Exhibit 10.46
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is made and entered into
as of this __ day of June 1998, by and between Aurora Foods Inc., a Delaware
corporation (the "Company"), and ___________________, a director of the Company
(the "Director").
W I T N E S S E T H:
WHEREAS, the Company and the Director recognize that the legal risks
and potential liabilities associated with lawsuits filed against the directors
of the Company pose a significant deterrent to experienced and capable
individuals serving as directors of the Company;
WHEREAS, the Company recognizes that the result of the foregoing may
be to encourage those directors who nonetheless determine to serve the Company
in such capacity to act with undue conservatism in the performance of their
duties to the Company and, thus, may result in less effective direction,
supervision and management of the Company's business and operations;
WHEREAS, Section 145 of the Delaware General Corporation Law is not
exclusive of other rights to which those indemnified thereunder may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise and, thus, does not by itself limit the extent to which the Company
may indemnify (and advance expenses to) persons serving as its directors;
WHEREAS, the Company desires to have the Director begin or continue
to serve as a director of the Company, free from undue concern for
unpredictable, inappropriate or unreasonable legal risks and personal
liabilities by reason of performing his duty to the Company or his status as a
director, and the Director desires to begin or continue to serve as a director
of the Company.
NOW, THEREFORE, in consideration of the premises, mutual covenants
and agreements of the parties contained herein and the mutual benefits to be
derived from this Agreement, the parties hereto covenant and agree as follows:
1. Agreement to Serve. The Director agrees to begin or to continue
to serve the Company as a director, provided, however, that nothing contained in
this Agreement shall create or supersede or amend any existing contract of
employment between the Company and the Director, or the Securityholders
Agreement dated as of April 8, 1998 and the termination of the Director's
relationship with the Company by either party hereto shall not be restricted by
this Agreement. Should the Director and the Company agree and
subject to any written employment agreement between the Director and the
Company, the Director may also serve another corporation, limited liability
company, partnership, joint venture, employee benefit plan, trust including,
without limitation, any subsidiary or other enterprise affiliated with the
Company (any and all of which are collectively referred to herein as an
"Affiliate"), in which event the terms and provisions of this Agreement shall
automatically apply to any such other service to the full extent permitted by
applicable law without the need for any additional action on the part of the
Director or the Company.
2. Indemnity.
(A) Subject to the conditions and limitations of this
Paragraph 2 (including without limitation Paragraph 2(B) below), the
Company shall, to the fullest extent permitted by the Delaware
General Corporation Law as it may then be in effect, indemnify and
hold the Director and his estate, heirs and legal representatives
(each an "Indemnified Party") harmless if any of them is, becomes or
was a party to or witness or other participant in, or is or was
threatened to be made a party to or witness or other participant in,
any Claim (as defined below) by reason of (or arising in part out
of) an Indemnifiable Event (as defined below) against any and all
expenses (including attorneys', accountants' and other experts'
fees, disbursements and expenses), judgments, fines, penalties,
excise taxes and amounts paid or to be paid in settlement incurred
by the Indemnified Party in connection with preparation for or in
defense of such Claim (collectively, "Indemnified Amounts"). "Claim"
means any threatened, pending or completed action, cause of action,
suit or proceeding, whether civil, criminal, administrative or
investigative or other, including, without limitation, an action by
or in the right of any corporation (including without limitation,
the Company) of any type or kind, domestic or foreign, or any
limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise, whether predicated on
foreign, federal, state or local law and whether formal or informal.
"Indemnifiable Event" means any event or occurrence related to the
fact that the Director is or was or has agreed to become a director
or other representative of the Company, or is or was serving or has
agreed to serve in any capacity, at the request of the Company, in
any other corporation, limited liability company, partnership, joint
venture, employee benefit plan, trust or other enterprise, or by
reason of anything done or not done by the Director in any such
capacity.
(B) Any indemnification under paragraph (A) of this Paragraph
2 shall be made by the Company only as authorized in the specific
case upon a determination that the Director acted in good faith and
in a manner he 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 his conduct
was unlawful; provided, however, that
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no indemnification shall be made in respect of any Claim as to which
the Director shall have been adjudged to be liable to the Company
unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, the Indemnified Party is fairly and reasonably entitled to
indemnity for such Indemnified Amounts which the Court of Chancery
of the State of Delaware or such other court shall deem proper. Such
determination (each, a "Board Action") shall be made (1) by the
Board of Directors by a majority vote of the directors who are not a
party to such Claim with respect to an Indemnifiable Event, even if
less than a quorum, or (2) by a committee of such directors
appointed by a majority vote of such directors, even if less than a
quorum, or (3) by the Board of Directors acting upon an opinion in
writing of independent legal counsel, if there are no such directors
or if a majority of such directors so direct.
