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Exhibit
10.1
INDEMNIFICATION
AGREEMENT
This Agreement (this “
Agreement ”) is entered into as of this _______day of
________by and between Diedrich Coffee, Inc., a Delaware
corporation (the “ Company ”), and
_______(“ Indemnitee ”).
RECITALS
WHEREAS, the Board of
Directors has determined that the inability to attract and retain
qualified persons as directors and officers is detrimental to the
best interests of the Company’s stockholders and that the
Company should act to assure such persons that there will be
adequate certainty of protection through insurance and
indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the
Company;
WHEREAS, the Company has
adopted provisions in its Bylaws providing for indemnification of
its officers and directors to the fullest extent authorized by the
General Corporation Law of the State of Delaware, and the Company
wishes to clarify and enhance the rights and obligations of the
Company and Indemnitee with respect to indemnification;
WHEREAS, in order to induce
and encourage highly experienced and capable persons such as
Indemnitee to serve and continue to serve as directors and officers
of the Company and in any other capacity with respect to the
Company, and to otherwise promote the desirable end that such
persons will resist what they consider unjustified lawsuits and
claims made against them in connection with the good faith
performance of their duties to the Company, with the knowledge that
certain costs, judgments, penalties, fines, liabilities and
expenses incurred by them in their defense of such litigation are
to be borne by the Company and they will receive the maximum
protection against such risks and liabilities as may be afforded by
law, the Board of Directors of the Company has determined that the
following Agreement is reasonable and prudent to promote and ensure
the best interests of the Company and its stockholders;
and
WHEREAS, the Company desires
to have Indemnitee continue to serve as a director or officer of
the Company and in such other capacity with respect to the Company
as the Company may request, as the case may be, free from undue
concern for unpredictable, inappropriate or unreasonable legal
risks and personal liabilities by reason of Indemnitee acting in
good faith in the performance of Indemnitee’s duty to the
Company; and Indemnitee desires to continue so to serve the
Company, provided, and on the express condition, that he or she is
furnished with the indemnity set forth hereinafter.
AGREEMENT
Now, therefore, in
consideration of Indemnitee’s continued service as a director
or officer of the Company, the parties hereto agree as
follows:
1. Service by
Indemnitee . Indemnitee will serve and/or continue to serve as
a director or officer of the Company faithfully and to the best of
Indemnitee’s ability so long as Indemnitee is duly elected or
appointed and until such time as Indemnitee is removed as permitted
by law or tenders a resignation in writing.
2. Indemnification .
The Company shall indemnify and hold harmless Indemnitee to the
fullest extent authorized by the General Corporation Law of the
State of Delaware, 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 Company to provide broader
indemnification rights than said law permitted the Company to
provide prior to such amendment). Without diminishing the scope of
the indemnification provided by this Section, the rights of
indemnification of Indemnitee provided hereunder shall include but
shall not be limited to those rights hereinafter set forth, except
that no indemnification shall be paid to Indemnitee:
(a) to the extent expressly
prohibited by Delaware law or the Bylaws of the Company;
(b) on account of any suit in
which judgment is rendered against Indemnitee for an accounting of
profits made for the purchase or sale by Indemnitee of securities
of the Company pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor
statute;
(c) for which payment is
actually made to Indemnitee under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, by-law or
agreement of the Company or any other company or other enterprise
where Indemnitee is or was serving at the request of the Company,
except in respect of any indemnity exceeding the payment under such
insurance, clause, by-law or agreement; and
(d) in connection with an
action, suit or proceeding, or part thereof (including claims and
counterclaims) initiated by Indemnitee, except a judicial
proceeding or arbitration pursuant to Section 10 to enforce
rights under this Agreement, unless the action, suit or proceeding
(or part thereof) was authorized or ratified by the Board of
Directors of the Company.
3. Action or Proceedings
Other than an Action by or in the Right of the Company . Except
as limited by Section 2 above, Indemnitee shall be entitled to
the indemnification rights provided in this Section if Indemnitee
was or is a party or threatened to be made a party to, or was or is
otherwise involved in, any Proceeding (other than an action by or
in the name of the Company) by reason of the fact that Indemnitee
is or was a director, officer, employee, agent or trustee of the
Company or while a director, officer, employee, agent or trustee of
the Company is or was serving at the request of the Company as a
director, officer, employee, agent or trustee of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit
plan, or by reason of anything done or not done by Indemnitee,
whether the basis of such Proceeding is alleged action in an
official capacity as a director, officer, employee, agent or
trustee or in any other capacity while serving as a director,
officer, employee, agent or trustee. Pursuant to this Section,
Indemnitee shall be indemnified against all expense, liability and
loss (including judgments, fines, ERISA excise taxes or penalties,
amounts paid in settlement by or on behalf of Indemnitee, and
Expenses (as defined below)) actually and reasonably incurred or
suffered by Indemnitee in connection with such Proceeding, if
Indemnitee met any applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware.
