Exhibit 10
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“Agreement" ) is made as of this
day of
, 20
, by and between
Wendy’s International, Inc., an Ohio corporation (the
“Company" ), and
, an individual (
“Indemnitee" ).
RECITALS
A. The regulations (the
“Regulations" ) of the Company provide for the
indemnification of the officers of the Company to the greatest
extent permitted by Ohio law, including the Ohio General
Corporation Law, as amended (the “OGCL” )
and permit indemnification of other employees of the Company.
B. The Regulations and the OGCL
permit contracts between the Company and the officers or other
employees of the Company with respect to indemnification of such
officers or other employees.
C. The Company recognizes that
capable and qualified individuals are becoming increasingly
reluctant to serve as officers of or in certain other employee
capacities at public corporations as a result of the recent and
ongoing enactment of statutes and regulations pertaining to
officers’ and other employees’ responsibilities and the
increasing risk of lawsuits against officers and other employees in
the current corporate climate in the United States, unless such
individuals are provided with more certain and secure protection
against exposure to unreasonable personal risk arising from their
service and activities on behalf of a corporation.
D. The Company is aware that
individuals recruited to serve as officers of or in certain other
employee capacities at public corporations generally are more
likely to agree to provide services to corporations that provide
for separate indemnification agreements because, unlike
indemnification provisions contained in the articles of
incorporation or the regulations of a company or state statutory
provisions, the indemnification provisions contained in a separate
agreement generally may not be amended or rescinded without the
consent of the individual who is a party to the agreement.
E. The Company recognizes that
it is in the best interests of the Company and its shareholders to
attract and retain capable and qualified individuals to serve as
officers and in certain other employment positions and to enable
such officers and other employees to exercise their judgment in the
best interests of the Company without being affected by the threat
of exposure to unreasonable personal risk.
F. To induce Indemnitee to serve
and/or continue to serve as an officer or other employee of the
Company, the Company desires Indemnitee to be indemnified and
advanced expenses as set forth herein.
1
AGREEMENT
In consideration of
Indemnitee’s service as an officer or other employee of the
Company after the date hereof, the Company and Indemnitee hereby
agree as follows:
1. Certain Definitions.
Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings set forth below:
“Corporate
Status” means the fact that a person is or was an
officer or other employee of the Company. A Proceeding shall be
deemed to have been brought by reason of a person’s
“Corporate Status” if it is brought because of the
status described in the preceding sentence or because of any action
or inaction on the part of such person in connection with such
status.
“Disinterested
Director” means a director of the Company who is not
and was not a party to or threatened with a Proceeding in respect
of which indemnification is sought by Indemnitee.
“Expenses”
shall include all reasonable attorneys’ fees, disbursements
and retainers, court costs, transcript costs, fees of experts,
witness fees, travel and deposition costs, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees and all other disbursements or expenses of the types
customarily incurred in connection with (a) prosecuting,
defending, preparing to prosecute or defend, investigating,
settling or appealing a Proceeding (including the cost of any
appeal bond or its equivalent), (b) for purposes of
Section 2.1 only, being prepared to be a witness or
otherwise participating in a Proceeding or (c) enforcing a
right under this Agreement (including any right to indemnification
or advancement of expenses under this Agreement).
“Independent
Counsel” means an attorney, or a firm having
associated with it an attorney, who neither currently is nor in the
past five years has been retained by or performed services for the
Company or any person to be indemnified by the Company.
“Proceeding” includes any threatened,
pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding,
whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or would be involved as a party or otherwise
(including as a witness) by reason of the Indemnitee’s
Corporate Status, including one pending on or before the date of
this Agreement; but excluding one initiated by an Indemnitee
pursuant to Section 7 of this Agreement to enforce
Indemnitee’s rights under this Agreement. For purposes of
this definition, the term “threatened” shall be deemed
to include, but not be limited to, Indemnitee’s good faith
belief that a claim or other assertion may lead to initiation of a
Proceeding.
“Reviewing
Party” means the person, persons or entity selected
to make the determination of the entitlement to indemnification
pursuant to Section 5.3 hereof.
2. Indemnification.
2.1 Proceedings not by or in
Right of Company. The Company hereby agrees to hold harmless
and indemnify Indemnitee to the greatest extent permitted by Ohio
law, including the provisions of the OGCL and by the Regulations,
as such may be amended from time to time, if Indemnitee was or is a
party, witness, or other participant, or is threatened to be made a
party, witness, or other participant, to any Proceeding, other than
a Proceeding by or in the right of the Company, by reason of
Indemnitee’s Corporate Status, against all Expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with such Proceeding, if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company and, with respect
to any criminal Proceeding, had no reasonable cause to believe that
his or her conduct was unlawful. The termination of any Proceeding
by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not satisfy the foregoing standard
of conduct to the extent applicable thereto.
2.2 Proceedings by or in Right of
Company. The Company hereby agrees to hold harmless and
indemnify Indemnitee to the greatest extent permitted by Ohio law,
including the provisions of the OGCL and by the Regulations, as
such may be amended from time to time, if Indemnitee was or is a
party or is threatened to be made a party to any Proceeding by or
in the right of the Company, by reason of Indemnitee’s
Corporate Status, against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection with the defense or settlement of such Proceeding, if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company; provided , however , that, if
applicable law so provides, no indemnification against such
Expenses shall be paid in respect of any claim, issue or matter in
such Proceeding as to which Indemnitee shall have been adjudged to
be liable for negligence or misconduct in the performance of
Indemnitee’s duty to the Company unless, and only to the
extent that, the Franklin County Court of Common Pleas of the State
of Ohio, or the court in which such Proceeding was brought,
determines, upon application, that, despite the adjudication of
liability but in view of all of the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such
Expenses as such court shall deem proper.
