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EXHIBIT 10.10
VINTAGE WINE TRUST INC.
FORM OF INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT (the "AGREEMENT") made and entered into
this
___ day of _____, 2005, by and between
Vintage Wine Trust Inc., a Maryland
corporation (the "COMPANY"), and
_____________ (the "INDEMNITEE").
WHEREAS, it is
essential that the Company be able to retain and attract as
directors and officers the most capable
persons available;
WHEREAS, the
Company's Bylaws permit it to enter into indemnification
arrangements and agreements;
WHEREAS, the
Company desires to provide the Indemnitee with specific
contractual assurances of the Indemnitee's
rights to full indemnification
against litigation risks and expenses
(regardless, among other things, of any
amendment to or revocation of the Company's
Bylaws or any change in the
ownership of the Company or the composition
of its board of directors) and, to
the extent insurance is available, the
coverage of the Indemnitee under the
Company's directors and officers liability
insurance policies; and
WHEREAS, the
Indemnitee is relying upon the rights afforded under this
Agreement in accepting Indemnitee's
position as a director or officer of the
Company.
NOW, THEREFORE,
in consideration of the mutual promises and covenants
contained herein, the Company and
Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "CORPORATE STATUS"
describes the status of a person who is serving or
has served (i) as a director, officer or
employee of the Company, (ii) in any
capacity with respect to any employee
benefit plan of the Company, or (iii) as a
director, partner, member, trustee,
officer, employee, or agent of any other
Entity at the request of the Company.
(b) "ENTITY"
shall mean any corporation, partnership, limited liability
company, joint venture, trust, foundation,
association, organization or other
legal entity and any group or division of
the Company or any of its
subsidiaries.
(c) "EXPENSES"
shall mean all reasonable fees, costs and expenses actually
and reasonably incurred by the Indemnitee
in connection with any Proceeding (as
defined below), including, without
limitation, attorneys' fees, disbursements
and retainers (including, without
limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant
to Sections 10 and 12 of this
Agreement), fees and disbursements of
expert witnesses, private investigators
and professional advisors (including,
without limitation, accountants), court
costs, transcript costs, fees of experts,
travel expenses, duplicating, printing
and binding costs, telephone and fax
transmission charges, postage, delivery
services, secretarial services, and other
disbursements and expenses.
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(d)
"INDEMNIFIABLE EXPENSES," "INDEMNIFIABLE LIABILITIES" and
"INDEMNIFIABLE AMOUNTS" shall have the
meanings ascribed to those terms in
Section 4 below.
(e) "LIABILITIES" shall mean
judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts
paid in settlement.
(f) "PROCEEDING"
shall mean any threatened, pending or completed claim,
action, suit, arbitration, alternate
dispute resolution process, investigation,
administrative hearing, appeal, or any
other proceeding, whether civil,
criminal, administrative or investigative,
whether formal or informal, including
a proceeding initiated by Indemnitee
pursuant to Sections 10 and 12 of this
Agreement to enforce Indemnitee's rights
hereunder.
2. Services of Indemnitee. In consideration
of the Company's covenants and
commitments hereunder, Indemnitee agrees to
serve as a director 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.
3. Agreement to Indemnify. The Company
shall indemnify Indemnitee, and advance
Indemnifiable Expenses to, Indemnitee (a)
as specifically provided in this
Agreement and (b) otherwise to the fullest
extent permitted by Maryland law in
effect on the date hereof and as amended
from time to time; provided, however,
that no change in Maryland law shall have
the effect of reducing the benefits
available to Indemnitee hereunder based on
Maryland law as in effect on the date
hereof. The rights of Indemnitee provided
in this Section shall include, but
shall not be limited to, the rights set
forth in the other Sections of this
Agreement, including any additional
indemnification permitted by Section
2-418(g) of the Maryland General
Corporation Law (the "MGCL").
4. Proceedings Other Than Proceedings by or
in the Right of the Company.
Indemnitee shall be entitled to the rights
of indemnification provided in this
Section 4 if, by reason of his Corporate
Status, he is, or is threatened to be,
made a party to any threatened, pending, or
completed Proceeding, other than a
Proceeding by or in the right of the
Company. Pursuant to this Section 4,
Indemnitee shall be indemnified by the
Company against all Expenses and
Liabilities actually and reasonably
incurred by him or on his behalf in
connection with a Proceeding by reason of
his Corporate Status (referred to
herein as "INDEMNIFIABLE EXPENSES" and
"INDEMNIFIABLE LIABILITIES,"
respectively, and collectively as
"INDEMNIFIABLE AMOUNTS") unless it is
established that (i) the act or omission of
the Indemnitee was material to the
matter giving rise to the Proceeding and
(a) was committed in bad faith or (b)
was the result of active and deliberate
dishonesty, (ii) the Indemnitee actually
received an improper personal benefit in
money, property or services, or (iii)
in the case of any criminal Proceeding, the
Indemnitee had reasonable cause to
believe that his conduct was unlawful.
5. Proceedings by or in the Right of the
Company. Indemnitee shall be entitled
to the rights of indemnification provided
in this Section 5 if, by reason of his
Corporate Status, he is made a party to any
threatened, pending or completed
Proceeding brought by or in the right of
the Company to procure a judgment in
its favor. Pursuant to this Section 5,
Indemnitee shall be indemnified against
all amounts paid in settlement and all
Indemnifiable Expenses actually and
reasonably incurred by him or on his behalf
in connection with such Proceeding
unless it is established that (i) the act
or omission of the Indemnitee was
material to the matter giving rise to such
a Proceeding and (a) was committed in
bad faith or (b) was the result of active
and deliberate dishonesty or (ii) the
Indemnitee actually received an improper
personal benefit in money, property or
services; provided, however, that no
indemnification against such Indemnifiable
Expenses shall be made in respect of any
Proceeding in which Indemnitee shall
have been adjudged to be liable to the
Company.
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6. Court-Ordered Indemnification. A court
of appropriate jurisdiction, upon
application of a director or officer and
such notice as the court shall require,
may order indemnification in the following
circumstances:
(a) if it
determines a director or officer is entitled to Indemnifiable
Amounts under Section 2-418(d)(1) of the
MGCL, the court shall order
indemnification, in which case the director
or officer shall be entitled to
recover the expenses of securing such
Indemnifiable Amounts; or
(b) if it
determines that the director or officer is fairly and
reasonably
entitled to indemnification in view of all
the relevant circumstances, whether
or not the director or officer (i) has met
the standards of conduct set forth in
Section 2-418(b) of the MGCL or (ii) has
been adjudged liable for receipt of an
improper personal benefit under Section
2-148(c) of the MGCL, the court may
order such indemnification as the court
shall deem proper. However,
indemnification with respect to any
Proceeding by or in the right of the Company
or in which liability shall have been
adjudged in the circumstances described in
Section 2-418(c) of the MGCL shall be
limited to Indemnifiable Expenses.
7. Procedure for Payment of Indemnifiable
Amounts. Indemnitee shall submit to
the Company a written request specifying
the applicable Indemnifiable Amounts
for which Indemnitee seeks payment under
this Agreement and the basis for the
claim. Subject to the exceptions set forth
in Sections 4 and 5, the Company
shall pay such applicable Indemnifiable
Amounts to Indemnitee within 20 calendar
days of receipt of the request. At the
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.
8. Indemnification for Expenses of a Party
Who is Wholly or Partly Successful.
Notwithstanding any other provision of this
Agreement, and without limiting any
such provision to the extent that
Indemnitee is, by reason of Indemnitee's
Corporate Status, a party to and is
successful, on the merits or otherwise, in
any Proceeding, Indemnitee shall be
indemnified for all Indemnifiable Expenses
reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection
therewith. Without limiting any other
rights of Indemnitee in this Agreement, if
Indemnitee is not wholly successful in such
Proceeding but is
