exv10w2






Exhibit 10.2




INDEMNIFICATION AGREEMENT




     THIS AGREEMENT (“Agreement”) is made and entered into as of this            day of                , 20     
between K-V Pharmaceutical Company, a Delaware corporation (the “Company”), and
                                         (“Indemnitee”).



RECITALS




          WHEREAS, Indemnitee is serving as an officer of the Company, and as such is performing a
valuable service for the Company; and




          WHEREAS, competent and experienced persons are becoming increasingly reluctant to serve
publicly-held corporations as officers unless they are provided with adequate protection through
liability insurance and adequate company indemnification against risks of claims and actions
against them arising out of their service to the corporation; and




          WHEREAS, the Board of Directors has determined that the ability to attract and retain
qualified persons to serve as officers is in the best interests of the Company and its
stockholders, and that the Company should act to assure such persons that there will be adequate
certainty of protection through insurance and indemnification against risks of claims and actions
against them arising out of their service to and activities on behalf of the Company; and




          WHEREAS, Section 145 of the General Corporation Law of the State of Delaware (the “General
Corporation Law”) permits the Company to indemnify and advance expenses to its officers and
directors and to indemnify and advance expenses to persons who serve at the request of the Company
as directors, officers, employees, or agents of other corporations or enterprises; and




          WHEREAS, the Company has adopted provisions in its By-laws addressing indemnification and
advancement of expenses to its officers and directors, and providing that the Company may enter
into indemnification agreements which specify the rights and obligations of the Company and such
persons with respect to indemnification, advancement of expenses and related matters; and




          WHEREAS, the Company desires to have Indemnitee continue to serve in an Official Capacity (as
defined below), and Indemnitee desires to continue so to serve the Company, provided, and on the
express condition, that Indemnitee is furnished with the indemnity and other rights set forth in
this Agreement.




AGREEMENT




          Now, therefore, in consideration of Indemnitee’s continued service to the Company in
Indemnitee’s Official Capacity, the parties hereto agree as follows:




     1. Definitions. For purposes of this Agreement:



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     (a) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification or advancement of expenses is sought by
Indemnitee.



     (b) “Effective Date” means the date first written above.



     (c) “Expenses” shall include all costs including, but not limited to, reasonable attorneys’
fees, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, and delivery service fees, actually
and reasonably incurred in connection with investigating, prosecuting, defending (or preparing to
investigate, prosecute or defend) a Proceeding, or being or preparing to be a witness in a
Proceeding. Notwithstanding the foregoing, Expenses incurred in connection with investigating,
prosecuting, defending (or preparing to investigate, prosecute or defend) a Proceeding shall not
include any fees, costs, or expenses of more than one firm of attorneys with respect to such
Proceeding (other than one additional firm serving as local counsel if the Indemnitee is required
to retain local counsel under applicable local law or rules of any jurisdiction in which such
Proceeding is brought). Any counsel engaged by Indemnitee with respect to which Indemnitee seeks
advancement from or indemnification by the Company shall agree to abide by any guidelines
established by the Company covering the retention of counsel by the Company, such agreement being a
condition precedent to advancement or indemnification with respect to the fees, costs, or expenses
of any such counsel.



     (d) “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,
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. Notwithstanding the foregoing, a law firm or a member of a law firm
may serve as Independent Counsel for more than one indemnitee in relation to a single Proceeding or
a series of related Proceedings.



     (e) “Official Capacity” means Indemnitee’s corporate status as an officer and any other
fiduciary capacity in which Indemnitee serves the Company, its subsidiaries and affiliates, its
employee benefit plans, and any other entity which Indemnitee serves in such capacity at the
request of the Company’s CEO, its Board of Directors or any committee of its Board of Directors.
“Official Capacity” also refers to all actions which Indemnitee takes or does not take while
serving in such capacity.



     (f) “Proceeding” includes any actual, threatened, pending or completed inquiry, investigation,
action, suit, arbitration, or any other such actual or threatened action or occurrence, whether
civil, criminal, administrative or investigative, including any appeal or petition resulting from
such action or occurrence, whether or not initiated prior to the Effective Date, except a



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proceeding initiated by an Indemnitee pursuant to Section 8 of this Agreement to enforce his
or her rights under this Agreement.




     2. Service by Indemnitee. Indemnitee will serve and/or continue to serve in
Indemnitee’s Official Capacity faithfully and to the best of Indemnitee’s ability so long as
Indemnitee has or holds such Official Capacity. Indemnitee may at any time and for any reason
resign from Indemnitee’s Official Capacity (subject to any other contractual obligation or any
obligation imposed by operation of law).



