EXHIBIT 10(a)
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of the ____ day of
______________, 2003 ("Agreement"), by and between The Bombay Company, Inc., a
Delaware corporation ("Company"), and ________________________________
("Indemnitee").
RECITALS:
WHEREAS, highly competent persons have become more reluctant to serve
publicly-held corporations as directors or officers or in other capacities
unless they are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to, and activities on behalf of, the corporation;
this is because such persons in service to corporations are being increasingly
subjected to expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only against the
corporation or business enterprise itself; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that, to attract and retain qualified individuals, the Company will
attempt to maintain on an ongoing basis, at its sole expense, liability
insurance to protect persons serving the Company and its subsidiaries from
certain liabilities; and
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining such persons is detrimental to the best interests of
the Company's stockholders and that the Company should act to assure such
persons that there will be increased certainty of such protection in the
future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance expenses on
behalf of, such persons to the fullest extent permitted by applicable law so
that they will serve or continue to serve the Company free from undue concern
that they will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the
Bylaws of the Company and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS, each of Section 145 of the General Corporation Law of the State
of Delaware ("DGCL") and the Bylaws is nonexclusive, and therefore contemplates
that contracts may be entered into with respect to indemnification of
directors, officers and employees; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee hereby covenant and agree as
follows:
1. SERVICES BY INDEMNITEE. Indemnitee agrees to continue to serve as
a director or officer of the Company. Indemnitee may at any time and for any
reason resign from such position (subject to any other contractual obligation
or any obligation imposed by operation of law), in which event the Company
shall have no obligation under this Agreement to continue Indemnitee in such
position. This Agreement shall not be deemed an employment contract between
the Company (or any of its subsidiaries) and Indemnitee. This Agreement shall
continue in force after Indemnitee has ceased to serve as a director or officer
of the Company.
2. INDEMNIFICATION - GENERAL. The Company shall indemnify, and
advance Expenses (as hereinafter defined) to, Indemnitee (i) as provided in
this Agreement and (ii) to the fullest extent permitted by applicable law in
effect on the date hereof and as amended from time to time. The rights of
Indemnitee provided under the preceding sentence shall include, but shall not
be limited to, the rights set forth in the other Sections of this Agreement.
3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. Indemnitee shall be indemnified under this Section 3 if, by reason of
Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to
be made, a party to or a participant in any threatened, pending, or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right
of the Company. Pursuant to this Section 3, Indemnitee shall be indemnified
against all Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on behalf of
Indemnitee in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in Good Faith and in a manner reasonably believed
to be in or not opposed to the best interests of the Company and, with respect
to any criminal Proceeding, had no reasonable cause to believe the conduct was
unlawful.
4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee shall be
indemnified under this Section 4 if, by reason of Corporate Status, Indemnitee
is, or is threatened to be made, a party to or a participant in any threatened,
pending or completed Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall
be indemnified against all Expenses actually and reasonably incurred by
Indemnitee or on behalf of Indemnitee in connection with such Proceeding if
Indemnitee acted in Good Faith and in a manner reasonably believed to be in or
not opposed to the best interests of the Company; provided that if applicable
law so provides, no indemnification against such Expenses shall be made in
respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been adjudged to be liable to the Company unless and to the extent
that the Court of Chancery of the State of Delaware, or the court in which such
Proceeding shall have been brought or is pending, shall determine that such
indemnification may be made.
5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of Corporate Status, a party to (or a
participant in) and is successful, on the merits or otherwise, in any
Proceeding (including dismissal without prejudice), Indemnitee shall be
indemnified to the maximum extent permitted by law against all Expenses
actually and reasonably incurred by Indemnitee or on behalf of Indemnitee in
connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by
Indemnitee or on behalf of Indemnitee in connection with each successfully
resolved claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of Corporate Status, a witness in any Proceeding to which Indemnitee is not a
party, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on behalf of Indemnitee in connection
therewith; provided that Indemnitee shall not be paid for time spent as such.
7. ADVANCEMENT OF EXPENSES. Notwithstanding any provision of this
Agreement to the contrary, the Company shall advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding in
which Indemnitee is involved by reason of Indemnitee's Corporate Status within
10 days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses incurred by Indemnitee. Indemnitee
hereby undertakes to repay any Expenses advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified against such
Expenses. Any advances and undertakings to repay pursuant to this Section 7
shall be unsecured and interest free.
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to
the first sentence of Section 8(a), a determination, if required by applicable
law, with respect to Indemnitee's entitlement thereto shall be made in the
specific case, unless Indemnitee and the Company agree otherwise, by
Independent Counsel (as hereinafter defined) in a written opinion to the Board,
a copy of which shall be delivered to Indemnitee; and, if it is determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within 10 days after such determination. Indemnitee shall cooperate with the
person, persons or firm making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such person, persons or
firm upon reasonable advance request any documentation or information that is
not privileged or otherwise protected from disclosure and that is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or firm making such
determination shall be paid by the Company (irrespective of the determination
as to Indemnitee's entitlement to indemnification) and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) The Independent Counsel referred to in Section 8(b) shall be
selected as provided in this Section 8(c). The Independent Counsel shall be
selected by the Board, and the Company shall give written notice to Indemnitee
advising of the identity of the Independent Counsel so selected. Within 10
days after such written notice of selection shall have been given, Indemnitee
may deliver to the Company a written objection to such selection; provided that
such objection may be asserted only on the ground that the Independent Counsel
so selected does not meet the requirements of "Independent Counsel" as defined
in Section 17, and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If such written objection is so
made, the Independent Counsel so selected may not serve as Independent Counsel
unless and until such objection is withdrawn or a court has determined that
such objection is without merit. If, within 20 days after submission by
Indemnitee of a written request for indemnification pursuant to Section 8(a),
no Independent Counsel shall have been selected and not objected to, Indemnitee
may petition the Court of Chancery of the State of Delaware or other court of
competent jurisdiction for resolution of any objection that shall have been
made by Indemnitee to the Company's selection of Independent Counsel and/or for
the appointment as Independent Counsel of a person selected by the Court or by
such other person as the Court shall designate, and the person with respect to
whom all objections are so resolved or the person so appointed shall then act
as Independent Counsel under Section 8(b). Upon the due commencement of any
judicial proceeding or arbitration pursuant to Section 10(a), Independent
Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct then
prevailing).
(d) The Company shall not be required to obtain the consent of
Indemnitee to the settlement of any Proceeding the Company has undertaken to
defend if the Company assumes full and sole responsibility for such settlement
and the settlement grants Indemnitee a complete and unqualified release in
respect of the potential liability. The Company shall not be liable for any
amount paid by the Indemnitee in settlement of any Proceeding that is not
defended by the Company, unless the Company has consented to such settlement,
which consent shall not be unreasonably withheld.
9. PRESUMPTIONS; RELIANCE AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or firm making such
determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 8(a), and the Company shall have the burden of proof
to overcome that presumption by clear and convincing evidence in connection
with the making by any person, persons or firm of any determination contrary to
that presumption. Neither the failure of Independent Legal Counsel to have
made a determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual
determination thereby that Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.
(b) If the person, persons or firm empowered under Section 8 to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within 60 days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall
be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law; provided that
such 60-day period may be extended for a reasonable time, not to exceed an
additional 30 days, if the person, persons or firm making the determination
with respect to entitlement to indemnification in good faith requests in
writing such additional time for the obtaining or evaluating of documentation
and/or information relating thereto.
(c) The termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that 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, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe the conduct was unlawful.
(d) For purposes of any determination of Good Faith, Indemnitee shall
be deemed to have acted in Good Faith if Indemnitee's action is based on the
records or books of account of the Enterprise, including financial statements,
or on information supplied to Indemnitee by the officers, agents or employees
of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports made
to the Enterprise by an independent certified public accountant or by an
appraiser, financial advisor or other expert or professional selected with
reasonable care by the Enterprise. The provisions of this Section 9(d) shall
not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any director,
officer, agent or employee of the Enterprise shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this Agreement.
