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EXHIBIT 10(f)
DIRECTOR INDEMNIFICATION AGREEMENT
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This Director Indemnification Agreement, dated as of
___________ __, 1997 (this "Agreement"), is made by and between The
Xxxxx-Xxxxxxx Stores Corp., an Ohio corporation (the "Company"), and
____________________ (the "Indemnitee"), a director of the Company.
RECITALS
--------
A. The Indemnitee is presently serving as a director of the
Company, and the Company desires that the Indemnitee continue serving in such
capacity. The Indemnitee is willing, subject to certain conditions including the
execution and performance of this Agreement by the Company, to continue serving
in such capacity.
B. In addition to the indemnification to which the Indemnitee
is entitled under the Amended Code of Regulations of the Company (the
"Regulations"), the Company has obtained, at its sole expense, insurance
protecting the Company and its officers and directors including the Indemnitee
against certain losses arising out of any threatened, pending or completed
action, suit, or proceeding to which such persons may be made or are threatened
to be made parties.
NOW, THEREFORE, in order to induce the Indemnitee to continue
to serve in his present capacity, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
the Indemnitee agree as follows:
1. CONTINUED SERVICE
-----------------
The Indemnitee shall continue to serve at the will of the
Company as a director of the Company so long as he is duly elected in accordance
with the Regulations or until he resigns in writing in accordance with
applicable law.
2. INITIAL INDEMNITY
-----------------
(a) The Company shall indemnify the Indemnitee, if or when he
is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or
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proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the Company), by reason of the fact that he
is or was a director of the Company or is or was serving at the request of the
Company as a director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit, partnership, joint
venture, trust, or other enterprise, or by reason of any action alleged to have
been taken or omitted in any such capacity, against any and all costs, charges,
expenses (including fees and expenses of attorneys and/or others; all such
costs, charges and expenses being herein jointly referred to as "Expenses"),
judgments, fines, and amounts paid in settlement, actually and reasonably
incurred by the Indemnitee in connection therewith including any appeal of or
from any judgment or decision, unless it is proved by clear and convincing
evidence in a court of competent jurisdiction that the Indemnitee's action or
failure to act involved an act or omission undertaken with deliberate intent to
cause injury to the Company or undertaken with reckless disregard for the best
interests of the Company. In addition, with respect to any criminal action or
proceeding, indemnification hereunder shall be made only if the Indemnitee had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Indemnitee did not satisfy the foregoing standard of
conduct to the extent applicable thereto.
(b) The Company shall indemnify the Indemnitee, if or when he
is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding by or in the right of the Company to
procure a judgment in its favor, by reason of the fact that the Indemnitee is or
was a director of the Company or is or was serving at the request of the Company
as a director, trustee, officer, employee, or agent of another corporation,
domestic or foreign, nonprofit or for profit, partnership, joint venture, trust,
or other enterprise, against any and all Expenses actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement thereof
or any appeal of or from any judgment or decision, unless it is proved by clear
and convincing evidence in a court of competent jurisdiction that the
Indemnitee's action or failure to act involved an act or omission undertaken
with deliberate intent to cause injury to the Company or undertaken with
reckless disregard for the best interests of the Company, except that no
indemnification pursuant to this Section 2(b) shall be made in respect of any
action or suit in which the only liability asserted against the Indemnitee is
pursuant to Section 1701.95 of the Ohio Revised Code (the "ORC").
(c) Any indemnification under Section 2(a) or 2(b) (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the Indemnitee is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i)
by the Board of Directors of the Company (the "Board") by a majority vote of a
quorum consisting of directors who were not and are not parties to or threatened
with such action, suit, or proceeding, or (ii) if such a quorum of disinterested
directors is not available or if a majority of such quorum so directs, in a
written opinion by independent legal counsel (designated for such purpose by the
Board) which shall not be an attorney, or a firm having associated with it an
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attorney, who has been retained by or who has performed services for the
Company, or any person to be indemnified, within the five years preceding such
determination, or (iii) by the shareholders of the Company (the "Shareholders"),
or (iv) by the court of common pleas or other court in which such action, suit,
or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on
the merits or otherwise, including the dismissal of an action without prejudice,
in defense of any action, suit, or proceeding referred to in Section 2(a) or
2(b), or in defense of any claim, issue, or matter therein, he shall be
indemnified against Expenses actually and reasonably incurred by him in
connection therewith. Expenses actually and reasonably incurred by the
Indemnitee in defending any such action, suit, or proceeding shall be paid by
the Company as they are incurred in advance of the final disposition of such
action, suit, or proceeding under the procedure set forth in Section 4(b)
hereof.
(e) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on the Indemnitee 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
which imposes duties on, or involves services by, the Indemnitee with respect to
an employee benefit plan, its participants or beneficiaries; references to the
masculine shall include the feminine; references to the singular shall include
the plural and vice versa; the word including is used by way of illustration
only and not by way of limitation.
