Exhibit 10.2
Schedule of Parties
to Indemnification Agreement
Horst Schroeder
Richard Thompson
James Heeter
Daniel Trott
Walter George
Terrence O'Brien
Tim Pollak
William Patterson
Jonathan E. Baum
Robert Niehaus
Mark Demetree
George Shadid
Paul Geist
Stephanie Ruskey
Timothy Webster
INDEMNIFICATION AGREEMENT
THIS
AGREEMENT is made and entered
into this _______ day of
___________,
2005,
between
American
Italian Pasta
Company,
a Delaware
corporation
(the
"Corporation") and _______________ ("Indemnitee").
WITNESSETH:
WHEREAS,
Indemnitee is a
____________________________
of the Corporation
and as such is performing a valuable service for the Corporation;
and
WHEREAS,
although
Indemnitee has certain rights to indemnification
under
the Governing
Documents of the Corporation and Delaware law, and such Governing
Documents and law
specifically
provide that they are not exclusive and thereby
contemplate that the Corporation may enter into indemnification
agreements with
its officers and directors;
WHEREAS,
the
Corporation's
Board of Directors have
determined
that the
policy of the
Corporation
is to
indemnify
the
Corporation's
directors
and
officers
against
Claims and
Liabilities
incurred by reason of their Official
Capacity; and
WHEREAS,
the Board of Directors of the Corporation has determined that the
foregoing
indemnification
policy is important to the recruitment and retention
of qualified,
competent officers and directors to serve the Corporation, and is
therefore in the best interests of the Corporation; and
WHEREAS,
the
Corporation's
Board of Directors has determined
that it is
appropriate
and
in
the
best
interests
of
the
Corporation
to
offer
an
indemnification
agreement
substantially
the
same
as this
Agreement
to all
directors of the
Corporation
and to those
officers of the
Corporation as the
Board of Directors shall determine; and
WHEREAS, the Corporation and Indemnitee desire to enter into this
Agreement
to provide to Indemnitee
additional rights to
indemnification in consideration
of Indemnitee's continued service to the Corporation;
NOW,
THEREFORE,
in
consideration
of
Indemnitee's
service or continued
service to the Corporation in Indemnitee's
Official Capacity,
and the promises
and
agreements
contained
herein,
the
Corporation
and
Indemnitee
agree as
follows:
1.
Certain
Definitions
.
For purposes of this
Agreement,
the following
definitions shall apply to the referenced words or terms:
(a)
"Arbitration"
in the
context
of a
Proceeding
shall
mean any
alternative dispute resolution procedure or process.
-1-
(b)
"D&O Insurance"
means directors and officers liability insurance.
(c)
"Expenses"
shall
include
all
direct
and
indirect
costs
(including,
without
limitation,
all attorneys'
fees and retainers,
and
related
disbursements,
expert
witness
and
advisory
fees
and
related
disbursements,
and other
out-of-pocket
costs)
actually
and
reasonably
incurred
or to be
incurred
by
Indemnitee
in
connection
with
(i) the
investigation, defense or appeal of a Proceeding, (ii) serving as
an actual
or prospective
witness in any matter arising out of, or in any way related
to,
Indemnitee's
Official
Capacity,
(iii)
any
voluntary
or
required
interviews or depositions
with respect to any matter arising out of, or in
any way related to, Indemnitee's Official Capacity,
and (iv) any Permitted
Action brought against the Corporation by Indemnitee directly,
or by means
of impleader, cross-complaint, counterclaim or other proceeding.
(d)
"Governing Documents"
shall mean the Certificate of Incorporation
and Bylaws of the Corporation, as amended from time to time.
(e)
"Indemnitee's Affiliates"
shall mean Indemnitee's spouse, members
of
Indemnitee's
immediate
family,
and
Indemnitee's
representative(s),
guardian(s),
conservator(s),
estate, executor(s),
administrator(s),
and
trustee(s),
as the case may be, as
understood
in, or
relevant
to,
the
context of a particular provision of this Agreement.
