Exhibit 10.21
-------------
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of the 10th day of December 2001
by and between THE LIMITED, INC., a Delaware corporation (the "Company"), and
the undersigned (the "Indemnitee").
RECITALS
WHEREAS, it is essential to the Company that it attract and retain as
directors and officers the most capable persons available; and
WHEREAS, Indemnitee is a director and/or officer of the Company; and
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
public companies in the current environment; and
WHEREAS, in recognition of Indemnitee's need for protection against
personal liability in order to enhance Indemnitee's continued service to the
Company in an effective manner, and in order to induce Indemnitee to continue to
provide services to the Company as a director or officer thereof, the Company
wishes to provide in this Agreement for the indemnification of Indemnitee to the
fullest extent permitted by law and as set forth in this Agreement;
NOW THEREFORE, in consideration of the foregoing, the covenants contained
herein and Indemnitee's continued service to the Company, the Company and
Indemnitee, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. The following terms, as used herein, shall have the
following respective meanings:
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings relative to the
foregoing.
"Change in control" shall be deemed to have occurred if, other than
as approved by a majority of the Board of Directors of the Company in office
immediately prior to such event (a) any person, other than (i) a trustee or
other fiduciary holding Voting Securities under an employee benefit plan of the
Company, (ii) a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of stock of
the Company or (iii) The Limited, Inc. ("The Limited"), any subsidiary of The
Limited or any successor to The Limited or any subsidiary thereof or (iv) Xxxxxx
X. Xxxxxx, his heirs, executors or administrators, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of Voting Securities representing 20% or more of the total voting power
represented by the Company's then outstanding Voting Securities, or (b) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company and any new director
whose election by the Board of Directors or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (c) the stockholders of the Company
approve (i) a merger or consolidation of the Company with any other corporation,
other than (A) a merger or consolidation which would result in the Voting
Securities outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation and (B) a merger or consolidation
with The Limited, any subsidiary of The Limited or any successor to The Limited
or any subsidiary thereof, or (ii) a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company (in one transaction
or a series of transactions) of all or substantially all of the Company's
assets.
"Claim" means (a) any threatened, pending or completed action, suit,
proceeding or arbitration or other alternative dispute resolution mechanism, or
(b) any inquiry, hearing or investigation, whether conducted by the Company or
any other Person, that Indemnitee in good faith believes might lead to the
institution of any such action, suit, proceeding or arbitration or other
alternative dispute resolution mechanism, in each case whether civil, criminal,
administrative or other (whether or not the claims or allegations therein are
groundless, false or fraudulent) and includes, without limitation, those brought
by or in the name of the Company or any director or officer of the Company.
"Company Agent" means serving as a director, officer, partner, employee,
agent, trustee or fiduciary of the Company, any Subsidiary or any Other
Enterprise.
"Covered Event" means any event or occurrence on or after the date of this
Agreement related to the fact that Indemnitee is or was a Company Agent or
related to anything done or not done by Indemnitee in any such capacity, and
includes, without limitation, any such event or occurrence (a) arising from
performance of the responsibilities, obligations or duties imposed by ERISA or
any similar applicable provisions of state or common law, or (b) arising from
any merger, consolidation or other business combination involving the Company,
any Subsidiary or any Other Enterprise, including without limitation any sale or
other transfer of all or substantially all of the business or assets of the
Company, any Subsidiary or any Other Enterprise.
"D & O Insurance" means the directors' and officers' liability insurance of
the Company in effect on the date of this Agreement, and any replacement or
substitute policies issued by one or more reputable insurers providing in all
respects coverage at least comparable to and in the same amount as that provided
by the policy in effect on the date of this Agreement.
"Determination" means a determination made by (a) a majority vote of a
quorum of Disinterested Directors; (b) Independent Legal Counsel, in a written
opinion addressed to the Company and Indemnitee; (c) the stockholders of the
Company; or (d) a decision by a court of competent jurisdiction not subject to
further appeal.
"Disinterested Director" shall be a director of the Company who is not or
was not a party to the Claim giving rise to the subject matter of a
Determination.
"Expenses" includes attorneys' fees and all other costs, travel expenses,
fees of experts, transcript costs, filing fees, witness fees, telephone charges,
postage, copying costs, delivery services fees and other expenses and
obligations of any nature whatsoever paid or incurred in connection with
investigating, prosecuting or
defending, being a witness in or participating in (including on appeal), or
preparing to prosecute or defend, be a witness in or participate in any Claim,
for which Indemnitee is or becomes legally obligated to pay.
"Independent Legal Counsel" shall mean a law firm or a member of a law firm
that (a) neither is nor in the past five years has been retained to represent in
any material matter the Company, any Subsidiary, Indemnitee or any other party
to the Claim, (b) under applicable standards of professional conduct then
prevailing would not have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee's rights to
indemnification under this Agreement and (c) is reasonably acceptable to the
Company and Indemnitee.
"Loss" means any amount which Indemnitee is legally obligated to pay as a
result of any Claim, including, without limitation (a) all judgments, penalties
and fines, and amounts paid or to be paid in settlement, (b) all interest,
assessments and other charges paid or payable in connection therewith and (c)
any federal, state, local or foreign taxes imposed (net of the value to
Indemnitee of any tax benefits resulting from tax deductions or otherwise) as a
result of the actual or deemed receipt of any payments under this Agreement,
including the creation of the Trust.
"Other Enterprise" means any corporation (other than the Company or any
Subsidiary), partnership, joint venture, association, employee benefit plan,
trust or other enterprise or organization for which Indemnitee acts as a Company
Agent at the request of the Company or any Subsidiary. Indemnitee shall be
deemed to be acting as a Company Agent of an Other Enterprise at the request of
the Company with respect to any Other Enterprise in which the Company or any
Subsidiary has an investment as to which Indemnitee shall act as a Company Agent
from time to time. Indemnitee shall be deemed to be acting as a Company Agent of
an Other Enterprise at the request of the Company, if Indemnitee acts as a
Company Agent of an Other Enterprise at the written or oral request of the Board
of Directors of the Company or of any Subsidiary by which the Indemnitee is
employed form time to time, at the written or oral request of an Executive
Officer of the Comany or of any Subsidiary by which the Indemnitee is employed
from time to time or if Indemnitee acts as a Company Agent of an Other
Enterprise by reason of being requested, elected, hired or retained to succeed
or assume the responsibilities of a Person who previously acted as a Company
Agent of an Other Enterprise at the request of the Company.
"Parent" shall have the meaning set forth in the regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as amended;
provided the term "Parent" shall not include the board of directors of a
corporation in its capacity as a board of directors, and provided further that
if the other party to any transaction referred to in Section 12.1.2 has no
Parent as so defined above, "Parent" shall mean such other party.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government (or any subdivision, department, commission or agency thereof), and
includes without limitation any "person", as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended.
"Potential Change in Control" shall be deemed to have occurred if (a) the
Company enters into an agreement or arrangement the consummation of which would
result in the occurrence of a Change in Control, (b) any Person (including the
Company) publicly announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control or (c) the Board of
Directors of
the Company adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
"Subsidiary" means any corporation of which more than 50% of the
outstanding stock having ordinary voting power to elect a majority of the board
of directors of such corporation is now or hereafter owned, directly or
indirectly, by the Company.
"Trust" has the meaning set forth in Section 9.2.
"Voting Securities" means any securities of the Company which vote
generally in the election of directors.
Section 2. Indemnification.
2.1. General Indemnity Obligation.
----------------------------
2.1.1. Subject to the remaining provisions of this Agreement, the
Company hereby indemnifies and holds Indemnitee harmless for any Losses or
Expenses arising from any Claims relating to (or arising in whole or in part out
of) any Covered Event, including, without limitation, any Claim the basis of
which is any actual or alleged breach of duty, neglect, error, misstatement,
misleading statement, omission or other act done or attempted by Indemnitee in
the capacity as a Company Agent, whether or not Indemnitee is acting or serving
in such capacity at the date of this Agreement, at the time liability is
incurred or at the time the Claim is initiated.
2.1.2. The obligations of the Company under this Agreement shall
apply to the fullest extent authorized or permitted by the provisions of
applicable law, as presently in effect or as changed after the date of this
Agreement, whether by statute or judicial decision (but, in the case of any
subsequent change, only to the extent that such change permits the Company to
provide broader indemnification than permitted prior to giving effect thereto).
