DIRECTOR INDEMNIFICATION AGREEMENT
EXHIBIT 10.1
This Director Indemnification Agreement (“Agreement”) is entered into effective as of July 10,
2008, by and between Levi Xxxxxxx & Co., a Delaware corporation (the “Company”), and
(“Indemnitee”).
WHEREAS, the Amended and Restated Certificate of Incorporation of the Company (the
“Certificate of Incorporation”) authorizes the Company to provide indemnification of, and
advancement of expenses to, directors to the fullest extent permitted by law and in accordance with
the Company’s Amended and Restated Bylaws (the “Bylaws”), and allows the Company to enter into
indemnification agreements above and beyond the indemnification provided by the Certificate of
Incorporation and Bylaws;
WHEREAS, the Company desires to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to indemnification against litigation risks and expenses (regardless, among
other things, of any amendment to or revocation of the Certificate of Incorporation or Bylaws or
any change in the ownership of the Company or the composition of the Company’s Board of Directors
(the “Board of Directors”));
WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and, in part, in order to induce Indemnitee
to continue to provide services to the Company, wishes to provide for the indemnification and
advancing of expenses to Indemnitee to the maximum extent permitted by law; and
WHEREAS, in view of the considerations set forth above, the Company desires that effective
upon the date referred to above, Indemnitee shall be indemnified by the Company as set forth
herein.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Indemnification.
(a) General Indemnification. The Company shall indemnify Indemnitee to the fullest
extent permitted by law if 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, a Claim
by reason of (or arising in part out of) an Indemnifiable Event against any and all Losses or
Expenses, including all interest, assessments and other charges paid or payable in connection with
or in respect of such Losses or Expenses.
(b) Reviewing Party. The Reviewing Party shall determine whether Indemnitee shall be
permitted to be indemnified under applicable law. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable law, 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.
(c) Payment. Any payment of Losses or Expenses shall be made by the Company as soon
as practicable but in any event no later than ten (10) days after it has been determined pursuant
to this Agreement that Indemnitee is entitled to indemnification.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all Expenses actually and
reasonably incurred by Indemnitee in defending or being a witness in any such Claim in advance of
its final disposition. The advances to be made hereunder (an “Expense Advance”) shall be paid by
the Company to Indemnitee as soon as practicable but in any event no later than twenty (20) days
after receipt by the Company of a written demand by Indemnitee therefor. With respect to Expense
Advances incurred by Indemnitee in his or her capacity as a director (and not in any other capacity
in which service was or is rendered by Indemnitee while a director, including, without limitation,
service to an employee benefit plan), the obligation of the Company to make an Expense Advance to
Indemnitee pursuant to this Section 2(a) shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company as promptly as practicable) for all such amounts theretofore
paid. Indemnitee shall not be required to reimburse the Company for any Expense Advance, until
final judicial determination, if applicable, is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or lapsed). Indemnitee’s obligation to reimburse the
Company for any Expense Advance shall be unsecured and no interest shall be charged thereon.
(b) Notice of Claim; Cooperation by Indemnitee. Promptly after receipt by Indemnitee
of any notice or document respecting the commencement of a Claim naming or involving Indemnitee and
relating to an Indemnifiable Event with respect to which Indemnitee may be entitled to
indemnification or an Expense Advance pursuant to this Agreement, Indemnitee shall notify the
Company promptly of such receipt; provided, however, that a failure by Indemnitee to provide such
notice in accordance with this Section 2(b) shall not affect Indemnitee’s rights to receive any
indemnification or Expense Advances hereunder unless and to the extent that the Company did not
otherwise receive notice of such Claim and such failure of Indemnitee to provide such notice
results in the forfeiture by the Company of substantial rights and defenses. Notice to the Company
shall be directed to the Chief Executive Officer of the Company, with a copy to the Company’s
Secretary, at the address shown on the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee). In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as shall be within
Indemnitee’s power in order to assess and respond to such Claim.
(c) Request for Indemnification or Expense Advances. Indemnitee shall, as a
condition to Indemnitee’s right to be indemnified or receive Expense Advances under this Agreement,
submit a written request, including therein or therewith such documentation and information as is
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reasonably available to the Indemnitee and is reasonably necessary to determine whether and to
what extent the Indemnitee is entitled to indemnification. Upon such written request by the
Indemnitee, a determination, if required by applicable law, with respect to the Indemnitee’s
entitlement thereto shall be made by the Reviewing Party. If any Losses or Expenses are not paid
in full by the Company within thirty (30) days after such written request has been delivered to the
Company in accordance with this Section 2(c), the Indemnitee may at any time thereafter bring suit
against the Company to recover the unpaid amount of such Losses or Expenses and, if successful in
whole or in part, the Indemnitee shall be entitled to be paid also the expense of prosecuting such
action.