2.3 Indemnification for Expenses
of an Indemnitee Who is Wholly or Partly Successful. To the
extent that the Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding referred to in
Section 2.1 or 2.2 of this Agreement, or in
defense of any claim, issue or matter in such Proceeding,
Indemnitee shall be indemnified against Expenses actually and
reasonably incurred by the Indemnitee or on Indemnitee’s
behalf in connection with such Proceeding. A
3. Advancement of
Expenses.
3.1 Advancement Obligation.
The Company shall advance all Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding prior to the final
disposition of such Proceeding upon receipt of an undertaking by or
on behalf of Indemnitee to repay such amount if it shall ultimately
be determined that Indemnitee is not entitled to be indemnified by
the Company. Any advances and undertakings to repay pursuant to
this Section 3.1 shall not be secured, shall not bear
interest and shall provide 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 with respect to such Proceeding,
Indemnitee shall not be required to reimburse the Company for any
advancement of Expenses in respect of such Proceeding until a final
judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or lapsed).
3.2 Timing and Contents. Any
advancement of Expenses pursuant to Section 3.1 hereof
shall be made within ten days after the receipt by the Company of a
written statement from Indemnitee requesting such advancement from
time to time and accompanied by or preceded by the undertaking
referred to in Section 3.1 above. Each statement
requesting advancement shall reasonably evidence the Expenses
incurred by or on behalf of the Indemnitee in connection with such
Proceeding for which advancement is being sought.
4. Contribution in the Event
of Joint Liability. Whether or not the indemnification provided
in this Agreement is available, in respect of any Proceeding in
which the Company is jointly liable with Indemnitee (or would be if
joined in such Proceeding), the Company shall contribute to the
amount of Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred and paid or payable by Indemnitee
in proportion to the relative benefits received by the Company, on
the one hand, and Indemnitee, on the other hand, from the
transaction from which such Proceeding arose; provided ,
however , that the proportion determined on the basis of
relative benefit may, to the extent necessary to conform to law, be
further adjusted by reference to the relative fault of the Company,
on the one hand, and Indemnitee, on the other hand, in connection
with the events that resulted in such Expenses, judgments, fines or
settlement amounts, as well as any other equitable considerations
that applicable law may require to be considered. The relative
fault of the Company, on the one hand, and Indemnitee, on the other
hand, shall be determined by reference to, among other things, the
degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability
is primary or secondary, and the degree to which their conduct is
active or passive.
5. Procedures and
Presumptions for Determination of Entitlement to
Indemnification.
5.1 Timing of Payments. All
payments of Expenses, judgments, fines, amounts paid in settlement
and other amounts by the Company to Indemnitee pursuant to this
Agreement shall be made as soon as practicable after written demand
therefor by Indemnitee is presented to the Company, but in no event
later than (a) 30 days after such demand is presented or
(b) such later date as may be permitted for the determination
of entitlement to indemnification pursuant to
Section 5.7 hereof, if applicable; provided ,
however , that advances of Expenses shall be made within the
time period provided in Section 3.2 hereof.
5.2 Request for
Indemnification. Whenever Indemnitee believes that he or she is
entitled to indemnification pursuant to this Agreement, Indemnitee
shall submit to the Company 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. Indemnitee shall submit such claim for
Indemnification within a reasonable time, not to exceed five years,
after any judgment, order, settlement, dismissal, arbitration
award, conviction, acceptance of a plea of nolo contendere (or its
equivalent) or other full or partial final determination or
disposition of the Proceeding (with the latest date of the
occurrence of any such event to be considered the commencement of
the five-year period). The Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the
Board of Directors of the Company (the “Board"
) in writing that Indemnitee has requested indemnification.
5.3 Reviewing Party. Upon
written request by Indemnitee for indemnification pursuant to the
first sentence of Section 5.2 hereof, to the extent
that the Indemnitee’s entitlement to such indemnification is
governed by Section 2.1 or 2.2 of this
Agreement, a determination with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of
the following methods: (a) by a majority vote of a quorum of
the Board consisting of Disinterested Directors; or (b) if
such a quorum of Disinterested Directors is not available or if a
majority of such quorum so directs, in a written opinion by
Independent Counsel (designated for such purpose by the Board).
5.4 Selection of Independent
Counsel. If the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to
Section 5.3 hereof, the Independent Counsel shall be
selected as provided in this Section 5.4 . The
Independent Counsel shall be selected by the Board, and the Company
shall promptly give written notice to Indemnitee advising him or
her of the identity of the Independent Counsel so selected.
Indemnitee may, within ten days after such written notice of
selection shall have been given, deliver to the Company a written
objection to such selection; provided , however ,
that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in this Agreement, and
the objection shall set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the person
so selected shall act as Independent Counsel. If a written
objection is made and substantiated, the Independent Counsel
selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court has ruled against such objection.
If, within 30 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 5.2 hereof,
no Independent Counsel shall have been selected or an Independent
Counsel shall have been selected but an objection thereto shall
have been properly made and remained unresolved, either the Company
or Indemnitee may petition the Franklin County Court of Common
Pleas of the State of Ohio or other court of competent jurisdiction
for resolution of any objection that shall have been made by the
Indemnitee to the selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the
court or by such other person as the court shall designate, and the
person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under
Section 5.3 hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to
Section 5.3 hereof.
5.5 Burden of Proof. In
making a determination with respect to entitlement to
indemnification hereunder, the Reviewing Party shall presume that
Indemnitee is entitled to indemnification under this Agreement.
Anyone seeking to overcome this presumption shall have the burden
of proof and the burden of persuasion, by clear and convincing
evidence. In making a determination with respect to entit
