Sport Chalet, Inc. INDEMNIFICATION AGREEMENT
Exhibit 10.3
Sport Chalet, Inc.
This Indemnification Agreement (the “Agreement”), dated as of
, 200 is made and
effective as of the date set forth in Section 14 of the Agreement, by and between Sport Chalet,
Inc., a Delaware corporation (the “Corporation”), and , a director and/or officer of the
Corporation (the “Indemnitee”).
RECITALS
A. The Corporation and the Indemnitee recognize that the present state of the law relating to
director and officer liability is too uncertain to provide the Corporation’s directors and officers
with adequate and reliable advance knowledge or guidance with respect to the legal risks and
potential liabilities to which they may become personally exposed as a result of performing their
duties for the Corporation;
B. The Corporation and the Indemnitee are aware of the substantial growth in the number of
lawsuits filed against corporate directors and officers in connection with their activities in such
capacities and by reason of their status as such;
C. The Corporation and the Indemnitee recognize that the cost of defending against such
lawsuits, whether or not meritorious, is typically beyond the financial resources of most directors
and officers of the Corporation;
D. The Corporation and the Indemnitee recognize that the legal risks and potential
liabilities, and the threat thereof, associated with proceedings filed against the directors and
officers of the Corporation bear no reasonable relationship to the amount of compensation received
by the Corporation’s directors and officers;
E. The Corporation, after reasonable investigation prior to the date hereof, has determined
that the liability insurance coverage available to the Corporation as of the date hereof is
inadequate, unreasonably expensive or both. The Corporation believes, therefore, that the interest
of the Corporation’s stockholders would be best served by a combination of (i) such insurance as
the Corporation may elect to obtain as provided in Section 8 below and (ii) a contract with its
directors and officers, including the Indemnitee, to indemnify them to the fullest extent permitted
by law (as in effect on the date hereof, or, to the extent any amendment may expand such permitted
indemnification, as hereafter in effect) against personal liability for actions taken in the
performance of their duties to the Corporation;
F. The Corporation’s Certificate of Incorporation and Bylaws authorize the indemnification of
the directors and officers of the Corporation, subject to the limitations set forth in Section 145
of the Delaware General Corporation Law (the “DGCL”);
G. The Board of Directors of the Corporation has concluded that, to retain and attract
talented and experienced individuals to serve as directors and officers of the Corporation and to
encourage such individuals to take the business risks necessary for the
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success of the Corporation, it is necessary for the Corporation to contractually indemnify its
directors and officers, and to assume for itself liability for expenses and damages in connection
with certain claims against such directors and officers in connection with their service to the
Corporation, and has further concluded that the failure to provide such contractual indemnification
could result in great harm to the Corporation and its stockholders;
H. The Corporation desires and has requested the Indemnitee to serve or continue to serve as a
director or officer of the Corporation, free from undue concern for the risks and potential
liabilities associated with such services to the Corporation; and
I. The Indemnitee is willing to serve, or continue to serve, the Corporation, provided, and on
the expressed condition, that he or she is furnished with the indemnification provided for herein.
AGREEMENT
NOW, THEREFORE, the Corporation and Indemnitee agree as follows:
1. Definitions.
a. “Expenses” means, for the purposes of this Agreement, all direct and indirect
costs of any
type or nature whatsoever (including, without limitation, any fees and disbursements of
Indemnitee’s counsel, accountants and other experts and other out-of-pocket costs) actually and
reasonably incurred by the Indemnitee in connection with the investigation, preparation, defense or
appeal of a Proceeding; provided, however, that Expenses shall not include judgments, fines,
penalties or amounts paid in settlement of a Proceeding.
b. “Other enterprise” includes, for the purposes of this Agreement, employee benefit
plans;
references to “fines” includes any excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and references to “serving at the request of the Corporation” includes 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 its beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the
best interests of the Corporation” as referred to in this Agreement.
c. “Proceeding” means, for the purposes of this Agreement, any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(including an action brought by or in the right of the Corporation) in which Indemnitee may be or
may have been involved as a party or otherwise, by reason of the fact that Indemnitee is or was a
director or officer of the Corporation, by reason of any action taken by Indemnitee or of any
inaction on Indemnitee’s part while acting as such director or officer or by reason of the fact
that Indemnitee is or was serving at the request of the Corporation as a director, officer,
employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director and/or officer of the foreign or domestic corporation which was
a predecessor corporation to the Corporation or of another enterprise at the request of such
predecessor corporation, whether or not Indemnitee is serving in such
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capacity at the time any liability or expense is incurred for which indemnification or
reimbursement can be provided under this Agreement.
2. Agreement to Serve. In consideration of the protection afforded by this Agreement,
if Indemnitee is a director of the Corporation, Indemnitee agrees to serve at least for the balance
of the current term as a director and not to resign voluntarily during such period without the
written consent of a majority of the Board of Directors. If Indemnitee is an officer of the
Corporation not serving under an employment contract, Indemnitee agrees to serve in such capacity
at least for the balance of the current fiscal year of the Corporation and not to resign
voluntarily during such period without the written consent of a majority of the Board of Directors.
Following the applicable period set forth above, Indemnitee agrees to serve or continue to serve
in such capacity as a director or officer of the Corporation to the best of his or her abilities at
the will of the Corporation or under separate contract, if such contract exists, for so long as
Indemnitee is duly elected or appointed and qualified or until such time as Indemnitee tenders his
or her resignation in writing. Nothing contained in this Agreement is intended to create in
Indemnitee any right to continued employment.
3. Indemnification.
a. Third Party Proceedings. The Corporation shall, except to the extent prohibited by
the DGCL or any other applicable law, rule, regulation or order, indemnify Indemnitee against
Expenses, judgments, fines, penalties or amounts paid in settlement (if the settlement is approved
in advance by the Corporation) actually and reasonably incurred by Indemnitee in connection with a
Proceeding (other than a Proceeding by or in the right of the Corporation) if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee’s conduct was unlawful. 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 Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal Proceeding, had no reasonable cause to believe
that Indemnitee’s conduct was unlawful.
b. Proceedings by or in the Right of the Corporation. To the fullest extent permitted
by law, the Corporation shall indemnify Indemnitee against Expenses and amounts paid in settlement
actually and reasonably incurred by Indemnitee in connection with a Proceeding by or in the right
of the Corporation to procure a judgment in its favor if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Corporation. Notwithstanding the foregoing, no indemnification shall be made 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 or the court in which the
proceeding is or was pending shall determine upon application that, in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for
expenses and then only to the extent that the court shall determine.
c. Scope. Notwithstanding any other provision of this Agreement but subject to
Section 13(b), the Corporation shall indemnify the Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification is not specifically authorized by
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other provisions of this Agreement, the Corporation’s Certificate of Incorporation, the Corporation’s Bylaws or by
statute.
4. Determination of Right to Indemnification. Upon receipt of a written claim
addressed to the Board of Directors for indemnification pursuant to Section 3, the Corporation
shall determine by any of the methods set forth in Section 145 of the DGCL whether Indemnitee has
met the applicable standards of conduct which make it permissible under applicable law to indemnify
Indemnitee. If a claim under Section 3 is not paid in full by the Corporation within thirty (30)
days after such written claim has been received by the Corporation or if applicable, whatever time
is reasonably necessary for the Corporation to complete the investigation contemplated in Section 3
of this Agreement, the Indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. The Indemnitee’s Expenses incurred in connection with
successfully establishing his or her right to indemnification or advances, in whole or in part, in
any such Proceeding shall also be indemnified by the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to
make a determination prior to the commencement of such action that indemnification of the
Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of
conduct under applicable law, nor an actual determination by the Corporation (including its Board
of Directors, independent legal counsel or its stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall create a presumption that Indemnitee has not met the
applicable standard of conduct. The Corporation shall have the burden of proof concerning whether
the Indemnitee has or has not met the applicable standard of conduct.
5. Advancement and Repayment of Expenses.
a. Proceedings. The Expenses incurred by Indemnitee in defending and investigating
any Proceeding shall be paid by the Corporation in advance of the final disposition of such
Proceeding within thirty (30) days after receiving from Indemnitee the copies of invoices presented
to Indemnitee for such Expenses, if Indemnitee shall provide an undertaking to the Corporation to
repay such amount to the extent it is ultimately determined that Indemnitee is not entitled to
indemnification. In determining whether or not to make an advance hereunder, the ability of
Indemnitee to repay shall not be a factor. Notwithstanding the foregoing, in a proceeding brought
by the Corporation directly, in its own right (as distinguished from an action bought derivatively
or by any receiver or trustee), the Corporation shall not be required to make the advances called
for hereby if the Board of Directors determines, in its sole discretion, that it does not appear
that Indemnitee has met the standards of conduct which make it permissible under applicable law to
indemnify Indemnitee and the advancement of Expenses would not be in the best interests of the
Corporation and its stockholders.
b. Mandatory Payment of Expenses. To the extent that Indemnitee has been successful
on the merits in defense of any action, suit, or other proceeding referred to in Section 3 hereof
or in defense of any claim, issue or matter therein, Indemnitee shall be indemnified against all
Expenses incurred by Indemnitee in connection therewith.
6. Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification or advancement by the Corporation of some or a portion of any Expenses
or liabilities of any type whatsoever (including, but not limited to, judgments,
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fines, penalties, and amounts paid in settlement) incurred by Indemnitee in the investigation, defense, settlement or
appeal of a Proceeding, but is not entitled to indemnification or advancement of the total amount
thereof, the Corporation shall nevertheless indemnify or pay advancements to the Indemnitee for the
portion of such Expenses or liabilities to which the Indemnitee is entitled.
7. Notice to Corporation by Indemnitee. Indemnitee shall notify the Corporation in
writing of any matter with respect to which Indemnitee intends to seek indemnification hereunder as
soon as reasonably practicable following the receipt by Indemnitee of written notice thereof;
provided, however, that any delay in so notifying Corporation shall not constitute a waiver by
Indemnitee of his or her rights hereunder. The written notification to the Corporation shall be
addressed to the Board of Directors and shall include a description of the nature of the Proceeding
and the facts underlying the Proceeding and be accompanied by copies of any documents filed by any
state or federal regulatory agency or with the court in which the Proceeding is pending. In
addition, Indemnitee shall give the Corporation such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s power.
8. Maintenance of Liability Insurance.
a. The Corporation hereby agrees that so long as Indemnitee shall continue to serve as a
director or officer of the Corporation and thereafter so long as Indemnitee shall be subject to any
possible Proceeding, the Corporation, subject to Section 8(b), shall use its best efforts to obtain
and maintain in full force and effect directors’ and officers’ liability insurance (“D&O
Insurance”) which provides Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Corporation’s directors, if Indemnitee is a director, or of the
Corporation’s officers, if Indemnitee is not a director of the Corporation but is an officer.
b. Notwithstanding the foregoing, the Corporation shall have no obligation to obtain or
maintain D&O Insurance if the Corporation determines in good faith that such insurance is not
reasonably available, the premium costs for such insurance are disproportionate to the amount of
coverage provided, the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Corporation.
c. Notice to Insurers. If, at the time of the receipt of a notice of a claim pursuant
to Section 7 hereof, the Corporation has D&O Insurance in effect, the Corporation shall give prompt
notice of the commencement of such claim to the insurers in accordance with the procedures set
forth in the respective policies. The Corporation shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result
of such Proceeding in accordance with the terms of such policies.
d. The obligation of the Corporation to indemnify the Indemnitee under this Agreement shall be
secondary and any insurance purchased by the Corporation shall be primary.
9. Defense of Claim. In the event that the Corporation shall be obligated under
Section 5 hereof to pay any Expenses of any Proceeding against Indemnitee, the
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Corporation, if appropriate, shall be entitled to assume the defense of such Proceeding with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of
written notice of its election to do so. After delivery of such notice, approval of such counsel
by Indemnitee and the retention of such counsel by the Corporation, the Corporation will not be
liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding, provided that (i) Indemnitee shall have the right
to employ his or her counsel in any such Proceeding, at Indemnitee’s expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the Corporation, or (B)
Indemnitee shall have reasonably concluded that there may be a conflict of interest between the
Corporation and the Indemnitee in the conduct of such defense or (C) the Corporation shall not, in
fact, have employed counsel to assume the defense of such Proceeding, then the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Corporation.
10. Attorneys’ Fees. In the event that Indemnitee or the Corporation institutes an
action to enforce or interpret any terms of this Agreement, the Corporation shall reimburse
Indemnitee for all of the Indemnitee’s reasonable fees and expenses in bringing and pursuing such
action or defense, unless as part of such action or defense, a court of competent jurisdiction
determines that the material assertions made by Indemnitee as a basis for such action or defense
were not made in good faith or were frivolous.
11. Continuation of Obligations. All agreements and obligations of the Corporation
contained herein shall continue during the period the Indemnitee is a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
and shall continue thereafter so long as the Indemnitee shall be subject to any possible proceeding
by reason of the fact that Indemnitee served in any capacity referred to herein.
12. Successors and Assigns. This Agreement establishes contract rights that shall be
binding upon, and shall inure to the benefit of, the successors, assigns, heirs and legal
representatives of the parties hereto.
13. Non-exclusivity.
a. The provisions for indemnification and advancement of expenses set forth in this Agreement
shall not be deemed to be exclusive of any other rights that the
Indemnitee may have under any provision of law, the Corporation’s Certificate of Incorporation
or Bylaws, the vote of the Corporation’s stockholders or disinterested directors, other agreements
or otherwise, both as to action in his or her official capacity and action in another capacity
while occupying his or her position as a director or officer of the Corporation. The
indemnification provided under this Agreement shall continue as to Indemnitee for any action taken
or not taken while serving in an indemnified capacity even though Indemnitee may have ceased to
serve in such capacity.
b. In the event of any changes, after the date of this Agreement, in any applicable law,
statute, or rule which expand the right of a Delaware corporation to indemnify its officers and
directors, the Indemnitee’s rights and the Corporation’s obligations under this Agreement shall be
expanded to the full extent permitted by such changes. In the event of any
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changes in any
applicable law, statute or rule, which narrow the right of a Delaware corporation to indemnify a
director or officer, such changes, to the extent not otherwise required by such law, statute or
rule to be applied to this Agreement, shall have no effect on this Agreement or the parties’ rights
and obligations hereunder.
14. Effectiveness of Agreement. This Agreement shall be effective as of the date set
forth on the first page and may apply to acts or omissions of Indemnitee which occurred prior to
such date if Indemnitee was an officer, director, employee or other agent of the Corporation, or
was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, at the time such act or
omission occurred.
15. Severability. Nothing in this Agreement is intended to require or shall be
construed as requiring the Corporation to do or fail to do any act in violation of applicable law.
The Corporation’s inability, pursuant to court order, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. The provisions of this Agreement shall
be severable as provided in this Section 15. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated, and the balance of this Agreement not so
invalidated shall be enforceable in accordance with its terms.
16. Governing Law. This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Delaware, except to the extent federal law is applicable. To the
extent permitted by applicable law, the parties hereby waive any provisions of law which render any
provision of this Agreement unenforceable in any respect.
17. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted
for by the party addressee or (ii) if mailed by certified or registered mail with postage prepaid,
on the third business day after the mailing date. Addresses for notice to either party are as shown
on the signature page of this Agreement, or as subsequently modified by written notice.
18. Mutual Acknowledgment. Both the Corporation and Indemnitee acknowledge that in
certain instances, federal law or applicable public policy may prohibit the Corporation from
indemnifying its directors and officers under this Agreement or otherwise. Indemnitee understands
and acknowledges that the Corporation has undertaken or may be required in the future to undertake
with the Securities and Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Corporation’s right under public policy to
indemnify Indemnitee.
19. Subrogation. In the event of payment under this Agreement, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable the Corporation effectively to bring suit to enforce such rights.
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20. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
21. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth
above.
| Sport Chalet, Inc. | ||||||
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INDEMNITEE: |
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