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Exhibit 10.10
INDEMNIFICATION AGREEMENT
Agreement, effective as of October 21, 1991, between THE HORN & HARDART
COMPANY, a Nevada corporation (the "Company"), and XXXXXXX X. XXXXXXX (the
"Indemnitee").
WHEREAS, the Indemnitee is and has served as a director, officer or key
employee of the Company or any one of its subsidiaries;
WHEREAS, both the Company and the Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors, officers and
key employees of public companies in today's environment;
WHEREAS, in recognition of the Indemnitee's services on behalf of the
Company and its subsidiaries, the Company wishes to provide in this Agreement
for the indemnification of and the advancing of expenses to the Indemnitee to
the full extent (whether partial or complete) permitted by law and as set forth
in this Agreement, and, if the Indemnitee is a director or officer of the
Company or any subsidiary of the Company, and to the extent insurance is
maintained, for the continued coverage of the Indemnitee under the Company's
directors' and officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of the Indemnitee's
service to the Company directly or, at its request, with another enterprise, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. (a) Change in 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 (the "Exchange Act")), 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 the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of the total voting power
represented by the Company's then outstanding 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, together with 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
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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 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 all or substantially all of the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether conducted by the Company or
any other party, that the Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(c) Expenses: attorneys' fees and all other costs, expenses and
obligations paid or incurred in connection with investigating, defending, being
a witness in or participating in (including on appeal), or preparing to defend,
be a witness in or participate in any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence relating to the fact that
the Indemnitee is or was a director, officer, employee, agent or fiduciary of
the Company, or is or was serving at the request of the Company as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
relating to anything done or not done by the Indemnitee in any such capacity.
(e) Reviewing Party: any appropriate person or body consisting of a member
or members of the Company's Board of Directors or any other person or body
appointed by the Board (including the special, independent counsel referred to
in Section 3) who is not a party to the particular claim for which the
Indemnitee is seeking indemnification.
(f) Voting Securities: with respect to the Company or any other
corporation, any securities of the Company or such other corporation which vote
generally in the election of directors.
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2. Basic Indemnification Agreement. (a) In the event the Indemnitee was,
is or becomes a party to or witness or other participant in, or is threatened to
be made a party to or witness or other participant in, a Claim by reason of (or
arising in part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law as soon as practicable but in
any event no later than thirty days after written demand is presented to the
Company by Indemnitee, against any and all Expenses, judgments, fines, penalties
and amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) of such Claim.
Notwithstanding anything in this Agreement to the contrary, prior to a Change in
Control the Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with any Claim initiated by the Indemnitee against the
company or any director or officer of the Company unless the Company has joined
in or consented to the initiation of such Claim. If so requested by the
Indemnitee, the Company shall advance (within two business days of such request)
any and all Expenses to the Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing, (i) the obligations of the Company
under section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the
special, independent counsel referred to in Section 3 is involved) that the
Indemnitee would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance pursuant to
Section 2(a) shall be subject to the condition that, if, when and to the extent
that the Reviewing Party determines that the Indemnitee would not be permitted
to be so indemnified under applicable law, the Company shall be entitled to be
reimbursed by the Indemnitee (who hereby agrees to reimburse the Company) for
all such amounts theretofore paid; provided, that if the Indemnitee has
commenced legal proceedings in a court of competent jurisdiction to secure a
determination that the Indemnitee should be indemnified under applicable law,
any determination made by the Reviewing Party that the Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and the
Indemnitee shall not be required to reimburse the Company for any Expense
Advance until a final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or lapsed). If there
has not been a Change in Control, the Reviewing Party shall be selected by the
Board of Directors, and if there has been a Change in Control, the Reviewing
Party shall be the special, independent counsel referred to in Section 3. If
there has been no determination by the Reviewing Party or if the Reviewing Party
determines, that the Indemnitee would not be permitted to be indemnified in
whole or in past under applicable
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law, the Indemnitee shall have the right to commence litigation in any court in
the state of New York or Nevada having subject matter jurisdiction thereof and
in which venue is proper seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any aspect thereof,
and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and the Indemnitee.
