The Solomon-Page Group Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 15, 1999
The Solomon-Page Group Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear_____________:
In consideration of your continued service as a director of The
Solomon-Page Group Ltd. (the "Company"), the Company will, to the extent
provided herein, indemnify you and hold you harmless from and against any and
all "Losses" (as defined below) that you may incur by reason of your election or
service as a director, officer, employee, agent, fiduciary or representative of
the Company or any "Related Entity" (as defined below) to the fullest extent
permitted by law.
1. (a) "Losses" means all liabilities, "Costs and Expenses" (as defined
below), amounts of judgments, fines, penalties or excise taxes (or other amounts
assessed, surcharged or levied under the Employee Retirement Income Security Act
of 1974, as amended) and amounts paid in settlement of or incurred in defense of
any settlement in connection with any threatened, pending or completed claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether brought by or in the right of the Company or
otherwise, and appeals in which you may become involved, as a party or
otherwise, by reason of acts or omissions in your capacity as and while serving
as a director, officer, employee, agent, fiduciary or representative of the
Company or any Related Entity.
(b) A "Related Entity" means any corporation, partnership, joint
venture, trust or other entity or enterprise in which the Company is in any way
interested, or in or as to which you are serving at the Company's request or on
its behalf, as a director, officer, employee, agent, fiduciary or representative
including, but not limited to, any employee benefit plan or any corporation of
which the Company or any Related Entity is, directly or indirectly, a
stockholder or creditor.
(c) "Costs and Expenses" means all reasonable costs and expenses
incurred by you in investigating, defending or appealing any threatened, pending
or completed claim, action, suit or proceeding including, without limitation,
counsel fees and disbursements.
2. Costs and Expenses shall be paid promptly by the Company as they are
incurred or, at your request, shall be advanced on your behalf against delivery
of invoices therefor (prior to an ultimate determination as to whether you are
entitled to be indemnified by the Company on account thereof); provided,
however, that if it shall ultimately be determined by final decision of a court
of competent jurisdiction, including the Court
of Chancery of the state of Delaware (the "Court of Chancery") that you are not
entitled to be indemnified on account of any Costs or Expenses for which you
have theretofore received payment or reimbursement, you shall promptly repay in
full such amount to the Company.
3. The Company shall indemnify you and hold you harmless from and
against any and all Losses that you may incur if you are a party to or
threatened to be made a party to or otherwise involved in any proceeding or
action (other than a proceeding or action by or in the right of the Company to
procure a judgment in its favor), unless it is determined that you did not act
in good faith and for a purpose that you reasonably believed to be in, or, in
the case of service to a Related Entity, not opposed to, the best interests of
the Company and, in the case of a criminal proceeding or action, in addition,
that you had reasonable cause to believe that your conduct was unlawful.
4. The Company shall indemnify you and hold you harmless from and
against any and all Losses that you may incur if you are a party to or
threatened to be made a party to any proceeding or action by or in the right of
the Company to procure a judgment in its favor, unless it is determined that you
did not act in good faith and for a purpose that you reasonably believed to be
in, or, in the case of service to a Related Entity, not opposed to, the best
interests of the Company, except that no indemnification for Losses shall be
made under this Paragraph 4 in respect of (a) any claim, issue or matter as to
which you shall have been adjudged to be liable to the Company or (b) any
threatened or pending action to which you are a party or are threatened to be
made a party that is settled or otherwise disposed of, unless and only to the
extent that the Court of Chancery or the court in which such action or
proceeding was brought shall determine upon application that, in view of all the
circumstances of the matter, you are fairly and reasonably entitled to indemnity
for such expenses as such court shall deem proper.
5. Anything hereinabove to the contrary notwithstanding, "Losses" shall
not include, and you shall not be entitled to indemnification under this
agreement on account of (i) amounts payable by you to the Company or any Related
Entity in satisfaction of any judgment or settlement in the Company's or such
Related Entity's favor (except amounts for which you shall be entitled to
indemnification pursuant to Paragraph 4), (ii) amounts payable on account of
profits realized by you in the purchase or sale of securities of the Company or
any Related Entity within the meaning of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of state law; (iii)
Losses in connection with which you are not entitled to indemnification as a
matter of law or public policy; or (iv) Losses to the extent you are indemnified
by the Company otherwise than pursuant to this agreement, including any Losses
for which payment is made to you under an insurance policy.
6. Termination of any action, suit or proceeding by judgment, order,
settlement or conviction, upon a plea of nolo contendere or its equivalent shall
not, of itself, create any presumption that you did not act in good faith and
for a purpose that you reasonably believed to be in or not opposed to the best
interests of the Company or a Related Entity and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that your conduct was
unlawful.
-2-
7. The determination on behalf of the Company that you are not entitled
to be indemnified for Losses hereunder by reason of the provisions of Paragraphs
3 or 4 or clause (iii) of Paragraph 5 may be made either by (a) directors who
are not parties to such action, suit or proceeding, even through less than a
quorum, (b) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, (c) if there are no such directors,
or if such directors so direct, by independent legal counsel (who may be the
outside counsel regularly employed by the Company) in a written opinion, or (d)
the stockholders of the Company, as the Company's Board of Directors shall
determine. Notwithstanding such determination, the right to indemnification or
advances of Costs and Expenses as provided in this agreement shall be
enforceable by you in a court of competent jurisdiction, including the Court of
Chancery. The burden of proving that indemnification is not appropriate shall be
on the Company. Neither the failure of the Company (including its Board of
Directors or independent legal counsel) to have made a determination prior to
the commencement of such action that indemnification is proper in the
circumstances because you have met the applicable standard of conduct, nor an
actual determination by the Company (including its Board of Directors or
independent legal counsel) that you have not met such applicable standard of
conduct shall be a defense to the action or create a presumption that you have
not met the applicable standard of conduct. Costs and expenses, including
counsel fees, reasonably incurred by you in connection with successfully
establishing your right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Company.
8. You agree to give prompt notice to the Company of any claim with
respect to which you seek indemnification and, unless a conflict of interest
shall exist between you and the Company with respect to such claim, you will
permit the Company to assume the defense of such claim with counsel of its
choice, such counsel to be selected in the Company's sole discretion. Whether or
not such defense is assumed by the Company, the Company will not be subject to
any liability for any settlement made without its consent. The Company will not
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to you a release from all liability with respect to such claim or litigation. If
the Company is not entitled to, or does not elect to, assume the defense of a
claim, the Company will not be obligated to pay the fees and expenses of more
than one counsel for you and any other directors, officers or employees of the
Company who are indemnified pursuant to similar indemnity agreements with
respect to such claim, unless a conflict of interest shall exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the Company will be obligated to pay the fees and expenses
of an additional counsel for each indemnified party or group of indemnified
parties with whom a conflict of interest exists.
9. The Company's obligation to indemnify you under this agreement is in
addition to any other rights to which you may otherwise be entitled by operation
of law, vote of the Company's stockholders or directors or otherwise and will be
available to you whether or not the claim asserted against you is based upon
matters that occurred before the date of this agreement.
-3-
10. The obligation of the Company to indemnify you with respect to
Losses that you may incur by reason of your service as a director, officer,
employee, agent, fiduciary or representative of the Company or a Related Entity,
as provided under this agreement, shall survive the termination of your service
in such capacities and shall inure to the benefit of your heirs, executors and
administrators.
11. The Company agrees that, so long as you shall serve as a director,
officer, employee, agent, fiduciary or representative of the Company or any
Related Entity and thereafter so long as you shall be subject to any possible
claim or threatened, pending or completed action or proceeding by reason of your
service as a director, officer, employee, agent, fiduciary or representative of
the Company or any Related Entity, the Company shall purchase and maintain in
effect for your benefit valid, binding and enforceable policies of directors and
officers liability insurance ("D & O Insurance"), covering Losses; provided,
however, that the Company shall not be required to maintain D & O Insurance in
effect if such insurance is not reasonably available or if, in the reasonable
business judgment of the directors of the Company, either (i) the premium cost
for such insurance is substantially disproportionate to the amount of coverage
or (ii) the coverage provided by such insurance is so limited by exclusions that
there is insufficient benefit from such insurance.
12. If you are entitled under this agreement or otherwise to
indemnification by the Company for some or a portion of the Losses actually and
reasonably incurred by you but not, however, for the total amount thereof, the
Company shall nevertheless indemnify you for the portion of the Losses to which
you are entitled.
13. It is the intention of the parties to this agreement to provide for
indemnification in all cases and under all circumstances where to do so would
not violate applicable law (and notwithstanding any limitations permitted, but
not required by statute) and the terms and provisions of this agreement shall be
interpreted and construed consistent with that intention. Nonetheless, if any
provision of this agreement or any indemnification made under this agreement
shall for any reason be determined by a court of competent jurisdiction,
including the Court of Chancery to be invalid, unlawful or unenforceable under
current or future laws, such provision shall be fully severable and, the
remaining provisions of this agreement shall not otherwise be affected thereby,
but shall remain in full force and effect and, to the fullest extent possible,
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
14. This agreement shall be governed by and interpreted and construed
in accordance with the laws of the State of Delaware, except that body of law
relating to choice of law.
-4-
15. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both the Company and
you.
Your signature below will evidence your agreement and acceptance with
respect to the foregoing.
Very truly yours,
THE SOLOMON-PAGE GROUP LTD.
By:______________________________________
Name: Xxxxx Xxxxxxx
Title: Vice Chairman and Chief
Executive Officer
AGREED TO AND ACCEPTED:
___________________________
-5-
