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TRUMP ENTERTAINMENT RESORTS, INC. | Trump Entertainment Resorts, Inc | Trump Marina Associates, LLC | Trump Plaza Associates, LLC | Trump Taj Mahal Associates, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.1
INDEMNITY AGREEMENT
THIS AGREEMENT is made as of August 1, 2007, by and among Trump Entertainment Resorts, Inc., a Delaware corporation (the Company), Trump Plaza Associates, LLC (the Plaza), Trump Taj Mahal Associates, LLC (the Taj), Trump Marina Associates, LLC (the Marina), (the Marina and, collectively with the Plaza, the Taj, and the Company, the Indemnitors), and Ivanka M. Trump (the Indemnitee), a director of the Company.
RECITALS
WHEREAS, although the Certificate of Incorporation and the By-laws of the Company provide for indemnification of the officers and directors of the Company and the Indemnitee may also be entitled to indemnification pursuant to the Delaware General Corporation Law (DGCL), the Certificate of Incorporation and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the Board of Directors of the Company (theBoard) with respect to indemnification of directors; and
WHEREAS, each of the Indemnitors other than the Company, is, directly or indirectly, a wholly-owned or majority owned subsidiary of the Company or is, directly or indirectly, managed by the Company, and the Indemnitees continued service to the Company substantially benefits each of the Indemnitors; and
WHEREAS, the limited liability company agreement or certificate of incorporation and by-laws, as the case may be, of each of the Plaza, the Taj, and the Marina authorizes each such corporation or limited liability company to indemnify its members, directors and officers and those who serve on the board of directors of an affiliated entity, including service on the Board; and
WHEREAS, the Board and all of the members or directors, as the case may be, of each the Plaza, the Taj, and the Marina have determined that it is in the best interest of each of the Indemnitors and that it is reasonably prudent and necessary for each of the Indemnitors contractually to obligate itself, jointly and severally, to indemnify, and to advance Expenses on behalf of, the Indemnitee to the fullest extent permitted by applicable law in order to induce her to serve or continue to serve the Company free from undue concern that she will not be so indemnified or that any indemnification obligation will not be met; and
WHEREAS, this Agreement is a supplement to and in furtherance of (a) the Certificate and Bylaws of the Company, and (b) the provisions of the limited liability company agreement or certificate of incorporation and bylaws, as the case may be, of each of the Plaza, the Taj, and the Marina, and (c) the certificate of incorporation and by laws, limited liability company agreement, partnership agreement or other organizational documents, as the case may be, of any other Enterprise (as defined below) and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of the Indemnitee thereunder; and
WHEREAS, the Indemnitee does not regard the protection available under the Companys or any other Enterprises certificate of incorporation, bylaws or other organizational documents and insurance as adequate in the present circumstances, and may not be willing to continue to serve as a director of the Company or any other Enterprise without adequate protection, and the Indemnitors desire the Indemnitee to continue to serve in such capacity. The Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company and certain other Enterprises on the condition that she be so indemnified;
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the Indemnitors and Indemnitee do hereby covenant and agree as follows:
1. Services to the Company and Certain Other Enterprises. The Indemnitee will serve or continue to serve as a director of the Company and certain other Enterprises for so long as the Indemnitee is duly elected or appointed or until the Indemnitee tenders her resignation. This Agreement shall not be viewed as an employment contract between the Company or the Indemnitors and the Indemnitee.
2. Definitions. As used in this Agreement:
a. Corporate Status describes the status of a person who is or was a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company or of any other Enterprise.
b. Disinterested Director shall mean a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by the Indemnitee.
c. Enterprise shall mean (i) the Company and (ii) any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise which is an affiliate or wholly or partially owned subsidiary of the Company or of which the Indemnitee is or was serving as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary and (iii) any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company.
d. Expenses shall include all reasonable attorneys fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses shall include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent and (ii) for purposes of Section 13(e) hereof, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitees rights under this Agreement, by litigation or otherwise. Expenses, however, shall not include amounts paid in settlement by the Indemnitee or the amount of judgments or fines against the Indemnitee.
e. References to fines shall include any excise tax assessed with respect to any employee benefit plan;
f. References to serving at the request of the Company shall include any service as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, trustee, general partner, managing member, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the Company as referred to in this Agreement.
g. The term Proceeding shall include any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, including without limitation any such proceeding pending as of the date of this Agreement, in which the Indemnitee was, is or will be involved as a party or otherwise by reason of the fact that the Indemnitee is or was a director of the Company, by reason of any action taken by her or of any action on her part while acting as director of the Company, or by reason of the fact that she is or was serving as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of any other Enterprise, in each case whether or not serving in such capacity at the time any Expense, judgment, fine or amount paid in settlement is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement; except one initiated by the Indemnitee to enforce her rights under this Agreement.
h. Independent Counsel means a law firm, or a member of the a law firm, that is experienced in matters of corporation law and neither currently is, nor in the past five years has been, retained to represent: (i) the Indemnitors or the Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnities under similar indemnification agreements) or (ii) any other part to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term Independent Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Indemnitors or the Indemnitee in an action to determine the Indemnitees rights under this Agreement. The Indemnitors agree to pay for reasonable fees and Expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto and to be jointly and severally liable therefor.
3. Indemnity in Third-Party Proceedings. The Indemnitors shall be jointly and severally liable to indemnify the Indemnitee in accordance with the provisions of this Section 3 if the Indemnitee is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, the Indemnitee shall be indemnified, to the fullest extent permitted by applicable law, against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee or on her behalf in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner she reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding had no reasonable cause to believe that her conduct was unlawful.
4. Indemnity in Proceedings by or in the Right of the Company. The Indemnitors shall be jointly and severally liable to indemnify the Indemnitee in accordance with the provisions of this Section 4 if the Indemnitee is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Indemnitee shall be indemnified, to the fullest extent permitted by applicable law, against all Expenses actually and reasonably incurred by her or on her behalf in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner she reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which the Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification.
5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by applicable law and to the extent that the Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Indemnitors shall be jointly and severally liable to indemnify the Indemnitee against all Expenses actually and reasonably incurred by her in connection therewith. If the Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Indemnitors shall be jointly and severally liable to indemnify Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee or on her behalf in connection with each successfully resolved claim, issue or matter. If the Indemnitee is not wholly successful in such Proceeding, the Indemnitors also shall be jointly and severally liable to indemnify the Indemnitee against all Expenses reasonably incurred in connection with any claim, issue or matter that is related to any claim, issue, or matter on which the Indemnitee was successful. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
6. Indemnification For Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the fullest extent permitted by applicable law and to the extent that the Indemnitee is, by reason of her Corporate Status, a witness in any Proceeding to which the Indemnitee is not a party, she shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee or on her behalf in connection therewith.
7. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, the Indemnitors shall be jointly and severally liable to indemnify the Indemnitee to the fullest extent permitted by law if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with the Proceeding. No indemnity shall be made under this Section 7(a) on account of the Indemnitees conduct which has been adjudicated to constitute a breach of the Indemnitees duty of loyalty to the Company or its shareholders or an act or omission not in good faith or which involves intentional misconduct or a knowing violation of the law.
(b) Notwithstanding any limitation in Sections 3, 4, 5 or 7(a), the Indemnitors shall be jointly and severally liable to indemnify Indemnitee to the fullest extent permitted by law if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with the Proceeding.
(c) For purposes of Sections 7(a) and 7(b), the meaning of the phrase to the fullest extent permitted by law shall include, but not be limited to:
(i) to the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL; and
(ii) to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.
