Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this
“ Agreement ”) dated as of
, 2007, is entered into by and between Chipotle Mexican Grill,
Inc., a Delaware corporation (“ Corporation ”),
and
(“ Indemnitee ”).
RECITALS
W HEREAS ,
Indemnitee desires to have additional protection above the coverage
available under the Corporation’s liability insurance and to
the extent permissible under applicable law for proceedings that
arise from Indemnitee’s service to the Corporation;
and
W HEREAS ,
the Corporation recognizes Indemnitee’s desire for additional
protection and wishes to provide for the indemnification and
advancement of expenses to Indemnitee to the maximum extent
permitted by law.
W HEREAS ,
this Agreement sets forth the terms, conditions and procedures
under which the Corporation shall make determinations required
under applicable law in determining Indemnitee’s entitlement
to indemnification and advancement of expenses
thereunder.
N OW ,
THEREFORE , the Corporation and Indemnitee hereby agree as
follows:
1. Indemnification . If
Indemnitee was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
“ proceeding ”), by reason of the fact that he
or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise of the Corporation (collectively
“ Enterprise ”), including service with respect
to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
General Corporate Law of the State of Delaware (“ DGCL
”), as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability
and loss (including attorneys’ fees, judgments, liens,
amounts paid or to be paid in settlement and excise taxes or
penalties arising under the Employee Retirement Income Security Act
of 1974) reasonably incurred or suffered by Indemnitee in
connection therewith and such indemnification shall continue as to
Indemnitee after he or she has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that
the Corporation shall indemnify Indemnitee in connection with a
proceeding (or part thereof) initiated by Indemnitee only if such
proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation (“ Board of Directors
”).
2. Advancement of Expenses .
The right to indemnification conferred hereunder shall include the
right to be paid by the Corporation the expenses (including
attorneys’ fees) (“ Expenses ”) incurred
in defending any such proceeding in advance of its final
disposition provided, however, that, if the DGCL requires,
the payment of such Expenses incurred by an Indemnitee in his or
her capacity as such in advance of the final disposition of a
proceeding shall be made only upon delivery to the Corporation of
an undertaking, by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal
that such Indemnitee is not entitled to be indemnified under this
Agreement or otherwise (an “ undertaking ”); and
provided, further, that such advancement of Expenses
incurred by any person other than an Indemnitee shall be made only
upon the delivery of an undertaking to the foregoing effect and may
be subject to such other conditions as the Reviewing Party may deem
advisable.
3. Indemnification Procedure
.
a. Notification of
Indemnification Claim . To obtain indemnification under
Section 1 or Section 2 of this Agreement, Indemnitee
shall submit to the Corporation a written request, including
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 Corporation shall, promptly upon receipt of
such a request for indemnification, advise the Board of Directors
that Indemnitee has requested indemnification.
b. Determination of Entitlement
to Indemnification; Presumptions . Upon written request by
Indemnitee for indemnification pursuant to Section 3(a), a
determination with respect to Indemnitee’s entitlement
thereto shall be made in the specific case by (i) directors of
the Board of Directors who are not parties to or otherwise
interested in the proceeding, or a committee of such directors
designated by majority vote of such directors (each of which shall
make decisions by majority vote), (ii) if there are no such
directors, or if such directors so direct, by independent legal
counsel (an attorney or firm of attorneys who shall not have been
retained by or otherwise performed services for the Corporation or
Indemnitee within the previous three (3) years); or
(iii) such other persons as may be provided by applicable law
(the person or persons to make such determination, the “
Reviewing Party ”). If the Reviewing Party makes a
determination that, with regard to matters concerned in the
proceeding for which Indemnitee is requesting indemnification,
Indemnitee did not meet the applicable standard of conduct set
forth in the DGCL or under the Corporation’s Certificate of
Incorporation or Bylaws (an “ Adverse Determination
”), the Corporation’s obligations to indemnify
Indemnitee under Section 1 and Section 2 of this
Agreement, the Corporation’s Certificate of Incorporation or
Bylaws, and applicable law shall be extinguished, unless and until
a court of competent jurisdiction has entered a final judicial
decision from which there is no further right to appeal that
indemnification is legally required under applicable law. In making
a determination hereunder with respect to Indemnitee’s
entitlement to indemnification, the Reviewing Party shall presume
that Indemnitee is entitled to indemnification, unless Indemnitee
shall have entered a plea of guilty or nolo contendere in a
criminal proceeding. Anyone seeking to overcome the presumption
that Indemnitee is entitled to indemnification shall have the
burden of proof and the burden of persuasion by clear and
convincing evidence.
c. Advancements . All
advances of Expenses to be made under Section 2 shall be paid
by the Corporation to the Indemnitee as soon as practicable but in
any event no later than twenty (20) days after the
Corporation’s receipt of Indemnitee’s undertaking under
Section 2 and written request under Section 3(a), unless:
(i) the Reviewing Party has made an Adverse Determination; or
(ii) it is determined by final judicial decision from which
there is no further right to appeal that Indemnitee is not
ent