     3. Indemnification.



     (a) General. Except as otherwise provided in this Agreement, the Company shall
indemnify Indemnitee to the fullest extent permitted by the General Corporation Law as such law may
from time to time be amended if Indemnitee is or was a party or is or was threatened to be made a
party to any Proceeding by reason of his or her Official Capacity or by reason of anything done or
not done by Indemnitee in his or her Official Capacity. The Company shall indemnify Indemnitee
against all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on
behalf of Indemnitee in any Proceeding, and Expenses actually and reasonably incurred by Indemnitee
in connection with such Proceeding, if Indemnitee is determined to have met the standard of conduct
set forth in Section 7(a).



     (b) Exceptions. Indemnitee shall receive no indemnification of Expenses:




(i) to the extent such indemnification of Expenses is finally determined by a Court
of competent jurisdiction (including through the expiration of applicable appeals
processes) to be prohibited by Delaware law or the public policies of Delaware;




(ii) to the extent payment is actually made to Indemnitee for the amount to which
Indemnitee would otherwise have been entitled under this Agreement pursuant to an
insurance policy, or another indemnity agreement or arrangement from the Company or
other person or entity;




(iii) for 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 Securities Exchange Act of 1934, as amended, or similar provisions of
state statutory law or common law;




(iv) in connection with any Proceeding, or part thereof (including claims and
permissive counterclaims) initiated by Indemnitee, except a judicial proceeding
pursuant to Section 8 to enforce rights under this Agreement, unless the Proceeding
(or part thereof) was authorized by the Board of Directors of the Company; and




(v) with respect to any claim, issue, or matter as to which Delaware law prohibits
such indemnification by reason of any adjudication of liability of Indemnitee to the
Company, unless and only to the extent that the Delaware Court of Chancery, or the
court in which such action or suit was brought, shall



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determine upon application that, despite an adjudication of liability but in view of
all the circumstances of the case, Indemnitee is entitled to indemnification for
such Expenses as such court shall deem proper.



     4. Advancement of Expenses.



     (a) General. Except as otherwise provided in Sections 3(b)(iv), 4(b), and 4(c)
hereof, and subject to the right of the Company to assume the defense of a Proceeding as provided
in Section 10(b) hereof, the Company shall advance Expenses to Indemnitee to the fullest extent
permitted by the General Corporation Law as such law may from time to time be amended if Indemnitee
is or was a party or is or was threatened to be made a party to any Proceeding by reason of his or
her Official Capacity or by reason of anything done or not done by Indemnitee in his or her
Official Capacity. The Company shall advance to Indemnitee Expenses actually and reasonably
incurred by Indemnitee in connection with such Proceeding within 15 business days after Indemnitee
provides a statement to Company requesting an advance and describing in reasonable detail the
Expenses incurred.



     (b) Undertaking In Connection With Request For Advancement. As a condition precedent
to the Company’s advancement of Expenses to Indemnitee, Indemnitee shall provide the Company, in
substantially the form attached as Exhibit 1, with (i) a written affirmation by such person
of his or her good faith belief that he or she has met the standard of conduct necessary for
indemnification under this Agreement and Section 145 of the General Corporation Law, and (ii) an
undertaking by or on behalf of Indemnitee to reimburse such amount if it is finally determined by a
court of competent jurisdiction after all appeals that Indemnitee is not entitled to be indemnified
against such Expenses by the Company as provided by this Agreement or otherwise. Indemnitee’s
undertaking to reimburse any such amounts is not required to be secured.



     (c) Termination of Advancement. Notwithstanding the foregoing, unless otherwise
determined pursuant to Section 9(a), no advance of Expenses shall be made by the Company to
Indemnitee in any Proceeding if a determination is reasonably and promptly made:




(i) by the Board of Directors by a two-thirds (2/3) majority vote of Disinterested
Directors, whether or not such two-thirds (2/3) majority constitutes a quorum; or




(ii) by a committee of Disinterested Directors designated by a two-thirds (2/3)
majority vote of such Disinterested Directors, whether or not such two-thirds (2/3)
majority constitutes a quorum,


that facts known to the decision-making party at the time such determination is made demonstrate
clearly and convincingly that Indemnitee acted in bad faith or in a manner that he did not
reasonably believe to be in or not opposed to the best interests of the Company.




