Form of Indemnification Agreement between the Company and each of its directors and executive officers
UNANIMOUS WRITTEN CONSENT
THE BOARD OF DIRECTORS
CALAVO GROWERS, INC.
May 27, 2022
The undersigned, constituting all the directors of Calavo Growers, Inc., a California corporation (“Calavo”), acting pursuant to authority granted by the California Corporations Code and Calavo’s Amended and Restated Bylaws, hereby take the following actions, approve and adopt the following recitals and resolutions, and transact the following business by written consent without a meeting:
Approval of Indemnification Agreement
WHEREAS, Calavo’s Board of Directors (the “Board”) desires to attract and retain the services of highly competent individuals to serve as directors and officers of Calavo;
WHEREAS, highly competent persons have become more reluctant to serve corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation; and
WHEREAS, given the difficulty in attracting and retaining such persons, the Board has determined that it is advisable and in the best interests of Calavo and its shareholders to adopt a form of indemnification agreement that Calavo may use to provide indemnification to selected directors and officers that is broader than the indemnification rights the directors and officers have under applicable law.
RESOLVED, that the form of Indemnification Agreement attached hereto as Exhibit A (the “Indemnification Agreement”) is adopted and approved; and
RESOLVED, that Calavo shall enter into an Indemnification Agreement with each of its directors and such executive officers as determined by Calavo in substantially the form attached hereto, together with any changes to each such agreement determined by the proper officers of Calavo to comply with applicable law, and that such determination shall be conclusively evidenced by such officer’s execution and delivery of a definitive Indemnification Agreement.
General Authorizing Resolutions
RESOLVED, that the officers of Calavo be, and each of them hereby is, authorized and directed, for and on behalf of Calavo, to take such further actions and execute such documents as may be necessary or appropriate in order to implement the foregoing resolutions; and
RESOLVED, that all actions heretofore taken by the officers of Calavo in connection with the subject matter of the foregoing resolutions are hereby ratified, approved and confirmed in all respects.
This written consent shall be filed with the minutes of the Board’s proceedings. This written consent may be executed in counterparts, each of which shall be deemed an original document, with the same effect as if the signatures were upon the same instrument. Signatures to this written consent
delivered by electronic or facsimile transmission, including by DocuSign or by e-mail transmission in PDF format, shall be valid.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have executed and delivered this Unanimous Written Consent as of the date set forth above.
/s/ Farha Aslam
/s/ Marc L. Brown
Marc L. Brown
/s/ Michael A. DiGregorio
Michael A. DiGregorio
/s/ James Helin
/s/ Steven Hollister
/s/ Kathleen M. Holmgren
Kathleen M. Holmgren
/s/ John M. Hunt
John M. Hunt
/s/ J. Link Leavens
J. Link Leavens
/s/ Donald M. Sanders
Donald M. Sanders
/s/ Adriana Mendizabal
This Indemnification Agreement (this “Agreement”) is made as of this ____ day of __________, 2022, by and between Calavo Growers, Inc., a California corporation (the “Company”), and __________________________________ (“Indemnitee”).
A.Indemnitee is a director and/or officer of the Company.
B.The Company recognizes that the vagaries of public policy and the interpretation of ambiguous statutes, regulations and court opinions are too uncertain to provide the Company’s officers and directors with adequate or reliable advance knowledge or guidance with respect to the legal risks and potential liabilities to which they may become personally exposed as a result of performing their duties in good faith as Agents (as defined below) for the Company Group (as defined below).
C.The Company recognizes that the cost to a director or officer of defending against lawsuits resulting from the performance of his or her duties in good faith for the Company Group, whether or not meritorious, is likely to be burdensome.
D.The Company recognizes that the legal risks and potential liabilities, and the very threat thereof, associated with lawsuits filed against the officers and directors of the Company Group, and the resultant substantial time and expense spent and endured in defending against such lawsuits, bears no reasonable or logical relationship to the amount of compensation received by such officers and directors, and thus poses a significant deterrent to and results in increased reluctance on the part of experienced and capable individuals to serve as Agents of the Company Group.
E.In order to induce and encourage highly experienced and capable persons such as Indemnitee to serve as Agents of the Company Group, secure in the knowledge that certain expenses, costs and liabilities incurred by them in their defense of such litigation will be borne by the Company and that they will receive protection against such risks and liabilities, the Board (as defined below) has determined that entering into this Agreement with Indemnitee is not only reasonable and prudent but necessary to promote and ensure the best interests of the Company and the Company’s shareholders.
