EX-10.5 IMDEMNIFICATION AGREEMENT DATED AUGUST 9



 






Exhibit 10.5




INDEMNIFICATION AGREEMENT




     THIS INDEMNIFICATION AGREEMENT, dated as of August 9, 2006, is made by and between AFC
Enterprises, Inc., a Minnesota corporation (the “Company”), and John Hoffner, a director of the
Company (“Director”).



     WHEREAS, Director is a member of the Board of Directors of the Company; and




     WHEREAS, it will be difficult to retain directors of the Company unless such directors are
adequately indemnified against liabilities incurred and claims made in performance of their duties
as directors of the Company; and



     WHEREAS, it is in the best interests of the Company to retain such directors by providing
adequate indemnification by means of indemnification agreements with individual directors.



     NOW, THEREFORE, in consideration of Director’s continued service as a director of the Company,
and as an inducement to Director to continue to serve as a director of the Company, the Company and
Director agree as follows:



     1.      Indemnification. The Company agrees to indemnify and hold Director harmless from
and against any claims, liabilities, damages, judgments, penalties, fines or expenses of any type
whatsoever incurred by Director in or arising out of the status, capacities or activities of
Director as a director of the Company to the maximum extent permitted under Minnesota Statutes,
Section 302A.521 (attached hereto as Exhibit A) as in effect on the date hereof.



     2.      Advances of Expenses. Subject to Director’s execution of a written affirmation,
satisfactory to the Company, of the Director’s good faith belief that the criteria for
indemnification have been satisfied and to repay all amounts advanced by the Company if it is
ultimately determined that the criteria for indemnification have not been satisfied, the Company
shall advance all expenses incurred by Director in connection with the investigation, defense,
settlement or appeal of any proceeding, action or investigation to which Director is a party or is
threatened to be made a party arising out of the status, capacities or activities of Director as a
director of the Company to the maximum extent permitted under Minnesota Statutes, Section 302.521,
subd. 3 as in effect on the date of this Agreement upon the determination by the Company that the
facts then known to those making the determination would not preclude indemnification under Section
502A.521, subd. 6 within 60 days after receipt of said written affirmation. Director shall have a
reasonable right to appear in person and to be represented by counsel.



     3.      Other Rights of Directors. The right of Director to indemnification or
advance
of expenses pursuant to this Agreement shall not be exclusive of
other rights Director may have (i) under applicable law, (ii) pursuant to other agreements between the Company and Director
or the Company’s Articles of Incorporation or Bylaws, or (iii) pursuant to any agreement with a
third
party (by way of insurance, indemnification or otherwise).



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     4.      Absolute Right to Indemnification and Advances of Expenses. The Company agrees
that it shall not, and the Company hereby waives all rights that it has or may have to, refuse to
indemnify or advance expenses, or withhold payment of amounts for which Director is indemnified
hereunder, or for advance of expenses to Director, based on any breach or alleged breach of any of
the provisions of this Agreement by Director or for any other reason whatsoever. In the event
Director is required to bring any action to enforce Director’s rights or to collect monies due to
Director under this Agreement, and is successful in such action, the Company shall reimburse
Director for all of Director’s legal fees and expenses in bringing and pursuing such action.



     5.      Amendments to Minnesota Statutes or Company’s Articles of Incorporation or Bylaws.
The Company represents that its Bylaws provide for indemnification of Director to the maximum
extent permitted by Minnesota Statutes, Section 302A.521 as in effect on the date hereof and to the
maximum extent required by this Agreement. The Company shall not amend its Articles of
Incorporation or Bylaws to reduce or eliminate the Director’s right to indemnification or advances
provided for under this Agreement. Any amendments to the Articles of Incorporation or Bylaws of
the Company made subsequent to the date of this Agreement which reduce or eliminate rights of
persons entitled to indemnification or advances under such Articles of Incorporation or Bylaws
shall not limit the rights of Director pursuant to this Agreement. If the Minnesota Statutes, the
Articles of Incorporation or the Bylaws of the Company are amended so as to provide for greater
indemnification rights or benefits, and Director shall be entitled to such greater rights or
benefits, and Director shall be entitled to such greater rights and benefits immediately upon such
amendment. Subsequent amendments to the Minnesota Statutes or other applicable law shall in no way
reduce Director’s rights under this Agreement.



     6.      Maintenance of Insurance. The Company represents that it presently has in force
and effect directors and officers insurance under a Directors’ and Officers’ Liability Insurance
Policies including Company Reimbursement issued by XL Specialty Insurance Company. (Policy No.
ELU088117-06) covering certain liabilities which may be incurred by its officers and directors.
The Company may maintain in effect, for the benefit of Director, directors’ and officers’ insurance
providing such coverage as may, from time to time, be determined by the Board of Directors of the
Company, in their absolute discretion.



     7.      Notification. Promptly after receipt by Director of the Company of any
notice
or document respecting the commencement of any action, suit, proceeding or investigation naming or
involving Director and relating to any matter concerning which Director may be

entitled to indemnification or advances pursuant to this Agreement, the party receiving notice will
notify the other of the receipt of same, but the failure by Director to so notify the Company shall
not relieve the Company from any obligation under this Agreement or otherwise.



     8.      Amendment. This Agreement may be amended at any time by written instrument
executed by the Company and Director.



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     9.      Notices. All notices and other communications between the parties with respect to
this Agreement must be made in writing and shall be deemed to have been fully delivered as of the
date on which they are hand delivered or deposited in the United States mail for delivery by
registered or certified mail, postage and fees prepaid.



     10.      Binding Effect. Due to the personal nature of the services to be rendered by
Director, Director may not assign this Agreement. Subject to the foregoing, the provisions of this
Agreement are binding upon and inure to the benefit of (i) Director and Director’s respective
heirs, legal representatives and administrators, and (ii) the Company and its successors,
transferees and assigns.



     11.      Survival. The obligations of the Company to Director as provided in this
Agreement shall survive and continue after Director has ceased to be a director of the Company.



     12.      Validity. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this Agreement, which
shall remain in full force and effect.



     13.      Arbitration. Any dispute or controversy arising under or in connection with this
Agreement shall be discussed between the parties in a good faith effort to arrive at a mutual
settlement of any such controversy. If, notwithstanding the parties’ good faith efforts, a dispute
remains unresolved for a period of 45 days after initial notice from one party to the other of the
dispute, the parties shall submit such dispute to arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award may be entered in any court having
jurisdiction over the controversy. The costs of the proceeding shall be paid by the Company.
Unless otherwise agreed upon, the place of arbitration proceedings shall be Fulton County, Georgia.



     14.      Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota.



     IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above
written.



	 	 	 	 	 
	 	AFC ENTERPRISES, INC.

 	 
	 	By:  	     /s/ Kenneth L. Keymer
 	 
	 	 	Kenneth L. Keymer, Chief Executive Officer 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	               /s/ John Hoffner
 	 
	 	John Hoffner, Director 	 
	 	 	 
	 




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