Exhibit 10.28
GORDON BIERSCH BREWERY
RESTAURANT GROUP, INC.
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“ Agreement ”) is entered into as of the
day of
, 200 by and between Gordon Biersch
Brewery Restaurant Group, Inc., a Tennessee corporation (the
“ Company ”), and
(“ Indemnitee ”).
RECITALS
A. The Company and Indemnitee
recognize the continued difficulty in obtaining liability insurance
for its directors, officers, employees, agents and fiduciaries, the
significant increases in the cost of such insurance and the general
reductions in the coverage of such insurance.
B. The Company and Indemnitee
further recognize the substantial increase in corporate litigation
in general, subjecting directors, officers, employees, agents and
fiduciaries to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely
limited.
C. Indemnitee does not regard the
current protection available as adequate under the present
circumstances, and Indemnitee and other directors, officers,
employees, agents and fiduciaries of the Company may not be willing
to serve or continue to serve in such capacities without additional
protection.
D. The Company desires to attract
and retain the services of highly qualified individuals, such as
Indemnitee, to serve the Company and, in part, in order to induce
Indemnitee to continue to provide services to the Company, wishes
to provide for the indemnification and advancing of expenses to
Indemnitees to the maximum extent permitted by law.
E. In view of the considerations set
forth above, the Company desires that Indemnitee be indemnified by
the Company as set forth herein.
NOW, THEREFORE, the Company and
Indemnitee hereby agree as follows:
1. Indemnification
.
(a) General Right to
Indemnification . The Company shall indemnify Indemnitee to the
fullest extent permitted by law if Indemnitee was or 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, any
threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry
or investigation that Indemnitee in good faith believes might lead
to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (hereinafter a “
Claim ”), by reason of (or arising in whole or in part
out of) any event or occurrence related to the fact that Indemnitee
is or was a director, officer, employee, agent or fiduciary of the
Company, or any subsidiary of the
Company, or is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of
any action or inaction on the part of Indemnitee while serving in
such capacity (hereinafter an “ Indemnifiable Event
”), and the Indemnitee shall be indemnified and held harmless
by the Company to the fullest extent permitted by law against any
reasonable costs, charges, expenses, liabilities, losses (including
attorneys’ fees and expenses and all other costs, expenses
and obligations (including any travel related expenses) 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 such action, suit, proceeding,
alternative dispute resolution mechanism, hearing, inquiry or
investigation), judgments, fines, penalties and amounts paid in
settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) of such
Claim and any federal, state, local or foreign taxes imposed on
Indemnitees as a result of the actual or deemed receipt of any
payments under this Agreement (collectively, hereinafter “
Expenses ”), including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses. Such indemnification shall continue as to the
Indemnitee when the Indemnitee ceases to be a director, officer,
employee, agent or fiduciary of the Company or any subsidiary of
the Company (or to serve another entity at the request of the
Company) and shall inure to the benefit of the Indemnitee’s
heirs, personal representatives and estate. Such payment of
Expenses shall be made by the Company as soon as practicable but in
any event no later than twenty days after written demand by
Indemnitee therefor is presented to the Company.
(b) Reviewing Party .
Notwithstanding the foregoing, (i) the obligations of the
Company under Section 1(a) shall be subject to the condition
that the Reviewing Party (as defined in Section 9(e) hereof)
shall not have determined (in a written opinion, in any case in
which the Independent Legal Counsel referred to in
Section 1(c) hereof is involved) that Indemnitee would not be
permitted to be indemnified under Applicable Law (as defined in
Section 9(g) hereof), and (ii) the obligation of the
Company to make an advance payment of Expenses to Indemnitee
pursuant to Section 2(a) (an “ Expense Advance
”) shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that Indemnitee
would not be permitted to be so indemnified under Applicable Law,
the Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee
should be indemnified under Applicable Law, any determination made
by the Reviewing Party that Indemnitee would not be permitted to be
indemnified under Applicable Law shall not be binding and
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). The Indemnitee’s obligation to
reimburse the Company for any Expense Advance shall be unsecured
and no interest shall be charged thereon. If there has not been a
Change in Control (as defined in Section 9(c) hereof), the
Reviewing Party shall be selected by the Board of Directors, and if
there has been such a Change in Control (other than a Change in
Control which has been approved by a majority of the persons
surviving as members of the Company’s Board of Directors who
comprised the Company’s Board of Directors immediately prior
to such Change in Control), the Reviewing Party
-2-
shall be the Independent Legal
Counsel as selected in accordance with Section 1(c) hereof. If
there has been no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively would not
be permitted to be indemnified in whole or in part under Applicable
Law, Indemnitee shall have the right to commence litigation seeking
an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof,
including the legal or factual bases therefor, 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
Indemnitee.
(c) Change in Control . The
Company agrees that if there is a Change in Control of the Company
(other than a Change in Control which has been approved by a
majority of the persons surviving as members of the Company’s
Board of Directors who were directors immediately prior to such
Change in Control) then, with respect to all matters thereafter
arising concerning the right of Indemnitee to payments of Expenses
and Expense Advances under this Agreement or any other agreement or
under the Company’s Charter or Bylaws as now or hereafter in
effect, Independent Legal Counsel (as defined in Section 9(d)
hereof) shall be selected by the Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld or
delayed). Such counsel, among other things, shall render its
written opinion to the Company and Indemnitee as to whether and to
what extent Indemnitee would be permitted to be indemnified under
Applicable Law, and the Company agrees to abide by such opinion.
The Company agrees to pay the reasonable fees and expenses of the
Independent Legal Counsel referred to above and to fully indemnify
such counsel against any and all expenses (including
attorneys’ fees and expenses), claims, liabilities and
damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(d) Mandatory Payment of
Expenses . Notwithstanding any other provision of this
Agreement other than Section 8 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit, proceeding, inquiry,
alternative dispute resolution mechanism or investigation referred
to in Section (1)(a) hereof or in the defense of any Claim,
issue or matter covered by this Agreement, or in defense of any
Claim, issue or matter therein, Indemnitee shall be indemnified
against all Expenses incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
2. Expenses; Indemnification
Procedure .
(a) Advancement of Expenses .
The Company shall advance all Expenses incurred by Indemnitee. The
advances to be made hereunder shall be paid by the Company to
Indemnitee as soon as practicable but in any event no later than
twenty days after written demand by Indemnitee therefor to the
Company.
(b) Notice/Cooperation by
Indemnitee . Indemnitee shall, as a condition precedent to
Indemnitee’s right to be indemnified under this Agreement,
give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or
could be sought under this Agreement, provided however, that
failure to provide such notice in accordance with this
Section 2(b) shall not affect Indemnitee’s rights to
receive any Expenses or Expense
-3-
Advances hereunder unless and except
to the extent that the Company did not otherwise receive notice of
such Claim and such failure of Indemnitee to provide such notice
results in the forfeiture by the Company of substantial rights and
defenses. Notice to the Company shall be directed to the Chief
Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). In addition,
Indemnitee shall give the Company such information (in the
possession of, or reasonably obtainable without material expense
by, Indemnitee) and cooperation as it may reasonably require and as
shall be within Indemnitee’s reasonable power and
control.
(c) No Presumptions; Burden of
Proof . For purposes of this Agreement, the termination of any
Claim 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 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. In addition,
neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular
standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that Indemnitee has not met
such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under
Applicable Law, shall be a defense to Indemnitee’s claim or
create a presumption that Indemnitee has not met any particular
standard of conduct or did not have any particular belief. In
connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
(d) Notice to Insurers . If,
at the time of the receipt by the Company of a notice of a Claim
pursuant to Section 2(b) hereof, the Company has liability
insurance in effect which may cover such Claim, the Company shall
give prompt notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such
action, suit, proceeding, inquiry or investigation in accordance
with the terms of such policies; provided , however ,
that nothing contained in this Section 2(d) shall excuse the
Company from its obligations to pay Expenses or Expense Advances to
Indemnitee as provided herein.
(e) Selection of Counsel . In
the event the Company shall be obligated hereunder to pay the
Expenses of any Claim, the Company shall be entitled to assume the
defense of such Claim with counsel approved by Indemnitee, which
approval shall not be unreasonably withheld, upon the delivery to
Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee and
the retention of such counsel by the Company, the Company will not
be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the
same Claim; provided that, (i) Indemnitee shall have the right
to employ Indemnitee’s counsel in any such Claim at
Indemnitee’s expense and (ii) if (A) the employment
of counsel