(f)
"Liabilities"
shall
include
judgments,
settlements,
fines,
damages, whether compensatory, punitive or exemplary, ERISA or IRS
or other
excise taxes,
penalties,
and all other
liabilities of any kind or nature
incurred by Indemnitee as a result of a Proceeding.
(g)
"Official
Capacity"
means
Indemnitee's
service
as an officer
and/or director of the Corporation
and any Other
Enterprise,
and in such
capacity shall include
service as a trustee,
fiduciary,
agent or similar
status with respect to the Corporation and any Other Enterprise.
(h)
"Other
Enterprise"
shall include
without
limitation any other
corporation,
partnership,
joint venture, trust, employee benefit plan, or
other entity or
association
of any kind or nature which is controlled by,
or affiliated
with,
the
Corporation,
or of which the
Corporation
is a
creditor, or sole or partial owner.
(i)
"Permitted
Action"
includes
(i)
any
Proceeding
against
the
Corporation
brought by
Indemnitee,
alone or with others,
in
connection
with, or related to, the defense by Indemnitee
of any
Proceeding
brought
against
Indemnitee
by a
third
party,
the
Corporation,
or
any
Other
Enterprise (or brought on behalf of the Corporation,
including by means of
a derivative
action),
whether by a separately
initiated
Proceeding,
or
impleader,
cross-claim,
counterclaim,
or
otherwise;
(ii) a
Proceeding
brought by Indemnitee or Indemnitee's
Affiliates to establish or enforce a
right of indemnity,
or Indemnitee's
Affiliates,
under this Agreement, an
applicable D&O insurance policy, the Corporation's
Governing Documents, or
any other agreement or law pertaining to
-2-
indemnification
of
Indemnitee,
or to recover
Expenses or a Liability of
Indemnitee
resulting
from
a
Proceeding
against
Indemnitee;
(iii)
a
Proceeding
against
the
Corporation
or any Other
Enterprise
brought by
Indemnitee which is approved in advance by a majority of the
Corporation's
independent directors,
excluding Indemnitee; and (iv) a Proceeding brought
by
Indemnitee
which is required
under any law;
and with
respect to (i)
through (iv) above,
any of the
identified
actions
shall be considered a
Permitted Action regardless of whether Indemnitee is ultimately
determined
to be entitled to the relief sought.
(j)
"Proceeding"
shall include any
threatened,
pending,
actual or
completed inquiry, interview,
investigation,
action, suit, arbitration or
other proceeding,
whether civil,
administrative,
criminal,
or any other
type of proceeding
whatsoever,
including an appellate action of any kind,
brought by (i) the
Corporation
(or brought on behalf of the
Corporation,
including
a
derivative
action)
against
or
involving
Indemnitee
or
Indemnitee's
Affiliates
by
reason
of,
or
in
any
way
related
to,
Indemnitee's Official Capacity;
(ii) Indemnitee,
against or involving the
Corporation or any Other Enterprise by reason of, or in any way
related to,
Indemnitee's
Official
Capacity
or
rights
Indemnitee
has
against
the
Corporation or any Other
Enterprise
under this
Agreement,
the Governing
Documents,
or any
other
agreement
or law (but only
with
respect
to a
Permitted Action); (iii) any third party against or involving
Indemnitee or
Indemnitee's
Affiliates
by
reason
of,
or
in
any
way
related
to,
Indemnitee's
Official
Capacity,
directly or by
impleader,
cross-claim,
counterclaim,
or other means; or (iv) Indemnitee
against any third party,
other
than the
Corporation,
by
reason
of,
or in any way
related
to,
Indemnitee's
Official
Capacity,
directly or by
impleader,
cross-claim,
counterclaim or other means.
(k)
"Serving at the
Request of the
Corporation"
shall
include any
service to an Other
Enterprise
by
Indemnitee
in
Indemnitee's
Official
Capacity.
For
the
purposes
of
this
Agreement,
Indemnitee's
service
in
Indemnitee's Official Capacity to any Other Enterprise shall be
presumed to
be "Service at the Request of the
Corporation,"
unless it is conclusively
determined
to the
contrary
by a majority
vote of the
directors
of the
Corporation,
excluding Indemnitee. With respect to such determination,
it
shall not be necessary
for
Indemnitee to show any actual or prior request
by the Corporation or its Board of Directors for such Service to
such Other
Enterprise.