2.1.3. Indemnitee shall not be entitled to indemnification pursuant
to this Agreement in connection with any Claim initiated by Indemnitee against
the Company or any director or officer of the Company, unless the Company has
joined in or consented to the initiation of such Claim; provided, the provisions
of this Section 2.1.3 shall not apply following a Change in Control to Claims
seeking enforcement of this Agreement, the Certificate of Incorporation or
Bylaws of the Company or any other agreement now or hereafter in effect relating
to indemnification for Covered Events.
2.1.4. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Losses
or Expenses paid with respect to a Claim but not, however, for the total amount
thereof, the Company shall nevertheless indemnify and hold Indemnitee harmless
against the portion thereof to which Indemnitee is entitled.
2.1.5. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any or all Claims relating to (or arising in whole or in part out of) a
Covered Event or in defense of any issue or matter therein, including dismissal
without prejudice, the Company shall indemnify and hold Indemnitee harmless
against all expenses incurred in connection therewith.
2.2. Indemnification for Serving as Witness and Certain Other Claims.
---------------------------------------------------------------
Notwithstanding any other provision of this Agreement, the Company hereby
indemnifies and holds Indemnitee harmless for all Expenses in connection with
(a) the preparation to serve or service as a witness in any Claim in which
Indemnitee is not a party, if such actual or proposed service as a witness arose
by reason of Indemnitee having served as a Company Agent on or the date of this
Agreement and (b) any Claim initiated by Indemnitee on or after the date of this
Agreement (i) for recovery under any directors' and officers' liability
insurance maintained by the Company or (ii) following a Change in Control, for
enforcement of the indemnification obligations of the Company under this
Agreement, the Certificate of Incorporation or Bylaws of the Company or any
other agreement now or hereafter in effect relating to indemnification for
Covered Events, regardless of whether Indemnitee ultimately is determined to be
entitled to such insurance recovery or indemnification, as the case may be.
Section 3. Limitations on Indemnification.
3.1 Coverage Limitations. No indemnification is available pursuant
--------------------
to the provisions of this Agreement:
3.1.1. If such indemnification is not lawful;
3.1.2. If Indemnitee's conduct giving rise to the Claim with
respect to which indemnification is requested was knowingly fraudulent, a
knowing violation of law, deliberately dishonest or in bad faith or constituted
willful misconduct;
3.1.3. In respect of any Claim based upon or attributable to
Indemnitee gaining in fact any personal profit or advantage to which Indemnitee
was not legally entitled;
3.1.4. In respect of any Claim for an accounting of profits made
from the purchase or sale by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the SEcurities Exchange Act of 1934, as amended; or
3.1.5. In respect of any Claim based upon any violation of
Section 174 of the Delaware General Corporation Law as amended.
3.2 No Duplication of Payments. The Company shall not be liable
--------------------------
under this Agreement to make any payment otherwise due and payable to the extent
Indemnitee has otherwise actually received payment (whether under the
Certificate of Incorporation or the Bylaws of the Company, the D & O Insurance
or otherwise) of any amounts otherwise xxx and payable under this Agreement.
Section 4. Payments and Determinations.
4.1. Advancement and Reimbursement of Expenses. If requested by
-----------------------------------------
Indemnitee, the Company shall advance to Indemnitee, no later than two business
days following any such request, any and all Expenses for which indemnification
is available under Section 2. Upon any Determination that Indemnitee hereby
agrees to reimburse the Company (or, as appropriate, any Trust established
pursuant to Section 9.2) for all such amounts previously paid. Such obligation
of reimbursement shall be unsecured and no interest shall be charged thereon.
4.2 Payment and Determination Procedures.
------------------------------------
4.2.1. To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, together with 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 of Directors in writing
that Indemnitee has requested indemnification.
4.2.2. Upon written request by Indemnitee for indemnification
pursuant to Section 4.2.1., a Determination with respect to Indemnitee's
entitlement thereto shall be made in the specific case (a) if a Change in
Control shall have occurred, as provided in Section 9.1; and (b) if a Change in
Control shall not have occurred, by (i) the Board of Directors by a majority
vote of a quorum of Disinterested Directors, (ii) Independent Legal Counsel, if
either (A) a quorum of Disinterested Directors is not obtainable or (B) a
majority vote of a quorum of Disinterested Directors otherwise so directs or
(iii) the stockholders of the Company (if submitted by the Board of Directors).
