed by the Indemnitee as
provided in Annex B for all amounts theretofore paid in advance; provided,
however, that if Indemnitee has commenced legal proceedings in a court of
competent jurisdiction to secure a determination that the Indemnitee should be
indemnified under applicable law, any determination made pursuant to this
Agreement 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 Corporation for any advances hereunder until a final judicial
determination is
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made with respect thereto (as to which all appeals therefrom have been
exhausted).
In any event, the obligation of the Indemnitee to reimburse
the Corporation for advances shall be unsecured and no interest will be charged
thereon.
5. Procedure for Making Demand.
(a) Payments for any indemnification to which the
Indemnitee is entitled pursuant to Section 1 hereof shall be made by the
Corporation no later than thirty (30) days after the receipt of a written
demand made by the Indemnitee as provided in Section 3 hereof.
(b) Payments of expenses to which the Indemnitee is
entitled pursuant to Section 2 hereof shall be made by the Corporation no later
than ten (10) days after receipt by the Corporation of the written demand for
payment from the Indemnitee.
(c) Advancement of expenses to the extent provided by
Section 4 hereof shall be made by the Corporation no later than thirty (30)
days after receipt by the Corporation of the written undertaking referred to in
Section 4 hereof.
(d) The right to indemnification or advances hereunder
shall be enforceable by each Indemnitee in any court of competent jurisdiction
if the Board of Directors, independent legal counsel or stockholders improperly
denies the claim, in whole or in part or if indemnification or advancement of
expenses is not made within the time specified herein. In any such event, or
if there has been no determination under Section 3, the Indemnitee shall have
the right to commence litigation in any such court in the States of Delaware or
New York or the state(s) of director's residence or employment, having subject
matter jurisdiction thereof, and in which venue is proper, seeking an initial
determination by the court or challenging any such determination under this
Agreement or any aspect thereof, and the Corporation hereby consents to service
of process and to appear in any such proceeding. Any determination as to the
right to indemnification, including expense reimbursement, hereunder shall
otherwise be conclusive and binding on the Corporation and the Indemnitee.
(e) The Corporation shall indemnify the Indemnitee
against any and all expenses (including attorneys' and other professionals'
fees and other
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out-of-pocket expenses) and, if requested by the Indemnitee, shall, within ten
(10) days of such request, advance such expenses to Director which are incurred
by the Indemnitee in connection with any claim asserted against or action
brought by the Indemnitee for (i) indemnification hereunder or advance payment
of expenses by the Corporation under this Agreement (or the Corporation's
Certificate of Incorporation or By-Laws now or hereafter in effect) and/or (ii)
recovery under any director and officer liability insurance policies maintained
by the Corporation, 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.
6. Subrogation. In the event of payment under this
Agreement, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of the Indemnitee who shall execute all papers
required and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Corporation
effectively to bring suit to enforce such rights.
7. Effect of Changes in Law or Corporate Documents. No
change in the Corporation's Certificate of Incorporation or Bylaws or the
Delaware General Corporation Law subsequent to the date first above written
shall have the effect of limiting or eliminating the indemnification available
under this Agreement as to any act, omission or capacity for which this
Agreement provides indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in any applicable
law, statute or rule expands the power of the Corporation to indemnify the
Indemnitee, such change shall be within the purview of the Indemnitee's rights
and the Corporation's obligations under this Agreement. If any change in
applicable law, statute or rule narrows the right of the Corporation to
indemnify the Indemnitee, such change, except to the extent otherwise required
by law, statute or rule to be applied to this Agreement, shall have no effect
on this Agreement or the parties' rights or obligations hereunder.
8. Definition of "Corporation." For purposes of this
Agreement, references to "the Corporation" shall include, in addition to the
resulting or surviving corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers and employees or agents, so that any person
who is
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or was a director of such constituent corporation after the Effective Date or
is or was serving at the request of such constituent corporation as a director,
officer, employee, trustee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise after the Effective
Date, shall stand in the same position under this Agreement with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
9. Partial Indemnity. If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the Corporation for
some or a portion of the expenses, judgments, fines and amounts paid in
settlement but not, however, for all of the total amount thereof, the
Corporation shall nevertheless indemnify the Indemnitee for the portion thereof
to which the Indemnitee is entitled.
