DARLING
INTERNATIONAL INC.
INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (“
Agreement
”) is made
as of ______________, 200__ by and between Darling International Inc., a
Delaware corporation (the “
Company
”), and
______________ (“
Indemnitee
”).
RECITALS
WHEREAS,
highly competent persons have become more reluctant to serve publicly-held
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;
WHEREAS,
the Board of Directors of the Company (the “
Board
”) has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. At the same time, directors, officers, and
other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been brought only
against the Company or business enterprise itself;
WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons;
WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future;
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
to the fullest extent permitted by applicable law so that they will serve or
continue to serve the Company free from undue concern that they will not be so
indemnified;
WHEREAS,
this Agreement is a supplement to and in furtherance of the Bylaws of the
Company (as amended, the “
Bylaws
”) and the
Certificate of Incorporation of the Company (as amended, the “
Certificate of
Incorporation
”) and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS,
the Certificate of Incorporation and Bylaws provide that the Company will
indemnify its directors and officers to the fullest extent permitted by law and
will advance expenses in connection therewith, and Indemnitee’s willingness to
serve as a director and/or officer of the Company is based in part on
Indemnitee’s reliance on such provisions; and
WHEREAS,
in recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in
an effective manner, and Indemnitee’s reliance on the aforesaid provisions of
the Certificate of Incorporation and Bylaws, and in part to provide Indemnitee
with specific contractual assurance that the protection promised by such
provisions will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of such provisions or any change in the
composition of the Company’s Board of Directors or any acquisition or business
combination transaction relating to the Company), the Company wishes to provide
in this Agreement for the indemnification of and the advancement of expenses to
Indemnitee as set forth in this Agreement, and, to the extent insurance is
maintained, for the continued coverage of Indemnitee under the Company’s
directors’ and officers’ liability insurance policies;
NOW,
THEREFORE, in consideration of the promises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
Section
1.
Services to the
Company.
Indemnitee agrees to serve as [a director][an
officer] of the Company. Indemnitee may, at any time and for any
reason, resign from such position (subject to any other contractual obligation
or any obligation imposed by operation of law), in which event the Company shall
have no obligation under this Agreement to continue to employ Indemnitee in such
position. This Agreement shall not be deemed an employment contract
between the Company (or any of its subsidiaries or any Enterprise) and
Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s
service to the Company (or any of its subsidiaries or any Enterprise), if any,
is at will, and the Indemnitee may be discharged at any time for any reason,
with or without cause, except as may be otherwise provided in any written
employment contract between Indemnitee and the Company (or any of its
subsidiaries or any Enterprise), other applicable formal severance policies or
contracts duly adopted by the Board, or by the Certificate of Incorporation, the
Bylaws and the General Corporation Law of the State of Delaware (the “
DGCL
”). The
foregoing notwithstanding, this Agreement shall continue in force after
Indemnitee has ceased to serve as [a director][an officer] of the
Company.
Section
2.
Definitions.
As
used in this Agreement:
(a)
A “
Change in Control
”
shall be deemed to occur upon the earliest to occur after the date of this
Agreement of any of the following events:
i.
any
person or group, within the meaning of Section 13(d) of the Securities Exchange
Act of 1934 or the Securities and Exchange Commission Rules thereunder
(collectively the “
Control Rules
”),
becoming a “beneficial owner” (as defined in the Control Rules) of more than 50%
of the total voting power of the Company’s outstanding capital stock entitled to
elect directors;
ii.
a
majority of the members of the Board are not either (x) members of the Board who
held such position as of the date of the commencement of Indemnitee’s employment
with the Company or election to the Board, as applicable, or (y) nominated or
elected by a majority of the members of the Board described in clause (x);
and
iii.
the
consolidation of the Company with, or merger with or into any person or any
person being consolidated with, or merger with or into the Company, pursuant to
a transaction in which any of the outstanding voting capital stock of the
Company is converted into or exchanged for cash, securities or other
property.
(b)
“
Corporate Status
”
describes the status of a person who is or was a director, officer, employee or
agent of the Company or of any other corporation, limited liability company,
partnership or joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the Company.
(c)
“
Disinterested
Director
” means a director of the Company who is not and was not a party
to the Proceeding in respect of which indemnification is sought by
Indemnitee.
(d)
“
Enterprise
” shall
mean the Company and any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise
which Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent.
(e)
“
Exchange Act
” shall
mean the Securities Exchange Act of 1934, as amended.
(f)
“
Expenses
” shall
include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise participating
in, a Proceeding. Expenses also shall include (i) Expenses incurred
in connection with any appeal resulting from any Proceeding, including, without
limitation, the premium, security for, and other costs relating to any cost
bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for
purposes of
Section
13(d)
only, Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement, by litigation or otherwise. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.
(g)
“
Independent Counsel
”
means a law firm, or a member of a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past five (5) years 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 the Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), or (ii) any other party to the Proceeding
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. The
Company agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to fully indemnify such counsel against any and
all Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(h)
The term
“
Proceeding
”
shall include any threatened, pending or completed action, suit, demand,
arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding,
whether brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative, legislative, or investigative nature, including any
appeal therefrom, in which Indemnitee was, is or could or will be involved as a
party, potential party, non-party witness or otherwise by reason of the fact
that Indemnitee is or was a director, officer or employee of the Company, by
reason of any action taken by [him][her] or of any action on [his][her] part
while acting as director, officer or employee of the Company, or by reason of
the fact that [he][she] is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, limited liability
company, partnership, joint venture, trust or other enterprise, in each case
whether or not serving in such capacity at the time any liability or expense is
incurred for which indemnification, reimbursement, or advancement of expenses
can be provided under this Agreement;
provided
,
however
, the above
shall not include any such action or proceeding initiated by Indemnitee to
enforce [his][her] rights under this Agreement.
(i)
References
to “
other
enterprise
” shall include, without limitation, 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 Company
” shall include any service as a director, officer,
employee or agent of the Company 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; and a person who acted in good
faith and in a manner [he][she] reasonably believed to be in or not opposed to
the best interests of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in manner “
not opposed to the best
interests of the Company
” as referred to in this Agreement.
Section
3.
Indemnity in Third-Party
Proceedings.