8. Exclusions. Notwithstanding any provision in this Agreement, the Indemnitors shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee:
a. for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount actually received under any insurance policy or other indemnity provision;
b. for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), or similar provisions of state statutory law or common law; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other equity-based or incentive-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act; or
c. except as provided in Section 13(e) hereof, in connection with any Proceeding (or any part thereof) initiated by the Indemnitee, including any Proceeding (or part thereof) initiated by the Indemnitee against the Company or its officers, directors and other Indemnitees unless (i) the Board authorized the Proceeding (or part thereof) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to its powers under applicable law.
9. Advancement of Expenses; Defense of Claim.
a. Notwithstanding any provision of this Agreement to the contrary, the Indemnitors shall be jointly and severally obligated to advance, to the extent not prohibited by law, any and all Expenses incurred by the Indemnitee in connection with any Proceeding within 30 days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding.
Advances shall be unsecured and interest free. Advances shall be made without regard to the Indemnitees ability to repay the advances and without regard to the Indemnitees ultimate entitlement to indemnification under the other provisions of this Agreement. Advances shall include any all reasonable Expenses incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. The Indemnitee shall qualify for advances solely upon the execution and delivery to the Company of an undertaking providing that the Indemnitee undertakes to repay the advance to the extent and only to the extent that it is ultimately determined that the Indemnitee is not entitled to be indemnified by the Indemnitors. This Section 9 shall not apply to any claim made by Indemnitee for which indemnification is excluded under Section 8 hereof.
b. The Company will be entitled to participate reasonably in the Proceeding at its own expense.
10. Procedure for Notification and Request for Indemnification.
a. To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company written notification not later than sixty (60) days after receipt by the Indemnitee of notice of the commencement of any Proceeding except for Proceedings pending as of the date of this Agreement; with regard to such pending Proceedings, Indemnitee shall submit to the Company written notification not later than sixty (60) days after the date of this Agreement. The submission of written notification by the Indemnitee to the Company shall be deemed to be made as to all the Indemnitors. The omission to notify the Company will relieve an Indemnitor of its indemnification obligations under this Agreement only to the extent such Indemnitor can establish that such omission to notify resulted in actual prejudice to it, and the omission to notify the Company will not relieve the Indemnitors from any liability which they may have to indemnify the Indemnitee otherwise than under this Agreement. The Secretary of the Company shall, promptly upon receipt of notification from the Indemnitee pursuant to this Section 10(a), advise the Board and the other Indemnitors in writing that the Indemnitee has provided such notification.
b. Following notification by the Indemnitee pursuant to Section 10(a) of this Agreement, the Indemnitee shall thereafter, consistent with the time period for the duration of this Agreement as set forth in Section 15 of this Agreement, submit to the Company a written request for indemnification pursuant to this Section 10(b), including therein or therewith such documentation and information as is reasonably available to the Indemnitee and is reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification. The submission by the Indemnitee of a written request for indemnification to the Company shall be deemed to be made as to all Indemnitors. The failure to submit a written request to the Company will relieve an Indemnitor of its indemnification obligations under this Agreement only to the extent such Indemnitor can establish that such failure to make a written request resulted in actual prejudice to it, and the failure to make a written request will not relieve the Indemnitors from any liability which they may have to indemnify the Indemnitee otherwise than under this Agreement. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board and the other Indemnitors in writing that the Indemnitee has requested indemnification. Upon submission of a written request for indemnification by the Indemnitee pursuant to this Section 10(b), the Indemnitees entitlement to indemnification shall be determined according to Section 11 of this Agreement.
11. Procedure Upon Application for Indemnification.
a. Upon receipt of the Indemnitees written request for indemnification pursuant to Section 10(b), a determination with respect thereto shall be made in the specific case: (i) by the Disinterested Directors, even though less than a quorum, so long as the Indemnitee does not request that such determination be made by Independent Counsel; or (ii) if so requested by the Indemnitee in her sole discretion, or if there are no Disinterested Directors, by Independent Counsel in a writt






