EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made effective as of March
11, 2005 by and between Mariner Energy, Inc., a Delaware corporation (the
"Company"), and the officer or director executing same on the signature page
hereof ("Indemnitee").
RECITALS
WHEREAS, the bylaws of the Company require indemnification of the officers
and directors of the Company;
WHEREAS, Indemnitee may also be entitled to indemnification pursuant to
applicable provisions of the Delaware General Corporation Law ("DGCL");
WHEREAS, the indemnification provisions set forth in the bylaws and the
DGCL are not exclusive, and the Company may enter into contracts between the
Company and members of the Board of Directors of the Company (the "Board") and
officers of the Company with respect to indemnification;
WHEREAS, the Board has determined that it is reasonable, prudent and
necessary for the Company contractually to obligate itself to indemnify, and to
advance expenses on behalf of, its officers and directors 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 indemnified;
WHEREAS, this Agreement is intended to replace any existing
indemnification agreements to which Indemnitee is subject, if any, with respect
to the matters covered herein; and
WHEREAS, this Agreement is a supplement to and in furtherance of the
bylaws of the Company, which expressly state that the indemnities afforded under
such bylaws are not exclusive, and any resolutions adopted pursuant thereto and
shall not be deemed a substitute therefor, nor diminish or abrogate any rights
of Indemnitee thereunder;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. SERVICES TO THE COMPANY. Indemnitee will serve or continue to serve, at
the will of the Company or under separate contract, if such exists, as officer
and/or director of the Company for so long as Indemnitee is duly elected or
appointed and qualified in accordance with the bylaws of the Company or until
Indemnitee tenders his or her resignation. If Indemnitee is an employee at will
of the Company, nothing herein shall change such employee's status as an
employee at will. Nothing in this Section 1
is intended to modify any provision of any employment agreement entered into
between the Company and the Indemnitee.
2. DEFINITIONS. As used in this Agreement:
(a) "Beneficial Owner" shall have the meaning set forth in Rule 13d-3
promulgated under the Exchange Act (as defined below).
(b) A "Change of Control" shall be deemed to occur upon the earliest to
occur after the date of this Agreement of any of the following events: (i) after
the date hereof, any person or group of affiliates or associated persons
acquires more than 35% of the voting power of the Company; (ii) the consummation
of a sale of all or substantially all of the assets of the Company; (iii) the
dissolution of the Company; or (iv) the consummation of any merger,
consolidation, or reorganization involving the Company in which, immediately
after giving effect to such merger, consolidation or reorganization, less than
51% of the total voting power of outstanding stock of the surviving or resulting
entity is then "beneficially owned" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) in the aggregate by the
stockholders of the Company immediately prior to such merger, consolidation or
reorganization. Notwithstanding the foregoing, a Change of Control shall not
result from any initial acquisitions from the Company or the placement agent in
the private placement offering of common stock of the Company made as described
in the confidential Offering Memorandum of the Company dated March 4, 2005,
including acquisitions of shares upon the exercise of any related over-allotment
options.
(c) "Corporate Status" describes the status of a person who is or was a
director, officer, trustee, general partner, managing member, fiduciary,
employee or agent of the Company or of any other Enterprise (as defined below)
which such person is or was serving at the request of the Company.
(d) "Disinterested Director" shall mean a director of the Company who is
not and was not a party to the Proceeding (as defined below) in respect of which
indemnification is sought by Indemnitee.
(e) "Enterprise" shall mean the Company and any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan,
organization (whether civil, non-profit or charitable) or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director,
officer, trustee, general partner, managing member, fiduciary, employee or
agent.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Expenses" shall include all reasonable attorneys' fees and costs,
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
type customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating,
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being or preparing to be a witness in, or otherwise participating in, a
Proceeding. Expenses also shall include 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. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments, fines or
penalties actually levied against Indemnitee.
(h) "Independent Counsel" shall mean 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 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 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.
(i) The term "Person" shall have the meaning set forth in Sections 13(d)
and 14(d) of the Exchange Act; provided, however, that Person shall exclude (i)
the Company, (ii) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company and (iii) any corporation owned, directly
or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(j) The term "Proceeding" shall include any threatened, pending or
completed action, suit, 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 or investigative
nature, in which Indemnitee was, is or will be involved as a party or otherwise
by reason of the fact that Indemnitee is or was a director, officer, employee or
agent of the Company, by reason of any action taken (or failure to act) by him
or her or of any action (or failure to act) on his or her part while acting as a
director, officer, employee or agent of the Company, or by reason of the fact
that he is or was serving at the request of the Company as a director, officer,
trustee, general partner, managing member, fiduciary, employee or agent of any
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.
(k) 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
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who acted in good faith and in a manner he reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Company" as referred to in this Agreement.
3. INDEMNIFICATION.
(a) The Company shall indemnify Indemnitee in accordance with the
provisions of this Section 3(a) when Indemnitee is a party or is threatened to
be made a party to or is otherwise involved 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(a), Indemnitee shall be indemnified against
all Expenses, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments, fines, penalties and
amounts paid in settlement) actually and reasonably incurred by Indemnitee or on
his behalf in connection with such Proceeding if Indemnitee acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, in the case of any criminal Proceeding, he had no
reasonable cause to believe his conduct was unlawful.
(b) The Company shall indemnify Indemnitee in accordance with the
provisions of this Section 3(b) when Indemnitee is a party or is threatened to
be made a party to or is otherwise involved in any Proceeding by or in the right
of the Company to procure a judgment in its favor. Pursuant to this Section
3(b), Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on his behalf in connection with such
Proceeding if Indemnitee acted in good faith and in a manner he 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 3(b) 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 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.
(c) Any indemnification under subsections (a) and (b) of this Section 3
(unless ordered by a court) shall be made by the Company in accordance with the
procedures set forth in Sections 5 and 6 hereof.
(d) Notwithstanding any other provisions of this Agreement, 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 or 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 or her
or on his or her behalf in connection with each successfully
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resolved claim, issue or matter. If 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 Indemnitee was successful. For purposes of this
Section 3(d) 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.
(e) Notwithstanding any limitation in subsections (a), (b) and (c) of this
Section 3, the Company shall indemnify Indemnitee to the fullest extent
permitted by law if Indemnitee is a party to or threatened to be made a party to
any Proceeding (including a Proceeding by or in the right of the Company to
procure a judgment in its favor) against all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses) actually and reasonably incurred by Indemnitee in connection with the
Proceeding. No indemnity shall be made under this Section 3(e) on account of
Indemnitee's conduct which constitutes a breach of Indemnitee's duty of loyalty
to the Company or its stockholders or is an act or omission not in good faith or
which involves intentional misconduct or a knowing violation of the law. For
purposes of this Section 3(e), the meaning of the phrase "to the fullest extent
permitted by law" shall include, but not be limited to:
(i) to the fullest extent permitted by the provision of the DGCL
that authorizes or contemplates additional indemnification by agreement,
or the corresponding provision of any amendment to or replacement of the
DGCL; and
(ii) to the fullest extent authorized or permitted by any amendments
to or replacements of the DGCL adopted after the date of this Agreement
that increase the extent to which a corporation may indemnify its officers
and directors.
(f) Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, he shall be indemnified against
all Expenses actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.
4. EXCLUSIONS. Notwithstanding any other 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 received by or on behalf of
Indemnitee under any insurance policy or other indemnity provision, except
with respect to any excess beyond the amount actually received under any
insurance policy or other indemnity provision;
(b) for an accounting of profits made from the purchase and sale (or
sale and purchase) by Indemnitee of securities of the Company within the
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meaning of Section 16(b) of the Exchange Act or similar provisions of
state statutory law or common law; or
(c) except as otherwise provided in Sections 8(d) and 8(e) hereof,
prior to a Change of Control, 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 of Directors of the Company 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.
5. ADVANCES OF EXPENSES; DEFENSE OF CLAIM.
(a) Notwithstanding any provision of this Agreement to the contrary, the
Company shall advance the Expenses incurred by Indemnitee or reasonably expected
by Indemnitee to be incurred by Indemnitee within three months in connection
with any Proceeding 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 be made without regard to
Indemnitee's ability to repay the Expenses and without regard to Indemnitee's
ultimate entitlement to indemnification under the other provisions of this
Agreement. 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. Indemnitee shall qualify for advances solely upon the
execution and delivery to the Company of an undertaking providing that
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 5(a) shall not apply to any claim made by Indemnitee for which
indemnity is excluded pursuant to Section 4.
(b) The Company will be entitled to participate in the Proceeding at its
own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole
or in part) which would impose any Expense, judgment, fine, penalty or
limitation on Indemnitee without Indemnitee's prior written consent.
6. PROCEDURE FOR INDEMNIFICATION.
(a) Within sixty (60) days after the actual receipt by Indemnitee of
notice that he is a party to or a participant (as a witness or otherwise) in any
Proceeding, Indemnitee shall submit to the Company a written notice identifying
the Proceeding. The omission by Indemnitee to notify the Company will not
relieve the Company from any liability which it may have to Indemnitee (i)
otherwise than under this Agreement and (ii) under this Agreement only to the
extent the Company can establish that such omission to notify resulted in actual
prejudice to the Company.
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(b) Indemnitee shall thereafter deliver to the Company a written
application to indemnify Indemnitee in accordance with this Agreement. Such
application(s) may be delivered from time to time and at such time(s) as
Indemnitee deems appropriate in his or her sole discretion. Following such a
written application for indemnification by Indemnitee, Indemnitee's entitlement
to indemnification shall be determined in accordance with Section 6(c) of this
Agreement.
(c) Upon written request by Indemnitee for indemnification pursuant to
Section 6(b) hereof, a determination with respect to Indemnitee's entitlement
thereto shall be made in the specific case: (i) by the Board by a majority vote
of a quorum consisting of Disinterested Directors, (ii) if such quorum is not
obtainable or, even if obtainable, if a quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board, or (iii) by
the stockholders. The Company will promptly advise Indemnitee in writing with
respect to any determination that Indemnitee is or is not entitled to
indemnification, including a description of any reason or basis for which
indemnification has been denied. 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 reasonably 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.
(d) In the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 6(c) hereof, the Independent
Counsel shall be selected as provided in this Section 6(d). If a Change of
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
of the identity of the Independent Counsel so selected. If a Change of 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 10 days after such written notice of selection shall have been
received, 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 of this
Agreement, 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
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until such objection is withdrawn or a court of competent jurisdiction has
determined that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification pursuant to
Section 6(b) hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition a court of competent
jurisdiction (the "Court") 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 6(c) hereof. Upon the
due commencement of any judicial proceeding or arbitration pursuant to Section
8(a) of this Agreement, Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to the applicable standards
of professional conduct then prevailing).
(e) The Company agrees to pay the reasonable fees of Independent Counsel
and to fully indemnify such Independent Counsel against any and all Expenses,
claims, liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
7. 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 presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 6(b) of this Agreement, and the Company shall 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 the Board 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 the Board or Independent 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) If the person, persons or entity empowered or selected under Section
6(c) of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within thirty (30) days
after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall 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 30-day period
shall be extended for a reasonable time, not to exceed an additional thirty (30)
days, if the person, persons or
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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.
(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 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 or her conduct was
unlawful.
(d) 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 by the Enterprise. The provisions of this Section 7(d) shall not be
deemed to be exclusive or to limit in any way the other circumstances in which
Indemnitee may be deemed or found to have met the applicable standard of conduct
set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any other
director, trustee, partner, managing member, fiduciary, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
8. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to Section 6(c)
of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5
of this Agreement, (iii) no determination of entitlement to indemnification
shall have been made pursuant to Section 6(c) of this Agreement within the time
period specified in Section 7(b) of this Agreement, (iv) payment of
indemnification is not made pursuant to Section 3(d), 3(e) or 3(f) or the last
sentence of Section 6(c) of this Agreement within ten (10) days after receipt by
the Company of a written request therefor or (v) payment of indemnification
pursuant to Section 3(a) or Section 3(b) of this Agreement is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication by a court of
his or her entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his or 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. The Company shall not
oppose Indemnitee's right to seek any such adjudication or award in arbitration.
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(b) In the event that a determination shall have been made pursuant to
Section 6(c) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 8 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 8, the Company shall have the burden of proving
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be, and the Company may not refer to or introduce into evidence any
determination pursuant to Section 6(c) of this Agreement adverse to Indemnitee
for any purpose. If Indemnitee commences a judicial proceeding or arbitration
pursuant to this Section 8, Indemnitee shall not be required to reimburse the
Company for any advances pursuant to Section 5 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) If a determination shall have been made pursuant to Section 6(c) of
this Agreement 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 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 or arbitration 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 Indemnitee to the fullest extent permitted
by law against all Expenses 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 law, such Expenses which are
incurred by Indemnitee in connection with any judicial proceeding or arbitration
brought by Indemnitee (i) to enforce his rights under, or to recover for breach
of, this Agreement or any other agreement or provision of the Company's
certificate of incorporation or bylaws now or hereafter in effect or (ii) for
recovery or advances under any insurance policy maintained by any person for the
benefit of Indemnitee, regardless of whether Indemnitee ultimately is determined
to be entitled to such indemnification, advance or insurance recovery, as the
case may be.
9. 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
Company's bylaws, any agreement, a vote of stockholders, a resolution of
directors or otherwise.
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Notwithstanding the foregoing, this Agreement shall amend and restate any
existing indemnification agreement effective as of the date hereof to which
Indemnitee and the Company are parties. 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 Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in Delaware law, whether by statute or
judicial decision, permits greater indemnification or advancement of Expenses
than would be afforded currently under the Company's bylaws and 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, 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) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers, trustees,
partners, managing members, fiduciaries, employees or agents of the Company or
of any 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, trustee, partner, managing member, fiduciary, officer, employee or
agent under such policy or policies. If, at the time the Company receives notice
from any source of a Proceeding as to which Indemnitee is a party or a
participant (as a witness or otherwise), the Company has director and officer
liability insurance in effect, the Company shall give prompt notice 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 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, trustee, partner, managing member, fiduciary, employee or agent of any
other Enterprise shall be reduced by any amount Indemnitee has actually received
as indemnification or advancement of expenses from such Enterprise.
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10. 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 a director or officer of the Company or as a director,
officer, trustee, partner, managing member, fiduciary, employee or agent of any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which Indemnitee served at the request of the Company; or (b)
one (1) year after the final termination of any Proceeding (including any rights
of appeal thereto) 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 of this Agreement relating
thereto (including any rights of appeal of any Section 8 Proceeding).
11. 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.
12. ENFORCEMENT AND BINDING EFFECT.
(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 a director or officer of the Company, and the
Company acknowledges that Indemnitee is relying upon this Agreement in serving
as a director or officer 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.
(c) The indemnification and advancement of expenses provided by or granted
pursuant to this Agreement shall apply to Indemnitee's service as an officer,
director, employee or agent of the Company prior to the date of this Agreement.
(d) The indemnification and advancement of expenses provided by or granted
pursuant to this Agreement shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, assigns, executors and administrators of such a person.
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13. 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.
14. NOTICES. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
(a) if delivered by hand and receipted for by the party to whom said notice or
other communication shall have been directed or (b) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the signature page of
this Agreement, or such other address as Indemnitee shall provide in writing to
the Company.
(b) If to the Company to:
Mariner Energy, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Attn.: General Counsel
or to any other address as may have been furnished to Indemnitee in writing by
the Company.
15. 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 rise 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).
16. APPLICABLE LAW. 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, without regard to its conflict of laws rules.
17. IDENTICAL COUNTERPARTS. 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 to evidence the existence of this Agreement.
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18. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate. The headings of the sections
and 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.
19. EFFECTIVENESS
This Agreement shall be effective and conditioned upon the consummation of the
initial closing of the private placement offering of common stock of the Company
made as described in the confidential Offering Memorandum of the Company dated
March 4, 2005, which is expected to occur on March 11, 2005.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as
of the day and year first above written.
COMPANY: INDEMNITEE:
MARINER ENERGY, INC.
By:_____________________________ ___________________________
Xxxxx X. Xxxxx ___________________________
Chairman of the Board,
Chief Executive Officer and
President
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