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Exhibit
10.47
INDEMNITY
AGREEMENT
THIS AGREEMENT is made as of
the 9th day of April, 2008, by and between MICHAEL FOODS, INC., a
Delaware corporation (together with its subsidiaries, the
“Corporation”) and Thomas J. Jagiela
(“Indemnitee”), a director and/or officer (defined to
include key employees) of the Corporation.
WHEREAS, it is essential to
the Corporation to retain and attract as directors and officers the
most capable persons available; and
WHEREAS, it is the express
policy of the Corporation to indemnify its directors and officers
against claims, liabilities, losses and expenses which arise out of
their services to the Corporation to the full extent permitted by
law so as to provide them with the maximum possible protection
permitted by law; and
WHEREAS, recent developments
with respect to the terms and availability of directors’ and
officers’ liability insurance and with respect to the
application, amendment and enforcement of statutory and by-law
indemnification provisions generally have raised questions
concerning the adequacy and reliability of the protection afforded
to directors and officers thereby; and
WHEREAS, in order to resolve
such questions and thereby induce Indemnitee to serve as a director
and/or officer of the Corporation, the Corporation has determined
and agreed to enter into this contract with Indemnitee.
NOW, THEREFORE, in
consideration of the premises and the terms and conditions
hereinafter set forth, the parties hereto agree as
follows:
WITNESSETH:
Corporation and Indemnitee do
hereby agree as follows:
1. Agreement to Serve
.
(a) Indemnitee agrees to
serve as a director and/or officer of the Corporation for so long
as he is duly elected or appointed or until such time as he tenders
a resignation in writing or is removed from office or
dies.
2. Definitions . As
used in this Agreement:
(a) The term
“Proceeding” shall include any threatened, pending or
completed action, suit, arbitration or proceeding, whether brought
in the right of the Corporation or otherwise and whether of a
civil, criminal, administrative or investigative nature, in which
Indemnitee may be or may have been involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a
director and/or officer of the Corporation, by reason of any action
taken by him or of any inaction on his/her part while acting as
such a director and/or officer, or by reason of the fact that
Indemnitee is or was serving at the request of the Corporation as a
director, trustee, manager,
officer, employee or agent of another
corporation, partnership, limited liability company, joint venture,
trust or other enterprise, whether or not Indemnitee is serving in
such capacity at the time any liability or expense is incurred for
which indemnification or reimbursement can be provided under this
Agreement.
(b) The term
“Expenses” includes, without limitation thereto,
expenses of investigations, judicial or administrative proceedings
or appeals, amounts paid in settlement by or on behalf of
Indemnitee, attorneys’ fees and disbursements and any
expenses of establishing a right to indemnification under Paragraph
9 of this Agreement and shall include the amount of judgments,
fines or penalties against Indemnitee.
(c) References to
“other enterprises” shall include employee benefit
plans; references to “fines” shall include any excise
tax assessed with respect to any employee benefit plan; references
to “serving at the request of the corporation” shall
include any service as a director, officer, employee or agent of
this Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants, or
beneficiaries.
3. Indemnity in Third
Party Proceeding .
Subject only to the
exclusions set forth in Paragraph 6 hereof, the Corporation shall
indemnify Indemnitee under the terms of this Agreement if
Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any Proceeding (other than a Proceeding by or
in the right of the Corporation to procure a judgment in its favor)
by reason of the fact that Indemnitee is or was a director and/or
officer of the Corporation or is or was serving at the request of
the Corporation as a director, trustee, manager, officer, employee,
or agent of another corporation, partnership, joint venture,
limited liability company, trust or other enterprise, against all
Expenses actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such
Proceeding.
4. Indemnity in Proceeding
By or In the Right of the Corporation .
Subject only to the
exclusions set forth in Paragraph 6 hereof, the Corporation shall
indemnify Indemnitee under the terms of this Agreement if
Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any Proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that Indemnitee was or is a director and/or officer of the
Corporation or is or was serving at the request of the Corporation
as a director, trustee, manager, officer, employee or agent of
another corporation, partnership, limited liability company, joint
venture, trust or other enterprise, against all Expenses actually
and reasonably incurred by Indemnitee in connection with the
defense or settlement of such Proceeding.
5. Contribution in the
Event of Joint Liability .
(a) Whether or not any of the
indemnification and hold harmless rights provided in Sections 3 or
4 hereof are available in respect of any Proceeding in which the
Corporation is jointly liable with Indemnitee (or would be if
joined in such Proceeding), the Corporation shall pay, in the first
instance, the entire amount of any judgment or settlement of such
Proceeding
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without requiring Indemnitee to
contribute to such payment, and the Corporation hereby waives and
relinquishes any right of contribution it may have against
Indemnitee. The Corporation shall not enter into any settlement of
any Proceeding in which the Corporation is jointly liable with
Indemnitee (or would be if joined in such Proceeding) unless such
settlement provides for a full and final release of all claims
asserted against Indemnitee.
(b) Without diminishing or
impairing the obligations of the Corporation set forth in the
preceding subparagraph, if, for any reason, Indemnitee shall elect
or be required to pay all or any portion of any judgment or
settlement in any Proceeding in which the Corporation is jointly
liable with Indemnitee (or would be if joined in such Proceeding),
the Corporation shall contribute to the amount of Expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually incurred and paid or payable by
Indemnitee in proportion to the relative benefits received by the
Corporation and all officers, directors or employees of the
Corporation other than Indemnitee who are jointly liable with
Indemnitee (or would be if joined in such Proceeding), on the one
hand, and Indemnitee, on the other hand, from the tra
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