(f) No amendment to the Amended Articles of Incorporation of
the Company (the "Articles") or the Regulations shall deny, diminish, or
encumber the Indemnitee's rights to indemnity pursuant to the Regulations, the
ORC, or any other applicable law as applied to any act or failure to act
occurring in whole or in part prior to the date (the "Effective Date") upon
which the amendment was approved by the Shareholders. In the event that the
Company shall purport to adopt any amendment to its Articles or Regulations or
take any other action the effect of which is to deny, diminish, or encumber the
Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the
ORC, or any such other law, such amendment shall apply only to acts or failures
to act occurring entirely after the Effective Date thereof.
3. ADDITIONAL INDEMNIFICATION
--------------------------
(a) Pursuant to Section 1701.13(E)(6) of the ORC, without
limiting any right which the Indemnitee may have pursuant to Section 2 hereof or
any other provision of this Agreement or the Articles, the Regulations, the ORC,
any policy of insurance, or otherwise, but subject to any limitation on the
maximum permissible indemnity which may exist under applicable law at the time
of any request for indemnity hereunder and subject to the following provisions
of this Section 3, the Company shall indemnify the Indemnitee against any amount
which he is or becomes obligated to pay relating to or arising out of any claim
made against him
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because of any act, failure to act, or neglect or breach of duty, including any
actual or alleged error, misstatement, or misleading statement, that he commits,
suffers, permits, or acquiesces in while acting in his capacity as a director of
the Company. The payments which the Company is obligated to make pursuant to
this Section 3 shall include any and all Expenses, judgments, fines, and amounts
paid in settlement, actually and reasonably incurred by the Indemnitee in
connection therewith including any appeal of or from any judgment or decision;
PROVIDED, HOWEVER, that the Company shall not be obligated under this Section 3
to make any payment in connection with any claim against the Indemnitee:
(i) to the extent of any fine or similar
governmental imposition which the Company is
prohibited by applicable law from paying
which results from a final, nonappealable
order; or
(ii) to the extent based upon or attributable to
the Indemnitee having actually realized a
personal gain or profit to which he was not
legally entitled, including profit from the
purchase and sale by the Indemnitee of
equity securities of the Company which are
recoverable by the Company pursuant to
Section 16(b) of the Securities Exchange Act
of 1934, or profit arising from transactions
in publicly traded securities of the Company
which were effected by the Indemnitee in
violation of Section 10(b) of the Securities
Exchange Act of 1934, or Rule 10b-5
promulgated thereunder.
(b) A determination as to whether the Indemnitee shall be
entitled to indemnification under this Section 3 shall be made in accordance
with Section 4(a) hereof. Expenses incurred by the Indemnitee in defending any
claim to which this Section 3 applies shall be paid by the Company as they are
actually and reasonably incurred in advance of the final disposition of such
claim under the procedure set forth in Section 4(b) hereof.
4. CERTAIN PROCEDURES RELATING TO INDEMNIFICATION
----------------------------------------------
(a) For purposes of pursuing his rights to indemnification
under Section 3 hereof, the Indemnitee shall (i) submit to the Board a sworn
statement of request for indemnification substantially in the form of Exhibit l
attached hereto and made a part hereof (the "Indemnification Statement")
averring that he is entitled to indemnification hereunder; and (ii) present to
the Company reasonable evidence of all amounts for which indemnification is
requested. Submission of an Indemnification Statement to the Board shall create
a presumption that the Indemnitee is entitled to indemnification hereunder, and
the Company shall, within 60 calendar days after submission of the
Indemnification Statement, make the payments requested in the Indemnification
Statement to or for the benefit of the Indemnitee, unless (A) within such
60-calendar-day period the Board shall resolve by vote of a majority of the
directors at a meeting
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at which a quorum is present that the Indemnitee is not entitled to
indemnification under Section 3 hereof, (B) such vote shall be based upon clear
and convincing evidence (sufficient to rebut the foregoing presumption), and (C)
the Board shall notify Indemnitee within such period of such vote, which notice
shall disclose with particularity the evidence upon which the vote is based. The
foregoing notice shall be sworn to by all persons who participated in the vote
and voted to deny indemnification. The provisions of this Section 4(a) are
intended to be procedural only and shall not affect the right of Indemnitee to
indemnification under Section 3 of this Agreement so long as Indemnitee follows
the prescribed procedure, and any determination by the Board that Indemnitee is
not entitled to indemnification and any failure to make the payments requested
in the Indemnification Statement shall be subject to judicial review by any
court of competent jurisdiction.
(b) For purposes of obtaining payments of Expenses in advance
of final disposition pursuant to the last sentence of Section 2(d) or the last
sentence of Section 3(b) hereof, the Indemnitee shall submit to the Company a
sworn request for advancement of Expenses substantially in the form of Exhibit 2
attached hereto and made a part hereof (the "Undertaking"), averring that he has
reasonably incurred or will reasonably incur actual Expenses in defending an
action, suit or proceeding referred to in Section 2(a) or 2(b) or any claim
referred to in Section 3, or pursuant to Section 8 hereof. Unless at the time of
the Indemnitee's act or omission at issue, the Articles or the Regulations
prohibit such advances by specific reference to ORC Section 1701.13(E)(5)(a) or
unless the only liability asserted against the Indemnitee in the subject action,
suit or proceeding is pursuant to ORC Section 1701.95, the Indemnitee shall be
eligible to execute Part A of the Undertaking by which he undertakes to: (i)
repay such amount if it is proved by clear and convincing evidence in a court of
competent jurisdiction that the Indemnitee's action or failure to act involved
an act or omission undertaken with deliberate intent to cause injury to the
Company or undertaken with reckless disregard for the best interests of the
Company; and (ii) reasonably cooperate with the Company concerning the action,
suit, proceeding or claim. In all cases, the Indemnitee shall be eligible to
execute Part B of the Undertaking by which he undertakes to repay such amount if
it ultimately is determined that he is not entitled to be indemnified by the
Company under this Agreement or otherwise. In the event that the Indemnitee is
eligible to and does execute both Part A and Part B of the Undertaking, the
Expenses which are paid by the Company pursuant thereto shall be required to be
repaid by the Indemnitee only if he is required to do so under the terms of both
Part A and Part B of the Undertaking. Upon receipt of the Undertaking, the
Company shall thereafter promptly pay such Expenses of the Indemnitee as are
noticed to the Company in reasonable detail arising out of the matter described
in the Undertaking. No security shall be required in connection with any
Undertaking.
5. LIMITATION ON INDEMNITY
-----------------------
Notwithstanding anything contained herein to the contrary, the
Company shall not be required hereby to indemnify the Indemnitee with respect to
any action, suit, or proceeding
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that was initiated by the Indemnitee unless (a) such action, suit, or proceeding
was initiated by the Indemnitee to enforce any rights to indemnification arising
hereunder and such person shall have been formally adjudged to be entitled to
indemnity by reason hereof, (b) authorized by another agreement to which the
Company is a party whether heretofore or hereafter entered, or (c) otherwise
ordered by the court in which the suit was brought.
6. SUBROGATION; DUPLICATION OF PAYMENTS
------------------------------------
(a) 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 papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
(b) 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 actually received payment (under any insurance policy, the
Regulations or otherwise) of the amounts otherwise payable hereunder.
7. SHAREHOLDER RATIFICATION
------------------------
The Company may, at its option, propose at any future meeting
of Shareholders that this Agreement be ratified by the Shareholders; PROVIDED,
HOWEVER, that the Indemnitee's rights hereunder shall be fully enforceable in
accordance with the terms hereof whether or not such ratification is sought or
obtained.
8. FEES AND EXPENSES OF ENFORCEMENT
---------------------------------
It is the intent of the Company that the Indemnitee not be
required to incur the expenses associated with the enforcement of his rights
under this Agreement by litigation or other legal action because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder. Accordingly, if it should appear to the
Indemnitee that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes
any action to declare this Agreement void or unenforceable, or institutes any
action, suit or proceeding to deny, or to recover from, the Indemnitee the
benefits intended to be provided to the Indemnitee hereunder, the Company
irrevocably authorizes the Indemnitee from time to time to retain counsel of his
choice, at the expense of the Company as hereafter provided, to represent the
Indemnitee in connection with the initiation or defense of any litigation or
other legal action, whether by or against the Company or any director, officer,
shareholder, or other person affiliated with the
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Company, in any jurisdiction. Regardless of the outcome thereof, the Company
shall pay and be solely responsible for any and all costs, charges, and
expenses, including fees and expenses of attorneys and others, reasonably
incurred by the Indemnitee pursuant to this Section 8.
9. MERGER OR CONSOLIDATION
-----------------------
In the event that the Company shall be a constituent
corporation in a consolidation, merger, or other reorganization, the Company, if
it shall not be the surviving, resulting, or acquiring corporation therein,
shall require as a condition thereto that the surviving, resulting, or acquiring
corporation agree to assume all of the obligations of the Company hereunder and
to indemnify the Indemnitee to the full extent provided herein. Whether or not
the Company is the resulting, surviving, or acquiring corporation in any such
transaction, the Indemnitee shall stand in the same position under this
Agreement with respect to the resulting, surviving, or acquiring corporation as
he would have with respect to the Company if its separate existence had
continued.
10. NONEXCLUSIVITY; NO THIRD PARTY BENEFICIARIES;
---------------------------------------------
SEVERABILITY
------------
(a) The rights to indemnification provided by this Agreement
shall not be exclusive of any other rights of indemnification to which the
Indemnitee may be entitled under the Articles, the Regulations, the ORC or any
other statute, any insurance policy, agreement, or vote of shareholders or
directors or otherwise, as to any actions or failures to act by the Indemnitee,
and shall continue after he has ceased to be a director, officer, employee, or
agent of the Company or other entity for which his service gives rise to a right
hereunder, and shall inure to the benefit of his heirs, executors and
administrators.
(b) Except as provided in Section 10(a), the rights to
indemnification provided by this Agreement are personal to Indemnitee and are
non-transferable by Indemnitee, and no party other than the Indemnitee is
entitled to indemnification under this Agreement.
(c) If any provision of this Agreement or the application of
any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid and legal.
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11. SECURITY
--------
To ensure that the Company's obligations pursuant to this
Agreement can be enforced by Indemnitee, the Company may, at its option,
establish a trust pursuant to which the Company's obligations pursuant to this
Agreement and other similar agreements can be funded.
12. NOTICES
-------
All notices and other communications hereunder shall be in
writing and shall be personally delivered or sent by recognized overnight
courier service (a) if to the Company, to the then-current principal executive
offices of the Company (Attention: General Counsel) or (b) if to the Indemnitee,
to the last known address of Indemnitee as reflected in the Company's records.
Either party may change its address for the delivery of notices or other
communications hereunder by providing notice to the other party as provided in
this Section 12. All notices shall be effective upon actual delivery by the
methods specified in this Section 12.
13. GOVERNING LAW
-------------
This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without giving effect to the
principles of conflict of laws thereof.
14. MODIFICATION
------------
This Agreement and the rights and duties of the Indemnitee and
the Company hereunder may be modified only by an instrument in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
THE XXXXX-XXXXXXX STORES CORP.
By________________________________
Title:
----------------------------------
[Signature of Indemnitee]
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EXHIBIT 1
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INDEMNIFICATION STATEMENT
-------------------------
STATE OF ________________)
) SS
COUNTY OF ______________ )
I, _______________ , being first duly sworn, do depose and say
as follows:
1. This Indemnification Statement is submitted pursuant to the
Indemnification Agreement, dated _________ __, 1997, between The Xxxxx-Xxxxxxx
Stores Corp., an Ohio corporation (the "Company"), and the undersigned.
2. I am requesting indemnification against costs, charges,
expenses (which may include fees and expenses of attorneys and/or others),
judgments, fines, and amounts paid in settlement (collectively, "Liabilities"),
which have been actually and reasonably incurred by me in connection with a
claim referred to in Section 3 of the aforesaid Indemnification Agreement.
3. With respect to all matters related to any such claim, I am
entitled to be indemnified as herein contemplated pursuant to the aforesaid
Indemnification Agreement.
4. Without limiting any other rights which I have or may have,
I am requesting indemnification against Liabilities which have or may arise out
of
------------------------------------------
[Signature of Indemnitee]
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this _____ day of _________, 1997.
------------------------------------------
[Seal]
My commission expires the _____ day of __________, 19__ .
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EXHIBIT 2
---------
UNDERTAKING
-----------
STATE OF )
) SS
COUNTY OF )
I, _________________________________, being first duly sworn,
do depose and say as follows:
1. This Undertaking is submitted pursuant to the
Indemnification Agreement, dated ____________ , 1997, between The Xxxxx-Xxxxxxx
Stores Corp., an Ohio corporation (the "Company") and the undersigned.
2. I am requesting payment of costs, charges, and expenses
which I have reasonably incurred or will reasonably incur in defending an
action, suit or proceeding, referred to in Section 2(a) or 2(b) or any claim
referred to in Section 3, or pursuant to Section 8, of the aforesaid
Indemnification Agreement.
3. The costs, charges, and expenses for which payment is
requested are, in general, all expenses related to
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4. PART A(1)
I hereby undertake to (a) repay all amounts paid pursuant
hereto if it is proved by clear and convincing evidence in a court of competent
jurisdiction that my action or failure to act
--------------------------------
(1) The Indemnitee shall not be eligible to execute Part A of this Undertaking
if, at the time of the Indemnitee's act or omission at issue, the Amended
Articles of Incorporation or the Amended Code of Regulations of the Company
prohibit such advances by specific reference to the Ohio Revised Code (the
"ORC") Section 1701.13(E)(5)(a), or if the only liability asserted against the
Indemnitee is in an action, suit or proceeding on the Company's behalf pursuant
to ORC Section 1701.95. In the event that the Indemnitee is eligible to and does
execute both Part A and Part B hereof, the costs, charges and expenses which are
paid by the Company pursuant hereto shall be required to be repaid by the
Indemnitee only if he is required to do so under the terms of both Part A and
Part B hereof.
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which is the subject of the matter described herein involved an act or omission
undertaken with deliberate intent to cause injury to the Company or undertaken
with reckless disregard for the best interests of the Company and (b) reasonably
cooperate with the Company concerning the action, suit, proceeding or claim.
-----------------------------------
[Signature of Indemnitee]
4. PART B
I hereby undertake to repay all amounts paid pursuant hereto
if it ultimately is determined that I am not entitled to be indemnified by the
Company under the aforesaid Indemnification Agreement or otherwise.
-----------------------------------
[Signature of Indemnitee]
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this _____ day of _________ , 1997.
-----------------------------------
[Seal]
My commission expires the ____ day of ___________ , 19__.
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EXHIBIT 10(g)
OFFICER INDEMNIFICATION AGREEMENT
---------------------------------
This Officer Indemnification Agreement, dated as of
____________ __, 1997 (this "Agreement"), is made by and between The
Xxxxx-Xxxxxxx Stores Corp., an Ohio corporation (the "Company"), and
____________________ (the "Indemnitee"), an officer of the Company.
RECITALS
--------
A. The Indemnitee is presently serving as an officer of the
Company, and the Company desires that the Indemnitee continue serving in such
capacity. The Indemnitee is willing, subject to certain conditions including the
execution and performance of this Agreement by the Company, to continue serving
in such capacity.
B. In addition to the indemnification to which the Indemnitee
is entitled under the Amended Code of Regulations of the Company (the
"Regulations"), the Company has obtained, at its sole expense, insurance
protecting the Company and its officers and directors including the Indemnitee
against certain losses arising out of any threatened, pending or completed
action, suit, or proceeding to which such persons may be made or are threatened
to be made parties.
NOW, THEREFORE, in order to induce the Indemnitee to continue
to serve in his present capacity, and for other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the Company and
the Indemnitee agree as follows:
1. CONTINUED SERVICE
-----------------
The Indemnitee shall continue to serve, at the will of the
Company or in accordance with a separate contract, to the extent that such a
contract is in effect at the time in question, as an officer of the Company so
long as he is duly elected and qualified in accordance with the Regulations or
until he resigns in writing in accordance with applicable law.
2. INITIAL INDEMNITY
-----------------
(a) The Company shall indemnify the Indemnitee, if or when he
is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in
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the right of the Company), by reason of the fact that he is or was an officer of
the Company or is or was serving at the request of the Company as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust, or other
enterprise, or by reason of any action alleged to have been taken or omitted in
any such capacity, against any and all costs, charges, expenses (including fees
and expenses of attorneys and/or others; all such costs, charges and expenses
being herein jointly referred to as "Expenses"), judgments, fines, and amounts
paid in settlement, actually and reasonably incurred by the Indemnitee in
connection therewith including any appeal of or from any judgment or decision,
if the Indemnitee acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not satisfy the foregoing standard of conduct to the extent
applicable thereto.
(b) The Company shall indemnify the Indemnitee, if or when he
is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding by or in the right of the Company to
procure a judgment in its favor, by reason of the fact that the Indemnitee is or
was an officer of the Company or is or was serving at the request of the Company
as a director, trustee, officer, employee, or agent of another corporation,
domestic or foreign, nonprofit or for profit, partnership, joint venture, trust,
or other enterprise, against any and all Expenses actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement thereof
or any appeal of or from any judgment or decision, if the Indemnitee acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, except that no indemnification pursuant to this
Section 2(b) shall be made in respect of (i) any claim, issue, or matter as to
which the Indemnitee is adjudged to be liable for negligence or misconduct in
the performance of his duty to the Company unless, and only to the extent that,
the court of common pleas or other court in which such action, suit, or
proceeding was brought determines, notwithstanding any adjudication of
liability, that in view of all the circumstances of the case the Indemnitee is
fairly and reasonably entitled to indemnity for such expenses as such court of
common pleas or other court shall deem proper, or (ii) any action or suit in
which the only liability asserted against the Indemnitee is pursuant to Section
1701.95 of the Ohio Revised Code (the "ORC").
(c) Any indemnification under Section 2(a) or 2(b) (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the Indemnitee is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i)
by the Board of Directors of the Company (the "Board") by a majority vote of a
quorum consisting of directors who were not and are not parties to or threatened
with such action, suit, or proceeding, or (ii) if such a quorum of disinterested
directors is not available or if a majority of such quorum so directs, in a
written opinion by independent legal counsel (designated for such purpose by the
Board) which shall not be an attorney, or a firm having associated with it an
attorney, who has been retained by or who has performed services for the
Company, or any
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person to be indemnified, within the five years preceding such determination, or
(iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the
court of common pleas or other court in which such action, suit, or proceeding
was brought.
(d) To the extent that the Indemnitee has been successful on
the merits or otherwise, including the dismissal of an action without prejudice,
in defense of any action, suit, or proceeding referred to in Section 2(a) or
2(b), or in defense of any claim, issue, or matter therein, he shall be
indemnified against Expenses actually and reasonably incurred by him in
connection therewith. Expenses actually and reasonably incurred by the
Indemnitee in defending any such action, suit, or proceeding shall be paid by
the Company as they are incurred in advance of the final disposition of such
action, suit, or proceeding under the procedure set forth in Section 4(b)
hereof.
(e) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on the Indemnitee 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
which imposes duties on, or involves services by, the Indemnitee with respect to
an employee benefit plan, its participants or beneficiaries; references to the
masculine shall include the feminine; references to the singular shall include
the plural and vice versa; the word including is used by way of illustration
only and not by way of limitation; and with respect to conduct by Indemnitee in
his capacity as a trustee, administrator or other fiduciary of any employee
benefit plan of the Company, if the Indemnitee acted in good faith and in a
manner he reasonably believed to be in the interest of the participants or
beneficiaries of such employee benefit plan, he shall be deemed to have acted in
a manner "not opposed to the best interests of the Company" as referred to
herein.
(f) No amendment to the Amended Articles of Incorporation of
the Company (the "Articles") or the Regulations shall deny, diminish, or
encumber the Indemnitee's rights to indemnity pursuant to the Regulations, the
ORC, or any other applicable law as applied to any act or failure to act
occurring in whole or in part prior to the date (the "Effective Date") upon
which the amendment was approved by the Shareholders. In the event that the
Company shall purport to adopt any amendment to its Articles or Regulations or
take any other action the effect of which is to deny, diminish, or encumber the
Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the
ORC, or any such other law, such amendment shall apply only to acts or failures
to act occurring entirely after the Effective Date thereof.
3. ADDITIONAL INDEMNIFICATION
--------------------------
(a) Pursuant to Section 1701.13(E)(6) of the ORC, without
limiting any right which the Indemnitee may have pursuant to Section 2 hereof or
any other provision of this Agreement or the Articles, the Regulations, the ORC,
any policy of insurance, or otherwise, but subject to any limitation on the
maximum permissible indemnity which may exist under
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15
applicable law at the time of any request for indemnity hereunder and subject to
the following provisions of this Section 3, the Company shall indemnify the
Indemnitee against any amount which he is or becomes obligated to pay relating
to or arising out of any claim made against him because of any act, failure to
act, or neglect or breach of duty, including any actual or alleged error,
misstatement, or misleading statement, that he commits, suffers, permits, or
acquiesces in while acting in his capacity as an officer of the Company. The
payments which the Company is obligated to make pursuant to this Section 3 shall
include any and all Expenses, judgments, fines, and amounts paid in settlement,
actually and reasonably incurred by the Indemnitee in connection therewith
including any appeal of or from any judgment or decision; provided, however,
that the Company shall not be obligated under this Section 3 to make any payment
in connection with any claim against the Indemnitee:
(i) to the extent of any fine or similar
governmental imposition which the Company is
prohibited by applicable law from paying
which results from a final, nonappealable
order; or
(ii) to the extent based upon or attributable to
the Indemnitee having actually realized a
personal gain or profit to which he was not
legally entitled, including profit from the
purchase and sale by the Indemnitee of
equity securities of the Company which are
recoverable by the Company pursuant to
Section 16(b) of the Securities Exchange Act
of 1934, or profit arising from transactions
in publicly traded securities of the Company
which were effected by the Indemnitee in
violation of Section 10(b) of the Securities
Exchange Act of 1934, or Rule 10b-5
promulgated thereunder.
(b) A determination as to whether the Indemnitee shall be
entitled to indemnification under this Section 3 shall be made in accordance
with Section 4(a) hereof. Expenses incurred by the Indemnitee in defending any
claim to which this Section 3 applies shall be paid by the Company as they are
actually and reasonably incurred in advance of the final disposition of such
claim under the procedure set forth in Section 4(b) hereof.
4. CERTAIN PROCEDURES RELATING TO INDEMNIFICATION
----------------------------------------------
(a) For purposes of pursuing his rights to indemnification
under Section 3 hereof, the Indemnitee shall (i) submit to the Board a sworn
statement of request for indemnification substantially in the form of Exhibit l
attached hereto and made a part hereof (the "Indemnification Statement")
averring that he is entitled to indemnification hereunder; and (ii) present to
the Company reasonable evidence of all amounts for which indemnification is
requested. Submission of an Indemnification Statement to the Board shall create
a presumption that the Indemnitee is entitled to indemnification hereunder, and
the Company shall, within 60 calendar days after submission of the
Indemnification Statement, make the payments requested
4
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in the Indemnification Statement to or for the benefit of the Indemnitee, unless
(A) within such 60-calendar-day period the Board shall resolve by vote of a
majority of the directors at a meeting at which a quorum is present that the
Indemnitee is not entitled to indemnification under Section 3 hereof, (B) such
vote shall be based upon clear and convincing evidence (sufficient to rebut the
foregoing presumption), and (C) the Board shall notify Indemnitee within such
period of such vote, which notice shall disclose with particularity the evidence
upon which the vote is based. The foregoing notice shall be sworn to by all
persons who participated in the vote and voted to deny indemnification. The
provisions of this Section 4(a) are intended to be procedural only and shall not
affect the right of Indemnitee to indemnification under Section 3 of this
Agreement so long as Indemnitee follows the prescribed procedure, and any
determination by the Board that Indemnitee is not entitled to indemnification
and any failure to make the payments requested in the Indemnification Statement
shall be subject to judicial review by any court of competent jurisdiction.
(b) For purposes of obtaining payments of Expenses in advance
of final disposition pursuant to the last sentence of Section 2(d) or the last
sentence of Section 3(b) hereof, the Indemnitee shall submit to the Company a
sworn request for advancement of Expenses substantially in the form of Exhibit 2
attached hereto and made a part hereof (the "Undertaking"), averring that he has
reasonably incurred or will reasonably incur actual Expenses in defending an
action, suit or proceeding referred to in Section 2(a) or 2(b) or any claim
referred to in Section 3, or pursuant to Section 8 hereof. Unless at the time of
the Indemnitee's act or omission at issue, (i) the Articles or the Regulations
prohibit such advances by specific reference to ORC Section 1701.13(E)(5)(a) or
(ii) unless the only liability asserted against the Indemnitee in the subject
action, suit or proceeding is pursuant to ORC Section 1701.95, the Indemnitee
shall be eligible to execute Part A of the Undertaking by which he undertakes
to: (A) repay such amount if (1) with respect to any action, suit, proceeding or
claim (other than an action by or in the right of the Company) brought against
the Indemnitee by reason of the fact that the Indemnitee is or was an officer of
the Company for which the Indemnitee has received advancement of Expenses, it is
determined that the Indemnitee did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Company or (2) with respect to any action, suit, proceeding or claim brought
against the Indemnitee by or in the right of the Company for which the
Indemnitee has received advancement of Expenses, the Indemnitee is adjudged to
be liable for negligence or for misconduct in the performance of his duty to the
Company and the court has not determined that Indemnitee is entitled to
indemnification; and (B) reasonably cooperate with the Company concerning the
action, suit, proceeding or claim. In all cases, the Indemnitee shall be
eligible to execute Part B of the Undertaking by which he undertakes to repay
such amount if it ultimately is determined that he is not entitled to be
indemnified by the Company under this Agreement or otherwise. In the event that
the Indemnitee is eligible to and does execute both Part A and Part B of the
Undertaking, the Expenses which are paid by the Company pursuant thereto shall
be required to be repaid by the Indemnitee only if he is required to do so under
the terms of both Part A and Part B of the Undertaking. Upon receipt of the
Undertaking, the Company shall thereafter promptly pay such Expenses of the
Indemnitee as are noticed to the Company in
5
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reasonable detail arising out of the matter described in the Undertaking. No
security shall be required in connection with any Undertaking.
