INDEMNIFICATION AGREEMENT
Exhibit 10.34
This Indemnification Agreement (“Agreement”) is entered into as of the _____ day of
___________, 2011, by and between Xxxxxxxxx Energy, Inc., a Delaware corporation (the
“Corporation”) and ______________________ (“Indemnitee”), a member of the board of directors
(“Board”) of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as directors and officers
the most capable persons available; and
WHEREAS, the substantial risks of litigation against corporations and their directors and
officers subjects directors and officers of the Corporation to the possible necessity of incurring
extraordinary expenses out of their personal funds either while directors’ and officers’ liability
insurance may be unavailable to them or because the expenditure is not covered by insurance
policies then in effect; and
WHEREAS, it is the policy of the Corporation to indemnify its directors and officers so as to
provide them with the maximum possible protection permitted by law; and
WHEREAS, so as to assure that Indemnitee is willing to serve as a director, and the
Corporation desires Indemnitee to serve as a director;
NOW, THEREFORE, in consideration of Indemnitee’s service as a director of the Corporation, the
Corporation and Indemnitee hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve as a director of the Corporation for
so long as Indemnitee is duly elected or appointed or until such time as Indemnitee tenders
Indemnitee’s resignation in writing or otherwise Indemnitee’s service is terminated in accordance
with the Corporation’s Bylaws and applicable law. Notwithstanding anything to the contrary, this
Agreement does not constitute either an employment contract or any commitment, express or implied,
to cause Indemnitee to be elected as a director.
2. Definitions. As used in this Agreement:
(a) “Proceeding” includes, without limitation, any threatened, pending, or completed action,
suit, or proceeding, including any appeals related thereto, whether brought by or in the right of
the Corporation or otherwise, and whether of a civil, criminal, administrative, or investigative
nature, in which Indemnitee is or was a party or is threatened to be made a party by reason of the
fact that Indemnitee is or was a director or officer of the Corporation (or of any predecessor or
subsidiary of the Corporation or any successor to the Corporation by merger), or is or was serving
at the request of the Corporation as a director, officer, employee, member, manager, agent, or
fiduciary of any other corporation, partnership, joint venture, trust, or other
enterprise (including but not limited to a subsidiary). Such request by the Corporation shall
be presumed to exist in the case of a subsidiary or other entity in which the Corporation has an
investment or contractual interest. “Proceeding” also includes an action by Indemnitee,
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including without limitation any mediation or arbitration, to establish or enforce a right of Indemnitee
under this Agreement.
(b) “Expenses” include, without limitation, expenses of investigation, costs of judicial or
administrative proceedings or appeals, amounts paid in settlement by or on behalf of Indemnitee,
attorneys’ fees and disbursements, costs of meals, lodging and travel reasonably and necessarily
incurred by Indemnitee to attend any Proceeding or event related to the Proceeding including but
not limited to depositions and mediation sessions, and any other defense costs incurred by
Indemnitee in connection with any Proceeding, but shall not include judgments, fines, or penalties
finally assessed against Indemnitee.
(c) “Other enterprises” include employee benefit plans; “fines” include any excise taxes
assessed on Indemnitee with respect to any employee benefit plan; “serving at the request of the
Corporation” includes any service as a director, officer, employee, member, manager or agent of the
Corporation which imposes duties on, or involves services by, such director, officer, employee,
member, manager, agent, or fiduciary with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who 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 shall be
deemed to have acted in a manner “not opposed to the best interest of the Corporation” as referred
to in this Agreement.
(d) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporate law and neither currently is, nor in the five years previous to its selection
or appointment has been, retained to represent (i) the Corporation 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 Corporation or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(e) “Change of Control” means any one of the following circumstances occurring after the date
hereof: (i) there shall have occurred an event required to be reported with respect to the
Corporation in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item or any similar schedule or form) under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), regardless of whether the Corporation is then subject to such reporting
requirement; (ii) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) shall have become the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Corporation representing 15% or more of
the combined voting power of the Corporation’s then outstanding voting securities (provided that,
for purposes of this clause (ii), the term “person” shall exclude (x) the Corporation, (y) any
trustee or other fiduciary holding securities under an employee benefit plan of the Corporation,
and (z) any corporation owned, directly or indirectly, by the
stockholders of the Corporation in substantially the same proportions as their ownership of
stock of the Corporation); (iii) there occurs a merger or consolidation of the Corporation with any
other entity, other than a merger or consolidation which would result in the voting securities of
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the Corporation outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 51% of the combined voting power of the voting securities of the
surviving entity outstanding immediately after such merger or consolidation and with the power to
elect at least a majority of the Board or other governing body of such surviving entity; (iv) all
or substantially all the assets of the Corporation are sold or disposed of in a transaction or
series of related transactions; (v) the approval by the stockholders of the Corporation of a
complete liquidation of the Corporation; or (vi) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of Directors of the
Corporation and any new director whose election by the Board of Directors or nomination for
election by the Company’s stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any reason to constitute
a majority thereof.
