AGREEMENT
Exhibit 10.1
This Agreement is made this 29th day of October, 2008, between Genesco Inc., a Tennessee
corporation (the “Company”), and _______________, a director of the Company (the “Director”).
WHEREAS, the Company and the Director are aware of the increased exposure to litigation by
directors of publicly-owned companies in the course of exercising their duties;
WHEREAS, the Company and the Director are also aware of conditions in the insurance industry
that have affected the Company’s ability to obtain adequate directors’ and officers’ liability
insurance coverage on an economically acceptable basis;
WHEREAS, the Company desires to continue to benefit from the services of highly-qualified and
experienced persons such as the Director;
WHEREAS, the Director desires to serve the Company as a director for so long as the Company is
able to provide on an acceptable basis adequate and reliable indemnification against certain
liabilities and expenses which may be incurred by the Director in connection with such service;
WHEREAS, the Tennessee Business Corporation Act (the “Act”) and the charter and bylaws of the
Company provide for the indemnification of directors under certain circumstances;
WHEREAS, the Company and the Director recognize the potential inadequacy of the protection
available to directors under the Act, the Company’s charter, bylaws and directors’ and officers’
liability insurance; and
WHEREAS, the Act, charter and bylaws specifically provide that the indemnification provided
thereunder is not exclusive and contemplate that indemnification agreements may be entered into
between the Company and its directors;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein,
the parties hereby agree as follows:
Section 1. Service by Director. The Director agrees to continue to serve as a
director of the Company, provided that (i) the Director may resign at any time in the event of any
change in his or the Company’s circumstances which would in his sole judgment make his resignation
advisable and (ii) this Agreement shall not give the Director the right to be nominated or elected
as a director of the Company or affect the right of shareholders to remove him or the rights of the
Company or shareholders to seek judicial removal of the Director.
Section 2. Indemnification. To the maximum extent permitted by law, subject to the
limitations contained in Section 4 or otherwise in this Agreement, the Company shall indemnify the
Director against any Liability or Expense incurred in a Proceeding by reason of (or arising in part
out of) an Indemnifiable Event, except that the Company shall not be required to indemnify the
Director for any Liability or Expenses incurred in a Proceeding initiated by or on behalf of the
Director or to which the Director voluntarily becomes a party unless (i) the Company has joined in
or the board of directors has consented to the initiation of such Proceeding; (ii) the Proceeding is one to enforce
indemnification rights;
or (iii) the Proceeding is instituted after a Change in Control. If the
Director is entitled under any provision of this Agreement to indemnification by the Company for
some or a portion of any Liability or Expenses, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Director for the portion thereof to which the Director is
entitled. Notwithstanding any other provision of this Agreement, to the extent that the Director
has been successful on the merits in defense of any Proceeding relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, the Director shall be indemnified
against all Liabilities and Expenses actually and reasonably incurred by the Director or on the
Director’s behalf in connection therewith.
Section 3. Expense Advances. If so requested by the Director, the Company shall
advance the reasonable Expenses incurred by the Director in a Proceeding by reason of (or arising
in part out of) an Indemnifiable Event, except that the Company shall not be required to advance
Expenses to the Director for any Expenses incurred in a Proceeding initiated by or on behalf of the
Director or to which the Director voluntarily becomes a party unless (i) the Company has joined in
or the board of directors has consented to the initiation of such Proceeding; (ii) the Proceeding
is one to enforce indemnification rights; or (iii) the Proceeding is instituted after a Change in
Control. Expense advancements shall be provided within thirty (30) calendar days of the Director
furnishing the Company a request of such advance or advances, and: (a) a written affirmation,
personally signed by or on behalf of the Director, of his good faith belief that he is not liable
for (i) a breach of his duty of loyalty to the Company or its shareholders, (ii) any acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
or (iii) any unlawful distributions to the Company’s shareholders and that he is entitled to
advancement of Expenses under the terms of this Agreement; and (b) a written opinion of counsel for
the Director in the Proceeding to the effect that, based on the facts known to such counsel, it is
reasonably possible that the Director will not be found liable contrary to his affirmation; and (c)
a written undertaking (in the form of an unlimited general obligation of the Director, which need
not be secured), personally signed by or on behalf of the Director to repay any advances, if a
judgment or final adjudication adverse to the Director establishes his liability contrary to his
affirmation. Such advances are deemed to be an obligation of the Company to the Director hereunder
and shall in no event be deemed a personal loan.
Section 4. Limitations on Indemnification. No indemnification pursuant to this
Agreement may be made (a) in advance of a final disposition of the Proceeding for which
indemnification is sought, (b) for any Liability or Expenses for which the Director has been
reimbursed by insurance or otherwise or (c) if a judgment or other final adjudication adverse to
the Director establishes his liability for (i) a breach of his duty of loyalty to the Company or
its shareholders, (ii) any acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) any unlawful distributions to the Company’s
shareholders or (iv) profits made from the purchase or sale by the Director of securities of the
Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or any similar provisions of any federal or state statutes or regulations. A settlement
without the Company’s prior written consent shall not be deemed a final disposition, and no
indemnification for any amount paid in such a settlement may be made under this Agreement.
Section 5. Non-Exclusive Rights. The Director’s rights to indemnification and
advancement of expenses under this Agreement are intended to be cumulative and not exclusive of
other rights to which the Director may be entitled under any insurance policy, the Act, the charter
or bylaws of the Company or a resolution of shareholders or directors providing for
indemnification. The Director’s right to indemnification as provided in Sections 2 and 3 of this
Agreement are intended to be greater than those which are otherwise provided for in the Act and in excess of those provided in the Company’s
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charter and bylaws, notwithstanding the Director’s failure to meet the standard of conduct required
for permissive indemnification under the Act.
Section 6. Liability Insurance. The Company currently has in force policies of
directors’ and officers’ liability insurance (“Liability Insurance”). The Company agrees to
furnish to the Director copies of such Liability Insurance policies upon his request. The Company
further agrees that, so long as the Director shall continue to serve as a director of the Company,
the Company will, subject to the limitations set forth below, endeavor to purchase and maintain in
force for the benefit of the Director one or more policies of Liability Insurance providing
coverage at least comparable to that provided under the policies currently in force and in no event
less than that provided for the benefit of any other director. The Company shall not be required
to maintain such Liability Insurance in force if, in the sole judgment of the board of directors of
the Company serving at the time such judgment is made, Liability Insurance is not reasonably
available, the cost of such insurance is disproportionate to the amount of the coverage or such
insurance is so limited that there is an insufficient benefit from such insurance.
Section 7. Notification and Defense of Claim. If a claim is made against the Company
with respect to any Proceeding under this Agreement, the Director shall notify the Company of the
commencement of such Proceeding promptly after receipt by the Director of notice of the
commencement thereof. With respect to any such Proceeding as to which the Director notifies the
Company of the commencement thereof, (i) the Company shall be entitled to participate therein at
its own expense and (ii) except as otherwise provided below, shall be entitled to assume the
defense thereof, with counsel reasonably satisfactory to the Director. After notice from the
Company to the Director of its election to assume the defense thereof, the Company shall not be
liable to the Director under this Agreement for any legal expenses subsequently incurred by the
Director in connection with the defense thereof. The Director shall have the right to employ his
own counsel in such Proceeding, but the fees and expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the expense of the Director,
unless (i) the employment of such counsel by the Director has been authorized by the Company, (ii)
the Director shall have reasonably concluded that there may be a conflict of interest between the
Company and the Director in the conduct of his defense in such Proceeding or (iii) the Company
shall have failed to promptly employ its counsel to assume the defense in such Proceeding, in each
of which cases the fees and expenses of the Director’s counsel shall be paid by the Company. The
Company shall not be entitled to assume the defense in any Proceeding brought by or on behalf of
the Company as to which the Director shall have reasonably concluded that there may be a conflict
of interest between the Company and the Director in the conduct of his defense.
Section 8. Settlement. The Company shall not settle any claim in any manner which
would impose any penalty or any injunctive relief restricting the activities of the Director
without the Director’s written consent. The Director shall not unreasonably withhold his consent
to any proposed settlement which does not impose a fine or injunctive relief, if the Company pays
all amounts due under such settlement immediately upon such settlement becoming effective.
Section 9. Cooperation of Director. The Director shall cooperate with the person or
persons making the determination on behalf of the Company with respect to the Director’s
entitlement to indemnification under this Agreement, including providing any documentation or
information which is not privileged or otherwise protected from disclosure and which is reasonably available to the
Director and relevant to such determination.
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Section 10. Certain Presumptions and Burden of Proof. If the person or persons
making such determination on behalf of the Company with respect to the Director’s entitlement to
indemnification or advancement of Expenses shall not have reached a decision within sixty (60) days
after receipt by the Company of the Director’s request therefor, the Director shall be deemed to be
entitled thereto; provided, however, such sixty-day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the person or persons making the determination
decide in good faith that additional time is required for obtaining or evaluating documentation or
other relevant information. In any suit by the Director to enforce his rights under this
Agreement, (i) the Director shall be presumed to be entitled to indemnification, subject to the
Company’s ability to rebut such presumption, and (ii) the termination of a proceeding by a
judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent is not,
of itself, determinative that the Director did not act in good faith, did not meet a particular
standard of conduct, did not have any particular belief, or that a court has determined that
indemnification is not permitted by applicable law. For purposes of any determination of good
faith, the Director shall be presumed to have acted in good faith, if he relied on information,
opinions, reports or statements, including financial statements or other financial data prepared or
presented by one or more officers or employees of the Company whom the Director reasonably believes
to be reliable and competent in the matters presented or by legal counsel, public accountants or
other persons as to matters the Director reasonably believes are within the person’s professional
or expert competence; provided, however, the Director shall not be presumed to be acting in good
faith, if he has actual knowledge concerning the matter in question that makes such reliance
unwarranted.
Section 11. Letter of Credit. Unless to do so would constitute a breach of any loan
agreement or indenture or any other material agreement binding on the Company, upon the occurrence
of a Change in Control of the Company, the Company, upon written request of a Director then
involved in a Proceeding, shall obtain an irrevocable standby letter of credit naming the Director
as the sole beneficiary in an appropriate amount to cover the estimated Expenses of fully
contesting such Proceeding which are to be advanced to the Director hereunder, but not less than
$500,000, issued by a bank or other financial institution having assets in excess of $100,000,000
and containing terms and conditions reasonably satisfactory to the Director (the “Letter of
Credit”). The Letter of Credit shall provide that the Director may from time to time draw amounts
thereunder to pay such Expenses as incurred upon presentation to the issuer thereof of (i) copies
of the Director’s written affirmations and written undertaking and the written opinion of his
counsel required under Section 3 above and (ii) a written certification personally signed by or on
behalf of the Director that the Director has made demand upon the Company for the amount he is
seeking under the Letter of Credit and that the Company has refused to pay such amount to the
Director and that the Director believes in good faith that he is entitled to such amount under the
terms of this Agreement. Once the Company has obtained the Letter of Credit required by this
Section 11, the Company shall renew the Letter of Credit or obtain a substitute letter of credit
meeting the criteria specified above so that the Letter of Credit shall always have at least one
year of its term remaining.
Section 12. Contribution. If full indemnification as provided in Section 2 hereof
may not be paid to the Director because such indemnification is prohibited by law, then in any
Proceeding in which the Company is jointly liable with the Director (or would be if joined in such
Proceeding) the Company shall contribute to the amount of Liability and Expenses incurred by the
Director for which indemnification is not available in such proportion as is appropriate to reflect
(i) the relative benefits received by the Company on the one hand and the Director on the other hand from any transaction from which such Proceeding
arose and (ii) the relative fault of the Company and the Director, as well as any other relevant
equitable considerations.
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Section 13. Securities Act Liabilities. The Director understands and agrees that
with respect to certain liabilities incurred under the Securities Act of 1933, the Company’s
obligations hereunder may be subject to undertakings contained in various registration statements
filed by it pursuant to the Securities Act of 1933, as those undertakings relate to the possible
need for court review of indemnification for such liabilities.
Section 14. Subrogation. The Company shall be subrogated to the extent of any
payment to the Director under this Agreement to all of the rights of recovery of the Director with
respect to such payments against third parties (including, without limitation, the insurer under
any Liability Insurance policy, if applicable). The Director shall do everything reasonably
necessary to secure such rights, including the execution of such documents as may be necessary or
desirable to enable the Company to bring suit to enforce such rights.
Section 15. Duration of Agreement. This Agreement shall continue in effect during
the period Director is a director of the Company and shall continue until the final disposition of
all Proceedings for Indemnifiable Events, whether or not such Proceedings are instituted prior to
Director ceasing to serve as a director of the Company.
Section 16. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of the Company or any affiliate of the Company against the
Director, the Director’s spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, or such longer period as
may be required by state law under the circumstances. Any claim or cause of action of the Company
or its affiliate shall be extinguished and deemed released unless asserted by the timely filing and
notice of a legal action within such period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action, the short period shall govern.
Section 17. Consent to Jurisdiction. The Company and the Director each irrevocably
consent to the jurisdiction of the courts of the State of Tennessee 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 brought only in the courts of the State of
Tennessee.
Section 18. Severability. The provisions of this Agreement shall be severable in the
event any of the provisions hereof 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 and, to the fullest extent possible, shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 19. Notices. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand and
receipted for by the party to whom such notice or other communication shall have been directed or
if mailed by certified registered mail with postage prepaid or if delivered by a private express
package or similar service providing receipt against delivery. All such notices and other communications shall be deemed
received on the earlier of actual receipt or the third business day after the date on which it is
so delivered or mailed:
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If to the Director to:
__________________
__________________
__________________
or to such other address as may be furnished to the Company by the Director by notice similarly
given; or
If to the Company to:
or to such other address as may be furnished to the Director by the Company by notice similarly
given.
Section 20. Governing Law. This Agreement shall be governed by, and be construed and
enforced in accordance with, the laws of the State of Tennessee applicable to contracts made and to
be performed in such State without giving effect to the principles of conflicts of laws.
Section 21. Changes in Law. To the extent that a change in applicable law (whether by
statute or judicial decision) shall permit broader indemnification or advancement of Expenses than
is provided under the terms of the organizational documents of the Company and this Agreement, the
Director shall be entitled to such broader indemnification and advancement, and this Agreement
shall be deemed to be amended to such extent.
Section 22. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by and against the parties hereto and their respective successors and
assigns, including without limitation any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company and
the spouse, heirs and personal representatives of the Director. The Company shall require any
successor to all or substantially all of the business or assets of the Company, by written
agreement in form and substance satisfactory to the Director, to expressly assume this Agreement.
Section 23. Subsequent Amendments. No amendment, termination or repeal of any
provision of the charter or bylaws of the Company, or any respective successors thereto, or of any
relevant provision of any applicable law, unless in the case such amendment or change in law
permits the Company to provide broader indemnification rights than were permitted prior thereto,
shall affect or diminish in any way the rights of the Director to indemnification, or the
obligation of the Company, arising under this Agreement, whether the alleged actions or conduct of
the Director giving rise to the necessity of such indemnification arose before or after any such
amendment, termination or repeal. A Director’s rights to
indemnification and advancement under this Agreement and the Company’s bylaws shall vest as of
the date he became or becomes a director of the Company.
Section 24. Modification and Waiver. This Agreement supersedes in its entirety any
existing or prior agreement between the Company and the Director pertaining to indemnification and
advancement rights. No supplement, modification, amendment, termination or assignment of this
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Agreement shall be effective unless in writing signed by both parties hereto. No waiver of any
provisions of this Agreement shall be binding unless executed in writing by the party making the
waiver.
Section 25. Definitions.
(a) “Change in Control” means a change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange
Act, provided that, without limitation, such a change in control shall be deemed to have occurred
if and when (i) any “person” (as such term is defined in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) is or becomes a beneficial owner, directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of the Company’s then outstanding
securities or (ii) individuals who are members of the board of directors of the Company immediately
prior to a meeting of the shareholders of the Company involving a contest for the election of
directors do not constitute a majority of the board of directors following such election.
(b) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness in a Proceeding. Expenses
shall also include Expenses incurred in connection with any appeal resulting from any Proceeding,
including without limitation the premium, security for, and other costs relating to any cost bond,
supersedeas bond, or other appeal bond or its equivalent. In addition, Expenses shall include any
expenses of establishing a right to indemnification.
(c) “Indemnifiable Event” means any event or occurrence that takes place either prior to or
after the execution of this Agreement, related to the fact that the Director is or was a director
of the Company, or while a director is or was serving at the request of the Company as a director
of another foreign or domestic corporation, partnership, joint venture, employee benefit plan,
trust, or other enterprise, or was a director of a foreign or domestic corporation that was a
predecessor corporation of the Company or another enterprise at the request of such predecessor
corporation, or related to anything done or not done by the Director in any such capacity, whether
or not the basis of the Proceeding is alleged action in an official capacity as a director or in
any other capacity while serving as director of the Company, as described above.
(d) “Liability” means the obligation to pay a judgment, settlement, penalty or fine (including
an excise tax or penalty assessed with respect to an employee benefit plan).
(e) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
alternative dispute mechanism, inquiry, administrative or legislative hearing, investigation or any
other actual, threatened or completed proceeding, including any and all appeals, whether conducted
by the Company or any other party, whether civil, criminal, administrative, investigative, or other,
whether formal or informal, and in each case whether or not commenced prior to the date of this
Agreement, that relates to an Indemnifiable Event.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first set forth above.
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| GENESCO INC. |
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| By: | ||||
| Xxx X. Xxxxxxxxxx | ||||
| Chairman | ||||
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