INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT (the "Agreement") made this ____ day of ________,
1997, between XXXXXXX PURINA COMPANY, a Missouri corporation (the "Company") and
XXXXXXX X. XXXXXXX ("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 Restated 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
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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
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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
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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
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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 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
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Director of notice of the commencement of any action, claim, suit or proceeding
against him by reason of his 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.
6. Advancement and Repayment of Expenses.
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(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.
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(a) Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on Company hereby in 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
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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.
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(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,
his 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.
XXXXXXX PURINA COMPANY
By:________________________________
X. X. XxXxxxxx
co-Chief Executive Officer and
co-President
By:________________________________
X. X. Xxxxxxx
co-Chief Executive Officer and
co-President
DIRECTOR
By:________________________________
Xxxxxxx X. Xxxxxxx
