DRAFT
9/22/05
9
AO 1376246.1
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is dated effective as of [date],
2005 by and between Ronus, Inc., a Georgia corporation ("Ronus")
and Xxxx X. Xxxxxx ("Indemnitee") with reference to the following
circumstances:
A. Indemnitee currently serves as Chief Financial
Officer of Harold's Stores, Inc., an Oklahoma
corporation (the "Company"), and the Company's success
is highly dependent on the services of Indemnitee.
X. Xxxxx is a shareholder of the Company with an
interest in the Company's success.
C. Highly competent persons are becoming more reluctant
to serve publicly-held corporations as executive
officers unless they are provided with reasonable
protection through insurance or indemnification against
risks of claims and actions against them arising out of
their service to and activities on behalf of the
corporation.
D. It is reasonable, prudent and necessary for the
Ronus contractually to obligate itself to indemnify
Indemnitee to the fullest extent permitted by
applicable law so that she will serve or continue to
serve the Company free from undue concern that she will
not be so indemnified.
E. Indemnitee is willing to serve, to continue to serve
and to take on additional service for or on behalf of
the Company on the condition that Indemnitee be so
indemnified.
In consideration of the promises and the covenants contained
herein, Ronus and Indemnitee hereby agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Affiliate" shall mean any corporation, trust or other
enterprise in respect of which the Indemnitee is or was or
will be serving as an officer at the request of the Company
and including, but not limited to, any employee benefit plan
of the Company or any of the foregoing.
(b) "Board" shall mean the Board of Directors of the
Company.
(c) "Disinterested Director" shall mean a director of the
Company who is not and was not a party to the Proceeding in
respect of which indemnification is being sought by
Indemnitee.
(d) "Expenses" shall include all attorneys' fees and costs,
retainers, court costs, transcripts, fees of experts,
witness fees, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery
service fees and all other disbursements or expenses
incurred in connection with asserting or defending claims.
(e) "Independent Counsel" shall mean a law firm or lawyer
that at the time of the determination neither is presently
nor in the past year has been retained to represent: (i) the
Company, Ronus or Indemnitee in any matter material to any
such party or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder in any matter
material to such other party. Notwithstanding the foregoing,
the term "Independent Counsel" shall not include any firm or
person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest
in representing the Company or Indemnitee in an action to
determine Indemnitee's right to indemnification under this
Agreement.
(f) "Losses" shall mean all losses, claims, liabilities,
judgments, fines and amounts paid in settlement in
connection with any Proceeding.
(g) "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether
civil, criminal, administrative or investigative; provided,
however, that the term "Proceeding" shall include any action
instituted by an Indemnitee (other than an action to enforce
indemnification rights under this Agreement) only if such
action is authorized by the Board.
2. Service by Indemnitee. Indemnitee shall continue to serve the
Company as Chief Financial Officer. Notwithstanding anything
contained herein, this Agreement shall not create a contract of
employment between the Ronus and Indemnitee or the Company and
Indemnitee, and the termination of Indemnitee's relationship with
the Company or an Affiliate by either party hereto shall not be
restricted by this Agreement.
3. Indemnification. Ronus shall indemnify Indemnitee for, and
hold Indemnitee harmless from and against, any Losses or Expenses
at any time incurred by or assessed against Indemnitee arising
out of or in connection with the service of Indemnitee as a Chief
Financial Officer of the Company or as an officer of an Affiliate
(collectively referred to as a "Company Official") to the fullest
extent permitted by the laws of the State of Oklahoma in effect
on the date hereof or as such laws may from time to time
hereafter be amended to increase the scope of such permitted
indemnification. Without diminishing the scope of the
indemnification provided by this Section 3, the rights of
indemnification of Indemnitee provided hereunder shall include
but shall not be limited to those rights set forth hereinafter.
4. Action or Proceeding Other Than an Action by or in the Right
of the Company. Indemnitee shall be entitled to the
indemnification rights provided herein if Indemnitee is a person
who was or is made a party or is threatened to be made a party to
any contemplated, pending or completed Proceeding, other than an
action by or in the right of the Company, as the case may be, by
reason of (a) the fact that Indemnitee is or was a Company
Official, or (b) anything done or not done by Indemnitee in any
such capacity. Pursuant to this Section, Indemnitee shall be
indemnified against Losses or Expenses incurred by Indemnitee or
on Indemnitee's behalf in connection with any Proceeding, 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 Company, and, with respect to any criminal Proceeding, had
no reasonable cause to believe her conduct was unlawful.