If a Determination is made that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within 10 days after such Determination.
4.2.3. If no Determination is made within 60 days after receipt
by the Company of a request for indemnification by Indemnitee pursuant to
Section 4.2.1, a Determination shall be deemed to have been made that Indemnitee
is entitled to the requested indemnification (and the Company shall pay the
related Losses and Expenses no later than 10 days after the expiration of such
60-day period), except where such indemnification is not lawful; provided,
however, that (a) such 60-day period may be extended for a reasonable time, not
to exceed an additional 30 days, if the Person or Persons making the
Determination in good faith require such additional time for obtaining or
evaluating the documentation and information relating thereto; and (b) the
foregoing provisions of this Section 4.2.3 shall not apply (i) if the
Determination is to be made by the stockholders of the Company and if (A) within
15 days after receipt by the Company of the request by Indemnitee pursuant to
Section 4.2.1. the Board of Directors has resolved to submit such Determination
to the stockholders at an annual meeting of the stockholders to be held within
75 days after such receipt, and such Determination is made at such annual
meeting, or (B) a special meeting of stockholders 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 at such special meeting, or (ii) if the Determination is
to be made by Independent Legal Counsel.
Section 5. D & O Insurance.
5.1 Current Policies. The Company hereby represents and warrants to
----------------
Indemnitee that the D & O Insurance is in full force and effect.
5.2 Continued Coverage. The Company shall maintain the D & O
------------------
Insurance for so long as his Agreement remains in effect. The Company shall
cause the D & O Insurance to cover Indemnitee, in accordance with its terms and
at all times such insurance is in effect, to the maximum extent of the coverage
provided thereby for any director or officer of the Company.
5.3 Indemnification. In the event of any reduction in, or cancellation of,
---------------
the D & O Insurance (whether voluntary or involuntary on behalf of the Company),
the Company shall, and hereby agrees to, indemnify and hold Indemnitee harmless
against any Losses or Expenses which Indemnitee is or becomes obligated to pay
as a result of the Company's failure to maintain the D & O Insurance in effect
in accordance with the provisions of Section 5.2, to the fullest extent
permitted by applicable law, notwithstanding any provision of the Certificate of
Incorporation or the Bylaws of the Company, or any other agreement now or
hereafter in effect relating to indemnification for Covered Events. The
indemnification available under this Section 5.3 is in addition to all other
obligations of indemnification of the Company under this Agreement and shall be
the only remedy of Indemnitee for a breach by the Company of its obligations set
forth in Section 5.2.
Section 6. Subrogation. In the event of any payment under this Agreement to or
on behalf of Indemnitee, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee against any Person other
than the Company or Indemnitee in respect of the Claim giving rise to such
payment. Indemnitee shall execute all papers reasonably required and shall do
everything reasonably necessary to secure such rights, including the execution
of such documents reasonably necessary to enable the Company effectively to
bring suit to enforce such rights.
Section 7. Notifications and Defense of Claims.
7.1. Notice by Indemnitee. Indemnitee shall give notice in writing to the
--------------------
Company as soon as practicable after Indemnitee becomes aware of any Claim with
respect to which indemnification will or could be sought under this Agreement;
provided the failure of Indemnitee to give such notice, or any delay in giving
such notice, shall not relieve the Company of its obligations under this
Agreement except to the extent the Company is actually prejudiced by any such
failure or delay.
7.2. Insurance. The Company shall give prompt notice of the commencement of
---------
any Claim relating to Covered Events to the insurers on the D & O Insurance, if
any, in accordance with the procedures set forth in the respective policies in
favor of Indemnitee. The Company shall thereafter take all necessary action to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such Claims in accordance with the terms of such policies.
7.3. Defense.
-------
7.3.1. In the event any Claim relating to Covered Events is by or in
the right of the Company, Indemnitee may, at the option of Indemnitee, either
control the defense therefor or accept the defense provided under the D & O
Insurance; provided, however, that Indemnitee may not control the defense if
such decision would jeopardize the coverage provided by the D & O Insurance, if
any, to the Company or the other directors and officers covered thereby.
