INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("Agreement") is made as of ______, 200__
by and between
Weider Nutrition International, Inc., a Delaware corporation (the "Company"),
and _____________________ ("Indemnitee").
RECITALS
WHEREAS,
highly
competent persons have become more reluctant to serve publicly-held corporations
as directors or officers or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the corporation;
WHEREAS,
the Board
of Directors of the Company (the "Board") has determined that, in order to
attract and retain qualified individuals, the Company will attempt to maintain
on an ongoing basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain liabilities. Although
the
furnishing of such insurance has been a customary and widespread practice among
United States-based corporations and other business enterprises, the Company
believes that, given current market conditions and trends, such insurance may
be
available to it in the future only at higher premiums and with more exclusions.
At the same time, directors, officers, and other persons in service to
corporations or business enterprises are being increasingly subjected to
expensive and time-consuming litigation relating to, among other things, matters
that traditionally would have been brought only against the corporation or
business enterprise itself. The Company’s Amended and Restated Certificate of
Incorporation (the “Certificate of Incorporation”) and the Company’s Amended and
Restated Bylaws (the “Bylaws”) require indemnification of the officers and
directors of the Company. Indemnitee may also be entitled to indemnification
pursuant to the General Corporation Law of the State of Delaware ("DGCL").
The
Certificate of Incorporation, Bylaws and DGCL indemnification provisions are
not
exclusive, and thereby contemplate that contracts may be entered into between
the Company and members of the Board, officers and other persons with respect
to
indemnification;
WHEREAS,
the
uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons;
WHEREAS,
the Board
has determined that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company's stockholders
and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future;
WHEREAS,
it is
reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to
the
fullest extent permitted by applicable law so that they will serve or continue
to serve for or on behalf of the Company free from undue concern that they
will
not be so indemnified;
WHEREAS,
this
Agreement is a supplement to and in furtherance of the Certificate of
Incorporation and Bylaws and any resolutions adopted pursuant thereto, and
shall
not be deemed a substitute therefor, nor to diminish or abrogate any rights
of
Indemnitee thereunder;
WHEREAS,
Indemnitee
does not regard the protection available under the Certificate of Incorporation
and Bylaws and insurance as adequate in the present circumstances, and may
not
be willing to serve as an officer or director without adequate protection,
and
the Company desires Indemnitee to serve in such capacity. Indemnitee is willing
to serve, continue to serve and to take on additional service for or on behalf
of the Company on the condition that he be so indemnified; and
NOW,
THEREFORE, in
consideration of the premises and the covenants contained herein, the Company
and Indemnitee do hereby covenant and agree as follows:
Section
1. Services
to the
Company.
Indemnitee agrees
to serve as an officer/director of the Company and to serve as a director,
officer, employee, agent or fiduciary of such other subsidiary, corporation,
limited liability company, partnership, joint venture, trust, employee benefit
plan or other enterprise as the Company may request from time to time.
Indemnitee may at any time and for any reason resign from any such position
(subject to any other contractual obligation or any obligation imposed by
operation of law). This Agreement shall not be deemed an employment contract
between the Company (or any of its subsidiaries) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee's employment with the Company (or
any
of its subsidiaries), if any, is at will, and the Indemnitee may be discharged
at any time for any reason, with or without cause, except as may be otherwise
provided in any written employment contract between Indemnitee and the Company
(or any of its subsidiaries), other applicable formal severance policies duly
adopted by the Board, or, with respect to service as a director or officer
of
the Company, by the Certificate of Incorporation, Bylaws, and the DGCL. The
foregoing notwithstanding, with respect to acts or omissions occurring in the
course of Indemnitee’s service as a director or officer at the request of the
Company, this Agreement shall continue in force after Indemnitee has ceased
to
serve as such.
Section
2. Definitions.
As used in this
Agreement:
(a) A
"Change in
Control" shall be deemed to occur upon the earliest to occur after the date
of
this Agreement of any of the following events:
i. Acquisition
of
Stock by Third Party. A transaction or series of transactions (other than an
offering of securities of the Company to the general public through a
registration statement filed with the Securities and Exchange Commission)
whereby any Person (as defined below) (other than the Company, any of its
subsidiaries, an employee benefit plan maintained by the Company or any of
its
subsidiaries or a Person that, prior to such transaction, directly or indirectly
controls, is controlled by, or is under common control with, the Company)
directly or indirectly acquires beneficial ownership (within the meaning of
Rule
13d-3 under the Exchange Act (as defined below)) of securities of the Company
possessing more than 50% of the total combined voting power of the Company’s
securities outstanding immediately after such acquisition, excluding any
transaction involving a distribution of Stock held by Weider Health and Fitness
(“WHF”)
to individual
stockholders of WHF or their family trusts;
ii. Change
in Board of
Directors. During any period of two (2) consecutive years (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board, 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 Sections 2(a)(i), 2(a)(iii) or
2(a)(iv)) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds 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 so approved,
cease for any reason to constitute a least a majority of the members of the
Board;
iii. Corporate
Transactions. The consummation by the Company (whether directly involving the
Company or indirectly involving the Company through one or more intermediaries)
of (x) a merger, consolidation, reorganization, or business combination
or
(y) a sale or other disposition of all or substantially all of the
Company’s assets or (z) the acquisition of assets or stock of another
entity, in each case other than a transaction:
A. Which
results in
the Company’s voting securities outstanding immediately before the transaction
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the Company or the person that, as a result of the
transaction, controls, directly or indirectly, the Company or owns, directly
or
indirectly, all or substantially all of the Company’s assets or otherwise
succeeds to the business of the Company (the Company or such person, the
“Successor
Entity”))
directly or
indirectly, at least a majority of the combined voting power of the Successor
Entity’s outstanding voting securities immediately after the transaction, or
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B. After
which no
person or group beneficially owns voting securities representing 50% or more
of
the combined voting power of the Successor Entity; provided,
however,
that no person or
group shall be treated for purposes of this Section 2(a)(iii)(B) as beneficially
owning 50% or more of combined voting power of the Successor Entity solely
as a
result of the voting power held in the Company prior to the consummation of
the
transaction;
iv. Liquidation.
The
approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company; or
v. Other
Events. There
occurs any other event of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any
similar item on any similar schedule or form) promulgated under the Exchange
Act, whether or not the Company is then subject to such reporting
requirement.
For
purposes of
this Section 2(a), the following terms shall have the following
meanings:
(A) "Exchange
Act"
shall mean the Securities Exchange Act of 1934, as amended.
(B) "Person"
shall have
the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act;
provided, however, that Person shall exclude (i) the Company, (ii) any trustee
or other fiduciary holding securities under an employee benefit plan of the
Company, and (iii) any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(b) "Corporate
Status"
describes the status of a person who is or was a director, officer, employee
or
agent of the Company or of any other corporation, limited liability company,
partnership or joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the Company.
(c) "Disinterested
Director" means a director of the Company who is not and was not a party to
the
Proceeding in respect of which indemnification is sought by
Indemnitee.
(d)
"Expenses" shall include 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 prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise participating
in, a Proceeding. Expenses also shall include (i) Expenses incurred in
connection with any appeal resulting from any Proceeding, including without
limitation the premium, security for, and other costs relating to any cost
bond,
supersedes bond, or other appeal bond or its equivalent, and (ii) for purposes
of Section 13(d) only, Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee's rights under this
Agreement, by litigation or otherwise. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments or fines
against Indemnitee.
(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 years
has been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters concerning
the
Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements), 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.
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(f) The
term
"Proceeding" shall include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding,
whether brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which Indemnitee was,
is or
will be involved as a party or otherwise by reason of the fact that Indemnitee
is or was a director or officer of the Company, by reason of any action taken
by
him or of any action on his part while acting as director or officer of the
Company, or by reason of the fact that he is or was serving at the request
of
the Company as a director, officer, employee or agent of another subsidiary,
corporation, limited liability company, partnership, joint venture, trust or
other enterprise, in each case whether or not serving in such capacity at the
time any liability or Expense is incurred for which indemnification,
reimbursement, or advancement of Expenses can be provided under this Agreement;
except one initiated by an Indemnitee to enforce his rights under this
Agreement.
(g) Reference
to "other
enterprise" shall include employee benefit plans; references to "fines" shall
include any excise tax assessed with respect to any employee benefit plan;
references to "serving at the request of the Company" shall include any service
as a director, officer, employee or agent of the Company which imposes duties
on, or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries; and
a
person who acted in good faith and in a manner he reasonably believed to be
in
the best interests of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in manner "not opposed to the best interests
of the Company" as referred to in this Agreement.
Section
3. Indemnity
in
Third-Party Proceedings.
