Exhibit 10.ff
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“Agreement”) is made as of this
day of
, , by and
between Longs Drug Stores California, Inc., a California
corporation (the “Company”), and
(“Indemnitee”).
RECITALS
A. The Indemnitee is currently
serving as an agent, as defined in Section 317 of the California
Corporations Code, of the Company and in such capacity renders
valuable services to the Company.
B. The Company has investigated
whether additional protective measures are warranted to protect
adequately its directors and officers against various legal risks
and potential liabilities to which such individuals are subject due
to their position with the Company and has concluded that
additional protective measures are warranted.
C. In order to induce and encourage
highly experienced and capable persons such as the Indemnitee to
continue to serve as an agent of the Company, the Board of
Directors has determined, after due consideration, that this
Agreement is not only reasonable and prudent, but necessary to
promote and ensure the best interests of the Company and its
shareholders.
NOW, THEREFORE, in consideration of
the continued services of the Indemnitee and as an inducement to
the Indemnitee to continue to serve as an agent of the Company and
the Indemnitee do hereby agree as follows:
AGREEMENT
I. INDEMNIFICATION .
A. Third Party Proceedings .
The Company shall indemnify Indemnitee if Indemnitee is or was a
party or is threatened to be made a party to any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that Indemnitee is or
was an agent of the Company, against expenses (including without
limitation attorneys’ fees, disbursements and retainers,
accounting and witness fees, travel and deposition costs and
expenses of investigations, judicial or administrative proceedings
or appeals), judgments, fines, penalties, excise taxes under the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld) actually and reasonably
incurred by Indemnitee in connection with such action or 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 action or
proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful. The termination of any action or proceeding
by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good
faith and in a manner which Indemnitee reasonably believed to be in
the best interests of the Company, or, with respect to any criminal
action or proceeding, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
B. Proceedings By or in the Right
of the Company . The Company shall indemnify Indemnitee if
Indemnitee was or is a party or is threatened to be made a party to
any threatened, pending or completed action or proceeding by or in
the right of the Company or any subsidiary of the Company to
procure a judgment in its favor by reason of the fact that
Indemnitee is or was agent of the Company, or any subsidiary of the
Company, by reason of any action or inaction on the part of
Indemnitee while acting as an agent of the Company against expenses
(including without limitation attorneys’ fees, disbursements
and retainers, accounting and witness fees, travel and deposition
costs and expenses of investigations, judicial or administrative
proceedings or appeals), and, to the fullest extent permitted by
law, amounts paid in settlement, in each case to the extent
actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of such action or 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 its shareholders, except that no indemnification
shall be made in respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the Company in
the performance of Indemnitee’s duty to the Company and its
shareholders unless and only to the extent that the court in which
such action or proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for
expenses and then only to the extent that the court shall
determine.
II. AGREEMENT TO SERVE .
Indemnitee agrees to continue to
serve as an agent of the Company and/or one or more of the
Company’s subsidiaries, as the case may be, so long as
Indemnitee is duly appointed or elected and qualified in accordance
with the applicable provisions of the bylaws of the Company or any
subsidiary of the Company or until such time as Indemnitee tenders
a resignation in writing. Nothing contained in this Agreement is
intended to create in Indemnitee any right to continued
employment.
III. EXPENSES; INDEMNIFICATION PROCEDURE
.
A. Advancement of Expenses .
The Company shall advance all expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of
any civil or criminal action or proceeding referenced herein.
Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid
by the Company to Indemnitee within twenty (20) days following
delivery of a written request therefor by Indemnitee to the
Company.
B. Notice/Cooperation by
Indemnitee . Indemnitee shall give the Company notice in
writing as soon as practicable of any claim made against Indemnitee
for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the President
of the Company and the General Counsel of the Company at the
address shown on the signature page of this Agreement (or such
other address as the Company shall designate in writing to the
Indemnitee). Notice shall be deemed received three business days
after the date postmarked if sent by domestic certified or
registered mail, properly addressed; otherwise notice shall be
deemed received when such notice shall actually be received by the
Company. The
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omission to so notify the Company will not
relieve the Company from any liability which it may have under this
Agreement or otherwise. In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee’s power.
C. Procedure . Any
indemnification under this Agreement, other than pursuant to
Section 4 hereof, shall be made no later than 45 days after receipt
by the Company of the written request of Indemnitee, accompanied by
substantiating documentation, unless a determination is made within
said 45-day period by (1) the Board of Directors by a majority vote
of a quorum consisting of directors who are not and were not
parties to such proceeding, or (2) independent legal counsel in a
written opinion (which counsel shall be appointed if such quorum is
not obtainable), that Indemnitee has not met the relevant standards
for indemnification set forth herein.
In the event the Company does not
indemnify Indemnitee within such 45-day period, whether or not the
Company (including its Board of Directors or independent legal
counsel) has made a determination that Indemnitee has not met the
applicable standard of conduct, Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid
amount in any court of competent jurisdiction. The burden of
proving by clear and convincing evidence that indemnification is
not appropriate shall be on the Company. Neither the failure of the
Company (including its Board of Directors or independent legal
counsel) to have made a determination prior to the commencement of
such action that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor
a
