Exhibit 10.22
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into
as of March 19, 2004, by and between Village Inn Pancake House of Albuquerque,
Inc., a New Mexico corporation (the "Company"), and __________ (the
"Indemnitee").
WHEREAS, the Indemnitee is currently serving or wishes to serve as a
member of the Company's Board of Directors, and/or as an officer of the Company,
and/or as a member of the Board of Directors and/or an officer of certain
subsidiaries of the Company, in which capacity or capacities the Indemnitee will
perform valuable services for the Company (the "D&O Services"); and
WHEREAS, in order to induce the Indemnitee to serve in such capacity or
capacities, the Company is willing to indemnify the Indemnitee against certain
liabilities incurred or to be incurred by the Indemnitee in the performance of
D&O Services;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement the following terms shall
have the following meanings:
"Losses" means all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement, including any such expenses to enforce the
provisions of this Agreement, if the Indemnitee is ultimately found to be
entitled to indemnification hereunder.
"Proceeding" means any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or investigative).
2. Indemnification.
(a) The Company shall indemnify, to the fullest extent permitted by
the New Mexico Business Corporation Act or, in the case of any Company
subsidiary not organized in New Mexico, to the fullest extent permitted by the
applicable statute authorizing such indemnification, (the "Applicable Statute"),
the Indemnitee to the extent that the Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in
the right of the Company) by reason of the fact that the Indemnitee is or was a
director or an officer of the Company, or is or was serving at the request of
the Company as a director, officer, employee or agent of any Company subsidiary
or another corporation, partnership, joint venture, trust or other enterprise,
against Losses actually and reasonably incurred by the Indemnitee in connection
with such action, suit or proceeding if the Indemnitee acted in good faith and
in a manner the Indemnitee reasonably believed to be in or not opposed to the
best interest of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the Indemnitee's conduct was
unlawful. The termination of any action, suit 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 the Indemnitee did
not act in good faith and in a manner which the 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 reasonable cause to believe that
Indemnitee's conduct was unlawful.
(b) The Company shall indemnify, to the fullest extent permitted by
the Applicable Statute, the Indemnitee to the extent that the Indemnitee who was
or is a party or is threatened to be made a party to any Proceeding by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that the Indemnitee is or was a director or an officer, or is or was serving at
the request of the Company as a director, officer, employee or agent of another
corporation, joint venture, trust or other enterprise against Losses actually
and reasonably incurred by the Indemnitee in connection with the defense or
settlement of such action or suit if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company and except that no indemnification shall be made in
respect of any claim, issue or matter as to which the Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, the Indemnitee is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
(c) The Company shall indemnify, to the fullest extent permitted by
the Applicable Statute, the Indemnitee against Losses actually and reasonably
incurred by the Indemnitee in connection therewith, to the extent that such
director, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
Sections 2(a) and 2(b) herein, or in defense of any claim, issue or matter
therein.
(d) The Company shall make any indemnification under this Section 2
(unless ordered by a court) only as authorized in the specific case upon a
determination that indemnification of the Indemnitee is proper in the
circumstances because such Indemnitee has met the applicable standard of conduct
set forth in this Section 2. Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders of the Company.
(e) The Company shall pay expenses incurred by the Indemnitee in
defending a civil or criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the Indemnitee to repay such amount if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by the Company
in this Section 2. Notwithstanding the foregoing, the Company shall not be
obligated to pay expenses incurred by the Indemnitee with respect to any
Proceedings initiated or brought voluntarily by the Indemnitee and not by way of
defense (other than Proceedings brought to establish or enforce a right to
indemnification under the provisions of this Section 2) unless a court of
competent jurisdiction determines that each of the material assertions made by
the Indemnitee in such Proceeding were made in good faith or were not frivolous.
2
3. Notification and Defense of Proceeding. After receipt by the Indemnitee
of notice of the commencement of any Proceeding, if a claim is to be made
against the Company under this Agreement, the Indemnitee shall promptly notify
the Company of the commencement of such Proceeding. The failure of the
Indemnitee to so notify the Company shall not relieve the Company from any
liability which it may have to the Indemnitee other than under this Agreement.
With respect to any such Proceeding of which the Indemnitee so notifies the
Company:
(a) The Company shall be entitled to participate therein at its own
expense.
(b) The Company shall be entitled to assume the defense thereof at
any time with counsel selected by the Company. After notice from the Company to
the Indemnitee of the Company's election to assume such defense, the Company
shall not be liable to the Indemnitee under this Agreement for any legal or
other expenses subsequently incurred by the Indemnitee in connection with the
defense thereof. The Indemnitee shall have the right to employ his or her own
counsel in such Proceeding, but the fees and expenses of such counsel incurred
after notice from the Company of its assumption of such defense shall be the
expense of the Indemnitee.