The Company shall indemnify Indemnitee in
accordance with the provisions of this
Section 3
if
Indemnitee is, or is threatened to be made, a party to or a participant in any
Proceeding, other than a Proceeding by or in the right of the Company to procure
a judgment in its favor. Pursuant to this
Section 3
, Indemnitee
shall be indemnified to the fullest extent permitted by applicable law against
all Expenses, judgments, fines and amounts paid in settlement (including,
without limitation, all interest, assessments and other charges paid or payable
in connection with or in respect of any of the foregoing) actually and
reasonably incurred by Indemnitee or on [his][her] behalf in connection with
such Proceeding or any claim, issue or matter therein, if Indemnitee acted in
good faith and in a manner [he][she] reasonably believed to be in or not opposed
to the best interests of the Company and, in the case of a criminal proceeding
had no reasonable cause to believe that [his][her] conduct was
unlawful.
Section
4.
Indemnity in Proceedings by
or in the Right of the Company.
The Company shall
indemnify Indemnitee in accordance with the provisions of this
Section 4
if
Indemnitee is, or is threatened to be made, a party to or a participant in any
Proceeding by or in the right of the Company to procure a judgment in its
favor. Pursuant to this
Section 4
, Indemnitee
shall be indemnified to the fullest extent permitted by applicable law against
all Expenses actually and reasonably incurred by [him][her] or on [his][her]
behalf in connection with such Proceeding or any claim, issue or matter therein,
if Indemnitee acted in good faith and in a manner [he][she] reasonably believed
to be in or not opposed to the best interests of the Company. No
indemnification for Expenses shall be made under this
Section 4
in respect
of any claim, issue or matter as to which Indemnitee shall have been finally
adjudged by a court to be liable to the Company, unless and only to the extent
that the Delaware Court of Chancery or any court in which the Proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification.
Section
5.
Indemnification for Expenses
of a Party Who Is Wholly or Partly Successful.
Notwithstanding any other
provisions of this Agreement, to the fullest extent permitted by applicable law
and to the extent that Indemnitee is a party to (or a participant in) and is
successful, on the merits or otherwise, in any Proceeding or in defense of any
claim, issue or matter therein, in whole or in part, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by [him][her]
in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or more
but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by [him][her] or on [his][her] behalf in connection with each successfully
resolved claim, issue or matter. If the Indemnitee is not wholly
successful in such Proceeding, the Company also shall indemnify Indemnitee
against all Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which the Indemnitee was
successful. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section
6.
Indemnification for Expenses
of a Witness.
Notwithstanding any other provision of this
Agreement, to the fullest extent permitted by applicable law and to the extent
that Indemnitee is, by reason of [his][her] Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, [he][she] shall be indemnified
against all Expenses actually and reasonably incurred by [him][her] or on
[his][her] behalf in connection therewith.
Section
7.
Additional
Indemnification.
Notwithstanding any other provision of
this Agreement, the Company hereby agrees to indemnify the Indemnitee to the
fullest extent permitted by law, notwithstanding that such indemnification is
not specifically authorized by the other provisions of this Agreement, the
Certificate of Incorporation, the Bylaws or by statute. In the event
of any change, after the date of this Agreement, in any applicable law, statute,
or rule which expands the right of a Delaware corporation to indemnify its
directors or officers, such changes shall be deemed to be within the purview of
Indemnitee’s rights and the Company’s obligations under this
Agreement. In the event of any change in any applicable law, statute
or rule which narrows the right of a Delaware corporation to indemnify its
directors or officers, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement shall have no effect
on this Agreement or the parties’ rights and obligations hereunder.
Section
8.
Exclusions.
Notwithstanding
any provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against
Indemnitee:
(a)
for which
payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond
the amount paid under any insurance policy or other indemnity provision;
or
(b)
for (i)
an accounting of profits made from the purchase and sale (or sale and purchase)
by Indemnitee of securities of the Company within the meaning of Section 16(b)
of the Exchange Act or similar provisions of state statutory law or common law,
or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits realized by the
Indemnitee from the sale of securities of the Company, as required in each case
under the Exchange Act (including any such reimbursements that arise from an
accounting restatement of the Company pursuant to Section 304 of the
Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act
”),
or the payment to the Company of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act),
or
(c)
except as
provided in
Section
13(d)
of this Agreement, in connection with any Proceeding (or any part
of any Proceeding) initiated by Indemnitee, including any Proceeding (or any
part of any Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees or other indemnitees, unless (i) the Board
authorized the Proceeding (or any part of any Proceeding) prior to its
initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable
law;
(d)
for any
Expenses incurred by Indemnitee with respect to any proceeding initiated by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
in such proceeding was either frivolous or not made in good faith;
or
(e)
with
respect to which a final decision by a court having jurisdiction in the matter
shall determine that Indemnitee has committed fraud on the Company.
Section
9.
Advances of
Expenses.
The Company shall advance, to the extent not
prohibited by law, the Expenses incurred by Indemnitee in connection with any
Proceeding, and such advancement shall be made within ten (10) days after the
receipt by the Company of a statement or statements requesting such advances
from time to time, whether prior to or after final disposition of any
Proceeding. Advances shall be unsecured and interest
free. Advances shall include any and all reasonable Expenses incurred
pursuing an action to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the
advances claimed. The Indemnitee shall qualify for advances upon the
execution and delivery to the Company of this Agreement, which shall constitute
an undertaking providing that the Indemnitee undertakes to repay the advance to
the extent that it is ultimately determined that Indemnitee is not entitled to
be indemnified by the Company. This
Section 9
shall not
apply to any claim made by Indemnitee for which indemnity is excluded pursuant
to
Section
8
.
Section
10.
Procedure for Notification
and Defense of Claim.
(a)
Indemnitee
shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses hereunder
as soon as reasonably practicable following the receipt by Indemnitee of written
notice thereof. The written notification to the Company shall include
a description of the nature of the Proceeding and the facts underlying the
Proceeding. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification following the final disposition of
such action, suit or proceeding. The omission by Indemnitee to notify
the Company hereunder will not relieve the Company from any liability which it
may have to Indemnitee hereunder or otherwise, and any delay in so notifying the
Company shall not constitute a waiver by Indemnitee of any rights under this
Agreement. Notice to the Company shall be directed to the General
Counsel of the Company and shall be given in accordance with the provisions of
Section 20
below.
(b)
The
Company will be entitled to participate in the Proceeding at its own
expense.
Section
11.
Procedure upon Application
for Indemnification.
(a)
Upon
written request by Indemnitee for indemnification pursuant to
Section 10(a)
, a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case: (i) if a Change in
Control shall have occurred, by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in
Control shall not have occurred, (A) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, (B) by a committee of
Disinterested Directors designated by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, or (C) if there are no
such Disinterested Directors or, if such Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee and, if it is so determined that Indemnitee
is entitled to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall cooperate with
the person, persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or Expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee’s entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(b)
In the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to
Section 11(a)
, the
Independent Counsel shall be selected as provided in this
Section 11(b)
. If
a Change in Control shall not have occurred, the Independent Counsel shall be
selected by the Board, and the Company shall give written notice to Indemnitee
advising [him][her] of the identity of the Independent Counsel so
selected. If a Change in Control shall have occurred, the Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall request that
such selection be made by the Board, in which event the preceding sentence shall
apply), and Indemnitee shall give written notice to the Company advising it of
the identity of the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within ten (10) days after
such written notice of selection shall have been given, deliver to the Company
or to Indemnitee, as the case may be, a written objection to such selection;
provided
,
however
, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in
Section 2
,
and the objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If such written objection
is so made and substantiated, the Independent Counsel so selected may not serve
as Independent Counsel unless and until such objection is withdrawn or a court
has determined that such objection is without merit. If, within
twenty (20) days after the later of submission by Indemnitee of a written
request for indemnification pursuant to
Section 10(a)
and the final disposition of the Proceeding, no Independent Counsel shall have
been selected and not objected to, either the Company or Indemnitee may petition
a court of competent jurisdiction for resolution of any objection which shall
have been made by the Company or Indemnitee to the other’s selection of
Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the Court or by such other person as the Court shall
designate, and the person with respect to whom all objections are so resolved or
the person so appointed shall act as Independent Counsel under
Section 11(a)
. Upon
the due commencement of any judicial proceeding or arbitration pursuant to
Section 13(a)
,
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
Section
12.
Presumptions and Effect of
Certain Proceedings.
(a)
In making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall, to the fullest
extent not prohibited by law, presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with
Section 10(a)
,
and the Company shall, to the fullest extent not prohibited by law, have the
burden of proof to overcome that presumption in connection with the making by
any person, persons or entity of any determination contrary to that
presumption. Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior to
the commencement of any action to enforce this Agreement that indemnification is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Company (including by its
directors or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of
conduct.
(b)
Subject
to
Section
13(e)
, if the person, persons or entity empowered or selected under
Section 11
to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within sixty (60) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall, to the fullest extent not prohibited by law, be deemed to have been made
and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law;
provided
,
however
, that such
60-day period may be extended for a reasonable time, not to exceed an additional
thirty (30) days, if the person, persons or entity making the determination with
respect to entitlement to indemnification in good faith requires such additional
time for the obtaining or evaluating of documentation and/or information
relating thereto; and
provided
,
further
, that the
foregoing provisions of this
Section 12(b)
shall
not apply if the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to
Section
11(a)
.
(c)
The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of
nolo
contendere
or its
equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of Indemnitee to indemnification or create
a presumption that Indemnitee did not act in good faith and in a manner which
[he][she] reasonably believed to be in or not opposed to the best interests of
the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that [his][her] conduct was unlawful.
(d)
Reliance as Safe
Harbor
. For purposes of any determination of good faith,
Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is
based on the records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for
the Enterprise or on information or records given or reports made to the
Enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Enterprise. The
provisions of this
Section 12(d)
shall
not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
(e)
Actions of
Others
. The knowledge and/or actions, or failure to act, of
any director, officer, employee or agent of the Enterprise shall not be imputed
to Indemnitee for purposes of determining the right to indemnification under
this Agreement.
Section
13.
Remedies of
Indemnitee.
(a)
Subject
to
Section
13(e)
, in the event that (i) a determination is made pursuant to
Section 11
that
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to
Section 9
, (iii)
no determination of entitlement to indemnification shall have been made pursuant
to
Section
11(a)
within ninety (90) days after receipt by the Company of the request
for indemnification, (iv) payment of indemnification is not made pursuant to
Sections 5
or
6
or the
last sentence of
Section 11(a)
within
ten (10) days after receipt by the Company of a written request therefor, (v)
payment of indemnification pursuant to
Sections 3
,
4
or
7
is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification, or (vi) in the event that the Company or any other person takes
or threatens to take any action to declare this Agreement void or unenforceable,
or institutes any litigation or other action or Proceeding designed to deny, or
to recover from, the Indemnitee the benefits provided or intended to be provided
to the Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by
a court of [his][her] entitlement to such indemnification or advancement of
Expenses. Alternatively, Indemnitee, at [his][her] option, may seek
an award in arbitration to be conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration
Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within one hundred eighty (180) days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this
Section 13(a)
;
provided
,
however
, that the
foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce [his][her] rights under
Section 5
. The
Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.
(b)
In the
event that a determination shall have been made pursuant to
Section 11(a)
that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this
Section 13
shall
be conducted in all respects as a
de
novo
trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any judicial proceeding or arbitration
commenced pursuant to this
Section 13
, the
Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c)
If a
determination shall have been made pursuant to
Section 11(a)
that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in any judicial proceeding or arbitration commenced pursuant
to this
Section 13
,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition against such indemnification under applicable law.
(d)
The
Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 13
that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement. It
is the intent of the Company that the Indemnitee not be required to incur legal
fees or other Expenses associated with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. The
Company shall indemnify Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (within ten (10) days after receipt by the
Company of a written request therefor) advance, to the extent not prohibited by
law, such Expenses to Indemnitee, which are incurred by Indemnitee in connection
with any action brought by Indemnitee for indemnification or advance of Expenses
from the Company under this Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of Expenses or insurance recovery, as the case may be.
(e)
Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior to
the final disposition of the Proceeding.
Section
14.
Non-exclusivity; Survival of
Rights; Insurance; Subrogation.
