Exhibit 10(cc)
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of the 7th day of June,
2000 ("Agreement"), by and between InterTAN, Inc., a Delaware corporation
("Company"), and _____________________ ("Indemnitee").
RECITALS:
WHEREAS, highly competent persons have become more reluctant to serve
publicly-held corporations as directors or officers in other capacities unless
they are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to, and activities on behalf of, the corporation;
this is because such persons in service to corporations are being increasingly
subjected to expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only against the
corporation or business enterprise itself; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that, to attract and retain qualified individuals, the Company will
attempt to maintain on an ongoing basis, at its sole expense, liability
insurance to protect persons serving the Company and its subsidiaries from
certain liabilities; and
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining such persons is detrimental to the best interests of
the Company's stockholders and that the Company should act to assure such
persons that there will be increased certainty of such protection in the future;
and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance expenses on behalf
of, such persons to the fullest extent permitted by applicable law so that they
will serve or continue to serve the Company free from undue concern that they
will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the
Bylaws of the Company and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefore, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS, each of Section 145 of the General Corporation Law of the
State of Delaware ("DGCL") and the Bylaws is nonexclusive, and therefore
contemplates that contracts may be entered into with respect to indemnification
of directors, officers and employees; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that he
be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee hereby covenant and agree as
follows:
Section 1. Services by Indemnitee. Indemnitee agrees to continue to
serve as a director or officer of the Company. Indemnitee may at any time and
for any reason resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in
such position. This Agreement shall not be deemed an employment contract between
the Company (or any of its subsidiaries) and Indemnitee. This Agreement shall
continue in force after Indemnitee has ceased to serve as a director or officer
of the Company.
Section 2. Indemnification - General. The Company shall indemnify, and
advance Expenses (as hereinafter defined) to, Indemnitee (a) as provided in this
Agreement and (b) to the fullest extent permitted by applicable law in effect on
the date hereof and as amended from time to time. The rights of Indemnitee
provided under the preceding sentence shall include, but shall not be limited
to, the rights set forth in the other Sections of this Agreement.
Section 3. Proceedings Other Than Proceedings by or in the Right of
the Company. Indemnitee shall be indemnified under this Section 3 if, by reason
of his Corporate Status (as hereinafter defined), he is, or is threatened to be
made, a party to or a participant in any threatened, pending, or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right
of the Company. Pursuant to this Section 3, Indemnitee shall be indemnified
against all Expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if he acted in Good Faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Company and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful.
Section 4. Proceedings by or in the Right of the Company. Indemnitee
shall be indemnified under this Section 4 if, by reason of his Corporate Status,
he is, or is threatened to be made, a party to or a participant in any
threatened, pending or completed Proceeding brought by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 4,
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding if he acted
in Good Faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company; provided that if applicable law so provides,
no indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company unless and to the extent that the Court of
Chancery of the State of Delaware, or the court in which such Proceeding shall
have been brought or is pending, shall determine that such indemnification may
be made.
Section 5. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a party to (or a
participant in) and is successful, on the merits or otherwise, in any Proceeding
(including dismissal without prejudice), he shall be indemnified to the maximum
extent permitted by law against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding
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but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or matter.
For purposes of this Section and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
Section 6. Indemnification for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, he shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith; provided
that he shall not be paid for time spent as such.
Section 7. Advancement of Expenses. Notwithstanding any provision of
this Agreement to the contrary, the Company shall advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding in which Indemnitee is involved by reason of Indemnitee's Corporate
Status within 10 days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee. Indemnitee hereby undertakes to repay any Expenses advanced if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and undertakings to repay pursuant to this
Section 7 shall be unsecured and interest free.
Section 8. Procedure for Determination of Entitlement to
Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and
is reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 8(a), a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made
in the specific case, unless Indemnitee and the Company agree otherwise, by
Independent Counsel (as hereinafter defined) in a written opinion to the Board
of Directors, a copy of which shall be delivered to Indemnitee; and, if it is
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within 10 days after such determination. Indemnitee shall
cooperate with the person, persons or firm making such determination with
respect to Indemnitee's entitlement to indemnification, including providing to
such person, persons or firm upon reasonable advance request any documentation
or information that is not privileged or otherwise protected from disclosure and
that is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including
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attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or firm making such determination shall be paid by the
Company (irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) The Independent Counsel referred to in Section 8(b) shall
be selected as provided in this Section 8(c). The Independent Counsel shall be
selected by the Board of Directors, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so selected.
Within 10 days after such written notice of selection shall have been given,
Indemnitee may deliver to the Company a written objection to such selection;
provided that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 17, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If such
written objection is so made, the Independent Counsel so selected may not serve
as Independent Counsel unless and until such objection is withdrawn or a court
has determined that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification pursuant to
Section 8(a), no Independent Counsel shall have been selected and not objected
to, Indemnitee may petition the Court of Chancery of the State of Delaware or
other court of competent jurisdiction for resolution of any objection that shall
have been made by Indemnitee to the Company's selection of Independent Counsel
and/or for the appointment as Independent Counsel of a person selected by the
Court or by such other person as the Court shall designate, and the person with
respect to whom all objections are so resolved or the person so appointed shall
then act as Independent Counsel under Section 8(b). Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 10(a), Independent
Counsel shall be discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional conduct then
prevailing).
