EXHIBIT 10.35
INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT (the "Agreement") between Levi Xxxxxxx Associates
Inc., a Delaware corporation (the "Company"), and [NAME], a director of the
Company (the "Indemnitee"), dated as of November 30, 1995.
WHEREAS, the Indemnitee has agreed to serve on a special committee of the
Company's Board of Directors (the "Special Committee") to be formed on November
30, 1995 for the purpose of evaluating an acquisition proposal from certain
shareholders of the company.
WHEREAS, the By-Laws of the Company provide for certain indemnification of
the officers and directors of the Company;
NOW THEREFORE, in consideration of the Indemnitee's agreement to serve on
the Special Committee and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company has agreed to the
covenants set forth herein for the purpose of further securing to the Indemnitee
the indemnification provided by the By-Laws of the Company:
Section 1. In the event that the Indemnitee was or is made a party or is
threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that the Indemnitee is or
was serving at the request of the Company on the Special Committee, whether the
basis of such proceeding is alleged action in an official capacity as a member
of the Special Committee or in any other capacity while serving as a member of
the Special Committee, the Indemnitee shall be indemnified and held harmless by
the Company to the fullest extent authorized by the General Corporation Law of
the State of Delaware (the "DGCL"), as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
Delaware law permitted the Company to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
Employee Retirement and Income Security Act excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or suffered by the
Indemnitee in connection therewith and such indemnification shall continue as to
the Indemnitee after the Indemnitee has ceased to be a member of the Special
Committee and shall inure to the benefit of the Indemnitee's heirs, executors,
administrators, conservators and guardians; provided, however, that, except as
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provided in Section 2 hereof with respect to proceedings to enforce rights to
indemnification, the Company shall indemnify the Indemnitee in connection with a
proceeding (or part thereof) initiated by the Indemnitee only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Company. The
right to indemnification conferred hereunder shall be a contract right and shall
include the right to be paid by the Company the expenses incurred in defending
any such proceeding in advance of its final
disposition (hereinafter in "advancement of expenses"); provided, however, that,
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if the DGCL requires an advancement of expenses incurred by the Indemnitee in
his or her capacity as a member of the Special Committee to be made in advance
of the final disposition of a proceeding, such advancement of expenses shall be
made only upon delivery to the Company of an undertaking (hereinafter an
"undertaking"), by or on behalf of the Indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by a final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication"),
that the Indemnitee is not entitled to be indemnified for such expenses under
this Agreement or otherwise.
Section 2. If a claim under Section 1 of this Agreement is not paid in
full by the Company within sixty days after a written claim has been received by
the Company, the Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim. If successful in whole or in
part in any such suit or in a suit brought by the Company seeking to recover an
advancement of expenses, the Indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (I) any suit brought by the
Indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the Indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Company to recover an
advancement of expenses pursuant to the terms of an undertaking, the Company
shall be entitled to recover such expenses upon a final adjudication that the
Indemnitee has not met the applicable standard of conduct set forth in the DGCL.
Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the applicable
standard if conduct set forth in the DGCL, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall be a defense to the suit or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
Section 3. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Agreement shall not be exclusive of any other right which the Indemnitee
may have or hereafter acquire under any statute, provision of the Company's
Restated Certificate of Incorporation or By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. In the event that the Company maintains insurance to protect
itself and any director or officer of the Company against any expense, liability
or loss, such as insurance shall cover the Indemnitee to at least the same
extent as any other director or officer of the Company.
Section 5. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Agreement is a contractual right and shall not be altered or abrogated
in any manner adverse to the Indemnitee by virtue of amendments to the Company's
Restated Certificate of Incorporation or By-Laws, or applicable law.
IN WITNESS WHEREOF, the Company and the Indemnitee have executed this
Indemnification Agreement I duplicate on the day and year first above written.
LEVI XXXXXXX ASSOCIATES INC.
By: __________________________
Name: Xxxxxx X. Xxxx
Title: Chairman and
Chief Executive Officer
______________________________
[NAME]
(Indemnitee)
