Exhibit 10.11
FORM OF INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this___day of April, 2003
between the White House, Inc., a Maryland corporation ("Corporation"), whose
address is 0000 Xxxxxxxxx Xxxxx, Xxxxx X, Xxxx Xxxxxx, Xxxxxxxx 00000
and___________ ("Director"), whose address is_____________________.
RECITALS:
A. WHEREAS, Director, a member of the Board of Directors of
Corporation (the "Board"), performs a valuable service in such capacity for
Corporation; and
B. WHEREAS, the stockholders of Corporaton have adopted Bylaws (the
"Bylaws") providing for the indemnification of the officers, directors,
agents and employees of Corporation to the maximum extent authorized by
Maryland, as amended (the "Law"); and
C. WHEREAS, the Bylaws and the Law, as amended and in effect from
time to time or any successor or other statutes of Maryland having similar
import and effect, currently purport to be the controlling law governing
Corporation with respect to certain aspects of corporate law, including
indemnification and directors and officers; and
D. WHEREAS, in accordance with the authorization provided by the Law,
Corporation may from time to time purchase and maintain a policy or policies
of Directors and Officers Liability Insurance ("D & O Insurance"), covering
certain liabilities which may be incurred by its directors and officers in
the performance of services as directors and officers of Corporation; and
E. WHEREAS, as a result of developments affecting the terms, scope and
availability of D & O Insurance there exists general uncertainty as to the
extent and overall desirability of protection afforded members of the Board
of Directors by such D & O Insurance, if any, and by statutory and bylaw
indemnification provisions; and
F. WHEREAS, in order to induce Director to continue to serve as a
member of the Board, Corporation has determined and agreed to enter into this
contract with Director.
NOW, THEREFORE, in consideration of Director's continued service as a
director after the date hereof, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. The following terms used in this Agreement
shall have the meanings set forth below. Other terms are defined where
appropriate in this Agreement.
(a) "DISINTERESTED DIRECTOR" shall mean a director of Corporation
who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by Director.
(b) "EXPENSES" shall include all direct and indirect costs
(including, without limitation, attorneys' fees, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery
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service fees, all other disbursements or out-of-pocket expenses and
reasonable compensation for time spent by Director for which he or she is
otherwise not compensated by Corporation) actually and reasonably incurred in
connection with a Proceeding or establishing or enforcing a right to
indemnification under this Agreement, applicable law or otherwise; provided,
however, that "Expenses" shall not include any Liabilities.
(c) "FINAL ADVERSE DETERMINATION" shall mean that a determination
that Director is not entitled to indemnification shall have been made
pursuant to Section 5 hereof and either (i) a final adjudication in a
Maryland court or decision of an arbitrator pursuant to Section 13(a) hereof
shall have denied Director's right to indemnification hereunder, or (ii)
Director shall have failed to file a complaint in a Maryland court or seek
and arbitrator's award pursuant to Section 13(a) for a period of one hundred
twenty (120) days after the determination made pursuant to Section 5 hereof.
(d) "INDEPENDENT LEGAL COUNSEL" shall mean a law firm or member of
a law firm selected by Corporation and approved by Director (which approval
shall not be unreasonably withheld) and that neither is presently nor in the
past five years has been retained to represent: (i) Corporation, in any
material matter, or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. Nothwithstanding the foregoing, the term
"Independent Legal Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either Corporation or Director in a
Proceeding to determine Director's right to indemnification under this
Agreement.
(e) "LIABILITIES" shall mean liabilities of any type whatsoever
including, but not limited to, any judgments, fines, ERISA excise taxes and
penalties and amounts paid in settlement (including all interest assessments
and other charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement) of any proceeding.
(f) "PROCEEDING" shall mean any threatened, pending or completed
action, claim, suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, including any appeal therefrom.
(g) "CHANGE OF CONTROL" shall mean the occurence of any of the
following events after the date of this Agreement:
(i) A change in the composition of the Board, as a result
of which fewer than two-thirds (2/3) of the incumbent directors are directors
who either (1) had been directors of Corporation twenty-four (24) months
prior to such change or (2) were elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of the directors who
had been directors of Corporation 24 months prior to such change and who were
still in office at the time of the election or nomination; or
(ii) Any "person" (as such term is used in section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) through the
acquisition or aggregation of
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securities is or becomes the beneficial owner, directly or indirectly, of
securities of Corporation representing twenty percent (20%) or more of the
combined voting power of Corporation's then outstanding securities ordinarily
(and apart from rights accruing under special circumstances) having the
right to vote at elections of directors (the "Capital Stock"), except that
any change in ownership of Corporation's securities by any person resulting
solely from a reduction in the aggregate number of outstanding shares of
Capital Stock, and any decrease thereafter in such person's ownership of
securities, shall be disregarded until such person increases in any manner,
directly or indirectly, such person's beneficial ownership of any securities
of Corporation.