(d) The Company shall not be required to obtain the consent of
Indemnitee to the settlement of any Proceeding the Company has undertaken to
defend if the Company assumes full and sole responsibility for such settlement
and the settlement grants Indemnitee a complete and unqualified release in
respect of the potential liability. The Company shall not be liable for any
amount paid by the Indemnitee in settlement of any Proceeding that is not
defended by the Company, unless the Company has consented to such settlement,
which consent shall not be unreasonably withheld.
Section 9. Presumptions; Reliance and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or firm making such determination
shall presume that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 8(a) and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or firm of any determination contrary to that presumption. Neither the failure
of Independent Legal Counsel to have made a determination prior to the
commencement of any action pursuant to this Agreement that
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indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination thereby that
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct.
(b) If the person, persons or firm empowered under Section 8
to determine whether Indemnitee is entitled to indemnification 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 be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law; provided that
such 60-day period may be extended for a reasonable time, not to exceed an
additional 30 days, if the person, persons or firm making the determination with
respect to entitlement to indemnification in good faith requests in writing such
additional time for the obtaining or evaluating of documentation and/or
information relating thereto.
(c) The termination of any Proceeding or of any claim, issue
or matter therein, by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in Good
Faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe his conduct was unlawful.
(d) For purposes of any determination of Good Faith,
Indemnitee shall be deemed to have acted in Good Faith if Indemnitee's action is
based on the records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers, agents or
employees of the Enterprise in the course of their duties, or on the advice of
legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an
appraiser, financial advisor or other expert or professional selected with
reasonable care by the Enterprise. The provisions of this Section 9(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, agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this
Agreement.
Section 10. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 8 that
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely
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made pursuant to Section 7, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 8(b) within 90 days
after receipt by the Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 5, Section 6, the last sentence
of Section 8(b) or the last sentence of Section 17(g) within 10 days after
receipt by the Company of a written request therefor, or (v) payment of
indemnification pursuant to Section 3 or Section 4 is not made within 10 days
after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication by the Court of
Chancery of the State of Delaware of his entitlement to such indemnification or
advancement of Expenses. Alternatively, 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. Indemnitee
shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has the
right to commence such proceeding pursuant to this Section 10(a); provided that
the foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce his rights under Section 5. The Company shall not oppose
Indemnitee's right to seek any such adjudication or award in arbitration.
(b) If a determination shall have been made pursuant to
Section 8(b) that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 10 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made pursuant to
Section 8(b) that Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 10, absent (i) a misstatement by Indemnitee
of a material fact, or an omission of a material fact necessary to make
Indemnitee's statements not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d) If Indemnitee, pursuant to this Section 10, seeks a
judicial adjudication of or an award in arbitration to enforce his rights under,
or to recover damages for breach of, this Agreement, Indemnitee shall be
entitled to recover from the Company, and shall be indemnified by the Company
against, any and all expenses (of the types described in the definition of
Expenses in Section 17 of this Agreement) actually and reasonably incurred by
him in such judicial adjudication or arbitration unless it shall be finally
determined by the court or arbitrator before which such claim was brought that
it was brought in bad faith. Even if it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of Expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be paid in full.
(e) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 10 that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and hereby stipulates, and shall so stipulate in any such court or
before any such arbitrator, that the Company is bound by all the provisions of
this Agreement.
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Section 11. Nonexclusivity; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement
of Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Company's Certificate of Incorporation, the Company's Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal. To the extent that a change in the
DGCL, whether by statute or judicial decision, permits greater indemnification
or advancement of Expenses than would be afforded currently under the Company's
Certificate of Incorporation, Bylaws and this Agreement, it is the agreement and
intent of the parties hereto that 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.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other right or
remedy.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, or agents of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise such person
serves at the request of the Company, Indemnitee shall be covered by such policy
or policies in accordance with its or their terms to the maximum extent of the
coverage available for any such director, officer, employee or agent under such
policy or policies.
(c) 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 Indemnitee, who shall execute all documents 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.
(d) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable (or for which advancement is
provided hereunder) hereunder if and to the extent that Indemnitee has otherwise
theretofore actually received such payment under any insurance policy, contract,
agreement or otherwise.
(e) The Company's obligation to indemnify or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as a
director, officer, employee or agent of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise shall be reduced
by any amount Indemnitee has actually theretofore received as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
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Section 12. Duration of Agreement. This Agreement shall continue until
and terminate upon the later of: (i) 10 years after the date that Indemnitee
shall have ceased to serve as a director or officer of the Company (or of any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise that Indemnitee served at the request of the Company); or (ii)
the final termination of any Proceeding then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to Section 10
relating thereto. This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Indemnitee and his
heirs, executors and administrators.