5. Actions by or in the Right of the Company. Indemnitee shall
be entitled to the indemnification rights provided herein if
Indemnitee is a person who was or is made a party or is
threatened to be made a party to any pending, completed or
threatened Proceeding brought by or in the right of the Company
to procure a judgment in its favor by reason of (a) the fact that
Indemnitee is or was a Company Official, or (b) anything done or
not done by Indemnitee in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified against Losses or
Expenses incurred by Indemnitee or on Indemnitee's behalf in
connection with any Proceeding 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 Company. Notwithstanding
the foregoing provisions of this Section, no such indemnification
shall be made in respect of any claim, issue or matter as to
which Delaware law expressly prohibits such indemnification by
reason of an adjudication of liability of Indemnitee to the
Company; provided, however, that in such event such
indemnification shall nevertheless be made by the Company to the
extent that the court in which such action or suit was brought
shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnification.
6. Indemnification for Losses and Expenses of Party Who is Wholly
or Partly Successful. Notwithstanding any provision of this
Agreement, to the extent that Indemnitee has been wholly
successful on the merits or otherwise in any Proceeding on any
claim, issue or matter, Indemnitee shall be indemnified against
all Losses or Expenses incurred by Indemnitee or on Indemnitee's
behalf in connection therewith. 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, Ronus shall indemnify Indemnitee to
the maximum extent permitted by law, against all Losses and
Expenses incurred by Indemnitee in connection with each
successfully resolved claim, issue or matter. In any review or
Proceeding to determine the extent of indemnification, Ronus
shall bear the burden of proving any lack of success and which
amounts sought in indemnity are allocable to claims, issues or
matters that were not successfully resolved. For purposes of this
Section and without limitation, the termination of any such
claim, issue or matter by dismissal with or without prejudice
shall be deemed to be a successful resolution as to such claim,
issue or matter. For any claim, issue or matter not resolved
successfully, Indemnitee shall be entitled to indemnification if
permitted or required by Sections 3, 4 or 5 hereof.
7. Payment for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by
reason of the fact that Indemnitee is or was a Company Official,
a witness in any Proceeding, Ronus shall pay to Indemnitee all
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection therewith.
8. Advancement of Expenses and Costs. All Expenses incurred by or
on behalf of Indemnitee (or reasonably expected by Indemnitee to
be incurred by Indemnitee within three months) in connection with
any Proceeding shall be paid by Ronus in advance of the final
disposition of such Proceeding within twenty days after the
receipt by Ronus of a statement or statements from Indemnitee
requesting from time to time such advance or advances whether or
not a determination to indemnify has been made under Section 9.
Indemnitee's entitlement to such advancement of Expenses shall
include those incurred in connection with any Proceeding by
Indemnitee seeking an adjudication or award in arbitration
pursuant to this Agreement. Such statement or statements shall
evidence such Expenses incurred (or reasonably expected to be
incurred) by Indemnitee in connection therewith and shall include
or be accompanied by a written undertaking in form and substance
satisfactory to Ronus and the Indemnitee by or on behalf of
Indemnitee to repay such amount if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified
therefor pursuant to the terms of this Agreement.
9. Procedure for Determination of Entitlement to Indemnification.
(a) When seeking indemnification under this Agreement (which
shall not include in any case the right of Indemnitee to
receive payments pursuant to Section 7 and Section 8 hereof,
which shall not be subject to this Section 9), Indemnitee
shall submit a written request for indemnification to Ronus.
Such request shall include documentation or information that
is reasonably necessary for Ronus to make a determination of
Indemnitee's entitlement to indemnification hereunder and
that is reasonably available to Indemnitee. Determination
of Indemnitee's entitlement to indemnification shall be made
promptly, but in no event later than 90 days after receipt
by Ronus of Indemnitee's written request for
indemnification. Ronus shall, promptly upon receipt of
Indemnitee's request for indemnification, advise the Board
that Indemnitee has made such request for indemnification.
(b) The entitlement of Indemnitee to indemnification under
this Agreement shall be determined in the specific case by a
majority vote of a quorum of the Board consisting of
Disinterested Directors. If such a quorum is not obtainable
or the Board, by the majority vote of Disinterested
Directors, directs, the determination shall be made by
Independent Counsel in a written opinion.
(c) In the event the determination of entitlement is to be
made by Independent Counsel, such Independent Counsel shall
be selected by Ronus and approved by Indemnitee. Upon
failure of Ronus to so select such Independent Counsel or
upon failure of Indemnitee to so approve, such Independent
Counsel shall be selected by the American Arbitration
Association or such other person as such Association shall
designate to make such selection. All Expenses of the
Independent Counsel incurred in connection with acting
pursuant to this Agreement shall be borne by Ronus.