10. Security for Obligations of the Corporation; Trust
Fund. The Corporation and the Indemnitee agree that in light of the recent
history of the Corporation and its emergence from reorganization proceedings
under the Code, as well as the terms of the insurance policies obtained by the
Corporation with respect to director and officer liability coverage, it is
appropriate that the obligations of the Corporation pursuant to this Agreement
be secured in a manner satisfactory to the Indemnitee. Consequently, as
promptly as practicable, but not later than October 1, 1993, Zale Delaware,
Inc. and the Corporation will establish a Trust Fund ("Fund") pursuant to a
Trust Agreement in form and substance satisfactory to the Indemnitee, which
shall provide for the deposit by Zale Delaware, Inc. and the Corporation as the
Fund, for the benefit of the Indemnitee and any other directors from time to
time of Zale Delaware, Inc. and the Corporation (collectively, the
"Beneficiaries"), of at least $500,000 plus if such amount is less than
$1,000,000 an additional pro rata amount for each of the next ten months
thereafter until the Fund aggregates $1,000,000 (the "Minimum Balance") in the
aggregate for Zale Delaware, Inc. and the Corporation, in cash or cash
equivalents or, at the Corporation's option with the consent of a majority of
the Beneficiaries, a standby letter of credit from The First National Bank of
Boston or other institution acceptable to a majority of the Beneficiaries;
provided that the form of any such standby letter must be satisfactory to each
Indemnitee. Initially, the terms of the Trust Agreement shall provide, among
other things, that (i) the Trust Fund shall be used, when
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requested by any Beneficiary, to satisfy the obligations of the Corporation
pursuant to this Agreement and other like agreements of Zale Delaware, Inc. and
the Corporation with Beneficiaries with respect to any and all payments
provided for hereunder or thereunder; (ii) the Fund shall not be revoked or the
principal thereof invaded for any other purpose without the written consent of
the Indemnitee; (iii) the Fund shall continue to be funded by Zale Delaware,
Inc. and the Corporation, jointly and severally, as necessary to maintain the
Minimum Balance, once established; and (iv) the Trustee under the Trust
Agreement shall be chosen by a majority of the Beneficiaries. Nothing in the
Trust Agreement shall relieve the Corporation of any of its obligations under
this Agreement, and this Agreement shall be amended as necessary to be
consistent with the terms of the Trust Agreement as ultimately executed.
11. Successors. The indemnification and advancement of
expenses and other rights granted and obligations undertaken pursuant to this
Agreement shall continue after the Indemnitee has ceased to be a director,
officer, employee or agent as referred to in clause (i) of Section 1(a) hereof
and shall be binding upon the successors and assigns of the Corporation and
shall inure to the benefit of the heirs, executors, administrators and legal
representatives of the Indemnitee and the Corporation.
12. Contract Rights Not Exclusive. The contract rights
conferred by this Agreement shall be in addition to, but not exclusive of, any
other right which the Indemnitee may have or may hereafter acquire under any
statute, the Certificate of Incorporation or Bylaws of the Corporation, any
agreement by the vote of stockholders or disinterested directors of the
Corporation or otherwise, both as to action in the Indemnitee's official
capacity and as to action in another capacity while holding such office. The
rights granted in this Agreement supersede any similar right granted under any
previous Agreement between the Corporation and the Indemnitee with respect to
the subject matter hereof.
13. The Indemnitee's Obligations. The Indemnitee shall
promptly advise the Corporation in writing of the institution of any Proceeding
which is or may be subject to this Agreement and keep the Corporation generally
informed of and consult with the Corporation with respect to, the status and
defense of any such Proceeding.
14. Severability. If any provision of this Agreement is
prohibited by law or otherwise determined to be
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invalid or unenforceable by a court of competent jurisdiction, such prohibition
shall not affect the validity of the remaining provisions of this Agreement.
15. Modification and Waiver. No supplement, modification
or amendment of this Agreement shall be binding unless executed in writing by
both of the parties hereto.
16. Headings. The descriptive headings of the Sections
of this Agreement are inserted for convenience and shall not control or affect
the meaning or construction of any of the provisions hereof.
17. Notices. Any request, notice, direction,
authorization, consent, waiver, demand or other communication permitted or
authorized by this Agreement to be made upon, given or furnished to or filed
with the Corporation or the Indemnitee by the other party hereto shall be
sufficient for every purpose hereunder if in writing (including telecopy
communication) and telecopied or delivered by hand (including by courier
service) as follows:
If to the Corporation, to it at:
Xxxx Corporation
000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
with copies to:
Xxxx Corporation
000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Telecopy No.: (000) 000-0000
and
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
or
If to the Indemnitee, to the Indemnitee at the address
specified on Annex A hereto,
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or, in either case, such other address as shall have been set forth in a notice
delivered in accordance with this Section. All such communications shall, when
so telecopied or delivered by hand, be effective when telecopied with
confirmation of receipt or received by the addressee, respectively. Any party
that telecopies any communication hereunder to the other party shall, on the
same date as such telecopy is transmitted, also send, by first class mail,
postage prepaid and addressed to such party as specified above, an original
copy of the communication so transmitted.
18. Choice of Law. This Agreement will be governed by
and construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed in such state, without giving effect to
the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first written above.
XXXX CORPORATION
By:
---------------------------------------------
Name: Dolph X.X. Xxxxx
Title: Vice President and Secretary
THE INDEMNITEE
------------------------------------------------
Name as specified on Annex A hereto
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SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
XXXX CORPORATION
By: DOLPH X.X. XXXXX
--------------------------------
Name: Dolph X.X. Xxxxx
Title: Vice President and
Secretary
INDEMNITEE ADDRESS
---------- -------
/s/ XXXX XXXXXXXXX Xxxxxxxxx & Co., L.P.
