Exhibit 10.13
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (the "Agreement") made this 1st day of April
1998, between AGRIBRANDS INTERNATIONAL, INC., a Missouri corporation (the
"Company") and ____________________ ("Director").
WHEREAS, Director is a member of the Board of Directors of Company, and in
such capacity is performing a valuable service for Company; and
WHEREAS, the Company's Articles of Incorporation (the "Articles") permit
the indemnification of directors, officers, employees and certain agents of the
Company, and indemnification is also authorized by Section 351.355 of the
Missouri Revised Statutes, as amended to date (the "Indemnification Statute");
and
WHEREAS, the Articles and the Indemnification Statute permit full
indemnification of directors absent knowingly fraudulent, deliberately dishonest
or willful misconduct; and
WHEREAS, in order to induce Director to serve as a member of the Board of
Directors of Company, Company has determined and agreed to enter into this
contract with Director;
NOW THEREFORE, in consideration of Director's continued service as a
director after the date hereof, the Company and Director agree as follows:
1. Indemnity of Director. Company hereby agrees to hold harmless and
indemnify Director to the full extent authorized or permitted by the provisions
of the Indemnification Statute, or by any amendment thereof, or any other
statutory provisions authorizing or permitting such indemnification which is
adopted after the date hereof.
2. Additional Indemnity. Subject to the exclusions set forth in Section 3
hereof, Company further agrees to hold harmless and indemnify Director 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, claim, suit or proceeding,
whether civil, criminal, administrative or investigative (including an action by
or in the right of the Company) to which Director is, was 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 whether before or after the date of this
Agreement, becomes a director, officer, employee or agent of the Company, or is
or was serving or at any time serves at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
3. Limitations on Additional Indemnity. No indemnity pursuant to Section 2
hereof shall be paid by Company:
(a) Except to the extent the aggregate of losses to be indemnified
thereunder exceeds the amount of such losses for which the Director is
indemnified pursuant to Section 1 hereof or pursuant to any insurance
policies or other comparable policies purchased and maintained by the
Company;
(b) In respect to remuneration paid to Director if it shall be finally
judicially adjudged that such remuneration was in violation of law;
(c) On account of any suit for an accounting of profits made from the
purchase or sale by Director of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended or similar provisions of any state or local statutory law;
(d) On account of Director's conduct which is finally judicially
adjudged to have been knowingly fraudulent, deliberately dishonest or
willful misconduct;
(e) If a final decision by a Court having jurisdiction in the matter
(all appeals having been denied or none having been taken) shall determine
that such indemnification is not lawful.
4. Continuation of Indemnity. All agreements and obligations of Company
contained herein shall continue during the period Director is a member of the
Board of Directors of Company and shall continue thereafter so long as Director
shall be subject to any possible claim or threatened, pending or completed
action or claim, suit or proceeding, whether civil, criminal, administrative or
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investigative, by reason of the fact that Director was a director of the Company
or was serving in any other capacity referred to herein.
5. Notification and Defense of Claim. Promptly after receipt by Director of
notice of the commencement of any action, claim, suit or proceeding against
Director by reason of Director's status as a director, officer, employee or
agent, Director will notify Company of the commencement thereof; provided,
however, that the omission so to notify Company will not relieve Company from
any liability which it may have to Director under this Agreement unless and to
the extent that Company's rights are prejudiced by such failure. With respect to
any such action, claim, suit or proceeding as to which Director notifies Company
of the commencement thereof:
(a) Company will be entitled to participate therein at its own
expense;
(b) Except as otherwise provided below, to the extent that it may
wish, Company jointly with any other party will be entitled to assume the
defense thereof, with counsel satisfactory to Director. After notice from
Company to Director of its election so to assume the defense thereof,
Company 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 unless Director shall have reasonably concluded that there
may be a conflict of interest between Company and Director in the conduct
of the defense of such action, in which case, Company shall not be entitled
to assume the defense of any action, claim, suit or proceeding brought by
or on behalf of Company;
(c) Company shall not be liable to indemnify Director under this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. Company 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 Company nor Director
will unreasonably withhold their consent to any proposed settlement.
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6. Advancement and Repayment of Expenses.
(a) To the extent that the Company assumes the defense of any action,
claim, suit or proceeding against Director, Director agrees that he will
reimburse Company for all reasonable expenses paid by Company in defending
any civil or criminal action, claim, suit or proceeding against Director in
the event and only to the extent that it shall be ultimately judicially
determined that Director is not entitled to be indemnified by Company for
such expenses under the provisions of the Indemnification Statute, the
Articles, this Agreement or otherwise.
(b) To the extent that the Company does not assume the defense of any
action, claim, suit or proceeding against Director, Company shall advance
to Director all reasonable expenses, including all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, 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 defending, preparing to defend or investigating any civil or criminal
action, suit or proceeding, within twenty days after the receipt by Company
of a statement or statements from Director requesting such advance or
advances, whether prior to or after final disposition of such action, suit
or proceeding. Such statement or statements shall reasonably evidence the
expenses incurred by Director and shall include or be preceded or
accompanied by an undertaking by or on behalf of Director to repay all of
such expenses advanced if it shall be ultimately judicially determined that
Director is not entitled to be indemnified against such expenses. Any
advances and undertakings to repay pursuant to this paragraph shall be
unsecured and interest free.
7. Enforcement.
(a) Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on Company hereby in
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order to induce Director to serve as a director of Company, and
acknowledges that Director is relying upon this Agreement in serving in
such capacity.
(b) In the event Director is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful in
such action, Company shall reimburse Director for all of Director's
reasonable fees and expenses in bringing and pursuing such action.
8. 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, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
9. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Missouri.
(b) This Agreement shall be binding upon Director and upon Company,
its successors and assigns, and shall inure to the benefit of Director, the
Director's heirs, personal representatives and assigns, and to the benefit
of Company, 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 on and
as of the day and year first above written.
AGRIBRANDS INTERNATIONAL, INC.
By:________________________________
X. X. Xxxxxxxx, Secretary
DIRECTOR
________________________________
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