INDEMNIFICATION AGREEMENT
EXHIBIT
10.26
This INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of the
1st day of July, 2005, by and between Swift Foods Company, a Delaware corporation (including any
successors thereto, the “Company”), and Xxx X. Rovit (“Indemnitee”).
RECITALS:
1. Competent and experienced persons are reluctant to serve or to continue to serve
corporations as directors, officers, or in other capacities unless they are provided with adequate
protection through insurance or indemnification (or both) against claims and actions against them
arising out of their service to and activities on behalf of those corporations.
2. The current uncertainties relating to the availability of adequate insurance for directors
and officers have increased the difficulty for corporations to attract and retain competent and
experienced persons.
3. The Board of Directors of the Company (the “Board”) has determined that the
continuation of present trends in litigation will make it more difficult to attract and retain
competent and experienced persons, that this situation is detrimental to the best interests of the
Company’s stockholders, and that the Company should act to assure its directors and officers that
there will be increased certainty of adequate protection in the future.
4. It is reasonable, prudent, and necessary for the Company to obligate itself contractually
to indemnify its directors and officers to the fullest extent permitted by applicable law in order
to induce them to serve or continue to serve the Company.
5. Indemnitee is willing to serve and continue to serve the Company on the condition that he
be indemnified to the fullest extent permitted by law.
6. Concurrently with the execution of this Agreement, Indemnitee is agreeing to serve or to
continue to serve as a director or officer of the Company.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises, Indemnitee’s agreement to serve or
continue to serve as a director or officer of the Company, and the covenants contained in this
Agreement, the Company and Indemnitee hereby covenant and agree as follows:
1. Certain Definitions.
For purposes of this Agreement:
(a) Affiliate: shall mean any Person that directly, or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control with the Person
specified.
(b) Change of Control: shall mean the occurrence of any of the following events:
(i) The acquisition after the date of this Agreement by any individual, entity, or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the
“Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 50% or more of either (x) the then outstanding shares
of common stock of the Company (the “Outstanding Company Common Stock”) or (y) the combined
voting power of the then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the “Outstanding Company Voting Securities”); provided, however,
that for purposes of this paragraph (i), the following acquisitions shall not constitute a Change
of Control: (1) any acquisition directly from the Company or any Subsidiary thereof, (2) any
acquisition by the Company or any Subsidiary thereof, (3) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any Subsidiary of the Company or
(4) any acquisition by any one or more members of the HMC Group;
(ii) Individuals who, as of the date of this Agreement, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the date of this Agreement
(x) who is a member of the HMC Group or (y) whose election, or nomination for election by the
Company’s stockholders, was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board, shall in either case be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a sale, lease, exchange, or other disposition of all or substantially
all of the assets of the Company (including the capital stock or assets of its subsidiaries) to any
Person, other than one or more members of the HMC Group.
(c) Claim: shall mean any threatened, pending, or completed action, suit, or
proceeding (including, without limitation, securities laws actions, suits, and proceedings and also
any cross claim or counterclaim in any action, suit, or proceeding), whether civil, criminal,
arbitral, administrative, or investigative in nature, or any inquiry or investigation (including
discovery), whether conducted by the Company or any other Person, that Indemnitee in good faith
believes might lead to the institution of any action, suit, or proceeding.
(d) Expenses: shall mean all costs, expenses (including attorneys’ and expert
witnesses’ fees), and obligations paid or incurred in connection with investigating, defending
(including affirmative defenses and counterclaims), being a witness in, or participating in
(including on appeal), or preparing to defend, be a witness in, or participate in, any Claim
relating to any Indemnifiable Event.
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(e) HMC Group: shall mean Hicks, Muse, Xxxx & Xxxxx Incorporated, its Affiliates and
their respective employees, officers, and directors (and members of their respective families and
trusts for the primary benefit of such family members).
(f) Indemnifiable Event: shall mean any actual or alleged act, omission, statement,
misstatement, event, or occurrence related to the fact that Indemnitee is or was a director,
officer, agent, or fiduciary of the Company, or is or was serving at the request of the Company as
a director, officer, trustee, agent, or fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust, or other enterprise, or by reason of any actual or alleged
thing done or not done by Indemnitee in any such capacity. For purposes of this Agreement, the
Company agrees that Indemnitee’s service on behalf of or with respect to any Subsidiary or employee
benefits plan of the Company or any Subsidiary of the Company shall be deemed to be at the request
of the Company.