(d) Notice to Insurers. If, at the time of the receipt by the Company of a written
request for indemnification pursuant to Section 2(c) hereof, the Company, or any affiliate of the
Company, has liability insurance in effect which may cover such Claim, the Company shall as
promptly as practicable, if it has not already done so, give notice of the commencement of such
Claim to the insurers in accordance with the procedures set forth in the respective policies. The
Company shall thereafter use its reasonable best efforts 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) 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 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, it shall be a defense to any such action by the Indemnitee to recover
any unpaid amount of Losses or Expenses (other than an action brought to enforce a claim for Losses
or Expenses incurred in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the Company) that the Indemnitee has
not met the standard of conduct which makes it permissible under the Delaware General Corporation
Law to indemnify the Indemnitee for the amount claimed, but the burden of proving such defense
shall be on the Company. Neither the failure of the Company (including its directors who are not
parties to such action, a committee of such directors, Independent Legal Counsel or its
stockholders) to have made a determination prior to the commencement of such action that
indemnification of the Indemnitee is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Company (including its directors who are not parties to such action, a
committee of such 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. 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 Indemnitee
is not so entitled.
(f) Company Bound; Precluded. If a determination shall have been made pursuant to
Section 1(b) above that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in any judicial proceeding commenced by Indemnitee to recover any unpaid Losses
or Expenses. The Company shall be precluded from asserting in any such judicial
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proceeding that the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in such proceeding that the Company is bound by all the provisions
of this Agreement.
(g) Selection of Counsel. In the event the Company shall be obligated hereunder to
pay the Losses or Expenses of any Claim, the Company, if appropriate, shall be entitled to assume
the defense of such Claim, with counsel approved by Indemnitee, which approval shall not be
unreasonably withheld (“Retained Counsel”), upon the delivery to Indemnitee of written notice of
its election so to do. After delivery of such notice, approval of Retained Counsel by Indemnitee
and the retention of Retained Counsel by the Company, the Company will not be liable to Indemnitee
under this Agreement for any fees of separate counsel (“Separate Counsel”) subsequently incurred by
Indemnitee with respect to the same Claim; provided that, (i) Indemnitee shall have the right to
employ Separate Counsel in any such Claim at Indemnitee’s expense and (ii) if (A) the employment of
Separate Counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense, or (C) the Company shall not continue to retain
Retained Counsel to defend such Claim, then the fees and expenses of Indemnitee’s Separate Counsel
shall be at the expense of the Company. The Company shall have the right to conduct such defense
as it sees fit in its sole discretion, including the right to settle any claim against Indemnitee,
without the consent of the Indemnitee; provided, however, that the Company shall not settle any
Claim requiring the admission of guilt or responsibility by Indemnitee without Indemnitee’s prior
written consent, such consent to not be unreasonably withheld.
(h) Mandatory Payment of Expenses. Notwithstanding any other provision of this
Agreement other than Section 8 hereof, to the extent that Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action without prejudice,
in defense of any action, suit, proceeding, inquiry or investigation referred to in Section l(a)
hereof or in the defense of any claim, issue or matter therein, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by Indemnitee in connection therewith.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify the Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification may not be specifically
authorized by the other provisions of this Agreement, the Company’s Certificate of Incorporation or
By-laws as now or hereafter in effect or by statute. In the event of any change after the date of
this Agreement in any applicable law, statute or rule which expands the right of a Delaware
corporation to indemnify a member of its board of directors, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change. In the
event of any change in any applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors, 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 right to indemnification and Expense Advances provided by
this
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Agreement shall be in addition to any rights to which Indemnitee may be entitled under the
Company’s Certificate of Incorporation, its By-laws, any other agreement, any vote of stockholders
or disinterested directors, the Delaware General Corporation Law, or otherwise.
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 Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance policy, the Company’s Certificate of
Incorporation or Bylaws, or otherwise) of the amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. 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
incurred in connection with any Claim, but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of such Losses or Expenses to which
Indemnitee is entitled.
6. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge that in
certain instances, Federal law or applicable public policy may prohibit the Company from
indemnifying its directors under this Agreement or otherwise. 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 right under public policy to indemnify
Indemnitee.
