Exhibit 10.1
FORM OF
INDEMNITY
AGREEMENT
This Indemnity Agreement, dated as
of
, 20 , is made by and between
Jamba, Inc., a Delaware corporation (the “Company”),
and
(the “Indemnitee”).
RECITALS
A. The Company is aware that
competent and experienced persons are increasingly reluctant to
serve as directors, officers or agents of corporations unless they
are protected by comprehensive liability insurance or
indemnification, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to
the fact that the exposure frequently bears no reasonable
relationship to the compensation of such directors, officers and
other agents.
B. The statutes and judicial
decisions regarding the duties of directors and officers are often
difficult to apply, ambiguous, or conflicting, and therefore fail
to provide such directors, officers and agents with adequate,
reliable knowledge of legal risks to which they are exposed or
information regarding the proper course of action to
take.
C. Plaintiffs often seek damages in
such large amounts and the costs of litigation may be so enormous
(whether or not the case is meritorious), that the defense and/or
settlement of such litigation is often beyond the personal
resources of directors, officers and other agents.
D. The Company believes that it is
unfair for its directors, officers and agents and the directors,
officers and agents of its subsidiaries to assume the risk of huge
judgments and other expenses which may occur in cases in which the
director, officer or agent received no personal profit and in cases
where the director, officer or agent was not culpable.
E. The Company recognizes that the
issues in controversy in litigation against a director, officer or
agent of a corporation such as the Company or its subsidiaries are
often related to the knowledge, motives and intent of such
director, officer or agent, that he is usually the only witness
with knowledge of the essential facts and exculpating circumstances
regarding such matters, and that the long period of time which
usually elapses before the trial or other disposition of such
litigation often extends beyond the time that the director, officer
or agent can reasonably recall such matters; and may extend beyond
the normal time for retirement for such director, officer or agent
with the result that he, after retirement or in the event of his
death, his spouse, heirs, executors or administrators, may be faced
with limited ability and undue hardship in maintaining an adequate
defense, which may discourage such a director, officer or agent
from serving in that position.
F. Based upon their experience as
business managers, the Board of Directors of the Company (the
“Board”) has concluded that, to retain and attract
talented and experienced individuals to serve as directors,
officers and agents of the Company and its subsidiaries and to
encourage such individuals to take the business risks necessary for
the success of the Company and its subsidiaries, it is
necessary for the Company to contractually
indemnify its directors, officers and agents and the directors,
officers and agents of its subsidiaries, and to assume for itself
maximum liability for expenses and damages in connection with
claims against such directors, officers and agents in connection
with their service to the Company and its subsidiaries, and has
further concluded that the failure to provide such contractual
indemnification could result in great harm to the Company and its
subsidiaries and the Company’s stockholders.
G. Section 145 of the General
Corporation Law of Delaware, under which the Company is organized
(“Section 145”), empowers the Company to indemnify
its directors, officers, employees and agents by agreement and to
indemnify persons who serve, at the request of the Company, as the
directors, officers, employees or agents of other corporations or
enterprises, and expressly provides that the indemnification
provided by Section 145 is not exclusive.
H. The Company desires and has
requested the Indemnitee to serve or continue to serve as a
director, officer or agent of the Company and/or one or more
subsidiaries of the Company free from undue concern for claims for
damages arising out of or related to such services to the Company
and/or one or more subsidiaries of the Company.
I. Indemnitee is willing to serve,
or to continue to serve, the Company and/or one or more
subsidiaries of the Company, provided that he is furnished the
indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Definitions .
(a) Agent . For the purposes
of this Agreement, “agent” of the Company means any
person who is or was a director, officer, employee or other agent
of the Company or a subsidiary of the Company; or is or was serving
at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company as a
director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise;
or was a director, officer, employee or agent of a foreign or
domestic corporation which was a predecessor corporation of the
Company or a subsidiary of the Company, or was a director, officer,
employee or agent of another enterprise at the request of, for the
convenience of, or to represent the interests of such predecessor
corporation.
(b) Expenses . For purposes
of this Agreement, “expenses” include all out-of-pocket
costs of any type or nature whatsoever (including, without
limitation, all attorneys’ fees and related disbursements),
actually and reasonably incurred by the Indemnitee in connection
with either the investigation, defense or appeal of a proceeding or
establishing or enforcing a right to indemnification under this
Agreement or Section 145 or otherwise; provided, however, that
“expenses” shall not include any judgments, fines,
ERISA excise taxes or penalties, or amounts paid in settlement of a
proceeding.
(c) Proceeding . For the
purposes of this Agreement, “proceeding” means any
threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, or
investigative.
2
(d) Subsidiary . For purposes
of this Agreement, “subsidiary” means any corporation
of which more than 50% of the outstanding voting securities is
owned directly or indirectly by the Company, by the Company and one
or more other subsidiaries, or by one or more other
subsidiaries.
2. Agreement to Serve . The
Indemnitee agrees to serve and/or continue to serve as agent of the
Company, at its will (or under separate agreement, if such
agreement exists), in the capacity Indemnitee currently serves as
an agent of the Company, so long as he is duly appointed or elected
and qualified in accordance with the applicable provisions of the
By-laws of the Company or any subsidiary of the Company or until
such time as he tenders his resignation in writing; provided,
however, that nothing contained in this Agreement is intended to
create any right to continued employment by Indemnitee.
3. Mandatory Indemnification
. Subject to Section 8 below, the Company shall indemnify the
Indemnitee as follows:
(a) Successful Defense . To
the extent the Indemnitee has been successful on the merits or
otherwise in defense of any proceeding (including, without
limitation, an action by or in the right of the Company) to which
the Indemnitee was a party by reason of the fact that he is or was
an agent of the Company at any time, against all expenses of any
type whatsoever actually and reasonably incurred by him in
connection with the investigation, defense or appeal of such
proceeding.
(b) Third Party Actions . If
the Indemnitee is a person who was or is a party or is threatened
to be made a party to any proceeding (other than an action by or in
the right of the Company) by reason of the fact that he is or was
an agent of the Company, or by reason of anything done or not done
by him in any such capacity, the Company shall indemnify the
Indemnitee against any and all expenses and liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes and penalties, and amounts paid in settlement)
actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal of such proceeding,
provided the Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company and its stockholders, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
(c) Derivative Actions . If
the Indemnitee is a person who was or is a party or is threatened
to be ma