2.
Indemnification
.
(a)
Subject
only to the
provisions
of
Sections 4, 5 and 7 of this
Agreement,
the
Corporation
shall hold harmless and indemnify
Indemnitee
from and against any and all Expenses and
Liabilities
with respect to any
Proceedings to which
Indemnitee
may be subject by reason of
Indemnitee's
Official
Capacity
with the
Corporation
or any Other
Enterprise
to the
fullest extent permitted by Delaware law and this Agreement as such
law and
this Agreement may be hereafter
modified or interpreted
subsequent to the
execution of this Agreement.
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(b)
Notwithstanding
any
other
provisions
of
this
Agreement,
if
Indemnitee
is the
subject
of a
Proceeding
by reason
of, or in any way
related
to,
Indemnitee's
Official
Capacity,
and is
successful
in the
defense of (i) the entire Proceeding, or (ii) one or more claims
brought as
part of the Proceeding,
the Indemnitee
shall be fully
indemnified by the
Corporation as to all Expenses incurred with respect to the
Proceeding,
or
the particular claims, as the case may be, to the extent Indemnitee
has not
otherwise been indemnified.
(c)
If a Proceeding against
Indemnitee
includes a claim against (i)
one or more of Indemnitee's Affiliates,
or (ii) a property interest of one
or more of Indemnitee's Affiliates,
and such Proceeding against Indemnitee
is by reason of, or in any way related to,
Indemnitee's
Official Capacity
with the
Corporation or any Other
Enterprise,
this Agreement
shall also
include
indemnification
of the
Indemnitee's
Affiliates
with respect to
their
Expenses and
Liability,
assuming that
Indemnitee
would have been
entitled to
indemnification
under Section 4(a) if the Proceeding had been
brought
directly
against
Indemnitee.
The
Expenses
of such
Indemnitee
Affiliate shall be advanced
pursuant to Section 5 to the extent Indemnitee
would have been entitled to advancement of Expenses had the
Proceeding been
directly against Indemnitee.
(d)
The Corporation and Indemnitee
acknowledge that state or federal
law
or
regulations,
or
applicable
public
policy,
may
prohibit
the
Corporation from indemnifying
Indemnitee with respect to a Proceeding,
or
one or more claims in a Proceeding under this Agreement or
otherwise.
3.
Partial Indemnification
. If Indemnitee is entitled under any provision
of this
Agreement
to
indemnification
by the
Corporation
for any portion of
Expenses or Liability
incurred in connection with any
Proceeding,
but not for
all of the Expenses or Liability incurred in connection with any
Proceeding, the
Corporation
shall
nevertheless
indemnify
Indemnitee
for the portion of such
Expenses and Liability to which Indemnitee is entitled.
4.
Limitations on Indemnification
.
(a)
The
Corporation
will not hold
Indemnitee
harmless
or provide
indemnification or advancement of expenses:
(i)
if
Indemnitee
has been
otherwise
(than
pursuant to this
Agreement)
indemnified by the
Corporation or other person or entity,
or pursuant to any D&O
Insurance
or other
insurance
purchased
and
maintained by the Corporation or Other Enterprise;
(ii) if the Proceeding against Indemnitee is not by reason of, or
does not in any way relate to, Indemnitee's Official Capacity;
(iii) in respect of
remuneration
paid to Indemnitee if it shall
be determined by a final
adjudication of a court having
jurisdiction
in the matter that such remuneration was in violation of law;
-4-
(iv) on account
of any suit for an
accounting
of profits
made
from
the
purchase
or
sale
by
Indemnitee
of
securities
of
the
Corporation
pursuant to Section 16(b) of the Securities
Exchange Act
of 1934 and amendments
thereto or similar
provisions of any federal,
state or local law;
(v)
on account of Indemnitee's conduct if it is finally adjudged
by a
court
or
administrative
agency,
having
jurisdiction
in the
matter, or is admitted by Indemnitee, that such conduct (I) was in
bad
faith (II) was
believed by the
Indemn