(a)
The
rights of indemnification and to receive advancement of Expenses as provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Certificate of
Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution
of directors, or otherwise (collectively, the “Other Indemnity
Provisions”). No amendment, alteration or repeal of this Agreement or
of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in
[his][her] Corporate Status prior to such amendment, alteration or
repeal. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. For
purposes of greater clarity, (
a
) to the extent that
the Indemnitee otherwise would have any greater right to indemnification under
any Other Indemnity Provision, the Indemnitee will be deemed to have such
greater right hereunder and (
b
) to the extent that
any change is made to any Other Indemnity Provision that permits any greater
right to indemnification than that provided under this Agreement as of the date
hereof, the Indemnitee will be deemed to have such greater right
hereunder. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
(b)
To the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the Company
or of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person serves at the request of the Company,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any such
director, officer, employee or agent under such policy or
policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(c)
In the
event of any payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d)
The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (or for which advancement is provided
hereunder) if and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or
otherwise.
(e)
The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
employee or agent of any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise
shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of Expenses from such other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise.
Section
15.
Duration of Agreement;
Successors.
This Agreement shall continue until and terminate
upon the later of: (a) ten (10) years after the date that Indemnitee shall have
ceased to serve as [an officer][a director] of the Company or (b) upon the final
disposition or termination of any Proceeding then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 13
relating thereto. The Company will require any successor (whether
direct or indirect, by purchase of stock or assets, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance satisfactory to the
Indemnitee and [his] [her] counsel, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This
Agreement shall be binding upon the Company and any successor to the Company,
including, without limitation, any person acquiring directly or indirectly all
or substantially all of the business or assets of the Company, whether by
purchase, merger, consolidation, reorganization or otherwise (and such successor
will thereafter be deemed the “Company” for purposes of this Agreement), but
will not otherwise be assignable, transferable or delegatable by the Company,
and shall inure to the benefit of Indemnitee and [his][her] heirs, executors and
administrators.
Section
16.
Severability.
If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including
without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; (b)
such provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.
Section
17.
Enforcement.
(a)
The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as [an officer][a director] of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in serving as [an
officer][a director] of the Company.
(b)
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof;
provided
,
however
, that this
Agreement is a supplement to and in furtherance of the Certificate of
Incorporation, the Bylaws and applicable law, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder.
Section
18.
Modification and
Waiver.
No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions of this Agreement
nor shall any waiver constitute a continuing waiver.
Section
19.
Notice by
Indemnitee.
Indemnitee agrees promptly to notify the Company
in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter
which may be subject to indemnification or advancement of Expenses covered
hereunder. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation which it may have to the Indemnitee
under this Agreement or otherwise.
Section
20.
Notices.
All notices, requests,
demands and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given if (a) delivered by hand to the party to
whom said notice or other communication shall have been directed,
(b) mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed, (c) mailed by
reputable overnight courier to the party to whom said notice or other
communication shall have been directed or (d) sent by facsimile transmission,
with receipt of confirmation that such transmission has been
received:
(a)
If to
Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide to the Company.
(b)
If to the
Company to 251 O’Connor Ridge Blvd., Suite 300, Irving, Texas 75038, Facsimile
No.: (972) 281-4475, Attn: General Counsel, or to any other address as may have
been furnished to Indemnitee by the Company.
Section
21.
Contribution.
To
the fullest extent permissible under applicable law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to
the amount incurred by Indemnitee, whether for judgments, fines, penalties,
excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in
connection with any claim relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all
of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative
fault of the Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or transaction(s).
Section
22.
Applicable Law and Consent
to Jurisdiction.
This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware. Except with respect to any
arbitration commenced by Indemnitee pursuant to
Section 13(a)
, the
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement shall
be brought only in the Chancery Court of the State of Delaware (the “
Delaware Court
”), and
not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of or
in connection with this Agreement, (iii) waive any objection to the laying of
venue of any such action or proceeding in the Delaware Court, and (iv) waive,
and agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court has been brought in an improper or inconvenient
forum.
Section
23.
Waiver of Jury
Trial.
Each Party acknowledges and agrees that any controversy
that may arise under this Agreement is likely to involve complicated and
difficult issues, and therefore it hereby irrevocably and unconditionally waives
any right it may have to a trial by jury in respect of any litigation directly
or indirectly arising out of or relating to this Agreement, or the breach,
termination or validity of this Agreement, or the transactions contemplated by
this Agreement. Each Party certifies and acknowledges that (
a
) no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver, (
b
) it understands and
has considered the implications of this waiver, (
c
) it makes this
waiver voluntarily, and (
d
) it has been
induced to enter into this Agreement by, among other things, the mutual waivers
and certifications contained in this Section 23.
Section
24.
Identical
Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
Section
25.
Miscellaneous.
The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
[The
Remainder of this Page Is Intentionally Left Blank.]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the
day and year first above written.
DARLING INTERNATIONAL
INC.
By: ____________________________
N
ame:
____________________________
Title:
_____________________________
INDEMNITEE
By: ____________________________
N
ame:
____________________________
Address:
__________________________
Darling
International Inc.
Code
of Business Conduct
As
Amended and Restated on February 21, 2008
Table
of Contents
|
Our
Commitment
|
|
1
|
|
|
Statement
of Our Ethical Principles
|
|
2
|
|
|
Compliance
|
|
3
|
|
|
Using
Individual Judgment
|
|
3
|
|
|
Discipline
and Mandatory Sanctions
|
|
4
|
|
|
Conducting
the Company’s Business
|
|
5
|
|
|
Dealing
with Customers
|
|
5
|
|
|
Dealing
with Suppliers
|
|
5
|
|
|
Dealing
with Each Other
|
|
5
|
|
|
Health
and Safety
|
|
6
|
|
|
Disparagement
|
|
6
|
|
|
Confidential
Information
|
|
6
|
|
|
Use
of Electronic Mail, Voice Mail and the Internet
|
|
7
|
|
|
Gifts,
Meals and Entertainment
|
|
7
|
|
|
Improper
Payments
|
|
7
|
|
|
Political
Contributions
|
|
8
|
|
|
Consultants
|
|
8
|
|
|
Nepotism
|
|
8
|
|
|
Legal
Compliance
|
|
9
|
|
|
Antitrust
Laws
|
|
9
|
|
|
Environmental
Actions
|
|
9
|
|
|
Disclosure
|
|
10
|
|
|
Accurate
Records and Reporting
|
|
10
|
|
|
Our
Responsibilities to the Company
|
|
11
|
|
|
Conflicts
of Interest
|
|
11
|
|
|
Examples
of Prohibited Conflicts of Interest
|
|
11
|
|
|
Related
Party Conflicts
|
|
11
|
|
|
Unauthorized
Use of Company Property or Services
|
|
12
|
|
|
Safeguarding
Company Assets
|
|
12
|
|
|
Corporate
Opportunities
|
|
12
|
|
|
Media
Contact and Public Discussion
|
|
12
|
|
|
Insider
Trading
|
|
12
|
|
|
Code
Amendments and Waiver
|
|
13
|
|
|
Contact
Information
|
|
14
|
|
|
The
Company’s Independent Omsbudsman
|
|
14
|
|
|
Form
of Acknowledgement
|
|
15
|
|
Darling
International Inc. Code of Business Conduct
Our
Commitment
This code
of conduct (the “Code”) reaffirms our commitment to integrity, honesty and
accountability, as the cornerstone of the behavior of the officers, directors
and employees of Darling International Inc. and all others who act on our
behalf. As used in this Code, the term “Company” includes Darling
International Inc. and all of its subsidiaries, and the term “employee” includes
all of our officers and directors. Nothing in this Code is intended
to increase the obligations or liability of the Company or of any officer or
director beyond that which may be imposed by law, rule or
regulation.