The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is named in or made a party to or a participant in any Proceeding,
other than a Proceeding by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to
the
fullest extent permitted by applicable law against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on his behalf in connection with such Proceeding or any claim,
issue or matter therein, if Indemnitee 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, in the case of a criminal proceeding had no reasonable cause to believe
that his conduct was unlawful.
Section
4. Indemnity
in
Proceedings by or in the Right of the Company.
The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 4 if
Indemnitee is named in or made a party to or a participant in any Proceeding
by
or in the right of the Company to procure a judgment in its favor. Pursuant
to
this Section 4, Indemnitee shall be indemnified to the fullest extent permitted
by applicable law against all Expenses actually and reasonably incurred by
him
or on his behalf in connection with such Proceeding or any claim, issue or
matter therein, if Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company. No
indemnification for Expenses shall be made under this Section 4 in respect
of
any claim, issue or matter as to which Indemnitee shall have been finally
adjudged by a court to be liable to the Company, unless and only to the extent
that the Delaware Court of Chancery or any court in which the Proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification.
Section
5. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding
any other provisions of this Agreement, to the fullest extent permitted by
applicable law and to the extent that Indemnitee is a party to (or a participant
in) and is successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him in connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more
but
less than all claims, issues or matters in such Proceeding, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred
by
him or on his behalf in connection with each successfully resolved claim, issue
or matter. If the Indemnitee is not wholly successful in such Proceeding, the
Company also shall indemnify Indemnitee against all Expenses actually and
reasonably incurred in connection with a claim, issue or matter related to
any
claim, issue, or matter on which the Indemnitee was successful. For purposes
of
this Section and without limitation, the termination of any claim,
issue
or matter in
such a Proceeding by dismissal, with or without prejudice, shall be deemed
to be
a successful result as to such claim, issue or matter.
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Section
6. Indemnification
For Expenses of a Witness.
Notwithstanding
any other provision of this Agreement, to the fullest extent permitted by
applicable law and to the extent that Indemnitee is, by reason of his Corporate
Status, a witness in any Proceeding to which Indemnitee is not a party, he
shall
be indemnified against all Expenses actually and reasonably incurred by him
or
on his behalf in connection therewith.
Section
7. Additional
Indemnification.
(a) Notwithstanding
any
limitation in Sections 3, 4, or 5, the Company shall indemnify Indemnitee to
the
fullest extent permitted by applicable law if Indemnitee is named in or made
a
party to or a participant in any Proceeding (including a Proceeding by or in
the
right of the Company to procure a judgment in its favor) against all Expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Indemnitee in connection with a Proceeding.
(b) For
purposes of
Section 7(a), the meaning of the phrase "to the fullest extent permitted by
applicable law" shall include, but not be limited to:
i. to
the fullest
extent permitted by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding provision of
any
amendment to or replacement of the DGCL, and
ii. to
the fullest
extent authorized or permitted by any amendments to or replacements of the
DGCL
adopted after the date of this Agreement that increase the extent to which
a
corporation may indemnify its officers and directors.
Section
8. Exclusions.
Notwithstanding
any provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against
Indemnitee:
(a) for
which payment
has actually been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess beyond the
amount paid under any insurance policy or other indemnity provision;
or
(b)
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 Exchange Act or similar provisions of state statutory
law
or common law, or (ii) any reimbursement of the Company by the Indemnitee of
any
bonus or other incentive-based or equity-based compensation or of any profits
realized by the Indemnitee from the sale of securities of the Company, as
required in each case under the Exchange Act; or
(c)
except as provided in Section 13(d) of this Agreement, in connection with any
Proceeding (or any part of any Proceeding) initiated by Indemnitee, including
any Proceeding (or any part of any Proceeding) initiated by Indemnitee against
the Company or its directors, officers, employees or other indemnitees, unless
(i) the Board authorized the Proceeding (or any part of any Proceeding) prior
to
its initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable
law.
Section
9. Advances
of
Expenses.
Notwithstanding
any provision of this Agreement to the contrary, the Company shall advance,
to
the extent not prohibited by law, the Expenses incurred by Indemnitee in
connection with any Proceeding, and such advancement shall be made within thirty
(30) days after the receipt by the Company of a statement or statements
requesting such advances from time to time, whether prior to or after final
disposition of any Proceeding. Advances shall be unsecured and interest free.
Advances shall be made without regard to Indemnitee's ability to repay the
Expenses and without regard to Indemnitee's ultimate entitlement to
indemnification under the other provisions of this Agreement. Advances shall
include any and all reasonable Expenses
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incurred
pursuing
an action to enforce this right of advancement, including Expenses incurred
preparing and forwarding statements to the Company to support the advances
claimed. The Indemnitee shall qualify for advances upon the execution and
delivery to the Company of this Agreement which shall constitute an undertaking
providing that the Indemnitee undertakes to repay the advance to the extent
that
it is ultimately determined that Indemnitee is not entitled to be indemnified
by
the Company. Indemnitee will provide information regarding Indemnitee’s capacity
to repay such advances as reasonably requested by the Board. This Section 9
shall not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to Section 8.
Section
10. Procedure
for
Notification and Defense of Claim.
(a) To
obtain
indemnification under this Agreement, Indemnitee shall submit to the Company
a
written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The omission by Indemnitee to notify the Company hereunder
will
not relieve the Company from any liability which it may have to Indemnitee
otherwise than under this Agreement except to the extent the Company has been
materially prejudiced by such omission to notify. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise
the
Board in writing that Indemnitee has requested indemnification.
(b) The
Company will be
entitled to participate in any Proceeding at its own expense.
Section
11. Procedure
Upon
Application for Indemnification.
(a) Upon
written
request by Indemnitee for indemnification pursuant to the first sentence of
Section 10(a), a determination, if required by applicable law, with respect
to
Indemnitee's entitlement thereto shall be made in the specific case: (i) if
a
Change in Control shall have occurred, by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to Indemnitee; or
(ii)
if a Change in Control shall not have occurred, (A) by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board, (B) by
a
committee of Disinterested Directors designated by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board, (C) if
there are no such Disinterested Directors or, if such Disinterested Directors
so
direct, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee or (D) if so directed by the Board,
by
the stockholders of the Company; and, if it is so determined that Indemnitee
is
entitled to indemnification, payment to Indemnitee shall be made within ten
(10)
days after such determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such person, persons
or
entity upon reasonable advance request any documentation or information which
is
not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of the determination
as to Indemnitee's entitlement to indemnification) and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In
the event the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 11(a), the Independent Counsel shall be selected
as
provided in this Section 11(b). If a Change in Control shall not have
occurred, the Independent Counsel shall be selected by the Board, and the
Company shall give written notice to Indemnitee advising him of the identity
of
the Independent Counsel so selected. If a Change in Control shall have occurred,
the Independent Counsel shall be selected by Indemnitee (unless Indemnitee
shall
request that such selection be made by the Board, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within ten (10)
days
after such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to such
selection; provided,
however,
that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of "Independent Counsel" as defined
in
Section 2 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected
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shall
act as
Independent Counsel. If such written objection is so made and substantiated,
the
Independent Counsel so selected may not serve as Independent Counsel unless
and
until such objection is withdrawn or a court has determined that such objection
is without merit. If, within twenty (20) days after the later of submission
by
Indemnitee of a written request for indemnification pursuant to
Section 10(a) hereof and the final disposition of the Proceeding, no
Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or
Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the Court or by
such
other person as the Court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 11(a) hereof. Upon the due commencement
of any judicial proceeding or arbitration pursuant to Section 13(a) of this
Agreement, Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
Section
12. Presumptions
and
Effect of Certain Proceedings.
(a) 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 10(a) 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.
(b) Subject
to Section
13(e), if the person, persons or entity empowered or selected under Section
11
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 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
(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; 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 12(b) shall not apply (i) if the determination of
entitlement to indemnification is to be made by the stockholders pursuant to
Section 11(a) of this Agreement and if (A) within fifteen (15) days after
receipt by the Company of the request for such determination the Board has
resolved to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy five (75)
days after such receipt and such determination is made thereat, (B) a special
meeting of stockholders is called within fifteen (15) days after such receipt
for the purpose of making such determination, such meeting is held for such
purpose within sixty (60) days after having been so called and such
determination is made thereat, or (C) a written consent in lieu of meeting
is
distributed to the stockholders within fifteen (15) days after such receipt
for
the purpose of making such determination and sufficient votes to make such
determination are received by the Company within sixty (60) days after such
distribution, or (ii) if the determination of entitlement to indemnification
is
to be made by Independent Counsel pursuant to Section 11(a) of this
Agreement.
(c) 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 equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to
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indemnification
or
create a presumption that Indemnitee did not act in good faith and in a manner
which he 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 his conduct was unlawful.
(d) Reliance
as Safe
Harbor.
