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EXHIBIT 10.20
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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1.
Definitions .
(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
without limiting any such provision, to the extent t
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