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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 .
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(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.
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(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:
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(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 made a party to any
proceeding 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 Co
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