Exhibit 10-11
INDEMNIFICATION AGREEMENT
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This Agreement, is made and entered into this 3rd day of September, 1997
("Agreement"), by and between The Quizno's Corporation, a Colorado corporation
("Company"), and Xxxx X. Xxxxxxxx ("Indemnitee"):
WHEREAS, highly competent persons are becoming more reluctant to serve
corporations as directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation;
WHEREAS, the Board of Directors of the Company has determined that the
inability to attract and retain such persons is detrimental to the best
interests of the Company's stockholders and that the Company should act to
assure such persons that there will be increased certainty of such protection
in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest
extent permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they will not be so
indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that he be
so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
SECTION 1. Services by Indemnitee. Indemnitee has agreed to serve, or
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presently serves, the Company and/or its subsidiaries in one or more positions
of significant responsibility and importance to the Company, and Indemnitee
may serve the Company in additional positions in the future. Indemnitee may
at any time and for any reason resign from such position and the Company shall
have no obligation under this Agreement to continue Indemnitee in such
position unless otherwise obligated by contract or law.
SECTION 2. Indemnification - General. The Company shall indemnify, and
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advance Expenses (as defined in Section 16) to, Indemnitee (a) as provided in
this Agreement, and (b) to the fullest extent permitted by applicable law in
effect on the date hereof and as amended from time to time. The rights of
Indemnitee provided under the preceding sentence shall include, but shall not
be limited to, the rights set forth in the other Sections of this Agreement.
The indemnity and prepayment obligations of the Company and the standards
for indemnification set forth in this Agreement shall apply in all cases, even
if the conduct, act or omission in question occurred prior to the date of this
Agreement.
SECTION 3. Indemnification . Indenmitee shall be entitled to the rights
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of indemnification provided in this Section 3 if, by reason of his Corporate
Status (as defined in Section 16), he is, or is threatened to be made, a party
to any threatened, pending, or completed Proceeding (as defined in Section
16). Indenmitee shall be entitled to such rights regardless of whether the
Proceeding relates to periods prior to or after execution of this Agreement.
Pursuant to this Section 3, Indemnitee shall be indemnified against all
Expenses, judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if he acted in good faith
and he reasonably believed, in the case of conduct in his official capacity
with the Company, that his conduct was in the best interests of the Company;
or in all other cases, that his conduct was at least not opposed to the best
interests of the Company and, with respect to any criminal Proceeding, had no
reasonable cause to believe his conduct was unlawful. Notwithstanding
anything herein to the contrary, no indemnification against such Expenses,
judgments, penalties, fines or amounts paid in settlement shall be made in
respect of any claim, issue or matter which has been determined, by final
adjudication by a court of competent jurisdiction, to constitute an Excluded
Claim (as defined in Section 16).
Section 4. Indemnification for Expenses of a Party Who is Wholly or
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Partly Successful. Notwithstanding any other provision of this Agreement, to
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the extent that Indemnitee is, by reason of his Corporate Status, a party to
and is wholly successful, on the merits or otherwise, in any Proceeding, he
shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith. If 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 Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf, as determined by the
Board of Directors, in connection with each successfully resolved claim, issue
or matter. 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.
Section 5. Indemnification for Expenses of a Witness. Notwithstanding
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any other provision of this Agreement, to the extent that Indemnitee, by
reason of his Corporate Status, appears as a witness at a Proceeding or at a
deposition related to any Proceeding to which Indemnitee is not a party, he
shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection with such appearance, or in preparation for
such appearance.
Section 6. Advancement of Expenses. The Company shall advance all
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reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within ten days after the receipt by the Company of a statement
or statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee, shall include or be preceded by (i) an undertaking by Indemnitee
to repay any Expenses advanced if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified against such Expenses, (ii) a
written affirmation by the Indenmitee of his good faith belief that he has met
the standard of conduct described in Section 3, and (iii) evidence of a
determination, made in accordance with Section 7 hereof, that the facts then
known to those making the determination would not preclude indemnification.
Section 7. Procedure for Determination of Entitlement to Indemnification.
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(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification or whether he is seeking indemnification for an
Excluded Claim and therefore not entitled to indemnification. The Secretary
of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant
to the first sentence of Section 7(a) hereof, the appropriate entity, as
mandated by this Section 7(b), shall determine whether Indemnitee is entitled
to indemnification and whether he is seeking indemnification for an Excluded
Claim. Such determination shall be made: (i) by Independent Counsel (as
defined in Section 16) in writing to the Board of Directors, a copy of which
shall be delivered to Indemnitee, if a Change in Control (as defined in
Section 16) shall have occurred; or (ii) if a Change of Control shall not have
occurred, (A) by the Board of Directors by a majority vote of a quorum
consisting of Disinterested Directors (as defined in Section 16), or (B) if a
quorum of the Board of Directors consisting of Disinterested Directors is not
obtainable or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in writing to the Board of Directors, a copy
of which shall be delivered to Indenmitee or (C) if so directed by the Board
of Directors, by the stockholders of the Company; and, if it is so determined
that Indemnitee is entitled to indemnification, payment to Indemnitee shall be
made within ten (10) days after such determination. Indemnitee shall
cooperate with the person, persons or entity making such determination with
respect to Indemnitee's entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or expenses (including attorneys'
fees and disbursements) incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indenmifies and agrees to hold
Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 7(b) hereof, the
Independent Counsel shall be selected as provided in this Section 7(c). If a
Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board of Directors, and the Company shall give written notice
to Indemnitee advising him of the identity of the Independent Counsel so
selected. If a Change of Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within 10 days
after such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to such
selection; provided, however, that such objection may be asserted only on the
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ground that the Independent Counsel so selected does not meet the requirements
of "Independent Counsel" as defined in Section 16 of this Agreement, and the
objection shall set forth with particularity the factual basis of such
assertion. If such written objection is so made and substantiated, the
Independent Counsel so selected may not serve as Independent Counsel unless
and until such objection is withdrawn or a court has determined that such
objection is without merit. If, within 20 days after submission by Indemnitee
of a written request for indemnification pursuant to Section 7(a) hereof, all
Independent Counsel selected have been objected to, either the Company or
Indemnitee may petition a court of competent jurisdiction, subject to the
provisions of Section 2 1, for resolution of any objection which shall have
been made by the Company or Indemnitee to the other's selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the Court or by such other person as the Court shall designate, and the
person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 7(b) hereof The
Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting
pursuant to Section 7(b) hereof, and the Company shall pay all reasonable fees
and expenses incident to the procedures of this Section 7(c), regardless of
the manner in which such Independent Counsel was selected or appointed. Upon
the due commencement of any judicial proceeding or arbitration pursuant to
Section 9(b) or (c) of this Agreement, Independent Counsel shall be discharged
and reli5yed of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
(d) Indemnitee agrees that he will reimburse the Company for all
Expenses paid by the Company in connection with any action, suit or proceeding
against Indemnitee in the event and only to the extent that a determination
shall have been made by a court in a final adjudication from which there is no
further right of appeal that the Indemnitee is not entitled to be indemnified
by the Company for such Expenses because the claim is an Excluded Claim or
because Indemnitee is otherwise not entitled to payment under this Agreement.
Section 8. Presumptions and Effect of Certain Proceedings.
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(a) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 7(a) of
this Agreement, and the Company shall have the burden of proof to overcome
that presumption in connection with the making by any person, persons or
entity of any determination contrary to that presumption.
(b) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a plea
of Nolo contendere or its equivalent, shall not (except as otherwise expressly
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provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful.
Section 9. Remedies of Indemnitee. Indemnitee shall commence any
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proceeding seeking an adjudication or an award in arbitration under this
Section 9 within 180 days following the date on which Indemnitee first has the
right to commence such proceeding pursuant to this Section 9; provided,
however, that the foregoing clause shall not apply in respect of a proceeding
brought by Indemnitee to enforce his rights under Section 4 of this Agreement.
(a) Except as provided by Section 9(c), the parties agree that venue
and jurisdiction, with respect to any matter arising under the Agreement,
shall be exclusively in the state or federal courts, as applicable, located in
the State of Colorado. Each party submits to the jurisdiction of such courts
in Colorado with respect to any claim or controversy arising under this
Agreement.
(b) In the event that: (i) a determination is made pursuant to
Section 7 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement; (ii) advancement of Expenses is not timely made pursuant
to Section 6 of this Agreement; (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 7(b) of this
Agreement within 90 days after receipt by the Company of the request for
indemnification; (iv) payment of indemnification is not made pursuant to
Section 4 or 5 of this Agreement within ten (10) days after receipt by the
Company of a written request therefor; or (v) payment of indemnification is
not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of Colorado of his
entitlement to such indemnification or advancement of Expenses.
(c) Alternatively, if one of the events set forth in Section 9(b) has
occurred, Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator, in the State of Colorado, pursuant to the
Commercial Arbitration Rules of the American Arbitration Association.
(d) In the event that a determination shall have been made pursuant
to Section 7(b) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 9 shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. If a Change of Control shall have occurred, in
any judicial proceeding or arbitration commenced pursuant to this Section 9
the Company shall have the burden of proving that Indemnitee is not entitled
to indemnification or advancement of Expenses, as the case may be.
(e) If a determination shall have been made pursuant to Section 7(b)
of this Agreement that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 9, absent (i) a misstatement by Indemnitee
of a material fact, or an omission of a material fact necessary to make
Indemnitee's statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(f) In the event that Indemnitee, pursuant to this Section 9, seeks a
judicial adjudication of or an award in arbitration to enforce his rights
under, or to recover damages for breach of this Agreement, Indemnitee shall be
entitled to recover from the Company, and shall be indemnified by the Company
against, any and all expenses (of the types described in the definition of
Expenses in Section 16 of this Agreement) actually and reasonably incurred by
him in such judicial adjudication or arbitration, but only if he prevails
therein. If it shall be determined in said judicial adjudication or
arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall
be appropriately prorated by the court or arbitrator.
Section 10. Non-exclusivity: Survival of Rights: Insurance: Subrogation
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(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Articles of Incorporation, the Bylaws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise. Indemnitee shall be
entitled to such rights regardless of whether the subject Proceeding relates
to periods prior to or after execution of this Agreement. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit
or restrict any right of Indemnitee under this Agreement in respect of any
action taken or omitted by such Indemnitee in his Corporate Status prior to
such amendment, alteration or repeal.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers, employees, or
agents of the Company or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in which position such person
serves at the request of the Company, Indemnitee shall be named as an insured
in such manner as to provide Indemnitee the same rights and benefits, subject
to the same limitations, as are accorded to the Company's directors or
officers most favorably insured by such policy.
(c) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 11. Duration of Agreement. This Agreement shall continue until
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and terminate upon the later of. (a) 10 years after the date that Indemnitee
shall have ceased to serve as a officer, employee, or agent of the Company or
of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which Indemnitee served at the request of the
Company; or (b) the final termination of any Proceeding then pending in
respect of which Indemnitee is granted rights of indemnification or
advancement of expenses hereunder and of any proceeding commenced by
Indemnitee pursuant to Section 9 of this Agreement relating thereto. This
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of Indemnitee and his heirs, executors and
administrators.
Section 12. Severability. If any provision or provisions of this
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Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each portion of
any Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (b)
to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested thereby.
Section 13. Exception to Right of Indemnification or Advance
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Notwithstanding any other provision of this Agreement, Indemnitee shall not be
entitled to indemnification or advancement of Expenses under this Agreement
with respect to any Proceeding initiated by Indemnitee prior to a Change in
Control, unless the initiation of such Proceeding shall have been approved by
the Board of Directors.
SECTION 14. Identical Counterparts. This Agreement may be executed in
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one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of
this Agreement. Signatures may be exchanged by telecopy, with original
signatures to follow. The Company and the Indemnitee agree that they will
each be bound by its own telecopied signature and that it accepts the
telecopied signatures of the other party.
SECTION 15. Headings. The headings of the paragraphs of this Agreement
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are inserted for convenience only and shall not be deemed to constitute part
of this Agreement or to affect the construction thereof.
SECTION 16. Definitions. For purposes of this Agreement:
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(a) "Change in Control" means a change in control of the Company
occurring after the Effective Date of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form) promulgated
under the Securities Exchange Act of 1934 (the "Act"), whether or not the
Company is then subject to such reporting requirement; provided, however,
that, without limitation, such a Change in Control shall be deemed to have
occurred if after the Effective Date (i) any "person" (as such term is used
in Sections 13(d) and 14(d) of the Act) becomes the "beneficial owner" (as
defined in Rule 13 d-3 under the Act), directly or indirectly, of securities
of the Company representing 51 % or more of the combined voting power of the
Company's then outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office immediately
prior to such person attaining such percentage interest; (ii) there occurs a
proxy contest, or the Company is a party to a merger, consolidation, sale of
assets, plan of liquidation or other reorganization not approved by at least
two-thirds of the members of the Board of Directors then in office, as a
consequence of which members of the Board of Directors in office immediately
prior to such action or event constitute less than a majority of the Board of
Directors thereafter; or (iii) during any period of two consecutive years,
other than as a result of an event described in clause (a)(ii) of this Section
16, individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved by a vote
of at least two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute
at least a majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who is or was
a director or officer of the Company or a director, officer, employee or agent
of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise to the extent such person is or was serving in such
position at the request of the Company.
(c) "Disinterested Director" means a director of the Company who is not
and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(d) "Effective Date" means the date on which Indemnitee became an
officer or director of the Company or otherwise accepted a position with the
Company of the type described in Section I above.
(e) "Excluded Claim" means any claim:
(i) In connection with a Proceeding by or in the right of the Company
in which the Indemnitee was adjudged liable to the Company; or
(ii) In connection with any Proceeding charging improper personal benefit
to the Indemnitee, whether or not involving action in his official capacity,
in which the Indemnitee was adjudged liable on the basis that personal benefit
was improperly received by him.