Section 13. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) 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; (ii) 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 (iii) 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.
Section 14. Exception to Right of Indemnification or Advancement of
Expenses. Notwithstanding any other provision of this Agreement, but subject to
Section 10, Indemnitee shall not be entitled to indemnification or advancement
of Expenses under this Agreement with respect to any Proceeding brought by
Indemnitee, or any claim therein, unless the bringing of such Proceeding or
making of such claim shall have been approved by the Board of Directors.
Section 15. Identical 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.
Section 16. Headings. The headings of the paragraphs 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.
Section 17. Definitions. For purposes or this Agreement:
(a) "Corporate Status" describes the status of a person who is
or was a director, officer, employee or agent of the Company or of any other
corporation, partnership, joint
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venture, trust, employee benefit plan or other enterprise that such person is or
was serving at the request of the Company.
(b) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(c) "Effective Date" means the date first above written.
(d) "Enterprise" shall mean the Company and any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of the Company
as a director, officer, employee, agent or fiduciary.
(e) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
and lodging expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing to be a
witness in, or otherwise participating in, a Proceeding.
(f) "Good Faith" shall mean Indemnitee having acted in good
faith and in a manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal Proceeding,
having had no reasonable cause to believe Indemnitee's conduct was unlawful.
(g) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Company or any affiliate thereof or Indemnitee (other than with respect to
matters concerning the Indemnitee under this Agreement, or of other indemnitees
under similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing the Company or Indemnitee in an
action to determine Indemnitee's rights under this Agreement. The Company shall
promptly pay the reasonable fees and expenses of the Independent Counsel
referred to above and shall fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(h) "Proceeding" includes any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of the
fact that Indemnitee is or was a director or officer of the Company, by reason
of any action taken by him or of any inaction on his part while acting as
director or officer of the Company, or by reason of the fact that
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he is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, in each case whether or not he is acting or serving in any
such capacity at the time any liability or expense is incurred for which
indemnification or advancement of expenses can be provided under this Agreement;
except one initiated by a Indemnitee pursuant to Section 10 to enforce his
rights under this Agreement.
(i) References to "other enterprise" shall include employee
benefit plans; references to "fines" shall include any excise tax assessed 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 that imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, as
participants or beneficiaries; and a person who acted in good faith and in the
manner he reasonably believed to be in the interests of the participants and
beneficiaries of an employee benefit plan shall not be deemed to have acted in
manner "not opposed to the best interests of the Company" as referred to in this
Agreement.
(j) AAffiliate@ means with respect to any person or entity,
any other person or entity that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with, such
person or entity.
Section 18. Enforcement.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to continue to serve as a director and/or officer of
the Company, and to serve upon any committee of the Board of Directors of the
Company as requested by such Board, and the Company acknowledges that Indemnitee
is relying upon this Agreement in serving as a director and/or officer of the
Company and a member of any such committee.
(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.
Section 19. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
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.
Section 20. Notice by Indemnitee. Indemnitee agrees promptly to notify
the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter that may be subject to indemnification or advancement of Expenses
covered hereunder. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation it may have to the Indemnitee
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under this Agreement or otherwise, except to the extent the Company is
materially prejudiced by such failure.
Section 21. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom the
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to:
with a copy to:
(b) If to the Company, to:
InterTAN, Inc.
The Royal Centre
0000 Xxxxxxx #0, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
with a copy to:
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 22. Contribution. To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding in
order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
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Section 23. Governing Law; Submission to Jurisdiction; Appointment of
Agent for Service of Process. This Agreement and the legal relations among the
parties shall be governed by, and construed and enforced in accordance with, the
laws of the State of Delaware, without regard to its conflict of laws rules.
Except with respect to any arbitration commenced by Indemnitee pursuant to
Section 10(a), the Company and Indemnitee hereby irrevocably and unconditionally
(i) agree that any action or proceeding arising out of or in connection with
this Agreement shall be brought only in the Chancery Court of the State of
Delaware (the "Delaware Court"), and not in any other state or federal court in
the United States of America or any court in any other country, (ii) consent to
and submit to the exclusive jurisdiction of the Delaware Court for purposes of
any action or proceeding arising out of or in connection with this Agreement,
(iii) appoint, to the extent such party is not a resident of the State of
Delaware, irrevocably ____________________________________________, Delaware
________ as its agent in the State of Delaware as such party's agent for
acceptance of legal process in connection with any such action or proceeding
against such party with the same legal force and validity as if served upon such
party personally within the State of Delaware, (iv) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (v)
waive, and agree not to plead or to make, any claim that any such action or
proceeding brought in the Delaware Court has been brought in an improper or
otherwise inconvenient forum.
Section 24. Miscellaneous. Use of the masculine pronoun shall be
deemed to include usage of the feminine pronoun where appropriate. All
references in this Agreement to Sections shall be deemed to be references to
Sections of this Agreement unless the context indicates otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
InterTAN, Inc.
By:_______________________________________
Name:
Title:
__________________________________________
Indemnitee:
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