7. Liability Insurance. To the extent the Company maintains liability insurance
applicable to directors, Indemnitee shall be covered by such policies in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most favorably insured of
the Company’s directors.
8. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for acts, omissions or
transactions from which Indemnitee may not be relieved of liability under applicable law.
(b) Claims Initiated by Indemnitee. To indemnify Indemnitee with respect to Claims
initiated or brought voluntarily by Indemnitee and not by way of defense, except (i) with respect
to actions or proceedings brought to establish or enforce a right to indemnification under this
Agreement or any other agreement or insurance policy or under the Company’s Certificate of
Incorporation or Bylaws now or hereafter in effect relating to Claims for Indemnifiable Events, or
(ii) in specific cases if the Company has joined in or the Board of Directors has approved the
initiation or bringing of such Claim or Indemnitee’s participation is required by applicable law.
(c) Lack of Good Faith. To indemnify Indemnitee with respect to any proceeding
instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the Indemnitee in such
proceeding was not
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made in good faith or was frivolous.
(d) Claims Under Section 16. To indemnify Indemnitee with respect to any Claim for
an accounting of profits arising from the purchase and sale (or sale and purchase) by Indemnitee of
securities of the Company in violation of Section 16 of the Exchange Act, or the rules and
regulations promulgated thereunder, or any similar successor statute, rules or regulations, or any
similar provisions of state law.
(e) Personal Benefit. To indemnify Indemnitee with respect to any Claim based upon
or attributable to Indemnitee gaining in fact any personal profit or advantage to which Indemnitee
is not entitled.
(f) Liable to Company. To indemnify Indemnitee with respect to any Claim in which
Indemnitee shall have been adjudged liable to the Company, unless and to the extent a court of
competent jurisdiction shall determine that such indemnification may be made.
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 Indemnitee, Indemnitee’s estate,
spouse, heirs, executors or personal or legal representatives after the expiration of three 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 three-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. Definitions. For the purposes of this Agreement, the following terms shall have
the meaning assigned to them hereunder:
(a) Change in Control shall mean any event in which:
(i) any “person” or “group” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act or any successor provisions to either of the foregoing), including any group
acting for the purpose of acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d- 5(b)(1) under the Exchange Act, other than (a) a trustee or other
fiduciary (acting in such capacity) holding securities under an employee benefit plan of the
Company or the voting trustee under the Voting Trust Agreement, or (b) a Person owned
directly or indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the
Company representing more than 35% of the total voting power of the Company’s then
outstanding Voting Securities; or
(ii) during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Company and any new directors whose
election by the Board of Directors or nomination for election by the Company’s stockholders
was approved by a vote of at least three-fourths (3/4) of the directors then still in office
who either were directors at the beginning of the period or
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whose election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof; or
(iii) the sale, transfer, assignment, lease, conveyance or other disposition, directly
or indirectly, of all or substantially all the assets of the Company and its subsidiaries,
considered as a whole (other than a disposition of assets as an entirety or virtually as an
entirety to a subsidiary that is wholly owned by the Company or its subsidiaries) shall have
occurred, or the Company merges, consolidates or amalgamates with or into any other Person
or any other Person merges, consolidates or amalgamates with or into the Company, in any
event pursuant to a transaction in which the outstanding Voting Securities of the Company
are reclassified into or exchanged for cash, securities or other property, other than a
transaction where:
(1) the outstanding Voting Securities of the Company are reclassified into or
exchanged for other Voting Securities of the Company or for Voting Securities of the
surviving corporation or transferee; and
(2) the holders of the Voting Securities of the Company immediately prior to
the transaction own, directly or indirectly, not less than a majority of the Voting
Securities of the Company or the surviving corporation or transferee immediately
after the transaction and in substantially the same proportion as before the
transaction; or
(iv) the stockholders of the Company approve a plan of liquidation or dissolution of
the Company.
(b) Claim shall mean any threatened, pending or completed action, suit, proceeding,
arbitration, or alternative dispute resolution mechanism, or any hearing, inquiry or investigation
that Indemnitee in good faith believes might lead to the institution of any action, suit,
proceeding, arbitration or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or otherwise.
(c) Company shall mean and include, in addition to the Company and any successor corporation,
any constituent corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence were continued, would have had power and
authority to indemnify its directors, so that if Indemnitee is or was a director of such
constituent corporation, or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate existence had continued.
(d) Exchange Act means the Securities Exchange Act of 1934, as amended.
