EXHIBIT 10.17
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, made and entered into this ___ day of
_____, ____ ("Agreement"), by and between Centennial Specialty Foods
Corporation, a Delaware corporation (the "Company") and ___________________
("Indemnitee").
WHEREAS, highly competent persons are becoming more reluctant to serve
corporations as directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the corporation, and
WHEREAS, the Board of Directors of the Company has determined that the
inability to attract and retain such persons is detrimental to the best
interests of the Company's stockholders and that the Company should act to
assure such persons that there will be increased certainty of such protection in
the future; and
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 serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the promises, conditions,
representations and warranties set forth herein, including Indemnitee's
continued service to the Company, the Company and Indemnitee hereby covenant and
agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meaning
given here:
1.01 "Board" shall mean the Board of Directors of the Company.
1.02 "Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit or other
enterprise which such person is or was serving at the express written request of
the Company.
1.03 "Covered Act" means any breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted by Indemnitee or against any of the foregoing alleged by any claimant
or any claim against Indemnitee solely by reason of being a director or officer
of the Company.
1.04 "D&O Insurance" means any directors' and officers' liability
insurance issued by an insurer(s), and having the policy number(s), amount(s)and
deductible(s) set forth within such policy and any replacement or substitute
policies issued by one or more reputable insurers providing in any respects such
coverage.
1.05 "Determination" means a determination, based on the facts known at
the time, made by:
(a) A majority vote of a quorum of disinterested directors; or
(b) Independent Counsel in a written opinion prepared at the
request of a majority of a quorum of Disinterested Directors; or
(c) A majority of the disinterested stockholders of the Company;
or
(d) A final adjudication by a court of competent jurisdiction.
"Determined" shall have a correlative meaning.
1.06 "Disinterested Director" means a director of the Company who is not
and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
1.07 "Effective Date" means March 1, 2003.
1.08 "Excluded Claim" means any payment for Losses or Expenses in
connection with any claim:
(a) Based upon or attributable to Indemnitee gaining in fact any
personal profit or advantage to which Indemnitee is not entitled; or
(b) For the return by Indemnitee of any remuneration paid to
Indemnitee without the previous approval of the stockholders of the
Company which is illegal; or
(c) For an accounting of profits in fact made from the purchase or
sale by Indemnitee of securities of the Company within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, or similar
provisions of any state law; or
(d) Resulting from Indemnitee's knowingly fraudulent, dishonest or
willful misconduct; or
(e) The payment of which by the Company under this Agreement is
not permitted by applicable law.
1.09 "Expenses" shall include all reasonable 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 of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding, but shall not include Fines.
1.10 "Fines" mean any fine, penalty or, with respect to an employee
benefit plan, any excise tax or penalty assessed with respect thereto.
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1.11 "Good Faith" shall mean Indemnitee having acted in good faith and in
a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal Proceeding, having
had no reasonable cause to believe Indemnitee's conduct was unlawful.
1.12 "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past three years has been, retained to represent (i) the Company or
Indemnitee in any matter material to either such party or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing the term "Independent 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 Indemnitee in an action to determine Indemnitee's rights under this
Agreement.
1.13 "Loss" means any amount which Indemnitee is legally obligated to pay
as a result of a claim or claims made against him for Covered Acts including,
without limitation, damages and judgments and sums paid in settlement of a claim
or claims, but shall not include Fines.
1.14 "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
actual threatened or completed proceeding whether civil, criminal,
administrative or investigative, other than one initiated by Indemnitee. For
purposes of the foregoing sentence, a "Proceeding" shall not be deemed to have
been initiated by Indemnitee where Indemnitee seeks pursuant to Article IX of
this Agreement to enforce Indemnitee's rights under this Agreement relating
thereto.
ARTICLE II
SERVICES BY INDEMNITEE
Indemnitee agrees to serve as an officer and director of the Company.
Indemnitee may at any time and for any reason resign from such positions,
subject to any other contractual obligation or any obligation imposed by
operation of law.
ARTICLE III
MAINTENANCE OF D&O INSURANCE
3.01 Description of D&O Insurance. The Company intends to obtain, and
will use its best efforts to do so, a directors' and officers' liability
insurance policy, the premiums for which will be paid by the Company.
3.02 Named Insured. In any policies of D&O Insurance which are maintained
by the Company, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits, subject to the same
limitations, as are accorded to the Company's directors and officers most
favorably insured by such policy.
3.03 No Obligation. Nothing herein shall impose upon the Company the
obligation to maintain D&O Insurance if the Company determines in good faith
that such insurance is not reasonably available, the premium costs for such
insurance are disproportionate to the amount of coverage provided, or the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit.
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ARTICLE IV
INDEMNIFICATION
4.01 Indemnification in General. The Company shall indemnify and hold
Indemnitee harmless for any Losses, Expenses, judgments, penalties, Fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with such Proceeding or any claim, issue or
matter therein, if Indemnitee acted in Good Faith.
4.02 Excluded Coverage. The Company shall have no obligation to indemnify
and hold Indemnitee harmless from any Losses or Expense which has been
Determined to constitute an Excluded Claim. Notwithstanding the provisions of
Section 4.01, no such indemnification shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification shall nevertheless be made by the Company in such event if and
only to the extent that the Court of Chancery of the State of Delaware, or the
court in which such Proceeding shall have been brought or pending, shall
Determine.
4.03 Indemnification of a Party Who Is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee's Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified to the maximum extent permitted by law, against all Losses,
Expenses, judgments, penalties, Fines and amounts paid in settlement, actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee to the maximum extent permitted by law, against all Losses, Expenses,
judgments, penalties, Fines and amounts paid in settlement, actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with
each successfully resolved claim, issue or matter. For purposes this Section
4.03 and without limitation, the termination of any claim, issue or matter in
such a Proceeding by dismissal, with or without prejudice, shall be deemed to be
a successful result as to such claim, issue or matter, so long as there has been
no finding (either adjudicated or pursuant to Article VI) Indemnitee did not act
in Good Faith.
4.04 Indemnification For Expenses of a Witness. Notwithstanding any other
provision of this Agreement to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a witness in a Proceeding, Indemnitee shall be
indemnified against all Losses and Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection therewith.
ARTICLE V
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI, the Company
shall advance all reasonable Expenses which, by reason of Indemnitee's Corporate
Status, are incurred by or on behalf of Indemnitee in connection with any
Proceeding, within twenty (20) days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or advances,
whether prior to or after final disposition of such Proceeding. Such statement
or statements shall reasonably evidence the Expenses incurred by Indemnitee and
shall include or be preceded or
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accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses if it shall ultimately be determined that Indemnitee is not entitled to
be indemnified against such Expenses. Such statements may be redacted to the
extent necessary to preserve attorney-client confidentiality, work product or
other applicable privileges, if any. Any advance and undertakings to repay
pursuant to this Article V shall be unsecured and interest free.
ARTICLE VI
PROCEDURES FOR DETERMINATION OF ENTITLEMENT
6.01 Initial Notice. Promptly after receipt by Indemnitee of notice of
the commencement of or the threat of commencement of any Proceeding, Indemnitee
shall, if indemnification with respect thereto may be sought from the Company
under this Agreement, notify the Company of the commencement thereof. Indemnitee
shall include therein or therewith such documentation and information as 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 advise the Board in writing that
Indemnitee has requested indemnification.
6.02 D&O Insurance. If, at the time of the receipt of such notice the
Company has D&O 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 in favor of Indemnitee. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of Indemnitee, all Losses and Expenses payable as a
result of such Proceeding in accordance with the terms of such policies.
6.03 Employment of Counsel. To the extent the Company does not, at the
time of the commencement of or the threat of commencement of a Proceeding, have
applicable D&O Insurance, or if a Determination is made that any Expenses
arising out of such Proceeding will not be payable under the D&O Insurance then
in effect, the Company shall be obligated to pay the Expenses of any such
Proceeding in advance of the final disposition thereof as provided in Article V
and the Company, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel satisfactory to Indemnitee, upon the delivery to
Indemnitee of written notice of its election so to do. After delivery of such
notice, the Company will not be liable to Indemnitee under this Agreement for
any legal or other Expenses subsequently incurred by Indemnitee in connection
with such defense other than reasonable Expenses of investigation provided that
Indemnitee shall have the right to employ its counsel in any such Proceeding but
the fees and expenses of such counsel incurred after delivery of notice from the
Company of its assumption of such defense shall be at Indemnitee's expense and
provided further that if (i) the employment of counsel by Indemnitee has been
previously authorized by the Company, (ii) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense or (iii) the Company shall not, in
fact, have employed counsel to assume the defense of such Proceeding, the fees
and expenses of counsel shall be at the expense of the Company.