(d) If the person or persons empowered pursuant to Section
9(b) hereof to make a determination with respect to
entitlement to indemnification shall have failed to make the
requested determination within 90 days after receipt by
Ronus of such request, the requisite determination of
entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be absolutely entitled to such
indemnification, absent (i) misrepresentation by Indemnitee
of a material fact in the request for indemnification or
(ii) a final judicial determination that all or any part of
such indemnification is expressly prohibited by law.
(e) The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, adversely affect
the rights of Indemnitee to indemnification hereunder except
as may be specifically provided herein, or create a
presumption that Indemnitee did not act in good faith and in
a manner that Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company or create a
presumption that (with respect to any criminal action or
proceeding) Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
(f) For purposes of any determination of good faith
hereunder, Indemnitee shall be deemed to have acted in good
faith if in taking such action Indemnitee reasonably relied
on information supplied to Indemnitee by other officers of
the Company or an Affiliate in the course of their duties,
or on the advice of legal counsel for the Company or an
Affiliate or on information or records given or reports made
to the Company or an Affiliate by an independent certified
public accountant or by an appraiser or other expert
selected with reasonable care by the Company or an
Affiliate. Ronus shall have the burden of establishing the
absence of good faith. The provisions of this Section 9(f)
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.
(g) The knowledge and/or actions, for failure to act, of any
director, officer, agent or employee of the Company or an
Affiliate shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this
Agreement.
10. Remedies in Cases of Determination not to Indemnify or to
Advance Expenses.
(a) If (i) a determination is made that Indemnitee is not
entitled to indemnification hereunder, (ii) advances are not
made pursuant to Section 8 hereof or (iii) payment has not
been timely made following a determination of entitlement to
indemnification pursuant to Section 9 hereof, Indemnitee
shall be entitled to seek a final adjudication either
through an arbitration proceeding or in an appropriate court
of the State of Oklahoma or any other court of competent
jurisdiction of Indemnitee's entitlement to such
indemnification or advance.
(b) If a determination has been made in accordance with the
procedures set forth in Section 9 hereof, in whole or in
part, that the Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration
referred to in paragraph (a) of this Section 10 shall be de
novo and Indemnitee shall not be prejudiced by reason of any
such prior determination that Indemnitee is not entitled to
indemnification, and Ronus shall bear the burdens of proof
specified in paragraphs 6 and 9 hereof in such proceeding.
(c) If a determination is made or deemed to have been made
pursuant to the terms of Section 9 or 10 hereof that
Indemnitee is entitled to indemnification, Ronus shall be
bound by such determination in any judicial proceeding or
arbitration in the absence of (i) a misrepresentation of a
material fact by Indemnitee or (ii) a final judicial
determination that all or any part of such indemnification
is expressly prohibited by law.
(d) Ronus and Indemnitee shall be precluded from asserting
that the procedures and presumptions of this Agreement are
not valid, binding and enforceable. Ronus and Indemnitee
shall stipulate in any such court that Ronus and Indemnitee
are bound by all of the provisions of this Agreement and are
precluded from making any assertion to the contrary.
(e) To the extent deemed appropriate by the court, interest
shall be paid by Ronus to Indemnitee at a reasonable
interest rate for amounts that Ronus indemnifies or is
obliged to indemnify the Indemnitee for the period
commencing with the date on which Indemnitee requested
indemnification (or reimbursement or advance of an Expense)
and ending with the date that such payment is made to
Indemnitee by Ronus.
11. Expenses Incurred by Indemnitee to Enforce this Agreement.
All Expenses incurred by Indemnitee in connection with the
preparation and submission of Indemnitee's request for
indemnification hereunder shall be borne by Ronus. If Indemnitee
is a party to or intervenes in any proceeding in which the
validity or enforceability of this Agreement is at issue or seeks
an adjudication to enforce Indemnitee's rights under, or to
recover damages for breach of, this Agreement, Indemnitee, if
Indemnitee prevails in whole in such action, shall be entitled to
recover from Ronus, and shall be indemnified by Ronus against any
Expenses incurred by Indemnitee. If it is determined that
Indemnitee is entitled to indemnification for part (but not all)
of the indemnification so requested, Expenses incurred in seeking
enforcement of such partial indemnification shall be reasonably
prorated among the claims, issues or matters for which the
Indemnitee is entitled to indemnification and for claims, issues
or matters for which the Indemnitee is not so entitled.
