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Exhibit
10.20.1
UNIFIED WESTERN GROCERS,
INC.
INDEMNIFICATION
AGREEMENT
This Indemnification
Agreement (“Agreement”) is made as of
by and between UNIFIED WESTERN GROCERS, INC., a California
corporation (the “Company”), and
(“Indemnitee”).
RECITALS
A. The Company believes that
it is essential to its best interest to attract and retain highly
capable persons to serve as directors, officers and other agents of
the Company.
B. The Company and Indemnitee
recognize the increased risk of litigation and other claims being
asserted against directors, officers and other agents of
corporations.
C. In recognition of the need
for substantial protection against personal liability to attract
and retain the services of qualified individuals, such as
Indemnitee, to serve as directors, officers and other agents of the
Company and to induce Indemnitee to provide or continue to provide
services to the Company as a director, officer or other agent, the
Company wishes to provide in this Agreement for the indemnification
of and the advancement of expenses to Indemnitee to the fullest
extent permitted by law and as set forth in this
Agreement.
IN CONSIDERATION of the
foregoing and of Indemnitee’s providing or continuing to
provide services to the Company directly or at its request with
another enterprise, the parties agree as follows:
1.
Indemnification.
(a) Third Party
Proceedings. The Company shall indemnify Indemnitee if
Indemnitee is or was a party or is threatened to be made a party to
any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) (i) by reason of the
fact that Indemnitee is or was a director, officer, employee or
agent of the Company, or any subsidiary of the Company, or
(ii) by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement (but only if
such settlement is approved in advance by the Company) actually and
reasonably incurred by Indemnitee in connection with such action or
proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the best interests of the
Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe Indemnitee’s conduct was
unlawful. The termination of any action 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 (i) Indemnitee did not act in good faith,
(ii) Indemnitee did not act in a manner which Indemnitee
reasonably believed to be in the best interests of the Company, or
(iii) with respect to any criminal action or proceeding,
Indemnitee had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
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(b) Proceedings By or
in the Right of the Company . To the fullest extent
permitted by law, the Company shall indemnify Indemnitee if
Indemnitee was or is a party or is threatened to be made a party to
any threatened, pending or completed action or proceeding by or in
the right of the Company or any subsidiary of the Company to
procure a judgment in its favor (i) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the
Company, or any subsidiary of the Company, or (ii) by reason
of the fact that Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees) and, amounts
paid in settlement, in each case to the extent actually and
reasonably incurred by Indemnitee in connection with the defense or
settlement of such action or proceeding if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in the
best interests of the Company and its shareholders, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged to be liable
to the Company in the performance of Indemnitee’s duty to the
Company and its shareholders unless and only to the extent that the
court in which such action or proceeding is or was pending shall
determine upon application that, in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to
indemnity for expenses and then only to the extent that the court
shall determine.
2. Indemnification
Procedure and Determination.
(a) Advancement of
Expenses. The Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action or proceeding
referenced in Section 1(a) or (b) hereof (but not amounts
actually paid in settlement of any such action or proceeding).
Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid
by the Company to Indemnitee within twenty (20) days following
delivery of a written request (together with the copies of invoices
presented to Indemnitee for such expenses) therefor by Indemnitee
to the Company.
(b) Notice and Cooperation
by Indemnitee. Indemnitee shall, as a condition precedent to
his right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under
this Agreement. Notice to the Company shall be directed to the
Chief Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). Notice shall be
deemed received three business days after the date postmarked if
sent by domestic certified or registered mail, properly addressed;
otherwise notice shall be deemed received when such notice shall
actually be received by the Company. In addition, Indemnitee shall
give the Company such information and cooperation as it may
reasonably require and as shall be within lndemnitee’s power.
The Chief Executive Officer of the Company shall, promptly upon
receipt of any such request for indemnification, advise the Board
of Directors of the Company in writing that Indemnitee has
requested indemnification.
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(c) Determination of Right
to Indemnity. Upon receipt of a written request by Indemnitee
for indemnification pursuant to Section 2(b), the Company
shall determine by any of the methods set forth in Section 317
of the California General Corporation Law whether Indemnitee has
met the applicable standards of conduct which make it permissible
under applicable law to indemnify Indemnitee. Any indemnification
provided for in Section 2 shall be made no later than
forty-five (45) days after receipt of the written request of
Indemnitee. If a claim under this Agreement, under any statute, or
under any provision of the Company’s Articles of
Incorporation or Bylaws providing for indemnification, is not paid
in full by the Company within forty-five (45) days after a
written request for payment thereof has first been received by the
Company, Indemnitee may, but need not, at any time thereafter bring
an action against the Company to recover the unpaid amount of the
claim and, subject to Section 13 of this Agreement, Indemnitee
shall also be entitled to be paid for the expenses (including
attorneys’ fees) reasonably incurred of bringing such action.
It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with
any action or proceeding in advance of its final disposition) that
Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Company to indemnify
Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the Company, and Indemnitee shall be entitled
to receive interim payments of expenses pursuant to Subsection 2(a)
unless and until such defense may be finally adjudicated by court
order or judgment from which no further right of appeal
exists.
It is the parties’ intention that
if the Company contests Indemnitee’s right to
indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the
failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or its shareholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the
Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or
its shareholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee has
or has not met the applicable standard of conduct.
(d) Notice to
Insurers. If, at the time of the receipt of a notice of a claim
pursuant to Section 2(b) hereof, be Company has director and
officer liability insurance in effect; the Company shall give
prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies. The
obligation of the Company to indemnify the Indemnitee under this
Agreement shall be secondary, and all applicable director and
officer liability insurance shall be primary.
(e) Selection of
Counsel. In the event the Company shall be obligated under any
provision of this Agreement to indemnify Indemnitee or to
pay
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