INDEMNITY AGREEMENT
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This Agreement is made as of the day of , 19 , among
Tyson Foods, Inc., a Delaware corporation (the "Corporation"), and
( "Indemnitee"), with reference to the following facts:
RECITALS
A. Indemnitee is currently serving as of the
Corporation and the Corporation wishes Indemnitee to continue in such
capacity. Indemnitee is willing, under certain circumstances, to continue
in such capacity.
B. Indemnitee has indicated that he does not regard the indemnities
available under the Corporation's bylaws and available insurance, if any,
as adequate to protect him against the risks associated with his service to
the Corporation. Indemnitee may not be willing to continue in office in
the absence of the benefits afforded to Indemnitee under this Agreement.
AGREEMENT
In order to induce Indemnitee to continue to serve as ______________
for the Corporation and in consideration for his continued service, the
Corporation hereby agrees to indemnify Indemnitee as follows:
1. The Corporation will pay on behalf of Indemnitee, and his
executors, administrators or assigns, any amount which he is or becomes
legally obligated to pay because of any claim or claims made against him
because of any act or omission or neglect or breach of duty, including any
actual or alleged error or misstatement or misleading statement, which he
commits or suffers while acting in his capacity as a of the
Corporation and solely because of his being a The payments
which the Corporation will be obligated to make hereunder shall include,
inter alia, damages, judgements, settlements and costs, costs of
investigation (excluding salaries of officers or employees of the
Corporation) and costs of defense of legal actions, claims or proceedings
and appeals therefrom, and costs of attachment of similar bonds.
2. In the event of payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, 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 the Corporation effectively
to bring suit to enforce such rights.
3. Notwithstanding the provisions of Paragraph 1, the Corporation
shall not be liable under this Agreement to make any payment in connection
with any claim made against the Indemnitee:
(a) for which payment is actually made to the Indemnitee under
a valid and collectible insurance policy, except in respect of any
excess beyond the amount of payment under such insurance;
(b) for which the Indemnitee is entitled to indemnity and/or
payment by reason of having given notice of any circumstance which
might give rise to a claim under any policy of insurance, the terms of
which have expired prior to the effective date of this Agreement;
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(c) for which the Indemnitee is indemnified by the Corporation
otherwise than pursuant to this Agreement;
(d) based upon or attributable to the Indemnitee gaining in
fact any remuneration, personal profit or advantage to which he was
not legally entitled;
(e) for an accounting of profits made from the purchase of sale
by the Indemnitee of securities of the Corporation within the meaning
of Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any state statutory law or common
law;
(f) brought about or contributed to by the dishonesty of
Indemnitee; however, notwithstanding the foregoing, Indemnitee shall
be protected under this Agreement as to any claims upon which suit may
be brought against him by reason of any alleged dishonesty on his
part, unless a judgment or other final adjudication thereof adverse to
Indemnitee shall establish that he committed acts of active and
deliberate dishonesty with actual dishonest purpose and intent which
were material to the cause of action so adjudicated; or
(g) if a final decision by a court having jurisdiction in the
matter shall determine that such payment is not lawful.
4. If the Indemnification provided hereunder is unavailable and may
not be paid to Indemnitee for any reason other than those set forth in
paragraphs (a) through (f) of Section 3, then in respect of any threatened,
pending or completed action, suit or proceeding in which Corporation is
jointly liable with Indemnitee (or would be if joined in such action, suit
or proceeding), Corporation shall contribute to the amount of expenses
(including attorneys' fees), judgements, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by
Indemnitee in such proportion as is appropriate to reflect (i) the relative
benefits received by Corporation on the one hand and Indemnitee on the
other hand from the transaction from which such action, suit or proceeding
arose, and (ii) the relative fault of Corporation on the one hand and of
Indemnitee on the other in connection with the events which resulted in
such expenses, judgements, fines or settlement amounts, as well as any
other relevant equitable considerations. The relative fault of Corporation
on the one hand and of Indemnitee on the other shall be determined by
reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the
circumstances resulting in such expenses, judgements, fines or settlement
amounts. Corporation agrees that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro-rata
allocation or any other method of allocation which does not take account of
the foregoing equitable considerations.
5. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee will, if a claim
in respect thereof is to be made against Corporation under this Agreement,
notify Corporation of the commencement thereof; but the omission so to
notify Corporation will not relieve it from any liability which it may have
to Indemnitee otherwise than under this Agreement. With respect to any
such action, suit or proceeding as to which Indemnitee notifies Corporation
of the commencement thereof:
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(a) Corporation will be entitled to participate therein at its
own expense;
(b) except as otherwise provided below, to the extent that it
may wish, Corporation jointly with any other indemnifying party
similarly notified will be entitled to assume the defense thereof,
with counsel satisfactory to Indemnitee. After notice from
Corporation to Indemnitee of its election so as to assume the defense
thereof, Corporation will not be liable to Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below.
Indemnitee shall have the right to employ its counsel in such action,
suit or proceeding but the fees and expenses of such counsel incurred
after notice from Corporation of its assumption of the defense thereof
shall be at the expense of Indemnitee unless (i) the employment of
counsel by Indemnitee has been authorized by Corporation, (ii)
Indemnitee shall have reasonably concluded that there may be a
conflict of interest between Corporation and Indemnitee in the conduct
of the defense of such action or (iii) Corporation 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 Corporation. Corporation shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of
Corporation or as to which Indemnitee shall have made the conclusion
provided for in (ii) above; and
(c) Corporation shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent. Corporation shall not
settle any action or claim in any manner which would impose any
penalty or limitation on Indemnitee without Indemnitee's written
consent. Neither Corporation or Indemnitee will unreasonably withhold
its consent to any proposed settlement.
6. In the event that Indemnitee employs his own counsel pursuant to
Section 5(b) (i) through (iii) above, Corporation shall advance to
Indemnitee, prior to any final disposition of any threatened or pending
action, suit or proceeding, whether civil, criminal, administrative or
investigative, any and all reasonable expenses (including legal fees and
expenses) incurred in investigating or defending any such action, suit or
proceeding within ten (10) days after receiving copies of invoices
presented to Indemnitee for such expenses. Indemnitee agrees that
Indemnitee will reimburse Corporation for all reasonable expenses paid by
Corporation in defending any civil or criminal action, suit or proceedings
against Indemnitee in the event and only to the extent that a final
decision by a court having jurisdiction in the matter shall determine that
it is unlawful for Indemnitee to be indemnified by Corporation for such
expenses.
7. The Corporation expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on Corporation
hereby in order to induce Indemnitee to continue as a ____________ of
Corporation, and acknowledges that Indemnitee is relying upon this
Agreement in continuing in such capacity. In the event Indemnitee is
required to bring any action to enforce rights or to collect moneys due
under this Agreement and is successful in such action, Corporation shall
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reimburse Indemnitee for all of Indemnitee's reasonable fees and expenses
in bringing and pursuing such action.
8. ach of the provisions of this Agreement is a separate and
distinct agreement and independent of the other, 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. This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Delaware.
10. This Agreement shall be binding upon Indemnitee and upon
Corporation, its successors and assigns, and shall inure to the benefit of
Indemnitee, his heirs, personal representative and assigns and to the
benefits of Corporation, its successors and assigns.
11. 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.
TYSON FOODS, INC.
BY:
TITLE:
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--------------------, Indemnitee
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