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EXHIBIT 18
FORM OF INDEMNIFICATION AGREEMENT
THIS AGREEMENT, made and entered into as of the ____ day of __________,
199_, is between DEKALB Genetics Corporation, a corporation organized under
the laws of the State of Delaware, (the "Company") and _______________________
("Indemnified Party").
WHEREAS, the Company is a Delaware corporation, engaged in agricultural
genetics businesses, including the development and marketing of genetically
improved hybrid corn and sorghum seed and varietal soybean seed and hybrid
breeding swine (1); and
WHEREAS, at the request of the Company, the Indemnified Party currently
serves as a director and/or officer of the Company (and may from time to time
serve as a director and/or officer of one or more subsidiaries of the Company)
and, as such, may be subjected to claims, actions, suits or proceedings arising
out of or as a result of such service; and
WHEREAS, the Company currently has (2) a policy of directors and
officers liability insurance covering certain liabilities which may be incurred
by the Indemnified Party as a director and/or officer; and
WHEREAS, due to the fact that the indemnification provisions of the
Delaware General Corporation Law and the Company's Restated Certificate of
Incorporation may be amended, modified or repealed, that the Company may be
unable to continue to purchase (3) and maintain adequate director and officer
liability insurance, and that there may be other substantial uncertainties
associated with the indemnification provisions of the Delaware General
Corporation Law and the Company's Restated Certificate of Incorporation and
with director and officer liability insurance, the Indemnified Party does not
regard the rights to indemnification granted to him under the provisions of the
Delaware General Corporation Law and the Company's Restated Certificate of
Incorporation and under director and officer liability insurance as adequate
to protect him against the risks associated with service as a director and/or
officer of the Company, and the Indemnified Party may be unwilling to continue
to serve as a director and/or officer of the Company in the absence of the
benefits and assurances provided to him under this Agreement; and
WHEREAS, as an inducement to the Indemnified Party to continue to serve
as such director and/or officer, the Company has agreed to indemnify the
Indemnified Party against expenses and costs incurred by the Indemnified Party
in connection with any such claims, actions, suits or proceedings, in
accordance with this Agreement.
NOW, THEREFORE, in order to induce the Indemnified Party to continue to
serve as a member of the Board of Directors and/or as an officer of the Company
and to continue to perform his duties and responsibilities in accordance with
his best judgement of the Company's best interests and without undue concern
over potential claims of personal liability, the Company hereby agrees with the
Indemnified Party as follows:
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(1) Each Indemnification Agreement between the Company and a Director or
Executive Officer which was entered into prior to January 27, 1995, listed
"egglaying poultry" in the list of business in which the Company is
engaged.
(2) Each Indemnification Agreement between the Company and a Director or
Executive Officer which was entered into prior to July 1, 1993, stated that
the Company was "presently seeking to obtain" a policy of directors and
officers liability insurance.
(3) Each Indemnification Agreement which between the Company and a Director or
Executive Officer which was entered into prior to July 1, 1993, stated that
the Company may be "unable to purchase or continue to purchase" directors
and officers insurance.
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1. DEFINITIONS.
(a) Expenses. "Expenses" shall mean any and all expenses (including
attorneys' fees), costs, judgments, fines or amounts paid in settlement
and which are actually and reasonably incurred by the Indemnified Party
in connection with any Action.
(b) Action. "Action" shall mean any threatened, pending or completed claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether or not such action is by or in the right of
the Company or such other enterprise with respect to which the
Indemnified Party serves or has served as a director or officer, which
arises by reason of the fact that the Indemnified Party is or was a
director or officer of the Company, or is or was serving at the request
of the Company as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise.
(c) Other Terms. For purposes of this Agreement, the terms "Company," "other
enterprise," "fines," and "serving at the request of the Company" shall
have the meanings provided in Section 145 of the Delaware General
Corporation Law.
