Exhibit 10.1
EXECUTION COPY
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INDEMNIFICATION AGREEMENT
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THIS AGREEMENT ("Agreement") is made and entered into as of this
_____ day of October, 2008 between K-V Pharmaceutical Company, a Delaware
corporation (the "Company"), and ________________________ ("Indemnitee").
RECITALS
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WHEREAS, Indemnitee is serving as a director of the Company,
and as such is performing a valuable service for the Company; and
WHEREAS, competent and experienced persons are becoming
increasingly reluctant to serve publicly-held corporations as directors unless
they are provided with adequate protection through liability insurance and
adequate company indemnification against risks of claims and actions against
them arising out of their service to the corporation; and
WHEREAS, the Board of Directors has determined that the
ability to attract and retain qualified persons to serve as directors is in
the best interests of the Company and its stockholders, and that the Company
should act to assure such persons that there will be adequate certainty of
protection through insurance and indemnification against risks of claims and
actions against them arising out of their service to and activities on behalf
of the Company; and
WHEREAS, Section 145 of the General Corporation Law of the
State of Delaware (the "General Corporation Law") permits the Company to
indemnify and advance expenses to its officers and directors and to indemnify
and advance expenses to persons who serve at the request of the Company as
directors, officers, employees, or agents of other corporations or
enterprises; and
WHEREAS, the Company has adopted provisions in its Bylaws
addressing indemnification and advancement of expenses to its officers and
directors, and providing that the Company may enter into indemnification
agreements which specify the rights and obligations of the Company and such
persons with respect to indemnification, advancement of expenses and related
matters; and
WHEREAS, the Company desires to have Indemnitee continue to
serve in an Official Capacity (as defined below), and Indemnitee desires to
continue so to serve the Company, provided, and on the express condition, that
Indemnitee is furnished with the indemnity and other rights set forth in this
Agreement.
AGREEMENT
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Now, therefore, in consideration of Indemnitee's continued
service to the Company in Indemnitee's Official Capacity, the parties hereto
agree as follows:
1. Definitions. For purposes of this Agreement:
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(a) "Change of Control" means a change in control of the Company
occurring after the Effective Date of a nature that would be required to be
reported in response to Item 1.01 of Current Report on Form 8-K (or in
response to any similar item on any similar schedule or form) promulgated
under the Securities Exchange Act of 1934, as amended (the "Act"), whether or
not the Company is then subject to such reporting requirement; provided,
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however, that, without limitation, such a Change of Control shall be deemed to
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have occurred if after the Effective Date (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Act) (other than any one or more of
the direct descendants by blood of Xxxxxx X. Xxxxxxxx and Xxxxxxx Xxxxxxxx,
together) becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Act), directly or indirectly, of securities of the Company representing thirty
percent (30%) or more of the combined voting power of the Company's then
outstanding securities without the prior approval of at least two-thirds of
the members of the Board of Directors in office immediately prior to such
person attaining such percentage; (ii) the Company is a party to a merger,
consolidation, liquidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a majority
of the Board of Directors thereafter; or (iii) during any period of two (2)
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors, and any new director (other than a director designated
by a person who has entered into an agreement with the Company to effect a
transaction described in Section 1(a)(i) or (ii)) whose election by the Board
of Directors or nomination for election by the Company's stockholders was
approved by a vote of at least a majority of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously approved by such vote,
cease for any reason to constitute at least a majority of the Board of
Directors.
(b) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification or advancement of expenses is sought by Indemnitee.
(c) "Effective Date" means the date first written above.
(d) "Expenses" shall include all direct and indirect costs
including, but not limited to, reasonable attorneys' fees, retainers, court
costs, transcript costs, fees of experts, witness fees, advisory 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 investigating, prosecuting,
defending (or preparing to investigate, prosecute or defend) a Proceeding, or
being or preparing to be a witness in a Proceeding. Notwithstanding the
foregoing, Expenses incurred in connection with investigating, prosecuting,
defending (or preparing to investigate, prosecute or defend) a Proceeding
shall not include any fees, costs, or expenses of more than two firms of
attorneys with respect to such Proceeding (other than one additional firm
serving as local counsel if the Indemnitee is required to retain local counsel
under applicable local law or rules of any jurisdiction in which such
Proceeding is brought), and in no event shall the Company be required to
indemnify, or advance expenses to, Indemnitee with respect to any fees, costs,
or expenses for more than two such firms (and local counsel as provided
above). Any counsel engaged by Indemnitee with respect to which Indemnitee
seeks advancement from or indemnification by the Company shall agree to abide
by any guidelines established by the Company covering the retention of counsel
by the Company,
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such agreement being a condition precedent to advancement or indemnification
with respect to the fees, costs, or expenses of any such counsel.