(g) Indemnifiable Liabilities: shall mean all Expenses and all other liabilities,
damages (including, without limitation, punitive, exemplary, and the multiplied portion of any
damages), judgments, payments, fines, penalties, amounts paid in settlement, and awards paid or
incurred that arise out of, or in any way relate to, any Indemnifiable Event.
(h) Potential Change of Control: shall be deemed to have occurred if (i) the Company
enters into an agreement, the consummation of which would result in the occurrence of a Change of
Control; (ii) any Person (including the Company) publicly announces an intention to take or to
consider taking actions that, if consummated, would constitute a Change of Control; or (iii) the
Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change of
Control has occurred.
(i) Reviewing Party: shall mean (i) a member or members of the Board who are not
parties to the particular Claim for which Indemnitee is seeking indemnification or (ii) if a Change
of Control has occurred and Indemnitee so requests, or if the members of the Board so elect, or if
all of the members of the Board are parties to such Claim, Special Counsel.
(j) Special Counsel: shall mean special, independent legal counsel selected by
Indemnitee and approved by the Company (which approval shall not be unreasonably withheld), and who
has not otherwise performed material services for the Company or for Indemnitee within the last
three years (other than as Special Counsel under this Agreement or similar agreements).
(k) Subsidiary: shall mean, with respect to any Person, any corporation or other
entity of which a majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by that Person.
2. Indemnification and Expense Advancement.
(a) The Company shall indemnify Indemnitee and hold Indemnitee harmless to the fullest extent
permitted by law, as soon as practicable but in any event no later than 30 days after written
demand is presented to the Company, from and against any and all Indemnifiable Liabilities.
Notwithstanding the foregoing, the obligations of the Company under Section 2(a) shall be subject
to the condition that the Reviewing Party shall not have determined
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(in a written opinion, in any case in which Special Counsel is involved) that Indemnitee is not permitted to be indemnified under
applicable law. Any determination under this Section 2(a) shall be made promptly by the Reviewing
Party.
(b) If so requested by Indemnitee, the Company shall advance to Indemnitee all reasonable
Expenses incurred by Indemnitee to the fullest extent permitted by law (or, if applicable,
reimburse Indemnitee for any and all reasonable Expenses incurred by Indemnitee and previously paid
by Indemnitee) within ten business days after such request (an “Expense Advance”). The
Company shall be obligated from time to time at the request of Indemnitee to make or pay an Expense
Advance in advance of the final disposition or conclusion of any Claim. In connection with any
request for an Expense Advance, if requested by the Company, Indemnitee or Indemnitee’s counsel
shall submit an affidavit stating that the Expenses to which the Expense Advances relate are
reasonable. Any dispute as to the reasonableness of any Expense shall not delay an Expense Advance
by the Company. If, when, and to the extent that the Reviewing Party determines that (i) Indemnitee
would not be permitted to be indemnified with respect to a Claim under applicable law or (ii) the
amount of the Expense Advance was not reasonable, the Company shall be entitled to be reimbursed by
Indemnitee and Indemnitee hereby agrees to reimburse the Company without interest (which agreement
shall be an unsecured obligation of Indemnitee) for (x) all related Expense Advances theretofore
made or paid by the Company in the event that it is determined that indemnification would not be
permitted or (y) the excessive portion of any Expense Advances in the event that it is determined
that such Expenses Advances were unreasonable, in either case, if and to the extent such
reimbursement is required by applicable law; provided, however, that if Indemnitee has commenced
legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee
could be indemnified under applicable law, or that the Expense Advances were reasonable, any
determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified
under applicable law or that the Expense Advances were unreasonable shall not be binding, and the
Company shall be obligated to continue to make Expense Advances, until a final judicial
determination is made with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed), which determination shall be conclusive and binding. If there has been a
Change of Control, the Reviewing Party shall be Special Counsel, if Indemnitee so requests. If
there has been no determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively is not permitted to be indemnified in whole or part under applicable law
or that any Expense Advances were unreasonable, Indemnitee shall have the right to commence
litigation in any court in the states of Texas, New York or Delaware having subject matter
jurisdiction thereof and in which venue is proper seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any aspect thereof, and the Company
hereby consents to service of process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
(c) Nothing in this Agreement, however, shall require the Company to indemnify Indemnitee with
respect to any Claim initiated by Indemnitee, other than a Claim solely seeking enforcement of the
Company’s indemnification obligations to Indemnitee or a Claim authorized by the Board.
