INDEMNIFICATION AGREEMENT
EXHIBIT
10.2
This
INDEMNIFICATION AGREEMENT (this “Agreement”) dated as
of the 25th day of September, 2009 by and between THE DRESS BARN, INC., a
Connecticut corporation (the “Company”), and the
person named as Indemnitee on the signature page hereof (the “Indemnitee”).
WITNESSETH:
WHEREAS,
in recognition of the Indemnitee’s need for substantial protection against
personal liability arising out of his service to the Company and/or its
subsidiaries and affiliates, the Company wishes to provide in this Agreement for
the indemnification of, and the advancing of expenses to, the Indemnitee as set
forth in this Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual benefits to be
derived from this Agreement, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Indemnification.
(a) The
Company hereby agrees to indemnify the Indemnitee in the event the Indemnitee is
or becomes a party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, any action, suit or
proceedings (including any appeal), whether civil, criminal, administrative,
investigative or other, relating to any occurrence or event before or after the
date hereof, by reason of the fact that the Indemnitee is or was a director,
officer, employee, partner, trustee or agent of, or consultant to, the Company
or any of its subsidiaries or affiliates, or is or was serving at the request of
the Company or any of its subsidiaries or affiliates as a director, officer,
employee, partner, trustee or agent of, or consultant to, another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
including but not limited to any such action, suit or proceeding (including any
appeal), whether civil, criminal, administrative, investigative or other by any
third party or by or in the right of the Company or any of its subsidiaries or
affiliates or any such other corporation, partnership, joint venture, trust,
employee benefit plan or enterprise (hereinafter called a “Claim”), for and
against expenses, including attorneys’ fees, and all other costs, charges and
expenses paid, incurred by or assessable against the Indemnitee in connection
with investigating, defending, being a witness in or participating in, or
preparing to defend, be a witness in or participate in, any Claim (collectively,
“Expenses”) and
judgments, fines, penalties, taxes (including excise taxes), and amounts paid or
to be paid in settlement (including all interest, assessments and other charges
paid or payable in respect of the foregoing) incurred by the Indemnitee in
connection with any Claim (collectively, “Damages”).
(b) If
requested by the Indemnitee, the Company shall, upon presentation of bills,
statements of account or invoices for Expenses relating to a Claim, advance to
or pay on behalf of the Indemnitee, within 30 days of such request, any and all
Expenses shown on such bills, statements or invoices relating to such Claim (an
“Expense
Advance”), upon (i) receipt of a written affirmation of the Indemnitee’s
good faith belief that the Indemnitee conducted himself in good faith and
reasonably believed in the case of conduct in his official capacity, that his
conduct was in the Company’s best interests, and in all other cases, that his
conduct was not opposed to its best interest; and in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful; or
that the proceeding involves conduct for which liability has been eliminated
under a provision of the Certificate of Incorporation authorized by the
Connecticut Business Corporation Act (the “CBCA”); (ii) receipt
of a written undertaking by or on behalf of the Indemnitee to repay such Expense
Advance in the event of a final determination, adjudication or judgment (as to
which all rights of appeal have been exhausted or have lapsed) that the
Indemnitee is not entitled to indemnification pursuant to this Agreement; and
(iii) if required under applicable law, a determination is made that the facts
then known to those making the determination would not preclude indemnification
under the CBCA.
(c) In the
event that the Indemnitee demands indemnification hereunder as a result of any
Claim, the Indemnitee shall provide the Company with notice of such Claim and
shall make available to the Company all information in the Indemnitee’s
possession that reasonably relates to such Claim. The Company shall
have the right, but not the obligation, to control the defense of the Indemnitee
from such Claim at the Company’s sole cost and expense and by counsel mutually
acceptable to the Company and the Indemnitee. In the event that the
Company shall elect to exercise such right to control such defense, the
Indemnitee shall have the right to participate in such defense at the
Indemnitee’s sole expense and through counsel of its choice. No Claim
shall be settled or compromised without the consent of the Company, which shall
not be unreasonably withheld, unless the Company shall have failed, after the
lapse of a reasonable time, but in no event more than 30 days after notice to
the Company of such proposed settlement or compromise, to notify the Indemnitee
of the Company’s reasonable objection thereto. The Indemnitee’s
failure to give timely notice or to provide copies of documents or to furnish
information in connection with any Claim shall not constitute a defense to any
claim for indemnification by the Indemnitee hereunder except, and only to the
extent, that the Company is materially prejudiced thereby.