5. LIMITATION ON INDEMNITY
-----------------------
Notwithstanding anything contained herein to the contrary, the
Company shall not be required hereby to indemnify the Indemnitee with respect to
any action, suit, or proceeding that was initiated by the Indemnitee unless (a)
such action, suit, or proceeding was initiated by the Indemnitee to enforce any
rights to indemnification arising hereunder and such person shall have been
formally adjudged to be entitled to indemnity by reason hereof, (b) authorized
by another agreement to which the Company is a party whether heretofore or
hereafter entered, or (c) otherwise ordered by the court in which the suit was
brought.
6. SUBROGATION; DUPLICATION OF PAYMENTS
------------------------------------
(a) 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 papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
(b) 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 actually received payment (under any insurance policy, the
Regulations or otherwise) of the amounts otherwise payable hereunder.
7. SHAREHOLDER RATIFICATION
------------------------
The Company may, at its option, propose at any future meeting
of Shareholders that this Agreement be ratified by the Shareholders; provided,
however, that the Indemnitee's rights hereunder shall be fully enforceable in
accordance with the terms hereof whether or not such ratification is sought or
obtained.
8. FEES AND EXPENSES OF ENFORCEMENT
--------------------------------
It is the intent of the Company that the Indemnitee not be
required to incur the expenses associated with the enforcement of his rights
under this Agreement by litigation or other legal action because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder. Accordingly, if it should appear to the
Indemnitee that the Company has failed to comply with any of its obligations
under this
6
18
Agreement or in the event that the Company or any other person takes any action
to declare this Agreement void or unenforceable, or institutes any action, suit
or proceeding to deny or to recover from, the Indemnitee the benefits intended
to be provided to the Indemnitee hereunder, the Company irrevocably authorizes
the Indemnitee from time to time to retain counsel of his choice, at the expense
of the Company as hereafter provided, to represent the Indemnitee in connection
with the initiation or defense of any litigation or other legal action, whether
by or against the Company or any director, officer, shareholder, or other person
affiliated with the Company, in any jurisdiction. Regardless of the outcome
thereof, the Company shall pay and be solely responsible for any and all costs,
charges, and expenses, including fees and expenses of attorneys and others,
reasonably incurred by the Indemnitee pursuant to this Section 8.
9. MERGER OR CONSOLIDATION
-----------------------
In the event that the Company shall be a constituent
corporation in a consolidation, merger, or other reorganization, the Company, if
it shall not be the surviving, resulting, or acquiring corporation therein,
shall require as a condition thereto that the surviving, resulting, or acquiring
corporation agree to assume all of the obligations of the Company hereunder and
to indemnify the Indemnitee to the full extent provided herein. Whether or not
the Company is the resulting, surviving, or acquiring corporation in any such
transaction, the Indemnitee shall stand in the same position under this
Agreement with respect to the resulting, surviving, or acquiring corporation as
he would have with respect to the Company if its separate existence had
continued.
10. NONEXCLUSIVITY; NO THIRD PARTY BENEFICIARIES;
---------------------------------------------
SEVERABILITY
------------
(a) The rights to indemnification provided by this Agreement
shall not be exclusive of any other rights of indemnification to which the
Indemnitee may be entitled under the Articles, the Regulations, the ORC or any
other statute, any insurance policy, agreement, or vote of shareholders or
directors or otherwise, as to any actions or failures to act by the Indemnitee,
and shall continue after he has ceased to be a director, officer, employee, or
agent of the Company or other entity for which his service gives rise to a right
hereunder, and shall inure to the benefit of his heirs, executors and
administrators.
(b) Except as provided in Section 10(a), the rights to
indemnification provided by this Agreement are personal to Indemnitee and are
non-transferable by Indemnitee, and no party other than the Indemnitee is
entitled to indemnification under this Agreement.
(c) If any provision of this Agreement or the application of
any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected, and the provision so held to be invalid, unenforceable or
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19
otherwise illegal shall be reformed to the extent (and only to the extent)
necessary to make it enforceable, valid and legal.
