WRIGHT EXPRESS CORPORATION INDEMNIFICATION AGREEMENT
Exhibit 10.1
▇▇▇▇▇▇ EXPRESS CORPORATION
This Agreement is made by and between ▇▇▇▇▇▇ Express Corporation, a Delaware corporation (the
“Corporation), and [DIRECTOR’S NAME] (the “Indemnitee”), a director of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as directors the most
capable persons available, and
WHEREAS, the increase in corporate litigation subjects directors to expensive litigation
risks, and
WHEREAS, it is now and has always been the policy of the Corporation to indemnify its
directors, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to serve, as a director
of the Corporation.
NOW THEREFORE, the Corporation and the Indemnitee do hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) The term “Change in Control” shall mean the occurrence of any one of the following:
(i) individuals who, on the date of this Agreement, constitute the Board (the “Incumbent
Directors”) cease for any reason to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date of this Agreement whose election or nomination
for election was approved by a vote of at least a majority of the Directors then on the Board
(either by a specific vote or by approval of the proxy statement of the Corporation in which such
person is named as a nominee for director, without written objection to such nomination) shall be
an Incumbent Director; provided, however, that no individual initially elected or nominated as a
director of the Corporation as a result of an actual or threatened election contest with respect to
directors or as a result of any other actual or threatened solicitation of proxies by or on behalf
of any person other than the Board shall be deemed to be an Incumbent Director;
(ii) any “person” (as such term is defined in the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or
becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 50% or more of the combined voting power
of the Corporation’s then outstanding securities eligible to vote for the election of the Board
(the “Corporation Voting Securities”); provided, however, that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control by virtue of any of the following
acquisitions: (A) by the Corporation or any subsidiary, (B) by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any
subsidiary, (C) by any underwriter temporarily holding securities pursuant to an offering of
such securities, (D) pursuant to a Non-Qualifying Transaction, as defined in paragraph (iii), or
(E) by any person of Voting Securities from the Corporation, if a majority of the Incumbent Board
approves in advance the acquisition of beneficial ownership of 50% or more of Corporation Voting
Securities by such person;
(iii) the consummation of a merger, consolidation, statutory share exchange, reorganization or
similar form of corporate transaction involving the Corporation or any of its subsidiaries that
requires the approval of the Corporation’s stockholders, whether for such transaction or the
issuance of securities in the transaction (a “Business Combination”), unless immediately following
such Business Combination: (A) more than 50% of the total voting power of (x) the corporation
resulting from such Business Combination (the “Surviving Corporation”), or (y) if applicable, the
ultimate parent corporation that directly or indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors of the Surviving Corporation (the “Parent
Corporation”), is represented by Corporation Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, is represented by shares into which such
Corporation Voting Securities were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same proportion as the voting power
of such Corporation Voting Securities among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit plan (or related trust) sponsored or
maintained by the Surviving Corporation or the Parent Corporation), is or becomes the beneficial
owner, directly or indirectly, of 35% or more of the total voting power of the outstanding voting
securities eligible to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least half of the members of the board of
directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination were Incumbent Directors at the
time of the Board’s approval of the execution of the initial agreement providing for such Business
Combination (any Business Combination which satisfies all of the criteria specified in (A), (B) and
(C) above shall be deemed to be a “Non-Qualifying Transaction”);
(iv) the stockholders of the Corporation approve a plan of complete liquidation or dissolution
of the Corporation;
(v) the consummation of a sale of all or substantially all of the Corporation’s assets; or
(vi) the occurrence of any other event that the Board determines by a duly approved resolution
constitutes a Change in Control.
(b) The term “Corporate Status” shall mean the status of a person who is or was, or has agreed
to become, a director of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director of, or in a similar capacity with, another corporation,
partnership, joint venture, trust, limited liability company or other enterprise.
(c) The term “Expenses” shall include, without limitation, attorneys’ fees, retainers, court
costs, transcript costs, fees and expenses of experts, travel expenses, duplicating
-2-
costs, printing and binding costs, telephone charges, postage, delivery service fees and other
disbursements or expenses of the types customarily incurred in connection with investigations,
judicial or administrative proceedings or appeals, but shall not include the amount of judgments,
fines or penalties against Indemnitee or amounts paid in settlement in connection with such
matters.
(d) The term “Independent Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither currently is, nor in the past five years has
been, retained to represent: (i) the Corporation or the Indemnitee in any matter material to
either such party 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 either the Corporation or the Indemnitee in an
action to determine the Indemnitee’s rights under this Agreement. The Corporation agrees to pay
the reasonable fees and expenses of the Independent Counsel referred to above and to 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.
