INDEMNIFICATION AGREEMENT
Exhibit 10.7
INDEMNIFICATION AGREEMENT (the “Agreement”) effective _____________, 20___ between POST
HOLDINGS, INC., a Missouri corporation (the “Company”) and
___________________________ (“Participant”).
WHEREAS,
Participant is [an officer/a director] of the Company, and in such capacity is performing a
valuable service for the Company; and
WHEREAS, the Company’s Articles of Incorporation (the “Articles”) and Section 351.355 of the
Missouri Revised Statutes, as amended to date (the “Indemnification Statute”), permit the
indemnification of directors, officers, employees and certain agents of the Company, under certain
circumstances; and
WHEREAS, in order to induce Participant to serve as [an officer/a director] of the Company, the Company has
determined and agreed to enter into this contract with Participant;
NOW THEREFORE, in consideration of Participant’s service as [an officer/a director] of the Company after
the date hereof, the Company and Participant agree as follows:
1. Indemnity of Participant. Company hereby agrees to hold harmless and indemnify
Participant 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, the
Company further agrees to hold harmless and indemnify Participant against any and all expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement, actually and
reasonably incurred by Participant in connection with any Claim. Such indemnification shall be
made by the Company without regard to whether or not there has been a determination that
Participant has met any standard of conduct prescribed by law or otherwise in connection with the
specific matter for which indemnification is sought by (i) a majority of a quorum of disinterested
directors, (ii)
independent legal counsel by written opinion, or (iii) the Company’s shareholders
by a majority vote. For purposes of this Indemnification Agreement, a “Claim” is a 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 Participant is,
was, or at any time becomes a party, or is threatened to be made a party, by reason of the fact
that Participant 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
(whether before or after the date of this Agreement) serves at the request of the Company as a
director, officer, employee, member, trustee, or agent of another corporation, partnership, joint
venture, trust, trade or industry association, or other enterprise (whether incorporated or
unincorporated, for-profit or not-for-profit).
3. Limitations on Additional Indemnity. Notwithstanding anything else contained in
this Agreement, no indemnity shall be paid by the Company pursuant to this Indemnification
Agreement upon occurrence of any of the following:
(a) With respect to remuneration paid to Participant, if it shall be finally judicially
adjudged that such remuneration was paid in violation of law;
(b) On account of any suit for an accounting of profits made from the purchase or sale
by Participant 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;
(c) On account of Participant’s conduct which is finally judicially adjudged to have
been knowingly fraudulent, deliberately dishonest, or willful misconduct;
(d) 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; or
(e) In connection with indemnity pursuant to Section 2 only, except to the extent the
aggregate losses to be indemnified thereunder exceeds the amount of such losses for which
the Participant actually receives payments pursuant to Section 1 hereof or pursuant to any
insurance policies or other comparable policies purchased and maintained by the Company.
4. Continuation of Indemnity. All agreements and obligations of the Company contained
herein shall continue during the period Participant is [an officer/a director] of the Company and shall continue
thereafter so long as Participant shall be subject to any possible Claim.
5. Notification and Defense of Claim. Promptly after receipt by Participant of notice
of the commencement of any Claim, Participant will notify the Company of the commencement thereof;
provided, however, that the omission to so notify the Company will not relieve the Company from any
liability which it may have to Participant under this Agreement unless and to the extent that the
Company’s rights are prejudiced by such failure. With respect to any Claim as to which Participant
notifies the Company of the commencement thereof:
(a) Company will be entitled to participate in the defense thereof at its own expense;
(b) Except as otherwise provided below, the Company, jointly with any other party, will
be entitled to assume the defense thereof at the Company’s expense, with counsel
satisfactory to Participant. After notice from the Company to Participant of its election
to so assume the defense thereof, the Company will not be liable to Participant under this
Agreement for any legal or other expenses subsequently incurred by Participant in connection
with the defense thereof unless Participant shall have reasonably concluded that there may
be a conflict of interest between the Company and Participant in the conduct of the defense
of
such Claim, in which case, the Company shall
not be entitled to assume the defense of such Claim. For purposes of this Indemnification
Agreement, there shall be deemed to be a conflict of interest between the Company and
Participant with respect to any Claim brought by, or in the right of, the Company; and
(c) Company shall not be liable to indemnify Participant under this Agreement for any
amounts paid in settlement of any Claim effected without the Company’s written consent.
Company shall not settle any Claim in any manner which would impose any penalty or
limitation on Participant without Participant’s written consent. Neither Company nor
Participant will unreasonably withhold their consent to any proposed settlement.
6. Advancement and Repayment of Expenses.
(a) To the extent that the Company assumes the defense of any Claim, Participant agrees
that he will reimburse the Company for all reasonable expenses paid by Company in defending
such Claim in the event, and only to the extent that, it shall be ultimately judicially
determined that Participant is not entitled to be indemnified by the Company for such
expenses under the provisions of either the Indemnification Statute, the Restated Articles,
this Agreement, or otherwise.
(b) To the extent that the Company does not assume the defense of any Claim, the
Company shall advance to Participant 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 (20) days after the receipt by the
Company of a statement or statements from Participant requesting such advance or advances,
whether prior to or after final disposition of such Claim. Such statement or statements
shall reasonably evidence the expenses incurred by Participant and
shall include or be
preceded or accompanied by an undertaking by or on behalf of Participant
to repay all of such expenses advanced if it shall be ultimately judicially determined that
Participant 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 the Company hereby in order to induce Participant to
serve as [an officer/a director] of the Company and acknowledges that Participant is relying upon this
Agreement in continuing in such capacity.
(b) In the event Participant is required to bring any action to enforce rights or to
collect monies due under this Agreement and is successful in such action, the Company shall
reimburse Participant for all of Participant’s attorneys’ 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 without giving effect to the conflict of laws provisions thereof.
(b) This Agreement shall be binding upon Participant and upon the Company, its
successors and assigns, and shall inure to the benefit of Participant, his heirs, personal
representatives and assigns, and to the benefit of the Company, its successors and assigns.
(c) No amendment, modification, termination, or cancellation of this Agreement shall be
effective unless signed in writing by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this ____ day of
_______________, 20__.
| POST HOLDINGS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| PARTICIPANT | ||||||
| By: | ||||||
| Name: | ||||||
