EXHIBIT 10.28
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of the 21st day of April, 1994,
between Venture Stores, Inc., a Delaware corporation (the
"Company"), and Xxxxxx Xxxxxxxx (the "Indemnitee").
WHEREAS, it is essential to the Company to retain and
attract as directors and officers the most capable individuals
available; and
WHEREAS, Indemnitee is a director 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 today's
environment; and
WHEREAS, basic protection against undue risk of personal
liability of directors and officers is being provided through
insurance coverage providing reasonable protection at reasonable
cost, and Indemnitee is relying on the availability of such
coverage; but as a result of substantial changes in the
marketplace for such insurance it has become increasingly more
difficult to obtain such insurance on terms providing reasonable
protection at reasonable cost; and
WHEREAS, the Bylaws of the Company require the Company to
indemnify and advance expenses to its directors and officers to
the fullest extent now or hereafter authorized or permitted by
law and authorize the Company to enter into agreements providing
for such indemnification and advancement of expenses; and
WHEREAS, in recognition of the fact that the Indemnitee
agrees to serve as a director or officer of the Company, in part
in reliance on the aforesaid Bylaws, and of the fact of
Indemnitee's need for substantial protection against personal
liability in order to enhance Indemnitee's service to the Company
in an effective manner, and in part to provide Indemnitee with
specific contractual assurance that the protection promised by
such Bylaws will be available to Indemnitee (regardless of, among
other things, any amendment to or revocation of such Bylaws or
any change in the composition of the Company's Board of Directors
or acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of
Indemnitee and the advancing of expenses to Indemnitee to the
fullest extent (whether partial or complete) now or hereafter
authorized or permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company's directors'
and officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of
Indemnitee's agreement to serve or continue to serve the Company
directly or, at its request, another enterprise, and intending to
be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions:
(a) Approved Law Firm shall mean any law firm (i)
located in Wilmington, Delaware, (ii) having 10 or
more attorneys and (iii) related "av" by
Xxxxxxxxxx-Xxxxxxx Law Directory; provided,
however, that such law firm shall not, for a five-
year period prior to the Indemnifiable Event, have
been engaged by the Company, an Acquiring Person
or the Indemnitee.
(b) Board of Directors shall mean the Board of
Directors of the Company.
(c) Change in Control shall be deemed to have occurred
if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended [the "Act"]) (the
"Acquiring Person"), other than the Company, a
trustee or other fiduciary holding securities
under an employee benefit plan of the Company or 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, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act), directly
or indirectly, of securities of the Company
representing 20% or more of the total voting power
represented by the Company's then outstanding
Voting Securities, or (ii) during any period of
two consecutive years, individuals who at the
beginning of such period constitute 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 (2/3) 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 (iii)
the stockholders of the Company approve 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 of the Company 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, or (iv) the
stockholders of the Company approve a plan of
complete liquidation of the Company or an
agreement for the sale or disposition by the
Company of (in one transaction or a series of
transactions) all or substantially all the
Company's assets.
(d) Claim shall mean any threatened, pending or
completed action, suit or proceeding, or any
inquiry or investigation, whether instituted by
the Company or any other party, that Indemnitee in
good faith believes might lead to the institution
of any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or
other.
(e) Expenses shall include attorneys' fees and all
other costs, expenses and obligations paid or
incurred in connection with investigating,
defending, being a witness in or participating in
(including on appeal), or preparing to defend, be
a witness in or participate in any Claim relating
to any Indemnifiable Event, together with
interest, computed at the Company's average cost
of funds for short-term borrowings, accrued from
the date of payment of such expense to the date
Indemnitee received reimbursement therefor.
(f) Indemnifiable Event shall mean any event or
occurrence related to the fact that Indemnitee is
or was a director, officer, employee, agent or
fiduciary of the Company, or is or was serving at
the request of the Company as a director, officer,
employee, trustee, agent or fiduciary of another
corporation of any type or kind, domestic or
foreign, partnership, joint venture, employee
benefit plan, trust or other enterprise, or by
reason of anything done or not done by Indemnitee
in any such capacity. Without limitation of any
indemnification provided hereunder, an Indemnitee
serving (i) another corporation, partnership,
joint venture or trust of which 20% or more of the
voting power or residual economic interest is
held, directly or indirectly, by the Company, or
(ii) any employee benefit plan of the Company or
any entity referred to in clause (i), in any
capacity shall be deemed to be doing so at the
request of the Company.
(g) Potential Change in Control shall be deemed to
have occurred if (i) the Company enters into an
agreement, the consummation of which would result
in the occurrence of a Change in Control; (ii) 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; (iii) any person, other than a trustee or
other fiduciary holding securities under an
employee benefit plan of the Company or 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, who is or becomes the beneficial
owner, directly or indirectly, of securities of
the Company representing 9.5% or more of the
combined voting power of the Company's then
outstanding Voting Securities, increases his
beneficial ownership of such securities by five
percentage points or more over the percentage so
owned by such person; or (iv) the Board of
Directors adopts a resolution to the effect that,
for purposes of this Agreement, a Potential Change
in Control has occurred.
