EXHIBIT 10.FF
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made and delivered
this _____ day of _____________, _____, by El Paso Corporation (the "Company"),
to and for the benefit of _______________ ("Participant").
RECITALS
WHEREAS, in order to induce Participant to continue as a member of the
Company's Board of Directors ("Board"), the Company is executing and delivering
to Participant this Indemnification Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company hereby agrees as
follows:
SECTION 1. RIGHT TO INDEMNIFICATION
If Participant is made a party or is threatened to be made a party to
or is involved (including, without limitation, as a witness) in any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he is
or was a Director of the Company (or of any subsidiary of the Company) or is or
was serving at the request of the Company or the Board of Directors, including
service with respect to any employee benefit plan or any subsidiary of the
Company, whether the basis of such proceeding is alleged action in an official
capacity as a Director or in any other capacity while serving as a Director, he
shall be indemnified and held harmless by the Company to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), or by other applicable law as then in effect, against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts to be paid in settlement) actually and
reasonably incurred or suffered by him in connection therewith and such
indemnification shall continue after Participant has ceased to be a Director and
shall inure to the benefit of Participant's heirs, executors and administrators;
provided, however, that except as provided in Section 2 of this Agreement with
respect to proceedings seeking to enforce rights to indemnification or to
advancement of expenses, the Company shall be required to indemnify Participant
in connection with a proceeding (or part thereof) initiated by Participant only
if such proceeding (or part thereof) was authorized by the Board. The right to
indemnification conferred in this Agreement shall include the right to be paid
by the corporation the reasonable expenses (including attorneys' fees) incurred
in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); further provided, however, that, if
the General Corporation Law of the State of Delaware requires, an advancement of
expenses incurred by Participant in his capacity as a Director (and not in any
other capacity in which service was or is rendered by Participant while a
Director, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Company of an undertaking, if permitted
by Federal Law, by or on behalf of Participant, to repay all amounts so advanced
if it shall ultimately be determined that he is not entitled to be indemnified
under this Agreement, or otherwise, and provided further that except as provided
in Section 2 of this Agreement with respect to proceedings seeking to enforce
rights to indemnification or an advancement of expenses, the Company shall be
required to advance expenses to Participant in connection with a proceeding
initiated by him only if such proceeding was authorized by the Board.
SECTION 2. RIGHT TO BRING SUIT
If a claim under Section 1 of this Agreement is not paid in full by the
Company within sixty (60) days after a written claim has been received by the
Company, except in the case of a claim for an advancement of expenses, in which
case the applicable period shall be twenty (20) days, Participant may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim and, to the extent successful in whole or in material part,
Participant shall be entitled to be paid the expense of prosecuting such suit.
Participant shall be presumed to be entitled to indemnification under this
Agreement upon submission of a written claim (and, in an action brought to
enforce a claim for an advancement of expenses, where the required undertaking,
if any is required, has been tendered to the Company), and thereafter the
Company shall have the burden of proof to overcome the presumption that
Participant is not so entitled. Neither the failure of the Company (including
its Board, independent legal counsel, or its stockholders), to have made a
determination prior to the commencement of such suit that indemnification of
Participant is proper in the circumstances, nor an actual determination by the
Company (including its Board, independent legal counsel or its stockholders)
that Participant is not entitled to indemnification, shall be a defense to the
suit or create a presumption that Participant is not so entitled.
SECTION 3. NONEXCLUSIVITY OF RIGHTS
The rights to indemnification and to the advancement of expenses
conferred in this Agreement are in addition to and shall not be exclusive of any
other right Participant may have or hereafter acquire under any statute,
provision of the Restated Certificate of Incorporation of the Company or its
By-laws, or under any other plan, program, arrangement, agreement, vote of
stockholders or disinterested Directors or otherwise.
SECTION 4. INSURANCE, CONTRACTS AND FUNDING
The Company may maintain insurance, at its expense, to protect itself
and Participant against any expense, liability or loss, whether or not the
Company would have the power to indemnify Participant against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
The Company may enter into contracts with Participant in furtherance of the
provisions of this Agreement and may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Agreement. To the extent the Company
maintains an insurance policy or policies providing directors' and officers'
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liability insurance, Participant 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 Company director or officer.
SECTION 5. CHANGE OF CONTROL
(a) A "Change in Control" of the Company shall be deemed to have
occurred if (i) any "person" (as such term is used in Section 12(d) and 14(d) of
the Securities Exchange Act of 1934, as amended), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 20% or more of
the total voting power represented by the Company's then outstanding voting
securities, or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of the Company
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 a
majority 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,
or (iii) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least 80% of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets.
(b) Change in Control of the Company. The Company agrees that if there
is a Change in Control of the Company, then with respect to all matters
thereafter arising concerning the rights of Participant to indemnity payments
and expense advances under this Agreement, any other agreements, the Restated
Certificate of Incorporation or the By-laws now or hereafter in effect relating
to a proceeding, the Company shall seek legal advice only from special
independent counsel selected by Participant and approved by the Company (which
approval shall not be unreasonably withheld), and who has not otherwise
performed services for the Company (other than in connection with such matters)
or Participant. In the event that Participant and the Company are unable to
agree on the selection of the special independent counsel, such special
independent counsel shall be selected by lot from among at least five law firms
in New York City, New York or Houston, Texas selected by Participant, each
having no less than 50 partners. Such selection shall be made in the presence of
Participant (and his legal counsel or either of them, as Participant may elect).
Such special independent counsel, among other things, shall determine whether
and to what extent the Participant would be permitted to be indemnified under
applicable law and shall render its written opinion to the Company and
Participant to such effect.
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The Company agrees to pay the reasonable fees of the special
independent counsel referred to above and to fully indemnify such counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
SECTION 6. NO MODIFICATION
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of 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 hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver. Any waiver to this agreement shall be in
writing.
SECTION 7. 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
Participant, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
SECTION 8. NO DUPLICATION OF PAYMENTS
The Company shall not be liable under this Agreement to make any
payment in connection with any proceeding against Participant to the extent
Participant has otherwise actually received payment (under any insurance policy
or otherwise) of the amounts otherwise indemnifiable hereunder.
SECTION 9. NOTIFICATION AND DEFENSE OF PROCEEDINGS
Participant agrees that he will use all reasonable efforts to notify
the Company promptly after receipt by Participant of notice of the commencement
of any proceeding if he anticipates that a request for indemnification in
respect thereof is to be made against the Company under this Agreement; but
failure to so notify the Company will not relieve the Company from any
indemnification or other obligation or liability which it may have to
Participant. With respect to any such proceeding as to which Participant
notifies the Company of the commencement thereof:
(a) the Company will be entitled to participate therein at its own
expense; and
(b) except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to
Participant. After notice from the Company to Participant of its election to
assume the defense thereof, the Company will not be liable to Participant under
this Agreement for any legal or other expenses subsequently incurred by
Participant in connection with the defense thereof other than reasonable costs
of investigation or as otherwise provided below. Participant shall have the
right to employ its counsel in such proceeding, but the fees and expenses of
such counsel incurred after notice from the Company of its assumption
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of the defense thereof shall be at the expense of Participant unless (i) the
employment of counsel by Participant has been authorized by the Company, (ii)
Participant shall have reasonably concluded that there may be a conflict of
interest between the Company and Participant in the conduct of the defense of
such proceeding or (iii) the Company shall not in fact have employed counsel to
assume the defense of such proceeding, in each of which cases the fees and
expenses of counsel shall be at the expense of the Company. The Company shall
not be entitled to assume the defense of any proceeding brought by or on behalf
of the Company or as to which Participant shall have made the conclusion
provided for in clause (ii) of this subsection 9(b).
(c) The Company shall not be liable to indemnify Participant under this
Agreement for any amounts paid in settlement of any proceeding effected by
Participant without the Company's prior written consent. The Company shall not
settle any proceeding in any manner which would impose any penalty or limitation
on Participant without Participant's prior written consent. Neither the Company
nor Participant will unreasonably withhold their consent to any proposed
settlement.
SECTION 10. NO PRESUMPTIONS
For purposes of this Agreement, the termination of any proceeding
against Participant by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Participant did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of the Company to have made a determination as to whether
Participant has met any particular standard of conduct or had any particular
belief, nor an actual determination by the Company that Participant has not met
such standard of conduct or did not have such belief, prior to the commencement
of legal proceedings by Participant to secure a judicial determination that
Participant should be indemnified under applicable law shall be a defense to
Participant's claim for indemnification or create a presumption that Participant
has not met any particular standard of conduct or did not have any particular
belief.
SECTION 11. ACKNOWLEDGMENT OF RELIANCE
The Company acknowledges that Participant is relying on this Agreement
and the promises and agreements of the Company herein in continuing his service
as a Director and in agreeing to undertake and in undertaking his
responsibilities, duties and services to and for the Company in connection
therewith.
SECTION 12. MISCELLANEOUS
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware. Each provision hereof is intended to be
severable and the invalidity or illegality of any portion of this Agreement
shall not affect the validity or legality of the remainder.
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Executed as an instrument under seal as of the day and year first above
written.
EL PASO CORPORATION
By: _____________________________
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
Hereunto duly authorized
By: _____________________________
Name: Xxxxxx X. Xxxxx, Xx.
Title: Lead Director
Board of Directors
Hereunto duly authorized
