Exhibit 10(f)
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT is made as of April 27, 1995, by and between
Piccadilly Cafeterias, Inc., a Louisiana corporation (the "Corporation"), and
Xxxxxx X. XxXxxxx ("Indemnitee").
In consideration of Indemnitee's continued service after the date
hereof, the Corporation and Indemnitee do hereby agree as follows:
1. Agreement to Serve. Indemnitee shall serve or continue to serve as
an officer and director of the Corporation, and any other corporation,
subsidiary, partnership, joint venture, trust or other enterprise of which he
is serving at the request of the Corporation, and agrees to serve in such
capacities for so long as he is duly elected or appointed and qualified or
until such earlier time as he tenders his resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term "Claim" shall mean any threatened, pending or
completed claim, action, suit or proceeding, including appeals, whether civil,
criminal, administrative or investigative and whether made judicially or
extra-judicially, including any action by or in the right of the Corporation,
or any separate issue or matter therein, as the context requires.
(b) The term "Determining Body" shall mean (i) those members
of the Board of Directors who are not named as parties to the Claim for which
indemnification is being sought (Impartial Directors"), if there are at least
three Impartial Directors, or (ii) a committee of at least three Impartial
Directors appointed by the Board or a duly authorized committee thereof
(regardless whether the directors voting on such appointment are Impartial
Directors) or (iii) if there are fewer than three Impartial Directors or if
the Board of Directors or the committee appointed pursuant to clause (ii) of
this paragraph so directs (regardless whether the directors voting on such
appointment are Impartial Directors), independent legal counsel, which may be
the regular outside counsel of the Corporation, as designated by the Impartial
Directors or, if no such directors exist, the full Board of Directors.
(c) The term "Disbursing Officer" shall mean the Chairman of
the Board of the Corporation or, if the Chairman of the Board has a direct or
indirect interest in the Claim for which indemnification is being sought, any
officer who does not have such an interest and who is designated by the
Chairman of the Board to be the Disbursing Officer with respect to
indemnification requests related to the Claim, which designation shall be made
promptly after receipt of the initial request for indemnification with respect
to such Claim.
(d) The term "Expenses" shall mean any expenses or costs
including, without limitation, attorney's fees, judgments, punitive or
exemplary damages, fines, excise taxes or amounts paid in settlement.
(e) The term "Insurance Policy" shall mean the Declarations
Executive Liability and Indemnification Policy, Policy No. 8127 63 23-B that
the Corporation has obtained fromFederal Insurance Company of the Chubb Group
of Insurance Companies on behalf of its directors and officers for the policy
period commencing October 12, 1994 and ending October 12, 1995.
3. Limitation of Liability. To the fullest extent permitted by Article
XIV of the Articles of Incorporation of the Corporation (as in effect on the
date hereof), Indemnitee shall not be liable for any breach of his fiduciary
duty. If and to the extent such provisions are amended to permit further
limitations of liability, Indemnitee shall not be liable for any breach of his
fiduciary duty to the fullest extent permitted after any such amendment.
4. Maintenance of Insurance.
(a) The Corporation represents and warrants that it presently
maintains in force and effect the Insurance Policy, and Indemnitee represents
and warrants that he has been furnished with a copy thereof. Subject only to
the provisions of Section 4(b) hereof, the Corporation hereby agrees that, so
long as Indemnitee shall continue to serve as a director or in any other
capacity referred to in Section 5(a) hereof and thereafter so long as
Indemnitee shall be subject to any possible Claim, the Corporation shall use
its commercially reasonable best efforts to purchase and maintain in effect
for the benefit of Indemnitee one or more valid and enforceable policies of
directors and officers liability insurance providing, in all respects,
coverage at least comparable to that currently provided pursuant to the
Insurance Policy.
(b) The Corporation shall not be required to purchase and
maintain the Insurance Policy or any comparable policy if directors and
officers liability insurance is not reasonably available or if, in the
reasonable business judgment of the then directors of the Corporation, there
is insufficient benefit to the Corporation from such insurance.
5. Additional Indemnity.
(a) To the extent any Expenses incurred by Indemnitee are in
excess of the amounts reimbursed or indemnified pursuant to the provisions of
Section 4 hereof, the Corporation shall indemnify and hold harmless Indemnitee
against any Expenses actually and reasonably incurred by Indemnitee (as they
are incurred) in connection with any Claim against Indemnitee, or involving
Indemnitee solely as a witness or person required to give evidence, by reason
of Indemnitee's position as a (i) director or officer of the Corporation, (ii)
director or officer of any subsidiary of the Corporation or as a fiduciary
with respect to any employee benefit plan of the Corporation, or (iii)
director, officer, partner, employee or agent of another corporation,
partnership, joint venture, trust or other for-profit or not-for-profit entity
or enterprise, if such position is or was held at the request of the
Corporation, whether relating to service in such position before or after the
effective date of this Agreement, if (A) Indemnitee is successful in his
defense of the Claim on the merits or otherwise or (B) Indemnitee has been
found by the Determining Body to have met the Standard of Conduct (as
hereinafter defined); provided that (1) the amount of Expenses for which the
Corporation shall indemnify Indemnitee may be reduced by the Determining Body
to such amount as it deems proper if it determines that the Claim involved the
receipt of personal benefit by Indemnitee, and (2) no indemnification shall be
made in respect of any Claim as to which Indemnitee shall have been adjudged
by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable for willful or intentional misconduct in the
performance of his duty to the Corporation or to have obtained an improper
personal benefit, unless, and only to the extent that, a court shall determine
upon application that, despite the adjudication of liability but in view of
all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses which the court shall deem proper.
(b) For purposes of this Agreement, the "Standard of Conduct"
is met when conduct by Indemnitee with respect to which a Claim is asserted was
conduct performed in good faith which he reasonably believed to be in, or not
opposed to, the best interest of the Corporation, and, in the case of a Claim
which is a criminal action or proceeding, conduct that Indemnitee had no
reasonable cause to believe was unlawful. The termination of any Claim by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that Indemnitee did
not meet the Standard of Conduct.
(c) Promptly upon becoming aware of the existence of any Claim
as to which Indemnitee may be indemnified for Expenses and as to which
Indemnitee desires to obtain indemnification, Indemnitee shall notify the
Chairman of the Board of the Corporation, but the failure to promptly notify
the Chairman of the Board shall not relieve the Corporation from any
obligation hereunder, except and to the extent that such failure has
materially and irrevocably harmed the Corporation's ability to defend against
such Claim pursuant to Section 5(f) hereof. Upon receipt of such request, the
Chairman of the Board shall promptly advise the members of the Board of
Directors of the request and that the establishment of a Determining Body with
respect thereto will be a matter to be considered at the next regularly
scheduled meeting of the Board. If a meeting of the Board of Directors is not
regularly scheduled within 120 calendar days of the date the Chairman of the
Board receives notice of the Claim, the Chairman of the Board shall cause a
special meeting of the Board of Directors to be called within such period in
accordance with the provisions of the Corporation's By-laws. After the
Determining Body has been established, the Chairman of the Board shall inform
Indemnitee of the constitution of the Determining Body and Indemnitee shall
provide the Determining Body with all facts relevant to the Claim known to
him, and deliver to the Determining Body all documents relevant to the Claim
in his possession. Before the 60th day (the "Determination Date") after its
receipt from Indemnitee of such information, together with such additional
information as the Determining Body may reasonably request of Indemnitee prior
to such date (the receipt of which shall not begin a new 60-day period), the
Determining Body shall determine whether or not Indemnitee has met the
Standard of Conduct and shall advise Indemnitee of its determination. If
Indemnitee shall have supplied the Determining Body with all relevant
information, including all additional information reasonably requested by the
Determining Body, any failure of the Determining Body to make a determination
by or on the Determination Date as to whether the Standard of Conduct was met
shall be deemed to be a determination that the Standard of Conduct was met by
Indemnitee.
(d) If at any time during the 60-day period ending on the
Determination Date, Indemnitee becomes aware of any relevant facts or
documents not theretofore provided by him to the Determining Body, Indemnitee
shall promptly inform the Determining Body of such facts or documents, unless
the Determining Body has obtained such facts or documents from another source.
The provision of such facts to the Determining Body shall not begin a new 60-
day period.
(e) The Determining Body shall have no power to revoke a
determination that Indemnitee met the Standard of Conduct unless Indemnitee
(i) submits fraudulent information to the Determining Body at any time during
the 60 days prior to the Determination Date or (ii) fails to comply with the
provisions of Sections 5(c) or 5(d) hereof, including without limitation
Indemnitee's obligation to submit information or documents relevant to the
Claim reasonably requested by the Determining Body prior to the Determination
Date.
(f) In the case of any Claim not involving any proposed,
threatened or pending criminal proceeding,
(i) if Indemnitee has, in the judgment of the
Determining Body, met the Standard of Conduct, the Corporation may, except as
otherwise provided below, individually or jointly with any other indemnifying
party similarly notified, assume the defense thereof with counsel reasonably
satisfactory to Indemnitee. If the Corporation assumes the defense of the
Claim, it shall keep Indemnitee informed as to the progress of such defense
so that Indemnitee may make an informed decision as to the need for separate
counsel. After notice from the Corporation that it is assuming the defense
of the Claim, it will not be liable to Indemnitee under this Agreement for any
legal or other expenses subsequently incurred by Indemnitee in connection with
the defense other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ its own counsel
in such action, suit or proceeding but the fees and expenses of such counsel
incurred after such notice from the Corporation of its assumption of the
defense shall be at the expense of Indemnitee unless (A) the employment of
counsel by Indemnitee has been authorized by the Determining Body, (B)
Indemnitee shall have concluded reasonably that there may be a conflict of
interest between the Corporation and Indemnitee in the conduct of the defense
of such action or (C) the Corporation shall not in fact have employed counsel
to assume the defense of such action, in each of which cases the fees and
expenses of counsel shall be at the expense of the Corporation. The Corporation
shall not be entitled to assume the defense of any action, suit or proceeding
brought by or in the right of the Corporation or as to which Indemnitee shall
have made the conclusion provided for in (B) above; and
(ii) the Corporation shall fairly consider any
proposals by Indemnitee for settlement of the Claim. If the Corporation
proposes a settlement of the Claim and such settlement is acceptable to the
person asserting the Claim, or the Corporation believes a settlement proposed
by the person asserting the Claim should be accepted, it shall inform
Indemnitee of the terms of such proposed settlement and shall fix a reasonable
date by which Indemnitee shall respond. If Indemnitee agrees to such terms, he
shall execute such documents as shall be necessary to make final the
settlement. If Indemnitee does not agree with such terms, Indemnitee may
proceed with the defense of the Claim in any manner he chooses, provided that
if Indemnitee is not successful on the merits or otherwise, the Corporation's
obligation to indemnify such Indemnitee as to any Expenses incurred
following his disagreement with the Corporation shall be limited to the
lesser of (A) the total Expenses incurred by Indemnitee following his decision
not to agree to such proposed settlement or (B) the amount that the Corporation
would have paid pursuant to the terms of the proposed settlement. If,
however, the proposed settlement would impose upon Indemnitee any requirement
to act or refrain from acting that would materially interfere with the conduct
of Indemnitee' s affairs, Indemnitee may refuse such settlement and continue
his defense of the Claim, if he so desires, at the Corporation's expense
in accordance with the terms and conditions of this Agreement without regard to
the limitations imposed by the immediately preceding sentence. In any event,
the Corporation shall not be obligated to indemnify Indemnitee for any amount
paid in a settlement that the Corporation has not approved.
(g) In the case of any Claim involving a proposed, threatened
or pending criminal proceeding, Indemnitee shall be entitled to conduct the
defense of the Claim with counsel of his choice and to make all decisions with
respect thereto, provided, however, that the Corporation shall not be obliged
to indemnify Indemnitee for any amount paid in settlement of such a Claim
unless the Corporation has approved such settlement
(h) After notifying the Corporation of the existence of a
Claim, Indemnitee may from time to time request the Corporation to pay the
Expenses (other than judgments, fines, penalties or amounts paid in settlement)
that he incurs in pursuing a defense of the Claim prior to the time that
the Determining Body determines whether the Standard of Conduct has been met.
The Disbursing Officer shall pay to Indemnitee the amount requested (regardless
of Indemnitee's apparent ability to repay such amount) upon receipt of an
undertaking by or on behalf of Indemnitee to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation under the circumstances, provided, however, that if the Disbursing
Officer does not believe such amount to be reasonable, he shall advance the
amount deemed by him to be reasonable and Indemnitee may apply directly to the
Determining Body for the remainder of the amount requested.
(i) After the Determining Body has determined that the
Standard of Conduct has been met, for so long as and to the extent that the
Corporation is required to indemnify Indemnitee under this Agreement, the
provisions of Section 5(h) hereof shall continue to apply with respect to
Expenses incurred after such time except that (i) no undertaking shall be
required of Indemnitee and (ii) the Disbursing Officer shall pay to Indemnitee
the amount of any fines, penalties or judgments against him which have become
final and for which he is entitled to indemnification hereunder, and any
amount of indemnification ordered to be paid to him by a court.
(j) Any determination by the Corporation with respect to
settlement of a Claim shall be made by the Determining Body.
(k) All determinations and judgments made by the Determining
Body hereunder shall be made in good faith.
6. Enforcement.
(a) The rights provided by this Agreement shall be enforceable
by Indemnitee in any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights
under, or to recover damages for breach of, this Agreement, Indemnitee shall
be entitled to recover from the Corporation, and shall be indemnified by the
Corporation against, any and all expenses actually and reasonably incurred by
him in connection with such proceeding, but only if he prevails therein. If
it shall be determined that Indemnitee is entitled to receive part but not all
of the relief sought, then Indemnitee shall be entitled to be reimbursed for
all expenses incurred by him in connection with such judicial adjudication if
the amount to which he is determined to be entitled exceeds 50% of the amount
of his claim. Otherwise, the expenses incurred by Indemnitee in connection
with such judicial adjudication shall be appropriately prorated.
(c) In any judicial proceeding described in this Section 6,
the Corporation shall bear the burden of proving that Indemnitee is not
entitled to the relief sought.
7. Saving Clause. If any provision of this Agreement is determined by
a court having jurisdiction over the matter to violate or conflict with
applicable law, the court shall be empowered to modify or reform such
provision so that, as modified or reformed, such provision provides the
maximum indemnification permitted by law and such provision, as so modified or
reformed, and the balance of this Agreement, shall be applied in accordance
with their terms. Without limiting the generality of the foregoing, if any
portion of this Agreement shall be invalidated on any ground, the Corporation
shall nevertheless indemnify Indemnitee to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated and
to the full extent permitted by law with respect to that portion that has been
invalidated.
8. Non-Exclusivity.
(a) The indemnification and advancement of Expenses provided
by or granted pursuant to this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee is or may become entitled under any statute,
articles of incorporation, by-law, authorization of stockholders or directors,
agreement, or otherwise.
(b) It is the intent of the Corporation by this Agreement to
indemnify and hold harmless Indemnitee to the fullest extent permitted by law,
so that if applicable law would permit the Corporation to provide broader
indemnification rights than are currently permitted, the Corporation shall
indemnify and hold harmless Indemnitee to the fullest extent permitted by
applicable law notwithstanding that the other terms of this Agreement would
provide for lesser indemnification.
9. Confidentiality. The Corporation and Indemnitee shall keep
confidential to the extent permitted by law and their fiduciary obligations
all information and determinations provided pursuant to or arising out of the
operations of this Agreement and the Corporation and Indemnitee shall instruct
its or his agents and employees to do likewise.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original but all of which
taken together shall be deemed to constitute a single instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of Louisiana.
12. Successors and Assigns. This Agreement shall be binding upon
Indemnitee and upon the Corporation, its successors and assigns, and shall
inure to the benefit of Indemnitee's heirs, personal representatives, and
assigns and to the benefit of the Corporation, its successors and assigns.
13. Amendment. No amendment, modification, termination or cancellation
of this Agreement shall be effective unless made in writing signed by the
Corporation and Indemnitee. Notwithstanding any amendment, modification,
termination or cancellation of this Agreement or any portion hereof,
Indemnitee shall be entitled to indemnification in accordance with the
provisions hereof with respect to any acts or omissions of Indemnitee which
occur prior to such amendment, modification, termination or cancellation.
14. Gender. All pronouns and variations thereof used in this Agreement
shall be deemed to refer to the masculine, feminine or neuter gender, singular
or plural, as the identity of the person, persons, entity or entities referred
to may require.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the date and year first above written.
PICCADILLY CAFETERIAS, INC.
By:\s\ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Chairman of the Board
Indemnitee:\s\ Xxxxxx X. XxXxxxx
_________________________