(d) If there
has not been a Change in Control (as defined in Section 2(b) hereof), the
determination that indemnification of the Indemnitee is permissible in the
circumstances shall be made by the Board of Directors of the Company (the “Board of Directors”),
a committee of the Board of Directors, special legal counsel or the Company’s
shareholders (the “Reviewing Party”) in
accordance with the CBCA, with the method of determination to be chosen by the
Board of Directors. If there has been a Change in Control, the
Reviewing Party shall be the special legal counsel selected by the Company in
accordance with the CBCA and approved by the Indemnitee (which approval shall
not be unreasonably withheld) unless (i) the Change in Control has been approved
by a majority of the Board of Directors who were directors immediately prior to
such Change in Control and (ii) the individuals who were directors prior to the
Change in Control constitute at least two-thirds of the members of the Board of
Directors as of the date of the determination, in which case the method of
determination shall be chosen by the Board of Directors pursuant to the
immediately preceding sentence. Subject to Section 7, any
determination by the Reviewing Party shall be conclusive and binding on the
Company and the Indemnitee. The Company promptly will advise the
Indemnitee in writing with respect to any determination that the Indemnitee is
or is not entitled to indemnification, including a description of any reason or
basis for which indemnification has been denied.
2
2. Change in
Control.
(a) If there
has been a Change in Control, except as otherwise provided in Section 1(d) of
this Agreement, special legal counsel shall be selected by the Company in
accordance with the CBCA and approved by the Indemnitee (which approval shall
not be unreasonable withheld) and such special legal counsel shall determine
whether the officer or director is entitled to indemnity payments and Expense
Advances under this Agreement or any other agreement or the Certificate of
Incorporation or By-laws of the Company now or hereafter in effect relating to
Claims for indemnifiable events. Such special legal counsel, among
other things, shall render its written opinion to the Company and the Indemnitee
as to whether and to what extent the Indemnitee will be permitted to be
indemnified. The Company agrees to pay the reasonable fees of the special legal
counsel and to indemnify fully such special legal counsel against any and all
expenses (including attorneys’ fees), claims, liabilities and damages arising
out of or relating to this Agreement or the engagement of special legal counsel
pursuant hereto.
(b) For
purposes of this Agreement, a “Change in Control”
shall mean any of the following events:
1. An
acquisition (other than directly from the Company) of any voting securities of
the Company (the “Voting Securities”)
by any “Person” (as the term person is used for purposes of Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended from time to time (the
“Exchange
Act”), immediately after which such Person has “Beneficial
Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of twenty-five percent (25%) or more of the combined voting power of the
Company’s then outstanding Voting Securities; provided, however, that the
term “Person” for purposes of this Section 2(b)(1) shall not include (i) any
employee benefit plan maintained by the Company, or (ii) Elliot or Xxxxxx Xxxxx
or any lineal descendant (the “Xxxxx Family”) or any
trust or similar entity established by or for the benefit of any of member of
the Xxxxx Family;
2. The
individuals who, as of the date of this Agreement are members of the Board of
Directors (the “Incumbent Board”),
cease for any reason to constitute at least two-thirds of the members of the
Board; provided, however, that if the
election, or nomination for election by the Company’s common shareholders, of
any new director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered as
a member of the Incumbent Board; provided further, however, that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board of Directors (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Proxy
Contest; or
3
3. Approval
by shareholders of the Company of:
i. A merger,
consolidation or reorganization involving the Company, unless such merger,
consolidation or reorganization is a Non-Control Transaction. A
“Non-Control
Transaction” shall mean a merger, consolidation or reorganization of the
Company where: (a) the shareholders of the Company, immediately before such
merger, consolidation or reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at least fifty-one
percent (51%) of the combined voting power of the outstanding voting securities
of the corporation resulting from such merger or consolidation or reorganization
(the “Surviving
Corporation”) in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization; (b) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such merger,
consolidation or reorganization constitute at least two-thirds of the members of
the board of directors of the Surviving Corporation, or a corporation
beneficially owning directly or indirectly a majority of the Voting Securities
of the Surviving Corporation; and (c) no Person other than (i) the Company, (ii)
any subsidiary, (iii) any employee benefit plan (or any trust forming a part
thereof) maintained by the Company, the Surviving Corporation, or any
subsidiary, or (iv) any Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial Ownership of twenty-five percent
(25%) or more of the then outstanding Voting Securities) has Beneficial
Ownership of twenty-five percent (25%) or more of the combined voting power of
the Surviving Corporation’s then outstanding voting securities;
ii. A
complete liquidation or dissolution of the Company; or
iii. An
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
subsidiary).
