EXHIBIT 10.13
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, made and executed this ________ day of
___________, 2005, by and between CARIBOU COFFEE COMPANY, INC., a Minnesota
corporation (the "Company"), and __________________, an individual resident of
the State of ______________ (the "Indemnitee").
WHEREAS, the Company is aware that, in order to induce highly competent
persons to serve the Company as directors or officers or in other capacities,
the Company must provide such persons with adequate protection through insurance
and indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the Company;
WHEREAS, the Company recognizes that the increasing difficulty in
obtaining directors' and officers' liability insurance, the increases in the
cost of such insurance and the general reductions in the coverage of such
insurance have increased the difficulty of attracting and retaining such
persons;
WHEREAS, the Board of Directors of the Company (the "Board of Directors")
has determined that it is essential to the best interests of the Company's
shareholders that the Company 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 continue to serve the Company free
from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve, and take
on additional service for or on behalf of the Company on the condition that
he/she be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
Indemnitee do hereby agree as follows:
1. SERVICE BY THE INDEMNITEE. The Indemnitee agrees to serve and/or
continue to serve as a director and/or officer of the Company faithfully and
will discharge his/her duties and responsibilities to the best of his/her
ability so long as the Indemnitee is duly elected or qualified in accordance
with the provisions of the Articles of Incorporation (as may be amended from
time to time, the "Articles"), and Bylaws (as may be amended from time to time,
the "Bylaws") of the Company, the Minnesota Business Corporation Act, as amended
(the "MBCA") and any other applicable law in effect on the date of this
Agreement and from time to time, or until his/her earlier death, resignation or
removal. The Indemnitee may at any time and for any reason resign
from such position (subject to any other contractual obligation or other
obligation imposed by operation by law), in which event the Company shall have
no obligation under this Agreement to continue the employment or directorship of
the Indemnitee. Nothing in this Agreement shall confer upon the Indemnitee the
right to continue in the employ of the Company or as a director of the Company
or affect the right of the Company to terminate the Indemnitee's employment at
any time in the sole discretion of the Company, with or without cause, subject
to any contract rights of the Indemnitee created or existing otherwise than
under this Agreement.
2. INDEMNIFICATION. The Company shall indemnify the Indemnitee against all
Expenses (as defined below), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by the Indemnitee as provided in
this Agreement to the fullest extent permitted by the Articles, Bylaws and MBCA
or other applicable law in effect on the date of this Agreement and to any
greater extent that applicable law may in the future from time to time permit.
Without diminishing the scope of the indemnification provided by this Section 2,
the rights of indemnification of the Indemnitee provided hereunder shall
include, but shall not be limited to, those rights hereinafter set forth.
Notwithstanding the foregoing, no indemnification shall be paid to the
Indemnitee under this Agreement:
(a) on account of any suit in which final judgment is rendered
against the Indemnitee for disgorgement of profits made from the purchase
or sale by the Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended (the "Act"), or similar provisions of any federal, state or local
statutory law;
(b) on account of conduct of the Indemnitee which is finally
adjudged by a court of competent jurisdiction to have been knowingly
fraudulent or to constitute willful misconduct;
(c) in any circumstance where such indemnification is expressly
prohibited by applicable law;
(d) with respect to liability for which payment is actually made to
the Indemnitee under a valid and collectible insurance policy or under a
valid and enforceable indemnity clause, Bylaw or agreement (other than
this Agreement), except in respect of any liability in excess of payment
under such insurance policy, indemnity clause, Bylaw or agreement;
(e) if a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful (and, in this
respect, both the Company and the Indemnitee have been advised that it is
the position of the Securities and Exchange Commission that
indemnification for liabilities arising under the federal securities laws
is against public policy and is, therefore, unenforceable, and that claims
for indemnification should be submitted to the appropriate court for
adjudication); or
(f) in connection with any proceeding by the Indemnitee against the
Company or its directors, officers, employees or other Indemnitees, (i)
unless
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such indemnification is expressly required to be made by law, (ii) unless
the proceeding was authorized by the Board of Directors of the Company,
(iii) unless such indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the Company under applicable
law, or (iv) except as provided in Sections 11 and 13 hereof.