(h) Reviewing Party shall be (i) the Board of
Directors acting by a majority vote of a quorum
consisting of directors who are not parties to the
particular Claim with respect to which Indemnitee
is seeking indemnification, or (ii) if such a
quorum is not obtainable or, even if obtainable,
if a quorum of disinterested directors so directs,
(A) an Approved Law Firm or (B) the stockholders.
(i) Voting Securities shall mean any securities of the
Company which vote generally in the election of
directors.
2. Basic Indemnification Arrangement. If the Indemnitee
was, is or becomes at any time a party to or witness or other
participant in, or is threatened to be made a party to or witness
or other participant in, a Claim by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent now or hereafter authorized or
permitted by law as soon as practicable but in any event no later
than 30 days after written demand is presented to the Company,
against any and all Expenses, judgments, fines (including excise
taxes assessed against an Indemnitee with respect to an employee
benefit plan), penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) of
such Claim. If so requested by Indemnitee, the Company shall
advance (within two business days of such request) any and all
Expenses to Indemnitee (an "Expense Advance"). Notwithstanding
anything in this Agreement to the contrary, prior to a Change in
Control Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with any Claim initiated
by Indemnitee unless the Board of Directors has authorized or
consented to the initiation of such Claim.
3. Payment. Notwithstanding the provisions of Section 2,
the obligations of the Company under Section 2 (which shall in no
event be deemed to preclude any right to indemnification to which
the Indemnitee may be entitled under Section 145(c) of the
General Corporation Law of the State of Delaware (the "DGCL"))
shall be subject to the condition that the Reviewing Party shall
have authorized such indemnification in the specific case (in a
written opinion in any case in which the special, independent
counsel referred to in Section 4 hereof is involved or in an
appropriate resolution in any case in which the stockholders are
involved) by having determined that the Indemnitee is permitted
to be indemnified under the applicable standard of conduct set
forth in Section 145 of the DGCL. The Company shall promptly
call a meeting of the Board of Directors with respect to a Claim
and agrees to use its best efforts to facilitate a prompt
determination by the Reviewing Party with respect to the Claim.
Indemnitee shall be afforded the opportunity to make submissions
to the Reviewing Party with respect to the Claim. Indemnitee
shall be afforded the opportunity to make submissions to the
Reviewing Party with respect to the Claim. The obligation of the
Company to make an Expense Advance pursuant to Section 2 shall be
subject to the condition that, if, when and to the extent that
the Reviewing Party determines that Indemnitee would not be
permitted to be so indemnified under applicable law, the Company
shall be entitled to be reimbursed by Indemnitee (who hereby
agrees and undertakes to the full extent required by paragraph
(e) of Section 145 of the DGCL to reimburse the Company) for all
such amounts theretofore paid, provided, however, that if
Indemnitee has commenced legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination
made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed). If
there has been no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively would
not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence
litigation in any court in the States of Missouri or Delaware
having subject matter jurisdiction thereof and in which venue is
proper seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any
aspect thereof, including the legal or factual bases therefor,
and the company hereby consents to service of process and to
appear in any such proceeding. Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the
Company and Indemnitee.
4. Change in Control. If there is a Change in Control of
the Company (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who
were directors immediately prior to such Change in Control) then
(i) all determinations by the Company pursuant to the first
sentence of Section 3 hereof and Section 145 of the DGCL shall be
made pursuant to subparagraph (d)(1) or (d)(2) of Section 145 and
(ii) with respect to all matters thereafter arising concerning
the rights of Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or Company
Bylaw now or hereafter in effect relating to Claims for
Indemnifiable Events (including, but not limited to, any opinion
to be rendered pursuant to subparagraph (d)(2) of Section 145 of
the DGCL), the Company (including the Board of Directors) shall
seek legal advice from (and only from) special, independent
counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld), and who has not
otherwise performed services for the Company (or any subsidiary
of the Company) or an Acquiring Person (or any affiliate or
associate of such Acquiring Person) or Indemnitee within the last
five years (other than in connection with such matters). Unless
Indemnitee has theretofore selected counsel pursuant to this
Section 4 and such counsel has been approved by the Company, any
Approved Law Firm selected by Indemnitee shall be deemed to be
approved by the Company. Such counsel, among other things, shall
render its written opinion to the Company, the Board of Directors
and Indemnitee as to whether and to what extent the Indemnitee
would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the special,
independent counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto. As used in
this Agreement, the terms "affiliate" and "associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Act and in effect on
the date of this Agreement.