3. Indemnity in Third-Party Proceedings. The Corporation shall indemnify Indemnitee
against all Expenses, judgments, fines, and penalties actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of any Proceeding (other than a Proceeding
by or in the right of the Corporation to procure a judgment in its favor, and other than a
Proceeding brought or initiated voluntarily by Indemnitee), but only if Indemnitee acted in good
faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and, in the case of a criminal proceeding, had no reasonable cause to
believe that Indemnitee’s conduct was unlawful. The termination of any such Proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, 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
Corporation or, with respect to any criminal proceeding, that Indemnitee had reasonable cause to
believe that Indemnitee’s conduct was unlawful.
4. Indemnity in Proceedings By or In the Right of the Corporation. The Corporation shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of any Proceeding by or in the right of the Corporation
to procure a judgment in its favor, but only if Indemnitee acted in good faith and in a manner
which Indemnitee reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification for Expenses shall be made under this section in
respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable
to the Corporation for negligence or misconduct in the performance of Indemnitee’s duty to the
Corporation, unless (and then only to the extent that) the court in which such 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 indemnity for
such Expenses which such court shall deem proper.
5. Indemnification of Expenses of Successful Party. Notwithstanding any other provision
of this Agreement:
(a) To the extent that Indemnitee has been successful on the merits or otherwise, including by
a settlement, in defense of any Proceeding, or in defense of any one or
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more claims, issues or
matters included therein, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee in connection therewith; and
(b) Indemnitee’s Expenses actually and reasonably incurred in connection with successfully
establishing or enforcing, in whole or in part, Indemnitee’s right to indemnification or
advancement of Expenses under this Agreement or otherwise, shall also be indemnified by the
Corporation.
6. Advances of Expenses. At the written request of Indemnitee, the Expenses reasonably
incurred by Indemnitee in any Proceeding, including Expenses billed but not yet paid, shall be paid
directly (or if already paid by Indemnitee, shall be reimbursed to Indemnitee) by the Corporation
from time to time in a timely manner in advance of the final disposition of such Proceeding,
provided that Indemnitee shall undertake in writing to repay the amounts advanced if and to the
extent that it is ultimately determined that Indemnitee is not entitled to indemnification.
Indemnitee shall not be required to provide security for such undertaking. If the Corporation makes
an advance of Expenses pursuant to this section, the Corporation shall be subrogated to every right
of recovery Indemnitee may have against any insurance carrier from whom the Corporation has
purchased insurance for such purpose.
7. Right of Indemnitee to Indemnification Upon Application; Procedure Upon Application.
(a) Any indemnification or advancement of Expenses under this Agreement shall be paid by the
Corporation no later than 30 days after receipt of the written request of Indemnitee, unless a
determination is made within said 30-day period that Indemnitee has not met the standards for
indemnification set forth in the relevant section or sections of this Agreement by either:
(i) If a Change of Control shall not have occurred:
(A) The Board by a majority vote of a quorum consisting of directors who were not and are not
parties to the Proceeding in respect of which indemnification is being sought (“Disinterested
Directors”), or
(B) If there are no such Disinterested Directors, of if such Disinterested Directors so
direct, by Independent Counsel in a written opinion, or
(C) The stockholders of the Corporation by vote of a majority of a quorum at a meeting duly
called and held; or
(ii) If a Change of Control shall have occurred, by Independent Counsel in a
written opinion.
(b) Indemnitee’s right to indemnification or advancement of Expenses as provided by this
Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction. The burden of
proving that such indemnification or advancement is not appropriate shall be on the Corporation.
Neither the failure of the Corporation (including the Board or Independent Counsel or the
stockholders) to have made a determination prior to the
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commencement of such action that Indemnitee
has met the applicable standard of conduct nor an actual determination by the Corporation
(including the Board or Independent Counsel or the stockholders) that Indemnitee has not met such
standard shall be a defense to the action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
(c) With respect to any Proceeding for which indemnification or advancement of Expenses is
requested, the Corporation will be entitled to participate therein at its own expense and, except
as otherwise provided below, the Corporation may assume the defense thereof with counsel reasonably
satisfactory to Indemnitee. After notice from the Corporation to Indemnitee of its election to
assume the defense of a Proceeding, the Corporation will not be liable to Indemnitee under this
Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense
thereof, other than as provided below. The Corporation shall not settle any Proceeding in any
manner which would impose any penalty or limitation on Indemnitee without Indemnitee’s written
consent. Indemnitee shall have the right to employ counsel in any Proceeding but the fees and
expenses of such counsel incurred after notice from the Corporation of its assumption of the
defense of the Proceeding shall be at the expense of Indemnitee and shall not be advanced or
indemnified by the Corporation, unless:
(i) The employment of counsel by Indemnitee has been authorized by the
Corporation, or
(ii) Indemnitee shall have reasonably concluded, in writing sent to the
Corporation, that there may be a conflict of interest between the Corporation and
Indemnitee in the conduct of the defense of a Proceeding, or
(iii) The Corporation shall not in fact have employed counsel to assume the
defense of a Proceeding, or
(iv) Such Expenses of counsel are actually and reasonably incurred in
connection with successfully establishing, in whole or in part, Indemnitee’s right
to indemnification or advancement of Expenses under this Agreement or otherwise,
in each of which cases the fees and expenses of Indemnitee’s counsel shall be advanced by the
Corporation.