     5. Indemnification for Expenses of Successful Party.



     Notwithstanding the limitations of any other provisions of this Agreement, to the extent that
Indemnitee is successful on the merits or otherwise in defense of any Proceeding, or in defense of
any claim, issue or matter therein, including, without limitation, the dismissal of any



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action without prejudice, or if it is ultimately determined that Indemnitee is otherwise
entitled to be indemnified against Expenses, Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred in connection therewith. If Indemnitee is partially successful on
the merits or otherwise in defense of any Proceeding, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred in connection with each claim, issue, or matter that is
successfully resolved on the merits or otherwise to the fullest extent permitted by law.




     6. Indemnification for Expenses Incurred in Serving as a Witness. Notwithstanding any
other provisions of this Agreement, Indemnitee shall be entitled to indemnification for and
advancement of all Expenses actually and reasonably incurred for serving as a witness by reason of
Indemnitee’s Official Capacity in any Proceeding with respect to which Indemnitee is not a party.



     7. Determination of Entitlement to Indemnification.



     (a) Standard of Conduct. Except as provided in Section 5 above, Indemnitee shall be
entitled to indemnification pursuant to this Agreement only upon a determination that Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe that Indemnitee’s conduct was unlawful.



     (b) Manner of Determining Eligibility. Upon written request of the Indemnitee for
indemnification, the entitlement of Indemnitee to such requested indemnification shall be
determined by:




(i) the Board of Directors by a majority vote of Disinterested Directors, whether or
not such majority constitutes a quorum; or




(ii) a committee of Disinterested Directors designated by majority vote of such
Disinterested Directors, whether or not such majority constitutes a quorum; or




(iii) Independent Counsel in a written opinion to the Board of Directors, or
designated committee of the Board of Directors, with a copy to Indemnitee, which
Independent Counsel shall be selected by majority vote of the Company’s directors at
a meeting at which a quorum is present, or a majority vote of the Disinterested
Directors, or committee of Disinterested Directors.



     (c) Payment of Costs of Determining Eligibility. The Company shall pay all costs
associated with its determination of Indemnitee’s eligibility for indemnification.



     (d) Presumptions and Effect of Certain Proceedings. The Secretary or the Assistant
Secretary of the Company shall, promptly upon receipt of Indemnitee’s request for indemnification,
advise in writing the Board of Directors or such other person or persons empowered to make the
determination requested in Section 7(b), and the Company shall thereafter promptly make such
determination or initiate the appropriate process for making such determination.



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(i) 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 7 of this Agreement, 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 pursuant to 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.




(ii) 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 Indemnitee 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 Indemnitee’s conduct was unlawful.
The Company acknowledges that a settlement or other disposition short of final
judgment may be successful if it permits a party to avoid expense, delay,
distraction, disruption and uncertainty. In the event that any action, claim or
proceeding to which Indemnitee is a party is resolved in any manner other than by
adverse judgment against Indemnitee (including, without limitation, settlement of
such action, claim or proceeding with or without payment of money or other
consideration) it shall be presumed that Indemnitee has been successful on the
merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of persuasion by
clear and convincing evidence.



     8. Remedies of Indemnitee.



     (a) In the event that (i) a determination is made pursuant to Section 7 of this Agreement that
Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses,
to the fullest extent permitted by applicable law, is not timely made pursuant to Section 4 of this
Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant
to Section 7(b) of this Agreement within ninety (90) days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6
of this Agreement within fifteen (15) business days after receipt by the Company of written request
therefor, or (v) payment of indemnification pursuant to Section 3 of this Agreement is not made
within fifteen (15) business



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days after a determination
has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to seek
an adjudication by the Delaware Court of Chancery of Indemnitee’s right to such indemnification or
advancement of Expenses, with any costs associated therewith to be paid by the Company to the
extent permitted by law. The Company shall not oppose Indemnitee’s right to seek any such
adjudication.




     (b) In the event that a determination shall have been made pursuant to Section 7 of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section 8 shall be conducted in all respects as a de novo trial on
the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any
judicial proceeding commenced pursuant to this Section 8, Indemnitee shall be presumed to be
entitled to indemnification under this Agreement 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, as the
case may be, and the Company may not refer to or introduce into evidence any determination pursuant
to Section 7 of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a
judicial proceeding pursuant to this Section 8, Indemnitee shall not be required to reimburse the
Company for any advances pursuant to Section 4 until a final determination is made with respect to
Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted
or lapsed).