-------------------------------- 9 West 57th Street, Suite 0000
Xxxx Xxxxxxxxx Xxx Xxxx, Xxx Xxxx 00000
/s/ XXXX X. XXXXXXXXX Xxxx Corporation
-------------------------------- 000 Xxxx Xxxxxx Xxxx Xxxx
Xxxx X. Xxxxxxxxx Xxxxxx, Xxxxx 00000-0000
/s/ XXXXX X. XXXXXXXXX Handy & Xxxxxx
-------------------------------- 555 Xxxxxxxx Xxxxx Avenue
Xxxxx X. Xxxxxxxxx Xxx, Xxx Xxxx 00000
/s/ XXXXXXX X. XXXXXX 3811 Turtle Creek Centre,
-------------------------------- Suite 300
Xxxxxxx X. Xxxxxx Xxxxxx, Xxxxx 00000
/s/ XXXXXX X. XXXXX Lorillard, Inc.
-------------------------------- Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx X. Xxxxx Xxx Xxxx, Xxx Xxxx 00000
/s/ XXXXX X. XXXXXX Appollo Advisors, LP
-------------------------------- 1999 Avenue of the Stars
Xxxxx X. Xxxxxx Suite 1900
Xxx Xxxxxxx, Xxxxxxxxxx 00000
/s/ J. XXXX XXXXX 2711 LBJ Freeway
-------------------------------- Suite 000
X. Xxxx Xxxxx Xxxxxx, Xxxxx 00000
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Annex B
UNDERTAKING AGREEMENT
AGREEMENT dated ________________, 19__, between Xxxx
Corporation, a Delaware corporation (the "Corporation"), and the Person named
on Annex A hereto, a member of the Board of Directors of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has become involved in investigations,
claims, actions, suits or proceedings (collectively, "Proceedings") which have
arisen as a result of the Indemnitee's service to the Corporation;
WHEREAS, the Indemnitee desires that the Corporation pay any
and all expenses (including, but not limited to, attorneys' fees and court
costs) actually and reasonably incurred by the Indemnitee or on the
Indemnitee's behalf in defending or investigating any such Proceedings and that
such payment be made in advance of the final disposition of such Proceedings to
the extent that the Indemnitee has not been previously reimbursed by insurance;
WHEREAS, the Corporation is willing to make such payments but,
in accordance with Section 145 of the General Corporation Law of the State of
Delaware, the Corporation may make such payments only if it receives an
undertaking to repay from the Indemnitee; and
WHEREAS, the Indemnitee is willing to give such an undertaking.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements herein contained, the Corporation and the Indemnitee
agree as follows:
1. In regard to any advance payments made by the
Corporation to the Indemnitee pursuant to the terms of the Indemnification
Agreement dated as of July 21, 1993, between the Corporation and the Indemnitee
(the "Indemnification Agreement") or pursuant to Article Seventh of the
Certificate of Incorporation of the Corporation, the Indemnitee hereby
undertakes and agrees to repay to the Corporation any and all amounts so paid
promptly and in any event within thirty (30) days after the disposition,
including exhaustion of all appeals therefrom of any litigation or threatened
litigation on account of which payments were made if it is determined that the
Indemnitee
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is not entitled to indemnification pursuant to the Indemnification Agreement,
the Certificate of Incorporation or the General Corporation Law of the State of
Delaware.
2. This Agreement shall not affect in any manner the
rights which the Indemnitee may have against the Corporation, any insurer or
any other person to seek indemnification for or reimbursement of any expenses
referred to herein or any judgment which may be rendered in any litigation or
proceeding.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first written above.
XXXX CORPORATION
By:
-------------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE INDEMNITEE
----------------------------------------------
Name as specified on Annex A hereto
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Addendum to Indemnification Agreement
The following documents are substantially identical to the Indemnification
Agreement shown here, except for the names and dates and therefore are not filed
as separate documents in accordance with Exchange Act Rule 12b-31.
INDEMNIFICATION AGREEMENT dated as of July 21, 1993, between ZALE DELAWARE,
INC., a Delaware Corporation (the "Corporation"), and the Person named on Annex
A (the "Indemnitee"). The date and the names are the same as the agreement
between Xxxx Corporation.
INDEMNIFICATION AGREEMENT dated as of the date specified on Annex A between XXXX
CORPORATION, a Delaware Corporation (the "Corporation"), and the Person named on
Annex A (the "Indemnitee"). The date of the agreement is September 9, 1993, and
the name of the indemnitee is Xxxxx X. Xxxxxx.
INDEMNIFICATION AGREEMENT dated as of the date specified on Annex A between ZALE
DELAWARE, INC., a Delaware Corporation (the "Corporation"), and the Person named
on Annex A (the "Indemnitee"). The date of the agreement is September 9, 1993,
and the name of the indemnitee is Xxxxx X. Xxxxxx.
