Exhibit 99.1
AMENDED AND RESTATED INDEMNITY AGREEMENT
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This Amended and Restated Indemnity Agreement (this "Agreement") made
and entered into this 29th day of November, 2006, but effective as of (the
"Effective Date"), by and between Xxxxxxx Exploration Company, a Delaware
corporation (the "Company"), and _____________ ("Indemnitee"), who is currently
serving the Company in the capacity of a director and/or officer thereof;
W I T N E S S E T H:
WHEREAS, the Company and Indemnitee recognize that the interpretation
of ambiguous statutes, regulations and court opinions and of the Certificate of
Incorporation and Bylaws of the Company, and the vagaries of public policy, are
too uncertain to provide the directors and officers of the Company with adequate
or reliable advance knowledge or guidance with respect to the legal risks and
potential liabilities to which they become personally exposed as a result of
performing their duties in good faith for the Company; and
WHEREAS, the Company and the Indemnitee are aware that highly
experienced and capable persons are often reluctant to serve as directors or
officers of a corporation unless they are protected to the fullest extent
permitted by law by comprehensive insurance and indemnification, especially
since the legal risks and potential liabilities, and the very threat thereof,
associated with lawsuits filed against the officers and directors of a
corporation, and the resultant substantial time, expense, harassment, ridicule,
abuse and anxiety spent and endured in defending against such lawsuits, whether
or not meritorious, bear no reasonable or logical relationship to the amount of
compensation received by the directors or officers from the corporation; and
WHEREAS, Section 145 of the General Corporation Law of the State of
Delaware, the Certificate of Incorporation and Bylaws of the Company, which set
forth certain provisions relating to the mandatory and permissive
indemnification of, and advancement of expenses to, officers and directors
(among others) of a Delaware corporation by such corporation, are specifically
not exclusive of other rights to which those indemnified thereunder may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise; and
WHEREAS, after due consideration and investigation of the terms and
provisions of this Agreement, the form of Indemnity Agreement previously
approved by the Board of Directors and the stockholders of the Company and the
various other options available to the Company and the Indemnitee in lieu
thereof, the Board of Directors of the Company has determined that the entry
into the following Agreement, which contains provisions clarifying the
indemnification process and procedure not contained in the form of Indemnity
Agreement previously approved by the Board of Directors and the stockholders of
the Company, is not only reasonable and prudent but necessary to promote and
ensure the best interests of the Company and its stockholders; and
WHEREAS, the Company desires to have Indemnitee serve or continue to
serve as an officer and/or director of the Company, free from undue concern for
unpredictable, inappropriate or unreasonable legal risks and personal
liabilities by reason of his acting in good faith in the performance of his duty
to the Company; and Indemnitee desires to serve, or to continue to serve
(provided that he is furnished the indemnity provided for hereinafter), in
either or both of such capacities;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
Indemnitee, intending to be legally bound, do hereby agree as follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to
serve as director and/or officer of the Company and as Indemnitee and the
Company may agree, as a director, officer, trustee, general partner, managing
member, fiduciary, employee or agent of another Enterprise, for so long as he is
duly elected or appointed and qualified in accordance with the provisions of the
General Corporation Law of the State of Delaware and the Certificate of
Incorporation and Bylaws of the Company or until such time as he tenders his
resignation. The Company acknowledges that the Indemnitee is relying on this
Agreement in so serving.
2. DEFINITIONS. As used in this Agreement:
(a) "Change in Control" means a change in control of the
Company of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item on any similar schedule or form) promulgated under the
Securities Exchange Act of 1934 (the "Act"), whether or not the Company
is then subject to such reporting requirement; provided, however, that,
without limitation, such a Change in Control shall be deemed to have
occurred if (i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Act) 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 the Act), directly or indirectly, of securities of
the Company representing 15% or more of the combined voting power of
the Company's then outstanding securities without the prior approval of
at least two-thirds of the members of the Board of Directors of the
Company in office immediately prior to such person attaining such
percentage interest; (ii) there occurs a proxy contest, or the Company
is a party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization not approved by at least two-thirds
of the members of the Board of Directors of the Company then in office,
as a consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; or (iii) during any
period of two consecutive years, other than as a result of an event
described in clause (ii) of this subsection (a), individuals who at the
beginning of such period constituted the Board of Directors of the
Company (including for this purpose any new director whose election 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
were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
(b) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(c) "Enterprise" shall mean any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit
plan, organization 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.