7.3.2. In the event any Claim relating to Covered Events is other than
by or in the right of the Company, Indemnitee may, at the option of Indemnitee,
either control the defense thereof, require the Company to defend or accept the
defense provided under the D & O Insurance; provided, however, that Indemnitee
may not control the defense or require the Company to defend if such decision
would jeopardize the coverage provided by the D & O Insurance to the Company or
the other directors and officers covered thereby. In the event that Indemnitee
requires the Company to so defend, or in the event that Indemnitee proceeds
under the D & O
Insurance but Indemnitee determines that such insurers under the D & O Insurance
are unable or unwilling to adequately defend Indemnitee against any such Claim,
the Company shall promptly undertake to defend any such Claim, at the Company's
sole cost and expense, utilizing counsel of Indemnitee's choice who has been
approved by the Company. If appropriate, the Company shall have the right to
participate in the defense of any such Claim.
7.3.3. In the event the Company shall fail, as required by any
election by Indemnitee pursuant to Section 7.3.2, timely to defend Indemnitee
against any such Claim, Indemnitee shall have the right to do so, including
without limitation, the right (notwithstanding Section 7.3.4) to make any
settlement thereof, and to recover from the Company, to the extent otherwise
permitted by this Agreement, all Expenses and Losses paid as a result thereof.
7.3.4. The Company shall have no obligation under this Agreement
with respect to any amounts paid or to be paid in settlement of any Claim
without the express prior written consent of the Company to any related
settlement. In no event shall the Company authorize any settlement imposing any
liability or other obligations on Indemnitee without the express prior written
consent of Indemnitee. Neither the Company nor Indemnitee shall unreasonably
withhold consent to any proposed settlement.
Section 8. Determinations and Related Matters.
8.1. Presumptions.
------------
8.1.1. If a Change in Control shall have occurred, Indemnitee shall
be entitled to a rebuttable presumption that Indemnitee is entitled
to indemnification under this Agreement and the Company shall have the burden of
proof in rebutting such presumption.
8.1.2. The termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, shall not adversely affect either the right of
Indemnitee to indemnification under this Agreement or the presumptions to which
Indemnitee is otherwise entitled pursuant to the provisions of this Agreement
nor create a presumption that Indemnitee did not meet any particular standard of
conduct or have a particular belief or that a court has determined that
indemnification is not permitted by applicable law.
8.2. Appeals; Enforcement.
--------------------
8.2.1. In the event that (a) a Determination is made that Indemnitee
shall not be entitled to indemnification under this Agreement, (b) any
Determination to be made by Independent Legal Counsel is not made within 90 days
of receipt by the Company of a request for indemnification pursuant to Section
4.2.1 or (c) the Company fails to otherwise perform any of its obligations under
this Agreement (including, without limitation, its obligation to make payments
to Indemnitee following any Determination made or deemed to have been made that
such payments are appropriate), Indemnitee shall have the right to commence a
Claim in any court of competent jurisdiction, as appropriate, to seek a
Determination by the court, to challenge or appeal any Determination which has
been made, or to otherwise enforce this Agreement. If a Change of Control shall
have occurred, Indemnitee shall have the option to have any such Claim conducted
by a single arbitrator pursuant to the rules of the American Arbitration
Association. Any such judicial proceeding challenging or
appealing any Determination shall be deemed to be conducted de novo and without
-- ----
prejudice by reason of any prior Determination to the effect that Indemnitee is
not entitled to indemnification under this Agreement. Any such Claim shall be at
the sole expense of Indemnitee except as provided in Section 9.3.
8.2.2. If a Determination shall have been made or deemed to
have been made pursuant to this Agreement 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 8.2,
except if such indemnification is unlawful.
8.2.3. The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 8.2 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. The Company
hereby consents to service of process and to appear in any such judicial or
arbitration proceedings and shall not oppose Indemnitee's right to commence any
such proceedings.
8.3. Procedures. Indemnitee shall cooperate with the Company and
----------
with any Person making any Determination with respect to any Claim for which a
claim for indemnification under this Agreement has been made, as the Company may
reasonably require. Indemnitee shall provide to the Company or the Person making
any Determination, upon reasonable advance request, any documentation or
information reasonably available to Indemnitee and necessary to (a) the Company
with respect to any such Claim or (b) the Person making any Determination with
respect thereto.
Section 9. Change in Control Procedures.