3. Establishment of
Trust. Immediately prior to or upon a Change in Control, the
Company shall, upon written request by the Indemnitee, promptly create a trust
(the “Trust”)
for the benefit of the Indemnitee and from time to time, upon written request of
the Indemnitee to the Company, shall fund the Trust in an amount, as set forth
in such request, sufficient to satisfy any and all Expenses reasonably
anticipated at the time of each such request to be incurred in connection with
investigating, preparing for and defending any Claim, and any and all judgments,
fines, penalties and settlement amounts of any and all Claims from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The terms of the Trust shall provide that (i) the Trust shall
not be revoked or the principal thereof invaded without the written consent of
the Indemnitee; (ii) the trustee of the Trust (the “Trustee”) shall
advance in accordance with Section 1(b) hereof, within 30 days of a request by
the Indemnitee, any and all Expenses to the Indemnitee, not advanced directly by
the Company to the Indemnitee (and the Indemnitee hereby agrees to reimburse the
Trust under the circumstances under which the Indemnitee would be required to
reimburse the Company under Section 1(b)); (iii) the Trust shall continue to be
funded by the Company in accordance with the funding obligation set forth above;
(iv) the Trustee shall promptly pay to the Indemnitee all amounts for which the
Indemnitee shall be entitled to indemnification pursuant to this Agreement or
otherwise; (v) the Company shall pay all fees and expenses of the Trustee; and
(vi) all unexpended funds in the Trust shall revert to the Company upon a final
determination by arbitration or court of competent jurisdiction, as the case may
be, that the Indemnitee has been fully indemnified under the terms of this
Agreement. The Trustee shall be chosen by the
Indemnitee.
4
4. Indemnification for
Additional Expenses. The Company shall indemnify the
Indemnitee against any and all Expenses and, if requested by the Indemnitee,
shall, upon presentation of bills, statements of account or invoices for
Expenses, within 30 days of such request, advance such Expenses shown on such
bills, statements or invoices to the Indemnitee, which are incurred by the
Indemnitee in connection with any claim asserted by or action brought by the
Indemnitee for (i) indemnification or advance payment of Expenses in accordance
with Section 1(b) hereof by the Company under this Agreement, any other
agreement to which the Company and the Indemnitee are parties, any provision of
the Company’s Certificate of Incorporation or By-laws now or hereafter in effect
relating to Claims and/or (ii) recovery under any directors’ and officers’
liability insurance policies maintained by the Company relating to Claims, upon
receipt of a written undertaking by or on behalf of the Indemnitee to repay such
expenses in the event of a final determination, adjudication or judgment (as to
which all rights of appeal have been exhausted or have lapsed) that the
Indemnitee is not entitled to indemnification. This Section 4 shall
not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to Section 8.
5. Partial Indemnity;
Successful Defense. If the Indemnitee is entitled under any
provisions of this Agreement to indemnification by the Company for some or a
portion of the Expenses and Damages but not, however, for the total amount
thereof, the Company shall nevertheless indemnify the Indemnitee for the portion
thereof to the maximum amount permitted under applicable
law. Moreover, notwithstanding any other provision of this Agreement,
to the extent that the Indemnitee has been successful on the merits or otherwise
in defense of any or all Claims or in defense of any issue or matter therein,
the Indemnitee shall be indemnified against any and all Expenses and
Damages.
6. Presumptions and Effect of
Certain Proceedings.
(a) In making
a determination with respect to entitlement to indemnification hereunder, the
Reviewing Party shall, to the fullest extent not prohibited by law, presume that
the Indemnitee is entitled to indemnification under this Agreement if the
Indemnitee has submitted a request for indemnification in accordance with
Section 1(c), and the Company shall, to the fullest extent not prohibited by
law, have the burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination contrary to
that presumption. Neither the failure of the Company (including by
its directors or special legal counsel) to have made a determination prior to
the commencement of any action pursuant to this Agreement that indemnification
is proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including by
its directors or special legal counsel) that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of
conduct.
5
(b) If the
Reviewing Party shall not have made a determination within 60 days after receipt
by the Company of the request therefor, the requisite determination of
entitlement to indemnification shall, to the fullest extent not prohibited by
law, be deemed to have been made and the Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by the Indemnitee of a material fact,
or an omission of a material fact necessary to make the Indemnitee’s statement
not materially misleading, in connection with the request for indemnification,
or (ii) a prohibition of such indemnification under applicable law; provided, however, that such
60-day period may be extended for a reasonable time, not to exceed an additional
30 days, if the Reviewing Party in good faith requires such additional time for
the obtaining or evaluating of documentation and/or information relating
thereto; and provided, further, that the
foregoing provisions of this Section 6(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the Company’s
shareholders pursuant to Section 1(d) and if (A) within 15 days after receipt by
the Company of the request for such determination the Board of Directors has
resolved to submit such determination to the shareholders for their
consideration at an annual meeting thereof to be held within 75 days after such
receipt and such determination is made thereat, or (B) a special meeting of the
Company’s shareholders is called within 15 days after such receipt for the
purpose of making such determination, such meeting is held for such purpose
within 60 days after having been so called and such determination is made
thereat, or (ii) if the determination of entitlement to indemnification is to be
made by special legal counsel pursuant to Section 1(d) or 2(a).
(c) For
purposes of this Agreement, the termination of any Claim by judgment, order or
settlement (whether with or without court approval), conviction or upon a plea
of nolo contendere or its
equivalent, shall not create a presumption that the Indemnitee did not meet any
particular standard of conduct or had any particular belief or that a court has
determined that indemnification is not permitted by this Agreement or applicable
law.
(d) For
purposes of any determination of good faith, the Indemnitee shall be deemed to
have acted in good faith if the Indemnitee’s action is based on the records or
books of account of the Company, including financial statements, or on
information supplied to the Indemnitee by the directors or officers of the
Company in the course of their duties, or on the advice of legal counsel for the
Company or on information or records given or reports made to the Company by an
independent certified public accountant or by an appraiser or other expert
selected with the reasonable care by the Company. The
provisions of this Section 6(d) shall not be deemed to be exclusive or to limit
in any way the other circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in this Agreement.
(e) The
knowledge and/or actions, or failure to act, of any director, officer, trustee,
partner, managing member, fiduciary, agent or employee of, or consultant to, the
Company shall not be imputed to Indemnitee for purposes of determining the right
to indemnification under this Agreement.
6
7. Remedies of the
Indemnitee.
(a) In the
event that (i) a determination is made pursuant to Section 1(d) that the
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to 1(b), (iii) no
determination of entitlement to indemnification shall have been made pursuant to
Section 1(d) within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made within 10 days
after a determination has been made that the Indemnitee is entitled to
indemnification, or (v) in the event that the Company or any other person takes
or threatens to take any action to declare this Agreement void or unenforceable,
or institutes any litigation or other action or proceeding designed to deny, or
to recover from, the Indemnitee the benefits provided or intended to be provided
to the Indemnitee hereunder, the Indemnitee shall be entitled to an adjudication
in any court in the State of Connecticut having subject matter jurisdiction
thereof and in which venue is proper of his entitlement to such indemnification
or advancement of Expenses, and the Company hereby consents to service of
process and to appear in any such proceeding. Alternatively, the
Indemnitee, at his 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. The Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within 180 days
following the date on which the Indemnitee first has the right to commence such
proceeding pursuant to this Section 7(a). The Company shall not
oppose the Indemnitee’s right to seek any such adjudication or award in
arbitration.
