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 under appl