3. ACTIONS OR PROCEEDINGS IN AN OFFICIAL CAPACITY. The Indemnitee shall be
entitled to the indemnification rights provided in this Agreement if the
Indemnitee was or is a party or is threatened to be a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative in nature, by reason of the fact that the
Indemnitee is or was a director, member of a committee of directors, officer,
employee, agent or fiduciary of the Company, or is or was serving at the request
of the Company, or whose duties to the Company involve or involved service, as a
director, officer, partner, trustee, governor, manager, employee, agent or
fiduciary of any other entity, including, but not limited to, another
corporation, partnership, limited liability company, employee benefit plan,
joint venture, trust or other enterprise, or by reason of any act or omission by
him/her in such capacity. The Indemnitee shall be indemnified against all
Expenses, judgments, penalties (including excise and similar taxes), fines and
amounts paid in settlement which were actually and reasonably incurred by the
Indemnitee in connection with such action, suit or proceeding (including, but
not limited to, the investigation, defense or appeal thereof), 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. If the person's acts or
omissions complained of in the proceeding relate to conduct as a director,
officer, trustee, employee or agent of an employee benefit plan, the conduct is
not considered to be opposed to the best interests of the Company if the person
reasonably believed that the conduct was in the best interests of the
participants or beneficiaries of the employee benefit plan.
4. GOOD FAITH DEFINITION. For purposes of this Agreement, the Indemnitee
shall be deemed to have 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, or, with respect to any action as a director, officer, trustee,
employee or agent of an employee benefit plan, the Indemnitee shall be deemed to
have acted in good faith and in a manner that the Indemnitee reasonably believed
to be in the best interests of the participants or beneficiaries of the employee
benefit plan, if such action was based on a reasonable reliance upon (i) the
records or books of the accounts of the Company or other enterprise, including
financial statements; (ii) information supplied to the Indemnitee by the
officers of the Company or other enterprise in the course of their duties; (iii)
the advice of legal counsel for the Company or other enterprise; (iv)information
or records given in reports made to the Company or other enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or other enterprise; or (v) a
committee of the Board which Indemnitee is not a member if Indemnitee reasonably
believes such committee merits confidence.
5. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding the other
provisions of this Agreement, to the extent that the Indemnitee has served on
behalf of the Company as a witness or other participant in any class action or
proceeding, the Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by the Indemnitee in connection therewith except as
provided in Section 2, regardless of whether or not the
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Indemnitee has met the applicable standards of Section 3 and without any
determination pursuant to Section 7.
6. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with the
investigation, defense, appeal or settlement of such suit, action, investigation
or proceeding described in Section 3 hereof, but is not entitled to
indemnification for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by the
Indemnitee to which the Indemnitee is entitled.
7. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including documentation and information
that is reasonably available to Indemnitee and is reasonably necessary to
determine whether and to what extent Indemnitee is entitled to indemnification.
The Secretary of the Company shall, promptly upon receipt of a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification. Any Expenses incurred by the Indemnitee in connection
with the Indemnitee's request for indemnification hereunder shall be borne by
the Company. The Company hereby indemnifies and agrees to hold the Indemnitee
harmless for any Expenses incurred by Indemnitee under the immediately preceding
sentence irrespective of the outcome of the determination of the Indemnitee's
entitlement to indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant to
Section 2 hereof, the entitlement of the Indemnitee to indemnification pursuant
to the terms of this Agreement shall be determined by the following person or
persons, who shall be empowered to make such determination: (i) by the Board of
Directors by a majority of a quorum, with only Disinterested Directors (as
hereinafter defined) counted for determining both a majority and a quorum; (ii)
if a quorum cannot be obtained under clause (i), by a majority of a committee of
the Board of Directors, consisting solely of two or more Disinterested
Directors, duly designated to act in the matter by a majority of the full Board
of Directors including the directors who are parties to such action, suit,
investigation or proceeding; (iii) if a determination is not made under clause
(i) or (ii) or in the event of a Change of Control (as defined below), by
Special Legal Counsel; or (iv) if a determination is not made under clause (i),
(ii) or (iii), by the affirmative vote of a majority of the shareholders of the
Company, with the shares held by parties to the proceeding not counted for
purposes of determining a quorum and not entitled to vote on the determination.