6.04 Payment. All payments on account of the Company's indemnification
obligations under this Agreement shall be made within sixty (60) days of
Indemnitee's written request therefor unless a Determination is made that the
claims giving rise to Indemnitee's request are Excluded Claims or otherwise not
payable under this Agreement or applicable law.
6.05 Reimbursement by Indemnitee. Indemnitee agrees that he will
reimburse the Company for all Losses and Expenses paid by the Company in
connection with any Proceeding
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against Indemnitee in the event and only to the extent that a Determination
shall have been made by a court in a final adjudication from which there is no
further right of appeal that Indemnitee is not entitled to be indemnified by the
Company for such Expenses because the claim is an Excluded Claim or because
Indemnitee is otherwise not entitled to payment under this Agreement.
6.06 Cooperation. Indemnitee shall cooperate with the person, persons or
entity making the Determination with respect to Indemnitee's entitlement to
indemnification under this Agreement, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
Determination. Any costs or Expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such Determination shall be borne by the Company (irrespective
of the determination as to Indemnitee's entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
ARTICLE VII
SETTLEMENT
The Company shall have no obligation to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any Proceeding effected without
the Company's prior written consent. The Company shall not settle any claim in
any manner which would impose any Fine or other obligation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee shall
unreasonably withhold their consent to any proposed settlement.
ARTICLE VIII
RIGHTS NOT EXCLUSIVE
The rights provided hereunder shall not be deemed exclusive of any other
rights to which Indemnitee may be entitled under any bylaw, agreement, vote of
stockholders or of Disinterested Directors or otherwise, both as to action in
his official capacity and as to action in any other capacity by holding such
office, and shall continue after Indemnitee ceases to serve the Corporation as a
director or officer.
ARTICLE IX
ENFORCEMENT
9.01 Burden of Proof. Indemnitee's right to indemnification shall be
enforceable by Indemnitee only in the state courts of the State of Delaware and
shall be enforceable notwithstanding any adverse Determination. In any such
action, if a prior adverse Determination has been made, the burden of proving
that indemnification is required under this Agreement shall be on Indemnitee.
The Company shall have the burden of proving that indemnification is not
required under this Agreement if no prior adverse Determination shall have been
made.
9.02 Costs And Expenses. In the event that any action is instituted by
Indemnitee under this Agreement, or to enforce or interpret any of the terms of
this Agreement, Indemnitee shall be entitled to be paid all court costs and
expenses, including reasonable counsel fees, incurred by Indemnitee with respect
to such action, unless the court determines that each of the material assertions
made by Indemnitee as a basis for such action were not made in Good Faith or
were frivolous.
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ARTICLE X
GENERAL PROVISIONS
10.01 Successors And Assigns. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's heirs, executors, personal representatives and
administrators.
10.02 Severability. If any provision or provisions of this Agreement is
determined by a court to be invalid, illegal or unenforceable for any reason
whatsoever, such provision shall be limited or modified in its application to
the minimum extent necessary to avoid a violation of law, and, as so limited or
modified, such provision and the balance of this Agreement shall be enforceable
in accordance with its terms.
10.03 Identical Counterparts. This Agreement may be executed in 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 enforce ability is
sought needs to be produced to evidence the existence of this Agreement.
10.04 Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
10.05 Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of 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.
10.06 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed.
If to Indemnitee to: As shown with Indemnitee's signature below
If to the Company to: Centennial Specialty Foods Corporation
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: J. Xxxxxxx Xxxxxx, C.E.O.
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
10.07 Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
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10.08 Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any Proceeding which arises out of or
relates to this Agreement, and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
10.09 Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in reference to all the matters
herein agreed upon. This Agreement replaces in full all prior indemnification
agreements or understandings of the parties hereto, and any and all such prior
agreements or understandings are hereby rescinded by mutual agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CENTENNIAL SPECIALTY FOODS CORPORATION
A Delaware corporation:
By:___________________________________________
Name:_________________________________________
Title:________________________________________
INDEMNITEE:
By:___________________________________________
Print Name: __________________________________
Address:______________________________________
______________________________________
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