INDEMNIFICATION
AGREEMENT
INDEMNIFICATION
AGREEMENT between John B. Sanfilippo & Son, Inc., a Delaware
corporation (the “Company ”), and
, an officer and/or director of the Company (the “
Indemnitee ”), dated as of
, 2009.
WHEREAS, the
Indemnitee has agreed to serve as an officer or director of the
Company; and
WHEREAS, the
Restated Certificate of Incorporation (the “ Certificate
of Incorporation ”) and the Amended and Restated Bylaws
(the “ Bylaws ”) of the Company provide for
certain indemnification of the officers and directors of the
Company;
NOW, THEREFORE, in
consideration of the Indemnitee’s agreement to serve and
continue serving as an officer or director of the Company and of
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company agrees to the
covenants set forth herein for the purpose of further strengthening
and securing to the Indemnitee the indemnification provided by the
Certificate of Incorporation and the Bylaws.
Section 1. Certain Definitions. For purposes of this
Agreement, the term:
“Act” means the Securities Exchange Act of 1934,
as amended.
“Another
Enterprise” means any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as
a director, officer, employee or agent.
“Change
in Control” means the first date on which one of the
following events occurs: (a) the consummation of a merger or
consolidation of the Company with or into another entity or any
other corporate reorganization, if more than 50% of the combined
voting power of the continuing or surviving entity’s
securities outstanding immediately after such merger, consolidation
or other reorganization is owned by persons who were not
stockholders of the Company immediately prior to such merger,
consolidation or other reorganization; (b) the sale, transfer
or other disposition of all or substantially all of the
Company’s assets; (c) a change in the composition of the
Board of Directors of the Company, as a result of which fewer than
one-half of the directors following such change in composition of
the Board of Directors of the Company are directors who either
(i) had been directors of the Company on the date
24 months prior to the date of the event that may constitute a
Change in Control (the “ Original Directors ”)
or (ii) were elected, or nominated for election, to the Board
of Directors of the Company with the affirmative votes of at least
a majority of the aggregate of (A) the Original Directors who
were still in office at the time of the election or nomination and
(B) the directors whose election or nomination was previously
approved pursuant to this clause (ii); (d) any transaction as
a result of which any “person” or “group”
(as such terms are used in Section 13(d) and 14(d) of the Act),
other than one or more Permitted Holders, or any group that is
controlled by Permitted Holders, is or becomes the
“beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Act), directly or indirectly, of the voting
securities of the Company representing at least 30% of the total
voting power of the Company (with respect to all matters other than
the election of directors) represented by the Company’s then
outstanding voting securities; (e) a bankruptcy
trustee,
receiver or
similar person or entity is appointed for the Company; (f) the
Company determines to liquidate or dissolve; or (g) the
Company enters into a plan or agreement for any of the foregoing.
For purposes of clause (d), the term “transaction”
shall include any conversion of the Company’s Class A
Common Stock, $.01 par value per share (“ Class A
Stock ”) whether or not such conversion occurs in
connection with a sale, transfer or other disposition of such
Class A Stock. For purposes of this definition, (i) the
term “person” shall exclude: (A) a trustee or
other fiduciary holding securities under an employee benefit plan
of the Company or a Subsidiary; and (B) a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of the Common
Stock, par value $.01 per share, of the Company, and any other
shares into which such Common Stock shall thereafter be exchanged
by reason of a recapitalization, merger, consolidation, split-up,
combination, exchange of shares or the like (it being understood
that for purposes of subsequently determining whether a Change in
Control has occurred, all references to the “Company”
in the definition of Change in Control shall be deemed to be
references to the Company and/or such corporation, as applicable);
(ii) the term “group” shall exclude any group
controlled by any person identified in clause (i)(A) above and
(iii) the term “control” shall mean the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person, whether
through the ownership of voting securities, by contract, or
otherwise, and the terms “controlling” and
“controlled” have meanings correlative
thereto.
“Delaware Law ” means: (i) the Delaware
General Corporation Law as it exists on the date hereof 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 and/or advancement rights than the Delaware
General Corporation Law permitted the Company to provide prior to
such amendment); (ii) the law of Delaware, including case law, to
the full extent it permits broader indemnification and/or
advancement rights than the Delaware General Corporation Law, as so
amended; and (iii) any other law which may be applicable,
including but not limited to federal law, but only to the extent
such other law permits the Company to provide broader
indemnification and/or advancement rights than the Delaware General
Corporation Law and the law of Delaware.
“Expenses” means all expenses, liabilities and
losses (including, without limitation, attorneys’ fees,
retainers, expert and witness fees, expenses of investigation and
preparation, disbursements and expenses of counsel, judgments,
fines, ERISA or other excise taxes or penalties and amounts paid or
to be paid in settlement) actually and reasonably incurred or
suffered by the Indemnitee or on Indemnitee’s behalf in
connection with a Proceeding.
“Independent Legal Counsel” means a nationally
recognized law firm that is experienced in matters of corporate law
and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any
matter material to either such party, or (ii) any other party
to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“independent legal counsel” shall not include any
person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
2
“Permitted Holder ” means: (a) Jasper B.
Sanfilippo, Mathias A. Valentine, a spouse of Jasper B. Sanfilippo,
a spouse of Mathias A. Valentine, any lineal descendant of Jasper
B. Sanfilippo or any lineal descendant of Mathias A. Valentine
(collectively referred to as the “ Family Members
”), (b) a legal representative of a deceased or disabled
Family Member’s estate, provided that such legal
representative is a Family Member, (c) a trustee of any trust
of which all the beneficiaries (and any donees and appointees of
any powers of appointment held thereunder) are Family Members and
the trustee of which is a Family Member, (d) a custodian under
the Uniform Gifts to Minors Act or Uniform Transfers to Minors Act
for the exclusive benefit of a Family Member, provided that such
custodian is a Family Member, (e) any corporation, partnership
or other entity, provided that at least 75% of the equity interests
in such entity (by vote and by value) are owned, either directly or
indirectly, in the aggregate by Family Members, (f) any bank
or other financial institution, solely as a bona fide pledgee of
shares of Class A Stock by the owner thereof as collateral
security for indebtedness due to the pledgee or (g) any
employee benefit plan, or trust or account held thereunder, or any
savings or retirement account (including an individual retirement
account), held for the exclusive benefit of a Family
Member.
“Proceeding” means any threatened, pending,
actual or completed action, suit, inquiry or proceeding, whether
civil, criminal, administrative or investigative, whether public or
private, whether or not occurring before or after the date of this
Agreement and, subject to Section 3 below, including any such
threatened, pending, actual or completed action, suit, inquiry or
proceeding by or in the right of the Company.
“Subsidiary ” means a corporation of which at
least 50% of the total combined voting power of all classes of
stock is owned by the Company either directly or through one or
more Subsidiaries.
Section 2. Indemnification. In the event that the
Indemnitee was or is made a party or is threatened to be made a
party to or is involved (including, without limitation, as a
witness) in any Proceeding by reason of the fact that the
Indemnitee or a person of whom the Indemnitee is the legal
representative of is or was a director or officer of the Company
(whether before or after the date hereof) or, while serving as a
director or officer of the Company, is or was serving as a director
or officer of Another Enterprise (whether before or after the date
hereof) and, in either case, whether the basis of such Proceeding
is alleged action in an official capacity as a director or officer
or in any other capacity while serving as a director or officer,
the Company shall indemnify and hold harmless Indemnitee to the
fullest extent authorized by Delaware Law against all Expenses;
provided , however , that except as provided in
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