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3. Change of Control. The Company agrees that, if there is a Potential Change in Control
or a Change of Control and if Indemnitee requests in writing that Special Counsel be the Reviewing
Party, then Special Counsel shall be the Reviewing Party. In such a case, the Company agrees not
to request or seek reimbursement from Indemnitee of any indemnification payment or Expense Advances
unless Special Counsel has rendered its written opinion to the Company and Indemnitee that the
Company was not or is not permitted under applicable law to indemnify Indemnitee or that such
Expense Advances were unreasonable. However, if Indemnitee has commenced legal proceedings in a
court of competent jurisdiction to secure a determination that Indemnitee could be indemnified
under applicable law or that the Expense Advances were reasonable, any determination made by
Special Counsel that Indemnitee would not be permitted to be indemnified under applicable law or
that the Expense Advances were unreasonable shall not be binding, and the Company shall be
obligated to continue to make Expense Advances, until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefore have been exhausted or lapsed), which
determination shall be conclusive and binding. The Company agrees to pay the reasonable fees of
Special Counsel and to indemnify Special Counsel against any and all expenses (including attorneys’
fees), claims, liabilities, and damages arising out of or relating to this Agreement or Special
Counsel’s engagement pursuant hereto.
4. Indemnification for Additional Expenses. The Company shall indemnify Indemnitee against
any and all costs and expenses (including attorneys’ and expert witnesses’ fees) and, if requested
by Indemnitee, shall (within two business days of that request) advance those costs and expenses to
Indemnitee, that are incurred by Indemnitee if Indemnitee, whether by formal proceedings or through
demand and negotiation without formal proceedings: (a) seeks to enforce Indemnitee’s rights under
this Agreement, (b) seeks to enforce Indemnitee’s rights to expense advancement or indemnification
under any other agreement or provision of the Company’s Certificate of Incorporation (the
“Certificate of Incorporation”) or Bylaws (the “Bylaws”) now or hereafter in effect
relating to Claims for Indemnifiable Events, or (c) seeks recovery under any directors’ and
officers’ liability insurance policies maintained by the Company, in each case regardless of
whether Indemnitee ultimately prevails; provided that a court of competent jurisdiction has not
found Indemnitee’s claim for indemnification or expense advancements under the foregoing clauses
(a), (b) or (c) to be frivolous, presented for an improper purpose, without evidentiary support, or
otherwise sanctionable under Federal Rule of Civil Procedure No. 11 or an analogous rule or law,
and provided further, that if a court makes such a finding, Indemnitee shall reimburse the Company
for all amounts previously advanced to Indemnitee pursuant to this Section 4. Subject to the
provisos contained in the preceding sentence, to the fullest extent permitted by law, the Company
waives any and all rights that it may have to recover its costs and expenses from Indemnitee.
5. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to indemnification by the
Company for some, but not all, of Indemnitee’s Indemnifiable Liabilities, the Company shall
indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
6. Contribution.
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(a) Contribution Payment. To the extent the indemnification provided for under any
provision of this Agreement is determined (in the manner hereinabove provided) not to be permitted
under applicable law, the Company, in lieu of indemnifying Indemnitee, shall, to the extent
permitted by law, contribute to the amount of any and all Indemnifiable Liabilities incurred or
paid by Indemnitee for which such indemnification is not permitted. The amount the Company
contributes shall be in such proportion as is appropriate to reflect the relative fault of
Indemnitee, on the one hand, and of the Company and any and all other parties (including officers
and directors of the Company other than Indemnitee) who may be at fault (collectively, including
the Company, the “Third Parties”), on the other hand.
(b) Relative Fault. The relative fault of the Third Parties and the Indemnitee shall
be determined (i) by reference to the relative fault of Indemnitee as determined by the court or
other governmental agency or (ii) to the extent such court or other governmental agency does not
apportion relative fault, by the Reviewing Party after giving effect to, among other things, the
relative intent, knowledge, access to information, and opportunity to prevent or correct the
relevant events, of each party, and other relevant equitable considerations. The Company and
Indemnitee agree that it would not be just and equitable if contribution were determined by pro
rata allocation or by any other method of allocation that does not take account of the equitable
considerations referred to in this Section 6(b).
7. Burden of Proof. In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified under any provision of this
Agreement or to receive contribution pursuant to Section 6 of this Agreement, to the extent
permitted by law the burden of proof shall be on the Company to establish that Indemnitee is not so
entitled.