5. Establishment of Trust. In the event of a Potential
Change in Control, the Company shall, upon written request by
Indemnitee, create a trust for the benefit of Indemnitee and from
time to time upon written request of Indemnitee shall fund such
trust in an amount 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 relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any
and all Claims relating to an Indemnifiable Event from time to
time actually paid or claimed, reasonably anticipated or proposed
to be paid. The amount or amounts to be deposited in the trust
pursuant to the foregoing funding obligation shall be determined
by the Reviewing Party, in any case in which the special,
independent counsel referred to above is involved. The terms of
the trust shall provide that upon a Change in Control (i) the
trust shall not be revoked or the principal thereof invaded,
without the written consent of the Indemnitee, (ii) the trustee
shall advance, within two business days of a request by the
Indemnitee, any and all Expenses 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 3 hereof), (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 Indemnitee all amounts for which Indemnitee shall
be entitled to indemnification pursuant to this Agreement or
otherwise, and (v) all unexpended funds in such trust shall
revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be,
that Indemnitee has been fully indemnified under the terms of
this Agreement. The trustee shall be an institutional trustee
with a highly regarded, national reputation chosen by Indemnitee.
Nothing in this Section 5 shall relieve the Company of any of its
obligations under this Agreement.
6. Indemnification for Additional Expenses. The Company
shall indemnify Indemnitee against any and all expenses
(including attorneys' fees) and, if requested by Indemnitee,
shall (within two business days of such request) advance such
expenses to Indemnitee, which are incurred by Indemnitee in
connection with any claim asserted or action brought by
Indemnitee for (i) indemnification or advance payment of Expenses
by the Company under this Agreement or any other agreement or
Company Bylaw now or hereafter in effect relating to Claims for
Indemnifiable Events and/or (ii) recovery under any directors'
and officers' liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance
expense payment or insurance recovery, as the case may be.
7. Partial Indemnity, Etc. If Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Company for some or a portion of the Expenses, judgments, fines,
penalties and amounts paid in settlement of a Claim but not,
however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled. Moreover, 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 in whole or in part to an Indemnifiable
Event or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified, to
the extent permitted by law, against all Expenses incurred in
connection with such Indemnifiable Event.
8. Burden of Proof. In connection with any determination
by the Reviewing Party or otherwise as to whether Indemnitee is
entitled to be indemnified hereunder the burden of proof shall be
on the Company to establish that Indemnitee is not so entitled.
9. No Presumptions. For purposes of this Agreement, the
termination of any claim, action, suit or proceeding, whether
civil or criminal, by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption
that Indemnitee did not meet any particular standard of conduct
or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law.
10. Nonexclusivity, Etc. The rights of the Indemnitee
hereunder shall be in addition to any other rights Indemnitee may
have under the Company's Bylaws or the DGCL or otherwise. To the
extent that a change in the DGCL (whether by statute or judicial
decision) permits greater indemnification by agreement than would
be afforded currently under the Company's Bylaws and this
Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by
such change.
11. Liability Insurance. To the extent the Company
maintains an insurance policy or policies providing directors'
and officers' liability insurance, 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 director
or officer of the Company.
12. Period of Limitations. No legal action shall be
brought and no cause of action shall be asserted by or on behalf
of the Company against Indemnitee, Indemnitee's spouse, heirs,
executors 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 or any
affiliate 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 is otherwise applicable to any such cause of action
such shorter period shall govern.
13. Amendments, Etc. 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 effective unless in writing
and no written waiver shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar)
nor shall such waiver constitute a continuing wavier.
14. Subrogation. In the event of 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 papers required and shall do everything that may be
necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring
suit to enforce such rights.
15. No Duplication of Payments. The Company shall not be
liable under this Agreement to make any payment in connection
with any Claim made against Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance
policy, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
16. Specific Performance. The parties recognize that if
any provision of this Agreement is violated by the Company,
Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, the Indemnitee
shall be entitled, if Indemnitee so elects, to institute
proceedings, either in law or at equity, to obtain damages, to
enforce specific performance, to enjoin such violation, or to
obtain any relief or any combination of the foregoing as
Indemnitee may elect to pursue.
17. Binding Effect, Etc. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors, 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, assigns, spouses, heirs, executors, and
personal and legal representatives. This Agreement shall
continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or of any other
enterprise at the Company's request.
18. Severability. The provisions of this Agreement shall
be severable in the event that any of the provisions hereof
(including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable in any respect, and the
validity and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in
any way impaired and shall remain enforceable to the fullest
extent permitted by law.
19. 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 to be performed in
such state without giving effect to the principles of conflicts
of law.
IN WITNESS WHEREOF, the Company and Indemnitee have executed
this Agreement this 21st day of April, 1994.
VENTURE STORES, INC.
Dated June 10, 1994 By:/s/ Xxxxxx Xxxxxxxxx
Dated June 10, 1994 /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