If the person making such determination shall determine that the Indemnitee is
entitled to indemnification as to part (but not all) of the application for
indemnification, such person shall reasonably prorate such part of
indemnification among such claims, issues or matters. If it is so determined
that Indemnitee is entitled to indemnification, payment to Indemnitee shall be
made within ten days after such determination.
8. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
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(a) In making a determination with respect to entitlement to
indemnification, the Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Company shall have the burden of proof in the
making of any determination contrary to such presumption.
(b) If the Board of Directors, or such other person or persons empowered
pursuant to Section 7 to make the determination of whether Indemnitee is
entitled to indemnification, shall have failed to make a determination as to
entitlement to indemnification within 60 days after (1) the later of the
termination of a proceeding or a written request for indemnification to the
Company or (2) a written request for an advance of expenses, a Minnesota court
may make the determination of whether Indemnitee is entitled to indemnification.
In such a case, the Indemnitee would have the burden of establishing that he/she
is entitled to indemnification. The termination of any action, suit,
investigation or proceeding described in Section 2 hereof by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself: (a) create a presumption that the Indemnitee did not act
in good faith and in a manner which he/she reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any action as
a director, officer, trustee, employee or agent of an employee benefit plan,
that the Indemnitee did not act in good faith and in a manner that the
Indemnitee reasonably believed to be in the best interests of the participants
or beneficiaries of the employee benefit plan; or (b) otherwise adversely affect
the rights of the Indemnitee to indemnification, except as may be provided
herein.
9. CONTRIBUTION. Subject to applicable law:
(a) If the indemnification provided for in this Agreement is unavailable
to Indemnitee for any reason, the Company, in lieu of indemnifying Indemnitee,
shall contribute to the amount of expenses incurred by Indemnitee (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in connection with any
claim described in Sections 2 through 6, in such proportion as is deemed fair
and reasonable in light of all of the circumstances to reflect the relative
benefits received by the Company and all officers, directors or employees of the
Company, other than Indemnitee, who are jointly liable with Indemnitee (or would
be if joined in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, from the transaction from which such action, suit
or proceeding arose; provided, however, that the proportion determined on the
basis of relative benefit may, to the extent necessary to conform to law, be
further adjusted by reference to the relative fault of the Company and all
officers, directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, in connection
with the events that resulted in such expenses, judgments, fines or settlement
amounts, as well as any other equitable considerations which the law may require
to be considered. The relative fault of the Company and all officers, directors
or employees of the Company, other than Indemnitee, who are jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), on the
one hand, and Indemnitee, on the other hand, shall by determined by reference
to, among other things, the degree to which their actions were motivated by
intent to gain personal profit or advantage, the degree to which their liability
is primary or secondary and the degree to which their conduct is active or
passive.
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(b) The Company hereby agrees to fully indemnify and hold Indemnitee
harmless from any claims of contribution which may be brought by officers,
directors or employees of the Company, other than Indemnitee, who may be jointly
liable with Indemnitee.
10. ADVANCEMENT OF EXPENSES. All reasonable Expenses actually incurred by
the Indemnitee in connection with any threatened or pending action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding, if so requested by the Indemnitee, within 10
days after (a) the receipt by the Company of a statement or statements from the
Indemnitee requesting such advance or advances; and (b) a determination that the
facts then known to those making the determination would not preclude
indemnification under this Agreement. The Indemnitee may submit such statements
from time to time. The Indemnitee's entitlement to such Expenses shall include
those incurred in connection with any proceeding by the Indemnitee seeking an
adjudication or award in arbitration pursuant to this Agreement. Such statement
or statements shall reasonably evidence the Expenses incurred by the Indemnitee
in connection therewith and shall include or be accompanied by a written
affirmation by Indemnitee of Indemnitee's good faith belief that Indemnitee has
met the standard of conduct necessary for indemnification under this Agreement
and an undertaking by or on behalf of the Indemnitee to repay such amount if it
is ultimately determined that the Indemnitee is not entitled to be indemnified
against such Expenses by the Company pursuant to this Agreement or otherwise.
Each written undertaking to pay amounts advanced must be an unlimited general
obligation but need not be secured, and shall be accepted without reference to
financial ability to make repayment.
11. REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO INDEMNIFY
OR TO ADVANCE EXPENSES. In the event that a determination is made hereunder that
the Indemnitee is not entitled to indemnification hereunder or if the payment
has not been timely made following a determination of entitlement to
indemnification pursuant to Sections 7 and 8, or if Expenses are not advanced
pursuant to Section 10, the Indemnitee shall be entitled to a final adjudication
in an appropriate court of the State of Minnesota or any other court of
competent jurisdiction of the Indemnitee's entitlement to such indemnification
or advance. The Company shall not unreasonably oppose the Indemnitee's right to
seek any such adjudication or any other claim. Such judicial proceeding shall be
made de novo, and the Indemnitee shall not be prejudiced by reason of a
determination (if so made) that the Indemnitee is not entitled to
indemnification. If a determination is made or deemed to have been made pursuant
to the terms of Section 7 or Section 8 hereof that the Indemnitee is entitled to
indemnification, the Company shall be bound by such determination and shall be
precluded from asserting that such determination has not been made or that the
procedure by which such determination was made is not valid, binding and
enforceable. The Company further agrees to stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertions to the contrary. If the
court shall determine that the Indemnitee is entitled to any indemnification
hereunder, the Company shall pay all reasonable Expenses actually incurred by
the Indemnitee in connection with such adjudication (including, but not limited
to, any appellate proceedings).
12. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Indemnitee of notice of the commencement of any action, suit or proceeding, the
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in
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writing of the commencement thereof; but the omission to so notify the Company
will not relieve the Company from any liability that it may have to the
Indemnitee otherwise than under this Agreement or otherwise, except to the
extent that the Company may suffer material prejudice by reason of such failure.
Notwithstanding any other provision of this Agreement, with respect to any such
action, suit or proceeding as to which the Indemnitee gives notice to the
Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense.
(b) Except as otherwise provided in this Section 12(b), to the
extent that it may wish, the Company, jointly with any other indemnifying
party similarly notified, shall be entitled to assume the defense thereof
with counsel reasonably satisfactory to the Indemnitee. After notice from
the Company to the Indemnitee of its election to so assume the defense
thereof, 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 other than reasonable
costs of investigation or as otherwise provided below. The Indemnitee
shall have the right to employ the Indemnitee's own counsel in such action
or lawsuit, but the fees and Expenses of such counsel incurred after
notice from the Company of its assumption of the defense thereof shall be
at the expense of the Indemnitee unless (i) the employment of counsel by
the Indemnitee has been authorized in writing by the Company, (ii) the
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of the
defense of such action and such determination by the Indemnitee shall be
supported by an opinion of counsel, which opinion shall be reasonably
acceptable to the Company, or (iii) the Company shall not in fact have
employed counsel to assume the defense of the action, in each of which
cases the fees and Expenses of counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Company or as to
which the Indemnitee shall have reached the conclusion provided for in
clause (ii) above.
(c) The Company shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent, which consent shall not be
unreasonably withheld. The Company shall not be required to obtain the
consent of Indemnitee to settle any action or claim which the Company has
undertaken to defend if the Company assumes full and sole responsibility
for such settlement and such settlement grants Indemnitee a complete and
unqualified release in respect of potential liability.
(d) If, at the time of the receipt of a notice of a claim pursuant
to this Section 12, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies.
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The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of the Indemnitee, all amounts
payable as a result of such proceeding in accordance with the terms of the
policies.
13. OTHER RIGHT TO INDEMNIFICATION. The indemnification and advancement of
Expenses provided by this Agreement are cumulative, and not exclusive, and are
in addition to any other rights to which the Indemnitee may now or in the future
be entitled under any provision of the Bylaws or Articles of the Company, any
vote of shareholders or the Board of Directors, any provision of law or
otherwise. Except as required by applicable law, the Company shall not adopt any
amendment to its Bylaws or Articles the effect of which would be to deny,
diminish or encumber the Indemnitee's right to indemnification under this
Agreement.
14. DIRECTOR AND OFFICER LIABILITY INSURANCE. The Company shall maintain
directors' and officers' liability insurance for so long as Indemnitees'
services are covered hereunder, provided and to the extent that such insurance
is available on a commercially reasonable basis. In the event the Company
maintains directors' and officers' liability insurance, the Indemnitee shall be
named as an insured in such manner as to provide the Indemnitee the same rights
and benefits as are accorded to the most favorably insured of the Company's
officers or directors. However, the Company agrees that the provisions hereof
shall remain in effect regardless of whether liability or other insurance
coverage is at any time obtained or retained by the Company; except that any
payments made to, or on behalf of, the Indemnitee under an insurance policy
shall reduce the obligations of the Company hereunder.
15. SPOUSAL INDEMNIFICATION. The Company will indemnify the Indemnitee's
spouse to whom the Indemnitee is legally married at any time the Indemnitee is
covered under the indemnification provided in this Agreement (even if Indemnitee
did not remain married to him or her during the entire period of coverage)
against any pending or threatened action, suit, proceeding or investigation for
the same period, to the same extent and subject to the same standards,
limitations, obligations and conditions under which the Indemnitee is provided
indemnification herein, if the Indemnitee's spouse (or former spouse) becomes
involved in a pending or threatened action, suit, proceeding or investigation
solely by reason of his or her status as Indemnitee's spouse, including, without
limitation, any pending or threatened action, suit, proceeding or investigation
that seeks damages recoverable from marital community property, jointly-owned
property or property purported to have been transferred from the Indemnitee to
his/her spouse (or former spouse). The Indemnitee's spouse or former spouse also
may be entitled to advancement of Expenses to the same extent that Indemnitee is
entitled to advancement of Expenses herein. The Company may maintain insurance
to cover its obligation hereunder with respect to Indemnitee's spouse (or former
spouse) or set aside assets in a trust or escrow fund for that purpose.
16. INTENT. This Agreement shall be in addition to any other rights
Indemnitee may have under the Company's Articles, Bylaws, applicable law or
otherwise. To the extent that a change in applicable law (whether by statute or
judicial decision) permits greater indemnification by agreement than would be
afforded currently under the Company's Articles, Bylaws, applicable law or this
Agreement, it is the intent of the parties that Indemnitee enjoy by this
Agreement the greater benefits so afforded by such change.
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17. ATTORNEY'S FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT. In the event
that the Indemnitee is subject to or intervenes in any proceeding in which the
validity or enforceability of this Agreement is at issue or seeks an
adjudication or award in arbitration to enforce the Indemnitee's rights under,
or to recover damages for breach of, this Agreement the Indemnitee, if he/she
prevails in whole or in part in such action, shall be entitled to recover from
the Company and shall be indemnified by the Company against any actual expenses
for attorneys' fees and disbursements reasonably incurred by the Indemnitee.
18. EFFECTIVE DATE. The provisions of this Agreement shall cover claims,
actions, suits or proceedings whether now pending or hereafter commenced and
shall be retroactive to cover acts or omissions or alleged acts or omissions
which heretofore have taken place. The Company shall be liable under this
Agreement, pursuant to Section 3 hereof, for all acts of the Indemnitee while
serving as a director and/or officer, notwithstanding the termination of the
Indemnitee's service, if such act was performed or omitted to be performed
during the term of the Indemnitee's service to the Company.
19. DURATION OF AGREEMENT. This Agreement shall survive and continue even
though the Indemnitee may have terminated his/her service as a director,
officer, employee, agent or fiduciary of the Company or as a director, officer,
partner, trustee, governor, manager, employee, agent or fiduciary of any other
entity, including, but not limited to another corporation, partnership, limited
liability company, employee benefit plan, joint venture, trust or other
enterprise or by reason of any act or omission by the Indemnitee in any such
capacity. This Agreement shall be binding upon the Company and its successors
and assigns, including, without limitation, any corporation or other entity
which may have acquired all or substantially all of the Company's assets or
business or into which the Company may be consolidated or merged, and shall
inure to the benefit of the Indemnitee and his/her spouse, successors, assigns,
heirs, devisees, executors, administrators or other legal representations. The
Company shall require any successor or assignee (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by written agreement in form and
substance reasonably satisfactory to the Company and the Indemnitee, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession or
assignment had taken place.