F.The Company and Indemnitee desire that the indemnification rights provided by this Agreement shall be supplemental to, and shall not supersede or replace, any indemnification rights which may be provided by other sources, including without limitation any indemnification which may be provided by the Company pursuant to its Bylaws, by other agreements or by applicable law.
G.As permitted by Sections 204(a)(11) and 317(g) of the California Corporations Code, Article V(b) of the Company’s Articles of Incorporation states that the Company “is authorized to provide indemnification of its agents (as such term is defined in Section 317 of the California Corporations Code), whether by bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, to the fullest extent permissible under California law.”
The Company and Indemnitee hereby agree as follows:
The following terms have the meanings set forth below:
“Action” means (i) any action, suit, arbitration, alternative dispute resolution mechanism, formal or informal investigation, inquiry, judicial, administrative, or legislative hearing, or any other threatened, pending, or completed proceeding, whether brought by or in the right of the Company or otherwise, including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative, or other nature, to which Indemnitee was or is a party or is threatened to be made a party or is otherwise involved in by reason of the fact that Indemnitee is or was as an Agent of the Company or while an Agent of the Company is or was serving at the request of the Company as an Agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan (including as a deemed fiduciary thereto), or by reason of anything done or not done by Indemnitee in any such capacity, whether or not Indemnitee is serving in such capacity at the time any expense, liability, or loss is incurred for which indemnification or advancement can be provided under this Agreement, or (ii) any situation that Indemnitee determines in good faith might lead to or culminate in the institution of any such action, suit, proceeding, arbitration or alternative dispute resolution mechanism.
“Agent” means, with respect to Indemnitee, Indemnitee in his or her capacity as an officer, director, employee, agent or trustee of the Company or any member of the Company Group or in his or her capacity as an officer, director, employee, agent or trustee of any other Entity for which he or she is serving in such capacity or capacities as the request of the Company. For purposes of this Agreement, if Indemnitee provides service as an officer, director, employee, agent or trustee of any Entity controlled by the Company or any employee benefit plan of the Company (including as a deemed fiduciary thereto), then Indemnitee shall be deemed to serve at the request of the Company.
“Board” means the Board of Directors of the Company.
“Change in Control” means the occurrence after the date of this Agreement, in a single transaction or in a series of related transactions, of any one or more of the following events:
Notwithstanding the foregoing or any other provision of this Agreement, the term Change in Control shall not include a sale of assets, merger or other transaction effected exclusively for the purpose of changing the domicile of the Company.
“Company Group” means the Company, each subsidiary and parent of the Company, and any successor, resulting or surviving corporation of the Company or any subsidiary or parent of such successor, resulting or surviving corporation.
“Disinterested Director” means a director of the Company who is not and was not a party to the Action in respect of which indemnification is sought by Indemnitee.
“Entity” means any corporation, limited liability company, partnership, joint venture, trust or other enterprise, or employee benefit plan.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Act Person” means any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include (i) the Company Group, (ii) any employee benefit plan of the Company Group or any trustee or other fiduciary holding securities under an employee benefit plan of the Company Group, (iii) an underwriter temporarily holding securities pursuant to a registered public offering of such securities, or (iv) an Entity Owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their Ownership of stock of the Company.
“Expenses” means any and all expenses, including, without limitation, attorneys’ and experts’ fees, court costs, transcript costs, travel expenses, duplicating, printing and binding costs, telephone charges, retainers and disbursements and advances thereon, the premium, security for, and other costs relating to any bond (including cost bonds, appraisal bonds, or their equivalents), and all other costs and expenses incurred in connection with investigating, defending, prosecuting, being a witness in or participating in (including on appeal), or preparing to defend or prosecute, be a witness or participate in, any Action, including any appeal regarding such Action and including expenses incurred by Indemnitee in establishing or enforcing a right to indemnification or advances under this Agreement. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or Fines against Indemnitee.
“Fines” include, in addition to fines, any excise taxes assessed on Indemnitee with respect to an employee benefit plan.
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporate law and neither currently is, nor in the five years prior to its selection or appointment has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement or of other indemnitees under similar indemnification agreements) or (ii) any other party to the Action giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
“Own,” “Owned,” “Owner,” “Ownership” means that a person or Entity owns, owned, is the owner of or has acquired ownership of securities, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise and has or shares voting power, which includes the power to vote or to direct the voting, with respect to such securities.
For purposes of this Agreement, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “in the best interests of the Company” as referred to in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.
CALAVO GROWERS, INC.
Agreed to and accepted: