1
Exhibit 10.11
OFFICER INDEMNIFICATION AGREEMENT
---------------------------------
This Agreement is made this_____day of_______, 19___ by MERITAGE
HOSPITALITY GROUP INC., a Michigan corporation (the "Company"), and (name) ,
the (title) of the Company (the "Officer").
A. It is essential to the Company to retain and attract as officers the
most capable persons available.
B. The substantial increase in corporate litigation subjects corporate
officers to the possibility of expensive litigation risks and it is therefore
reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify officers to the fullest extent permitted by law so that
capable persons will serve or continue to serve the Company.
C. The Officer is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that the
Officer be so indemnified.
NOW, THEREFORE, in consideration of the covenants contained herein and of
the Officer's continuing service to the Company, the Company and the Officer do
hereby agree as follows.
1. Definitions. The following terms as used in this Agreement shall have
the following respective meanings;
"Expenses" means all expenses, liabilities and losses, including
attorneys' fees, judgments, fines, penalties and amounts paid or to be paid in
settlement of a Proceeding.
"Proceeding" means any threatened, pending or completed action, suit,
deposition or proceeding (or part thereof), whether civil, criminal,
administrative or investigative and whether formal or informal.
2. Indemnification by the Company. Subject to the terms and conditions of
this Agreement, the Company shall, to the extent permitted by law, indemnify,
defend and hold harmless the Officer from and against all Expenses reasonably
incurred or suffered by the Officer in connection with any Proceeding in which
the Officer is or was a party, or is threatened to be made a party, by reason
of the fact that the Officer is or was an officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. This Agreement shall not
be construed as a contract or guaranty of employment between the Company and
the Officer for any specific duration.
3. Standard of Conduct. The Company shall be obligated under this
Agreement to indemnify the Officer only if the Officer acted in good faith and
in a manner the Officer reasonably believed to be in or not opposed to the best
interests of the Company or its shareholders. Indemnification under this
Agreement shall be made by the Company only upon a determination and evaluation,
made in the manner specified in Section 564a of the Michigan Business
Corporation Act, as amended, that the Officer met the standard of conduct
prescribed in the first sentence of this Paragraph.
1
2
4. Indemnification Only to Extent Permitted by Law. In no event shall
this Agreement by construed to obligate the Company to do any act or thing not
permitted by applicable law.
5. Assumption of Claim. Subject to the terms and conditions of this
Agreement, the Company shall assume the defense of any Proceeding with respect
to which indemnification is sought, with counsel of its choice, upon written
notice to the Officer of the Company's election to do so. After delivery of
such notice, the Company will not be liable to the Officer under this Agreement
for any expenses (including legal expenses) subsequently incurred by the
Officer in defending such Proceeding. Notwithstanding the foregoing, the
Officer shall always have the right to employ his or her own counsel in any
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
Officer's expense.
6. Expenses. Subject to the foregoing, the right to indemnification
conferred hereunder shall include the right to be paid by the Company the
Expenses incurred in defending any such Proceeding as they become due in
advance of its final disposition, provided, however, that the payment of such
Expenses incurred by the Officer in advance of the final disposition of a
Proceeding shall be made only upon (i) delivery to the Company of a written
affirmation of the Officer's good faith belief that he or she has met all
applicable standard of conduct set forth in Paragraph 3 above, (ii) delivery to
the Company of a written undertaking, executed personally or on behalf of the
Officer, to repay all advances if it is ultimately determined that the Officer
did not meet the standard of conduct set forth in Paragraph 3 above, and (iii)
a determination that the facts then known to those making the determination
would not preclude indemnification by the Company.
7. Non-Exclusivity of Rights. The indemnification rights provided for
herein are not exclusive of any other rights to which the Officer may be
entitled under any statute, Bylaws of the Company, Articles of Incorporation of
the Company, agreement with the Company, vote of shareholders, or otherwise,
and such rights shall continue after the Officer ceases to serve the Company as
an officer.
8. Settlement. The Company shall have no obligation under this Agreement
with respect to any settlement or compromise entered into by the Officer
without the Company's prior written approval. If the Officer declines to accept
a bona fide offer of settlement or compromise that is recommended by the
Company, the maximum liability of the Company shall not exceed that amount that
the Company would have been liable for had the Officer accepted such settlement
or compromise. The Company shall not settle any claim in any manner which would
impose any obligation on the Officer without the Officer's written consent.
Neither the Company nor the Officer shall unreasonably withhold any consent to
any proposed settlement or as otherwise required herein.
9. Severability. If any provision of the Agreement is determined by a
court of competent jurisdiction to be in violation of applicable law, such
provision shall be limited or modified in its application to the minimum extent
necessary to avoid a violation of law, and, as so limited or modified, such
provision and the balance of this Agreement shall be enforceable in accordance
with their terms.
10. Successors and Assigns. This Agreement shall be (i) binding upon all
successors and assigns of the Company, including any transferee of all or
substantially all of its assets and any successor by merger or otherwise by
operation of law, and (ii) shall be binding on and inure to the benefit of the
heirs, personal representatives, executors and administrators of the Officer.
11. Choice of Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Michigan.
12. Amendment. No amendment, modification, termination or cancellation of
this Agreement shall be effective unless made in writing and signed by each of
the parties hereto.
13. Notice. The Officer, as a condition precedent to his right to be
indemnified under this Agreement, shall give to the Company notice in writing
as soon as practicable of any claim or threatened claim made against him/her
for which indemnity will or could be sought under this Agreement. Notice and
all other communications to the Company shall be made in writing and shall be
deemed given if delivered personally or mailed by registered or certified
2
3
mail, postage prepaid, return receipt requested, or mailed by a recognized air
courier service such as Federal Express or the like (such notice to be
effective on the date of giving such notice) as follows:
Meritage Hospitality Group Inc.
00 Xxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: President
or to such other address as the Company shall designate to the Officer.
IN WITNESS WHEREOF, the Company and the Officer have executed this
Agreement as of the date first written above.
MERITAGE HOSPITALITY GROUP INC.
---------------------------
---------------------------
Xxxxxxxxxxx X. Xxxxxx
President and Chief Executive Officer
---------------------------
---------------------------
---------------------------
[Officer]
3