All
officers and employees of the Company are responsible for acting in accordance
with high ethical standards, based on the “Statement of Our Ethical Principles”
set forth on the following page.
The
policies contained in this Code are to assist you in making the right choices
when confronted with a difficult situation.
By
following the Code, you will help ensure that the Company conducts its business
for the benefit of all its stakeholders — that is, our shareholders, customers,
suppliers, host communities and fellow employees.
The
willingness of each of us to raise ethical concerns and promptly report
violations of this Code is essential. The Company will take every
action possible to ensure that no one will suffer from retaliation as a result
of raising an ethical concern or questioning a Company practice in good
faith.
Individuals
in management positions have a special responsibility to demonstrate high
ethical standards in their behavior and to create an environment where
questionable practices are challenged and unethical or illegal practices are not
tolerated.
Ultimately,
the responsibility for ethical behavior rests with you in the thoughtful
exercise of your independent judgment.
This Code
does not cover every situation, and exceptions to the policies outlined here may
exist. For assistance in determining how to apply this Code, see
“
Contact Information
” on
the last page of this Code.
Darling
International Inc. Code of Business Conduct
Statement
of Our Ethical Principles
|
·
|
We
will deal fairly and honestly with those who are impacted by our actions,
including our customers, suppliers, competitors and fellow employees, and
treat them as we would expect them to treat us if the situation were
reversed.
|
|
·
|
We
will respect the dignity of each
individual.
|
|
·
|
We
will conduct our business in accordance with all applicable laws and
administrative and governmental rules and regulations, including laws
relating to disclosure of public information and the regulations of any
stock exchange upon which our securities are listed. We will not pursue
any business opportunity or practice that could result in a violation of
applicable law, rules, regulations or these
principles.
|
|
·
|
We
will undertake only those business activities that will withstand public
ethical scrutiny.
|
|
·
|
We
will disclose promptly any conflict or apparent conflict of interest we
may have regarding our responsibilities to the Company and remove the
conflict or apparent conflict where required. We will avoid
conflicts between our personal and professional
interests.
|
|
·
|
We
will promote relationships based on mutual trust and respect and provide
an environment where individuals may question a Company practice without
suffering from retaliation or a career
disadvantage.
|
|
·
|
Each
of us will be personally accountable for adherence to this
Code.
|
Darling
International Inc. Code of Business Conduct
Compliance
Each
employee is responsible for understanding and complying with this
Code. Company managers are responsible for assisting employees in
understanding the Code and being aware of the ethical implications of their
business behavior.
It takes
courage to raise an ethical issue — especially if it involves a situation in
your work area. However, the Company will support you in carrying out
your responsibility.
The best
course of action when you have an ethical problem is to discuss it with the
appropriate person within the Company. The Company has a strict
policy prohibiting retaliation against any employee for reporting or raising a
question in good faith about facts or circumstances that may indicate a
violation of this Code. See “
Contact Information”
on the
last page of this Code.
In
Particular:
|
·
|
You
have a responsibility to report promptly any suspected violations of this
Code. There are several avenues available to you for reporting
any such suspected violation. See
“Contact Information”
on
the last page of this Code.
|
|
·
|
No
employee will suffer any retaliation, adverse action or career
disadvantage for questioning a Company practice or reporting a suspected
violation of this Code or other irregularity in good
faith.
|
|
·
|
The
Company and/or ombudsman will investigate possible
violations. In doing so, rights of all parties concerned will
be respected.
|
|
·
|
The
identity of employees reporting possible violations will be kept
confidential unless the Company is required to reveal it in order to
enforce this Code or by applicable law or judicial
process.
|
|
·
|
If
a violation is found, the Company will take appropriate disciplinary
action, up to and including termination and filing of criminal
charges.
|
Using Individual
Judgment
. This Code will help all of us better understand the
ethical standards that govern the Company. In deciding the
proper course of action, consider the following:
|
·
|
Is
my action consistent with approved Company
procedures?
|
|
·
|
Have
I been asked to misrepresent information or deviate from normal
procedure?
|
|
·
|
Does
my action give the appearance of
impropriety?
|
|
·
|
Could
my action bring discredit to the Company if
disclosed?
|
|
·
|
Is
my action in accord with all applicable laws, rules and
regulations?
|
Darling
International Inc. Code of Business Conduct
|
·
|
Can
I defend my action to my supervisor, other employees, the Board of
Directors, or, if applicable, to the general
public?
|
|
·
|
Does
my action meet my personal code of
behavior?
|
|
·
|
Does
my action conform to the spirit of this
Code?
|
Discipline
and Mandatory Sanctions
The Code
is important to the Company and must be taken seriously by all
employees. Accordingly, violations of the Code will not be tolerated
and will result in appropriate disciplinary action in accordance with Company
regulations and applicable collective bargaining agreements. The
Company intends to use every reasonable effort to prevent violations of the
Code. Furthermore, if an investigation of a violation under this Code
shows that the employee reporting the violation falsified any information
regarding the violation, that employee will be subject to appropriate
disciplinary action.
