EXHIBIT 10.10
VINTAGE WINE TRUST INC.
FORM OF INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "AGREEMENT") made and entered into this
___ day of _____, 2005, by and between Vintage Wine Trust Inc., a Maryland
corporation (the "COMPANY"), and _____________ (the "INDEMNITEE").
WHEREAS, it is essential that the Company be able to retain and attract as
directors and officers the most capable persons available;
WHEREAS, the Company's Bylaws permit it to enter into indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide the Indemnitee with specific
contractual assurances of the Indemnitee's rights to full indemnification
against litigation risks and expenses (regardless, among other things, of any
amendment to or revocation of the Company's Bylaws or any change in the
ownership of the Company or the composition of its board of directors) and, to
the extent insurance is available, the coverage of the Indemnitee under the
Company's directors and officers liability insurance policies; and
WHEREAS, the Indemnitee is relying upon the rights afforded under this
Agreement in accepting Indemnitee's position as a director or officer of the
Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "CORPORATE STATUS" describes the status of a person who is serving or
has served (i) as a director, officer or employee of the Company, (ii) in any
capacity with respect to any employee benefit plan of the Company, or (iii) as a
director, partner, member, trustee, officer, employee, or agent of any other
Entity at the request of the Company.
(b) "ENTITY" shall mean any corporation, partnership, limited liability
company, joint venture, trust, foundation, association, organization or other
legal entity and any group or division of the Company or any of its
subsidiaries.
(c) "EXPENSES" shall mean all reasonable fees, costs and expenses actually
and reasonably incurred by the Indemnitee in connection with any Proceeding (as
defined below), including, without limitation, attorneys' fees, disbursements
and retainers (including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Sections 10 and 12 of this
Agreement), fees and disbursements of expert witnesses, private investigators
and professional advisors (including, without limitation, accountants), court
costs, transcript costs, fees of experts, travel expenses, duplicating, printing
and binding costs, telephone and fax transmission charges, postage, delivery
services, secretarial services, and other disbursements and expenses.
(d) "INDEMNIFIABLE EXPENSES," "INDEMNIFIABLE LIABILITIES" and
"INDEMNIFIABLE AMOUNTS" shall have the meanings ascribed to those terms in
Section 4 below.
(e) "LIABILITIES" shall mean judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts paid in settlement.
(f) "PROCEEDING" shall mean any threatened, pending or completed claim,
action, suit, arbitration, alternate dispute resolution process, investigation,
administrative hearing, appeal, or any other proceeding, whether civil,
criminal, administrative or investigative, whether formal or informal, including
a proceeding initiated by Indemnitee pursuant to Sections 10 and 12 of this
Agreement to enforce Indemnitee's rights hereunder.
2. Services of Indemnitee. In consideration of the Company's covenants and
commitments hereunder, Indemnitee agrees to serve as a director or officer of
the Company. However, this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee's service to the Company beyond
any period otherwise required by law or by other agreements or commitments of
the parties, if any.
3. Agreement to Indemnify. The Company shall indemnify Indemnitee, and advance
Indemnifiable Expenses to, Indemnitee (a) as specifically provided in this
Agreement and (b) otherwise to the fullest extent permitted by Maryland law in
effect on the date hereof and as amended from time to time; provided, however,
that no change in Maryland law shall have the effect of reducing the benefits
available to Indemnitee hereunder based on Maryland law as in effect on the date
hereof. The rights of Indemnitee provided in this Section shall include, but
shall not be limited to, the rights set forth in the other Sections of this
Agreement, including any additional indemnification permitted by Section
2-418(g) of the Maryland General Corporation Law (the "MGCL").
4. Proceedings Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he is, or is threatened to be,
made a party to any threatened, pending, or completed Proceeding, other than a
Proceeding by or in the right of the Company. Pursuant to this Section 4,
Indemnitee shall be indemnified by the Company against all Expenses and
Liabilities actually and reasonably incurred by him or on his behalf in
connection with a Proceeding by reason of his Corporate Status (referred to
herein as "INDEMNIFIABLE EXPENSES" and "INDEMNIFIABLE LIABILITIES,"
respectively, and collectively as "INDEMNIFIABLE AMOUNTS") unless it is
established that (i) the act or omission of the Indemnitee was material to the
matter giving rise to the Proceeding and (a) was committed in bad faith or (b)
was the result of active and deliberate dishonesty, (ii) the Indemnitee actually
received an improper personal benefit in money, property or services, or (iii)
in the case of any criminal Proceeding, the Indemnitee had reasonable cause to
believe that his conduct was unlawful.
5. Proceedings by or in the Right of the Company. Indemnitee shall be entitled
to the rights of indemnification provided in this Section 5 if, by reason of his
Corporate Status, he is made a party to 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 5, Indemnitee shall be indemnified against
all amounts paid in settlement and all Indemnifiable Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
unless it is established that (i) the act or omission of the Indemnitee was
material to the matter giving rise to such a Proceeding and (a) was committed in
bad faith or (b) was the result of active and deliberate dishonesty or (ii) the
Indemnitee actually received an improper personal benefit in money, property or
services; provided, however, that no indemnification against such Indemnifiable
Expenses shall be made in respect of any Proceeding in which Indemnitee shall
have been adjudged to be liable to the Company.
6. Court-Ordered Indemnification. A court of appropriate jurisdiction, upon
application of a director or officer and such notice as the court shall require,
may order indemnification in the following circumstances:
(a) if it determines a director or officer is entitled to Indemnifiable
Amounts under Section 2-418(d)(1) of the MGCL, the court shall order
indemnification, in which case the director or officer shall be entitled to
recover the expenses of securing such Indemnifiable Amounts; or
(b) if it determines that the director or officer is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not the director or officer (i) has met the standards of conduct set forth in
Section 2-418(b) of the MGCL or (ii) has been adjudged liable for receipt of an
improper personal benefit under Section 2-148(c) of the MGCL, the court may
order such indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right of the Company
or in which liability shall have been adjudged in the circumstances described in
Section 2-418(c) of the MGCL shall be limited to Indemnifiable Expenses.
7. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to
the Company a written request specifying the applicable Indemnifiable Amounts
for which Indemnitee seeks payment under this Agreement and the basis for the
claim. Subject to the exceptions set forth in Sections 4 and 5, the Company
shall pay such applicable Indemnifiable Amounts to Indemnitee within 20 calendar
days of receipt of the request. At the request of the Company, Indemnitee shall
furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to
indemnification hereunder.
8. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any
such provision to the extent that Indemnitee is, by reason of Indemnitee's
Corporate Status, a party to and is successful, on the merits or otherwise, in
any Proceeding, Indemnitee shall be indemnified for all Indemnifiable Expenses
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
therewith. Without limiting any other rights of Indemnitee in this Agreement, if
Indemnitee is not wholly successful in such Proceeding 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 for all
Indemnifiable Expenses reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection with each successfully resolved claim, issue or matter. For
purposes of this Agreement, 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.
9. Effect of Certain Resolutions. Neither the settlement nor termination of any
Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any Proceeding by judgment, order or settlement shall not create
a presumption that the act or omission of the Indemnitee was material to the
matter giving rise to the Proceeding and was committed in bad faith or was the
result of active and deliberate dishonesty or the Indemnitee actually received
an improper personal benefit in money, property or services or with respect to
any criminal action or proceeding, had reasonable cause to believe that
Indemnitee's action was unlawful. The termination of any Proceeding by
conviction, or upon a plea of nolo contendere or its equivalent, or an entry of
an order of probation prior to judgment, creates a rebuttable presumption that
the Indemnitee did not meet the requisite standard of conduct. In addition, the
termination of or resignation by Indemnitee shall not create an adverse
presumption that Indemnitee is not entitled to indemnification hereunder.
10. Agreement to Advance Interim Expenses. The Company shall pay to Indemnitee
all Indemnifiable Expenses incurred by Indemnitee in connection with any
Proceeding, including a Proceeding by or in the right of the Company, in advance
of the final disposition of such Proceeding, if Indemnitee furnishes the Company
with a written affirmation by the Indemnitee of the Indemnitee's good faith
belief that the standard of conduct necessary for indemnification by the Company
has been met and a written undertaking by or on behalf of the Indemnitee to
repay the amount of such Indemnifiable Expenses advanced to Indemnitee if it is
finally determined by a court of competent jurisdiction that Indemnitee is not
entitled under this Agreement to indemnification with respect to such
Indemnifiable Expenses. The terms and conditions of such undertaking shall be
determined by a quorum of the disinterested members of the Company's board of
directors, if any, acting in good faith and as required by the proper exercise
of their duties or, if not available, then by the written opinion of independent
legal counsel or by the Company's stockholders.
11. Procedure for Payment of Interim Expenses. Indemnitee shall submit to the
Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 10 of this Agreement, together
with documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 10 shall be made no
later than 20 calendar days after the Company's receipt of such request and the
affirmation and undertaking required by Section 10.
12. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request
for payment of Indemnifiable Amounts under Sections 4 and 5 above or a request
for an advancement of Indemnifiable Expenses under Sections 10 and 11 above and
the Company fails to make such payment or advancement in a timely manner
pursuant to the terms of this Agreement, Indemnitee may petition the appropriate
judicial authority to enforce the Company's obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section 12(a)
above, the Company shall have the burden of proving that Indemnitee is not
entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any
Expenses incurred by Indemnitee in connection with investigating, preparing for,
litigating, defending or settling any action brought by Indemnitee under Section
12(a) above, or in connection with any claim or counterclaim brought by the
Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded from asserting in
any Proceeding, including, without limitation, an action under Section 12(a)
above, that the provisions of this Agreement are not valid, binding and
enforceable or that there is insufficient consideration for this Agreement and
shall stipulate in court that the Company is bound by all the provisions of this
Agreement.