(C) Notwithstanding anything in the Company's Certificate of
Incorporation, By-Laws, or this Agreement to the contrary, if so
requested by an Indemnified Party the Company shall advance (an
"Expense Advance") (within 30 days of such request) any and all
Indemnified Amounts relating to a Claim to such Indemnified Party,
upon the receipt of a written undertaking by or on behalf of such
Indemnified Party to repay such Expense Advance if a judgment or
other final adjudication adverse to such Indemnified Party (as to
which all rights or appeal therefrom have been exhausted or lapsed)
establishes that such Indemnified Party, with respect to such Claim,
is not eligible for indemnification.
(D) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Paragraph 2 shall not be deemed
exclusive of any other rights to which an Indemnified Party seeking
indemnification or advancement of expenses may be entitled under any
by-law, other agreement, vote of stockholders or disinterested
directors, policy of insurance or otherwise, both as to action of
the Director in his official capacity and as to action in another
capacity while holding such office.
(E) For the purposes of this Paragraph 2, references to "the
Company" shall include, in addition to the resulting corporation or
limited liability company, any constituent corporation or limited
liability company (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents, so that the
Director if he is or was a director, officer, employee or agent of
such
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constituent entity, or is or was serving at the request of such
constituent entity as a director, officer, employee, agent, trustee,
fiduciary or other representative of another corporation, limited
liability company, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Paragraph 2 with respect to the resulting or surviving entity
as he would have with respect to such constituent entity if its
separate existence had continued.
(F) Any repeal or modification of relevant provisions of the
Delaware General Corporation Law or any other applicable laws shall
not in any way diminish any rights to indemnification of an
Indemnified Party or the obligations of the Company arising
hereunder except to the extent required by law. All rights and
obligations of the Company and the Director and the other
Indemnified Parties under this Agreement shall continue in full
force and effect despite the subsequent amendment or modification of
the Company's Certificate of Incorporation or Bylaws, as such are in
effect on the date hereof, and such rights and obligations shall not
be affected by any such amendment or modification, any resolution of
the Board of Directors or the stockholders of the Company, or any
other corporate action which in any way seeks to diminish any of the
rights of the Director and the other Indemnified Parties or the
obligations of the Company under this Agreement. If this Paragraph 2
or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless
indemnify each Indemnified Party as to Indemnified Amounts with
respect to any Claim, no matter by whom brought, and advance
expenses (including attorneys', accountants' and other experts'
fees, disbursements and expenses), in each such Claim to the full
extent permitted by any applicable portion of this Paragraph 2 that
shall not have been invalidated and to the full extent permitted by
applicable law.
(G) Anything herein to the contrary notwithstanding, the
settlement of any Claim that is entered into without the prior
written consent of the Company shall be covered by the terms hereof
as determined by the Company in its sole discretion pursuant to
Paragraph 2B.
(H) Notwithstanding any other provision of this Agreement, to
the extent that the Indemnified Party has been successful on the
merits or otherwise in defense of any or all Claims relating in
whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including, without limitation, dismissal
without prejudice, the Indemnified Party shall be indemnified
against any and all Indemnified Amounts paid or to be paid in
settlement of such Claim. In connection with any determination by
Board
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Action or by a court of competent jurisdiction that the Indemnified
Party is not entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish that the Indemnified
Party is not so entitled.
3. Payment of Indemnity. Indemnified Amounts and Expense Advances,
if any, provided to any Indemnified Party by the Company under this Agreement
upon the final disposition or conclusion of a Claim unless otherwise ordered by
the court before which such Claim was brought, shall be paid by the Company (net
of all amounts, if any, previously advanced to the Indemnified Parry or Parties
pursuant to Paragraph 2C) to the Indemnified Party (or to such other person as
the Indemnified Party may designate in writing to the Company) within 30 days
after the receipt of the Indemnified Party's written request therefor, which
request shall include a reasonably comprehensive accounting of amounts for which
indemnification is being sought and shall refer to one or more of the
provision(s) of this Agreement pursuant to which such claim is being made. All
expenses associated with the indemnification process set forth in this Agreement
or enforcements of rights hereunder shall be paid by the Company.
4. Termination of an Action is Nonconclusive. The termination of any
Action, no matter by whom brought, by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Director has not met the applicable standard(s) of
conduct set forth in Paragraph 2 of this Agreement.
5. Partial Indemnification; Interest.
(A) If it is determined by the court before which a Claim is
brought or a court having competent jurisdiction that the
Indemnified Party is entitled to indemnification as to some claims,
issues or matters, but not as to other claims, issues or matters
involved in such Claim, no matter by whom brought, the court shall
authorize the reasonable proration of the Indemnified Amounts with
respect to which indemnification is sought by the Indemnified Party,
among such claims, issues or matters as the court shall deem
appropriate in light of all of the circumstances of such Claim.