2. INDEMNITY. Notwithstanding any amendment, modification or repeal of the
indemnification provisions of the Delaware General Corporation Law or the
Company's Restated Certificate of Incorporation after the date hereof, the
Company shall hold harmless and indemnify the Indemnified Party against any
and all Expenses, except:
(a) Expenses for which the Indemnified Party is indemnified pursuant to any
directors and officers insurance policy purchased and maintained by the
Company. It is specifically understood that the indemnity provided in
this Agreement is in excess of any such directors and officers insurance
policy and the Indemnified Party will look first to the directors and
officers insurance policy; or
(b) Remuneration paid to the Indemnified Party if it shall be determined by
a final judgment or other final adjudication that such remuneration was
in violation of law; or
(c) Expenses incurred on account of any Action in which judgment is rendered
against the Indemnified Party for an accounting of profits made from the
purchase or sale by the Indemnified Party of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any federal,
state or local law; or
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(d) Expenses incurred on account of the Indemnified Party's conduct which
is finally adjudged to have been (or Indemnified Party has admitted
facts sufficient to conclude that his conduct was):
(1) a breach of the duty of loyalty to the Company or its
stockholders, (2) an act or omission which was not in good faith, (3)
an act or omission which involved intentional misconduct or a knowing
violation of law or (4) a transaction from which the Indemnified Party
derived an improper personal benefit; or
(e) If a final decision by a Court having jurisdiction in the matter shall
determine that such indemnification is not lawful as against public
policy; or
(f) Any income taxes, or any interest or penalties related thereto, in
respect of compensation received for services as a director and/or
officer.
3. CONTINUATION OF INDEMNITY. All agreements and obligations of the Company
contained herein shall continue during the period the Indemnified Party is
a director, officer, employee or agent of the Company (or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise)
and shall continue thereafter so long as the indemnified Party shall be
subject to any possible Action by reason of the fact that the Indemnified
Party was a director or officer of the Company or serving in any other
capacity referred to herein.
4. NOTICE TO COMPANY. The Company shall perform its obligations under this
Agreement upon receipt of written demand for such performance from the
Indemnified Party, and, if the Company fails to perform its obligations
under this Agreement on demand, the Indemnified Party may at any time
thereafter bring legal action against the Company to obtain full and
complete performance of its obligations hereunder. In any action brought to
enforce this Agreement, upon a showing by the Indemnified Party that a
claim has been asserted against him with respect to or in connection with
any alleged act or omission by him as a director or officer of the Company,
or any alleged neglect or breach of duty by him as an officer of the
Company or otherwise in his capacity as a director or officer of the
Company, there shall be a presumption that the Indemnified Party is
entitled to indemnification and advancement of costs and expenses from the
Company in respect to indemnification.
5. CONTROL OF DEFENSE.
(a) If a claim should be made or threatened against the Indemnified Party
which has given rise to, or may give rise to, a right to
indemnification under paragraph 2 hereof, or a
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right to advancement of costs and expenses under paragraph 6 hereof, and
provided that such claim is not made or threatened in the name or on behalf
of the Company and there is no other conflict of interest between the
Company and the Indemnified Party with respect to such claim, then: (i) the
Company shall have the right to participate, at its own cost and expense,
in the investigation, defense or other contest of such claim; and (ii) the
Company shall have the right to elect to assume the defense of such claim
on behalf of the Indemnified Party (if applicable, jointly with any third
party who may have an obligation to hold harmless or indemnify the
Indemnified Party with respect to such claim).
(b) If a conflict of interest of the type described in paragraph 5(a)
should develop, the Indemnified Party shall control the defense of any
action, suit or proceeding against him which may give rise to a right of
indemnification hereunder subject to the following: (i) if the insurance
carrier which shall have supplied any directors and officers insurance
policy shall be willing to conduct such defense without any reservation as
to coverage, then, unless upon written application by the Indemnified Party
concurred in by the Board of Directors of the Company wherein the
Indemnified Party and the Board of Directors deem it undesirable, such
insurance carrier shall select counsel to conduct such defense; (ii) if the
insurance carrier shall not assume responsibility for such defense without
any reservation of rights as to coverage, the defense shall be conducted by
experienced and able counsel selected by the Indemnified Party and
reasonably acceptable to the Board of Directors of the Company; and (iii)
separate counsel will be used by the Indemnified Party and other parties
indemnified by the Company and subject to the same claim only to the
extent necessary, in the reasonable opinion of the Indemnified Party, to
avoid conflict of interest.
(c) If the Company should elect to assume the defense of a claim on behalf
of the Indemnified Party as provided in paragraph 5(a), then: (i) the
Company shall give the Indemnified Party prompt written notice of such
election; (ii) the Company shall be obligated to defend such claim in good
faith and in a manner consistent with the best interests of the Indemnified
Party; (iii) provided that the Company defends such claim in good faith and
in a manner consistent with the best interests of the Indemnified Party and
no conflict of interest develops between the Company and the Indemnified
Party with respect to such claim, the Company shall not be liable for any
costs or expenses (including attorneys' fees) incurred by the Indemnified
Party in connection with defending or otherwise contesting such claim after
he has received written notice of such election; and (iv) the Company shall
not settle or compromise such claim on any
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basis or in any manner which would impose any liability, limitation or
restriction of any kind on the Indemnified Party without his express
written consent.
6. ADVANCEMENT OF EXPENSES. Upon written request to the Company by the
Indemnfied Party, the Company shall advance to the Indemnified Party amounts
to cover Expenses in advance of the final disposition thereof upon receipt of
(i) an undertaking by or on behalf of the Indemnified Party to repay such
amount if it shall ultimately be determined by final judgment of a court of
competent jurisdiction that he is not entitled to be indemnified by the
Company hereunder, and (ii) satisfactory evidence as to the amount of such
expenses. The Indemnified Party's written certification together with a copy
of the statement paid or to be paid by the Indemnified Party shall constitute
satisfactory evidence absence manifest error.
7. DIRECTORS AND OFFICERS LIABILITY INSURANCE.
(a) Provided in Sole Discretion of Company. The Company shall use reasonable
efforts to provide the Indemnified Party with directors and officers
insurance coverage ("Directors and Officers Coverage") providing to the
Indemnified Party such coverage then available in the insurance industry
in such amounts and with such exclusions and other conditions to
coverage as shall in the sole judgment of the Company provide reasonable
coverage to the Indemnified Party in light of the cost to the Company
and any other relevant considerations, it being expressly intended that
the foregoing shall not obligate the Company to obtain Directors and
Officers Coverage for the Indemnified Party.
(b) Settlement. The Indemnified Party shall not settle any matter for which
he intends to seek indemnification hereunder without first attempting to
obtain any approval required with respect to such settlement by the
insurance carrier of any applicable Directors and Officers Coverage. If
the Indemnified Party seeks such approval, but such approval is not
granted by the insurance carrier, of any applicable Directors and
Officers Coverage, the Indemnified Party shall be entitled to
indemnification to the fullest extent provided by this Agreement.
(c) No Limitation of Obligation. Except as otherwise set forth in paragraph
2(a), the provision of Directors and Officers Coverage or the failure to
so provide Directors and Officers Coverage, shall in no way limit or
diminish the obligation of the Company to indemnify the Indemnified
Party as provided elsewhere in this Agreement.
8. NON-EXCLUSIVITY. The indemnification rights granted to the Indemnified Party
under this Agreement shall not be deemed exclusive of, or in limitation of,
any rights to which the
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Indemnified Party may be entitled under Delaware law, the Company's
Restated Certificate of Incorporation or By-laws, vote of
stockholders, determination by the Company's Board of Directors or
otherwise.
9. SUCCESSORS AND ASSIGNS. The rights granted to the Indemnified Party
hereunder shall inure to the benefit of the Indemnified Party, his
personal representatives, heirs, executors, administrators and
beneficiaries, and this Agreement shall be binding upon the Company,
its successors and assigns.
10. SEVERABILITY. To the extent permitted by applicable law, the parties
hereto hereby waive any provision of law which renders any provision
in this Agreement unenforceable in any respect. Whenever possible,
each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any
provision shall be held to be prohibited by or invalid under
applicable law, such provision shall be deemed amended to accomplish
the objectives of the provision as originally written to the fullest
extent permitted by law and all other provisions shall remain in full
force and effect.
11. PRIOR RIGHTS. Acceptance of this Agreement by the Indemnified Party
terminates all rights and obligations of the Indemnified Party under
any prior arrangements, understandings or contracts (other than the
provisions contained in the Delaware General Corporation Law, the
Company's Restated Certificate of Incorporation or applicable
policies) relating to indemnification.
12. DELAWARE LAW GOVERNS. This Agreement shall be governed by the laws of
the State of Delaware.
13. ADDRESS. Any notice, demand or other communication to the Company
under this Agreement may be addressed to the Company at 3100 Sycamore
Road, DeKalb, Illinois, to the attention of its Corporate Secretary.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above stated.
DEKALB Genetics Corporation
By:________________________________________
Indemnified Party
By:________________________________________
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