     (c) Neither the failure of the Company (including by its directors or Independent Counsel) to
have made a determination prior to the commencement of any action pursuant to 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
Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the
action (provided that initiation of an action under this Section 8 shall not entitle Indemnitee to
advances of Expenses if a determination has been made under Section 4(c) that no further advances
be made) or create a presumption that Indemnitee has not met the applicable standard of conduct.
If a determination shall have been made pursuant to Section 7 of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in any judicial
proceeding commenced pursuant to this Section 8, 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.



     (d) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 8 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.



     (e) The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted
by law against all expenses (of the type that would be considered “Expenses” if incurred in
connection with a Proceeding) and, if requested by Indemnitee, shall (within ten (10) days after
the Company’s receipt of such written request) advance to Indemnitee, to the fullest extent
permitted by applicable law, such expenses that are incurred by Indemnitee in connection with any
judicial proceeding brought by Indemnitee (i) to enforce Indemnitee’s rights under, or



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to recover damages for breach of, this Agreement or any other indemnification agreement or
provision of the Certificate of Incorporation or the Company’s By-laws now or hereafter in effect;
or (ii) for recovery or advances under any insurance policy maintained by any person for the
benefit of Indemnitee, to the full extent Indemnitee ultimately is determined to be entitled to
such indemnification, advance or insurance recovery, as the case may be.




     (f) 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
termination or disposition of the Proceeding.



     9. Non-exclusivity; No Effect on Other Agreements; 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 Company’s By-laws, any other
agreement, a vote of stockholders or a resolution of directors, or otherwise. The entry by
Indemnitee into this Agreement, and the terms of this Agreement, shall not be deemed to change,
limit or affect in any respect, or terminate, any other agreements between Indemnitee and the
Company. Except as otherwise provided by Section 12 hereof, 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 Official
Capacity prior to such amendment, alteration or repeal. To the extent that a change in the General
Corporation Law, whether by statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the Certificate of Incorporation,
the Company’s By-laws or this Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change. 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. 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) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable (or for which advancement is provided hereunder) hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.



     (c) 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.



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     10. Notification and Settlement of Claim.



     (a) Promptly after receipt by Indemnitee of notice of any Proceeding, Indemnitee will notify
the Company in writing of the commencement thereof; but the omission so to notify the Company will
not relieve the Company from any liability that it may have to Indemnitee, except to the extent the
Company is actually prejudiced thereby. The Company shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any Proceeding effected without the
Company’s written consent, and the Company shall not settle any Proceeding in any manner that would
impose any penalty or limitation on, or require any payment from, Indemnitee without Indemnitee’s
written consent. Neither the Company nor Indemnitee will unreasonably withhold its consent to any
proposed settlement.



     (b) The Company will be entitled to participate in any Proceeding at its own expense, and
except as otherwise provided below, to the extent the Company so wishes, it may assume the defense
thereof with counsel selected by the Company. After notice from the Company to Indemnitee of its
election to assume the defense of any Proceeding, the Company shall not be liable to Indemnitee
under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in
connection with the defense of such Proceeding other than reasonable costs of investigation,
transition costs associated with the Company’s assumption of the defense, or as otherwise provided
below. Indemnitee shall have the right to employ legal counsel in such Proceeding, but all
Expenses related thereto incurred after notice from the Company of its assumption of the defense
shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee has reasonably determined that there may be a conflict
of interest between Indemnitee and the Company in the defense of the Proceeding or (iii) the
Company shall not in fact have employed counsel to assume the defense of such Proceeding, in each
of which cases all Expenses of the Proceeding shall be borne by the Company subject to the terms
and conditions set forth in this Agreement. The Company shall not be entitled to assume the defense
of Indemnitee in any such Proceeding brought by or on behalf of the Company or as to which the
requirements set forth in provisions (ii), (iii) and (iii) above have been met.



     11. Separability. If any provision 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, all portions of any
paragraphs of this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, all portions of any paragraph of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent of the
parties that the Company provide protection to Indemnitee to the fullest enforceable extent
provided for in this Agreement.



     12. Duration of Agreement. 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 of the Company or (b) one (1) year after the final termination of any Proceeding then
pending in respect of which Indemnitee is granted rights of indemnification or advancement of



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Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to Section 8 of this
Agreement relating thereto. All agreements and obligations of the Company contained in this
Agreement shall continue during the period of Indemnitee’s Official Capacity. This Agreement shall
be binding upon all successors and assigns of the Company (including any transferee of all or
substantially all of its assets and any successor by merger or operation of law) and shall inure to
the benefit of Indemnitee’s heirs, personal representatives and estate.