Darling
International Inc. Code of Business Conduct
Conducting
the Company’s Business
In
conducting the business of the Company, we deal with a variety of people and
organizations, including customers, suppliers and competitors, as well as
community representatives and other employees.
|
·
|
All
of our business relationships should be based on honesty and
fairness. We do not take advantage of anyone through
manipulation, concealment, abuse of confidential information,
misrepresentation of material facts, or any other unfair-dealing
practice.
|
|
·
|
We
are truthful in our representation of the Company. If there is
a mistake or misunderstanding, we correct it
immediately.
|
|
·
|
We
want long-term, mutually beneficial business relationships, and
trustworthiness is essential to establish and keep
them.
|
Dealing with
Customers
. Serving customers is the focal point of our
business. Satisfying customers is the best way to ensure business
success.
|
·
|
We
must work with customers to understand and anticipate their needs, and
identify and remove obstacles customers may see to doing business with
us.
|
|
·
|
We
should respond promptly and courteously to customer inquiries and
requests.
|
|
·
|
We
must accurately represent our products and services in our marketing,
advertising and sales efforts.
|
|
·
|
We
must provide products and services of the highest quality. We
need to understand what represents “highest quality” in the eyes of the
customer. We must regularly measure customer satisfaction and
continuously improve our quality.
|
Dealing with
Suppliers
. Our relationships with our suppliers are critical
to the success of our Company.
|
·
|
We
should establish a partnering environment of mutual trust in all supplier
dealings.
|
|
·
|
We
must make every effort to live up to commitments made to
suppliers.
|
|
·
|
We
must treat suppliers’ premises, property and personnel with care and
respect.
|
Dealing with Each
Other
. We recognize the value and worth of each individual and
work toward providing a working climate which is protective of the well-being of
all employees. We evaluate individuals for employment and promotion
on a non-discriminatory basis.
The diversity of the
Company’s employees is a tremendous asset. We are firmly committed to complying
with all applicable laws with regard to equal opportunity, discrimination and
harassment.
Darling
International Inc. Code of Business Conduct
Health and
Safety
. The Company strives to provide each employee with a
safe and healthful work environment. Each employee has responsibility
for following safety and health rules and practices and for complying with the
company’s policies on workplace conduct, as such may be amended from time to
time.
Disparagement
. We
should not make false, misleading or disparaging remarks about individuals or
organizations or their products and services.
|
·
|
In
particular, we do not disparage our competitors or their products or
employees. We should sell
our
products and
services on their merits.
|
|
·
|
If
we make comparisons between our products and those of a competitor, the
comparisons must be accurate and
factual.
|
Confidential
Information
.
|
·
|
Confidential Information
Belonging to Others
. In the course of our business, we regularly
receive information from customers, suppliers’ and other third
parties. If we come into possession of information from another
party that is marked confidential, or that we have reason to believe may
be confidential, we should consult our General Counsel to ensure that any
use of the information is appropriate and within the law. We
should not use unauthorized information from another entity for our
benefit. We must not sign any agreement regarding proprietary
or confidential information (whether of the Company or another party)
unless the agreement is first approved by our General
Counsel. If we have received confidential or proprietary
information pursuant to a written agreement, we must comply with the terms
of the agreement.
|
|
·
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Confidential Information
Belonging to the Company.
All non-public information received in
the course of employment should be treated as information that is
proprietary and confidential. Proprietary and confidential
information requiring protection includes all information that might be of
use to competitors, or harmful to the Company if disclosed. It includes,
but is not limited to, customer lists, materials developed for in-house
use (including software), administrative and manufacturing processes,
business plans, information regarding routing, pricing strategies and any
formulas, devices and compilations of information which could give the
Company a competitive or other business advantage. No Company
confidential or proprietary information should be (i) used for any purpose
except in the course of furthering the Company’s business or (ii)
disclosed to any person who is not a Company employee or director, except
with the express approval of the Company’s General Counsel. No
employee has any personal rights in or to any confidential or proprietary
information of the Company. The prohibition against disclosing
confidential or proprietary Company information includes not only actions
during the period in which we are employed by the Company, but also
actions during any period after we are no longer employed by the
Company. The restrictions contained in this paragraph are in
addition to any restrictions contained in any other agreement, covenant,
or document to which an employee, officer or director is a party or is
otherwise subject.
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Darling
International Inc. Code of Business Conduct
Use of Electronic Mail, Voice Mail
and the Internet.
We encourage the use of electronic mail and
voice mail because these methods of communication are efficient and
effective. We also encourage the use of the Internet as a valuable
source of information about our vendors, suppliers, business partners and
competitors. However, we must ensure that electronic mail, voice mail
and the Internet are used appropriately. Messages sent or received
and data gathered utilizing the Company’s information technology systems,
including computers, telephones and Internet access, are not
private.. E-mail, voice mail and the Internet must be used
responsibly and are intended for business purposes only. Although
occasional personal use of electronic communication systems may be
understandable and acceptable at times, this is a privilege that the Company
reserves the right to control and monitor. Under no circumstances may
e-mail, voice mail or the Internet be used for any illegal or unethical purpose,
or for any other purpose that violates the Code or our policies that are put
into place from time to time, nor for purposes that could lead to liability or
cause harm to the Company. The Internet, in particular, also may not
be used for transmitting, retrieving or storing any communications of an
obscene, discriminatory, harassing or otherwise inappropriate
nature. The Company retains the sole right to determine whether or
not employees are using these methods of communication properly. Each
outgoing Internet e-mail message is identified as originating with the Company.
As a result, like other official communications, e-mail messages sent via
the Internet must responsibly represent the Company. The Company has
policies on Internet and e-mail usage. Each of us is required to
comply with these policies, as they may be revised from time to
time.
Gifts, Meals and
Entertainment
. Except when dealing with representatives of the
federal government, it is appropriate to receive or give customary business
amenities such as meals, provided they are associated with a business purpose,
reasonable in cost, and appropriate as to time and place.
We do not
give or receive cash gifts. We do not give or receive other gifts, meals or
entertainment unless:
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They
are limited in value and cannot be viewed as a bribe, kickback or
payoff.
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They
do not violate any law, regulation or generally accepted ethical
standards, including the standards of the other party’s
organization.
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If there
is concern about the appropriateness of giving or receiving a gift, contact the
Company’s General Counsel.