8. No Presumption. For purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court approval), or conviction, or upon a plea
of nolo contendere, or its equivalent, or an entry of an order of probation prior to judgment shall
not create a presumption (other than any presumption arising as a matter of law that the parties
may not contractually agree to disregard) that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that indemnification is not
permitted by applicable law.
9. Non-exclusivity. The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may have
under the Bylaws or Certificate of Incorporation or the Delaware General Corporation Law or
otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute
or judicial decision) permits greater indemnification by agreement than would be afforded currently
under this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by that change. Indemnitee’s rights under this
Agreement shall not be diminished by any amendment to the Certificate of Incorporation or Bylaws,
or of any other agreement or instrument to which Indemnitee is not a party, and shall not diminish
any other rights that Indemnitee now or in the future has against the Company.
10. Liability Insurance. Except as otherwise agreed to by the Company and Indemnitee in a
written agreement, to the extent the Company maintains an insurance policy or
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policies providing directors’ and officers’ liability insurance, Indemnitee shall be covered by that policy or those
policies, in accordance with its or their terms, to the maximum extent of the coverage available
for any Company director or officer.
11. Period of Limitations. No action, lawsuit, or proceeding may be brought against
Indemnitee or Indemnitee’s spouse, heirs, executors, or personal or legal representatives, nor may
any cause of action be asserted in any such action, lawsuit, or proceeding, by or on behalf of the
Company, after the expiration of two years after the statute of limitations commences with respect
to Indemnitee’s act or omission that gave rise to the action, lawsuit, proceeding, or cause of
action; provided, however, that, if any shorter period of limitations is otherwise applicable to
any such action, lawsuit, proceeding, or cause of action, the shorter period shall govern.
12. Amendments. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto. No waiver of any provision of
this Agreement shall be effective unless in a writing signed by the party granting the waiver. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall that waiver constitute a continuing
waiver.
13. Other Sources. Indemnitee shall not be required to exercise any rights that Indemnitee
may have against any other Person (for example, under an insurance policy) before Indemnitee
enforces his rights under this Agreement. However, to the extent the Company actually indemnifies
Indemnitee or advances him Expenses, the Company shall be subrogated to the rights of Indemnitee
and shall be entitled to enforce any such rights which Indemnitee may have against third parties.
Indemnitee shall assist the Company in enforcing those rights if it pays his costs and expenses of
doing so. If Indemnitee is actually indemnified or advanced Expenses by any third party, then, for
so long as Indemnitee is not required to disgorge the amounts so received, to that extent the
Company shall be relieved of its obligation to indemnify Indemnitee or advance Indemnitee Expenses.
14. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors, assigns (including any direct
or indirect successor by merger or consolidation), spouses, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues
to serve as an officer or director of the Company or another enterprise at the Company’s request.
15. Severability. If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term hereof, that provision shall
be fully severable; this Agreement shall be construed and enforced as if that illegal, invalid, or
unenforceable provision had never comprised a part hereof; and the remaining provisions shall
remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of that illegal, invalid,
or unenforceable provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to the illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
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16. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made and to be performed
in that state without giving effect to the principles of conflicts of laws.
17. Headings. The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
18. Notices. Whenever this Agreement requires or permits notice to be given by one party
to the other, such notice must be in writing to be effective and shall be deemed delivered and
received by the party to whom it is sent upon actual receipt (by any means) of such notice. Receipt
of a notice by the Secretary of the Company shall be deemed receipt of such notice by the Company.
19. Complete Agreement. This Agreement constitutes the complete understanding and agreement
among the parties with respect to the subject matter hereof and supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof, other than any
indemnification rights that Indemnitee may enjoy under the Certificate of Incorporation, the
Bylaws, or the Delaware General Corporation Law or any employment agreement between the Company and
the Indemnitee and to the extent there is any conflict between this Agreement and the employment
agreement, the terms of Section 9 herein shall be applied to provide the maximum benefits possible.
20. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but in making proof hereof it shall not be necessary to produce
or account for more than one such counterpart.
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EXECUTED as of the date first written above.
| SWIFT FOODS COMPANY |
||||
| By: | /s/Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | ||||
| Title: Vice President, General Counsel and Secretary | ||||
| INDEMNITEE: |
||||
| /s/ Xxx X. Rovit | ||||
| Xxx X. Rovit | ||||
Exhibit 10 26 - Rovit Indemn