(B) If it is determined by the court before which such Claim
was brought or a court having competent jurisdiction that certain
Indemnified Amounts incurred by the Indemnified Party are, for
whatever reason, unreasonable in amount, the court shall authorize
indemnification to be paid by the Company to the Indemnified Party
for only such amounts as the court shall deem reasonable in light of
all of the circumstances of such Claim.
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6. Representation of Company. The Company represents and warrants to
the Director that neither the execution and delivery of this Agreement by the
Company nor the consummation of the transactions set forth herein or
contemplated hereby will conflict with or result in any violation of, or
constitute a breach of, or a default under, the Certificate of Incorporation or
Bylaws of the Company, or under any contract, instrument, agreement,
understanding, mortgage, indenture, lease, insurance policy, permit, concession,
grant, franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to the Company.
7. Insurance.
(A) To the extent the Company maintains at any time an
insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee shall be covered by such policy or
policies, in accordance with its or their terms, to the maximum
extent of the coverage available for any other Company director or
officer under such insurance policy. The purchase and maintenance of
such insurance shall not in any way limit or affect the rights and
obligations of the parties hereto, and the execution and delivery of
this Agreement shall not in any way be construed to limit or affect
the rights and obligations of the Company or of the other parties
under any such insurance policy.
(B) In the event of payment to an Indemnified Party under this
Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery with respect to such
payment of the Indemnified Party, who shall execute and deliver all
instruments, documents, and other papers and shall perform any and
all acts or deeds reasonably necessary or advisable to secure such
rights.
8. Notice to the Company by Director. The Director agrees to, and
each other Indemnified Party shall, notify the Company promptly upon being
served with or having knowledge of any citation, summons, complaint, indictment
or any other similar document relating to any Action which is reasonably likely
to result in a claim of indemnification under this Agreement.
9. Continuation of Rights and Obligations. The terms and provisions
of this Agreement shall survive and continue as to the Director and the other
Indemnified Parties notwithstanding whether the Director ceases to be a director
of the Company or of an Affiliate.
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10. Amendment and Modification. This Agreement may be amended,
modified or supplemented only by the written agreement of the Director and the
Company (subject to approval by the Board of Directors).
11. Assignment. This Agreement shall not be assigned (including
without limitation by operation of law or merger) by the Company or the Director
without the prior written consent of the other party hereto, except that the
Company may assign its rights and obligations under this Agreement to any
Affiliate for whom the Director is serving as an executive thereof, provided,
however, that no permitted assignment shall release the assignor from its
obligations hereunder. Subject to the foregoing, this Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, including, without
limitation, any successor to the Company by way of merger, consolidation and/or
disposition of all or substantially all of the capital stock or assets of the
Company.
12. Governing Law. All matters with respect to this Agreement,
including, without limitation, matters of validity, construction, effect and
performance, shall be governed by the internal laws of the State of Delaware
applicable to contracts made and to be performed therein between the residents
thereof (regardless of the laws that might otherwise be applicable under
principles of conflicts of law).
13. Headings. The headings used in this Agreement are for
convenience and reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
14. Severability. Without limiting the provisions of Paragraph 2G
hereof, if any provision of this Agreement shall be deemed invalid,
unenforceable or inoperative, or if a court of competent jurisdiction determines
that any of the provisions of this Agreement contravene public policy, this
Agreement shall be construed so that the remaining provisions shall not be
affected, but shall remain in full force and effect, and any such provisions
which are held to be invalid, unenforceable or inoperative or which contravene
public policy by such court shall be deemed, without further action, to be
modified, amended and/or limited, but only to the extent necessary to render the
same valid and enforceable, and the Company shall thereafter indemnify the
Indemnified Party against reasonable expenses (including attorneys',
accountants' and other experts' fees, disbursements and expenses), judgments,
fines and amounts incurred in settlement with respect to any Action, no matter
by whom brought, to the full extent permitted by any applicable provisions of
this Agreement that shall not have been invalidated and to the full extent
otherwise permitted by the Delaware General Corporation Law as it may then be in
effect.
15. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been given
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when delivered by hand or two (2) business days after being mailed by a
recognized international private courier (by way of example, FedEx and UPS) or
by certified or registered mail, return receipt requested, with postage prepaid:
15.1. If to the Director, to:
or to such other person or address as the Director shall furnish to the
Company in writing.
15.2. If to the Company, to:
Aurora Foods Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention:______________
or to such other person or address as the Company shall furnish to the Director
in writing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
DIRECTOR AURORA FOODS INC.
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Name:
Title:
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