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EXHIBIT
10.20
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION
AGREEMENT is made and entered into as of the
day of
, by and between PepsiCo, Inc., a North Carolina corporation
(“PepsiCo”), and
, a member of PepsiCo’s Board of Directors (the
“Director”).
WHEREAS, PepsiCo and the
Director each recognize the ongoing and substantial risk of
litigation and other claims being asserted against directors of
public companies; and
WHEREAS, in recognition of
the need for protection against such litigation and claims to
facilitate the Director’s continued effective service to
PepsiCo, PepsiCo desires to provide for the indemnification,
advancement, reimbursement and insurance of certain liabilities and
expenses of the Director, to the full extent permitted by
law;
NOW, THEREFORE, in
consideration of these premises and of the Director’s
continuation of service to PepsiCo, the parties hereto agree as
follows:
1. Indemnification Against
Liability . The Director shall be indemnified and held harmless
by PepsiCo, to the full extent permitted by law, against any and
all liabilities and assessments arising out of or related to any
threatened, pending or completed action, suit, proceeding, inquiry
or investigation, whether civil, criminal, administrative, or other
(each being hereinafter referred to as an “Action”),
including, but not limited to, judgments, fines, penalties and
amounts paid in settlement (whether with or
without court approval), and any
interest, assessments, excise taxes or other charges paid or
payable in connection with or in respect of any of the foregoing
(each such liability and assessment being hereinafter referred to
as a “Liability”), incurred by the Director and arising
out of his status as a director or member of a committee of the
Board of Directors of PepsiCo, or by reason of anything done or not
done by the Director in such capacities.
2. Indemnification Against
Expense . The Director shall also be indemnified and held
harmless by PepsiCo, to the full extent permitted by law, against
any and all attorneys’ fees and other costs, expenses and
obligations, and any interest, assessments, excise taxes or other
charges paid or payable in connection with or in respect of any of
the foregoing (each such expense being hereinafter referred to as
an “Expense”) arising out of or relating to any Action,
including expenses incurred by a Director:
(a) in connection with
investigating, defending, being a witness or participating in, or
preparing to defend, be a witness or participate in, any Action
(other than an Action commenced by the Director against another
party, except as provided in Section 2(b) below) or any appeal of
an Action; or
(b) in connection with any
claim asserted or action brought by the Director for (i) payment or
indemnification of Liabilities or Expenses or advance payment of
Expenses by PepsiCo under this Agreement, or pursuant to any other
agreement, any resolution of PepsiCo’s shareholders or Board
of Directors, any provision of PepsiCo’s Restated Articles of
Incorporation or By-Laws, or any statute or rule of law providing
for indemnification, now or hereafter in effect, relating to any
Action, or for specific performance pursuant to Section 19 hereof,
and/or (ii) recovery under any directors’ and officers’
liability insurance policy or policies maintained by PepsiCo,
regardless of whether the Director is ultimately determined to be
entitled to such payment, indemnification, advance, or insurance
recovery, as the case may be.
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3. Exception for Certain
Conduct . PepsiCo shall not be liable under this Agreement for
payment of any Liability or Expense incurred by the Director on
account of acts which, at the time taken, were known or believed by
the Director to be clearly in conflict with PepsiCo’s best
interests.
4. Partial
Indemnification . If the Director is entitled under this
Agreement to payment for some or a portion of any Liability or
Expense relating to an Action, but not for the total amount
thereof, PepsiCo shall nevertheless pay the Director for the
portion thereof to which he or she is entitled.
5. Advances . PepsiCo
shall pay any and all Expenses incurred by the Director in
connection with any Action, whether or not the Action has been
finally disposed of (an “Advance”), within five days
after receipt by PepsiCo of an appropriate request therefor from
the Director, provided, however , that PepsiCo shall
not make such an Advance unless and until it has received an
undertaking by or on behalf of the Director to repay such Advance
unless it shall be determined that the Director is entitled to be
indemnified by PepsiCo against such Expenses.
6. Demand and Final
Payment . Final payments of Liabilities and Expenses provided
for herein shall be made by PepsiCo no later than thirty days after
receipt of a written request therefor by or on behalf of the
Director, and the Director shall be deemed to be entitled to
indemnification against and payment of such Liabilities and
Expenses unless a determination is made within said thirty-day
period by (i) a majority vote of a quorum of PepsiCo’s Board
of Directors, consisting of disinterested directors who are not
parties to the Action giving rise to the demand, (ii) if such a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by majority vote of
PepsiCo’s shareholders, that the Director has not met the
standard of conduct for
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indemnification set forth in Section 3
of this Agreement. The Director may contest a determination that he
or she is not entitled to indemnification by petitioning a court to
make an independent determination with respect to the
Director’s right to indemnification hereunder.
7. Failure to
Indemnify . If a claim for payment of any Liability, Expense or
Advance under this Agreement, or pursuant to any other agreement,
any resolution of PepsiCo’s sha
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