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4. Indemnity in
Proceedings by or in the Name of the Company . Except as
limited by Section 2 above, Indemnitee shall be entitled to
the indemnification rights provided in this Section if Indemnitee
was or is a party or is threatened to be made a party to, or was or
is otherwise involved in, any Proceeding brought by or in the name
of the Company to procure a judgment in its favor by reason of the
fact that Indemnitee is or was a director, officer, employee, agent
or trustee of the Company or while a director, officer, employee,
agent or trustee of the Company is or was serving at the request of
the Company as a director, officer, employee, agent or trustee of
another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee
benefit plan, or by reason of anything done or not done by
Indemnitee, whether the basis of such Proceeding is alleged action
in an official capacity as a director, officer, employee, agent or
trustee or in any other capacity while serving as a director,
officer, employee, agent or trustee. Pursuant to this Section,
Indemnitee shall be indemnified against all expense, liability and
loss (including judgments, fines, ERISA excise taxes or penalties,
amounts paid in settlement by or on behalf of Indemnitee, and
Expenses) actually and reasonably incurred or suffered by
Indemnitee in connection with such Proceeding if Indemnitee met the
applicable standard of conduct set forth in the General Corporation
Law of the State of Delaware; provided , however ,
that no such indemnification shall be made in respect of any claim,
issue, or matter as to which Delaware law expressly prohibits such
indemnification by reason of any adjudication of liability of
Indemnitee to the Company, 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, Indemnitee is entitled to
indemnification for such expense, liability and loss as such court
shall deem proper.
5. Indemnification for
Costs, Charges and Expenses of Successful Party .
Notwithstanding any limitations of Section 3 and 4 above, to
the extent that Indemnitee has been successful, on the merits or
otherwise, in whole or in part, in defense of any Proceeding, or in
defense of any claim, issue or matter therein, including, without
limitation, the dismissal of any action without prejudice, or if it
is ultimately determined that Indemnitee is otherwise entitled to
be indemnified against Expenses, Indemnitee shall be indemnified
against all Expenses reasonably incurred or suffered by Indemnitee
in connection therewith.
6. Partial
Indemnification . If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of the expense, liability and loss (including judgments,
fines, ERISA excise taxes or penalties, amounts paid in settlement
by or on behalf of Indemnitee, and Expenses) actually and
reasonably incurred or suffered in connection with any Proceeding
(including a Proceeding brought by or on behalf of the Company),
but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such
expense, liability and loss actually and reasonably incurred or
suffered to which Indemnitee is entitled.
7. Indemnification for
Expenses of a Witness . Notwithstanding any other provision of
this Agreement, to the maximum extent permitted by applicable law,
Indemnitee shall be entitled to indemnification against all
Expenses actually and reasonably incurred or
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suffered by Indemnitee or on
Indemnitee’s behalf if Indemnitee appears as a witness or
otherwise incurs legal expenses as a result of or related to
Indemnitee’s service as a director or officer of the Company,
in any threatened, pending or completed legal, administrative,
investigative or other proceeding or matter to which Indemnitee
neither is, nor is threatened to be made, a party.
8. Determination of
Entitlement to Indemnification . Upon written request by
Indemnitee for indemnification pursuant to
Sections 3, 4, 5, 6 or 7 the entitlement
of Indemnitee to indemnification, to the extent not provided
pursuant to the terms of this Agreement, shall be determined by the
following person or persons who shall be empowered to make such
determination: (a) the Board of Directors of the Company by a
majority vote of Disinterested Directors (as defined below),
whether or not such majority constitutes a quorum; (b) a
committee of Disinterested Directors designated by a majority vote
of such directors, whether or not such majority constitutes a
quorum; (c) if there are no Disinterested Directors, or if the
Disinterested Directors so direct, by Independent Counsel (as
defined below) in a written opinion to the Board of Directors, a
copy of which shall be delivered to Indemnitee; or (d) the
stockholders of the Company. Such Independent Counsel shall be
selected by the Board of Directors and approved by Indemnitee. Upon
failure of the Board of Directors so to select such Independent
Counsel or upon failure of Indemnitee so to approve, such
Independent Counsel shall be selected upon application to a court
of competent jurisdiction. Such determination of entitlement to
indemnification shall be made, and such indemnification shall be
paid in full by the Company, not later than sixty calendar days
after receipt by the Company of a written request for
indemnification. Such request shall include documentation or
information which is necessary for such determination and which is
reasonably available to Indemnitee. Any Expenses incurred by
Indemnitee in connection with a request for indemnification or
payment of Expenses hereunder, under any other agreement, any
provision of the Company’s Bylaws or any directors’ and
officers’ liability insurance, shall be borne by the Company.
The Company hereby indemnifies Indemnitee for any such Expense and
agrees to hold Indemnitee harmless therefrom irrespective of the
outcome of the determination of Indemnitee’s entitlement to
indemnification. If the person making such determination shall
determine that Indemnitee is entitled to ind
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