11. SECURITY
--------
To ensure that the Company's obligations pursuant to this
Agreement can be enforced by Indemnitee, the Company may, at its option,
establish a trust pursuant to which the Company's obligations pursuant to this
Agreement and other similar agreements can be funded.
12. NOTICES
-------
All notices and other communications hereunder shall be in
writing and shall be personally delivered or sent by recognized overnight
courier service (a) if to the Company, to the then-current principal executive
offices of the Company (Attention: General Counsel) or (b) if to the Indemnitee,
to the last known address of Indemnitee as reflected in the Company's records.
Either party may change its address for the delivery of notices or other
communications hereunder by providing notice to the other party as provided in
this Section 12. All notices shall be effective upon actual delivery by the
methods specified in this Section 12.
13. GOVERNING LAW
-------------
This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without giving effect to the
principles of conflict of laws thereof.
14. MODIFICATION
------------
This Agreement and the rights and duties of the Indemnitee and
the Company hereunder may be modified only by an instrument in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
THE XXXXX-XXXXXXX STORES CORP.
By
-------------------------------------
Title:
---------------------------------------
[Signature of Indemnitee]
8
20
Exhibit 1
---------
INDEMNIFICATION STATEMENT
-------------------------
STATE OF )
) SS
COUNTY OF )
I, ________________ , being first duly sworn, do depose and say as
follows:
1. This Indemnification Statement is submitted pursuant to the
Indemnification Agreement, dated ________ __ 1997, between The Xxxxx-Xxxxxxx
Stores Corp., an Ohio corporation (the "Company"), and the undersigned.
2. I am requesting indemnification against costs, charges, expenses
(which may include fees and expenses of attorneys and/or others), judgments,
fines, and amounts paid in settlement (collectively, "Liabilities"), which have
been actually and reasonably incurred by me in connection with a claim referred
to in Section 3 of the aforesaid Indemnification Agreement.
3. With respect to all matters related to any such claim, I am entitled
to be indemnified as herein contemplated pursuant to the aforesaid
Indemnification Agreement.
4. Without limiting any other rights which I have or may have, I am
requesting indemnification against Liabilities which have or may arise out of
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
----------------------------
[Signature of Indemnitee]
Subscribed and sworn to before me, a Notary Public in and for said
County and State, this ____ day of ____________, 1997.
----------------------------
[Seal]
My commission expires the ____ day of _____________, 19__.
21
Exhibit 2
---------
UNDERTAKING
-----------
STATE OF )
) SS
COUNTY OF )
I, _____________________ , being first duly sworn do depose
and say as follows:
l. This Undertaking is submitted pursuant to the
Indemnification Agreement, dated __________ __ , 1997, between The Xxxxx-Xxxxxxx
Stores Corp., an Ohio corporation (the "Company") and the undersigned.
2. I am requesting payment of costs, charges, and expenses
which I have reasonably incurred or will reasonably incur in defending an
action, suit or proceeding, referred to in Section 2(a) or 2(b) or any claim
referred to in Section 3, or pursuant to Section 8, of the aforesaid
Indemnification Agreement.
3. The costs, charges, and expenses for which payment is
requested are, in general, all expenses related to
-----------------------------------------------------
-----------------------------------------------------------------------------.
4. Part A(1)
---------
I hereby undertake to: (a) repay all amounts paid pursuant hereto if
(i) with respect to any action, suit, proceeding or claim (other than an action
by or in the right of the Company) brought against me by reason of the fact that
I am or was an officer of the Company for which I have
--------
(1) The Indemnitee shall not be eligible to execute Part A of this Undertaking
if, at the time of the Indemnitee's act or omission at issue, the Amended
Articles of Incorporation] or Amended Code of Regulations of the Company
prohibit such advances by specific reference to the Ohio Revised Code (the
"ORC") Section 1701.13(E)(5)(a), or if the only liability asserted against the
Indemnitee is in an action, suit or proceeding on the Company's behalf pursuant
to ORC Section 1701.95. In the event that the Indemnitee is eligible to and does
execute both Part A and Part B hereof, the costs, charges and expenses which are
paid by the Company pursuant hereto shall be required to be repaid by the
Indemnitee only if he is required to do so under the terms of both Part A and
Part B hereof.
10
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received advancement of Expenses, it is determined that I did not act in good
faith or in a manner which I reasonably believed to be in or not opposed to the
best interests of the Company or (ii) with respect to any action, suit,
proceeding or claim brought against me by or in the right of the Company for
which I have received advancement of Expenses, I am adjudged to be liable for
negligence or misconduct in the performance of my duty to the Company and the
court has not determined that I am entitled to indemnification; and (b)
reasonably cooperate with the Company concerning the action, suit, proceeding or
claim.
--------------------------
[Signature of Indemnitee]
4. Part B
------
I hereby undertake to repay all amounts paid pursuant hereto if it
ultimately is determined that I am not entitled to be indemnified by the Company
under the aforesaid Indemnification Agreement or otherwise.
-------------------------
[Signature of Indemnitee]
Subscribed and sworn to before me, a Notary Public in and for said
County and State, this ____ day of ___________, 1997.
------------------------------
[Seal]
My commission expires the _____ day of ______________, 19__.
11