Improper
Payments
. Except for payments by the Company to registered
lobbyists to influence legislation or regulations affecting the rendering
industry, we will not directly or indirectly offer or solicit any kind of
payments or contributions for the purpose of:
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Persuading
any official or other third parties (such as employees of other companies)
to fail to perform or to improperly perform their
duties.
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Influencing
legislation or regulations, except through properly registered
lobbyists.
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Darling
International Inc. Code of Business Conduct
Political
Contributions
. Company resources must not be used to support
political parties or candidates.
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Individual
employees are encouraged to support their own parties and candidates, but
they must do so on their own time and should not use Company
resources.
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If
a planned contribution could in any way be looked upon as involving
Company funds, property or services, the Company’s General Counsel should
be consulted prior to the contribution being
made.
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Consultants
. Consultants
and agents retained by the Company must adhere to our Code in the course of
their work on behalf of the Company.
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Special
care should be taken to ensure no conflict of interest exists, that the
consultant is genuinely qualified in the business for which it was
retained, that the compensation is reasonable for the services being
performed, and that there is a written agreement outlining the statement
of work and under which the consultant agrees to abide with all applicable
laws and report any conflicts of
interest.
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Consultants
and agents must not be retained or permitted to take any action that is
illegal or improper. What we may not do directly we cannot do
indirectly by acting through another
party.
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The
Company’s General Counsel should be consulted before any written agreement
with a consultant is signed.
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Nepotism
. The
Company does not prohibit employment of two or more individuals who are related
by blood, marriage or domestic partnership;
however, the
relationship must be promptly disclosed to the appropriate General Manager and
the Executive Vice President, Finance and Administration (or person performing a
similar function), prior to the hiring of any such individual or, if any such
relationship arises following employment, disclosure must be given promptly to
the appropriate General Manager and the Executive Vice President, Finance and
Administration (or person performing a similar function). Each
employee who is so related is responsible for conducting himself or herself
professionally during the course of his or her duties and avoiding any
appearance of favoritism or other impropriety.
Darling
International Inc. Code of Business Conduct
Legal
Compliance
Each
employee and director must become familiar and comply with the laws, rules and
regulations applicable to his or her area of responsibility, including
regulations applicable to any exchange upon which the Company’s securities are
listed.
Any
employee who is responsible for activity involving the application of a
particular law, rule or regulation should consult with and be guided by the
advice of the Company’s General Counsel. Decisions regarding the
application of the various laws, rules and regulations should not be made
without that advice.
Antitrust
Laws
. Antitrust laws are intended to preserve competition by
prohibiting actions that could unreasonably restrain the functioning of a free
and competitive marketplace.
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Any
agreement that could limit competition in a specific market may be a
violation of these laws and must be reviewed by Company’s General Counsel
prior to execution.
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Because
verbal exchanges can be viewed as an agreement, we must exercise caution
whenever we meet or talk with competitors. Any contact with
competitors should be documented by completion of an Antitrust Compliance
Certificate.
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We
should avoid discussions with competitors related to market share,
projected sales for any specific product or service, revenues and
expenses, production schedules, inventories, unannounced products and
services, pricing strategies, marketing, and of course, any proprietary or
confidential Company information.
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These
requirements also apply to informal contact we may have with competitors,
including those at trade shows or meetings of professional
organizations.
Each
employee is required to comply with the Company’s Antitrust Compliance Manual
and each employee should use the reporting forms in the manual.
Environmental
Actions
. As a Company and as employees, we must exercise good
judgment with regard to the environmental aspects of our use of our
manufacturing processes. We must comply with all applicable laws and
regulations requiring us to reduce or eliminate the generation, discharge and
disposal of hazardous materials.
Darling
International Inc. Code of Business Conduct
Disclosure
Accurate Records and
Reporting
. All Company officers and employees – and, in
particular, the chief executive officer, the chief financial officer, the
controller and the principal accounting officer – have a responsibility to
promote the accuracy, adequacy and completeness of the Company’s accounting
records. All employees, officers and directors should immediately
report any false, incomplete or misleading entries of which they have
knowledge. Furthermore, each of the chief executive officer, the
chief financial officer, the controller and the principal accounting officer
must (i) act in good faith, responsibly, and with due care, competence and
diligence, without misrepresenting material facts or allowing his or her
independent judgment to be subordinated to the judgment of others, and (ii)
produce full, fair, accurate, timely and understandable disclosure as required
by law in reports and documents that the Company files with, or submits to, the
Securities and Exchange Commission and in other public
communications. Company records must reflect an accurate and
verifiable record of all transactions.
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Information
that is recorded and submitted to another party, whether inside or outside
the Company, and whether to a private party or a governmental entity, must
be accurate, timely and complete. It should honestly reflect
the underlying transaction or material. Reports or records
should not be used to mislead those who receive them, or to improperly
conceal any fact or action. It is the policy of the Company to
make full, fair, accurate, timely and understandable disclosure of our
business and financial condition, consistent with applicable law, (i) in
our periodic reports filed with the Securities and Exchange Commission and
(ii) in other communications to securities analysts, rating agencies and
investors. We take necessary measures to ensure that
dissemination of information complies with Regulation FD promulgated by
the Securities and Exchange Commission. It is also our policy
to comply with applicable law, rules and regulations when filing
governmental reports related to environmental, tax, employment and other
matters. If any employee becomes aware of any
violation of this policy, he or she should report such violation as
provided in this Code.
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Any
effort to mislead, inappropriately influence or coerce the independent
auditors or a member of the internal audit staff concerning issues related
to audit, accounting or financial disclosure has serious legal
consequences for the perpetrator, including criminal sanctions, as well as
for the Company, and is strictly prohibited. If any employee
becomes aware of any violation of this policy, he or she should report
such violation as provided in this
Code.
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Darling
International Inc. Code of Business Conduct
Our
Responsibilities to the Company
Conflicts of
Interest
. Darling employees are expected to avoid situations
where their personal interests conflict with the interests of the
Company. Employees should avoid any activity, investments or
interests that might reflect badly on the Company or damage its
reputation. A conflict situation can arise when an employee takes
actions or has interests that may make it difficult to perform his or her
Company work objectively and effectively. Employees should never seek
or receive improper personal benefits as a result of their positions with the
Company. Some examples of conflicts of interest appear
below. However, these are examples only, and each employee is
expected to consider carefully whether or not a potential conflict exists in any
given set of circumstances. The appearance of a conflict of interest can be just
as damaging as an actual conflict, and should be avoided.