(e) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five (5) years has been, retained to represent: (i) the
Company or Indemnitee in any matter material to either such party, or (ii) any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee's rights
under this Agreement. Notwithstanding the foregoing, a law firm or a member of
a law firm may serve as Independent Counsel for more than one indemnitee in
relation to a single Proceeding or a series of related Proceedings.
(f) "Official Capacity" means Indemnitee's corporate status as
an officer and/or director and any other fiduciary capacity in which
Indemnitee serves the Company, its subsidiaries and affiliates, its employee
benefit plans, and any other entity which Indemnitee serves in such capacity
at the request of the Company's CEO, its Board of Directors or any committee
of its Board of Directors. "Official Capacity" also refers to all actions
which Indemnitee takes or does not take while serving in such capacity.
(g) "Proceeding" includes any actual, threatened, pending or
completed inquiry, investigation, action, suit, arbitration, or any other such
actual or threatened action or occurrence, whether civil, criminal,
administrative or investigative, including any appeal or petition resulting
from such action or occurrence, whether or not initiated prior to the
Effective Date, except a proceeding initiated by an Indemnitee pursuant to
Section 8 of this Agreement to enforce his or her rights under this Agreement.
2. Service by Indemnitee. Indemnitee will serve and/or continue
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to serve in Indemnitee's Official Capacity faithfully and to the best of
Indemnitee's ability so long as Indemnitee has or holds such Official
Capacity. Indemnitee may at any time and for any reason resign from
Indemnitee's Official Capacity (subject to any other contractual obligation or
any obligation imposed by operation of law).
3. Indemnification.
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(a) General. Except as otherwise provided in this Agreement, the
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Company shall indemnify Indemnitee to the fullest extent permitted by the
General Corporation Law as such law may from time to time be amended if
Indemnitee is or was a party or is or was threatened to be made a party to any
Proceeding by reason of his or her Official Capacity or by reason of anything
done or not done by Indemnitee in his or her Official Capacity. The Company
shall indemnify Indemnitee against all costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by or on behalf of Indemnitee in any
Proceeding, and Expenses actually and reasonably incurred by Indemnitee in
connection with such Proceeding, if Indemnitee is determined to have met the
standard of conduct set forth in Section 7(a).
(b) Exceptions. Indemnitee shall receive no indemnification of
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Expenses:
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(i) to the extent such indemnification of Expenses is
finally determined by a Court of competent jurisdiction
(including through the expiration of applicable appeals
processes) to be expressly prohibited by Delaware law or
the public policies of Delaware;
(ii) to the extent payment is actually made to Indemnitee
for the amount to which Indemnitee would otherwise have been
entitled under this Agreement pursuant to an insurance
policy, or another indemnity agreement or arrangement from
the Company or other person or entity;
(iii) for an accounting of profits made from the purchase
and sale (or sale and purchase) by Indemnitee of securities
of the Company within the meaning of Section 16(b) of the
Act, or similar provisions of state statutory law or common
law;
(iv) in connection with any Proceeding, or part thereof
(including claims and permissive counterclaims) initiated by
Indemnitee, except a judicial proceeding pursuant to Section
8 to enforce rights under this Agreement, unless the
Proceeding (or part thereof) was authorized by the Board of
Directors of the Company; and
(v) with respect to any claim, issue, or matter as to which
Delaware law expressly prohibits such indemnification by
reason of any adjudication of liability of Indemnitee to the
Company, unless and only to the extent that the Delaware
Court of Chancery, or the court in which such action or suit
was brought, shall determine upon application that, despite
an adjudication of liability but in view of all the
circumstances of the case, Indemnitee is entitled to
indemnification for such Expenses as such court shall deem
proper.
4. Advancement of Expenses.
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(a) General. Except as otherwise provided in Section 3(b)(iv) of
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this Agreement, the Company shall advance Expenses to Indemnitee to the
fullest extent permitted by the General Corporation Law as such law may from
time to time be amended if Indemnitee is or was a party or is or was
threatened to be made a party to any Proceeding by reason of his or her
Official Capacity or by reason of anything done or not done by Indemnitee in
his or her Official Capacity. The Company shall advance to Indemnitee Expenses
actually and reasonably incurred by Indemnitee in connection with such
Proceeding within 15 business days after Indemnitee provides a statement to
Company requesting an advance and describing in reasonable detail the Expenses
incurred.
(b) Undertaking In Connection With Request For Advancement. As a
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condition precedent to the Company's advancement of Expenses to Indemnitee,
Indemnitee shall provide the Company, in substantially the form attached as
Exhibit 1, with (i) a written affirmation by such person of his or her good
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faith belief that he or she has met the standard of conduct necessary for
indemnification under this Agreement and Section 145 of the General
Corporation Law, and (ii) an undertaking by or on behalf of Indemnitee to
reimburse such amount if it is
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finally determined by a court of competent jurisdiction after all appeals that
Indemnitee is not entitled to be indemnified against such Expenses by the
Company as provided by this Agreement or otherwise. Indemnitee's undertaking
to reimburse any such amounts is not required to be secured.
5. Indemnification for Expenses of Successful Party.
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Notwithstanding the limitations of any other provisions of this
Agreement, to the extent that Indemnitee is successful on the merits or
otherwise in defense of any Proceeding, or in defense of any claim, issue or
matter therein, including, without limitation, the dismissal of any action
without prejudice, or if it is ultimately determined that Indemnitee is
otherwise entitled to be indemnified against Expenses, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred in
connection therewith. If Indemnitee is partially successful on the merits or
otherwise in defense of any Proceeding, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred in connection with each
claim, issue, or matter that is successfully resolved on the merits or
otherwise to the fullest extent permitted by law.
6. Indemnification for Expenses Incurred in Serving as a Witness.
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Notwithstanding any other provisions of this Agreement, Indemnitee shall be
entitled to indemnification for and advancement of all Expenses reasonably
incurred for serving as a witness by reason of Indemnitee's Official Capacity
in any Proceeding with respect to which Indemnitee is not a party.
7. Determination of Entitlement to Indemnification.
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(a) Standard of Conduct. Except as provided in Section 5 above,
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Indemnitee shall be entitled to indemnification pursuant to this Agreement
only upon a determination that Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe that Indemnitee's conduct was unlawful.
(b) Manner of Determining Eligibility. Upon written request of
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the Indemnitee for indemnification, the entitlement of Indemnitee to such
requested indemnification shall be determined by:
(i) the Board of Directors by a majority vote of
Disinterested Directors, whether or not such majority
constitutes a quorum; or
(ii) a committee of Disinterested Directors designated by
majority vote of such Disinterested Directors, whether or
not such majority constitutes a quorum; or
(iii) Independent Counsel in a written opinion to the Board
of Directors, or designated committee of the Board of
Directors, with a copy to Indemnitee, which Independent
Counsel shall be selected by majority vote of the Company's
directors at a meeting at which a quorum is present, or a
majority vote of the Disinterested Directors, or Committee
of Disinterested Directors; or
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(iv) in the event that a Change of Control has occurred, at
the option of Indemnitee, by Independent Counsel (selected
by Indemnitee) in a written opinion to the Board of
Directors of the Company, a copy of which shall be delivered
to the Indemnitee.
(c) Change of Control. The Company agrees that if there is a
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Change of Control (other than a Change of Control which has been approved by a
majority of the Board of Directors who were directors immediately prior to
such Change of Control) then with respect to all matters thereafter arising
concerning the rights of the Indemnitee to indemnification under this
Agreement or any other document now or hereafter in effect relating to such
indemnification, the Company shall seek legal advice only from Independent
Counsel selected by Indemnitee. The Company agrees to pay the reasonable fees
of the Independent Counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(d) Payment of Costs of Determining Eligibility. The Company
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shall pay all costs associated with its determination of Indemnitee's
eligibility for indemnification.