12. Non-Exclusivity. The rights of indemnification and to receive
advances as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time
be entitled under applicable law, a certificate of incorporation,
by-laws, any agreement, a vote of stockholders or a resolution of
directors or otherwise. To the extent Indemnitee would be
prejudiced thereby, no amendment, alteration, rescission or
replacement of this Agreement or any provision hereof shall be
effective as to Indemnitee with respect to any action taken or
omitted by such Indemnitee in Indemnitee's position with the
Company or an Affiliate prior to such amendment, alteration,
rescission or replacement.
13. No Duplicative Payment. Ronus' obligation, if any, to
indemnify for Losses or advance Expenses to Indemnitee under this
Agreement shall be secondary to any obligation of the Company to
indemnify Indemnitee under the Company's certificate of
incorporation or bylaws, pursuant to any agreement, or otherwise.
Prior to exercising any rights under this Agreement, Indemnitee
shall first pursue in good faith all rights to indemnification
and advancement of Expenses under the Company's certificate of
incorporation, bylaws, any agreement between Indemnitee and the
Company, and any insurance policy maintained by the Company or
Indemnitee. Ronus' obligation, if any, to indemnify for Losses
or advance Expenses to Indemnitee under this Agreement shall be
reduced to the extent Indemnitee has otherwise actually received
payment for such Losses or Expenses (i) from the Company or any
other party pursuant to any indemnification obligations under the
Company's certificate of incorporation, bylaws, or any agreement;
(ii) pursuant to any insurance policy; or (iii) otherwise.
14. Settlement of Claims. Ronus shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in
settlement of any action or claim effected without Ronus' written
consent. Ronus shall not unreasonably withhold its consent to
any proposed settlement. Ronus shall not be liable to indemnify
Indemnitee under this Agreement with regard to any Losses if
Ronus was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such Proceeding.
15. Duration of Agreement. This Agreement shall apply to any
claim asserted and any Losses and Expenses incurred in connection
with any claim asserted on or after the effective date of this
Agreement and shall continue until five years after the earliest
of (a) the date that Indemnitee shall have ceased to serve as a
Company Official; (b) the date that Xxxxxxx X. Xxxxxx shall have
ceased to serve as the Chief Executive Officer of the Company, or
(c) or the final termination of the complaint filed by the
Securities and Exchange Commission against Xxxxxxx X. Xxxxxx that
is currently pending in the United States District Court for the
District of South Carolina. This Agreement shall apply only to
Proceedings based on acts or omissions alleged to have occurred
on or before the earliest of the dates set forth in clauses (a),
(b) and (c) above, and only to the extent that such Proceedings
are based on alleged acts or omissions occurring on or before
such date. This Agreement shall be binding upon Ronus and its
successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's spouse, assigns, heirs, devisee,
executors, administrators or other legal representatives.
16. Severability. Should any part, term or condition hereof be
declared illegal or unenforceable or in conflict with any other
law, the validity of the remaining portions or provisions of this
Agreement shall not be affected thereby, and the illegal or
unenforceable portions of the Agreement shall be and hereby are
redrafted to conform with applicable law, while leaving the
remaining portions of this Agreement intact.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
18. Headings. Section headings are for convenience only and do
not control or affect meaning or interpretation of any terms or
provisions of this Agreement.
19. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in
writing by each of the parties hereto.
20. Notices. All notices, requests, demands and other
communications provided for by this Agreement shall be in writing
(including telecopier or electronic transmissions) and shall be
deemed to have been given at the time when delivered (i) by
United States certified mail, return receipt requested; (ii) by
Federal Express or other similar overnight courier service; (iii)
by telecopier, when the appropriate answerback is received; or
(iv) by electronic transmission and acknowledgment of receipt has
been received, in each case addressed to the address of the
parties stated below or to such changed address as such party may
have fixed by notice.
(a) If to Indemnitee, to the address on the signature page
hereof.
(b) If to Ronus, to:
Ronus, Inc
Piazza at Paces
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
21. Governing Law. The parties agree that this agreement shall be
governed by, and construed and enforced in accordance with, the
internal laws of the State of Oklahoma without giving effect to
the conflicts of laws principles thereof.
22. Entire Agreement. Subject to the provisions of Section 12
hereof, this Agreement constitutes the entire understanding
between the parties and supersedes all proposals, commitments,
writings, negotiations and understandings, oral and written, and
all other communications between the parties relating to the
subject matter of this Agreement. This Agreement may not be
amended or otherwise modified except in writing duly executed by
all of the parties. A waiver by any party of any breach or
violation of this Agreement shall not be deemed or construed as a
waiver of any subsequent breach or violation thereof.
Executed as of the date first above written.
RONUS, INC.
________________________
By: Xxxxxx X. Xxxxxxxx
Title: President
INDEMNITEE:
_______________________
Xxxx X. Xxxxxx
Address:
Facsimile:
E-mail:
