Exhibit 10.16
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of
January 8, 2004 by and among K-Sea General Partner GP, LLC, a Delaware limited
liability company (the "Company"), K-Sea General Partner, L.P., a Delaware
limited partnership (the "General Partner"), K-Sea Transportation Partners L.P.,
a Delaware limited partnership (the "Partnership"), and Xxxxxxx X. Xxxxxxxxxx
("Indemnitee").
PRELIMINARY STATEMENT
WHEREAS, qualified persons are reluctant to serve organizations as
directors or officers or in other capacities unless they are provided with
adequate protection against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of such organizations;
WHEREAS, the parties hereto recognize that the legal risks and
potential liabilities, and the threat thereof, associated with lawsuits filed
against persons serving the Company, the General Partner, the Partnership and/or
their respective subsidiaries, and the resultant substantial time, expense and
anxiety spent and endured in defending lawsuits bears no reasonable relationship
to the compensation received by such persons, and thus poses a significant
deterrent and increased reluctance on the part of experienced and capable
individuals to serve the Company, the General Partner, the Partnership and/or
their respective subsidiaries;
WHEREAS, the uncertainties related to obtaining adequate insurance and
indemnification have increased the difficulty of attracting and retaining such
persons;
WHEREAS, it is reasonable, prudent and necessary for the Company, the
General Partners and the Partnership to contractually agree to indemnify such
persons to the fullest extent permitted by law, so that such persons will serve
or continue to serve the Company, the General Partner, the Partnership and/or
their respective subsidiaries free from undue concern that they will not be
adequately indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve and to
take on additional service for an on behalf of the Company, the General Partner
and the Partnership on the condition that the Indemnitee is indemnified
according to the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
herein, the parties to this Agreement agree as follows:
Section 1. SERVICES BY INDEMNITEE. Indemnitee will serve, or continue
to serve, as a Functionary of the Company and, as Indemnitee and the Company may
agree, as a Functionary of one or more Related Enterprises. Indemnitee may at
any time and for any reason resign from any such service, subject to any other
contractual obligation or any obligation applicable law imposes. This Agreement
is not and is not to be construed as an employment contract by the Company or
any other Related Enterprise with Indemnitee or as otherwise affecting
Indemnitee's status, if any, as an employee of the Company or any Related
Enterprise.
Section 2. INDEMNIFICATION. (a) If and whenever:
(1) Indemnitee was or is, or is threatened to be made, a party to any
Proceeding by reason of:
(A) the fact that Indemnitee serves or served as (1) a
Functionary of the Company or, at the request of the Company, (2) a
Functionary of a Related Enterprise; or
(B) the actual or alleged service or conduct of Indemnitee in
Indemnitee's capacity as that Functionary, including any act actually
or allegedly done or not done by Indemnitee;
and
(2) Indemnitee (A) engaged in the service or conduct at issue in that
Proceeding in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company and, in the event
that Proceeding was or is a criminal action or proceeding involving
Indemnitee's conduct, (B) had no reasonable cause to believe that that
conduct was unlawful,
the Partnership will, or will cause another Partnership Entity to, indemnify
Indemnitee against, and hold Indemnitee harmless from and in respect of:
(1) in the case of each Claim in that Proceeding, other than a
Company Claim, all liabilities and losses, including the amounts of all
judgments, penalties and fines, including excise taxes, and amounts paid in
settlement, Indemnitee has suffered or will suffer, and all Expenses
Indemnitee reasonably has incurred or will incur, as a result of or in
connection with that Claim; and
(2) in the case of each Company Claim in that Proceeding, all
Expenses Indemnitee reasonably has incurred or will incur as a result of or
in connection with that Company Claim; provided, however, that the
Partnership will not have any obligation under this clause (2) to, or to
cause another Partnership Entity to, indemnify Indemnitee against, or hold
Indemnitee harmless from or in respect of, any Company Claim as to which
Indemnitee was or is adjudged to be liable to the Company or any Related
Enterprise unless, and only to the extent that, the Court of Chancery or
the court in which that Company Claim was or is brought determines on
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 of those Expenses as the Court of Chancery or that
other court shall deem proper.
(b) If and whenever Indemnitee was or is, or is threatened to be made, a
party to any Proceeding of any type to which Section 2(a) refers and has been
successful, on the merits or otherwise, in defense of that Proceeding, or in
defense of any Claim therein, the Partnership will, or will cause another
Partnership Entity to, indemnify Indemnitee against, and hold Indemnitee
harmless from and in respect of, all Expenses Indemnitee reasonably has incurred
in connection
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therewith. The rights of Indemnitee under this Section 2(b) are in addition to,
and independent of, the rights of Indemnitee under Sections 2(a) or 2(c).
(c) If and whenever Indemnitee was, or reasonably could have been
expected to have been, or is, or reasonably could be expected to be, by reason
of the knowledge of facts Indemnitee actually or allegedly has obtained in the
course of his service as (1) a Functionary of the Company or, at the request of
the Company, (2) a Functionary of a Related Enterprise, a witness in or a
deponent in connection with any Proceeding to which Indemnitee was or is not a
party, the Partnership will, or will cause another Partnership Entity to,
indemnify Indemnitee against, and hold Indemnitee harmless from and in respect
of, all Expenses Indemnitee reasonably has incurred or will incur in connection
therewith. The rights of Indemnitee under this Section 2(c) are in addition to,
and independent of, the rights of Indemnitee under Sections 2(a) or 2(b).
Section 3. ADVANCEMENT OF EXPENSES. (a) If and whenever Indemnitee is,
or is threatened to be made, a party to any Proceeding that may give rise to a
right of Indemnitee to indemnification under Section 2(a), the Partnership will,
or will cause another Partnership Entity to, advance all Expenses reasonably
incurred by or on behalf of Indemnitee in connection with that Proceeding within
10 days after the Company receives a statement or statements from Indemnitee
requesting the advance or advances from time to time, whether prior to or after
final disposition of that Proceeding. Each such statement must reasonably
evidence the Expenses incurred by or on behalf of Indemnitee and include or be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay
any Expenses advanced if it ultimately is determined that Indemnitee is not
entitled to be indemnified by the Company under Section 2(a) against those
Expenses. The Partnership will accept any such undertaking without reference to
the financial ability of Indemnitee to make repayment. If the Partnership or
another Partnership Entity advances Expenses in connection with any Claim as to
which Indemnitee has requested or may request indemnification under Section 2(a)
and a determination is made under Section 5(c) that Indemnitee is not entitled
to that indemnification, Indemnitee will not be required to reimburse the
Partnership or that other Partnership Entity for those advances until the 180th
day following the date of that determination; provided, however, that if
Indemnitee timely commences and thereafter prosecutes in good faith a judicial
proceeding or arbitration under Section 7(a) or otherwise to obtain that
indemnification, Indemnitee will not be required to reimburse the Partnership or
that other Partnership Entity for those Expenses until a determination in that
proceeding or arbitration that Indemnitee is not entitled to that
indemnification has become final and nonappealable.
(b) The Partnership or another Partnership Entity may advance
Expenses under Section 3(a) to Indemnitee or, at the Company's option, directly
to the Person to which those Expenses are owed, and Indemnitee hereby consents
to any such direct payment, to Indemnitee's legal counsel or any other Person.
(c) For the avoidance of doubt, the parties agree that the provisions
of this Section 3 shall be applicable during the pendancy of any determination
of the right of the Indemnitee to indemnification under Section 2(a), including
the pendancy of any court or arbitration proceeding contemplated by Section 7.
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Section 4. NOTIFICATION AND DEFENSE OF CLAIMS. (a) If Indemnitee
receives notice, otherwise than from the Company, that Indemnitee is or will be
made, or is threatened to be made, a party to any Proceeding in respect of which
Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly
notify the Company in writing of the nature and, to Indemnitee's knowledge,
status of that Proceeding. If this Section 4(a) requires Indemnitee to give such
a notice, but Indemnitee fails to do so, that failure will not relieve the
Company from, or otherwise affect, the obligations the Partnership may have to
indemnify Indemnitee under this Agreement, unless the Company can establish that
the failure has resulted in actual prejudice to the Company.
(b) Except as this Section 4(b) otherwise provides below, in the case
of any Proceeding in respect of which Indemnitee seeks indemnification
hereunder:
(1) the Company and any Related Enterprise that also may be obligated
to indemnify Indemnitee in respect of that Proceeding will be entitled to
participate at its own expense in that Proceeding;
(2) the Company or that Related Enterprise, or either of them, will
be entitled to assume the defense of all Claims, other than (A) Company
Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall
reasonably reach the conclusion clause (3) of the next sentence describes,
in that Proceeding against Indemnitee by prompt written notice of that
election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related
Enterprise to assume the defense of any of those Claims and it delivers to
Indemnitee notice of that assumption under clause (2), the Company will not
be liable to Indemnitee hereunder for any fees or expenses of legal counsel
for Indemnitee which Indemnitee incurs after Indemnitee receives that
notice.
Indemnitee will have the right to employ Indemnitee's own legal counsel in that
Proceeding, but, as clause (3) of the preceding sentence provides, will bear the
fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that
counsel;
(2) the Company shall not within a reasonable period of time actually
have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of
interest may exist between Indemnitee and the Company as to the defense of
one or more of those Claims and (B) communicated that conclusion to the
Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause
another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee
harmless from and in respect of any amounts paid, or agreed to be paid, by
Indemnitee in settlement of any Claim against Indemnitee which Indemnitee
effects without the Company's prior written consent. The Company will not settle
any Claim against Indemnitee in any manner that would impose any penalty or
limitation on Indemnitee without Indemnitee's prior written consent. Neither the
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Company nor Indemnitee will unreasonably delay or withhold consent to any such
settlement the other party proposes to effect.
Section 5. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION. (a) To obtain indemnification under this Agreement, Indemnitee
must submit to the Company a written request therefor which includes, or is
accompanied by, such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to that indemnification. Indemnitee may request
indemnification hereunder at any time and from time to time as Indemnitee deems
appropriate in Indemnitee's sole discretion. In the case of any request for
indemnification under Section 2(a) as to any Claim which is pending or
threatened at the time Indemnitee delivers that request to the Company and would
not be resolved with finality, whether by judgment, order, settlement or
otherwise, on payment of the indemnification requested, the Company may defer
the determination under Section 5(c) of Indemnitee's entitlement to that
indemnification to a date that is no later than 45 days after the effective date
of that final resolution if the Board concludes in good faith that an earlier
determination would be materially prejudicial to the Company or a Related
Enterprise.
(b) On written request by Indemnitee under Section 5(a) for
indemnification under Section 2(a), the determination of Indemnitee's
entitlement to that indemnification will be made:
(1) if Indemnitee will be a director or officer of the Company at the
time that determination is made, under Section 5(c) in each case; or
(2) if Indemnitee will not be a director or officer of the Company at
the time that determination is made, under Section 5(c) in any case, if so
requested in writing by Indemnitee or so directed by the Board, or, in the
absence of that request and direction, as the Board shall duly authorize or
direct.
(c) Each determination of Indemnitee's entitlement to indemnification
under Section 2(a) to which this Section 5(c) applies will be made as follows:
(1) by a majority vote of the Disinterested Directors, even though
less than a quorum; or
(2) by a committee of Disinterested Directors designated by a
majority vote of the Disinterested Directors, even though less than a
quorum; or
(3) if (A) there are no Disinterested Directors or (B) a majority
vote of the Disinterested Directors so directs, by an Independent Counsel
in a written opinion to the Board, a copy of which the Company will deliver
to Indemnitee;
provided, however, that if Indemnitee has so requested in Indemnitee's request
for indemnification, an Independent Counsel will make that determination in a
written opinion to the Board, a copy of which the Company will deliver to
Indemnitee.
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(d) If it is determined that Indemnitee is entitled to
indemnification under Section 2(a), the Partnership will, or will cause another
Partnership Entity to, subject to the provisions of Section 5(f):
(1) within 10 days after that determination pay to Indemnitee all
amounts (A) theretofore incurred by or on behalf of Indemnitee in respect
of which Indemnitee is entitled to that indemnification by reason of that
determination and (B) requested from the Company in writing by Indemnitee;
and
(2) thereafter on written request by Indemnitee, pay to Indemnitee
within 10 days after that request such additional amounts theretofore
incurred by or on behalf of Indemnitee in respect of which Indemnitee is
entitled to that indemnification by reason of that determination.
Indemnitee will cooperate with the person, persons or entity making the
determination under Section 5(c) with respect to Indemnitee's entitlement to
indemnification under Section 2(a), including providing to such person, persons
or entity, on reasonable advance request, any documentation or information that
is:
(1) not privileged or otherwise protected from disclosure;
(2) reasonably available to Indemnitee; and
(3) reasonably necessary to that determination.
(e) If an Independent Counsel is to make a determination under
Section 5(c) of entitlement to indemnification under Section 2(a), it will be
selected by the Company with the consent of the Indemnitee (which consent shall
not be unreasonably withheld). The Partnership will pay any and all reasonable
fees and expenses the Independent Counsel incurs in connection with acting under
Section 5(c), and the Partnership will pay all reasonable fees and expenses
incident to the procedures this Section 5(e) sets forth, regardless of the
manner in which the Independent Counsel is selected or appointed. If Indemnitee
becomes entitled to, and does, initiate any judicial proceeding or arbitration
under Section 7, the Company will terminate its engagement of the person or firm
acting as Independent Counsel, whereupon that person or firm will be, subject to
the applicable standards of professional conduct then prevailing, relieved of
any further responsibility in the capacity of Independent Counsel.
(f) The amount of any indemnification against Expenses to which
Indemnitee becomes entitled under any provision hereof, including Section 2(a),
will be determined subject to the provisions of this Section 5(f). Indemnitee
will have the burden of showing that Indemnitee actually has incurred the
Expenses for which Indemnitee requests indemnification. If the Partnership or a
Partnership Entity has made any advance in respect of any Expense incurred by
Indemnitee without objecting in writing to Indemnitee at the time of the advance
to the reasonableness thereof, the incurrence of that Expense by Indemnitee will
be deemed for all purposes hereof to have been reasonable. In the case of any
Expense as to which such an objection has been made, or any Expense for which no
advance has been made, the incurrence of that Expense will be presumed to have
been reasonable, and the Company will have the burden of proof to overcome that
presumption.
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Subject to the provisions of the preceding paragraph, the advancement
of Expenses to Indemnitee under Section 3 will not, of itself, create a
presumption that the Proceeding or Claim therein to which those Expenses relate
is a Proceeding or Claim of the type to which Section 2(a) applies. If the
Company, prior to or in connection with the making any advance of Expenses under
Section 3 to or for the benefit of Indemnitee, notifies Indemnitee in writing
that the Proceeding or any Claim therein is or reasonably could be expected to
be in whole or in any specified part not one to which Section 2(a) applies,
Indemnitee will, to the extent those Expenses are reasonably allocable among the
claims, issues and matters involved in that Proceeding, cause Indemnitee's
counsel and other service providers to effect that allocation.
Section 6. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. (a) In
making a determination under Section 5(c) with respect to entitlement to
indemnification under Section 2(a), the person, persons or entity making that
determination must presume that Indemnitee is entitled to that indemnification
if Indemnitee has submitted a request for indemnification in accordance with
Section 5(a), and the Company will 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.
(b) The termination of any Proceeding or of any Claim therein, by
judgment, order, settlement or conviction, or on a plea of nolo contendere or
its equivalent, will not, except as this Agreement otherwise expressly provides,
of itself adversely affect the right of Indemnitee to indemnification hereunder
or, in the case of any determination under Section 5(c) of Indemnitee's
entitlement to indemnification under Section 2(a), create a presumption that
Indemnitee did not act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company or, with
respect to any criminal action or proceeding, that Indemnitee had reasonable
cause to believe that Indemnitee's conduct was unlawful.
(c) Any service of Indemnitee as a Functionary of the Company or any
Related Enterprise which imposes duties on, or involves services by, Indemnitee
with respect to any Related Enterprise that is an employee benefit or welfare
plan or related trust, if any, or the participants or beneficiaries of that plan
or trust will be deemed for all purposes hereof as service at the request of the
Company. Any action Indemnitee takes or omits to take in connection with any
such plan or trust will, if taken or omitted in good faith by Indemnitee and in
a manner Indemnitee reasonably believed to be in the interest of the
participants in or beneficiaries of that plan or trust, be deemed to have been
taken or omitted in a manner "not opposed to the best interests of the Company"
for all purposes hereof.
Service by a person as an agent or representative of an Enterprise
means service on behalf of that Enterprise in its relations with persons and
entities other than the Affiliates and Functionaries of that Enterprise.
(d) For purposes of any determination hereunder as to whether
Indemnitee has performed services or engaged in conduct on behalf of any
Enterprise in good faith, Indemnitee will be deemed to have acted in good faith
if Indemnitee acted in reliance on the records of the Enterprise or on
information, opinions, reports or statements, including financial statements and
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other financial information, concerning the Enterprise or any other Person which
were prepared or supplied to Indemnitee by:
(1) one or more of the officers or employees of the Enterprise;
(2) 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
(3) any committee of the board of directors or equivalent managing
body of the Enterprise of which Indemnitee is or was, at the relevant time,
not a member;
provided, however, that if Indemnitee has actual knowledge as to any matter that
makes any such reliance unwarranted as to that matter, this Section 6(d) will
not entitle Indemnitee to any presumption that Indemnitee acted in good faith
respecting that matter.
(e) For purposes of any determination hereunder as to whether
Indemnitee is entitled to indemnification under Section 2(a), neither the
knowledge nor the conduct of any other Functionary of the Company or any Related
Enterprise, other than Indemnitee, shall be imputed to Indemnitee, but
Indemnitee will be irrebutably presumed to have read and understood the
Company's code of business conduct for purposes of any determination under the
Charter Documents or this Agreement as to whether Indemnitee has performed
services or engaged in conduct on behalf of any Enterprise in good faith.
(f) 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 ever is served with process or makes an appearance in that
Proceeding.
(g) If Indemnitee serves or served as a Functionary of a Related
Enterprise, that service will be deemed to be "at the request of the Company"
for all purposes hereof notwithstanding that the request is not evidenced by a
writing or shown to have been made orally. In the event the Company were to
extend the rights of indemnification and advancement of Expenses hereunder to
Indemnitee's serving at the request of the Company as a Functionary of any
Enterprise other than the Company or a Related Enterprise, Indemnitee must show
that the request was made by the Board or at its authorization.
Section 7. REMEDIES OF INDEMNITEE IN CERTAIN CASES. (a) If Indemnitee
makes a written request in compliance with Section 5(a) for indemnification
under Section 2(a) and either:
(1) no determination as to the entitlement of Indemnitee to that
indemnification is made before the last to occur of (A) the close of
business on the date, if any, the Company has specified under Section 5(a)
as the outside date for that determination or (B) the elapse of the 45-day
period beginning the day after the date the Company receives that request;
or
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(2) a determination is made under Section 5(c) that Indemnitee is not
entitled to that indemnification in whole or in any part in respect of any
Claim to which that request related,
Indemnitee will be entitled to an adjudication from the Court of Chancery of
Indemnitee's entitlement to that indemnification. Alternatively, Indemnitee, at
Indemnitee's option, may seek an award in arbitration to be conducted by a
single arbitrator in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. In the case of any determination under Section
5(c) that is adverse to Indemnitee, Indemnitee must commence any such judicial
proceeding or arbitration within 180 days following the date on which Indemnitee
first has the right to commence that proceeding under this Section 7(a) or
Indemnitee will be bound by that determination for all purposes of this
Agreement.
(b) If a determination has been made under Section 5 that Indemnitee
is not entitled to indemnification hereunder, any judicial proceeding or
arbitration commenced under this Section 7 will be conducted in all respects as
a de novo trial or arbitration on the merits, and Indemnitee will not be
prejudiced by reason of that adverse determination. In any judicial proceeding
or arbitration commenced under this Section 7, the Company will have the burden
of proving that Indemnitee is not entitled to indemnification hereunder, and the
Company may not, for any purpose, refer to or introduce into evidence any
determination under Section 5(c) which is adverse to Indemnitee.
(c) If a determination has been made under Section 5 that Indemnitee
is entitled to indemnification hereunder, the Company will be bound by that
determination in any judicial proceeding or arbitration Indemnitee thereafter
commences under this Section 7 or otherwise, absent:
(1) a misstatement by Indemnitee of a material fact, or an omission
by Indemnitee of a material fact necessary to make Indemnitee's statements
not materially misleading, in connection with Indemnitee's request for
indemnification; or
(2) a prohibition of that indemnification under applicable law.
(d) If Indemnitee, under this Section 7 or otherwise, seeks a
judicial adjudication of or an award in arbitration to enforce Indemnitee's
rights under this Agreement, Indemnitee will be entitled to recover from the
Partnership, and will be indemnified by the Partnership against, any and all
Expenses reasonably incurred by or on behalf of Indemnitee in that judicial
adjudication or arbitration, but only if Indemnitee prevails therein. If it is
determined in that judicial adjudication or arbitration that Indemnitee is
entitled to receive part of, but not all, the indemnification or advancement of
expenses sought, the expenses incurred by Indemnitee in connection with that
judicial adjudication or arbitration will be appropriately prorated between
those in respect of which this Agreement entitles Indemnitee to indemnification
and those Indemnitee must bear.
(e) In any judicial proceeding or arbitration under this Section 7,
the Company:
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(1) will not, and will not permit any other Person acting on its
behalf to, assert that the procedures or presumptions this Agreement
establishes are not valid, binding and enforceable; and
(2) will stipulate that it is bound by all the provisions hereof.
Section 8. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION. (a) The rights to indemnification and advancement of Expenses and
the remedies this Agreement provides are not and will not be deemed exclusive of
any other rights or remedies to which Indemnitee may at any time be entitled
under applicable law, the Company's Charter Documents, any agreement, a vote of
unitholders of the Partnership or Disinterested Directors, or otherwise, but
each such right or remedy hereunder will be cumulative with all such other
rights and remedies. No amendment, alteration or termination of this Agreement
or any provision hereof will limit or restrict any right of Indemnitee hereunder
in respect of any action Indemnitee has taken or omitted in Indemnitee's
capacity as a Functionary of the Company or any Related Enterprise prior to that
amendment, alteration or termination.
(b) If the Company maintains an insurance policy or policies
providing liability insurance for Functionaries of the Company or of any Related
Enterprise who serve or served in the same capacities as Indemnitee, Indemnitee
will be covered by the policy or policies in accordance with its or their terms
to the maximum extent of the coverage available for any such Functionary under
the policy or policies. If the Company receives written notice from any source
of a pending Proceeding to which Indemnitee is a party and in respect of which
Indemnitee might be entitled to indemnification under Section 2(a) and the
Company then maintains any such policy of which Indemnitee is a beneficiary, the
Company will:
(1) promptly give notice of that Proceeding to the relevant insurers
in accordance with the applicable policy procedures; and
(2) thereafter take all action necessary to cause those insurers to
pay, on behalf of Indemnitee, all amounts payable in accordance with the
applicable policy terms as a result of that Proceeding;
provided, however that the Company need not comply with the provisions of this
sentence if its failure to do so would not actually be prejudicial to Indemnitee
in any material respect.
(c) The Partnership will not be liable under this Agreement to make
or cause to be made any payment of amounts otherwise indemnifiable hereunder, or
to make or cause to be made any advance this Agreement otherwise requires it to
make or cause to be made, to or for the account of Indemnitee, if and to the
extent that Indemnitee has otherwise actually received or had applied for
Indemnitee's benefit that payment or advance or obtained the entire benefit
therefrom under any insurance policy, any other contract or agreement or
otherwise.
(d) If the Partnership makes or causes to be made any payment
hereunder, it will be subrogated to the extent of that payment to all the rights
of recovery of Indemnitee, who will execute all papers required and take all
action necessary to secure those rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce those rights.
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(e) The Partnership's obligation to make or cause to be made any
payment or advance hereunder to or for the account of Indemnitee with respect to
Indemnitee's service at the request of the Company as a Functionary of any
Related Enterprise will be reduced by any amount Indemnitee has actually
received as indemnification or advancement of expenses from that Related
Enterprise.
Section 9. DURATION OF AGREEMENT; BINDING EFFECT. This Agreement will
continue until and terminate on the later of:
(1) 10 years after the date that Indemnitee has ceased to serve as a
Functionary of the Company and each Related Enterprise that Indemnitee
served at the request of the Company; or
(2) 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 under Section 7 or otherwise.
This Agreement will be binding on the Company and its successors and assigns and
will inure to the benefit of Indemnitee and his spouse, if Indemnitee resides in
Texas or another community property state, heirs, executors and administrators.
Section 10. SEVERABILITY. If any provision or provisions hereof is or
are invalid, illegal or unenforceable for any reason whatsoever:
(1) the validity, legality and enforceability of the remaining
provisions hereof, including each portion of any Section containing any
such invalid, illegal or unenforceable provision which is not itself
invalid, illegal or unenforceable, will not in any way be affected or
impaired thereby;
(2) such provision or provisions will 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
(3) to the fullest extent possible, the provisions hereof, including
each portion of any Section containing any such invalid, illegal or
unenforceable provision which is not itself invalid, illegal or
unenforceable, will be construed so as to give effect to the intent
manifested thereby.
Section 11. EXCEPTIONS TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES. No provision in this Agreement will obligate the Partnership to pay or
cause to be paid any indemnity to or for the account of Indemnitee, or to
advance or cause to be advanced Expenses under Section 3, in connection with or
as a result of:
(1) any Claim made against Indemnitee for an accounting of profits,
under Section 16(b) of the Exchange Act or similar provision of state
statutory or common law, from the purchase and sale, or sale and purchase,
by Indemnitee of securities of the Company or any Related Enterprise;
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(2) any Company Claim made against Indemnitee for:
(A) any unauthorized conversion to personal use, embezzlement or
misappropriation of assets of the Company or any Related Enterprise or
any transaction from which Indemnitee derived an improper personal
benefit;
(B) any forgery or alteration of negotiable instruments of the
Company or any Related Enterprise;
(C) any falsification of the records or financial statements of
the Company or any Related Enterprise for personal or other reasons;
or
(D) any breach of a contractual obligation to pay or repay or
otherwise return money to the Company or any Related Enterprise; or
(3) except for any Claim initiated by Indemnitee, whether as a cause
of action or as a defense to a cause of action under Section 7 or
otherwise, to enforce or establish, by declaratory judgment or otherwise,
Indemnitee's rights or remedies hereunder, any Claim initiated by
Indemnitee without the prior authorization of the Board against the Company
or any Related Enterprise or any of their respective present or former
Functionaries.
Section 12. IDENTICAL COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which will for all purposes be deemed to be an
original but all of which together will 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.
Section 13. HEADINGS. The headings of the Sections hereof are inserted
for convenience only and do not and will not be deemed to constitute part of
this Agreement or to affect the construction thereof.
Section 14. DEFINITIONS AND DEFINITIONAL PROVISIONS. (a) For purposes
of this Agreement:
"AFFILIATE" has the meaning Exchange Act Rule 12b-2 specifies.
"BOARD" means the Board of Directors of the Company.
"CHARTER DOCUMENTS" means, with respect to any corporation or other
entity at any time, in each case as amended, modified and supplemented at
that time:
(1) the articles or certificate of formation, incorporation or
organization, or the equivalent organizational documents, of that
entity;
(2) the bylaws or limited liability company agreement or
regulations, limited partnership agreement, or the equivalent
governing documents, of that entity; and
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(3) each document setting forth the designation, amount and
relative rights, limitations and preferences of any class or series of
that entity's capital stock or other equity interests.
"CLAIM" means any claim for damages or a declaratory, equitable or
other substantive remedy, or any other issue or matter, in any Proceeding.
"COMPANY CLAIM" means any Claim brought by or in the right of the
Company or a Related Enterprise against Indemnitee.
"COURT OF CHANCERY" means the Court of Chancery of the State of
Delaware.
"DISINTERESTED DIRECTOR" means a director of the Company who is not
and was not a party to the Proceeding, or any Claim therein, in respect of
which indemnification is sought by Indemnitee hereunder.
"ENTERPRISE" means any business trust, corporation, joint venture,
limited liability company, partnership or other entity or enterprise,
including any operational division of any entity or any operational group
of entities or divisions of entities, or any employee benefit or welfare
plan or related trust.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPENSES" include all 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, all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, being or preparing to be a witness
in, or otherwise participating in, a Proceeding. Should any payments by the
Company or a Company Entity to or for the account of Indemnitee under this
Agreement be determined to be subject to any federal, state or local income
or excise tax, "Expenses" also will 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 no such tax been
determined to apply to those payments.
"FUNCTIONARY" of any Enterprise means any natural person who is a
director, officer, manager, administrator, employee, agent, representative
or other functionary of that Enterprise, including, in the case of any
employee benefit or welfare plan, any member of any committee administering
that plan or any individual to whom the duties of that committee are
delegated.
"INDEPENDENT COUNSEL" means in the case of any determination under
Section 5 a law firm, or a member of a law firm that or who is experienced
in matters of corporation law and neither presently is, nor in the past
five years has been, retained to represent:
(1) the Company or any of its Affiliates or Indemnitee in any
matter material to any such Person; or
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(2) any other party to the Proceeding giving rise to a claim for
indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" does not
include at any time any Person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or a Related Enterprise or Indemnitee in an
action to determine Indemnitee's rights under this Agreement.
"PARTNERSHIP ENTITY" means any Related Enterprise, other than an
employee benefit or welfare plan or its related trust, if any.
"PERSON" means any natural person, sole proprietorship, corporation,
partnership, limited liability company, business trust, unincorporated
organization or association, mutual company, joint stock company, joint
venture or any other entity of any kind having a separate legal status or
any estate, trust, union or employee organization or governmental
authority.
"PROCEEDING" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution procedure, investigation,
inquiry or other threatened, actual or completed proceeding, whether of a
civil, criminal, administrative, investigative or private nature and
irrespective of the initiator thereof, and any appeal in any such
proceeding.
"RELATED ENTERPRISE" means at any time any Enterprise:
(1) 50% or more of the outstanding capital stock or other
ownership interests of which, or the assets of which, the Company owns
or controls, or previously owned or controlled, directly or
indirectly, at that time;
(2) 50% or more of the outstanding voting power of the
outstanding capital stock or other ownership interests of which the
Company owns or controls, or previously owned or controlled, directly
or indirectly, at that time;
(3) that is, or previously was, an Affiliate of the Company
which the Company controls, or previously controlled, by ownership,
contract or otherwise and whether alone or together with another
Person, directly or indirectly, at that time; or
(4) if that Enterprise is an employee benefit or welfare plan or
related trust, whose participants or beneficiaries are present or
former employees of the Company or any other Related Enterprise.
(b) This Agreement uses the words "herein," "hereof" and "hereunder"
and words of similar import to refer to this Agreement as a whole and not to any
provision of this Agreement, and the words "Section" and "Preliminary Statement"
refer to Sections of and the Preliminary Statement in this Agreement, unless it
otherwise specifies.
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(c) Whenever the context so requires, the singular number includes
the plural and vice versa, and a reference to one gender includes the other
gender and the neuter.
(d) The word "including," and, with correlative meaning, the word
"include," means including, without limiting the generality of any description
preceding that word, and the words "shall" and "will" are used interchangeably
and have the same meaning.
(e) The language this Agreement uses will be deemed to be the
language the parties hereto have chosen to express their mutual intent, and no
rule of strict construction will be applied against either party hereto.