(e) Failure to Act Not a Defense. The failure of the Company (including its
board of directors or any committee thereof, independent legal counsel, or
stockholders) to make a determination concerning the permissibility of the
payment of Indemnifiable Amounts or the advancement of Indemnifiable Expenses
under this Agreement shall not be a defense in any action brought under Section
12(a) above, and shall not create a presumption that such payment or advancement
is not permissible.
13. Representations and Warranties of the Company. The Company hereby represents
and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary corporate power and authority
to enter into, and be bound by the terms of, this Agreement, and the execution,
delivery and performance of the undertakings contemplated by this Agreement have
been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the
Company in accordance with the provisions hereof, shall be a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the
enforcement of creditors' rights generally or general equitable principles, and
to the extent limited by applicable federal or state securities laws.
14. Insurance. The Company will use commercially reasonable efforts to obtain
and maintain a policy or policies of insurance with reputable insurance
companies providing the members of the Company's board of directors with
coverage for losses from wrongful acts, and to ensure the Company's performance
of its indemnification obligations under this Agreement. In all policies of
director and officer liability insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee at least the same rights and
benefits as are accorded to the most favorably insured of the Company's officers
and directors.
Notwithstanding the foregoing, if the Company, after employing commercially
reasonable efforts as provided in this Section, determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, or if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, the Company shall use its commercially reasonable efforts
to obtain and maintain a policy or policies of insurance with coverage having
features as similar as practicable to those described above.
15. Fees and Expenses. During the term of the Indemnitee's service as a director
or officer, the Company shall promptly reimburse the Indemnitee for all expenses
incurred by him in connection with his service as a director or officer or
member of any board committee or otherwise in connection with the Company's
business.
16. Contract Rights Not Exclusive. The rights to payment of Indemnifiable
Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which Indemnitee
may have at any time under applicable law, the Company's Bylaws, as amended,
Charter, or any other agreement, vote of stockholders or directors, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in any other capacity as a result of Indemnitees's serving as a director or
officer of the Company.
17. Successors.
(a) This Agreement shall be (i) binding upon all successors and assigns of
the Company (including any transferee of all or a substantial portion of the
business, stock and/or assets of the Company and any direct or indirect
successor by merger or consolidation or otherwise by operation of law) and (ii)
binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee.
(b) This Agreement shall continue until and terminate ten years after the
date that Indemnitee's Corporate Status shall have ceased; provided, that the
rights of Indemnitee hereunder shall continute until the final termination of
any Proceeding then pending in respect of which Indemnitee is granted rights of
indemnification or advance of Expenses hereunder and of any proceeding commenced
by Indemnitee pursuant to Section 10 of this Agreement relating thereto.
18. Subrogation. In the event of any payment of Indemnifiable Amounts under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of contribution or recovery of Indemnitee against other persons,
and Indemnitee shall take, at the request of the Company, all reasonable action
necessary to secure such rights, including the execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
19. Change in Law. To the extent that a change in applicable law (whether by
statute or judicial decision) shall permit broader indemnification than is
provided under the terms of the Charter, as amended, or Bylaws of the Company,
as amended, and this Agreement, Indemnitee shall be entitled to such broader
indemnification and this Agreement shall be deemed to be amended to such extent.
20. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement, or any clause thereof, shall be
determined by a court of competent jurisdiction to be illegal, invalid or
unenforceable, in whole or in part, such provision or clause shall be limited or
modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
21. Indemnitee as Plaintiff. Except as provided in Sections 10 and 12 of this
Agreement and in the next sentence, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any director or officer thereof, or any third party, unless (a) the
Proceeding is brought to enforce indemnification under this Agreement or
otherwise or (b) the Company's Bylaws, as amended, the Charter, a resolution of
the Company's board of directors or an agreement approved by the Company's board
of directors to which the Company is party expressly provide otherwise. This
Section shall not apply to affirmative defenses asserted by Indemnitee in an
action brought against Indemnitee.
22. Modifications and Waiver. Except as provided in Section 19 above with
respect to changes in applicable law which broaden the right of Indemnitee to be
indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each 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 of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
23. General Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a)
when delivered by hand, (b) when transmitted by facsimile and receipt is
acknowledged, or (c) if mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
(i) If to Indemnitee, to:
Name:
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Address:
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Phone:
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Facsimile:
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(ii) If to the Company, to:
Vintage Wine Trust Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. Shell
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ Chance US LLP
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Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
or to such other address as may have been furnished in the same manner by
any party to the others.
24. Governing Law. This Agreement shall be governed by and construed and
enforced under the laws of Maryland without giving effect to the provisions
thereof relating to conflicts of law.
25. Agreement Governs. This Agreement is to be deemed consistent wherever
possible with relevant provisions of the Company's Bylaws, as amended, and
Charter; however, in the event of a conflict between this Agreement and such
provisions, the provisions of this Agreement shall control.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the day and year first above written.
COMPANY:
VINTAGE WINE TRUST INC.
By:
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Name:
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Title:
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INDEMNITEE:
By:
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