EXHIBIT 10.25
INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT (the “ Agreement ”) is
made and entered into as of the 26th day of May, 2005, by and
between Swift Foods Company, a Delaware corporation (including any
successors thereto, the “ Company ”), and Edward
Herring (“ 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, Tate & Furst
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 th
