EXHIBIT 10.1
FORM OF
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of
the ___ day of ______________, between Burlington Coat Factory
Warehouse Corporation, a Delaware corporation (the " Company
"), and ______________ (" Indemnitee ").
WHEREAS, Indemnitee is a member of the Board of Directors of the
Company (the "Board of Directors") and/or an officer of the Company
and in such capacity, or capacities, is performing valuable
services for the Company; and
WHEREAS, the Company's Certificate of Incorporation, as amended
(the " Certificate " and, together with the Company's
By-Laws, the " Governing Instruments "), provides for the
indemnification of the Company's directors and officers to the
fullest extent authorized by the Delaware General Corporation Law
(the " DGCL "); and
WHEREAS, Section 145 of the DGCL specifically provides that it
shall not be deemed exclusive of any other rights to
indemnification or advancement of expenses to which directors or
officers may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise; and
WHEREAS, the number of lawsuits and shareholders' derivative
lawsuits against corporations, their directors and officers has
increased in recent years, such lawsuits frequently are without
merit and seek damages in amounts having no reasonable relationship
to the amount of compensation received by the directors and
officers from the corporation, and such lawsuits whether or not
meritorious are expensive and time-consuming to defend; and
WHEREAS, adequate directors and officers liability insurance may
not be available at a reasonable cost; and
WHEREAS, the Company desires that Indemnitee continue to serve
as a director and/or an officer of the Company free from undue
concern for unpredictable or unreasonable claims for damages by
reason of Indemnitee's status as a director and/or an officer of
the Company, by reason of Indemnitee's decisions or actions on the
Company' behalf or by reason of Indemnitee's decisions or actions
in another capacity for the Company while serving as a director
and/or an officer of the Company; and
WHEREAS, the Board of Directors has determined that the
Company's entry into this Agreement is not only reasonable and
prudent but also promotes the best interests of the Company and its
stockholders; and
WHEREAS, Indemnitee has agreed to continue to serve as a
director and/or an officer of the Company in reliance on the
protections afforded to him under this Agreement;
NOW, THEREFORE, in consideration of Indemnitee's continued
service as a director and/or an officer of the Company and of other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Indemnification . Subject only to the exclusions set forth
in this Agreement, the Company hereby agrees (i) to hold harmless
and indemnify Indemnitee, from time to time, against any and all
Expenses and Liabilities (as such terms are defined in Section 1(h)
below) to the fullest extent authorized or permitted by the DGCL
(or any other applicable law), the Governing Instruments in effect
on the date hereof or as such law or the Governing Instruments may
from time to time be amended (but in the case of any such
amendment, only to the extent such amendment permits the Company to
provide broader indemnification rights than such law or Governing
Instruments permitted the Company to provide prior to such
amendment) and (ii) to take all such action as may reasonably be
required or requested to carry out such indemnification.
Notwithstanding the foregoing, the Company shall not be required to
indemnify Indemnitee for any Expenses and Liabilities to the extent
that such amounts have been paid directly to Indemnitee pursuant to
any directors and officers liability insurance policy maintained by
the Company. Without limiting the generality of the foregoing:
(a)
Third Party Proceedings . The Company shall indemnify
Indemnitee if Indemnitee was or is a party or is threatened to be
made a party to any Proceeding (as defined in Section 1(h) below),
other than a Proceeding by or in the right of the Company, by
reason of the fact that Indemnitee is or was a director and/or an
officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture,
trust or other enterprise (including, without limitation, service
with respect to employee benefit plans), against any and all
Expenses and Liabilities actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection with such
Proceeding, and any appeal therefrom, provided that Indemnitee
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 action or proceeding, had no
reasonable cause to believe Indemnitee's conduct was unlawful. The
termination of any action, suit or proceeding 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 satisfy the foregoing standard of conduct to the
extent applicable thereto.
(b)
Proceedings By or in the Right of the Company . The Company
shall indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any Proceeding by or in the right
of the Company by reason of the fact that Indemnitee is or was a
director and/or an officer of the Company, or is or was serving at
the request of the Company as a director, officer, employee or
agent of another corporation, limited liability company,
partnership, joint venture, trust or other enterprise (including,
without limitation, service with respect to employee benefit
plans), against any and all Expenses and, to the extent permitted
by law, amounts paid in settlement actually and reasonably incurred
by Indemnitee or on Indemnitee's behalf in connection with the
defense or settlement of such Proceeding, and any appeal therefrom,
if Indemnitee 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 except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Company unless and only to
the extent that the Delaware Court of Chancery or the court in
which such Proceeding was brought 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 Delaware Court of
Chancery or such other court shall deem proper.
(c)
Successful Defense . To the extent that Indemnitee has been
successful on the merits or otherwise in the defense of any
Proceeding referred to in Section 1(a) or 1(b) above, or in the
defense of any claim, issue or matter therein, the Company shall
indemnify Indemnitee against any and all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. Dismissal of any Proceeding with prejudice,
or a settlement not involving any payment or assumption of
liability, shall be deemed a successful defense.
(d)
Partial Indemnification . If Indemnitee is entitled to
indemnification under any provision of this Agreement for a portion
of the Expenses and Liabilities actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in the investigation, defense,
appeal or settlement of any Proceeding, but not, however, for the
total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is
entitled.
(e)
Advancement of Expenses . All Expenses incurred by
Indemnitee or on Indemnitee's behalf in defending a Proceeding, or
in enforcing Indemnitee's rights under any provisions of this
Agreement, shall be paid by the Company in advance of the final
disposition of such Proceeding in the manner prescribed by Section
3 below.
(f)
Amendments to Indemnification Rights . The Company shall not
adopt any amendment to its Governing Instruments, the effect of
which would be to deny, diminish or encumber Indemnitee's rights to
indemnity pursuant to the Governing Instruments, the DGCL or any
other applicable law as applied to any act or failure to act
occurring in whole or in part prior to the date (the " Effective
Date ") upon which the amendment was approved by the Board of
Directors. In the event that the Company shall adopt any amendment
to its Governing Instruments the effect of which is to change
Indemnitee's rights to indemnity under such instruments, such
amendment shall apply only to acts or failures to act occurring
entirely after the Effective Date thereof. The Company shall give
written notice to Indemnitee of any proposal with respect to any
such amendment no later than the date such amendment is first
presented to the Board of Directors (or any committee thereof) for
consideration, and shall provide a copy of any such amendment to
Indemnitee promptly after its adoption.
(g)
Indemnification for Expenses as a Witness . To the extent
Indemnitee is, by reason of Indemnitee's status as a director
and/or an officer of the Company, a witness in any Proceeding, the
Company shall indemnify Indemnitee against all Expenses in
connection therewith.
(h)
Certain Definitions . As used in this Agreement:
(i) "
Expenses " shall mean means any and all expenses to the
fullest extent permitted by the DGCL (or any other applicable law),
the Governing Instruments in effect on the date hereof or as such
law or Governing Instruments may from time to time be amended (but,
in the case of any such amendment, only to the extent such
amendment broadens the range or amount of expenses that may be paid
or reimbursed relative to the range or amounts permitted before
such amendment), including, without limitation, any and all
retainers, court costs, transcript costs, fees of experts, witness
fees, private investigators, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, fax
transmission charges, secretarial services, delivery service fees,
attorneys' fees, and all other costs, disbursements or expenses of
the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in, or otherwise participating in, a
Proceeding or in connection with seeking indemnification under this
Agreement or enforcing this Agreement in accordance with Section
3(g) below. Expenses also shall include