(e) Presumptions and Effect of Certain Proceedings. The
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Secretary or the Assistant Secretary of the Company shall, promptly upon
receipt of Indemnitee's request for indemnification, advise in writing the
Board of Directors or such other person or persons empowered to make the
determination requested in Section 7(b), and the Company shall thereafter
promptly make such determination or initiate the appropriate process for
making such determination.
(i) In making a determination with respect to entitlement
to indemnification hereunder, the person or persons or entity
making such determination shall, to the fullest extent not
prohibited by law, presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with
Section 7 of this Agreement, and the Company shall, to the
fullest extent not prohibited by law, have the burden of
proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination
contrary to that presumption. Neither the failure of the
Company (including by its directors or independent legal
counsel) to have made a determination prior to the
commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including by its
directors or independent legal counsel) that Indemnitee has
not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.
(ii) Subject to Section 8(f), if the person, persons or
entity empowered or selected under Section 7(b) of this
Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within
sixty (60) days after receipt by the Company of the request
therefor, the requisite
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determination of entitlement to indemnification shall, to
the fullest extent not prohibited by law, be deemed to have
been made and Indemnitee shall be entitled to such
indemnification, absent (A) a misstatement by Indemnitee of
a material fact, or an omission of a material fact necessary
to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (B) a
prohibition of such indemnification under applicable law;
provided, however, that such 60-day period may be extended
for a reasonable time, not to exceed an additional thirty
(30) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification
in good faith requires such additional time for the
obtaining or evaluating of documentation and/or information
relating thereto; and provided, further, that the foregoing
provisions of this Section 7(e) shall not apply if the
determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 7(b)(iv) of
this Agreement.
(iii) The termination of any Proceeding or of any claim,
issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its
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equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the
right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in
a manner which Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company or, with
respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that Indemnitee's conduct was
unlawful. The Company acknowledges that a settlement or
other disposition short of final judgment may be successful
if it permits a party to avoid expense, delay, distraction,
disruption and uncertainty. In the event that any action,
claim or proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment
against Indemnitee (including, without limitation,
settlement of such action, claim or proceeding with or
without payment of money or other consideration) it shall be
presumed that Indemnitee has been successful on the merits
or otherwise in such action, suit or proceeding. Anyone
seeking to overcome this presumption shall have the burden
of proof and the burden of persuasion by clear and
convincing evidence.
8. Remedies of Indemnitee.
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(a) In the event that (i) a determination is made pursuant to
Section 7 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses, to the fullest extent
permitted by applicable law, is not timely made pursuant to Section 4 of this
Agreement, (iii) no determination of entitlement to indemnification shall have
been made pursuant to Section 7(b) or (c) of this Agreement within ninety (90)
days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to Section 5 or 6 of this
Agreement within fifteen (15) business days after receipt by the Company of
written request therefor, or (v) payment of indemnification pursuant to
Section 3 of this Agreement is not made within fifteen (15) business days
after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to seek an adjudication by the
Court of Chancery of Indemnitee's right to such indemnification or
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advancement of Expenses, with any costs associated therewith to be paid by the
Company to the extent permitted by law. The Company shall not oppose
Indemnitee's right to seek any such adjudication.
(b) In the event that a determination shall have been made
pursuant to Section 7 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section 8
shall be conducted in all respects as a de novo trial on the merits and
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Indemnitee shall not be prejudiced by reason of that adverse determination. In
any judicial proceeding commenced pursuant to this Section 8, Indemnitee shall
be presumed to be entitled to indemnification under this Agreement and the
Company shall, to the fullest extent not prohibited by law, have the burden of
proof to overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that presumption,
as the case may be, and the Company may not refer to or introduce into
evidence any determination pursuant to Section 7 of this Agreement adverse to
Indemnitee for any purpose. If Indemnitee commences a judicial proceeding
pursuant to this Section 8, Indemnitee shall not be required to reimburse the
Company for any advances pursuant to Section 4 until a final determination is
made with respect to Indemnitee's entitlement to indemnification (as to which
all rights of appeal have been exhausted or lapsed).
(c) Neither the failure of the Company (including by its
directors or Independent Counsel) to have made a determination prior to the
commencement of any action pursuant to this Agreement that indemnification is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Company (including by its
directors or Independent Counsel) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct. If a
determination shall have been made pursuant to Section 7 of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in any judicial proceeding commenced pursuant to this
Section 8, absent (i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 8 that the procedures
and presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this Agreement.
(e) The Company shall indemnify and hold harmless Indemnitee to
the fullest extent permitted by law against all expenses (of the type that
would be considered "Expenses" if incurred in connection with a Proceeding)
and, if requested by Indemnitee, shall (within ten (10) days after the
Company's receipt of such written request) advance to Indemnitee, to the
fullest extent permitted by applicable law, such expenses that are incurred by
Indemnitee in connection with any judicial proceeding brought by Indemnitee
(i) to enforce Indemnitee's rights under, or to recover damages for breach of,
this Agreement or any other indemnification agreement or provision of the
Certificate of Incorporation or the Company's By-laws now or hereafter in
effect; or (ii) for recovery or advances under any insurance policy maintained
by any person for
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the benefit of Indemnitee, to the full extent Indemnitee ultimately is
determined to be entitled to such indemnification, advance or insurance
recovery, as the case may be.
(f) Notwithstanding anything in this Agreement to the contrary,
no determination as to entitlement to indemnification under this Agreement
shall be required to be made prior to the final termination or disposition of
the Proceeding.
9. Non-exclusivity; No Effect on Other Agreements; Survival of
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Rights; Insurance; Subrogation.
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(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Certificate of Incorporation, the Company's By-laws, any other
agreement, a vote of stockholders or a resolution of directors, or otherwise.
The entry by Indemnitee into this Agreement, and the terms of this Agreement,
shall not be deemed to change, limit or affect in any respect, or terminate,
any other agreements between Indemnitee and the Company. Except as otherwise
provided by Section 12 hereof, no amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Official Capacity prior to such amendment, alteration
or repeal. To the extent that a change in the General Corporation Law, whether
by statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the Certificate
of Incorporation, the Company's By-laws or this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right
and remedy shall be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other right or
remedy.
(b) The Company shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable (or for which advancement is
provided hereunder) hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
(c) The Company's obligation to indemnify or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as
a director, officer, employee or agent of any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise shall be reduced by any amount Indemnitee has actually
received as indemnification or advancement of Expenses from such other
corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise.
10. Notification and Settlement of Claim. Promptly after receipt
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by Indemnitee of notice of any Proceeding, Indemnitee will notify the Company
in writing of the commencement thereof; but the omission so to notify the
Company will not relieve the Company from any liability that it may have to
Indemnitee, except to the extent the Company is actually prejudiced
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thereby. The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any Proceeding effected
without the Company's written consent, and the Company shall not settle any
Proceeding in any manner that would impose any penalty or limitation on, or
require any payment from, Indemnitee without Indemnitee's written consent.
Neither the Company nor Indemnitee will unreasonably withhold its consent to
any proposed settlement.
11. Separability. If any provision of this Agreement shall be
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held to be invalid, illegal or unenforceable for any reason whatsoever (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, all portions of any paragraphs of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not by themselves invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby, and (b) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, all portions of any paragraph of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent of the parties that the Company provide protection to
Indemnitee to the fullest enforceable extent provided for in this Agreement.
12. Duration of Agreement. This Agreement shall continue until
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and terminate upon the later of: (a) ten (10) years after the date that
Indemnitee shall have ceased to serve as a director of the Company or (b) one
(1) year after the final termination of any Proceeding then pending in respect
of which Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 8 of this Agreement relating thereto. All agreements and obligations
of the Company contained in this Agreement shall continue during the period of
Indemnitee's Official Capacity. This Agreement shall be binding upon all
successors and assigns of the Company (including any transferee of all or
substantially all of its assets and any successor by merger or operation of
law) and shall inure to the benefit of Indemnitee's heirs, personal
representatives and estate.
13. Non-attribution of Actions of Any Indemnitee to Any Other
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Indemnitee. For purposes of determining whether Indemnitee is entitled to
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indemnification or advancement of Expenses by the Company under this Agreement
or otherwise, the actions or inactions of any other indemnitee or group of
indemnitees shall not be attributed to Indemnitee.
