Exhibit 10.1
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT is
made as of January 31, 2007 (this “ Agreement
”), by and among MidOcean SBR Holdings, LLC, a Delaware
limited liability company (“ Parent ”), Sbarro,
Inc., a New York corporation and a wholly-owned subsidiary of
Parent (the “ Company ” and, together with
Parent, “ Sbarro ”), and [
] (the “ Indemnitee ”).
WITNESSETH
:
WHEREAS, Sbarro seeks to attract and
retain the most capable persons available to serve as its directors
and officers;
WHEREAS, such persons require
substantial protection against personal liability arising out of
their faithful service to Sbarro;
WHEREAS, Section 6.8 of
Parent’s Amended and Restated Limited Liability Company
Agreement (the “ LLC Agreement ”) provides that
Parent shall indemnify its directors and officers to the fullest
extent permitted by the Delaware General Corporation Law, as if it
were applicable to Parent; and
WHEREAS, in recognition of
Sbarro’s desire to retain the services of the Indemnitee and
in furtherance of Sbarro’s policy, Sbarro desires to provide
the Indemnitee with the right to indemnification and the
advancement of expenses and the Indemnitee desires to receive such
right, all upon the terms and subject to the conditions contained
herein.
NOW, THEREFORE, in consideration of
the mutual promises, the Indemnitee’s continued service to
Sbarro and the mutual covenants contained herein, the parties
hereby agree as follows:
1. Right to Indemnification
.
(a) Third Party Actions, Suits
and Proceedings . Each Indemnitee who was or is made a party or
is threatened to be made a party to or is involved in or
participates as a witness with respect to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of Sbarro),
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
Sbarro, or is or was serving at the request of Sbarro as a manager,
director, officer, employee, fiduciary, or agent of another limited
liability company or of a corporation, partnership, joint venture,
trust or other enterprise (hereinafter a “ Proceeding
”), shall be indemnified and held harmless by Sbarro, to the
extent permitted by applicable law, at all times to the fullest
extent permitted by the Delaware General Corporation Law, as if it
were applicable to Sbarro and as in effect from time to time,
against all expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by such Indemnitee in connection with such Proceeding if
such Indemnitee acted in good faith and in a manner such Indemnitee
reasonably believed to be in, or not opposed to, the best interests
of Sbarro and, with respect to any criminal action or Proceeding,
had no reasonable cause to believe such 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 the
Indemnitee did not act in good faith and in a manner which such
Indemnitee reasonably believed to be in, or not opposed to, the
best interests of Sbarro, or, with respect to any criminal action
or Proceeding that the Indemnitee had reasonable cause to believe
that his or her conduct was unlawful.
(b) Actions by Sbarro .
Sbarro shall indemnify at all times to the fullest extent permitted
by the Delaware General Corporation Law, as if it were applicable
to Sbarro and as in effect from time to time, any Indemnitee who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of Sbarro to procure a judgment in its favor by reason of the fact
that such Indemnitee, or a person of whom he or she is the legal
representative, is or was a director or officer of Sbarro, or is or
was serving at the request of Sbarro as a manager or director,
officer, employee, fiduciary or agent of another limited liability
company or of a corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by such Indemnitee in connection
with the defense or settlement of such action or suit if such
Indemnitee acted in good faith and in a manner such Indemnitee
reasonably believed to be in, or not opposed to, the best interests
of Sbarro and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such Indemnitee
shall have been adjudged to be liable to Sbarro unless and only to
the extent that the Court of Chancery of the State of Delaware or
the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem
proper.
2. Rights Non-exclusive . The
rights to indemnification and the payment of expenses incurred in
defending a Proceeding in advance of its final disposition
conferred in this Agreement shall not be exclusive of any other
right which an Indemnitee may have or hereafter acquire under any
law or statute, any provision of the LLC Agreement, any provision
of the Company Certificate or the Company’s by-laws, any
other agreement, any vote of Parent’s members or
disinterested directors, any vote of the Company stockholders or
disinterested directors or otherwise.
3. Expenses .
(a) Subject to
Section 3(b) , at the written request of the
Indemnitee, Sbarro will advance to the Indemnitee the expenses
(including attorneys’ fees) incurred by the Indemnitee in
defending any P