3. Change In Control. The Company agrees that if there is a Change in
Control then with respect to all matters thereafter arising concerning the
rights of the Indemnitee to indemnity payments and Expense Advances under this
Agreement or any other agreement or Company By-law or the Company's Restated
Articles of Incorporation now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from special,
independent counsel selected by the Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld). Such counsel, among other
things, shall render its written opinion to the Company and the Indemnitee as to
whether and to what extent the Indemnitee would be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
4. Indemnification for Additional Expenses. The Company shall indemnify
the Indemnitee against any and all expenses (including attorneys' fees) and, if
requested by the Indemnitee, shall (within two business days of such request)
advance such expenses to the Indemnitee which are incurred by the Indemnitee in
connection with any claim asserted against or action brought by the Indemnitee
for (i) indemnification or advance payment of Expenses by the Company under this
Agreement or any other agreement or Company By-law or the Company's Restated
Articles of Incorporation now or hereafter in effect relating to Claims for
Indemnifiable Events or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Company, regardless of whether
the Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
5. Partial Indemnity, Etc. If the Indemnitee is entitled under any
provisions of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines, penalties and amounts paid in
settlement or a Claim but not for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion thereof to which the
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Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful on the merits
or otherwise in defense of any Claim relating in whole or in part to an
Indemnifiable Event or in defense of any Claim relating in whole or in part to
an Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, the Indemnitee shall be indemnified against all
Expenses incurred in connection therewith. In connection with any determination
by the Reviewing Party or otherwise as to whether the Indemnitee is entitled to
be indemnified hereunder the burden of proof shall be on the Company to
establish that the Indemnitee is not so entitled.
6. No Presumption. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere or
its equivalent, shall not create a presumption that the Indemnitee did not meet
any particular standard of conduct or have any particular belief or that a court
has determined that indemnification is not permitted by applicable law.
7. Non-Exclusivity, Etc. The rights of the Indemnitee hereunder shall be
in addition to any other rights the Indemnitee may have under the company's
Restated Articles of Incorporation and the Nevada Revised Statutes or otherwise.
To the extent that a change in the Nevada Revised statutes (whether by statute
or judicial decision) permits greater indemnification by agreement than would be
afforded currently under the Company's Restated Articles of Incorporation and
this Agreement, it is the intent of the parties hereto that the Indemnitee shall
enjoy by virtue of this agreement the greater benefits so afforded by such
change.
8. Liability Insurance. The Company shall and shall cause its subsidiaries
to maintain an insurance policy or policies providing directors' and officers'
liability insurance and the Indemnitee shall be covered by such policy or
policies, in accordance with its or their terms, to the maximum extent of the
coverage currently available under such policy or policies maintained by the
Company and its subsidiaries any Company director or officer; provided, that the
Company shall not be required to maintain such insurance policy or policies to
the extent that the cost of such liability insurance shall exceed 150% of the
current cost of much insurance in effect on the date hereof, and, provided
further, that in the event the Company cannot obtain such insurance coverage at
150% of the current cost of such insurance, the Company shall obtain the maximum
amount of insurance coverage available for such amount.
9. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf
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of the Company or any affiliate of the Company against the Indemnitee or the
Indemnitee's spouse, heirs, executors or personal or legal representatives
after the expiration of two years from the date of accrual of such cause of
action, and any claim or cause of action of the Company or its affiliates shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such two-year period; provided, that if any shorter period
of limitations is otherwise applicable to any such cause of action, such shorter
period shall govern.
10. Amendments, Etc. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the 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.
11. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents as may be necessary to enable the Company effectively to bring
suit to enforce such rights.
12. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against the
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any insurance policy, By-law or otherwise) of the amounts otherwise
indemnifiable hereunder.
13. Binding Effect, Etc. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor or assign by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company), spouses, heirs and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
the Indemnitee continues to serve as an officer, director or employee of the
Company or of any other enterprise at the Company's request.
14. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by 1aw.
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15. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
contracts made and to be performed in such state without giving affect to New
York principles of conflicts of laws.
16. Guaranty. By its execution or this Indemnification Agreement, The
Hanover Companies unconditionally guaranties performance by the Company of its
obligations under this Indemnification Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement this ____ day of October, 1991.
THE HORN & HARDART COMPANY
By:______________________________________
Name:
Title:
THE HANOVER COMPANIES
By:______________________________________
Name:
Title:
_________________________________________
Xxxxxxx X. Xxxxxxx
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