EXHIBIT 10.46
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered
into as of the 4th day of April, 2003, by and between Swift Foods Company, a
Delaware corporation (including any successors thereto, the "Company"), and
Xxxxxxx X. Xxxxx ("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.
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6. Contribution.
(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.
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/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer and President
INDEMNITEE:
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx
