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EXHIBIT 10.41
INDEMNIFICATION AGREEMENT
This Agreement made and entered into this _____ day of __________, 1998,
by and between DELICIOUS BRANDS, INC., a Delaware corporation, hereinafter
called the "Company," and ________________, hereinafter called "Indemnitee."
W I T N E S S E T H :
WHEREAS, the Company is desirous of providing Indemnitee with limitation
of liability and indemnification to the fullest extent permitted by law;
WHEREAS, the Company desires to have Indemnitee serve or continue to serve
as a director or officer of the Company or any other corporation, subsidiary,
partnership, joint venture, trust, or other enterprise (herein called
"Affiliate") of which he has been or is serving at the request, for the
convenience, or to represent the interest of the Company, with the assurance
that the Company will indemnify him, and use its best efforts to obtain adequate
insurance to indemnify him or that the combination of the two will be sufficient
to indemnify him against costs and risks of claims for damages by reason of his
being a director or officer of the Company or of an Affiliate, or by reason of
his decisions or actions on their behalf;
WHEREAS, although the Company believes that the coverage of any directors'
and officers' liability insurance obtained will be adequate to protect and
indemnify Indemnitee from liability, to ensure Indemnitee sufficient protection,
the Company has agreed to provide Indemnitee with the benefits contemplated by
this Agreement, which benefits are intended to supplement, if necessary, the
Company's proposed directors' and officers' liability insurance policy; and
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WHEREAS, Indemnitee desires to serve or to continue to serve as such
director or officer provided that he is furnished with the indemnity provided
for hereinafter, in one or more of such capacities.
NOW, THEREFORE, for and in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. AGREEMENT TO SERVE. Indemnitee will serve and/or continue to serve
the Company or an Affiliate of the Company, at the will of the Company as a
director and/or officer faithfully and to the best of his ability so long as he
is duly elected and qualified in accordance with the provisions of the
Certificate of Incorporation and the By-laws thereof, or until such time as he
tenders his resignation in writing.
2. MAINTENANCE OF D&O INSURANCE.
(a) The Company hereby represents and warrants that Exhibit A
contains a summary description of the proposed policies of directors' and
officers' liability insurance that the Company will use its best efforts to
obtain and that upon the effectiveness of a Registration Statement on Form S-1
relating to the Company's initial public offering of shares of the Company's
Common Stock, par value $.01, filed by the Company with the Securities and
Exchange Commission, such policies are anticipated to be in full force and
effect.
(b) The Company hereby covenants and agrees that, so long as
Indemnitee shall continue to serve as a director or officer of the Company or an
Affiliate and thereafter so long as Indemnitee shall be subject to any possible
claim or threatened, pending or completed action, suit or proceeding, whether
civil, criminal or investigative, by reason of the fact that Indemnitee was a
director or officer of the Company or an Affiliate, the Company shall use
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its best efforts to maintain in full force and effect directors' and officers'
liability insurance; provided, however, that the Company shall no longer be
required to maintain such insurance to the extent that the cost thereof in the
sole discretion of the Company becomes excessive.
(c) In all policies of directors' and officers' liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits, subject to the same
limitations, as are accorded to the Company's or its Affiliates' directors or
officers most favorably insured by such policy.
3. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless
Indemnitee to the fullest extent permitted by the Certificate of Incorporation,
By-laws, the Delaware General Corporation Law (the "DGCL") or any other
applicable law as may be amended from time to time, against any and all amounts
which he is or becomes obligated to pay because of any charge, claim or claims,
whether civil or criminal, made against him because of any act or omission or
neglect or breach of duty, including any actual or alleged error or misstatement
or misleading statement or other act done or wrongfully attempted, which he
commits or suffers while acting in his capacity as an officer or director of the
Company or an Affiliate thereof and because of his being such an officer or
director; provided, however, that if the DGCL is repealed or modified the result
of which limits Indemnitee's indemnification rights and/or protection under the
DGCL, then with respect to any event occurring prior to such repeal or
modification, Indemnitee shall be entitled to the rights and protection provided
under the DGCL as if such repeal or modification would not result in the Company
violating any provision of the DGCL or other applicable law. The payments which
the Company will be obligated to
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make hereunder shall include but shall not be limited to all expenses (including
attorney's fees), damages, judgments, fines, settlements and costs, cost of
investigation and costs of defense of actual or threatened legal actions, claims
or judicial administrative or other proceedings and appeals therefrom and costs
of attachment or similar bonds and shall be payable within 30 days after the
Indemnitee has given the Company a written claim for such funds, as set forth in
Section 3(b) hereof; provided, however, that the Company shall not be obligated
to pay fines or other obligations or fees imposed by law or otherwise which is
prohibited by applicable law from paying as indemnity. To the full extent so
permitted, the foregoing shall apply to actions by or in the right of the
Company and require the Company to pay expenses, including bail bonds, if any,
in advance of final disposition as set forth above.
(b) If a claim under this Agreement is not paid by the Company, or
on its behalf, within 30 days after a written claim has been given to the
Company, the Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim and if successful, the
Indemnitee shall also be entitled to be paid all costs and expenses of
prosecuting such claim, including attorney's fees and interest. As a condition
precedent to his right to be indemnified hereunder, Indemnitee shall give the
Company notice of writing as soon as reasonably practicable of any claim made
against him for which indemnity will or could be sought under this Agreement.
Notice to the Company shall be directed to Delicious Brands, Inc., 0000 Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxx 00000, Attention: Chief Executive Officer and
shall be deemed received if sent by registered or certified mail, return receipt
requested.
(c) 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
the Indemnitee.
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4. LIMITATIONS. The Company shall not be liable under this Agreement to
make any payment in connection with any claim:
(a) for which payment is actually made to the Indemnitee under a
valid and collectable Company insurance policy, which premiums are paid by the
Company or any of its Affiliates, except in respect of any deductible and excess
beyond the amount of payment under such insurance;
(b) for which the Indemnitee is indemnified by the Company
otherwise than pursuant to this Agreement, provided such amount has previously
been paid to the Indemnitee;
(c) based upon or attributable to the Indemnitee gaining in fact
any personal profit or advantage to which he was not legally entitled;
(d) for an accounting of profits in fact made from the purchase or
sale by the Indemnitee of securities of the Company within the meaning of
applicable law;
(e) brought about or contributed to by the dishonesty of the
Indemnitee seeking payment hereunder; provided, however, notwithstanding the
foregoing, the Indemnitee shall be protected under this Agreement as to any
claims upon which suit may be brought against him by reason of any alleged
dishonesty on his part, unless a judgment or other final and nonappealable
adjudication thereof adverse to the Indemnitee shall establish that he committed
acts of active and deliberate dishonesty with actual dishonest purpose and
intent, which acts were material and an essential element to the cause of
actions so adjudicated; and
(f) by an Indemnitee who acts as a plaintiff suing other directors
or officers of the Company or its Affiliates.
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5. CUMULATIVE RIGHTS AND SEVERABILITY. Nothing herein shall be deemed
to diminish or otherwise restrict the Indemnitee's right to indemnification
under the Company's directors' and officers' liability insurance, any provision
of the Certificate of Incorporation, By-laws, vote of stockholders or
disinterested directors, or under the DGCL or any other applicable law. On the
contrary, the rights granted to Indemnitee hereunder are intended to protect
Indemnitee to the fullest extent permitted by law and shall be cumulative and in
addition to any rights that Indemnitee may have from any other source. If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby and (ii) to the fullest extent possible the
provisions of this Agreement shall be construed so as to give effect to the
intent manifested by the provisions held invalid, illegal or unenforceable.
6. SURVIVAL. The provisions of this Agreement shall inure to the
benefit of Indemnitee, his heirs, executors and administrators, and shall be
binding on the successors and assigns of the Company whether by operation of law
or otherwise. The obligations of the Company hereunder will survive (i) any
actual or purported termination of this Agreement by the Company or its
successors or assigns, whether by operation of law or otherwise, (ii) any change
in the Company's Certificate of Incorporation or By-laws and (iii) termination
of the indemnity services to the Company (whether such services were terminated
by the Company or the Indemnitee), whether or not a claim is made or an action
or proceeding is threatened or commenced before or after the actual or purported
termination of the Agreement, change in the Certificate of Incorporation or
By-laws, or termination of the Indemnitee's services.
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7. GOVERNING LAW. The parties hereto agree that this Agreement shall be
construed and enforced in accordance with and governed by the internal laws of
the State of Delaware.
8. 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 and estate of the Indemnitee.
9. BOARD APPROVAL. This Agreement has been approved by the Board of
Directors of the Company.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
Delicious Brands, Inc.
_____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
INDEMNITEE
_____________________________________
Name:
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EXHIBIT "A" TO
INDEMNIFICATION AGREEMENT
DATED ____________ , 1998
TERMS AND CONDITIONS:
- Co-insurance:
- Retroactive Date:
- Arbitration Endorsement:
- Service of Suit:
- Broad Form Prior Acts exclusion:
- Provide defense cost coverage only of:
- $_______________per claim
$_______________aggregate for following named perils:
- Provides Broad Form outside directorship liability for non-profit
organizations.
- ________months discovery period at __% additional premium.
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