10. REMEDIES OF INDEMNITEE.
(a) If (i) a determination is made pursuant to Section 8 that
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 7, (iii) no
determination of entitlement to indemnification shall have been made pursuant
to Section 8(b) within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to
Section 5, Section 6, the last sentence of Section 8(b) or the last sentence of
Section 17(f) within 10 days after receipt by the Company of a written request
therefor, or (v) payment of indemnification pursuant to Section 3 or Section 4
is not made within 10 days after a determination has been made that Indemnitee
is entitled to indemnification, Indemnitee shall be entitled to an adjudication
by the Court of Chancery of the State of Delaware of entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
or her option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on
which Indemnitee first has the right to commence such proceeding pursuant to
this Section 10(a); provided that the foregoing clause shall not apply in
respect of a proceeding brought by Indemnitee to enforce rights under Section
5. The Company shall not oppose Indemnitee's right to seek any such
adjudication or award in arbitration.
(b) If a determination shall have been made pursuant to Section 8(b)
that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 10 shall be conducted in all
respects as a de novo trial, or arbitration, on the merits and Indemnitee shall
not be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made pursuant to Section 8(b)
that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in any judicial proceeding or arbitration commenced pursuant
to this Section 10, absent (i) a misstatement by Indemnitee of a material fact,
or an omission of a material fact necessary to make Indemnitee's statements not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) If Indemnitee, pursuant to this Section 10, seeks a judicial
adjudication of or an award in arbitration to enforce rights under, or to
recover damages for breach of, this Agreement, Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company against, any
and all expenses (of the types described in the definition of Expenses in
Section 17 of this Agreement) actually and reasonably incurred by Indemnitee in
such judicial adjudication or arbitration unless it shall be finally determined
by the court or arbitrator before which such claim was brought that it was
brought in bad faith. Even if it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of Expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be paid in full.
(e) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 10 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and hereby stipulates, and shall so stipulate in any such court or
before any such arbitrator, that the Company is bound by all the provisions of
this Agreement.
11. NONEXCLUSIVITY; INSURANCE; SUBROGATION.
(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Company's Certificate of Incorporation, the Company's Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or otherwise.
No amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee with respect to Corporate
Status prior to such amendment, alteration or repeal. To the extent that a
change in the DGCL, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently
under the Company's Certificate of Incorporation, Bylaws and this Agreement, it
is the agreement and intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits so afforded by such change. No right or
remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers, employees, or
agents of the Company or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise such person serves at the
request of the Company, Indemnitee 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 such director, officer, employee or agent under such policy
or policies.
(c) In the event of any 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 take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable (or for which advancement is
provided hereunder) hereunder if and to the extent that Indemnitee has
otherwise theretofore actually received such payment under any insurance
policy, contract, agreement or otherwise.
(e) The Company's obligation to indemnify or advance Expenses hereunder
to Indemnitee who is or was serving at the request of the Company as a
director, officer, employee or agent of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise shall be
reduced by any amount Indemnitee has actually theretofore received as
indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
12. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (i) 10 years after the date that Indemnitee shall
have ceased to serve as a director or officer of the Company (or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that Indemnitee served at the request of the Company); or (ii) the
final termination of any Proceeding then pending in respect of which Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and
of any proceeding commenced by Indemnitee pursuant to Section 10 relating
thereto. This Agreement shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of Indemnitee and his or her heirs,
executors and administrators.
13. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain
enforceable to the fullest extent permitted by law; (ii) such provision or
provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties
hereto; and (iii) to the fullest extent possible, the provisions of this
Agreement (including without limitation each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.
14. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES.
Notwithstanding any other provision of this Agreement, but subject to Section
10, Indemnitee shall not be entitled to indemnification or advancement of
Expenses under this Agreement with respect to any Proceeding brought by
Indemnitee, or any claim therein, unless the bringing of such Proceeding or
making of such claim shall have been approved by the Board.
15. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
16. HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.
17. DEFINITIONS. For purposes or this Agreement:
(a) "Affiliate" means with respect to any person or entity, any other
person or entity that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with,
such person or entity.
(b) "Corporate Status" describes the status of a person who is or was a
director, officer, employee or agent of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that such person is or was serving at the request of the Company.
(c) "Enterprise" shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary.
(d) "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel and
lodging expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, supersedeas bonds, and all other
disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in, or otherwise participating in, a Proceeding.
(e) "Good Faith" shall mean Indemnitee having acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal Proceeding, having
had no reasonable cause to believe Indemnitee's conduct was unlawful.
(f) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Company or any
Affiliate thereof or Indemnitee (other than with respect to matters concerning
the Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term "Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing the Company or Indemnitee in an action to
determine Indemnitee's rights under this Agreement. The Company shall promptly
pay the reasonable fees and expenses of the Independent Counsel referred to
above and shall fully indemnify such counsel against any and all Expenses,
claims, liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
(g) "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether brought by or in the right of the Company or otherwise and
whether civil, criminal, administrative or investigative, in which Indemnitee
was, is or will be involved as a party or otherwise, by reason of the fact that
Indemnitee is or was a director or officer of the Company, by reason of any
action taken by Indemnitee or of any inaction on the part of Indemnitee while
acting as director or officer of the Company, or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, in each case whether or not Indemnitee is acting or
serving in any such capacity at the time any liability or expense is incurred
for which indemnification or advancement of expenses can be provided under this
Agreement; except one initiated by a Indemnitee pursuant to Section 10 to
enforce his or her rights under this Agreement.
(h) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with respect
to any employee benefit plan; references to "serving at the request of the
Company" shall include any service as a director, officer, employee or agent of
the Company that imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, as
participants or beneficiaries; and a person who acted in good faith and in a
manner Indemnitee reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in Good Faith.
1. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to continue to serve as a director and/or officer of the
Company, and to serve upon any committee of the Board as requested by the
Board, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director and/or officer of the Company and a member
of any such committee.
(a) This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the
parties hereto with respect to the subject matter
hereof.
(b) The right to be indemnified or to receive advancement
of Expenses under this Agreement (i) is a contract
right based upon good and valuable consideration,
pursuant to which Indemnitee may xxx, (ii) is and is
intended to be retroactive to the date Indemnitee
became a director or officer of the Company and shall
be available as to events occurring prior to the date
of this Agreement and (iii) shall continue after any
rescission or restrictive modification of this
Agreement as to events occurring prior thereto.
19. MODIFICATION AND WAIVER. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver 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. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter that may be subject to indemnification or advancement of Expenses
covered hereunder. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation it may have to the Indemnitee under
this Agreement or otherwise, except to the extent the Company is materially
prejudiced by such failure.
21. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
(i) delivered by hand and receipted for by the party to whom the notice or
other communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to Indemnitee, to:
with a copy to:
(b) If to the Company, to:
The Bombay Company, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attention: Corporate Secretary
or to such other address as may have been furnished to the Company by
Indemnitee or to Indemnitee by the Company, as the case may be.
22. CONTRIBUTION. To the fullest extent permissible under applicable
law, if the indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying
Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in
settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair
and reasonable in light of all of the circumstances of such Proceeding in order
to reflect (i) the relative benefits received by the Company and Indemnitee as
a result of the event(s) and/or transaction(s) giving rise to such Proceeding;
and/or (ii) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
23. GOVERNING LAW; SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS. This Agreement and the legal relations among the parties
shall be governed by, and construed and enforced in accordance with, the laws
of the State of Delaware, without regard to its conflict of laws rules. Except
with respect to any arbitration commenced by Indemnitee pursuant to Section
10(a), the Company and Indemnitee hereby irrevocably and unconditionally (i)
agree that any action or proceeding arising out of or in connection with this
Agreement shall be brought only in the Chancery Court of the State of Delaware
(the "Delaware Court"), and not in any other state or federal court in the
United States of America or any court in any other country, (ii) consent to and
submit to the exclusive jurisdiction of the Delaware Court for purposes of any
action or proceeding arising out of or in connection with this Agreement, (iii)
agree that service to their respective addresses referenced herein, as amended
from time to time, is good service of process, (iv) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (v)
waive, and agree not to plead or to make, any claim that any such action or
proceeding brought in the Delaware Court has been brought in an improper or
otherwise inconvenient forum.
24. MISCELLANEOUS. All references in this Agreement to Sections shall
be deemed to be references to Sections of this Agreement unless the context
indicates otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
The Bombay Company, Inc.
/s/ Xxxxxxx X. Xxxxxxxxxxxx
By:
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Vice President, Secretary and
General Counsel
Indemnitee:
Exhibit "A"
