Exhibit 10.1
INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (this “ Agreement ”),
effective as of
, 2007, is made by and between NASH-FINCH COMPANY, a Delaware
corporation (the “ Company ”), and
(“ Indemnitee ”), who is currently serving the
Company in the capacity of a director and/or officer of the
Company.
WITNESSETH:
WHEREAS,
in recognition of Indemnitee’s need for substantial
protection against personal liability in order to enhance
Indemnitee’s continued service to the Company in an effective
manner and Indemnitee’s reliance on the provisions of the
Bylaws requiring indemnification of Indemnitee under certain
circumstances, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such Bylaws
will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of such Bylaws or any change in the
composition of the Company’s Board of Directors or
acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to Indemnitee to the fullest extent
(whether partial or complete) permitted by law and as set forth in
this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company’s
directors’ and officers’ liability insurance
policies.
NOW
THEREFORE, in consideration of the premises and of
Indemnitee’s continued services as a director and/or an
officer of the Company, the Company and the Indemnitee, intending
to be legally bound, do hereby agree as follows:
1.
Agreement to Serve . Indemnitee agrees to serve or continue
to serve as a director and/or an officer of the Company, at the
will of the Company, for so long as he or she is duly elected or
appointed and qualified in accordance with the provisions of the
Bylaws of the Company or until such time as he or she tenders his
or her resignation in writing.
2.
Certain Definitions .
(a)
Change in Control : shall be deemed to have occurred if
(i) any “ person ” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company, is or becomes the “ beneficial owner
” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 30% or more
of the total voting power represented by the Company’s then
outstanding Voting Securities, or (ii) during any period of
two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for
election by the Company’s stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company
of all or substantially all the Company’s assets.
(b)
Claim : any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, and any appeal
thereof, whether conducted or initiated by the Company, whether
brought by or in the right of the Company or any subsidiary or any
other party, whether civil, criminal, administrative, or
investigative.
(c)
Disinterested Director : a director of the Company who is
not and was not a party to the Claim in respect of which
indemnification is sought by Indemnitee.
(d)
Expenses : shall include all reasonable attorneys’
fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating and printing costs and
all other disbursements or expenses of the type customarily and
reasonably incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or
preparing to be a witness in any Claim and any expenses reasonably
and actually incurred in establishing a right to indemnification
under this Agreement. Expenses shall not include amounts of
judgments, fines or penalties against Indemnitee.
(e)
Indemnifiable Event : any event or occurrence related to the
fact that Indemnitee is or was a director, officer, employee, agent
or fiduciary of the Company, or is or was serving at the request of
the Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity.
(f)
Reviewing Party : any appropriate person or body consisting
of a member or members of the Company’s Board of Directors or
any other person or body appointed by the Board (including the
special independent counsel referred to in Section 5) who is
not a party to the particular Claim for which Indemnitee is seeking
indemnification.
(g)
Voting Securities : any securities of the Company which vote
generally in the election of directors.
3.
Basic Indemnification Arrangement .
(a) In
the event Indemnitee was, 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, a Claim by reason of (or arising
in part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than thirty (30) days after
written demand is presented to the Company, against any and all
Expenses, judgments, fines, penalties and amounts paid in
settlement of such Claim. Notwithstanding anything in this
Agreement to the contrary, and except as provided in
Section 6, prior to a Change in Control, Indemnitee shall not
be entitled to indemnification pursuant to this Agreement in
connection with any Claim initiated by Indemnitee against the
Company or any director or officer of the Company unless the
Company has joined in or consented to the initiation of such
claim.
(b) If
so requested by Indemnitee, the Company shall advance (within ten
(10) business days of such written request) all Expenses to
Indemnitee (an “ Expense Advance ”) upon receipt
by the Company of an undertaking by or on behalf of Indemnitee to
repay such amount to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified.
(c) Notwithstanding
the foregoing, (i) the obligations of the Company under
Section 3(a) and (b) shall be subject to the condition that
the Reviewing Party shall not have determined (in a written
opinion, in any case in which the special independent counsel
referred to in Section 5 hereof is involved) that Indemnitee
would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance
pursuant to Section 3(b) shall be subject to the condition that if,
when, and to the extent that, the Reviewing Parry determines, or it
is otherwise ultimately determined, 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 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
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