(e) Expenses shall mean and include any and all expenses, including attorneys’ fees, actually
and reasonably incurred and all other costs, expenses and obligations actually and
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reasonably 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 or establishing or enforcing a right to indemnification under this Agreement. The term
“Expenses” shall also include reasonable compensation for time spent by Indemnitee for which
Indemnitee is not compensated by the Company or any subsidiary or third party (i) for any period
during which Indemnitee is not an agent, in the employment of, or providing services for
compensation to, the Company or any subsidiary; and (ii) if the rate of compensation and estimated
time involved is approved by the directors of the Company who are not parties to any action with
respect to which expenses are incurred, for Indemnitee while an agent of, employed by, or providing
services for compensation to, the Company or any subsidiary.
(f) Indemnifiable Event shall mean any event or occurrence related to the fact that
Indemnitee is or was a director of the Company or is or was serving at the request of the Company
as a director, officer, employee or agent of another corporation (including, without limitation,
any subsidiary) or of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans maintained or sponsored by the Company, or by reason of any
action or inaction on the part of Indemnitee in such capacity.
(g) Independent Legal Counsel shall mean a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and shall include any
person who, under the applicable standards of professional conduct then prevailing, would not have
a conflict of interest in representing either the Company or the Indemnitee in an action to
determine the Indemnitee’s rights under this Agreement.
(h) Losses shall mean any amount which Indemnitee is legally obligated to pay as a result of
any Claim, including any and all liabilities and losses, fees, judgments, fines, Employee
Retirement Income Security Act of 1974 (as amended) excise taxes or penalties, and any and all
amounts paid or to be paid in settlement (if such settlement is approved in advance by the Company,
which approval shall not be unreasonably withheld) of any 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.
(i) Person means any individual, corporation, company (including any limited liability
company), association, partnership, joint venture, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
(j) Reviewing Party shall be (1) if requested by the Indemnitee or in connection with a
Change in Control of the Company, Independent Legal Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee, or (2) if otherwise, (i) the Board of
Directors by a majority vote of directors who are not parties to any such Claim, even though less
than a quorum, or (ii) if there are no such directors, or if they so direct, by Independent Legal
Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the
Indemnitee, or (iii) if such directors so elect, the stockholders of the Company. In the event the
Reviewing Party shall be Independent Legal Counsel, such Independent Legal Counsel shall be
selected by the Board of Directors unless there shall have occurred within two years prior to the
date of the commencement of the Claim for which indemnification is claimed a Change in Control
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of the Company, in which case Independent Legal Counsel shall be selected by Indemnitee,
unless Indemnitee shall request that such selection be made by the Board of Directors. The
Company agrees to pay the reasonable fees of Independent Legal Counsel and to fully indemnify such
counsel against any and all expenses (including reasonable attorneys’ fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(k) Voting Securities shall mean any securities of the Company the holders of which are
entitled to elect a majority of the Company’s directors.
(l) Voting Trust Agreement means the Voting Trust Agreement entered into as of April 15, 1996
by and among Xxxxxx X. Xxxx; Xxxxx X. Xxxx, Xx.; Xxxxx X. Xxxx, Xx.; and F. Xxxxxx Xxxxxxx as the
original voting trustees and the stockholders of the Company who are parties thereto, as such
agreement may be amended from time to time.
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
and assigns, including (a) 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 (b) spouses,
heirs, personal and legal representatives, executors and administrators of Indemnitee. The Company
shall use its reasonable best efforts to 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 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 regardless of whether Indemnitee continues to serve
as a director of the Company or as a director, officer, employee or agent of any other enterprise
at the Company’s request.
13. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and signed
for by the addressee, on the date of such receipt, or (ii) if mailed by domestic certified or
registered mail with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of this Agreement, or as
subsequently modified by written notice.
14. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action or proceeding which 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.
15. Severability. The provisions of this Agreement shall be severable in the event
that any
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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.
16. 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.
17. 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 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.
18. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed by both the
parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver. No repeal or modification of this Agreement shall in any way
diminish or adversely affect the rights of any director of the Company hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
19. 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.
20. No Construction as Employment Agreement. Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employ of the Company or
any of its subsidiaries.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| LEVI XXXXXXX & CO. | ||||||
| By: | ||||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Title: | Senior Vice President and General Counsel | |||||
| Address: | ||||||
| 0000 Xxxxxxx Xxxxxx | ||||||
| Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||||
AGREED TO AND ACCEPTED:
INDEMNITEE: |
||
Address: |
||
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