EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of ___________,
2006 by and between DELEK US HOLDINGS, INC., a Delaware corporation (the
"Company"), and ______________ ("Indemnitee").
W I T N E S S E T H:
WHEREAS, highly competent persons have become more reluctant to serve
publicly-held corporations as directors, officers or in other capacities unless
they are provided with adequate protection through insurance and/or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of a corporation;
WHEREAS, the uncertainties relating to such insurance and indemnification
have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company's stockholders and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future;
WHEREAS, although Indemnitee may be entitled to indemnification pursuant
to the Company's certificate of incorporation, as amended (the "Certificate of
Incorporation"), the Company's bylaws and the Delaware General Corporation Law
("DGCL"), the DGCL expressly provides that the indemnification provisions set
forth therein are not exclusive, and thereby contemplates that contracts may be
entered into between the Company and members of the Board, officers and other
persons with respect to indemnification;
WHEREAS, it is reasonable, prudent and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses on behalf
of, such persons to the fullest extent permitted by applicable law so that they
will serve or continue to serve the Company free from undue concern that they
will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the
Certificate of Incorporation and the bylaws of the Company and any resolutions
adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee believes that this Agreement is desirable to augment
the protection available under the Certificate of Incorporation and the
Company's bylaws and insurance, and may not be willing to serve as a director or
officer or in other capacities without the additional protection provided for
under this Agreement, and the Company desires Indemnitee to serve in such
capacity and Indemnitee is willing to serve and continue to serve on the
condition that he or she be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Services to the Company. Indemnitee will serve or continue to serve, at
the will of the Company in accordance with the Company's bylaws, as a director
or officer of one or more Enterprises for so long as Indemnitee is duly elected,
appointed or requested or until Indemnitee tenders his or her resignation from
all Enterprises.
2. Definitions. As used in this Agreement:
(a) A "Change in Control" shall be deemed to occur upon the earliest
to occur after the date of this Agreement of any of the following events:
(i) Change in Board of Directors. During any period of two (2)
consecutive years (not including any period prior to the execution
of this Agreement), individuals who at the beginning of such period
constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in Sections 2(a)(ii) or
2(a)(iii)) whose election by the Board or nomination for election by
the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority of the members of the
Board;
(ii) Corporate Transactions. The effective date of a merger or
consolidation of the Company with any other entity, other than a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) more than 51% of the combined voting power of the
voting securities of the surviving entity outstanding immediately
after such merger or consolidation and with the power to elect at
least a majority of the board of directors or other governing body
of such surviving entity;
(iii) Liquidation. The approval by the stockholders of the
Company of a complete liquidation of the Company or an agreement for
the sale or disposition by the Company of all or substantially all
of the Company's assets; and
(iv) Other Events. There occurs any other event of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or a response to any similar item on
any similar schedule or form) promulgated under the Exchange Act (as
defined below), whether or not the Company is then subject to such
reporting requirement.
(b) "Corporate Status" describes the status of a person who is or
was a director, officer, trustee, partner, managing member, fiduciary,
employee or agent of the Company or
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of any other corporation, limited liability company, limited or general
partnership or joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of the
Company.
(c) "Disinterested Director" means a director of the Company who is
not and was not a party to the Proceeding (as defined below) in respect of
which indemnification is sought by Indemnitee.
(d) "Enterprise" shall mean the Company and any other corporation,
limited liability company, limited or general partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or
was serving at the request of the Company as a director, officer, trustee,
partner, managing member, employee, agent or fiduciary.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(f) "Expenses" shall include all reasonable attorneys' fees and
expenses, retainers, court costs, transcript costs, fees of experts
(including, without limitation, auditors and accountants), 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, being or
preparing to be a witness in, or otherwise participating in, a Proceeding.
Expenses also shall include Expenses incurred in connection with any
appeal(s) resulting from any Proceeding, including, without limitation,
the premium, security for and other costs relating to any cost bond,
supersedeas bond or other appeal bond or its equivalent. Expenses,
however, shall not include amounts paid in settlement by Indemnitee or the
amount of judgments or fines against Indemnitee. Should any payments by
the Company to or for the account of an Indemnitee under this Agreement be
determined to be subject to any federal, state or local income or excise
tax, Expenses shall 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 no such tax been
determined to apply to those payments.
(g) "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 (5) years has been, retained to
represent: (i) any Enterprise, Delek Group Ltd. or any affiliate thereof
or Indemnitee in any matter material to any such party (other than with
respect to matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel"
shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement.
(h) The term "Proceeding" shall include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether
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brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which Indemnitee was,
is or will be involved as a party or otherwise by reason of the fact that
Indemnitee is or was a director or officer of the Company, by reason of
any action taken (or failure to act) by him or her or any action (or
failure to act) on his or her part while acting as a director or officer
of the Company, or by reason of the fact that he or she is or was serving
at the request of the Company as a director, officer, trustee, partner,
managing member, fiduciary, employee or agent of any Enterprise, in each
case whether or not serving in such capacity at the time any liability or
expense is incurred for which indemnification, reimbursement or
advancement of expenses can be provided under this Agreement, except one
initiated by Indemnitee to enforce his or her rights under this Agreement;
provided that, the term "Proceeding" shall not include any threatened,
pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding by Indemnitee against
the Company, including, without limitation, proceedings initiated by
Indemnitee or involving a counterclaim by Indemnitee.
(i) Reference to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with
respect to any employee benefit plan; references to "serving at the
request of the Company" shall include any service as a director, officer,
employee or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to be in
the best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in 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,
or is threatened to be made, a party to or a participant in any Proceeding,
other than a Proceeding by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the
fullest extent permitted by applicable law against all Expenses, judgments,
fines, penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such Expenses, judgments, fines, penalties and amounts paid in settlement)
actually and reasonably incurred by Indemnitee or on his or her behalf in
connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Company and, in the case of a
criminal proceeding, he or she had no reasonable cause to believe that his or
her conduct was unlawful.
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, or is threatened to be made, a party to or a participant in
any Proceeding by or in the right of the Company to procure a judgment in its
favor. Pursuant to this Section 4, Indemnitee shall be indemnified to the
fullest extent permitted by applicable law against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in connection with
such Proceeding or any claim, issue or matter therein, if Indemnitee acted in
good faith and in a manner he or she reasonably believed to be in or
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not opposed to the best interests of the Company. No indemnification for
Expenses shall be made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a court to be
liable to the Company unless, and then only to the extent that, the Delaware
Court of Chancery or any court in which the Proceeding was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification.
5. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, to the
fullest extent permitted by applicable law and to the extent that Indemnitee is
a party to (or a participant in) and is successful, on the merits or otherwise,
in any Proceeding or in defense of any claim, issue or matter therein, in whole
or in part, the Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by him or her in connection therewith. If Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by him or her or on his or her behalf in connection with
each successfully resolved claim, issue or matter. If Indemnitee is not wholly
successful in such Proceeding, the Company also shall indemnify Indemnitee
against all Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which Indemnitee was
successful. For purposes of this Section 5 and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
6. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the fullest extent permitted by applicable law
and to the extent that Indemnitee is, by reason of his or her Corporate Status,
a witness in any Proceeding to which Indemnitee is not a party, he or she shall
be indemnified against all Expenses actually and reasonably incurred by him or
her or on his or her behalf in connection therewith.
7. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4 or 5, the
Company shall indemnify Indemnitee to the fullest extent permitted by applicable
law if Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the Company to procure
a judgment in its favor) against all Expenses, judgments, fines, penalties and
amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect to such Expenses,
judgments, fines, penalties and amounts paid in settlement) actually and
reasonably incurred by Indemnitee in connection with the Proceeding; provided,
however, that the Company shall have the right to consent to any settlement,
which consent shall not be unreasonably withheld. No indemnity shall be made
under this Section 7(a) on account of Indemnitee's conduct which constitutes a
breach of Indemnitee's duty of loyalty to the Company or its stockholders or is
an act or omission not in good faith or which involves intentional misconduct or
a knowing violation of the law.
(b) For purposes of Section 7(a), the meaning of the phrase "to the
fullest extent permitted by applicable law" shall include, but not be limited
to: (i) to the fullest extent permitted by
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the provision of the DGCL that authorizes or contemplates additional
indemnification by agreement, or the corresponding provision of any amendment to
or replacement of the DGCL; and (ii) to the fullest extent authorized or
permitted by any amendments to or replacements of the DGCL adopted after the
date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors and persons serving in certain other
capacities at the request of a corporation.
8. Exclusions. Notwithstanding any other provision in this Agreement, the
Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of
Indemnitee under any insurance policy or under another valid and
enforceable indemnity provision, except with respect to any excess beyond
the amount paid under any insurance policy or other indemnity provision
and except for any payments which are required to be disgorged by
Indemnitee; or
(b) for an accounting of profits made from the purchase and sale (or
sale and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Exchange Act or similar provisions of
other federal or state statutory law or common law; or
(c) except as otherwise provided in Section 13(e), in connection
with any Proceeding (or any part of any Proceeding) initiated by
Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company's directors, officers,
employees or other indemnitees, unless (i) such indemnification is
expressly required to be made by applicable law, (ii) the Board authorized
the Proceeding (or any part of the Proceeding) prior to its initiation or
(iii) the Company provides the indemnification, in its sole discretion,
pursuant to the powers vested in the Company to the fullest extent
permitted by applicable law.
9. Advances of Expenses. Notwithstanding any provision of this Agreement
to the contrary, to the fullest extent permitted by applicable law the Company
shall advance the expenses incurred by Indemnitee in connection with any
Proceeding within thirty (30) days after the receipt by the Company of a
statement or statements requesting such advances from time to time, whether
prior to or after final disposition of any Proceeding. Advances shall be
unsecured and interest free. Advances shall be made without regard to
Indemnitee's ability to repay the expenses and without regard to Indemnitee's
ultimate entitlement to indemnification under the other provisions of this
Agreement. Advances shall include any and all reasonable Expenses incurred
pursuing an action to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the
advances claimed. Indemnitee shall qualify for advances solely upon the
execution and delivery to the Company of an undertaking providing that
Indemnitee undertakes to repay the advance to the extent that it is ultimately
determined that Indemnitee is not entitled to be indemnified by the Company.
This Section 9 shall not apply to any claim made by Indemnitee for which
indemnity is excluded pursuant to Section 8.
10. Procedure for Notification and Defense of Claim.
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(a) Within thirty (30) days after service of process on Indemnitee
relating to notice of the commencement of any Proceeding, Indemnitee shall
submit to the Company a written request, including therein or therewith 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 indemnification. The omission to notify the Company within such
thirty (30) day period will not relieve the Company from any liability which it
may have to Indemnitee under this Agreement except to the extent the failure of
Indemnitee to provide such notice within thirty (30) days after receipt by
Indemnitee of notice of the commencement of any Proceeding adversely affects the
Company's rights, legal position, ability to defend or ability to obtain
insurance coverage with respect to such Proceeding. The omission to notify the
Company will not relieve the Company from any liability which it may have to
Indemnitee otherwise than under this Agreement. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise the
Board in writing that Indemnitee has requested indemnification.
(b) If the Company shall be obligated to pay the Expenses of any
Proceeding against Indemnitee, the Company shall be entitled to assume and
control the defense of such Proceeding (with counsel consented to by Indemnitee,
which consent shall not be unreasonably withheld), upon the delivery to
Indemnitee of written notice of its election so to do. After delivery of such
notice, consent to such counsel by Indemnitee and the retention of such counsel
by the Company, the Company will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same Proceeding, provided that if (i) the employment of separate
counsel by Indemnitee has been previously authorized by the Company, (ii)
Indemnitee or counsel selected by the Company shall have concluded that there
may be a conflict of interest between the Company and Indemnitee or among
Indemnitees jointly represented in the conduct of any such defense or (iii) the
Company shall not, in fact, have employed counsel, to which Indemnitee has
consented as aforesaid, to assume the defense of such Proceeding, then the
reasonable fees and expenses of Indemnitee's counsel shall be at the expense of
the Company. Notwithstanding the foregoing, Indemnitee shall have the right to
employ counsel in any such Proceeding at Indemnitee's expense.
(c) The Company will be entitled to participate in the Proceeding at
its own expense. The Company will not, without prior written consent of
Indemnitee, effect any settlement of a claim against Indemnitee in any
threatened or pending Proceeding unless such settlement solely involves the
payment of money and includes an unconditional release of Indemnitee from all
liability on any claims that are or were threatened to be made against
Indemnitee in the Proceeding.
11. Procedure Upon Application for Indemnification.
(a) Upon written request by Indemnitee for indemnification pursuant
to the first sentence of Section 10(a), 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, by
Independent Counsel in a written opinion to the Board, 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, (B) by a committee of Disinterested Directors designated by
a majority vote of the Disinterested Directors, even though less than a quorum
of the Board, (C) if there are no such Disinterested Directors or, if such
Disinterested
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Directors so direct, by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee or (D) if so directed by the
Board, by the stockholders of the Company; and, if it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within ten (10) days after such determination. Indemnitee shall cooperate with
the person, persons or entity making such determination with respect to
Indemnitee's entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and expenses and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee's entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 11(a) hereof, the
Independent Counsel shall be selected as provided in this Section 11(b). If a
Change in Control shall not have occurred, the Independent Counsel shall be
selected by the Board, and the Company shall give written notice to Indemnitee
advising him or her 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, 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 ten (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
Section 2(g) of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If such
written objection is so made and substantiated, the Independent Counsel so
selected may not serve as Independent Counsel unless and until such objection is
withdrawn or a court of competent jurisdiction has determined that such
objection is without merit. If, within twenty (20) days after submission by
Indemnitee of a written request for indemnification pursuant to Section 10(a)
hereof, no Independent Counsel shall have been selected and not objected to,
either the Company or Indemnitee may petition a court of competent jurisdiction
(the "Court") for resolution of any objection which shall have been made by the
Company or Indemnitee to the other's selection of Independent Counsel and/or for
the appointment as Independent Counsel of a person selected by the Court or by
such other person as the Court shall designate, and the person with respect to
whom all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 11(a) hereof. Upon the due commencement of any
judicial proceeding or arbitration pursuant to Section 13(a) of this Agreement,
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(c) The Company agrees to pay the reasonable fees and expenses of
the Independent Counsel selected as provided in this Section 11 and to fully
indemnify such counsel
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against any and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
12. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 10(a) of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the making by
any person, persons or entity of any determination contrary to that presumption.
Neither the failure of the Company (including by its directors or independent
legal counsel) to have made a determination prior to the commencement of any
action pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including by its 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 11 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within sixty (60) days after
receipt by the Company of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent a prohibition of such
indemnification under applicable law; provided, however, that such 60-day period
shall be extended for a reasonable time, not to exceed an additional thirty (30)
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; and provided, further, that the foregoing provisions of this Section
12(b) shall not apply (i) if the determination of entitlement to indemnification
is to be made by the stockholders pursuant to Section 11(a) of this Agreement
and if (A) within fifteen (15) days after receipt by the Company of the request
for such determination the Board has resolved to submit such determination to
the stockholders for their consideration at an annual meeting thereof to be held
within one hundred twenty (120) days after such receipt and such determination
is made thereat, or (B) a special meeting of stockholders is called within
fifteen (15) days after such receipt for the purpose of making such
determination, such meeting is held for such purpose within one hundred five
(105) days after having been so called and such determination is made thereat,
or (ii) if the determination of entitlement to indemnification is made by
Independent Counsel pursuant to Section 11(a) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his or her
conduct was unlawful.
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(d) For purposes of any determination of good faith, Indemnitee
shall be deemed to have acted in good faith if Indemnitee's action is based on
the records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for
the Enterprise or on information or records given or reports made to the
Enterprise by an independent certified public accountant or by an appraiser or
other expert selected by the Enterprise. The provisions of this Section 12(d)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any
director, trustee, partner, managing member, fiduciary, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
13. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to
Section 11 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made pursuant
to Section 9 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 11(a) of this Agreement
within the time period specified in Section 12(b) of this Agreement, (iv)
payment of indemnification is not made pursuant to Section 5, 6 or 7 or the last
sentence of Section 11(a) of this Agreement within ten (10) days after receipt
by the Company of a written request therefor, or (v) payment of indemnification
pursuant to Section 3, 4 or 7 of this Agreement is not made within ten (10) days
after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication by a court of
his or her entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his or her sole option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. The Company shall not
oppose Indemnitee's right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant
to Section 11(a) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 13 shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 13, the Company shall have the burden of proving
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be.
(c) If a determination shall have been made pursuant to Section
11(a) of this Agreement that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 13, absent a prohibition of such
indemnification under applicable law.
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(d) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 13 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement.
(e) The Company shall indemnify Indemnitee to the fullest extent
permitted by law against any and all Expenses and, if requested by Indemnitee,
shall (within ten (10) days after receipt by the Company of a written request
therefor) advance, to the extent not prohibited by Section 402 of the
Xxxxxxxx-Xxxxx Act of 2002 or other applicable law, such Expenses to Indemnitee
which are incurred by Indemnitee in connection with any action brought by
Indemnitee for indemnification or advance of Expenses from the Company under
this Agreement, any other agreement or provision of the Certificate of
Incorporation or the Company's bylaws or under any directors' and officers'
liability insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of Expenses or insurance recovery, as the case may be.
14. Liability Insurance. The Company represents to Indemnitee that it
presently has in place certain directors' and officers' liability insurance
policies covering the directors and officers of the Company and any other
Enterprise for losses from wrongful acts. Subject only to the provisions of this
Section 14, the Company agrees that for the duration of Indemnitee's service as
a director and/or officer of the Company and/or any other Enterprise, and
thereafter for so long as Indemnitee shall be subject to any pending or possible
Proceeding, the Company shall use commercially reasonable efforts (taking into
account the scope and amount of coverage available relative to the cost thereof)
to cause to be maintained in effect one or more policies of directors' and
officers' liability insurance with reputable insurers providing coverage for
directors and/or officers of the Company and any other Enterprise that is at
least substantially comparable in scope and amount to that provided by the
Company's current policies of directors' and officers' liability insurance.
Notwithstanding the foregoing, the Company shall have no obligation to obtain or
maintain such insurance if the Company determines in good faith that such
insurance is not reasonably available, that the premium costs for such insurance
are disproportionate to the amount of coverage provided, that the coverage
provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or that Indemnitee is covered by similar insurance
maintained by a subsidiary or parent of the Company. The Company shall promptly
notify Indemnitee of any good faith determination not to provide such coverage.
15. Non-Exclusivity; Survival of Rights; Subrogation.
(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Certificate of Incorporation, the Company's bylaws, any agreement, a
vote of stockholders or a resolution of directors, 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 in his or her Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the Certificate
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of Incorporation, the Company's bylaws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law 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.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers, trustees,
partners, managing members, fiduciaries, employees or agents of the Company or
of any other Enterprise which such person serves at the request of the Company,
Indemnitee shall be an insured under such policy or policies in accordance with
its or their terms to the maximum extent of the coverage available for any such
director, officer, trustee, partner, managing member, fiduciary, employee or
agent under such policy or policies. The Company may, but will not be required
to, 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 satisfy the obligations to indemnify and advance
Expenses pursuant to this Agreement. If, at the time of the receipt of a notice
of a claim pursuant to the terms hereof, the Company has directors' and
officers' liability insurance in effect, the Company shall give prompt notice of
the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company and Indemnitee
shall mutually cooperate and take all reasonable actions to cause such insurers
to pay on behalf of the insureds, all amounts payable as a result of such
proceeding in accordance with the terms of all applicable policies.
(c) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder (or for which advancement
is provided hereunder) if and to the extent that Indemnitee has otherwise
actually received such payment under any insurance policy, the Certificate of
Incorporation, the Company's bylaws, contract, agreement or otherwise.
(e) The Company's obligation to indemnify or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as a
director, officer, trustee, partner, managing member, fiduciary, employee or
agent of any other Enterprise shall be reduced by any amount Indemnitee has
actually received as indemnification or advancement of expenses from such other
Enterprise.
16. Duration of Agreement, Successors and Assigns. This Agreement shall
continue until and terminate upon the later of: (a) ten (10) years after
Indemnitee has ceased to occupy any positions or have any relationships
described in Section 1 of this Agreement; and (b) the final termination of all
actions, suits, proceedings or investigations pending or threatened during such
ten (10) year period to which Indemnitee may be subject by reason of the fact
that Indemnitee is or was a
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director or officer of the Company or is or was serving at the request of the
Company as a director, officer, trustee, partner, managing member, fiduciary,
employee or agent of any other Enterprise which Indemnitee served at the request
of the Company or by reason of anything done or not done by Indemnitee in any
such capacity. This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of and be enforceable by
Indemnitee and his or her personal and legal representatives, heirs, executors,
administrators, distributees, legatees and other successors.
17. Severability. If any provision or provisions of this Agreement or any
application of any provision hereof shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; (b)
such provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby. In the event
that any court shall decline to reform a provision of the Agreement held to be
invalid, unenforceable or otherwise illegal as contemplated by the preceding
sentence, the parties hereto shall take all actions as may be necessary or
appropriate to replace the provision so held to be invalid, unenforceable or
otherwise illegal with one or more alternative provisions that effectuate the
purpose and intent of the original provisions of this Agreement as fully as
possible without being invalid, unenforceable or otherwise illegal.
18. Enforcement.
(a) The Company expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to serve as a director or officer of one or more Enterprises,
and the Company acknowledges that Indemnitee is relying upon this Agreement in
agreeing to serve and continuing to serve as a director or officer of one or
more Enterprises.
(b) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied, between the
parties hereto with respect to the subject matter hereof; provided, however,
that this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation, the bylaws of the Company and applicable law, and shall not be
deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.
(c) The indemnification and advancement of Expenses provided by or
granted pursuant to this Agreement shall apply to Indemnitee's service as a (i)
director or officer of the Company prior to the date of this Agreement and (ii)
director, officer, trustee, partner, managing member, fiduciary, employee or
agent of any other Enterprise which Indemnitee served at the request of the
Company prior to the date of this Agreement.
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19. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties
thereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions of this Agreement nor shall
any waiver constitute a continuing waiver.
20. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company
in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter
which may be subject to indemnification or advancement of Expenses covered
hereunder. The failure of Indemnitee to so notify the Company shall not relieve
the Company of any obligation which it may have to Indemnitee under this
Agreement or otherwise.
21. Notices. Any notices, requests, demands or other communications
required or permitted under, or otherwise in connection with this Agreement,
shall be in writing and shall be deemed to have been duly given when delivered
in person or upon confirmation of receipt when transmitted by facsimile
transmission (but only if followed by transmittal by national overnight courier
or hand for delivery on the next business day) or on receipt after dispatch by
registered or certified mail, postage prepaid, addressed, or on the next
business day if transmitted by national overnight courier, in each case as
follows: (i) if to the Company, to Delek US Holdings, Inc., 000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxx 00000, Attention: General Counsel (or
Attention: Chief Executive Officer if the General Counsel is the Indemnitee), or
to such other address as shall be furnished in writing to Indemnitee by the
Company; and (ii) if to Indemnitee, to such address as set forth below
Indemnitee's name on the signature page to this Agreement, or to such other
addresses as shall be furnished in writing by Indemnitee to the Company.
22. Contribution. To the fullest extent permissible by applicable law, if
the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee,
shall contribute to the amount incurred by Indemnitee, whether for judgments,
fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or
for Expenses, in connection with any claim relating to an indemnifiable event
under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the
relative fault of the Company (and its directors, officers, employees and
agents) and Indemnitee in connection with such event(s) and/or transaction(s).
23. Applicable Law and Consent to Jurisdiction. This Agreement and the
legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to its conflict of laws rules. Except with respect to any arbitration commenced
by Indemnitee pursuant to Section 13 of this Agreement, the Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought
only in the Chancery Court of the State of Delaware (the "Delaware Court"), and
not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of or
in connection with this Agreement, (iii) waive any objection to the laying of
venue of any such action or proceeding in the
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Xxxxxxxx Xxxxx, and (iv) waive, and agree not to plead or to make, any claim
that any such action or proceeding brought in the Delaware Court has been
brought in an improper or inconvenient forum.
24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
25. Miscellaneous. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate. The headings of the paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as
of the day and year first above written.
DELEK US HOLDINGS, INC.
By:
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Name:
Title:
By:
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Name:
Title:
INDEMNITEE
By:
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Name:
Address:
