EXHIBIT 10.13
FORM OF 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 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 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
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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 10 and 12
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; or (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.
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 Indemnitee has met the
applicable standards of Section 3 and without any determination pursuant to
Section 7.
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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), 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.
(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.
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(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. 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 20
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.
10. REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO
INDEMNIFY OR TO ADVANCE EXPENSES. In the event that a determination is made 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 9, 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
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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).
11. 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 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.
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(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 11, 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. 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.
12. 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.
13. 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.
14. 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
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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.
15. 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.
16. 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.
17. 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.
18. 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.
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19. 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.
20. 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 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.
21. 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.
22. 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.
23. DEFINITIONS. For purposes of this Agreement:
(a) "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.
(b) "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.
(c) "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
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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.
24. 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.
25. 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:
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(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.
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26. 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
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Name:
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Title:
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INDEMNITEE:
By
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Name:
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