(b) In the
event that a determination shall have been made pursuant to Section 1(d) that
the Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 7 shall be conducted in all
respects as a de novo trial, or
arbitration, on the merits and the Indemnitee shall not be prejudiced by reason
of that adverse determination. In any judicial proceeding or
arbitration commenced pursuant to this Section 7, the Company shall have the
burden of proving the Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) The
Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 7 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this
Agreement. It is the intent of the Company that, to the fullest
extent permitted by law, the Indemnitee not be required to incur legal fees or
other Expenses associated with the interpretation, enforcement or defense of the
Indemnitee’s rights under this Agreement by litigation or otherwise because the
cost and expense thereof would substantially detract from the benefits intended
to be extended to the Indemnitee hereunder. The Company shall, to the
fullest extent permitted by law, indemnify the Indemnitee against any and all
Expenses and, if requested by the Indemnitee, shall (within 30 days after
receipt by the Company of a written request therefor) advance, to the extent not
prohibited by law, such Expenses to the Indemnitee, which are incurred by the
Indemnitee in connection with any action brought by the Indemnitee for
indemnification or advance of Expenses from the Company under this Agreement or
under any directors’ and officers’ liability insurance policies maintained by
the Company if, in the case of indemnification, the Indemnitee is wholly
successful on the underlying claims; if Indemnitee is not wholly successful on
the underlying claims, then such indemnification shall be only to the extent
Indemnitee is successful on such underlying claims or otherwise as permitted by
law, whichever is greater.
7
8. Exclusions. Notwithstanding
any provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnification payment in connection with any
Claim:
(a) for which
payment has actually been made to or on behalf of the Indemnitee under any
insurance policy or other indemnity provision or source, except with respect to
any excess beyond the amount paid under any insurance policy or other indemnity
provision or source; or
(b) for (i)
an accounting of profits made from the purchase and sale (or sale and purchase)
by the Indemnitee of securities of the Company within the meaning of Section
16(b) of the Exchange Act or similar provisions of state statutory law or common
law, or (ii) any reimbursement of the Company by the Indemnitee of any bonus or
other incentive-based or equity-based compensation or of any profits realized by
the Indemnitee from the sale of securities of the Company, as required in each
case under the Exchange Act (including any such reimbursements that arise from
an accounting restatement of the Company pursuant to Section 304 of the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”),
or the payment to the Company of profits arising from the purchase and sale by
the Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx
Act); or
(c) in
connection with any proceeding (or any part of any proceeding) initiated by the
Indemnitee, including any proceeding (or any part of any proceeding) initiated
by the Indemnitee against the Company or its directors, officers, employees or
other indemnitees, unless (i) the Board of Directors authorized the proceeding
(or any part of any proceeding) prior to its initiation or (ii) the Company
provides the indemnification, in its sole discretion, pursuant to the powers
vested in the Company under applicable law.
9. Contribution. In
the event that the indemnification provided for in this Agreement is unavailable
to the Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying the Indemnitee, shall contribute to the Expenses and Damages, in
such proportion as is deemed fair and reasonable in light of all of the
circumstances of the related Claim by the Board of Directors or by the
arbitrator, agency or court before which such Claim was brought in order to
reflect (i) the relative benefits received by the Company, or any subsidiary or
affiliate of the Company, and the Indemnitee as a result of the events and/or
transactions giving rise to such Claim and/or (ii) the relative fault of the
Company or any subsidiary or affiliate of the Company (and its directors,
officers, employees and agents other than the Indemnitee) and the Indemnitee in
connection with such events and/or transactions.
10. Interpretation of
Indemnity. It is agreed between the parties that, although the
indemnities and other protections given by the Company to the Indemnitee are
considered necessary, fair and reasonable, if it should be found that any of the
provisions are void as going beyond that which is permitted by law and if, by
deleting part of the wording or by substituting a more restricted indemnity or
protection than that set out in Section 1, such provision would be valid and
enforceable, there shall be substituted such more restricted indemnity or other
provision or such deletions shall be made as shall render Section 1 or such part
thereof valid and enforceable; provided, however, that the
terms of such substituted indemnity or other provision or such deletions shall
be consistent with the provisions of Section 17.
8
11. Notices to the Company by
the Indemnitee. The Indemnitee agrees to notify the Company
promptly in writing upon being served with or having actual knowledge of any
citation, summons, complaint, indictment or any other similar document relating
to any action which may result in a claim for indemnification or contribution
hereunder.
