Since approval by the shareholders in 1989, the Company has entered into
indemnification agreements with each of its Directors. This is the form of
those indemnification agreements.
INDEMNIFICATION AGREEMENT
This Agreement is entered into this __________ day of
_________________ _____, by and between VICORP Restaurants,
Inc., a Colorado corporation, (hereinafter "VICORP") and
_____________________________, (hereinafter "DIRECTOR").
RECITALS
A. DIRECTOR is a member of the Board of Directors of
VICORP performing valuable services for it and VICORP is desirous
of having DIRECTOR continue to serve in that capacity.
B. VICORP has provided through adopted Bylaws for the
indemnification of its directors to the maximum extent authorized
by law.
C. VICORP, at present, maintains at its expense
Directors and Officers Liability Insurance ("D&O Insurance") for
the purpose of protecting its directors and officers in
connection with the services performed by them as directors and
officers.
D. Developments with respect to the terms and
availability of D&O Insurance and with respect to the
application, amendment and enforcement of statutory and bylaw
indemnification provisions generally have raised questions
concerning the adequacy and reliability of the protection
afforded to directors thereby.
E. DIRECTOR has expressed concern that the indemnities
available under VICORP's Bylaws and D&O Insurance may be
inadequate to protect him against risks associated with his
service to VICORP. VICORP and DIRECTOR both recognize that the
Bylaws are subject to change and that the D&O Insurance that
VICORP has obtained is subject to change or cancellation.
DIRECTOR may not be willing to continue in office in the absence
of the benefits to be accorded to DIRECTOR under this Agreement.
F. In order to induce DIRECTOR to continue to serve as
a director of VICORP and in consideration of his continued
service, VICORP has determined and agreed to enter into this
contract and indemnify DIRECTOR as follows:
AGREEMENT
1. Indemnification: Subject only to the exclusions
set forth in Section 2, VICORP hereby agrees to hold harmless and
indemnify DIRECTOR:
(a) Against any and all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by DIRECTOR in connection with any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(including an action by or in the right of VICORP) to which
DIRECTOR is, was at the date hereof or at any time becomes a
party, or is threatened to be made a party, by reason of the fact
that DIRECTOR is, was or at any time becomes a director, officer,
employee or agent of VICORP, or is or was serving or at any time
serves at the request of VICORP as a director, officer, trustee,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise or any employee benefit plan,
except with respect to actions instituted by the DIRECTOR unless
approved by the Board; and
(b) Otherwise, to the full extent provided by (i) the
Colorado Business Corporation Act or any amendment thereof or any
other statutory provision authorizing or permitting such
indemnification that is adopted after the date of this Agreement
and (ii) VICORP's Bylaws.
2. Exclusions: No indemnity shall be paid by VICORP
pursuant this Agreement:
(a) if a final decision by a court having jurisdiction
in the matter shall determine that such indemnification is not
lawful;
(b) for which payment is actually made to DIRECTOR
under any D&O Insurance purchased and maintained by VICORP;
(c) with respect to remuneration paid to DIRECTOR, if
it shall be determined by a final judgment or other final
adjudication, that such remuneration was in violation of law;
(d) on account of DIRECTOR's conduct that is finally
adjudged to have been knowingly fraudulent or deliberately
dishonest, which conduct was material to the cause of action so
adjudicated;
(e) on account of any suit in which judgment is
rendered against DIRECTOR for an accounting of profits made from
the purchase or sale by DIRECTOR of securities of VICORP within
the meaning of Section 16(b) of the Securities and Exchange Act
of 1934 and amendments thereto or similar provisions of any other
statutory or common law; or
(f) on account of any suit in which the DIRECTOR is
finally adjudged to have obtained, in fact, a personal profit or
advantage to which he was not legally entitled.
3. Settlement and Costs: VICORP shall not be liable
to indemnify DIRECTOR under this Agreement for any costs, charges
or expenses incurred or amounts paid in settlement of any action
or claim effected without its written consent. VICORP shall not
settle any action or claim in any manner which would impose any
penalty or limitation on DIRECTOR without DIRECTOR's written
consent. Neither VICORP nor DIRECTOR will unreasonably withhold
their consent.
4. D&O Insurance: VICORP agrees that it shall use
reasonable efforts to maintain in effect for the benefit of
DIRECTOR a binding and enforceable policy of D&O Insurance with
coverages comparable to the policy of insurance which is in
effect as of the date of this Agreement.
Notwithstanding the above, however, VICORP shall not be
required to obtain or maintain such D&O Insurance if said
insurance is not reasonably available or if in the reasonable
businessjudgment of the then directors of VICORP, either (i) the
premium cost of such insurance is substantially disproportionate
to the amount of coverage, or (ii) the coverage provided by such
insurance is so limited by exclusions that there is insufficient
benefit from such insurance.
5. Continuation of Indemnity: All agreements and
obligations of VICORP contained herein shall continue during the
period DIRECTOR is a director, officer, employee or agent of
VICORP (or is or was serving at the request of VICORP as a
director, officer, trustee, employee or agent for another
corporation, partnership, joint venture, trust or other
enterprise or any employee benefit plan) and shall continue
thereafter so long as DIRECTOR shall be subject to any possible
claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative, by reason
of the fact that DIRECTOR was a Director of VICORP or serving in
any other capacity referred to herein.