(f) "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, or being or
preparing to be a witness in a Proceeding.
(g) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the
Company or Indemnitee in any matter material to either such party, or (ii) any
other party 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 Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement.
(h) "Proceeding" includes any action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative hearing or any
other proceeding, whether civil, criminal, administrative or investigative
based on or in relation to the Indemnitee's acts or omissions occurring on or
after the Effective Date, except one (i) initiated by an Indemnitee pursuant
to Section 9 of this Agreement to enforce his rights under this Agreement or
(ii) pending on or before the Effective Date.
Section 17. Modification and Waiver. No supplement, modification or
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amendment of this Agreement shall be binding unless executed in writing by
both of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
Section 18. Notice by Indemnitee. (a) Indemnitee agrees promptly to
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notify the Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder.
(a) If, at the time of the receipt of such notice, the Company has
director's and officer's liability insurance ("D&O Insurance") in effect, the
Company shall give prompt notice of the commencement of such action, suit or
proceeding to the insurers in accordance with the procedures set forth in the
respective policies in favor of Indemnitee. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, on behalf of
Indemnitee, Expenses, judgments, penalties, fines and amounts paid in
settlement or payable as a result of such action, suit or Proceeding in
accordance with the terms of such policies.
(b) To the extent the Company does not, at the time of the
commencement of or the threat of commencement of such action, suit or
Proceeding, have applicable D&O Insurance, or if a determination is made that
any Expenses, judgments, penalties, fines and amounts paid in settlement
arising out of such action, suit or Proceeding will not be payable under the
D&O Insurance then in effect, the Company, if appropriate, shall be entitled
to assume the defense of such action, suit or Proceeding, with counsel
satisfactory to Indemnitee, upon the delivery to Indemnitee of written notice
of its election so to do. After delivery of such notice, the Company will not
be liable to Indemnitee under this Agreement for any legal or other Expenses
subsequently incurred by the Indemnitee in connection with such defense, other
than reasonable Expenses of investigation, provided that Indemnitee shall have
the right to employ counsel in my such action, suit or Proceeding, but the
fees and expenses of such counsel incurred after delivery of notice from the
Company of its assumption of such defense shall be at the Indemnitee's
expense, provided further that if: (i) the employment of counsel by
Indemnitee has been previously authorized by the Company; (ii) Indemnitee
shall have reasonably concluded that there may be a conflict of interest
between the Company and Indemnitee in the conduct of any such defense; or
(iii) the Company shall not, in fact, have employed counsel to assume the
defense of such action, the fees and expenses of counsel shall be at the
expense of the Company.
Section 19. Settlement. The Company shall have no obligation to
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indemnify Indemnitee under this Agreement for any amounts paid in settlement
of any action, suit or Proceeding effected without the Company's prior written
consent. The Company shall not settle any claim in any manner which would
impose any obligation on Indemnitee without Indemnitee's written consent.
Neither the Company nor Indemnitee shall unreasonably withhold their consent
to any proposed settlement.
Section 20. Notices. All notices, requests, demands and other
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communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom
said notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to:
Xxxx X. Xxxxxxxx 0000 Xxxxx Xxxx Xxxxx Xxxxx, Xxxxx 00000
(b) If to the Company to:
Xxxxxxx X. Xxxxxx
Vice President and General Counsel The Quizno's Corporation 0000 00xx Xxxxxx,
Xxxxx 0000 Xxxxxx, Xxxxxxxx 00000
or to such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
Section 21. Governing Law. This Agreement shall be governed by, and
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construed and enforced in accordance with, the laws of the State of Colorado
applicable to contracts made and to be performed therein. The parties agree
that venue and jurisdiction with respect to any matter arising hereunder shall
be exclusively in the state and federal courts, as applicable, located in the
State of Colorado. Each party submits to the jurisdiction of such courts in
Colorado with respect to any claims or controversies arising hereunder.
Section 22. Miscellaneous. Use of the masculine pronoun shall be deemed to
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include usage of the feminine pronoun where appropriate.
Section 23. Expenses. In any action brought to enforce the terms of
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this Agreement or pursuant to this Agreement, the costs, expenses and fees
(including attorneys' fees) incurred by the prevailing party will be paid by
the nonprevailing party. If each party prevails in part, the parties agree
that the court will determine their respective responsibilities for legal fees
in a manner consistent with this provision.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
THE QUIZNOIS CORPORATION
By:/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
President and
Chief Executive Officer
INDEMNITEE
By: /s/ Xxxx X. Xxxxxxxx
Title: Director