(d) The term "Expenses" includes, without limitation, all
reasonable attorneys' fees, 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 types
customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing
to be a witness in, or otherwise involved in, a Proceeding. Should any
payments by the Company under this Agreement be determined to be
subject to any federal, state or local income or excise tax, Expenses
will also include such amounts as are necessary to place Indemnitee in
the same after-tax position, after giving effect to all applicable
taxes, Indemnitee would have been in had such tax not have been
determined to apply to those payments. Expenses also shall include (i)
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 and (ii) Expenses incurred by Indemnitee
in connection with the interpretation, enforcement or defense of
Indemnitee's rights under this Agreement, by litigation or otherwise.
(e) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five 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 the
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. The Company agrees to pay the reasonable fees and
expenses of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
(f) "Proceeding" shall mean any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that
could lead to such an action, suit or proceeding irrespective of the
initiator thereof. The final disposition of a Proceeding shall be as
determined by a settlement or the judgment of a court or other
investigative or administrative body. The Board of Directors shall not
make a determination as to the final disposition of a Proceeding.
(g) References to "fines" shall include any (i) excise taxes
assessed with respect to any employee benefit plan and (ii) penalties;
references to "serving at the request of the Company" shall include any
service as a director, officer, trustee, general partner, managing
member, fiduciary, employee or agent which imposes duties on, or
involves services by, such director, officer, trustee, general partner,
managing member, fiduciary, employee or agent with respect to an
Enterprise; and a person who acts in good faith and in a manner he
reasonably believed to be in the interest of the Enterprise 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. INDEMNITY IN THIRD PARTY PROCEEDINGS. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is a party to 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) by reason of the fact that
Indemnitee is or was a director and/or officer of the Company, or was serving at
the request of the Company as a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent of an Enterprise, against all
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee (or on his behalf) in connection with such
Proceeding or any claim, issue or matter therein, provided it is determined
pursuant to Section 8 of this Agreement or by the court having jurisdiction in
the matter, that Indemnitee acted in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal Proceeding, had no reasonable cause
to believe his conduct was unlawful. 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, 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 that he
reasonably believed to be in or not opposed to the best interests of the
Company, or, with respect to any criminal Proceeding, had reasonable cause to
believe that his conduct was unlawful. Indemnitee shall have the right to employ
Indemnitee's own legal counsel in any Proceeding for which indemnification is
available under this Section 3.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is a party to or is threatened to be made a party to or
otherwise involved in any Proceeding by or in the right of the Company to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
a director and/or officer of the Company, or is or was serving at the request of
the Company as a director, officer, trustee, general partner, managing member,
fiduciary, employee or agent of an Enterprise, against all Expenses actually and
reasonably incurred by Indemnitee (or on his behalf) in connection with such
Proceeding provided it is determined pursuant to
Section 8 of this Agreement or by the court having jurisdiction in the matter,
that Indemnitee acted in good faith and in a manner that he reasonably believed
to be in or not opposed to the best interests of the Company, except that no
indemnification shall be made under this Section 4 in respect of any claim,
issue or matter as to which Indemnitee shall have been adjudged to be liable to
the Company unless and only to the extent that the Delaware Court of Chancery or
the court in which such Proceeding was brought or is pending, 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 as the Delaware Court of Chancery or such other
court shall deem proper. Indemnitee shall have the right to employ Indemnitee's
own legal counsel in any Proceeding for which indemnification is available under
this Section 4.
5. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of the fact that Indemnitee is or was a director and/or officer of the Company,
or is or was serving at the request of the Company as a director, officer,
trustee, general partner, managing member, fiduciary, employee or agent of an
Enterprise, a witness in any Proceeding to which Indemnitee is not a party, he
shall be indemnified against all Expenses actually and reasonably incurred by
Indemnitee (or on his behalf) in connection therewith.
6. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provision of this Agreement to the contrary, to the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any Proceeding referred to in Sections 3 and/or 4 of this Agreement, or in
defense of any claim, issue or matter therein, including dismissal with or
without prejudice, Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by Indemnitee (or on his behalf) in connection
therewith. If Indemnitee is not wholly successful in any Proceeding referred to
in Sections 3 and/or 4 of this Agreement, but is successful on the merits or
otherwise (including dismissal with or without prejudice) as to one or more, but
less than all claims, issues or matters therein, including dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee (or on his behalf) in connection with each
successfully resolved claim, issue or matter. For purposes of this Section 6,
and without limitation, the termination of any claim, issue or matter in any
Proceeding referred to in Sections 3 and/or 4 of this Agreement by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
7. ADVANCES OF EXPENSES. To the fullest extent permitted by
applicable law, the Expenses incurred by Indemnitee pursuant to Sections 3
and/or 4 of this Agreement in connection with any Proceeding or any claim, issue
or matter therein shall be paid by the Company currently and in advance of the
final disposition of such Proceeding or any claim, issue or matter therein no
later than 10 days after receipt by the Company of a request for an Expense
advancement with appropriate documentation. The undersigned Indemnitee hereby
undertakes to repay the advanced Expenses to the Company to the extent that it
is ultimately determined pursuant to Section 8, or, in the event the Indemnitee
elects to pursue other remedies pursuant to Section 10, that the undersigned
Indemnitee is not entitled to be indemnified therefor by the Company. This
agreement of Indemnitee to repay is unsecured and interest free.
