INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT (the "Agreement") effective December 18, 1996,
between RALCORP HOLDINGS, INC., a Missouri corporation (the "Company") and J. R.
Xxxxxxxxxx ("Participant").
WHEREAS, Participant is a Director and an Officer of the Company, and in
such capacities is performing a valuable service for Company; and
WHEREAS, the Company's Restated Articles of Incorporation (the "Articles")
and Section 351.355 of the Missouri Revised Statutes, as amended to date (the
"Indemnification Statute"), permit the indemnification of directors, officers,
employees and certain agents of the Company, under certain circumstances; and
WHEREAS, in order to induce Participant to continue to serve as a Director
and an Officer of the Company, Company has determined and agreed to enter into
this contract with Participant;
NOW THEREFORE, in consideration of Participant's continued service as a
Director and an Officer of the Company after the date hereof, the Company and
Participant agree as follows:
1. Indemnity of Participant. Company hereby agrees to hold harmless
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and indemnify Participant to the full extent authorized or permitted by the
provisions of the Indemnification Statute, or by any amendment thereof, or any
other statutory provisions authorizing or permitting such indemnification which
is adopted after the date hereof.
2. Additional Indemnity. Subject to the exclusions set forth in
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Section 3 hereof, Company further agrees to hold harmless and indemnify
Participant against any and all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, actually and reasonably incurred by
Participant in connection with any Claim. Such indemnification shall be made by
the Company without regard to whether or not there has been a determination that
Participant has met any standard of conduct prescribed by law or otherwise in
connection with the specific matter for which indemnification is sought by (i) a
majority of a quorum of disinterested directors, (ii) independent legal counsel
by written opinion, or (iii) the Company's shareholders by a majority vote. For
purposes of this Indemnification Agreement, a "Claim" is a threatened, pending
or completed action, claim, suit, or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in the right of the
Company) to which Participant is, was or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that Participant is, was or
at any time (whether before or after the date of this Agreement) becomes a
director, officer, employee or agent of the Company, or is or was serving or at
any time (whether before or after the date of this Agreement) serves at the
request of the Company as a director, officer, employee, member, trustee, or
agent of another corporation, partnership, joint venture, trust, trade or
industry association or other enterprise (whether incorporated or
unincorporated, for-profit or not-for-profit).
3. Limitations on Additional Indemnity. Notwithstanding anything else
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contained in this Agreement, no indemnity shall be paid by Company pursuant to
this Indemnification Agreement:
(a) In respect to remuneration paid to Participant if it shall be
finally judicially adjudged that such remuneration was paid in violation of law;
(b) On account of any suit for an accounting of profits made from the
purchase or sale by Participant of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended
or similar provisions of any state or local statutory law;
(c) On account of Participant's conduct which is finally judicially
adjudged to have been knowingly fraudulent, deliberately dishonest or willful
misconduct;
(d) If a final decision by a Court having jurisdiction in the matter
(all appeals having been denied or none having been taken) shall determine that
such indemnification is not lawful; or
(e) In connection with indemnity pursuant to Section 2 only, except to
the extent the aggregate of losses to be indemnified thereunder exceeds the
amount of such losses for which the Participant actually receives payments
pursuant to Section 1 hereof or pursuant to any insurance policies or other
comparable policies purchased and maintained by the Company.
4. Continuation of Indemnity. All agreements and obligations of
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Company contained herein shall continue during the period Participant is a
Director and an Officer of Company and shall continue thereafter so long as
Participant shall be subject to any possible Claim.
5. Notification and Defense of Claim. Promptly after receipt by
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Participant of notice of the commencement of any Claim, Participant will notify
Company of the commencement thereof; provided, however, that the omission to so
notify Company will not relieve Company from any liability which it may have to
Participant under this Agreement unless and to the extent that Company's rights
are prejudiced by such failure. With respect to any Claim, as to which
Participant notifies Company of the commencement thereof:
(a) Company will be entitled to participate in the defense thereof at
its own expense;
(b) Except as otherwise provided below, Company jointly with any other
party will be entitled to assume the defense thereof at Company's expense, with
counsel satisfactory to Participant. After notice from Company to Participant
of its election to so assume the defense thereof, Company will not be liable to
Participant under this Agreement for any legal or other expenses subsequently
incurred by Participant in connection with the defense thereof unless
Participant shall have reasonably concluded that there may be a conflict of
interest between Company and Participant in the conduct of the defense of such
Claim, in which case, Company shall not be entitled to assume the defense of
such Claim. For purposes of this Indemnification Agreement, there shall be
deemed to be a conflict of interest between Company and Participant with respect
to any Claim brought by or in the right of the Company; and
(c) Company shall not be liable to indemnify Participant under this
Agreement for any amounts paid in settlement of any Claim effected without the
Company's written consent. Company shall not settle any Claim in any manner
which would impose any penalty or limitation on Participant without
Participant's written consent. Neither Company nor Participant will
unreasonably withhold their consent to any proposed settlement.
6. Advancement and Repayment of Expenses.
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(a) To the extent that the Company assumes the defense of any Claim,
Participant agrees that he will reimburse Company for all reasonable expenses
paid by Company in defending such Claim in the event and only to the extent that
it shall be ultimately judicially determined that Participant is not entitled to
be indemnified by Company for such expenses under the provisions of either the
Indemnification Statute, the Restated Articles, this Agreement or otherwise.
(b) To the extent that the Company does not assume the defense of any
Claim, Company shall advance to Participant all reasonable expenses, including
all reasonable attorneys' fees, retainers, court costs, transcript costs, fees
of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with
defending, preparing to defend or investigating any civil or criminal action,
suit or proceeding, within twenty days after the receipt by Company of a
statement or statements from Participant requesting such advance or advances,
whether prior to or after final disposition of such Claim. Such statement or
statements shall reasonably evidence the expenses incurred by Participant and
shall include or be preceded or accompanied by an undertaking by or on behalf of
Participant to repay all of such expenses advanced if it shall be ultimately
judicially determined that Participant is not entitled to be indemnified against
such expenses. Any advances and undertakings to repay pursuant to this
paragraph shall be unsecured and interest free.
7. Enforcement.
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(a) Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on Company hereby in order to
induce Participant to continue to serve as a Director and an Officer of Company,
and acknowledges that Participant is relying upon this Agreement in continuing
in such capacity.
(b) In the event Participant is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful in such
action, Company shall reimburse Participant for all of Participant's attorneys'
fees and expenses in bringing and pursuing such action.
8. Separability. Each of the provisions of this Agreement is a
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separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
9. Governing law; Binding Effect; Amendment and Termination.
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(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Missouri without giving effect to the conflict of laws
provisions thereof.
(b) This Agreement shall be binding upon Participant and upon Company,
its successors and assigns, and shall inure to the benefit of Participant, his
heirs, personal representatives and assigns, and to the benefit of the Company,
its successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless signed in writing by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this
23rd day of June, 1999.
RALCORP HOLDINGS, INC.
By:____________________________
Secretary
By:____________________________
Participant