(e) 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 Corporation” shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan, its participants,
or beneficiaries; and a person who acted in good faith and in a manner such person reasonably
believed to be in the interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as
referred to in this Agreement.
(f) The term “Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternative dispute resolution proceeding, administrative hearing or other proceeding,
whether brought by or in the right of the Corporation or otherwise and whether of a civil,
criminal, administrative or investigative nature, and any appeal therefrom.
2. Indemnity of Indemnitee. The Corporation shall indemnify the Indemnitee in
connection with any Proceeding as to which the Indemnitee is, was or is threatened to be made a
party (or is otherwise involved) by reason of the Indemnitee’s Corporate Status, to the fullest
extent permitted by law (as such may be amended from time to time). In furtherance of the
foregoing and without limiting the generality thereof:
(a) Indemnification in Third-Party Proceedings. The Corporation shall indemnify the
Indemnitee in accordance with the provisions of this Section 2(a) if the Indemnitee was or is a
party to or threatened to be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a judgment in its favor or a Proceeding
referred to in Section 5 below) by reason of the Indemnitee’s Corporate Status or by reason of any
action alleged to have been taken or omitted in connection therewith, against all Expenses,
judgments, fines, penalties and amounts paid in settlement actually and reasonably incurred by or
on behalf of the Indemnitee in connection with such Proceeding, if the Indemnitee
-3-
acted in good faith and in a manner which the Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Corporation and, with respect to any criminal Proceeding, had
no reasonable cause to believe that his or her conduct was unlawful.
(b) Indemnification in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify the Indemnitee in accordance with the provisions of this Section 2(b)
if the Indemnitee was or is a party to or threatened to be made a party to or otherwise involved in
any Proceeding by or in the right of the Corporation to procure a judgment in its favor by reason
of the Indemnitee’s Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses and, to the extent permitted by law, amounts
paid in settlement actually and reasonably incurred by or on behalf of the Indemnitee in connection
with such Proceeding, if the Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Corporation, except
that, if applicable law so requires, no indemnification shall be made under this Section 2(b) in
respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged to be
liable to the Corporation, unless, and only to the extent, that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of such liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as the Court of
Chancery or such other court shall deem proper.
3. Indemnification of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been successful, on the merits
or otherwise, in defense of any Proceeding or in defense of any claim, issue or matter therein
(other than a Proceeding referred to in Section 5), the Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection
therewith.
4. Indemnification for Expenses of a Witness. To the extent that the Indemnitee is,
by reason of the Indemnitee’s Corporate Status, a witness in any Proceeding to which the Indemnitee
is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by or on behalf of the Indemnitee in connection therewith.
5. Exceptions to Right of Indemnification. Notwithstanding anything to the contrary
to this Agreement, except as set forth in Section 9,
(a) the Corporation shall not indemnify the Indemnitee under this Agreement in connection with
a Proceeding (or part thereof) initiated by the Indemnitee unless (i) the initiation thereof was
approved by the Board of Directors of the Corporation or (ii) the Proceeding was commenced
following a Change in Control; and
(b) the Corporation shall not indemnify the Indemnitee to the extent the Indemnitee is
reimbursed from the proceeds of insurance, and in the event the Corporation makes any
indemnification payments to the Indemnitee and the Indemnitee is subsequently reimbursed from the
proceeds of insurance, the Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
-4-
6. Notification and Defense of Claim.
(a) The Indemnitee shall notify the Corporation in writing as soon as practicable of any
Proceeding for which indemnity will or could be sought and provide the Corporation with a copy of
any summons, citation, subpoena, complaint, indictment, information or other document relating to
such Proceeding with which Indemnitee is served. The failure to so notify the Corporation will not
relieve the Corporation from any liability that it may have to Indemnitee (i) except to the extent
the failure adversely affects the Corporation’s rights, legal position, ability to defend or
ability to obtain insurance coverage with respect to such proceeding or (ii) otherwise than under
the Corporation’s Certificate of Incorporation. With respect to any Proceeding of which the
Corporation is so notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee (which may be regular outside counsel to the Corporation). After
notice from the Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other expenses subsequently
incurred by the Indemnitee in connection with such Proceeding, other than as provided below in this
Section 6. The Indemnitee shall have the right to employ his or her own counsel in connection with
such Proceeding, but the fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by the Corporation, (ii)
counsel to the Indemnitee shall have reasonably determined that there may be a conflict of interest
or position on any significant issue between the Corporation and the Indemnitee in the conduct of
the defense of such Proceeding or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such Proceeding, in each of which cases the fees and expenses of counsel for
the Indemnitee shall be at the expense of the Corporation, except as otherwise expressly provided
by this Agreement, and provided that Indemnitee’s counsel shall cooperate reasonably with the
Corporation’s counsel to minimize the cost of defending claims against the Corporation and the
Indemnitee. The Corporation shall not be entitled, without the consent of the Indemnitee, to
assume the defense of any claim brought by or in the right of the Corporation or as to which
counsel for the Indemnitee shall have reasonably made the determination provided for in clause (ii)
above.
(b) The Corporation shall not be required to indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of any Proceeding effected without its written consent. The
Corporation shall not settle any Proceeding in any manner that would impose any penalty or
limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Corporation nor
the Indemnitee will unreasonably withhold or delay their consent to any proposed settlement.
7. Advancement of Expenses. Subject to the provisions of Section 8, in the event that
(a) the Corporation does not assume the defense pursuant to Section 6 of any Proceeding of which
the Corporation receives notice under this Agreement or (b) the Corporation assumes such defense
but Indemnitee is, pursuant to Section 6, entitled to have the fees and costs of Indemnitee’s own
counsel paid for by the Corporation, any Expenses actually and reasonably incurred by or on behalf
of the Indemnitee in connection with a Proceeding for which indemnity will or could be sought under
this Agreement shall be paid by the Corporation in advance of the final disposition of such
Proceeding; provided, however, that the payment of such Expenses
-5-
incurred by or on behalf of the Indemnitee in advance of the final disposition of such
Proceeding shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to
repay all amounts so advanced in the event that it shall ultimately be determined, after the
conclusion of such Proceeding, after that the Indemnitee is not entitled to be indemnified by the
Corporation as authorized in this Agreement. Such undertaking shall be accepted without reference
to the financial ability of the Indemnitee to make repayment. Any advances and undertakings to
repay pursuant to this Section 7 shall be unsecured and interest-free.
8. Procedures.
(a) In order to obtain indemnification or advancement of Expenses pursuant to this Agreement,
the Indemnitee shall submit to the Corporation a written request, including in such request such
documentation and information as is reasonably available to the Indemnitee and is reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to indemnification or
advancement of Expenses. Any such indemnification or advancement of Expenses shall be made
promptly, and in any event within (i) in the case of advancement of Expenses under Section 7, 30
calendar days after receipt by the Corporation of the written request of the Indemnitee, or (ii) in
the case of all other indemnification, 60 calendar days after receipt by the Corporation of the
written request of the Indemnitee, subject to the provisions of Sections 8(b) and (c) below.
(b) With respect to requests for indemnification under Section 2, indemnification shall be
made unless the Corporation determines that Indemnitee has not met the applicable standard of
conduct set forth in Section 2. Any determination as to whether Indemnitee has met the applicable
standard of conduct set forth in Section 2, and any determination that advanced Expenses must be
subsequently repaid to the Corporation, shall be made, in the discretion of the Board of Directors
of the Corporation, (1) by a majority vote of the directors of the Corporation consisting of
persons who are not at that time parties to the Proceeding (“disinterested directors”), whether or
not a quorum, (2) by a committee of disinterested directors designated by a majority vote of
disinterested directors, whether or not a quorum, (3) if there are no disinterested directors, or
if the disinterested directors so direct, by Independent Counsel in a written opinion to the Board,
or (4) by the stockholders of the Corporation. Any such determination with respect to requests
under Section 2 shall be made within the 60-day period referred to in clause (ii) of Section 8(a)
(unless extended by mutual agreement by the Corporation and Indemnitee). For the purpose of the
foregoing determination with respect to requests under Section 2 or repayment of advanced Expenses,
the Indemnitee shall be entitled to a presumption that he or she has met the applicable standard of
conduct set forth in Section 2 and is entitled to indemnification.
(c) Notwithstanding anything to the contrary set forth in this Agreement, if a request for
indemnification is made after a Change in Control, at the election of the Indemnitee made in
writing to the Corporation, any determination required to be made pursuant to Section 8(b) above as
to whether the Indemnitee has met the applicable standard of conduct or is required to repay
advanced Expenses shall be made by Independent Counsel selected as provided in this Section 8(c).
The Independent Counsel shall be selected by the Indemnitee, unless the Indemnitee shall request
that such selection be made by the Board of Directors of the Corporation. The party making the
determination shall give written notice to the other party
-6-
advising it of the identity of the Independent Counsel so selected. The party receiving such
notice may, within seven days after such written notice of selection shall have been given, deliver
to the other party a written objection to such selection. 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 1, 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 a written objection is made, the Independent Counsel so selected may not
serve as Independent Counsel unless and until a court has determined that such objection is without
merit. If, within 20 days after submission by the Indemnitee of a written request for
indemnification, no Independent Counsel shall have been selected or if selected, shall have been
objected to, in accordance with this paragraph either the Corporation or the Indemnitee may
petition the Court of Chancery of the State of Delaware or other court of competent jurisdiction
for resolution of any objection which shall have been made by the Corporation or the Indemnitee to
the other’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 an objection is favorably resolved or the person so appointed shall act as
Independent Counsel. The Corporation shall pay the reasonable fees and expenses of Independent
Counsel incurred in connection with its acting in such capacity. The Corporation shall pay any and
all reasonable and necessary fees and expenses incident to the procedures of this paragraph,
regardless of the manner in which such Independent Counsel was selected or appointed.
(d) The termination of any Proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
Indemnitee did not act in good faith and in a manner that the Indemnitee reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal
Proceeding, had reasonable cause to believe that his or her conduct was unlawful.
(e) 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 Corporation or its affiliates, including financial
statements, or on information supplied to Indemnitee by the officers of the Corporation or its
affiliates in the course of their duties, or on the advice of legal counsel for the Corporation or
its affiliates or on information or records given or reports made to the Corporation or its
affiliates by an independent certified public accountant or by an appraiser or other expert
selected with the reasonable care by the Corporation or its affiliates. The provisions of this
Section 8(e) 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.
(f) The knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Corporation or its affiliates shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
(g) The Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to the Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any documentation
-7-
or information which is not privileged or otherwise protected from disclosure and which is
reasonably available to the Indemnitee and reasonably necessary to such determination. Any
Expenses actually and reasonably incurred by the Indemnitee in so cooperating shall be borne by the
Corporation (irrespective of the determination as to the Indemnitee’s entitlement to
indemnification) and the Corporation hereby indemnifies the Indemnitee therefrom.
9. Remedies.
(a) The right to indemnification and advancement of Expenses as provided by this Agreement
shall be enforceable by Indemnitee in any court of competent jurisdiction or, at Indemnitee’s
option, by a single arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. If Indemnitee elects arbitration, the arbitration shall take place in
[Portland, Maine]. Any such judicial proceeding or arbitration shall be conducted in all respects
as a de novo trial or arbitration on the merits.
(b) In connection with any determination as to whether the Indemnitee is entitled to be
indemnified under this Agreement, the court or arbitrator shall presume that the Indemnitee has met
the applicable standard of conduct and is entitled to indemnification, and, unless otherwise
required by law, the burden of proof shall be on the Corporation to establish by clear and
convincing evidence that the Indemnitee is not so entitled. Neither the failure of the Board of
Directors (or other person or body appointed pursuant to Section 8) to have made a determination
that indemnification is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination pursuant to Section 8 that Indemnitee has not met
such applicable standard of conduct, shall be a defense to an action brought to enforce this
Agreement or create a presumption that Indemnitee has not met the applicable standard of conduct.
(c) The Corporation shall indemnify Indemnitee against any and all Expenses that are incurred
by Indemnitee in connection with any action brought by Indemnitee for (i) indemnification or
advancement of Expenses by the Corporation under this Agreement or under applicable law or the
Corporation’s Certificate of Incorporation or Bylaws now or hereafter in effect relating to
indemnification, and/or (ii) recovery under directors’ and officers’ liability insurance policies
maintained by the Corporation, but only in the event that Indemnitee ultimately is determined to be
entitled to such indemnification or insurance recovery, as the case may be. The Corporation shall,
if so requested by Indemnitee, advance the foregoing Expenses to Indemnitee, subject to and in
accordance with Section 7.
10. Partial Indemnification. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for some or a portion of the Expenses,
judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by or on
behalf of the Indemnitee in connection with any Proceeding but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, fines, penalties or amounts paid in settlement to which the Indemnitee is
entitled.
11. Subrogation. In the event of any payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of recovery of the
-8-
Indemnitee, who shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the Corporation to bring
suit to enforce such rights.
12. Term of Agreement. This Agreement shall continue until and terminate upon the
later of (a) ten years after the date that the Indemnitee shall have ceased to serve as a director
or officer of the Corporation or, at the request of the Corporation, as a director of, or in a
similar capacity with, another corporation, partnership, joint venture, trust, limited liability
company or other enterprise or (b) the final termination of all Proceedings pending on the date set
forth in clause (a) in respect of which the Indemnitee is granted rights of indemnification or
advancement of Expenses hereunder and of any proceeding commenced by the Indemnitee pursuant to
Section 9 of this Agreement relating thereto.