4. Settlement. Neither the Company nor the Indemnitee will unreasonably
withhold consent to any proposed settlement of any Proceeding. The Company shall
not settle any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee, or require any admission of liability by the
Indemnitee, without the Indemnitee's written consent. The Company shall not be
required to indemnify the Indemnitee under this Agreement for any amounts paid
in settlement of any action or claim without the Company's written consent.
5. Liability Insurance. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance, the
Indemnitee shall be covered by such policy or policies, in accordance with its
or their terms, to the maximum extent of the coverage available for any Company
director or officer.
6. Continuation of Obligations. All obligations of the Company under this
Agreement shall continue during the period that the Indemnitee is a director or
officer of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, and shall continue thereafter as long as the
Indemnitee may be subject to any possible Proceeding as a result of being such a
director, officer, employee or agent.
7. Repayment of Expenses. The Indemnitee shall reimburse the Company for
all reasonable expenses paid by the Company in defending any Proceeding against
the Indemnitee if and to the extent that the Indemnitee shall ultimately be
determined not to be entitled to indemnification by the Company for such
expenses under the Applicable Statute, the Certificate of Incorporation or
Bylaws of the Company, this Agreement or otherwise.
8. Subrogation. In the event of 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 shall do
everything that may be necessary to secure such rights,
3
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
9. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise received payment (under any
insurance policy, the Certificate of Incorporation, the Bylaws, or otherwise) of
the amounts otherwise indemnifiable hereunder.
10. Notices. Any notice provided for or permitted under this Agreement
will be treated as having been given (a) when delivered personally or sent by
confirmed fax, on the next business day after the day on which it is sent, (b)
when sent by commercial overnight courier with written verification of receipt,
on the next business day after its delivery to the courier during normal
business hours, or (c) when mailed postage prepaid by certified or registered
mail, return receipt requested, on the fifth business day after its date of
posting. Notices shall be sent to the addresses set forth below, or at such
other place of which the other party has been notified in accordance with the
provisions of this Section 10:
if to the Company, addressed as follows:
Village Inn Pancake House of Albuquerque, Inc.
c/o VICORP Restaurants, Inc.
000 X. 00xx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
with a copy (which shall not constitute notice hereunder) to:
Xxxxxxxx & Xxxxxx, Ltd.
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxx X. Xxxxxxx
if to the Indemnitee, addressed as follows:
___________________________________________
11. Language. The parties agree that each of them has been represented by
counsel in connection with the negotiation, execution and delivery of this
Agreement, and that the language used in this Agreement is the language chosen
by the parties to express their mutual intent, and that no rule of strict
construction is to be applied against either party.
12. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New Mexico,
without regard to the conflicts of law principles thereof.
4
13. Consent to Jurisdiction. The parties hereby submit to the exclusive
jurisdiction of, and waive any venue objections against, the federal and state
courts located in Xxxx County, Illinois, in any litigation arising out of the
Agreement. The parties agree that they shall not assert any claim that (i) they
are not subject to the jurisdiction of such courts, (ii) the venue is improper,
(iii) the forum is inconvenient, or (iv) any similar objection, claim or
argument. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14. Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
15. Rights Cumulative. The rights and remedies provided in this Agreement
shall be cumulative and shall not be deemed exclusive of any other rights or
remedies provided by law, contract or otherwise.
16. Amendments and Waivers. All amendments and waivers to this Agreement
must be in writing and signed, in the case of an amendment, by each party to
this Agreement, or in the case of a waiver, by the party against whom the waiver
is to be effective. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
17. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided, that neither this Agreement, nor any of the rights or
obligations thereunder, may be assigned, delegated or otherwise transferred by
either party without the prior written consent of the other party.
18. No Third Party Beneficiaries. This Agreement is solely for the benefit
of the parties hereto, and no provision of this Agreement shall be deemed to
confer upon other third parties any remedy, claim, reimbursement, cause of
action or other right.
19. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
20. Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same agreement.
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXXX XXX XXXXXXX XXXXX XX
XXXXXXXXXXX, INC.
By:_______________________________________
Name: ____________________________________
Title: ___________________________________
INDEMNITEE:
__________________________________________
Name: ____________________________________
The Indemnification Agreements entered into by Village Inn Pancake House Of
Albuquerque, Inc., are substantially identical to the Form of Indemnification
Agreement shown here, except for the Indemnitee. These documents are not filed
as separate documents in accordance with Rule 12b-31 under the Securities
Exchange Act of 1934.
6