Notwithstanding the foregoing, the Corporation shall not be entitled to assume the defense of any
Proceeding brought by or in the right of the Corporation.
8. Limitation on Indemnification. No payment pursuant to this Agreement shall be made by
the Corporation:
(i) To indemnify or advance finds to Indemnitee for Expenses with respect to
Proceedings 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 or advancement of expenses under this Agreement, but such
indemnification or advancement of Expenses may be provided by the Corporation in
specific cases if the Board finds it to be appropriate;
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(ii) To indemnify Indemnitee for any Expenses, judgments, fines, or penalties
sustained in any Proceeding for which payment is actually made to Indemnitee under a
valid and collectible insurance policy, except in respect of any deductible or
retention amount, or any excess beyond the amount of payment under such insurance;
(iii) To indemnify Indemnitee for any Expenses, judgments, fines or penalties
sustained in any Proceeding for an accounting of profits made from the purchase or
sale by Indemnitee of securities of the Corporation pursuant to the provisions of §
16(b) of the Exchange Act, the rules and regulations promulgated thereunder and
amendments thereto or similar provisions of any federal, state, or local statutory
law;
(iv) To indemnify Indemnitee for any Expenses, judgments, fines or penalties
resulting from Indemnitee’s conduct which is finally adjudged to have been willful
misconduct, knowingly fraudulent, or deliberately dishonest; or
(v) If a court of competent jurisdiction finally determines that such payment
is unlawful
9. Indemnification Hereunder Not Exclusive. The indemnification and advancement of
Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under the Certificate of Incorporation or the Bylaws of the Corporation,
any other agreement, any vote of stockholders or disinterested directors, the General Corporation
Law of the State of Delaware, or otherwise, both as to action in Indemnitee’s official capacity and
as to action in another capacity while holding such directorship or office. The indemnification
provided by this Agreement shall continue as to Indemnitee even though Indemnitee may have ceased
to be a director and shall inure to the benefit of Indemnitee’s personal representatives, heirs,
legatees and assigns.
10. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the
Corporation for a portion of the Expenses, judgments, fines, or penalties actually and reasonably
incurred by him or her in any Proceeding but not, however, for the total amount thereof, the
Corporation shall nevertheless indemnify Indemnitee for the portion of such Expenses, judgments,
fines, or penalties to which Indemnitee is entitled.
11. Presumption and Burden of Proof. In any adjudication, opinion by counsel, or decision
by the Board or shareholders referred to in this Agreement or otherwise that involves the
determination, directly or indirectly, as to whether Indemnitee is entitled to indemnification,
including the advancement of Expenses, there shall be a presumption that Indemnitee is entitled to
indemnification. The Corporation or any other person opposing indemnification shall have the
burden of proof to overcome the presumption in favor of indemnification by clear and convincing
evidence.
12. Selection of Independent Counsel.
(a) If an opinion of Independent Counsel shall be required pursuant to Section 7(a)(ii), such
counsel shall be selected by Indemnitee, and Indemnitee shall give written notice to
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the Corporation advising it of the identity of the Independent Counsel. If an opinion of Independent
Counsel shall be required pursuant to Section 7(a)(i)(B), such counsel shall be selected by the
Corporation, in which case the Corporation shall give written notice to Indemnitee advising him or
her of the identity of the Independent Counsel. or in a manner determined by the Board. In either
event, Indemnitee or the Corporation, as the case may be, may, within 10 days after such written
notice of selection shall have been received, deliver to the Corporation 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
until such objection is withdrawn or a court of competent jurisdiction has determined that such
objection is without merit. If, within 20 days after the later of submission by Indemnitee of a
written request for indemnification pursuant to Section 7 hereof and the final disposition of the
Proceeding, no Independent Counsel shall have been selected and not objected to, either the
Corporation or Indemnitee may petition a court of competent jurisdiction for resolution of any
objection which shall have been made by the Corporation 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 7 hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to
this Agreement, the Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of professional conduct then
prevailing).