2. INDEMNITY OF DIRECTOR. Corporation hereby agrees to hold harmless
and indemnify Director to the fullest extent authorized or permitted by the
provisions of the Law, as may be amended from time to time.
3. ADDITIONAL INDEMNITY. Subject only the exclusions set forth in
Section 4 hereof, Corporation hereby further agrees to hold harmless and
indemnify Director:
(a) against any and all Expenses in connection with any Proceeding
(including an action by or in the right of Corporation) to which Director is,
was or at any times becomes a party, or is threatened to be made a party, by
reason of the fact that Director is, was or at any time becomes a director,
officer, employee or agent of Corporation, or is or was serving or at any
time serves at the request of Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to Director
by Corporation under the non-exclusivity provisions of the Bylaws of
Corporation and the Law.
4. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
Section 3 hereof shall be paid by Corporation:
(a) except to the extent the aggregate of losses to be indemnified
thereunder exceeds the sum of such losses for which the Director is
indemnified pursuant to Section 2 hereof or reimbursed pursuant to any D & O
Insurance purchased and maintained by Corporation;
(b) in respect of remuneration paid to Director if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(c) on account of any Proceeding in which judgment is rendered
against Director for an accounting of profits made from the purchase or sale
by Director of securities of Corporation pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto
or similar provisions of any federal, state or local statutory law;
(d) on account of a Final Adverse Determination that Director's
conduct was knowingly fraudelent or deliberately dishonest or constituted
willful misconduct;
(e) provided there has been no Change of Control, on account of or
arising in response to any Proceeding (other than a Proceeding referred to in
Section 10(b) hereof) initiated by Director or any of Director's affiliates
against Corporation or any officer, director or
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stockholder of Corporation unless such Proceeding was authorized in the
specific case by action of the Board of Directors of Corporation;
(f) if a final decision by a Court having jurisdiction in the
matter shall determine that such indemnification is not lawful; or
(g) on account of any Proceeding to the extent that Director is a
plaintiff, a counter-complaint or a cross-complaint therein (other than a
Proceeding permitted by Section 4(e) hereof).
5. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Director believes that he or she is entitled to
indemnification pursuant to this Agreement, Director shall submit a written
request for indemnification to Corporation. Any request for indemnification
shall include sufficient documentation or information reasonably available to
Director to support his or her claim for indemnification. Director shall
submit his or her claim for indemnification within a reasonable time not to
exceed five years after any judgment, order, settlement, dismissal,
arbitration award, conviction, acceptance of a plea of nolo contendere or its
equivalent, final termination or other disposition or partial disposition of
any Proceeding, whichever is the later date for which Director requests
indemnification. The President, Secretary or other appropriate officer shall,
promptly upon receipt of Director's request for indemnification, advise the
Board in writing that Director has made such a request. Determination of
Director's entitlement to indemnification shall be made not later than ninety
(90) days after Corporaton's receipt of his or her written request for such
indemnification.
(b) The Corporation shall be entitled to select the forum in which
Director's request for indemnification will be heard, which selection shall
be determined in the Corporation's sole and absolute discretion. This forum
shall be any one of the following:
(i) The stockholders of Corporation;
(ii) A quorum of the Board consisting of Disinterested
Directors;
(iii) Independent Legal Counsel, who shall make the
determination in a written opinion; or
(iv) A panel of three arbitrators, one selected by
Corporation, another by Director and the third by the first two arbitrators
selected. If for any reason three arbitrators are not selected within thirty
(30) days after the appointment of the first arbitrator, then selection of
additional arbitrators shall be made by the American Arbitration Association.
If any arbitrator resigns or is unable to serve in such capacity for any
reason, the American Arbitration Association shall select his or her
replacement. The arbitration shall be conducted pursuant to the commercial
arbitration rules of the American Arbitration Association now in effect.
If Director fails to make such designation, his or her claim shall be
determined by the forum selected by Corporation.
6. PRESUMPTION AND EFFECT OF CERTAIN PROCEEDINGS. Upon making a
request for indemnification, Director shall be presumed to be entitled to
indemnification under this Agreement and Corporation shall have the burden of
proof to overcome that presumption in reaching any contrary determination.