9.1. Determinations. If there is a Change in Control, any
--------------
Determination to be made under Section 4 shall be made by Independent Legal
Counsel selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld). The Company shall pay the reasonable fees of the
Independent Legal Counsel and indemnify fully such Independent Legal Counsel
against any and all expenses (including attorney's fees), claims, liabilities
and damages arising out of or relating to this Agreement or the engagement of
Independent Legal Counsel pursuant hereto.
9.2. Establishment of Trust. Following the occurrence of any
----------------------
Potential Change in Control, the Company, upon receipt of a written request from
Indemnitee, shall create a Trust (the "Trust") for the benefit of Indemnitee,
the trustee of which shall be a bank or similar financial institution with trust
powers chosen by Indemnitee. From time to time, upon the written request of
Indemnitee, the Company shall fund the Trust in amounts sufficient to satisfy
any and all Losses and Expenses reasonably anticipated at the time of each such
request to be incurred by Indemnitee for which indemnification may be available
under this Agreement. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by mutual
agreement of Indemnitee and the Company or, if the Company and Indemnitee are
unable to reach such an agreement or, in any event, a Change in Control has
occurred, by Independent Legal Counsel (selected pursuant to Section 9.1). The
terms of the Trust shall provide that, except upon the prior written consent of
Indemnitee and the Company, (a) the Trust shall not be revoked or the principal
thereof invaded, other than to make payments to unsatisfied judgement creditors
of the Company, (b) the Trust shall continue to be funded by the Company in
accordance
with the funding obligations set forth in this Section, (c) the Trustee shall
promptly pay or advance to Indemnitee any amounts to which Indemnitee shall be
entitled pursuant to this Agreement, and (d) all unexpended funds in the Trust
shall revert to the Company upon a Determination by Independent Legal Counsel
(selected pursuant to Section 9.1) or a court of competent jurisdiction that
Indemnitee has been fully indemnified under the terms of this Agreement. All
income earned on the assets held in the trust shall be reported as income by the
Company for federal, state, local and foreign tax purposes.
9.3. Expenses. Following any Change in Control, the Company shall be
--------
liable for, and shall pay the Expenses paid or incurred by Indemnitee in
connection with the making of any Determination (irrespective of the
determination as to Indemnitee's entitlement to indemnification) or the
prosecution of any Claim pursuant to Section 8.2, and the Company hereby agrees
to indemnify and hold Indemnitee harmless therefrom. If requested by counsel for
Indemnitee, the Company shall promptly give such counsel an appropriate written
agreement with respect to the payment of its fees and expenses and such other
matters as may be reasonably requested by such counsel.
Section 10. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company, any
Subsidiary, any Other Enterprise or any Affiliate of the Company against
Indemnitee or Indemnitee's spouse, heirs, executors, administrators or personal
or legal representatives after the expiration of two years from the date of
accrual of such cause of action, and any claim or cause of action of the
Company, any Subsidiary, any Other Enterprise or any Affiliate of the Company
shall be extinguished and deemed released unless asserted by the timely filing
of a legal action within such two-year period; provided, however, that if any
shorter period of limitations, whether established by statute or judicial
decision, is otherwise applicable to any such cause of action such shorter
period shall govern.
Section 11. Contribution. If the Indemnification provisions of this
Agreement should be unenforceable under applicable law in whole or in part or
insufficient to hold Indemnitee harmless in respect of any Losses and Expenses
incurred by Indemnitee, then for purposes of this Section 11, the Company shall
be treated as if it were, or was threatened to be made, a party defendant to the
subject Claim and the Company shall contribute to the amounts paid or payable by
Indemnitee as a result of such Losses and Expenses incurred by Indemnitee in
such proportion as is appropriate to reflect the relative benefits accruing to
the Company on the one hand and Indemnitee on the other and the relative fault
of the Company on the one hand and Indemnitee on the other in connection with
such Claim, as well as any other relevant equitable considerations. For purposes
of this Section 11 the relative benefit of the Company shall be deemed to be the
benefits accruing to it and to all of its directors, officers, employees and
agents (other than Indemnitee) on the one hand, as a group and treated as one
entity, and the relative benefit of Indemnitee shall be deemed to be an amount
not greater than the Indemnitee's yearly base salary or Indemnitee's
compensation from the Company during the first year in which the Covered Event
forming the basis for the subject Claim was alleged to have occurred. The
relative fault shall be determined by reference to, among other things, the
fault of the Company and all of its directors, officers, employees and agents
(other than Indemnitee) on the one hand, as a group and treated as one entity,
and Indemnitee's and such group's relative intent, knowledge, access to
information and opportunity to have altered or prevented the Covered Event
forming the basis for the subject Claim.
Section 12. Miscellaneous Provisions.
12.1. Successors and Assigns, Etc.
----------------------------
12.1.1. This Agreement shall be binding upon and inure to the
benefit of (a) the Company, its successors and assigns (including any direct or
indirect successor by merger, consolidation or operation of law or by transfer
of all or substantially all of its assets) and (b) Indemnitee and the heirs,
personal and legal representatives, executors, administrators or assigns of
Indemnitee.
12.1.2 The Company shall not consummate any consolidation, merger
or other business combination, nor will it transfer 50% or more of its assets
(in one or a series of related transactions), unless the ultimate Parent of the
successor to the business or assets of the Company shall have first executed an
agreement, in form and substance satisfactory to Indemnitee, to expressly assume
all obligations of the Company under this Agreement and agree to perform this
Agreement in accordance with its terms, in the same manner and to the same
extent that the Company would be required to perform this Agreement if no such
transaction had taken place; provided that, if the Parent is not the Company,
the legality of payment of indemnity by the Parent shall be determined by
reference to the fact that such indemnity is to be paid by the Parent rather
than the Company.
12.2 Severability. The Provisions of this Agreement are severable. If
------------
any provision of this Agreement shall be held by any court of competent
jurisdiction to be invalid, void or unenforceable, such provision shall be
deemed to be modified to the minimum extent necessary to avoid a violation of
law and, as so modified, such provision and the remaining provisions shall
remain valid and enforceable in accordance with their terms to the fullest
extent permitted by law.
12.3 Rights Not Exclusive; Continuation of Right of Indemnification.
--------------------------------------------------------------
Nothing in this Agreement shall be deemed to diminish or otherwise restrict
Indemnitee's right to indemnification pursuant to any provision of the
Certificate of Incorporation or Bylaws of the Company, any agreement, vote of
stockholders or Disinterested Directors, applicable law or otherwise. This
Agreement shall be effective as of the date first above written and continue in
effect until no Claims relating to any Covered Event may be asserted against
Indemnitee and until any Claims commenced prior thereto are finally terminated
and resolved, regardless of whether Indemnitee continues to serve as an officer
of the Company, any Subsidiary or any Other Enterprise.
12.4 No Employment Agreement. Nothing contained in this Agreement shall
-----------------------
be construed as giving Indemnitee any right to be retained in the employ of the
Company, any Subsidiary or any Other Enterprise.
12.5 Subsequent Amendment. No amendment, termination or repeal of any
--------------------
provision of the Certificate of Incorporation or Bylaws of the Company, or any
respective successors thereto, or of any relevant provision of any applicable
law, shall affect of diminish in any way the rights of Indemnitee to
indemnification, or the obligations of the Company, arising under this
Agreement, whether the alleged actions or conduct of Indemnitee giving rise to
the necessity of such indemnification arose before or after any such amendment,
termination or repeal.
12.6 Notices. Notices required under this Agreement shall be given in
-------
writing and shall be deemed given when delivered in person or sent by certified
or
registered mail, return receipt requested, postage prepaid. Notices shall be
directed to the Company Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000,
Attention: Chairman of the Board, and to Indemnitee at the residential address
as shown on the Company's records (or such other address as either party may
designate in writing to the other).
12.7 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and performed in such state without giving effect to the
principles of conflict of laws.
12.8 Headings. The headings of the Sections 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.
12.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts of all which taken together shall constitute one instrument.
12.10 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 or any of the provisions of this Agreement shall
constitute, or be deemed to constitute, a waiver of any other provision hereof
(whether or not similar) nor shall any such waiver constitute a continuing
waiver.
The parties hereto have caused this Agreement to be duly executed as of the
day and year first above written.
THE LIMITED, INC. INDEMNITEE
By /s/ Xxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
------------------------------- ------------------------------------
Xxxxxx X. Xxxxx Xxxx X. Xxxxxx
Senior Vice President
