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THIS INDEMNITY AGREEMENT (the
“Agreement”) is made and entered into this 28th day of
September, 2007, by and between TYSON FOODS, INC., a corporation
organized and existing under the laws of the State of Delaware
(hereinafter referred to as “Tyson”), and John Tyson
(hereinafter referred to as the
“Indemnitee”).
A.
Indemnitee has previously served as an officer and director of
Tyson and will hereafter serve as a director of and adviser to
Tyson, and Tyson wishes Indemnitee to serve in such capacities as a
director and advisor.
B.
Indemnitee has indicated that he does not regard the
indemnities available under Tyson’s by-laws and available
insurance, if any, as adequate to protect him against the risks
associated with his service to Tyson, including his service as an
adviser.
C.
As a condition to the Indemnitee’s willingness
to serve in such capacities as a director of and advisor to Tyson,
and as additional consideration for that certain Agreement dated
effective September 28, 2007 between Tyson and Indemnitee
addressing the advisory services to be provided by Indemnitee to
Tyson, being executed simultaneously herewith, Tyson has agreed to
indemnify and hold the Indemnitee harmless from and against certain
claims, demands, damages, actions, causes of action, liabilities,
losses and expenses, as described herein.
D.
The parties wish to document their understandings
regarding such indemnification rights and obligations, as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises
recited and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by Tyson, the parties
hereby agree as follows:
1.
Indemnification for Losses . Tyson hereby agrees to discharge, indemnify and hold the
Indemnitee (and, if applicable, the Indemnitee’s executors or
administrators) (hereinafter referred to individually as a
“Covered Indemnitee” and collectively as the
“Covered Indemnitees”) harmless from and against any
and all claims, demands, damages, actions, causes of action,
liabilities, losses, costs and expenses (including, but not limited
to, court costs, judgments, fines and taxes) of whatever kind or
nature, in law, equity or otherwise, which may arise or be incurred
in connection with investigating, preparing and defending against
any actions, proceedings, or suits of any kind or nature
whatsoever, whether civil, criminal, administrative or
investigative (whether commenced or threatened), in any way
relating to any claim, allegation or assertion made against the
Indemnitee because of any current or future act or omission or
neglect or breach of duty, including any error or misstatement or
misleading statement, which the Indemnitee allegedly commits or
suffers in the Indemnitee’s current or future capacity or
capacities for Tyson (collectively, such claims, demands, damages,
actions, causes of action, liabilities, losses, costs and expenses
are referred to hereafter as
1
“Losses”). For purposes of this
Agreement, Losses shall not include reasonable attorneys’
fees and related expenses, which fees and expenses are separately
addressed in Paragraph 5 below.
2.
Indemnification Limitations
. The indemnification obligations of Tyson under
Paragraph 1 shall not apply to Losses:
(a)
for
which payment is actually made to the Indemnitee under a valid and
collectible insurance policy or bond, except in respect of any
excess beyond the amount of payment under such insurance policy or
bond;
(b)
for
which the Indemnitee is indemnified by Tyson or receives payment
for such Losses otherwise than pursuant to this
Agreement;
(c)
based upon or attributable to the Indemnitee gaining
in fact any remuneration, personal profit or advantage to which he
was not legally entitled;
(d)
for an accounting of profits made from the purchase
or sale by the Indemnitee of securities of Tyson within the meaning
of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any state statutory law
or common law;
(e)
brought about or contributed to by the dishonesty of
Indemnitee; however, notwithstanding the foregoing, Indemnitee
shall be protected under this Agreement as to any claims upon which
suit may be brought against him by reason of any alleged dishonesty
on his part, unless a judgment or other final adjudication thereof
adverse to Indemnitee shall establish that he committed acts of
active and deliberate dishonesty with actual dishonest purpose and
intent which were material to the cause of action so
adjudicated;
(f)
if a final decision by a court having jurisdiction
in the matter shall determine that such payment is not lawful;
or
(g)
for which the Indemnitee is finally judicially determined on
the merits to have caused through the bad faith or dishonesty of
the Indemnitee; provided such bad faith or dishonesty was material
to the cause of action so adjudicated.
3.
Inapplicability of Indemnity
. In the event that the indemnification otherwise
available to a Covered Indemnitee is not valid or enforceable
un
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