12. Non-exclusivity.
(a) The
rights of the Indemnitee hereunder shall be in addition to any other rights the
Indemnitee may have under the Certificate of Incorporation or By-laws of the
Company or of any subsidiary or affiliate of the Company, or under applicable
law or otherwise, and nothing herein shall be deemed to diminish or otherwise
restrict the Indemnitee’s right to indemnification under any such other
provision. It is the intention of the Company that the Indemnitee be
indemnified hereunder to the maximum extent that a corporation organized under
the laws of Connecticut may indemnify its officers, directors, employees and
agents pursuant to the CBCA, or if applicable law prohibits indemnification to
such extent, to the maximum extent permitted hereunder by causing any subsidiary
or affiliate of the Company to satisfy such obligation on behalf of the
Company. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of the Indemnitee under
this Agreement in respect of any action taken or omitted by the Indemnitee prior
to such amendment, alteration or repeal. To the extent that a change
in the CBCA, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently
under the Certificate of Incorporation or By-laws of the Company and this
Agreement, it is the intent of the parties hereto that the Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such
change. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise.
(b) In the
event of any payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable
the Company to bring suit to enforce such rights.
13. Duration of
Agreement. This Agreement shall continue until and terminate
upon the later of: (a) 10 years after the date that the Indemnitee shall have
ceased to serve as a director, officer, employee or agent of, or consultant to,
the Company or, at the request of the Company, as a director officer, employee,
agent or fiduciary of, or consultant to, another corporation, partnership, joint
venture, trust or other enterprise, or (b) one year after the final termination
of any Claim then pending in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding
commenced by the Indemnitee pursuant to Section 7 relating
thereto.
9
14. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in consideration of
Indemnitee’s service as a director or officer of, or consultant to, the Company,
and the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a director or officer of, or consultant to, the Company.
(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof; provided, however, that this
Agreement is a supplement to and in furtherance of the Certificate of
Incorporation and By-laws of the Company and applicable law, and shall not be
deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.
15. Amendments;
Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
16. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable against the parties hereto and, in the case of the
Company, its successors and assigns (including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company) or, in the case of the Indemnitee,
his or her heirs and legal representative. This Agreement shall
continue in effect regardless of whether the Indemnitee continues to serve as a
director, officer, employee, agent or fiduciary of, or consultant to, the
Company, or any subsidiary or affiliate of the Company, or any other enterprise
at the Company’s request.
17. Severability. If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; (b)
such provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.
18. Governing
Law. The validity, interpretation and performance of this
Agreement shall be governed by the laws of the State of Connecticut applicable
to agreements made and to be performed entirely within such State.
10
19. Liability Insurance.
To the extent the Company maintains at any time an insurance policy or policies
providing directors’ and officers’ liability insurance, the Indemnitee shall be
covered by such policy or policies, in accordance with the terms of such policy
or policies, to the maximum extent of the coverage available for any other
director or officer of the Company under such insurance policy or
policies. The purchase and maintenance of such insurance shall not in
any way limit or affect the rights and obligations of the parties hereto, and
the execution and delivery of this Agreement shall not in any way be construed
to limit or affect the rights and obligations of the Company and/or of the other
parties under any such insurance policy.
20. Notices. All
notices, requests, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when
delivered by hand or five business days after mailing by certified or registered
mail, return receipt requested, with postage prepaid, to the following (or to
such other address as the Indemnitee or the Company shall designate in writing
pursuant to the above):
|
(a)
|
If
to the Indemnitee:
|
| At the address for the Indemnitee shown in the Company’s records | |
|
(b)
|
If
to the Company:
|
| The
Dress Barn, Inc.
00
Xxxxxxxx Xxxxx
Xxxxxxx,
Xxx Xxxx 00000
Attn: Xxxx
X. Xxxxxx, Esq., Senior Vice President & General
Counsel
|
|
21. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Agreement.
22. Miscellaneous. Use
of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate. The headings of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
[Signature Page
Follows]
11
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date first written above.
| THE DRESS BARN, INC. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxx | |
|
Xxxxxx
X. Xxxxx
Chairman
|
|||
|
/s/
Xxxx Xxxxxxxxx
Xxxx
Xxxxxxxxx
|
|||