The termination of any Proceeding by judgment, order, settlement, arbitration
award or conviction, or upon a plea of nolo contendere or its equivalent
shall not affect this presumption or, except as may be provided in Section 4
hereof, establish a presumption with regard to any factual matter relevant to
determining Director's rights to indemnification hereunder. If the person or
persons so empowered to make a determination pursuant to Section 5(b) hereof
shall have failed to make the requested determination within thirty (30) days
after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, or
other disposition or partial disposition of any Proceeding or any other
event which could enable Corporation to determine Director's entitlement to
indemnification, the requisite determination that Director is entitled to
indemnification shall be deemed to have been made.
7. CONTRIBUTION. If the indemnification provided in Sections 2 and 3
is unavailable and may not be paid to Director for any reason other than
those set forth in Section 4, then in respect of any Proceeding in which
Corporation is or is alleged to be jointly liable with Director (or would be
if joined in such Proceeding), Corporation shall contribute to the amount of
Expenses and Liabilities paid or payable by Director in such proportion as is
appropriate to reflect (i) the relative benefits received by Corporation one
the one hand and Director on the other hand from the transaction from which
such Proceeding arose, and (ii) the relative fault of Corporation on the one
hand and of Director on the other hand in connection with the events which
resulted in such Expenses and Liabilities, as well as any other relevant
equitable considerations. The relative fault of Corporation on the one hand
and of Director on the other shall be determined by reference to, among other
things, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such
Expenses and Liabilities. Corporation agrees that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or any other method of allocation which does not take account
of the foregoing equitable considerations.
8. INSURANCE AND FUNDING. Corporation hereby represents and warrants
that it shall purchase and maintain insurance to protect Director against any
Expenses and Liabilities in connection with any Proceeding to the fullest
extent permitted by the Law.
9. CONTINUATION OF OBLIGATIONS. All agreements and obligations of
Corporation contained herein shall continue during the period Director is a
director, officer, employee or agent of Corporation (or is or was serving at
the request of Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise) and shall continue thereafter so long as Director shall
be subject to any possible Proceeding, by reason of the fact that Director
was serving Corporation or such other entity in any capacity referred to
herein.
10. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
Director of notice of the commencement of any Proceeding, Director will, if a
claim in respect thereof to be made against Corporation under this Agreement,
notify Corporation of the commencement thereof; but the omission so to notify
Corporation will not relieve it from any liability which it
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may have to Director otherwise than under this Agreement. With respect to any
Proceeding as to which Director notifies Corporation of the commencement
thereof:
(a) Corporation will be entitled to participate therein as its own
expense;
(b) Except as otherwise provided below, to the extent that it may
wish, Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Director. After notice from Corporation to
Director of its election to assume the defense thereof, Corporation will not
be liable to Director under this Agreement for any Expenses subsequently
incurred by Director in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Director
shall have the right to employ his or her own counsel in such Proceeding but
the Expenses associated with the employment of such counsel incurred after
notice from Corporation of its assumption of the defense thereof shall be at
the expense of Director unless (i) the employment of counsel by Director has
been authorized by Corporation, (ii) Director shall have reasonably concluded
that there may be a conflict of interest between Corporation and Director in
the conduct of the defense of such Proceeding or (iii) Corporation shall not
in fact have employed counsel to assume the defense of such Proceeding, in
each of which cases the Expenses of Director's separate counsel shall be at
the expense of Corporation. Corporation shall not be entitled to assume the
defense of any Proceeding brought by or on behalf of Corporation or as to
which Director shall have made the conclusion provided for in (ii) above; and
(c) Provided there has been no Change of Control, Corporation
shall not be liable to indemnify Director under this Agreement for any
amounts paid in settlement of any Proceeding effected without its written
consent, which consent shall not be unreasonably withheld. Corporation shall
be permitted to settle any Proceeding except that it shall not settle any
Proceeding in any manner which would impose any penalty, out-of-pocket
liability, or limitation on Director without Director's written consent.
11. ADVANCEMENT AND REPAYMENT OF EXPENSES.
(a) In the event that Director employs his or her own counsel
pursuant to Section 10(b)(i) through (iii) above, Corporation shall advance
to Director, prior to any final disposition of any Proceeding any and all
Expenses incurred in investigating or defending any such Proceeding within ten
(10) days after receiving copies of invoices presented to Director for such
Expenses.
(b) Director agrees that Director will reimburse Corporation for
all Expenses paid by Corporation in defending any Proceeding against Director
in the event and only to the extent that there has been a Final Adverse
Determination that is not entitled, under the provisions of the Law, the
Bylaws, this Agreement or otherwise, to be indemnified by Corporation for
such Expenses.
12. REMEDIES OF DIRECTOR.
(a) In the event that (i) a determination pursuant to Section 5
hereof is made that Director is not entitled to indemnification, (ii) advances
of Expenses are not made pursuant
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to this Agreement, (iii) payment has not been timely made following a
determination of entitlement to indemnification pursuant to this Agreement,
or (iv) Director otherwise seeks enforcement of this Agreement, Director
shall be entitled to a final adjudication in an appropriate court of his or
her rights. Alternatively, Director 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 now in effect,
whose decision is to be made within ninety (90) days following the filing of
the demand for arbitration. The Corporation shall not oppose Director's right
to seek any such adjudication or arbitration award.
(b) In the event that a determination that Director is not
entitled to indemnification, in whole or in part, has been made pursuant to
Section 5 hereof, the decision in the judicial proceeding or arbitration
provided in paragraph (a) of this Section 12 shall be made de novo and
Director shall not be prejudiced by reason of a determination that he or she
is not entitled to indemnification.
(c) If a determination that Director is entitled to
indemnification has been made pursuant to Section 5 hereof or otherwise
pursuant to the terms of this Agreement, Corporation shall be bound by such
determination in the absence of (i) a misrepresentation of a material fact by
Director or (ii) a specific finding (which has become final) by an
appropriate court that all or any part of such indemnification is expressly
prohibited by law.
(d) In any court proceeding pursuant to this Section 12,
Corporation shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Corporation shall stipulate in any such court or before any such arbitrator
that Corporation is bound by all the provisions of this Agreement and is
precluded from making any assertion to the contrary.
(e) Expenses reasonably incurred by Director in connection with his
or her request for indemnification under this Agreement, meeting enforcement
of this Agreement or to recover damages for breach of this Agreement shall be
borne by Corporation.
(f) Corporation and Director agree herein that a monetary remedy
for breach of this Agreement, at some later date, will be inadequate,
impracticable and difficult to prove, and further agree that such breach
would cause Director irreparable harm. Accordingly, Corporation and Director
agree that Director shall be entitled to temporary and permanent injunctive
relief to enforce this Agreement without the necessity of proving actual
damages or irreparable harm. The Corporation and Director further agree that
Director shall be entitled to such injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions,
without the necessity of posting bond or other undertaking in connection
therewith. Any such requirement of bond or undertaking is hereby waived by
Corporation, and Corporation acknowledges that in the absence of such a
waiver, a bond or undertaking may be required by the court.
13. ENFORCEMENT. Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on
Corporation hereby in order to induce Director to continue as a director of
Corporation, and acknowledges that Director is relying upon this Agreement in
continuing in such capacity.
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14. SEPARABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if
any or all of the provisions hereof shall be held to be invalid or
unenforceable to any extent for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof, or the obligation of the Corporation to indemnify the
Director to the full extent provided by the Bylaws or the Law, and the
affected provision shall be construed and enforced so as to effectuate the
parties' intent to the maximum extent possible.
15. GOVERNING LAW. This Agreement shall be governed by and interpreted
and enforced in accordance with the internal laws of the State of Maryland.
16. CONSENT TO JURISDICTION. The Corporation and Director each
irrevocably consent to jurisdiction of the courts of the State of Maryland
for all purposes in connection with any Proceeding which arises out of or
relates to this Agreement and agree that any Proceeding instituted under this
Agreement shall be brought only in the state courts of the State of Maryland.
17. BINDING EFFECT. This Agreement shall be binding upon Director and
upon Corporation, its successors and assigns, and shall inure to the benefit
of Directors, his or her heirs, executors, administrators, personal
representatives and assigns and to the benefit of Corporation, its
successors and assigns.
18. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties hereto and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter
of this Agreement, except as specifically referred to herein. This Agreement
supersedes any and all agreements regarding indemnification heretofore
entered into by the parties.
19. AMENDMENT AND TERMINATION. No amendment, modification, waiver,
termination or cancellation of this Agreement shall be effective for any
purpose unless set forth in writing signed by both parties hereto.
20. SUBROGATION. In the event of payment under this agreement,
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Director, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable
Corporation effectively to bring suit to enforce such rights.
21. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Director by this
Agreement shall not be exclusive of any other right which Director may have
or hereafter acquire under any statute, provision of Corporation's Articles
of Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
22. SURVIVAL OF RIGHTS. The rights conferred on Director by this
Agreement shall continue after Director has ceased to be a director, officer,
employee or other agent of Corporation or such other entity.
23. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be addressed to Director or to
Corporation, as the case may be, at the
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address shown on page 1 of this Agreement, or to such other address as may
have been furnished by either party to the other, and shall be deemed to have
been duly given if (a) delivered by hand and receipted for by the party to
whom said notice or other communication shall have been directed, or
(b) mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
DIRECTOR: THE WHITE HOUSE, INC.,
a Maryland corporation
By:
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Its:
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