(b) Nothing herein shall prohibit the Board from selecting Indemnitee’s defense counsel for
this purpose if the Board determines this to be in the best interest of the Corporation as an
appropriate way to determine the potential liability of Indemnitee.
(c) The Corporation agrees to pay the reasonable fees and expenses of any Independent Counsel
serving under this Agreement.
13. Settlement of Proceedings. In the case of a Proceeding by Indemnitee to establish or
enforce a right of Indemnitee under this Agreement, the Corporation shall have the right at any
time during such Proceeding to make the determination that it is in the best interests of the
Corporation to settle the Proceeding, and to pay all or part of the indemnity sought as a part of
such settlement.
14. Arbitration. If the Corporation makes a determination that Indemnitee is not entitled
to indemnity in connection with a Proceeding, Indemnitee shall have the right to de novo review of
such determination before a panel of arbitrators chosen in accordance with the commercial
arbitration rules of the American Arbitration Association.
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15. Maintenance of Liability Insurance.
(a) The Corporation hereby covenants and agrees that, as long as Indemnitee continues to serve
as a director of the Corporation and thereafter as long as Indemnitee may be subject to any
Proceeding, the Corporation, subject to subsection (c) of this section, shall maintain in full
force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable
amounts from established and reputable insurers.
(b) In all D&O Insurance policies, Indemnitee shall be named as an insured in such a manner as
to provide the Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Corporation’s directors and officers. Further, in all policies of D&O Insurance,
coverage for Indemnitee shall include but not be limited to the following:
(i) Claims asserted by the Corporation’s present or past shareholders,
directors, employees, lenders, customers, suppliers, competitors and regulators, as
well as claims in connection with class actions, claims arising out of mergers and
acquisitions and antitrust claims asserted by governmental or private parties; but
the policy may exclude claims by one insured against another insured, except for
employment claims;
(ii) No exclusion for Indemnitee’s negligence;
(iii) No exclusion for fraud or deliberate dishonesty, except if there has been
a final adjudication of fraud or dishonesty by a court of competent jurisdiction;
(iv) Punitive and exemplary damages as well as the multiplied portion of any
damage award; and
(v) Any and all Expenses, judgments, fines and penalties not indemnifiable
pursuant to this Agreement, the Corporation’s Certificate of Incorporation or
Bylaws, the General Corporation Law of the State of Delaware, or the laws, rules or
regulations of any other jurisdiction or state or federal agency whose laws, rules
or regulations may be applicable.
(c) Notwithstanding the foregoing, the Corporation shall have no obligation to obtain or
maintain D&O Insurance if and to the extent that the Corporation determines in good faith that such
insurance is not reasonably available, the premium costs for such insurance are disproportionate to
the amount of coverage provided, the coverage provided by such insurance is so limited by
exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance
maintained by a subsidiary of the Corporation.
16. Miscellaneous.
(a) Savings Clause. If this Agreement or any portion hereof is invalidated on any
ground by any court of competent jurisdiction, the Corporation shall nevertheless indemnify
Indemnitee to the extent permitted by any applicable portion of this Agreement that has not been
invalidated or by any other applicable law.
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(b) Notice. Indemnitee shall, as a condition precedent to his right to be indemnified
under this Agreement, give to the Corporation notice in writing as soon as practicable of any
Proceeding for which indemnity will or could be sought under this Agreement. Notice to the
Corporation shall be directed to Xxxxxxxxx Energy, Inc., , Attention: President, at 0000 Xxxxxxx
Xxxxxxxxx, Xxx. 0000, Xx. Xxxxx, Xxxxxxxx 00000, or such other address as is then its corporate
headquarters, or such other address as the Corporation shall have designated in writing to
Indemnitee at his last known residence or office address. Notice shall be deemed received three
days after the date postmarked if sent by prepaid mail, properly addressed. In addition,
Indemnitee shall give the Corporation such information and cooperation as it may reasonably require
and as shall be reasonably within Indemnitee’s power.
(c) Counterparts. This Agreement may be executed in any number of counterparts, all
of which shall be deemed to constitute one and the same instrument.
(d) Applicable Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of Delaware.
(e) Successors and Assigns. This Agreement shall be binding upon the Corporation and
its successors and assigns and upon Indemnitee and his personal representatives, heirs, legatees
and assigns.
(f) Amendments. No amendment, waiver, modification, termination, or cancellation of
this Agreement shall be effective unless in writing signed by both parties hereto.
The indemnification rights afforded to Indemnitee hereby are contract rights and may not be
diminished, eliminated, or otherwise affected by amendments to the Certificate of Incorporation or
Bylaws of the Corporation or by other agreements without the express written agreement of the
parties expressly referring to and consenting to the provision by which such rights will be
diminished, eliminated or otherwise affected.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
signed as of the day and year first above written.
Xxxxxxxxx Energy, Inc.
Xxxxxx X. Xxxxxx, President
[Indemnitee]
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