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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
(the”Board”) 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
Indemnitee’s 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 Company’s or
any other Enterprise’s 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 Indemnitee’s 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 Indemnitee’s 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 Indemnitee’s conduct
which has been adjudicated to constitute a breach of the
Indemnitee’s 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
Indemnitee’s ability to repay the advances and without regard
to the Indemnitee’s 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
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