13. Indemnification Hereunder Not Exclusive. The indemnification and advancement of
Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Certification of Incorporation, the By-Laws, any other
agreement, any vote of stockholders or disinterested directors, the General Corporation Law of
Delaware, any other law (common or statutory), or otherwise, both as to action in the Indemnitee’s
official capacity and as to action in another capacity while holding office for the Corporation.
Nothing contained in this Agreement shall be deemed to prohibit the Corporation from purchasing and
maintaining insurance, at its expense, to protect itself or the Indemnitee against any expense,
liability or loss incurred by it or the Indemnitee in any such capacity, or arising out of the
Indemnitee’s status as such, whether or not the Indemnitee would be indemnified against such
expense, liability or loss under this Agreement.
14. No Special Rights. Nothing herein shall confer upon the Indemnitee any right to
continue to serve as a director of the Corporation for any period of time or at any particular rate
of compensation.
15. Savings Clause. If this Agreement or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify the Indemnitee as to Expenses, judgments, fines, penalties and amounts paid in settlement
with respect to any Proceeding to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated and to the fullest extent permitted by applicable
law.
16. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall constitute the original.
17. Successors and Assigns. This Agreement shall be binding upon the Corporation and
its successors and assigns and shall inure to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
18. 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.
-9-
19. Modification and Waiver. This Agreement may be amended from time to time to
reflect changes in Delaware law or for other reasons. 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 provision hereof nor shall any such waiver constitute a continuing waiver.
20. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been given (i) when delivered by hand or (ii) if mailed
by certified or registered mail with postage prepaid, on the third day after the date on which it
is so mailed:
(a) if to the Indemnitee, to:
|
[NAME OF DIRECTOR] c/▇ ▇▇▇▇▇▇ Express Corporation ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ |
|
(b) if to the Corporation, to:
|
▇▇▇▇▇▇ Express Corporation ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ |
or to such other address as may have been furnished to the Indemnitee by the Corporation or to the
Corporation by the Indemnitee, as the case may be.
21. Applicable Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware. The Indemnitee may elect to have the right
to indemnification or reimbursement or advancement of Expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in
effect at the time such indemnification or reimbursement or advancement of Expenses is sought.
Such election shall be made, by a notice in writing to the Corporation, at the time indemnification
or reimbursement or advancement of Expenses is sought; provided, however, that if
no such notice is given, and if the General Corporation Law of Delaware is amended, or other
Delaware law is enacted, to permit further indemnification of directors, then the Indemnitee shall
be indemnified to the fullest extent permitted under the General Corporation Law, as so amended, or
by such other Delaware law, as so enacted.
22. Enforcement. The Corporation expressly confirms and agrees that it has entered
into this Agreement in order to induce the Indemnitee to continue to serve as an officer or
director of the Corporation, and acknowledges that the Indemnitee is relying upon this Agreement in
continuing in such capacity.
23. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supercedes all prior agreements,
whether oral or written, by any officer, employee or representative of any party hereto in respect
of the subject matter contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and cancelled. For avoidance of doubt,
-10-
the parties confirm that the foregoing does not apply to or limit the Indemnitee’s rights
under Delaware law or the Corporation’s Certificate of Incorporation or By-Laws.
24. Consent to Suit. In the case of any dispute under or in connection with this
Agreement, the Indemnitee may only bring suit against the Corporation in the Court of Chancery of
the State of Delaware. The Indemnitee hereby consents to the exclusive jurisdiction and venue of
the courts of the State of Delaware, and the Indemnitee hereby waives any claim the Indemnitee may
have at any time as to forum non conveniens with respect to such venue. The Corporation shall have
the right to institute any legal action arising out of or relating to this Agreement in any court
of competent jurisdiction. Any judgment entered against either of the parties in any proceeding
hereunder may be entered and enforced by any court of competent jurisdiction.
25. Contribution. To the fullest extent permissible by applicable law, if the
indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Corporation, 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 the circumstances of such Proceeding in order to reflect (i) the relative benefits
received by the Corporation 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 Corporation (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
| ▇▇▇▇▇▇ EXPRESS CORPORATION | ||||||||||||
By:
|
Date: | |||||||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||||
| Title: | Chief Executive Officer and President | |||||||||||
| INDEMNITEE: | ||||||||||||
| Date: | ||||||||||||
-11-