Exh. 99.9
INDEMNITY AGREEMENT
AGREEMENT, effective as of September 18, 1987, between DUTY FREE
INTERNATIONAL, INC., a Maryland corporation (the "Company"), and XXXX XXXXXX
(the "Director"), a director-elect of the Company who is intended to become a
director of the Company upon the completion of the Company's initial public
offering:
WHEREAS, the Director has been named, with his consent, as a
"director-elect" of the Company in the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission on August 27, 1987
(the "Registration Statement") and intends to become a director of the
Company upon the completion of the Company's initial public offering; and
WHEREAS, in recognition of Director's need for substantial
protection against personal liability in order to enhance Director's
continued service to the Company in an effective manner and Director's
reliance on the provisions of the Company's Articles of Incorporation and
By-Laws ("charter documents") requiring indemnification of the Dirctor under
certain circumstances, and in part to provide Director with specific
contractual assurance that the protection promised by such charter documents
will be available to Director, the Company wishes to proivde in this
Agreement for the indemnification of and the advancing of expenses to
Director to the full extent (whether partial or complete) permitted by law
and as set forth in this Agreement, and, to the extent insurance is
maintained, if at all, for the continued coverage of Director under the
Company's directors' and officers' liability insurance policies.
NOW THEREFORE, in consideration of the premises and of Director
agreeing to be named on the Registration Statement as a director-elect of the
Company and to serve or continuing to serve the Company directly or, at its
request, with another enterprise, and intending to be legally bound hereby,
the parties hwereto agree as follows:
(1) BASIC INDEMNIFICATION ARRANGEMENT. (a) In the event Director
was, 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, a Claim
by reason of (or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Director to the fullest extent permitted by law as soon as
practicable but in any event no later than 30 days after written demand is
presented to the Company, against any and all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection therewith) of such Claim and
any federal, state, local or foreign taxes imposd on Director as a result of
the actual or deemed receipt of any payments under this Agreement. If so
requested by Director, the Company shall advance (within two business days of
such written request) any and all Expenses to Director (an "Expense
Advance"). Notwithstanding anything in this Agreement to the contrary, and
except as provided in Section 2, Director shall not be entitled to
indemnification pursuant to this Agreement in connection with any Claim
initiated by Director 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.
(b) Notwithstanding the foregoing, (i) the obligations of the
Company under Section 1(a) shall be subject to the condition that the
Reviewing Party shall not have determined that Director would not be
permitted to be indemnified under applicable law, and (ii) the obligation of
the Company to make an Expense Advance pursuant to Section 1(a) shall be
subject to the condition that, if, when and to the extent that the Reviewing
Party determines that Director would not be permitted to be so indemnified
under applicable law, the Company shall be entitled to be reimbursed by
Director (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Director has commenced legal
proceedings in a court of competent jurisdiction to secure a determination
that Director should be indemnified under applicable law, any determination
made by the Reviewing Party that Director would not be permitted to be
indemnified under applicable law shall not be binding and Director 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). Director's obligation to
reimburse the Company for Expense Advances shall be unsecured and no interest
shall be charged thereon. The Reviewing Party shall be selected by the Board
of Directors. If there has been no determination by the Reviewing Party or
if the Reviewing Party determines that Director substantively would be
permitted to be indemnified in whole or in part under applicable law,
Director shall have the right to commence litigation in any court in the
state of Maryland having subject matter jurisdiction thereof and in which
venue is proper seeking an initial determination by the court or challenging
any such determination by the Reviewing Party or any aspect thereof, 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 Director.
(2) INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Company shall
indemnify Director against any and all expenses (including attorneys' fees)
and, if requested by Director, shall (within two business days of such
written request) advance such expenses to Director, which are incurred by
Director in connection with any claim asserted against or action brought by
Director for (i) indemnification or advance payment of Expenses by the
Company under this Agreement or any other agreement or charter document now
or hereafter in effect relating to Claims for Indemnifiable Events and/or
(ii) recovery under any directors' and officers' liability insurance policies
maintained by the Company, regardless of whether Director ultimately is
determined to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be.
(3) PARTIAL INDEMNITY, ETC. If Director is entitled under any
povision of this Agreement to indemnification by the Company of some portion
of the Expenses, judgments, fines, penalies and amounts paid in settlement of
a Claim but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Director for the portion thereof to which
Director is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Director has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, Director shall be indemnified against all
Expenses incurred in connection therewith. In connection with any
determination by the Reviewing Party or otherwise as to whether
2
Director is entitled to be indemnified hereunder the burden of proof shall be
on the Comopany to establish that Director is not so entitled.
(4) NO PRESUMPTION. For purposes of this Agreement, the
termination of any action, suit or proceeding 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
Director 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.
(5) NON-EXCLUSIVITY, ETC. The rights of Director hereunder shall
be in addition to any other rights Director may have under the charter
documents or the Maryland General Corporation Law or otherwise. To the
extent that a change in the Maryland General Corporation Law (whether by
statute of judicial decision), or the charter documents, permits greater
indemnification by agreement than would be afforded currently under the
charter documents and this Agreement, it is the intent of the parties hereto
that Director shall enjoy by this Agreement the greater benefits so afforded
by such change.
(6) LIABILITY INSURANCE. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Director shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Company director.
(7) CERTAIN DEFINITIONS
(a) CLAIM: any threatened, pending or completed action,
suit, proceeding or alternative dispute resolution mechanism, or any inquiry,
hearing or investigation whether conducted by the Company or any other party,
whether civil, criminal, administrative investigative or other.
(b) EXPENSES: include attorneys' fees and all other costs,
fees, expenses and obligations of any nature whatsoever paid or incurred in
connection with investigating, defending, being a witness in or participating
in (including on appeal), or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable Event.
(c) INDEMNIFIABLE EVENT: any event or occurrence related to
or arising out of the fact that Director, with his consent, was named as a
"director-elect" in the Company's Registration Statement on Form S-1 filed
with the Securities and Exchange Commission on August 27, 1987 (and
amendments or supplements thereto).
(d) REVIEWING PARTY: any appropriate person or body
consisting of a member or members of the Company's Board of Directors or any
other person or body appointed by the Board who is not a party to the
particular Claim for which Director is seeking indemnification.
3
(8) AMENDMENTS AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by
both parties thereto. No waiver of any of the provisions of this Agreeent
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.
(9) SUBROGATION. In the event of a payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Director, 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 Company effectively
to bring suit to enforce such rights.
(10) NO DUPLICATION OF PAYMENTS. The Company shall not be liable
under this Agreement to make any payment in connection with any claim made
against Director to the extent Director has otherwise actually received a
payment (under any insurance policy, charter document or otherwise) of the
amounts otherwise indemnifiable hereunder.
(11) BINDING EFFECT, ETC. The 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, spouses, heirs and personal and
legal representatives. This Agreement shall continue in effect regardless of
whether Director serves or continues to serve as a director of the Company or
of any other enterprise at the Company's request.
(12) SEVERABILITY. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provisions within a single section, paragraph or sentence) are held by a
court of competent jurisdiction to be invalid, void or otherwise enforceable,
and the remaining provisions shall remain enforceable to the fullest extent
permitted by law.
(13) GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Maryland
applicable to contracts made and to be performed in such state without giving
effect to the principles of conflicts of laws.
(14) SECTION 2-418 OF THE MARYLAND GENERAL CORPORATION LAW. It is
intended that this Agreement and the Indemnifiable Event be consistent with
Section 2-418 of the Maryland General Corporation Law. Accordingly,
ratification of this Agreement by the Company's Board of Directors (the
"Board") shall constitute a determination by the Board, pursuant to Sections
2-418(e) and 2-418(f)(3) of the Maryland General Corporation Law, that the
indemnification provided for herein is permissible under the circumstances
because Director has met the standard of conduct set forth in Section
2-418(b) of the Maryland General Corporation Law. In addition, by this
execution thereof, Director affirms his belief (in accordance with Section
2-418(f)(i)) that his standard of conduct necessary for indemnification by
the Company has been met and, pursuant to Section 1(b) hereof, has provided a
written undertaking (in accordance with Section 2-418(f)(ii)) to repay the
4
amount of payments of expenses in advance of a final disposiion of an action
if it shall ultimately be determined that the standard of conduct has not
been met.
Executed this 17th day of September, 1987.
DUTY FREE INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman
/s/ Xxxx Xxxxxx
---------------------------
Director
5