Examples
of Prohibited Conflicts of Interest
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An
employee should not invest in a customer or supplier of the
Company. However, ownership of 2% or less of the stock of a
publicly-owned Company would not normally be considered a
conflict.
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An
employee should not market products or services that compete with any
product or service marketed by the
Company.
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An
employee should not work for, or solicit favors from, a competitor,
customer, or supplier.
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An
employee should not seek or accept a loan or guaranty of an obligation in
circumstances where a conflict of interest would, or could be perceived
to, arise.
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Related
Party Conflicts
Potential
for conflicts of interest also exist where a Related Party engages in any of the
activities listed above, in particular, or other activities that could be
perceived as creating a conflict of interest for the employee. A
“Related Party” is an employee’s child, stepchild, parent, stepparent, spouse,
sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, and any person (other than a tenant or
employee) sharing the household of the employee. If a
Related Party engages or proposes to engage in any of the activities listed
above, or any other activity that might create the appearance of a conflict of
interest for the employee, the General Counsel’s office should be contacted so
that appropriate measures can be put into place to avoid either an actual
conflict of interest or the appearance of a conflict of interest.
If you
are not sure whether a circumstance or situation is covered by this provision,
you should discuss it with the Company’s General Counsel as soon as
possible.
Any
waivers of this Conflict of Interest policy must be in writing and be
pre-approved by the Company’s General Counsel.
Darling
International Inc. Code of Business Conduct
Unauthorized Use of Company Property
or Services
. Company property and services must not be used
for the personal benefit of an employee or someone else unless the use has been
properly approved in writing for general employee use or for a specified
purpose.
Safeguarding Company
Assets
. Each of us is responsible for protecting Company
assets and for using Company property appropriately and with due
care. All Company assets should be used only for a legitimate
business purpose. Managers are responsible for setting up and keeping
good controls to protect assets from loss or unauthorized use.
Each of
us is responsible for assisting in preventing waste and theft and assuring the
integrity of such controls.
Corporate
Opportunities.
Business opportunities are corporate
assets. Employees should not pursue, directly or indirectly (for
example, by involving a family member or friend), a Company corporate
opportunity unless the Company has determined that it will not pursue such an
opportunity or otherwise compete for such an opportunity. An employee
cannot take advantage, directly or indirectly, of any business opportunity that
is discovered through the use of Company property or information, or that comes
to the employee’s attention because of his or her position with the
Company. In addition, an employee must not use Company property,
information or position for personal gain.
Media Contact and Public
Discussion
. News media contact and responses and public
discussion of Company business should only be made through the Company’s
authorized spokesperson(s). No employee should speak or otherwise
communicate with a news reporter or other member of the media without first
obtaining the consent of the General Counsel.
Insider
Trading
. Federal law prohibits employees, directors and others
from buying or selling Company securities, such as the Company’s common stock,
based on information that is not publicly available.
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Employees
may buy and sell Company securities. However, no employee may
buy or sell Company securities at a time when he or she has nonpublic
information of a material nature. Inside information that might
be material includes earnings estimates, significant business
developments, expansion or curtailment of operations, sale or purchase of
substantial assets or other activity of significance. Whether or not
nonpublic information is material is a legal judgment that is based on a
sophisticated understanding of applicable law. No employee
should try to make this judgment himself or herself. If any
employee believes he or she has nonpublic information, the Company’s
securities should not be bought or sold without first contacting the
Company’s General Counsel to ensure that such purchase or sale is within
applicable law.
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In
addition, employees should never provide nonpublic information about the
Company to family, friends or any other person, including Company
employees who do not have a business reason to know such
information.
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Darling
International Inc. Code of Business Conduct
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Each
employee is required to comply with the Company’s Policy on Securities
Transactions. Please note the requirement for pre-clearance of
all transactions involving Company
securities.
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Code
Amendments and Waiver
The
Company will review and re-assess the adequacy of the Code periodically and make
amendments to it as the Company deems appropriate.
The most
current version of the Code is available to all employees on the Company’s
website. You will receive a notice when a new version of the Code is
posted on the website. It is your responsibility to review the Code
periodically (particularly when you have received notice of posting of a new
version) to ensure that you understand and are adhering to the
Code.
Only the
Board of Directors of the Company may approve any waiver of the Code with
respect to any executive officer or director. Such a waiver will be
promptly disclosed to the shareholders of the Company on the Company’s
website.
The
General Counsel has authority to approve a waiver of the Code for nonexecutive
officers or other Company employees.
Any
waiver of the Code must be in writing.
Darling
International Inc. Code of Business Conduct
Contact
Information
No Code
of Conduct can cover all potential conflicts or ethical concerns that an
employee will encounter. If you have questions regarding the
application of this Code, or feel that it is appropriate to ask for a waiver of
the application of any provision of this Code, please contact the Company’s
General Counsel as follows:
By
Mail:
Darling
International Inc.
Attention: General
Counsel
251
O’Connor Ridge Blvd., Suite 300
Irving,
Texas 75038
By
Phone:
972.717.0300
The Company’s
Independent Omsbudsman.
Alternatively, an employee can raise
ethical concerns and issues and report suspected Code violations, on
a confidential basis, by contacting the Company’s independent omsbudsman at
1-800-501-7585 (Settlement Solutions Inc.). This is a private agency
and is not operated by Darling International Inc. The ombudsman will
contact the Chairman of the Audit Committee, who is a non-employee independent
member of the Darling International Inc. Board of Directors, who will take the
necessary actions to ensure compliance with the Code.
Darling
International Inc. Code of Business Conduct
ACKNOWLEDGEMENT
I have
received and read the Darling International Inc. Code of Business Conduct (the
“
Code
”). I
understand that the Code represents the policies of Darling International Inc.,
and I agree to abide by the Code when acting for or on behalf of Darling
International Inc. I understand that any material violation of the
Code may subject me to disciplinary action, up to and including discharge;
provided however
, by signing
this Acknowledgement, I do not waive any rights I may have under any applicable
collective bargaining agreement.
_______________________________________
Employee
Name (Printed)
_______________________________________
Employee
Signature
______________________
Date
(Company
Copy)