Section 15. MODIFICATION AND WAIVER. No supplement to or modification
or amendment of this Agreement will be binding unless executed in writing by
both parties hereto. No waiver of any provision hereof will be deemed or will
constitute a waiver of any other provision hereof, whether or not similar, nor
will any such waiver constitute a continuing waiver.
Section 16. RELIANCE. The Company confirms and agrees with Indemnitee
that it has entered into this Agreement and assumed the obligations this
Agreement imposes on it in order to induce Indemnitee to serve, or continue to
serve, as a Functionary of the Company or a Related Enterprise. The Company
acknowledges that Indemnitee is relying on this Agreement in so serving.
Section 17. NOTICES. All notices, requests, demands and other
communications hereunder must be in writing or by electronic transmission and
will be deemed delivered and received:
(1) if personally delivered or if delivered by telex, telegram,
facsimile, electronic transmission or courier service, when actually
received by the party to whom the notice or communication is sent; or
(2) if delivered by mail, whether actually received or not, at
the close of business on the third business day in the city in which
the Company's principal executive office is located next following the
day when placed in the U.S. mail, postage prepaid, certified or
registered, addressed to the appropriate party at the address of that
party set forth below, or at such other address as that party may
designate by notice in writing or by electronic transmission to the
other party in accordance herewith:
(3) If to Indemnitee, to:
Xxxxxxx X. Xxxxxxxxxx
0000 Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxxx, X.X. 00000
with a copy, which will not constitute notice for purposes of
this Agreement, to such legal counsel, if any, as Indemnitee may
designate in writing or by electronic transmission; and
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(4) If to the Company, to:
K-Sea General Partner G.P., L.L.C.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
Fax No.:(000) 000-0000
E-mail: xxxxxxxxxxx@x-xxx.xxx
Section 18. CONTRIBUTION. If it is established, under Section 5(c) or
otherwise, that Indemnitee has the right to be indemnified under Section 2(a) in
respect of any claim, but that right is unenforceable by reason of any
applicable law or public policy, then, to the fullest extent applicable law
permits, the Partnership, in lieu of indemnifying or causing the indemnification
of Indemnitee under Section 2(a), will, or will cause a Partnership Entity to,
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 Claim, in such proportion
as is deemed fair and reasonable in light of all the circumstances of that Claim
in order to reflect:
(1) the relative benefits Indemnitee and the Partnership have
received as a result of the event(s) or transaction(s) giving rise to that
Claim; or
(2) the relative fault of Indemnitee and of the Partnership and its
other Functionaries in connection with those event(s) or transaction(s).
Section 19. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement
and the legal relations among the parties will 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. Except with respect to any arbitration Indemnitee
commences under Section 7 or as Section 2(a) expressly contemplates otherwise,
the Company and Indemnitee hereby irrevocably and unconditionally:
(1) agree that any action or proceeding arising out of or in
connection with this Agreement will be brought only in the Court of
Chancery and not in any other state or federal court in the United States
of America or any court in any other country;
(2) consent to submit to the exclusive jurisdiction of the Court of
Chancery for purposes of any action or proceeding arising out of or in
connection with this Agreement;
(3) waive any objection to the laying of venue of any such action or
proceeding in the Court of Chancery; and
(4) waive, and agree not to plead or to make, any claim that any such
action or proceeding brought in the Court of Chancery has been brought in
an improper or otherwise inconvenient forum.
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Section 20. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the Company and Indemnitee, and supersedes
all prior oral, written or implied agreements and understandings of the Company
and Indemnitee with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
ATTEST: K-SEA GENERAL PARTNER GP LLC
By: /S/ XXXXXXX X. XXXXXXXXXX By: /S/ XXXXXXX X. XXXXX
---------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxx
PRESIDENT
ATTEST: K-SEA GENERAL PARTNER L.P.
By: K-SEA GENERAL PARTNER GP LLC,
its general partner
By: /S/ XXXXXXX X. XXXXXXXXXX By: /S/ XXXXXXX X. XXXXX
---------------------------------- ---------------------------
Xxxxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxx
PRESIDENT
ATTEST: K-SEA TRANSPORTATION PARTNERS L.P.
By: K-SEA GENERAL PARTNER L.P.,
its general partner
By: K-SEA GENERAL PARTNER GP LLC,
its general partner
By: /S/ XXXXXXX X. XXXXXXXXXX By: /S/ XXXXXXX X. XXXXX
---------------------------------- -----------------------
Xxxxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxx
PRESIDENT
ATTEST: INDEMNITEE:
By: /S/ XXXXXXX X. XXXXXXXXXX /S/ XXXXXXX X. XXXXXXXXXX
---------------------------------- ---------------------------------------
Xxxxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxxxxxxx
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