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request.
(b) Upon written request by Indemnitee for indemnification
pursuant to Section 8(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall
be made in the specific case: (i) if a Change in Control shall have
occurred, the Disinterested Directors shall direct Independent Counsel
to make such determination in a written opinion to the Board of
Directors of the Company, a copy of which shall be delivered to
Indemnitee; or (ii) if a Change in Control shall not have occurred, (A)
by a majority vote of the Disinterested Directors, even though less
than a quorum of the Board of Directors of the Company, or (B) by a
committee of the Disinterested Directors designated by a majority vote
of Disinterested Directors, even though less than a quorum, or (C) if
there are no Disinterested Directors or, if the Disinterested Directors
so direct, by Independent Counsel in a written opinion to the Board of
Directors of the Company, a copy of which shall be delivered to
Indemnitee; and, if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 10 days
after such determination. Any costs or expenses (including attorneys'
fees and disbursements) incurred by Indemnitee in cooperating with the
person, persons or entity making the determination discussed in this
Section 8(b) with respect to Indemnitee's entitlement to
indemnification, 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.
(c) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 8(b) hereof, the Independent Counsel shall be selected as
provided in this Section 8(c). If a Change in Control shall not have
occurred, the Independent Counsel shall be selected by the Board of
Directors of the Company, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so
selected. If a Change in Control shall have occurred, the Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board of Directors of the
Company, 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 given, 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
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 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
8(b) hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition the Delaware
Court of Chancery or other court of competent jurisdiction 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 8(a)
hereof.
(d) Indemnitee will be deemed a party to a Proceeding for all
purposes hereof if Indemnitee is named as a defendant or respondent in
a complaint or petition for relief in that Proceeding, regardless of
whether Indemnitee is ever served with process or makes an appearance
in that Proceeding.
9. PRESUMPTIONS AND EFFECT OF CERTAIN PROVISIONS.
(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 8(a) of this
Agreement, and the Company shall have the burden of proof in overcoming
such presumption by clear and convincing evidence. Neither the failure
of the Company (including its Board of Directors or independent legal
counsel) to have made a determination prior to the commencement of such
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 its
Board of Directors or independent legal counsel) that Indemnitee has
not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
(b) If the person, persons or entity empowered or selected
under Section 8 of this Agreement to determine whether Indemnitee is
entitled to indemnification shall not have made a determination within
30 days after receipt by the Company 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 may be
extended for a reasonable time, not to exceed an additional 15 days, if
the person, persons or 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) For purposes of any determination of whether Indemnitee
acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal Proceeding, Indemnitee had no reasonable cause to believe his
conduct was unlawful (collectively, "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 Company and any 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 or information, opinions, reports or
statements, including financial statements and other financial
information, concerning the Company and any 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 or any other person which were prepared or
supplied to Indemnitee by: (i) one or more officers or employees of the
Company and any 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; (ii)
appraisers, engineers, investment bankers, legal counsel or other
persons as to matters Indemnitee reasonably believed were within the
professional or expert competence of those persons; and (iii) any
committee of the Board of Directors or equivalent managing body of the
Company and any 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 of which
Indemnitee is or was, at the relevant time, not a member. The
provisions of this Section 9(c) shall not be deemed to be exclusive or
to limit in any way the other circumstances in which the Indemnitee may
be deemed to have met the applicable standard of conduct set forth in
this Agreement.
(d) The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Company and any 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 shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this
Agreement.
10. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to
Section 8(b) of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is
not timely made pursuant to Section 7 of this Agreement, (iii) no
determination of entitlement to indemnification shall have been made
pursuant to Section 8(b) of this Agreement within the time period
provided in Section 9(b) after receipt by the Company of the request
for indemnification, (iv) payment of indemnification is not made
pursuant to Section 5, Section 6, the last sentence of Section 8(b), or
the last sentence of Section 2(d) of this Agreement within 10 days
after receipt by the Company of a written request therefor, or (v)
payment of indemnification pursuant to Section 3 or Section 4 of this
Agreement is not made within 10 days after a determination has been
made that Indemnitee is entitled to indemnification, Indemnitee shall
be entitled to an adjudication by the Delaware Court of Chancery of his
entitlement to such indemnification or advancement of Expenses and
appeals therefrom, concluding in a final and unappealable judgment by
the Delaware Supreme Court. The Board of Directors shall not make a
determination as to the final disposition of such adjudication. The
Company shall not oppose Indemnitee's right to seek any such
adjudication.
(b) In the event that a determination shall have been made
pursuant to Section 8(b) of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding commenced pursuant
to this Section 10 shall be conducted in all respects as a de novo
trial on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination.
(c) If a determination shall have been made pursuant to
Section 8(b) of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in
any judicial proceeding commenced pursuant to this Section 10, 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) In the event that Indemnitee, pursuant to this Section 10,
seeks a judicial adjudication of his rights under, or to recover
damages for breach of, this Agreement, Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company
against, any and all expenses (of the types described in the definition
of Expenses in Section 2(d) of this Agreement) actually and reasonably
incurred by him in such judicial adjudication regardless of whether
Indemnitee ultimately is determined to be entitled to such
indemnification.
(e) The Company shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 10 that the
procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court that the Company
is bound by all the provisions of this Agreement.
11. INDEMNIFICATION AND ADVANCEMENT OF EXPENSES UNDER THIS AGREEMENT
NOT EXCLUSIVE; SURVIVAL OF RIGHTS. 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 be entitled under the
Certificate of Incorporation or Bylaws of the Company, any other agreement, any
vote of stockholders or disinterested directors, the General Corporation Law of
the State of Delaware, or otherwise. 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 prior to such amendment, alteration or repeal. To the extent
that a change in the General Corporation Law of the State of Delaware, whether
by statute or judicial decision, permits greater indemnification or advancement
of Expenses than would be afforded currently under the Certificate of
Incorporation of the Company 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 or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
12. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification or to receive advancement by the
Company for a portion of the Expenses, judgments, fines, penalties or amounts
paid in settlement actually and reasonably incurred by Indemnitee (or on his
behalf) in connection with such Proceeding, or any claim, issue or matter
therein, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled.
13. RIGHTS CONTINUED. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall continue as to
Indemnitee even though Indemnitee may have ceased to be a director or officer of
the Company and shall inure to the benefit of Indemnitee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
14. NO CONSTRUCTION AS AN EMPLOYMENT AGREEMENT OR ANY OTHER
COMMITMENT. Nothing contained in this Agreement shall be construed as giving
Indemnitee any right to be retained in the employ or as an officer of the
Company or any of its subsidiaries, if Indemnitee currently serves as an officer
of the Company, or to be renominated or reelected as a director of the Company,
if Indemnitee currently serves as a director of the Company.
15. LIABILITY INSURANCE. To the extent the Company maintains an
insurance policy or policies providing liability insurance for directors,
officers, trustees, general partners, managing members, fiduciaries, employees
or agents of the Company or 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 director, officer, trustee, general partner, managing member,
fiduciary, employee or agent under such policy or policies.
16. NO DUPLICATION OF PAYMENTS. The Company shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable
under this Agreement if, and to the extent that, Indemnitee has otherwise
actually received such payment under any contract, agreement or insurance
policy, the Certificate of Incorporation or Bylaws of the Company, or otherwise.
17. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all the rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including without
limitation the execution of such documents as may be necessary to enable the
Company effectively to bring suit to enforce such rights.
18. EXCEPTIONS. Notwithstanding any other provision in this
Agreement, the Company shall not be obligated pursuant to the terms of this
Agreement, to (i) indemnify or advance Expenses to Indemnitee with respect to
any claim, issue or matter therein, brought or made by Indemnitee by way of
cross-claim, counter claim or the like, or (ii) indemnify Indemnitee with
respect to any Proceeding in which final judgment is rendered against Indemnitee
for an accounting of profits made from the purchase and sale or the sale and
purchase by Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Act.
19. NOTICES. Any notice or other communication required or permitted
to be given or made to the Company or Indemnitee pursuant to this Agreement
shall be given if made in writing and deposited in the United States mail, with
postage thereon prepaid, addressed to the person to whom such notice or
communication is directed at the address of such person on the records of the
Company, and such notice or communication shall be deemed given or made at the
time when the same shall be so deposited in the United States mail. Any such
notice or communication to the Company shall be addressed to the Secretary of
the Company.
