EXHIBIT
10.2
INDEMNIFICATION
AGREEMENT
This
INDEMNIFICATION AGREEMENT (this “ Agreement ”)
dated as of the 25th day of September, 2009 by and between THE
DRESS BARN, INC., a Connecticut corporation (the “
Company ”), and the person named as Indemnitee on the
signature page hereof (the “ Indemnitee
”).
WITNESSETH:
WHEREAS,
in recognition of the Indemnitee’s need for substantial
protection against personal liability arising out of his service to
the Company and/or its subsidiaries and affiliates, the Company
wishes to provide in this Agreement for the indemnification of, and
the advancing of expenses to, the Indemnitee as set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual benefits
to be derived from this Agreement, and intending to be legally
bound hereby, the parties hereto hereby agree as
follows:
(a) The Company hereby
agrees to indemnify the Indemnitee in the event the Indemnitee is
or becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, any action, suit or proceedings (including any appeal), whether
civil, criminal, administrative, investigative or other, relating
to any occurrence or event before or after the date hereof, by
reason of the fact that the Indemnitee is or was a director,
officer, employee, partner, trustee or agent of, or consultant to,
the Company or any of its subsidiaries or affiliates, or is or was
serving at the request of the Company or any of its subsidiaries or
affiliates as a director, officer, employee, partner, trustee or
agent of, or consultant to, another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise,
including but not limited to any such action, suit or proceeding
(including any appeal), whether civil, criminal, administrative,
investigative or other by any third party or by or in the right of
the Company or any of its subsidiaries or affiliates or any such
other corporation, partnership, joint venture, trust, employee
benefit plan or enterprise (hereinafter called a “
Claim ”), for and against expenses, including
attorneys’ fees, and all other costs, charges and expenses
paid, incurred by or assessable against the Indemnitee in
connection with investigating, defending, being a witness in or
participating in, or preparing to defend, be a witness in or
participate in, any Claim (collectively, “ Expenses
”) and judgments, fines, penalties, taxes (including excise
taxes), and amounts paid or to be paid in settlement (including all
interest, assessments and other charges paid or payable in respect
of the foregoing) incurred by the Indemnitee in connection with any
Claim (collectively, “ Damages ”).
(b) If requested by
the Indemnitee, the Company shall, upon presentation of bills,
statements of account or invoices for Expenses relating to a Claim,
advance to or pay on behalf of the Indemnitee, within 30 days of
such request, any and all Expenses shown on such bills, statements
or invoices relating to such Claim (an “ Expense
Advance ”), upon (i) receipt of a written affirmation of
the Indemnitee’s good faith belief that the Indemnitee
conducted himself in good faith and reasonably believed in the case
of conduct in his official capacity, that his conduct was in the
Company’s best interests, and in all other cases, that his
conduct was not opposed to its best interest; and in the case of
any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful; or that the proceeding involves conduct for
which liability has been eliminated under a provision of the
Certificate of Incorporation authorized by the Connecticut Business
Corporation Act (the “ CBCA ”); (ii) receipt of
a written undertaking by or on behalf of the Indemnitee to repay
such Expense Advance in the event of a final determination,
adjudication or judgment (as to which all rights of appeal have
been exhausted or have lapsed) that the Indemnitee is not entitled
to indemnification pursuant to this Agreement; and (iii) if
required under applicable law, a determination is made that the
facts then known to those making the determination would not
preclude indemnification under the CBCA.
(c) In the event that
the Indemnitee demands indemnification hereunder as a result of any
Claim, the Indemnitee shall provide the Company with notice of such
Claim and shall make available to the Company all information in
the Indemnitee’s possession that reasonably relates to such
Claim. The Company shall have the right, but not the
obligation, to control the defense of the Indemnitee from such
Claim at the Company’s sole cost and expense and by counsel
mutually acceptable to the Company and the
Indemnitee. In the event that the Company shall elect to
exercise such right to control such defense, the Indemnitee shall
have the right to participate in such defense at the
Indemnitee’s sole expense and through counsel of its
choice. No Claim shall be settled or compromised without
the consent of the Company, which shall not be unreasonably
withheld, unless the Company shall have failed, after the lapse of
a reasonable time, but in no event more than 30 days after notice
to the Company of such proposed settlement or compromise, to notify
the Indemnitee of the Company’s reasonable objection
thereto. The Indemnitee’s failure to give timely
notice or to provide copies of documents or to furnish information
in connection with any Claim shall not constitute a defense to any
claim for indemnification by the Indemnitee hereunder except, and
only to the extent, that the Company is materially prejudiced
thereby.
(d) If there has not
been a Change in Control (as defined in Section 2(b) hereof), the
determination that indemnification of the Indemnitee is permissible
in the circumstances shall be made by the Board of Directors of the
Company (the “ Board of Directors ”), a
committee of the Board of Directors, special legal counsel or the
Company’s shareholders (the “ Reviewing Party
”) in accordance with the CBCA, with the method of
determination to be chosen by the Board of Directors. If
there has been a Change in Control, the Reviewing Party shall be
the special legal counsel selected by the Company in accordance
with the CBCA and approved by the Indemnitee (which approval shall
not be unreasonably withheld) unless (i) the Change in Control has
been approved by a majority of the Board of Directors who were
directors immediately prior to such Change in Control and (ii) the
individuals who were directors prior to the Change in Control
constitute at least two-thirds of the members of the Board of
Directors as of the date of the determination, in which case the
method of determination shall be chosen by the Board of Directors
pursuant to the immediately preceding sentence. Subject
to Section 7, any determination by the Reviewing Party shall be
conclusive and binding on the Company and the
Indemnitee. The Company promptly will advise the
Indemnitee in writing with respect to any determination that the
Indemnitee is or is not entitled to indemnification, including a
description of any reason or basis for which indemnification has
been denied.