     13. Non-attribution of Actions of Any Indemnitee to Any Other Indemnitee. For
purposes of determining whether Indemnitee is entitled to indemnification or advancement of
Expenses by the Company under this Agreement or otherwise, the actions or inactions of any other
indemnitee or group of indemnitees shall not be attributed to Indemnitee.



     14. Insurance and Subrogation.



     (a) The Company shall purchase and maintain insurance on behalf of Indemnitee who is or was
or has agreed to serve at the request of the Company as a director or officer of the Company
against any liability asserted against, and incurred by, Indemnitee or on Indemnitee’s behalf in
any such capacity, or arising out of Indemnitee’s status as such, whether or not the Company would
have the power to indemnify Indemnitee against such liability under the provisions of this
Agreement, provided that such insurance is available on commercially reasonable terms. If the
Company has such insurance in effect at the time the Company receives from Indemnitee any notice of
the commencement of a proceeding, the Company shall give prompt notice of the commencement of a
proceeding to the insurers in accordance with the procedures set forth in the policy. 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 policy.



     (b) In the event of any payment by the Company under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with
respect to any insurance policy, and Indemnitee 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 in accordance with the terms of such
insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred
by Indemnitee in connection with such subrogation.



     (c) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise
taxes or penalties, and amounts paid in settlement), if and to the extent that Indemnitee has
otherwise actually received such payment under this Agreement or any insurance policy, contract,
agreement or otherwise.



     15. 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
and received by 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 and receipted for by the
party to whom said notice or other communication shall have been directed



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or (d) sent by facsimile transmission, with receipt of confirmation that such transmission has
been received.




     16. Headings; References; Pronouns. The headings of the sections 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. References herein to section numbers are to sections of this
Agreement. All pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as appropriate.



     17. Other Provisions.



     (a) This Agreement shall be interpreted and enforced in accordance with the laws of Delaware.



     (b) This Agreement may be executed in one 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 as evidence of the existence of this Agreement.



     (c) This Agreement shall not be deemed an employment contract between the Company and
Indemnitee, and the Company shall not be obligated to continue Indemnitee in Indemnitee’s Official
Capacity by reason of this Agreement.



     (d) No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.



     (e) The Company agrees to stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this Agreement and is precluded from making any
assertions to the contrary.



     (f) Indemnitee’s rights under this Agreement shall extend to Indemnitee’s spouse, members of
Indemnitee’s immediate family, and Indemnitee’s representative(s), guardian(s), conservator(s),
estate, executor(s), administrator(s), and trustee(s), (all of whom are referred to as “Related
Parties”), as the case may be, to the extent a Related Party or a Related Party’s property is
subject to a Proceeding by reason of Indemnitee’s Official Capacity.



* * * * *







11









 








          IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.




	 	 	 	 	 
	 	K-V PHARMACEUTICAL COMPANY

 	 
	 	By  	 	 
	 	 	Its  	 	 
	 	 	 	 
	 
	 	 	 
	 	


 	 
	 	Indemnitee 	 
	 	 	 
	 








12









 








EXHIBIT 1




AFFIRMATION AND UNDERTAKING TO REPAY INDEMNIFICATION EXPENSES




     Reference is made to that Indemnification Agreement (the “Agreement”), dated as of                ,
20     , by and between the undersigned and K-V Pharmaceutical Company, a Delaware corporation (the
“Company”). Unless otherwise defined, capitalized terms used herein shall have the respective
meanings ascribed to them in the Agreement.



     Pursuant to Section 4(b) of the Agreement:



     1. The undersigned hereby affirms my good faith belief that I have met the standard of conduct
necessary for indemnification under the Agreement, that I acted in good faith and in a manner I
reasonably believed to be in or not opposed to the best interests of the Company, and with respect
to any criminal action or proceeding, had no reasonable cause to believe that my conduct was
unlawful; and



     2. The undersigned hereby agrees to reimburse the Company all Expenses advanced to me if it is
finally determined by a court of competent jurisdiction after all appeals that I am not entitled to
be indemnified against such Expenses by the Company as provided by the Agreement or otherwise.



	 	 	 	 	 
	 	Signature
 	 	 



	 	 	 	 	 
	 	Typed Name
 	 	 



	 	 	 	 	 
	 	Office
 	 	 
	 



Exhibit