20. DISCLOSURE OF PAYMENTS. If the Company indemnifies or advances
expenses under this Agreement, the Company shall report to the shareholders in
writing the amount of the indemnification or advance and to whom and on whose
behalf it was paid not later than the next meeting of shareholders. Other than
this disclosure, except as expressly required by any Federal or state securities
laws or other Federal or state law, neither party shall disclose any payments
under this Agreement unless prior approval of the other party is obtained.
21. SEVERABILITY. If any provision or provisions of this Agreement shall
be held invalid, illegal or unenforceable for any reason whatsoever, (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including, but not limited to, all portions of any Sections of this
Agreement containing any such provision held to be 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, but
not limited to, all
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portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifest by the provision held invalid, illegal or unenforceable.
22. SPECIFIC PERFORMANCE. The parties recognize that if any provision of
this Agreement is violated by the Company, Indemnitee may be without an adequate
remedy at law. Accordingly, in the event of any such violation, Indemnitee shall
be entitled, if Indemnitee so elects, to institute proceedings, either in law or
at equity, to obtain damages, to enforce specific performance, to enjoin such
violation, or to obtain any relief or any combination of the foregoing as
Indemnitee may elect to pursue.
23. COUNTERPARTS. This Agreement may be executed by 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 shall
be required to be produced to evidence the existence of this Agreement.
24. CAPTIONS. The captions and headings used in this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
25. DEFINITIONS. For purposes of this Agreement:
(a) "Change of Control" shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee or
other fiduciary holding securities under an employee benefit plan of the
Company or a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of
stock of the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under said Act), directly or indirectly, of securities of the
Company representing 20% or more of the total voting power represented by
the Company's then outstanding securities of the Company which vote
generally in the election of directors ("Voting Securities"), or (ii)
during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or
nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (iii) the stockholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in
the Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80% of
the total voting power represented by the Voting Securities of the Company
or such
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surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of
transactions) all or substantially all the Company's assets.
(b) "Disinterested Director" shall mean a director of the Company
who is not at the time a party to the action, suit, investigation or
proceeding in respect of which indemnification is being sought by the
Indemnitee.
(c) "Expenses" shall include all 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 incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating or being or preparing to be a witness in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative in nature.
(d) "Special Legal Counsel" shall mean a law firm or a member of a
law firm that neither is presently nor in the past five years has been
retained to represent (i) the Company or the Indemnitee in any matter
material to either such party or (ii) any other party to the action, suit,
investigation or proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Special Legal 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 the Indemnitee in an action to
determine the Indemnitee's right to indemnification under this Agreement.
"Special Legal Counsel" will be selected either by (a) a majority of a
quorum of the Board of Directors, with only Disinterested Directors
counted for determining both a majority and a quorum or (b) by a majority
of a committee of the Board of Directors, consisting solely of two or more
Disinterested Directors, duly designated to act in the matter by a
majority of the full Board of Directors including directors who are
parties to such action, suit, investigation or proceeding. If "Special
Legal Counsel" cannot be selected by the method prescribed in clause (a)
or (b), then "Special Legal Counsel" will be selected by a majority of the
full board including directors who are parties.
26. ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement constitutes
the entire agreement and understanding of the parties hereto regarding the
subject matter hereof, and no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both 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. No supplement, modification or
amendment of this Agreement shall limit or restrict any right of the Indemnitee
under this Agreement in respect of any act or omission of the Indemnitee prior
to the effective date of such supplement, modification or amendment unless
expressly provided therein.
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27. NOTICES. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand with receipt acknowledged by the party to whom said notice or
other communication shall have been directed or if (ii) mailed by certified or
registered mail, return receipt requested with postage prepaid, on the date
shown on the return receipt:
(a) If to the Indemnitee to:
_____________________________
_____________________________
_____________________________
(b) If to the Company, to:
Caribou Coffee Company, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx 00000
Attention: Secretary
or to such other address as may be furnished to the Indemnitee by the Company or
to the Company by the Indemnitee, as the case may be.
28. GOVERNING LAW. The parties hereto agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Minnesota, applied without giving effect to any conflicts-of-law
principles.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CARIBOU COFFEE COMPANY, INC.
By____________________________
Name:_________________________
Title:________________________
INDEMNITEE:
By____________________________
Name:_________________________