2. Change in Control
.
(a) If there has been
a Change in Control, except as otherwise provided in Section 1(d)
of this Agreement, special legal counsel shall be selected by the
Company in accordance with the CBCA and approved by the Indemnitee
(which approval shall not be unreasonable withheld) and such
special legal counsel shall determine whether the officer or
director is entitled to indemnity payments and Expense Advances
under this Agreement or any other agreement or the Certificate of
Incorporation or By-laws of the Company now or hereafter in effect
relating to Claims for indemnifiable events. Such
special legal counsel, among other things, shall render its written
opinion to the Company and the Indemnitee as to whether and to what
extent the Indemnitee will be permitted to be indemnified. The
Company agrees to pay the reasonable fees of the special legal
counsel and to indemnify fully such special legal counsel against
any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this
Agreement or the engagement of special legal counsel pursuant
hereto.
(b) For purposes of
this Agreement, a “ Change in Control ” shall
mean any of the following events:
1. An acquisition
(other than directly from the Company) of any voting securities of
the Company (the “ Voting Securities ”) by any
“Person” (as the term person is used for purposes of
Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended from time to time (the “ Exchange Act
”), immediately after which such Person has
“Beneficial Ownership” (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of twenty-five percent
(25%) or more of the combined voting power of the Company’s
then outstanding Voting Securities; provided ,
however , that the term “Person” for purposes of
this Section 2(b)(1) shall not include (i) any employee benefit
plan maintained by the Company, or (ii) Elliot or Roslyn Jaffe or
any lineal descendant (the “ Jaffe Family ”) or
any trust or similar entity established by or for the benefit of
any of member of the Jaffe Family;
2. The individuals
who, as of the date of this Agreement are members of the Board of
Directors (the “ Incumbent Board ”), cease for
any reason to constitute at least two-thirds of the members of the
Board; provided , however , that if the election, or
nomination for election by the Company’s common shareholders,
of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of
this Agreement, be considered as a member of the Incumbent Board;
provided further , however , that no
individual shall be considered a member of the Incumbent Board if
such individual initially assumed office as a result of either an
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board of Directors (a “
Proxy Contest ”) including by reason of any agreement
intended to avoid or settle any Proxy Contest; or
3. Approval by
shareholders of the Company of:
i. A merger,
consolidation or reorganization involving the Company, unless such
merger, consolidation or reorganization is a Non-Control
Transaction. A “ Non-Control Transaction
” shall mean a merger, consolidation or reorganization of the
Company where: (a) the shareholders of the Company, immediately
before such merger, consolidation or reorganization, own directly
or indirectly immediately following such merger, consolidation or
reorganization, at least fifty-one percent (51%) of the combined
voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation or
reorganization (the “ Surviving Corporation ”)
in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger, consolidation or
reorganization; (b) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, or a corporation
beneficially owning directly or indirectly a majority of the Voting
Securities of the Surviving Corporation; and (c) no Person other
than (i) the Company, (ii) any subsidiary, (iii) any employee
benefit plan (or any trust forming a part thereof) maintained by
the Company, the Surviving Corporation, or any subsidiary, or (iv)
any Person who, immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of twenty-five percent
(25%) or more of the then outstanding Voting Securities) has
Beneficial Ownership of twenty-five percent (25%) or more of the
combined voting power of the Surviving Corporation’s then
outstanding voting securities;
ii. A complete
liquidation or dissolution of the Company; or
iii. An agreement for
the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
subsidiary).
3. Establishment
of Trust . Immediately prior to or upon a Change in
Control, the Company shall, upon written request by the Indemnitee,
promptly create a trust (the “ Trust ”) for the
benefit of the Indemnitee and from time to time, upon written
request of the Indemnitee to the Company, shall fund the Trust in
an amount, as set forth in such request, sufficient to satisfy any
and all Expenses reasonably anticipated at the time of each such
request to be incurred in connection with investigating, preparing
for and defending any Claim, and any and all judgments, fines,
penalties and settlement amounts of any and all Claims from time to
time actually paid or claimed, reasonably anticipated or proposed
to be paid. The terms of the Trust shall provide that
(i) the Trust shall not be revoked or the principal thereof invaded
without the written consent of the Indemnitee; (ii) the trustee of
the Trust (the “ Trustee ”) shall advance in
accordance with Section 1(b) hereof, within 30 days of a request by
the Indemnitee, any and all Expenses to the Indemnitee, not
advanced directly by the Company to the Indemnitee (and the
Indemnitee hereby agrees to reimburse the Trust under the
circumstances under which the Indemnitee would be required to
reimburse the Company under Section 1(b)); (iii) the Trust shall
continue to be funded by the Company in accordance with the funding
obligation set forth above; (iv) the Trustee shall promptly pay to
the Indemnitee all amounts for which the Indemnitee shall be
entitled to indemnification pursuant to this Agreement or
otherwise; (v) the Company shall pay all fees and expenses of the
Trustee; and (vi) all unexpended funds in the Trust shall revert to
the Company upon a final determination by arbitration or court of
competent jurisdiction, as the case may be, that the Indemnitee has
been fully indemnified under the terms of this
Agreement. The Trustee shall be chosen by the
Indemnitee.
4. Indemnification
for Additional Expenses . The Company shall
indemnify the Indemnitee against any and all Expenses and, if
requested by the Indemnitee, shall, upon presentation of bills,
statements of account or invoices for Expenses, within 30 days of
such request, advance such Expenses shown on such bills, statements
or invoices to the Indemnitee, which are incurred by the Indemnitee
in connection with any claim asserted by or action brought by the
Indemnitee for (i) indemnification or advance payment of Expenses
in accordance with Section 1(b) hereof by the Company un