20. CONTRACTUAL RIGHTS. The right to be indemnified or to receive
advancement of Expenses under this Agreement (i) is a contract right based upon
good and valuable consideration, pursuant to which Indemnitee may xxx, (ii) is
and is intended to be retroactive and shall be available as to events occurring
prior to the date of this Agreement and (iii) shall continue after any
rescission or restrictive modification of this Agreement as to events occurring
prior thereto.
21. PRIOR AGREEMENT. This Agreement amends and restates the
Indemnity Agreement entered between the Company and the Indemnitee effective
[DATE INDEMNITEE BECAME OFFICER/DIRECTOR] (the "Prior Agreement") in its
entirety. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, the Prior Agreement
shall be deemed to be in full force and effect.
22. SUCCESSORS; BINDING AGREEMENT. The Company shall require and
cause any successor (whether direct or indirect) by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Company, by written agreement in form and substance reasonably
satisfactory to Indemnitee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid that executes and delivers
the agreement provided for in this Section 22 or that otherwise becomes bound by
the terms and provisions of this Agreement by operation of law. This Agreement
shall be binding upon the Company and its successors and assigns (including,
without limitation, any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets
of the Company) and will inure to the benefit of Indemnitee (and Indemnitee's
spouse, if Indemnitee resides in Texas or another community property state),
heirs, executors and administrators.
23. COUNTERPARTS, MODIFICATION, HEADINGS, GENDER.
(a) This Agreement may be executed in counterparts, each of
which shall constitute one and the same instrument, and either party
hereto may execute this Agreement by signing any such counterpart.
(b) No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Indemnitee and an appropriate officer of the
Company. No waiver by any party at any time of any breach by any other
party of, or compliance with, any condition or provision of this
Agreement to be performed by any other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same time or
at any prior or subsequent time.
(c) Section headings are not to be considered part of this
Agreement, are solely for convenience of reference, and shall not
affect the meaning or interpretation of this Agreement or any provision
set forth herein.
(d) Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa, unless the
context otherwise requires.
24. EXCLUSIVE JURISDICTION; GOVERNING LAW. The Company and
Indemnitee agree that all disputes in any way relating to or arising under this
Agreement, including, without limitation, any action for advancement of Expenses
or indemnification, shall be litigated, if at all, exclusively in the Delaware
Court of Chancery, and if necessary, the corresponding appellate courts. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware applicable to contracts made and to be performed
in such state without giving effect to the principles of conflicts of laws. The
Company and Indemnitee (i) expressly submit themselves to the personal
jurisdiction of the Delaware Court of Chancery for purposes of any action or
proceeding arising out of or in connection with this Agreement, (ii) irrevocably
appoint, to the extent such party is not a resident of the State of Delaware,
The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 as
its agent in the State of Delaware as such party's agent for acceptance of legal
process in connection with any such action or proceeding against such party with
the same legal force and validity as if served upon such party personally within
the State of Delaware, (iii) waive any objection to the laying of venue of any
such action or proceeding in the Delaware Court of Chancery, and (iv) waive, and
agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court of Chancery has been brought in an improper or
otherwise inconvenient forum.
25. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (a) 10 years after the date that Indemnitee shall
have ceased to serve as a director and/or officer of the Company or director,
officer, trustee, general partner, managing member, fiduciary, employee or agent
of any other Enterprise which Indemnitee served at the request of the Company;
or (b) one year after the final, nonappealable termination of any Proceeding
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 10 of this Agreement relating thereto.
26. CONTRIBUTION. If it is established, under Section 8 or
otherwise, that Indemnitee has the right to be indemnified under this Agreement
in respect of any claim, but that right is unenforceable by reason of applicable
law or public policy, then, to the fullest extent applicable law permits, the
Company, in lieu of indemnifying or causing the indemnification of Indemnitee
under this Agreement, will contribute to the amount Indemnitee has incurred,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement or for Expenses reasonably incurred, in connection with that
Proceeding, in such proportion as is deemed fair and reasonable in light of all
the circumstances of that Proceeding in order to reflect:
(a) the relative benefits Indemnitee and the Company have
received as a result of the event(s) or transactions(s) giving rise to
that Proceeding; or
(b) the relative fault of Indemnitee and of the Company and its
other functionaries in connection with those event(s) or
transaction(s).
IN WITNESS WHEREOF, the Company and Indemnitee have executed this
Agreement as of the date and year first above written, but effective as of the
Effective Date.
XXXXXXX EXPLORATION COMPANY
By:
------------------------
Xxxxx X. Xxxxxxx
Executive Vice President
INDEMNITEE
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