14. Insurance and Subrogation.
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(a) The Company shall purchase and maintain insurance on behalf
of Indemnitee who is or was or has agreed to serve at the request of the
Company as a director or officer of the Company against any liability asserted
against, and incurred by, Indemnitee or on Indemnitee's behalf in any such
capacity, or arising out of Indemnitee's status as such, whether or not the
Company would have the power to indemnify Indemnitee against such liability
under the provisions of this Agreement, provided that such insurance is
available on commercially reasonable terms. If the Company has such insurance
in effect at the time the Company receives from Indemnitee any notice of the
commencement of a proceeding, the Company shall give prompt notice of the
commencement of a proceeding to the insurers in accordance with the procedures
set forth in the policy. The Company shall thereafter take all necessary or
desirable
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action to cause such insurers to pay, on behalf of the Indemnitee, all amounts
payable as a result of such proceeding in accordance with the terms of such
policy.
(b) In the event of any payment by the Company under this
Agreement, the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee with respect to any insurance
policy, who shall execute all papers required and take all action necessary to
secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights in accordance with the
terms of such insurance policy. The Company shall pay or reimburse all
expenses actually and reasonably incurred by Indemnitee in connection with
such subrogation.
(c) The Company shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement), if and to the extent that Indemnitee has otherwise
actually received such payment under this Agreement or any insurance policy,
contract, agreement or otherwise.
15. Notices. All notices, requests, demands and other
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communications under this Agreement shall be in writing and shall be deemed to
have been duly given if (a) delivered by hand and receipted for by the party
to whom said notice or other communication shall have been directed, (b)
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed, (c) mailed by reputable
overnight courier and receipted for by the party to whom said notice or other
communication shall have been directed or (d) sent by facsimile transmission,
with receipt of confirmation that such transmission has been received.
16. Headings; References; Pronouns. The headings of the sections
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of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
References herein to section numbers are to sections of this Agreement. All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as appropriate.
17. Other Provisions.
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(a) This Agreement shall be interpreted and enforced in
accordance with the laws of Delaware.
(b) This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement. Only one such
counterpart signed by the party against whom enforceability is sought needs to
be produced as evidence of the existence of this Agreement.
(c) This Agreement shall not be deemed an employment contract
between the Company and Indemnitee, and the Company shall not be obligated to
continue Indemnitee in Indemnitee's Official Capacity by reason of this
Agreement.
(d) No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both parties hereto. No waiver
of any of the provisions of this
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Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
(e) The Company agrees to stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertions to the contrary.
(f) Indemnitee's rights under this Agreement shall extend to
Indemnitee's spouse, members of Indemnitee's immediate family, and
Indemnitee's representative(s), guardian(s), conservator(s), estate,
executor(s), administrator(s), and trustee(s), (all of whom are referred to as
"Related Parties"), as the case may be, to the extent a Related Party or a
Related Party's property is subject to a Proceeding by reason of Indemnitee's
Official Capacity.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
K-V PHARMACEUTICAL COMPANY
By
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Its
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Indemnitee
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EXHIBIT 1
AFFIRMATION AND UNDERTAKING TO REPAY INDEMNIFICATION EXPENSES
Reference is made to that Indemnification Agreement (the
"Agreement"), dated as of ______, 20__, by and between the undersigned and K-V
Pharmaceutical Company, a Delaware corporation (the "Company"). Unless
otherwise defined, capitalized terms used herein shall have the respective
meanings ascribed to them in the Agreement.
Pursuant to Section 4(b) of the Agreement:
1. The undersigned hereby affirms my good faith belief that I have
met the standard of conduct necessary for indemnification under the Agreement,
that I acted in good faith and in a manner I reasonably believed to be in or
not opposed to the best interests of the Company, and with respect to any
criminal action or proceeding, had no reasonable cause to believe that my
conduct was unlawful; and
2. The undersigned hereby agrees to reimburse the Company all
Expenses advanced to me if it is finally determined by a court of competent
jurisdiction after all appeals that I am not entitled to be indemnified
against such Expenses by the Company as provided by the Agreement or
otherwise.
Signature
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Typed Name
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Office
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