6. Payment of Claims: If an obligation under this
Agreement is not paid by VICORP, or on its behalf, within ninety
(90) days after written notice has been received by VICORP,
DIRECTOR may at any time thereafter bring suit against VICORP to
recover the unpaid amount of the obligation.
7. Subrogation: In the event of payment by or on
behalf of VICORP under this Agreement, VICORP shall be subrogated
to the extent of such payment to all of the rights of recovery of
the DIRECTOR, who shall execute all papers required and shall do
everything that may be necessary to secure such rights including
the execution of such documents necessary to enable VICORP
effectively to bring suit to enforce such rights.
8. Notice: DIRECTOR, as a condition precedent to his
right to be indemnified under this Agreement, shall give to
VICORP notice in writing as soon as practicable of any claim made
for which indemnity will or could be sought under this Agreement.
Notice to VICORP shall be directed to VICORP Restaurants, Inc.,
400 West 48th Avenue, Denver, Colorado 80216, attention:
Corporate Secretary (or such other address as VICORP shall
designate in writing to DIRECTOR); notice shall be deemed
received if sent by prepaid mail properly addressed, the date of
such notice being the date postmarked. In addition, the DIRECTOR
shall give VICORP such information and cooperation as it may
reasonably require and as shall be within DIRECTOR's power.
9. Defense of Claims: With respect to any action,
suit or proceeding as to which DIRECTOR is seeking
indemnification under this Agreement and as to which DIRECTOR
notifies VICORP pursuant to the provisions hereof:
(a) VICORP will be entitled to participate therein at
its own expense; and
(b) Except as otherwise provided below, to the extent
that it may wish, VICORP jointly with any other indemnifying
party similarly notified will be entitled to assume the defense
thereof, with counsel satisfactory to DIRECTOR. After notice
from VICORP to DIRECTOR of its election so to assume the defense
thereof, VICORP will not be liable to DIRECTOR under this
Agreement for any legal or other expenses subsequently incurred
by DIRECTOR in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below.
DIRECTOR shall have the right to employ his counsel in such
action, suit or proceeding but the fees and expenses of such
counsel incurred after notice from VICORP of its assumption of
the defense thereof shall be at the expense of DIRECTOR unless
(i) the employment of counsel by DIRECTOR has been authorized by
VICORP, (ii) DIRECTOR shall have reasonably concluded that there
may be a conflict of interest between VICORP and DIRECTOR in the
conduct of the defense of such action or (iii) VICORP shall not
in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel
shall be at the expense of VICORP. VICORP shall not be entitled
to assume the defense of any action, suit or proceeding brought
by or on behalf of VICORP or as to which DIRECTOR shall have made
the conclusion that there may be a conflict of interest between
VICORP and DIRECTOR in the conduct of the defense of such action.
10. Advances and Repayment of Expenses: All
reasonable expenses (including attorneys' fees) incurred by
DIRECTOR in defending or investigating any civil or criminal
action, suit or proceeding shall be paid in advance of the final
disposition of such action, suit, proceeding or investigation.
DIRECTOR agrees that DIRECTOR will, upon demand, reimburse VICORP
for all such expenses so advanced by VICORP in defending any
civil or criminal action, suit or proceeding against DIRECTOR in
the event and only to the extent that it shall be ultimately
determined that DIRECTOR is not entitled to be indemnified by
VICORP for such expenses under the provisions of applicable law,
the Bylaws, this Agreement or otherwise.
11. Separability: Each of the provisions of this
Agreement is a separate and distinct agreement and independent of
the others, so that if any provision hereof shall be held to be
invalid or unenforceable for any reason, either generally or only
in particular circumstances, such invalidity or unenforceability
shall not affect the validity or enforceability of the other
provisions hereof, any provision held to be invalid or
unenforceable in a particular circumstance shall be valid and
enforceable in all other circumstances to the extent permitted by
law.
12. Enforcement: In any action between the parties
seeking enforcement of any of the terms and provisions of this
Agreement, the prevailing party in that action shall be entitled
to its reasonable costs and expenses, including court costs and
reasonable attorney's fees in addition to such other relief as
may be granted.
13. Non-Exclusivity: Nothing in this Agreement shall
diminish or otherwise restrict any right of DIRECTOR to be
indemnified under any provision of the Articles of Incorporation
or Bylaws of VICORP or any of its subsidiaries, any insurance
policy, any applicable law, any other agreement or otherwise.
14. Governing Law; Binding Effect; Amendment and
Termination:
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Colorado.
(b) This Agreement shall be binding upon DIRECTOR and
upon VICORP, its successors and assigns, and shall inure to the
benefit of DIRECTOR, his heirs, personal representatives and
assigns and to the benefit of VICORP, its successors and assigns.
(c) No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above-written.
VICORP Restaurants, Inc.
By:____________________________________
Charles R. Frederickson, Chairman
_______________________________________
________________________, Director