For purposes of
any determination of good faith, Indemnitee shall be deemed to have acted in
good faith if Indemnitee's action is based on the records or books of account
of
the Company, any if its subsidiaries or any other enterprise for which
Indemnitee is serving as a director, officer, employee, agent or fiduciary
at
the request of the Company, including financial statements, or on information
supplied to Indemnitee by the officers of the Company, any of its subsidiaries
or any such other enterprise in the course of their duties, or on the advice
of
legal counsel for the Company, any of its subsidiaries or any such other
enterprise or on information or records given or reports made to the Company,
any of its subsidiaries or any such other enterprise by an independent certified
public accountant or by an appraiser or other expert selected with the
reasonable care by the Company, any of its subsidiaries or any such other
enterprise. The provisions of this Section 12(d) shall not be deemed to be
exclusive or to limit in any way the other circumstances in which the Indemnitee
may be deemed to have met the applicable standard of conduct set forth in this
Agreement.
(e) Actions
of
Others.
The knowledge
and/or actions, or failure to act, of any director, officer, agent or employee
of the Company, any of its subsidiaries or other enterprise for which Indemnitee
is serving as a director, officer, employee, agent or fiduciary at the request
of the Company shall not be imputed to Indemnitee for purposes of determining
the right to indemnification under this Agreement.
Section
13. Remedies
of
Indemnitee.
(a) Subject
to Section
13(e), in the event that (i) a determination is made pursuant to Section 11
of
this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 9 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 11(a) 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 or the last sentence of Section 11(a) of this Agreement
within ten (10) days after receipt by the Company of a written request therefor,
(v) payment of indemnification pursuant to Section 3, 4 or 7 of this Agreement
is not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification,
or (vi) the
Company or any other person takes or threatens to take any action to declare
this Agreement void or unenforceable, or institutes any litigation or other
action or Proceeding designed to deny, or to recover from, the Indemnitee the
benefits provided or intended to be provided to the Indemnitee
hereunder,
Indemnitee shall
be entitled to an adjudication by a court of his entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. Indemnitee shall commence such proceeding seeking an adjudication
or an award in arbitration within 180 days following the date on which
Indemnitee first has the right to commence such proceeding pursuant to this
Section 13(a); provided,
however,
that the
foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce his rights under Section 5 of this Agreement.
The
Company shall not oppose Indemnitee's right to seek any such adjudication or
award in arbitration.
(b) In
the event that a
determination shall have been made pursuant to Section 11(a) of this Agreement
that Indemnitee is not entitled to indemnification, any judicial proceeding
or
arbitration commenced pursuant to this Section 13 shall be conducted
in all
respects as a de novo
trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason
of
that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 13 the Company shall have the burden of proving
Indemnitee is not entitled to indemnification or advancement of Expenses, as
the
case may be.
-8-
(c) If
a determination
shall have been made pursuant to Section 11(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant
to
this Section 13, 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,
to the fullest extent not prohibited by law, be precluded from asserting in
any
judicial proceeding or arbitration commenced pursuant to this Section 13 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. It
is the intent of
the Company that the Indemnitee not be required to incur legal fees or other
Expenses associated with the interpretation, enforcement or defense of
Indemnitee's rights under this Agreement by litigation or otherwise because
the
cost and expense thereof would substantially detract from the benefits intended
to be extended to the Indemnitee hereunder. Subject
to the
repayment provisions of Section 9, the Company shall indemnify Indemnitee
against any and all Expenses and, if requested by Indemnitee, shall (within
ten
(10) days after receipt by the Company of a written request therefore) advance,
to the extent not prohibited by law, such Expenses to Indemnitee, which are
incurred by Indemnitee in connection with any action brought by Indemnitee
for
indemnification or advance of Expenses from the Company under this Agreement
or
under any directors' and officers' liability insurance policies maintained
by
the Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of Expenses or insurance recovery,
as the case may be.
(e) 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 disposition of the Proceeding.
Section
14. Non-exclusivity;
Survival of Rights; Insurance; Subrogation.
(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 Bylaws, any agreement, a vote of stockholders or a resolution
of directors, or otherwise. 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 Corporate Status prior to such amendment, alteration or repeal. To the
extent that a change in Delaware law, whether by statute or judicial decision,
permits greater indemnification or advancement of Expenses than would be
afforded currently under the Certificate of Incorporation, Bylaws and 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) To
the extent that
the Company maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, or agents of the Company or of
any
other corporation, partnership, joint venture, trust, employee benefit plan
or
other enterprise which such person serves at the request of the Company,
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 such
director, officer, employee or agent under such policy or policies (provided
no
special premiums are required). If, at the time of the receipt of a notice
of a
claim pursuant to the terms hereof, the Company has director and officer
liability insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable 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 policies.
-9-
(c) In
the event of any
payment under this Agreement, the Company shall be subrogated to the extent
of
such payment to all of the rights of recovery of Indemnitee, who shall execute
all papers required and 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.
(d) 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.
(e) 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.
Section
15. Duration
of
Agreement. This
Agreement
shall continue until and terminate upon the later of: (a) 25 years after the
date that Indemnitee shall have ceased to serve as an officer/director of the
Company or, at the request of the Company, as a director, officer, employee,
agent, fiduciary of any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise
or
(b) 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 13 of this Agreement relating thereto. This Agreement shall
be
binding upon the Company and its successors and assigns and shall inure to
the
benefit of Indemnitee and his heirs, executors and administrators.
Section
16. Severability.
If any provision
or provisions of this Agreement shall be 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, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law;
(b)
such provision or provisions shall be deemed reformed to the extent necessary
to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be
construed so as to give effect to the intent manifested thereby.
Section
17. Enforcement.
(a) The
Company
expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee
to
serve and continue to serve as a director or officer of the Company, and the
Company acknowledges that Indemnitee is relying upon this Agreement in serving
as a director or officer of the Company.
(b) This
Agreement
constitutes the entire agreement between the parties hereto with respect to
the
subject matter hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect to the
subject matter hereof; provided, however, that this Agreement is a supplement
to
and in furtherance of the Certificate of Incorporation, the Bylaws and
applicable law, and shall not be deemed a substitute therefor, nor to diminish
or abrogate any rights of Indemnitee thereunder or under any applicable
insurance policies.
Section
18. Modification
and
Waiver.
No supplement,
modification or amendment of this Agreement shall be binding unless executed
in
writing by the parties thereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
of this Agreement nor shall any waiver constitute a continuing
waiver.
-10-
Section
19. Notice
by
Indemnitee.
Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter which may be subject to indemnification
or
advancement of Expenses covered hereunder. The failure of Indemnitee to so
notify the Company shall not relieve the Company of any obligation which it
may
have to the Indemnitee under this Agreement or otherwise except to the extent
that the Company has been materially prejudiced by such failure to notify.
Section
20. Notices.
All notices,
requests, demands and other 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 oral confirmation that such transmission has
been
received:
(a) If
to Indemnitee,
at the address indicated on the signature page of this Agreement, or such other
address as Indemnitee shall provide to the Company in writing.
(b) If
to the Company
to
Weider
Nutrition
International, Inc.
0000
Xxxxx 0000
Xxxx
Xxxx
Xxxx Xxxx,
Xxxx 00000
Attn:
Corporate
Secretary
Fax:
(000)
000-0000
or
to any other address as may have been furnished to Indemnitee by the Company
in
writing.
Section
21. Contribution.
To the fullest
extent permissible under applicable law, if the indemnification provided for
in
this Agreement is unavailable to Indemnitee for any reason whatsoever, the
Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, in connection
with
any claim relating to an indemnifiable event under this Agreement, in such
proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect (i) the relative benefits received by
the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of the Company (and
its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
Section
22. Applicable
Law
and Consent to Jurisdiction.
This Agreement and
the legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to its conflict of laws rules. Except with respect to any arbitration commenced
by Indemnitee pursuant to Section 13(a) of this Agreement, the Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any
action
or proceeding arising out of or in connection with this Agreement shall
be brought
only in the Chancery Court of the State of Delaware (the "Delaware Court"),
and
not in any other state or federal court in the United States of America or
any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out
of or
in connection with this Agreement, (iii) waive any objection to the laying
of
venue of any such action or proceeding in the Delaware Court, and (iv) waive,
and agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court has been brought in an improper or inconvenient
forum.
Section
23. Identical
Counterparts.
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 to evidence the existence of
this
Agreement.
Section
24. Miscellaneous.
Use of the
masculine pronoun shall be deemed to include usage of the feminine pronoun
where
appropriate. The headings of the paragraphs 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.
-11-
IN
WITNESS WHEREOF,
the parties have caused this Agreement to be signed as of the day and year
first
above written.
WEIDER
NUTRITION
INTERNATIONAL, INC. INDEMNITEE
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By:
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Name:
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Name:
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Title:
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Address:
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