INDEMNIFICATION AGREEMENT
Exhibit 10.18
This Indemnification Agreement (the “Agreement”) is made as of December 17, 2004, by
and between Trident Resources Corp., a Delaware corporation (the “Company”), and Xxxxxxx
Xxxx (the “Indemnitee”).
RECITALS
The Company desires to attract and retain the services of highly qualified individuals, such
as Indemnitee, to serve as directors, officers and employees, and under certain circumstances, to
serve the Company in other capacities. At the same time, the Company recognizes the substantial
increase in corporate litigation in general, potentially subjecting such highly qualified
individuals to the risk of expensive litigation. The Company further recognizes the increasing
difficulty and cost of obtaining liability insurance for directors, officers and others. As a
result, in order to obtain the services of the Indemnitee (or to retain his or her services), the
Company desires to extend to Indemnitee the protections against such risks afforded by this
Agreement.
AGREEMENT
In consideration of the mutual promises made in this Agreement, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Company and Indemnitee hereby
agree as follows:
1. Indemnification.
(a) Third Party Proceedings. The Company shall indemnify Indemnitee if Indemnitee is
or was a party or is threatened to be made a party to any “Legal Action” (which shall mean any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative), other than a Legal Action by or in the right of the Company or
any subsidiary of the Company or another corporation, limited liability company, partnership, joint
venture, trust or other enterprise for which Indemnitee is or was serving as a director, officer,
employee or agent at the request of the Company (any such enterprise for which Indemnitee was so
serving being herein referred to as a “Related Entity”), by reason of the fact that Indemnitee is
or was a director, officer, employee or agent of the Company, or any subsidiary of the Company, by
reason of any action or inaction on the part of Indemnitee while a director, officer, employee or
agent of the Company or any subsidiary of the Company, or by reason of the fact that Indemnitee is
or was serving at the request of the Company as a director, officer, employee or agent of a Related
Entity (or any action or inaction while serving in such capacity), against all expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably withheld) actually and
reasonably incurred by Indemnitee in connection with such Legal Action, provided that Indemnitee
(i) acted in a manner Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, (ii) acted in good faith, and (iii) with respect to any criminal Legal Action, had
no reasonable cause to believe Indemnitee’s conduct was
unlawful. The termination of any Legal Action by judgment, order, settlement, conviction,
or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that
any of the foregoing clauses (i), (ii) or (iii) were not satisfied.
(b) Proceedings By or in the Right of the Company. The Company shall indemnify
Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any Legal Action
by or in the right of the Company, any subsidiary of the Company or any Related Entity by reason of
the fact that Indemnitee is or was a director, officer, employee or agent of the Company, or any
subsidiary of the Company, by reason of any action or inaction on the part of Indemnitee while
serving as a director, officer, agent or employee of the Company or any subsidiary of the Company,
or by reason of the fact that Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of a Related Entity (or any action or inaction of the
Indemnitee while serving in such capacity), against expenses (including attorneys’ fees) and, to
the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably withheld), in each case to the
extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement
of such Legal Action if Indemnitee (i) acted in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company and its stockholders, and (ii) acted in good
faith, except that no indemnification shall be made in respect of any Legal Action as to which
Indemnitee shall have been finally adjudicated by court order or judgment to be liable to the
Company, any subsidiary of the Company, or any Related Entity in the performance of Indemnitee’s
respective duties unless and only to the extent that the court in which such Legal Action is or was
pending shall determine upon application that, in view of all the circumstances, Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
(c) Mandatory Payment of Expenses. To the extent that Indemnitee has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 1(a)
or Section 1(b) or the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by
Indemnitee in connection therewith.
2. No Rights to Continue Service. Nothing contained in this Agreement is intended to
create in Indemnitee any right to continued service on behalf of the Company, whether as a
director, officer, or employee, or in any other capacity.
3. Expenses, Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense, settlement or appeal of any Legal Action
referred to in Section 1(a) or Section 1(b) hereof (including amounts actually paid in settlement
of any such Legal Action). Indemnitee hereby undertakes to repay such amounts advanced only if,
and to the extent that, it shall ultimately be determined that Indemnitee is not entitled to be
indemnified by the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall give the Company notice in
writing as soon as practicable of any claim made against Indemnitee for
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which indemnification will
or could be sought under this Agreement. Notice to the Company shall be directed to the Chief
Executive Officer of the Company and shall be given in accordance with the provisions of Section
12(d) below. In addition, Indemnitee shall, at no expense to Indemnitee, give the Company such
information and cooperation as it may reasonably require and as shall be within Indemnitee’s power.
(c) Procedure. Any and all indemnification and advances provided for in Section 1 and
this Section 3 shall be made no later than thirty (30) days after receipt of the written request of
Indemnitee. If a claim under this Agreement (or under the Company’s certificate of incorporation
or bylaws or any applicable statute or other rule of law) is not paid in full by the Company within
thirty (30) days after a written request for payment thereof has first been received by the
Company, Indemnitee may, but need not, at any time thereafter bring an action against the Company
to recover the unpaid amount of the claim and, subject to Section 11 of this Agreement, Indemnitee
shall also be entitled to be paid for the expenses (including attorneys’ fees) of bringing such
action. It shall be a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in connection with any Legal Action in advance of its final disposition) that
Indemnitee has not met the standards of conduct which make it permissible under applicable law for
the Company to indemnify Indemnitee for the amount claimed, but the burden of proving such defense
shall be on the Company, and Indemnitee shall be entitled to receive interim payments of expenses
pursuant to Section 3(a) unless and until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. It is the parties’ intention that if the
Company contests Indemnitee’s right to indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the failure of the Company (including
its Board of Directors, any committee or subgroup of the Board of Directors, independent legal
counsel, or its stockholders) to have made a determination that indemnification of Indemnitee is
proper in the circumstances because Indemnitee has met the applicable standard of conduct required
by applicable law, nor an actual determination by the Company (including its Board of Directors,
any committee or subgroup of the Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee has not met such applicable standard of conduct, shall create a
presumption that Indemnitee has or has not met the applicable standard of conduct.
(d) Notice to Insurers. If, at the time of the receipt of a notice of a claim
pursuant to Section 3(b) 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.
(e) Selection of Counsel. In the event the Company shall be obligated under Section
3(a) hereof to pay the expenses of any Legal Action to which Indemnitee is a party, the Company, if
appropriate, shall (and shall be entitled to) assume the defense of such Legal Action, with counsel
approved by Indemnitee, such consent not to be unreasonably
withheld, upon the delivery to Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee and the retention of such
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counsel
by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same Legal Action, provided that
(i) Indemnitee shall have the right to employ counsel in any such Legal Action at Indemnitee’s
expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by
the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of
interest in the representation of Indemnitee and the representation by counsel designated by the
Company or another party to such Legal Action or (C) the Company shall not, in fact, have employed
counsel to assume the defense of such proceeding, then the fees and expenses of Indemnitee’s
counsel shall be at the expense of the Company.
4. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. 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
Company’s certificate of incorporation, bylaws or applicable statute or other rule of law. In the
event of any change, after the date of this Agreement, in any applicable statute or other rule of
law which expands the right of the Company to indemnify Indemnitee, such changes shall, without any
action on the part of the Company or the Indemnitee, 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 statute or other rule of law which narrows the right of a Delaware corporation to
indemnify Indemnitee, such changes, to the extent not otherwise required by such statute or other
rule of law to be applied to this Agreement shall have no effect on this Agreement or the parties’
rights and obligations hereunder. The indemnification provided under this Agreement shall continue
as to Indemnitee for any action taken or not taken while serving in an indemnified capacity even
though he or she may have ceased to serve in any such capacity at the time of any Legal Action.
(b) Nonexclusivity. The indemnification provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may be entitled, howsoever arising,
whether under the Company’s certificate of incorporation, its bylaws, any agreement, any vote of
stockholders or disinterested members of the Company’s Board of Directors, the General Corporation
Law of the State of Delaware, or any other applicable statute or rule of law.
5. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the expenses, judgments, fines
or penalties actually or reasonably incurred in the investigation, defense, appeal or settlement of
any civil or criminal action, suit or proceeding, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments,
fines or penalties to which Indemnitee is entitled.
6. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge that in certain
instances, Federal law or public policy may override applicable state law and prohibit the Company
from indemnifying its directors and officers under this Agreement or
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otherwise. For example, the
Company and Indemnitee acknowledge that the Securities and Exchange Commission (the “SEC”) has
taken the position that indemnification is not permissible for liabilities arising under certain
federal securities laws, and federal legislation prohibits indemnification for certain ERISA
violations. Indemnitee understands and acknowledges that the Company has undertaken or may be
required in the future to undertake with the SEC to submit the question of indemnification to a
court in certain circumstances for a determination of the Company’s right under public policy to
indemnify Indemnitee.
7. Officer and Director Liability Insurance. The Company shall, from time to time,
make the good faith determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of insurance with reputable insurance companies providing the
officers and directors of the Company with coverage for losses from wrongful acts, or to ensure the
Company’s performance of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance coverage against the
protection afforded by such coverage. In all policies of director and officer liability insurance,
Indemnitee (whether or not then serving in any capacity in which Indemnitee shall be entitled to
indemnity under this Agreement) shall be named as an insured in such a manner as to provide
Indemnitee with at least the same rights and benefits as are accorded to the most favorably insured
of the Company’s then current or former directors, officers or employees (considering the capacity
of Indemnitee during the respective policy period in comparison to current or former directors,
officers or employees, as applicable, during the same period). Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain such insurance if the Company determines in
good faith that such insurance is not reasonably available, if the premium costs for such insurance
are disproportionate to the amount of coverage provided, if the coverage provided by such insurance
is limited by exclusions so as to provide an insufficient benefit (considering the cost), or if
Indemnitee is already covered by similar insurance relating to Indemnitee’s service on behalf of
the Company.
8. Severability. Nothing in this Agreement is intended to require or shall be
construed as requiring the Company to do or fail to do any act in violation of applicable law. The
Company’s inability, pursuant to court order, to perform its obligations under this Agreement shall
not constitute a breach of this Agreement. The provisions of this Agreement shall be severable as
provided in this Section 8. If this Agreement or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not
have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
9. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee
with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way
of defense, except with respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or
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law or otherwise as required under
Section 145 of the Delaware General Corporation Law, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board of Directors finds it to be
appropriate;
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by
Indemnitee with respect to any proceeding instituted 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 not made in good faith or was frivolous;
(c) Insured Claims. To indemnify Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) to the extent such expenses or liabilities have been paid directly to
Indemnitee by an insurance carrier under a policy of officers’ and directors’ liability insurance
maintained by the Company; or
(d) Claims under Section 16(b). To indemnify Indemnitee for expenses or the payment
of profits arising from the purchase and sale by Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
10. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to the “Company” shall include, in
addition to the resulting corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and employees or agents,
so that if Indemnitee is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and 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 if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnitee
shall be deemed to have acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
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11. Attorneys’ Fees. In the event that any action is instituted by Indemnitee under
this Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be entitled to be
paid all court costs and expenses, including reasonable attorneys’ fees, incurred by Indemnitee
with respect to such action, unless as a part of such action, the court of competent jurisdiction
determines that each of the material assertions made by Indemnitee as a basis for such action were
not made in good faith or were frivolous. In the event of an action instituted by or in the name
of the Company under this Agreement or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including attorneys’ fees,
incurred by Indemnitee in defense of such action (including with respect to Indemnitee’s
counterclaims and cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee’s material defenses to such action were made in bad faith or
were frivolous.
12. Miscellaneous.
(a) Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to principles of conflict
of law.
(b) Entire Agreement; Enforcement of Rights. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter herein and merges all
prior discussions between them. No modification of or amendment to this Agreement, nor any waiver
of any rights under this Agreement, shall be effective unless in writing signed by the parties to
this Agreement. The failure by either party to enforce any rights under this Agreement shall not
be construed as a waiver of any rights of such party.
(c) Construction. This Agreement is the result of negotiations between and has been
reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this
Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be
construed in favor of or against any one of the parties hereto.
(d) Notices. Any notice, demand or request required or permitted to be given under
this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent
by fax or 48 hours after being sent by nationally-recognized courier or deposited in the U.S. mail,
as certified or registered mail, with postage prepaid, and addressed to the party to be notified at
such party’s address or fax number as set forth below or as subsequently modified by written
notice.
(e) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
(f) Successors and Assigns. This Agreement shall be binding upon the Company and its
successors and assigns, and inure to the benefit of Indemnitee and Indemnitee’s heirs, legal
representatives and assigns.
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(g) Subrogation. In the event of 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 documents required and shall do all acts that may be necessary to secure such rights
and to enable the Company to effectively bring suit to enforce such rights.
[Signature Page Follows]
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The parties hereto have executed this Agreement as of the day and year set forth on the first
page of this Agreement.
| TRIDENT RESOURCES CORP. |
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| By: | /s/ Xxxx X. X'Xxxxxxxx | |||
| Xxxx X. X'Xxxxxxxx | ||||
| Title: | Secretary & Treasurer | |||
| Address: | 000 – 0xx Xxxxxx XX, Xxxxx 0000 Xxxxxxx, Xxxxxxx X0X 0X0 Attention: President Facsimile: (000) 000-0000 |
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AGREED TO AND ACCEPTED:
Xxxxxxx Xxxx
/s/ Xxxxxxx Xxxx
(Signature)
(Signature)
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