DIRECTOR AND OFFICER
INDEMNIFICATION AGREEMENT
This Director and
Officer Indemnification Agreement (the “ Agreement
”) is made and entered into this ___day of ___, 2006, by and
among FGX International Holdings Limited, a British Virgin Islands
international business company (the “ Company ,”
which term shall include, where appropriate, any Entity (as
hereinafter defined) controlled directly or indirectly by the
Company and any successor to the Company), FGX International Inc.,
a Delaware corporation, and wholly-owned indirect subsidiary of the
Company (“ FGX Delaware ”) and ___ (“
Indemnitee ”).
WHEREAS ,
it is essential to the Company that it be able to retain and
attract as directors and officers the most capable persons
available;
WHEREAS ,
increased corporate litigation has subjected directors and officers
to litigation risks and expenses, and the limitations on the
availability and terms and conditions of directors and officers
liability insurance have made it increasingly difficult for the
Company to attract and retain such persons;
WHEREAS ,
the Company’s Memorandum of Association (as amended from time
to time, the “ Charter ”) and/or Articles of
Association provide for the indemnification of its directors and
officers and permits it to make other indemnification arrangements
and agreements;
WHEREAS ,
to further promote the Company’s ability to attract and
retain qualified individuals to serve as directors and/or officers
of the Company, the Company intends to maintain directors and
officers liability insurance to protect the Company’s
directors and officers from certain liabilities;
WHEREAS ,
the Indemnitee does not regard the protections granted under the
Charter and Articles of Association and such insurance agreements
to be adequate in the present circumstances, and may not serve as a
director and/or officer of the Company without adequate
protection;
WHEREAS ,
the Company desires that the Indemnitee serve in such
capacity;
WHEREAS ,
to promote the Company’s ability to attract and retain
qualified individuals to serve as directors and/or officers of the
Company, the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee’s rights to
indemnification and advancement of expenses to the greatest extent
permitted by law against litigation risks and expenses (regardless,
among other things, of any change in the ownership of the Company
or the composition of its Board of Directors); and
WHEREAS ,
Indemnitee is relying upon the rights afforded under this Agreement
in accepting Indemnitee’s position as a director and/or
officer of the Company.
NOW,
THEREFORE , in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and
agree as follows:
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(a)
“ Corporate Status ” describes the status of a
person who is serving or has served (i) as a director or
officer of the Company or any Subsidiary, (ii) in any capacity
with respect to any employee benefit plan of the Company, or
(iii) as a director, member, manager, partner, trustee,
officer, employee, or agent of any other Entity at the request of
the Company. For purposes of subsection (iii) of this
Section 1(a), a director or officer of the Company who is
serving or has served as a director, member, manager, partner,
trustee, officer, employee or agent of a Subsidiary shall be deemed
to be serving at the request of the Company.
(b)
“ Entity ” shall mean any corporation,
partnership (including, without limitation, any general, limited,
or limited liability partnership), limited liability company, joint
venture, trust, foundation, association, organization or other
legal entity, including, without limitation, FGX
Delaware.
(c)
“ Expenses ” shall mean all fees, costs and
expenses actually and reasonably incurred in connection with any
Proceeding (as defined below), including, without limitation,
reasonable attorneys’ fees, disbursements and retainers
(including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Sections 9 and
11(c) of this Agreement), fees, costs, expenses and disbursements
of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and investment
bankers), court costs, transcript costs, fees of experts, travel
expenses (including, without limitation, those of expert witnesses,
private investigators and professional advisors), duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services and other
disbursements and expenses.
(d)
“ Liabilities ” shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
paid in settlement.
(e)
“ Proceeding ” shall mean any threatened,
pending or completed claim, action, suit, arbitration, mediation,
alternate dispute resolution process, investigation, administrative
hearing, appeal, or any other proceeding, whether civil, criminal,
administrative, arbitrative or investigative, whether formal or
informal, including a proceeding initiated by Indemnitee pursuant
to Section 11 of this Agreement to enforce Indemnitee’s
rights hereunder.
(f)
“ Subsidiary ” shall mean any corporation,
partnership, limited liability company, joint venture, trust or
other Entity of which the Company owns (either directly or through
or together with another Subsidiary of the Company) either
(i) a general partner, managing member or other similar
interest or (ii) (A) 50% or more of the voting power of the
voting capital equity interests of such corporation, partnership,
limited liability company, joint venture or other Entity, or
(B) 50% or more of the outstanding voting capital stock or
other voting equity interests of such corporation, partnership,
limited liability company, joint venture or other
Entity.
2.
Services of Indemnitee . In consideration of the
Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director and/or officer
of the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
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3.
Agreement to Indemnify and Hold Harmless . The Company
agrees to indemnify and hold harmless Indemnitee as
follows:
(a) To
the greatest extent permitted by applicable law and subject to the
exceptions contained in Section 4(a) below, if Indemnitee was or is
a party or is threatened to be made a party to, or otherwise
becomes a participant (as a witness or otherwise) in, any
Proceeding (other than an action by or in the right of the Company)
by reason of Indemnitee’s Corporate Status, Indemnitee shall
be indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as “ Indemnifiable Expenses
” and “ Indemnifiable Liabilities ,”
respectively, and collectively as “ Indemnifiable
Amounts ”).
(b) To
the greatest extent permitted by applicable law and subject to the
exceptions contained in Section 4(b) below, if Indemnitee was or is
a party or is threatened to be made a party to, or otherwise
becomes a participant (as a witness or otherwise) in any Proceeding
by or in the right of the Company to procure a judgment in
Indemnitee’s favor by reason of Indemnitee’s Corporate
Status, Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
4.
Exceptions to Indemnification . Indemnitee shall be
entitled to the indemnification provided in Sections 3(a) and 3(b)
above in all circumstances other than the following:
(a) If
indemnification is requested under Section 3(a) and it has been
adjudicated finally by a court of competent jurisdiction evidenced
by a final nonappealable order that, in connection with the subject
of the Proceeding out of which the claim for indemnification has
arisen, Indemnitee failed to act in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or with respect to any criminal action or
proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder.
(b) If
indemnification is requested under Section 3(b) and:
(i)
it has been adjudicated finally by a court of competent
jurisdiction evidenced by a final nonappealable order that, in
connection with the subject of the Proceeding out of which the
claim for indemnification has arisen, Indemnitee failed to act in
good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company, Indemnitee
shall not be entitled to payment of Indemnifiable Expenses
hereunder; or
(ii)
it has been adjudicated finally by a court of competent
jurisdiction evidenced by a final nonappealable order that
Indemnitee is liable to the Company with respect to any claim,
issue or matter involved in the Proceeding out of which the claim
for indemnification has arisen, including, without limitation, a
claim that Indemnitee
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received an
improper personal benefit, no Indemnifiable Expenses shall be paid
with respect to such claim, issue or matter unless the court in
which such Proceeding was brought shall determine upon application
that, despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Indemnifiable Expenses which such
court shall deem proper.
5.
Procedure for Payment of Indemnifiable Amounts .
Indemnitee shall submit to the Company a written request specifying
the Indemnifiable Amounts for which Indemnitee seeks payment under
Section 3 of this Agreement and the basis for the claim. The
Company shall pay such Indemnifiable Amounts to Indemnitee within
thirty (30) calendar days of receipt of the request. At the
reasonable request of the Company, Indemnitee shall furnish such
documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled
to indemnification hereunder, and the Company shall pay any
Expenses incurred by Indemnitee in furnishing such documentation
and information.
6.
Indemnification for Expenses of a Participant .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
participant (as a witness or otherwise) in any Proceeding to which
Indemnitee is not a party or is not threatened to be made a party,
the Indemnitee shall be indemnified as provided in Section 3
hereof.
7.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful . Notwithstanding any other provision of this
Agreement, and withou
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