Rio Vista GP LLC Indemnification Agreement
Exhibit 10.45
Rio Vista GP LLC
This Indemnification Agreement (this “Agreement”) is executed on March ___, 2007, with an
effective date of January 1, 2007 (the “Effective Date”), by and between Rio Vista GP LLC, a
Delaware limited liability company (the “Company”), and , an individual
residing in the State of (“Indemnitee”).
Indemnitee is an officer or manager of the Company or an affiliate of the Company.
The Company and Indemnitee recognize the difficulty in obtaining directors’ and officers’
liability insurance, the increases in the cost of such insurance, and the general limitations in
the coverage of such insurance.
The Company and Indemnitee further recognize the substantial increase in corporate litigation
in general, subjecting officers and managers to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited.
Indemnitee does not regard the current protection available as adequate under the present
circumstances, and Indemnitee may not be willing to serve or continue to serve as a manager or
officer of the Company without additional protection.
The Company desires to attract and retain the services of highly qualified individuals, such
as Indemnitee, to serve as officers and managers of the Company and to indemnify its officers and
managers so as to provide them with the maximum protection permitted by law.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises set forth
in this Agreement, the parties to this Agreement agree as follows:
Section 1. Indemnification.
1.1 Third Party Proceedings. The Company shall indemnify Indemnitee if he
is or was a party or is threatened to be made a party to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than
an action by or in the right of the Company) by reason of the fact that Indemnitee is or was a
manager or officer of the Company, by reason of any action or inaction on the part of Indemnitee
while a manager or officer of the Company or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, manager, officer, employee, or agent of
another corporation, limited liability company, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in
settlement (if such settlement is approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by Indemnitee in connection with such
action, suit, or proceeding, if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe Indemnitee’s conduct was
unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a manner that 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, had reasonable cause to believe that Indemnitee’s conduct was
unlawful.
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1.2 Proceedings By or in the Right of the Company. The Company shall
indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the Company or any
subsidiary of the Company to procure a judgment in its favor by reason of the fact that Indemnitee
is or was a manager or officer of the Company, or any subsidiary of the Company, by reason of any
action or inaction on the part of Indemnitee while an officer or manager or by reason of the fact
that Indemnitee is or was serving at the request of the Company as a director, manager, officer,
employee, or agent of another corporation, limited liability company, partnership, joint venture,
trust, or other enterprise, against expenses (including attorneys’ fees) and, to the fullest extent
permitted by law, amounts paid in settlement, in each case to the extent actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such action or suit, if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification shall be made pursuant
to this Section 1.2 in respect of any claim, issue, or matter as to which Indemnitee shall
have been adjudged to be liable to the Company, by the Court of Chancery of the State of Delaware
or other court in which such action or suit was brought, unless and only to the extent that such
court determines upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such
expenses that such court shall deem proper.
1.3 Mandatory Payment of Expenses. To the extent that Indemnitee has been
successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in
Sections 1.1 and 1.2 or the defense of any claim, issue, or matter in Section 1.1 or
1.2, Indemnitee shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee in connection with such defense.
1.4 Limited Liability Company Agreement. This Agreement is intended to
implement the provisions of Article 12 (Indemnification) of the Company’s limited liability company
agreement in effect as of the date hereof. Pursuant to such Article 12, if the liability, loss,
damage or claim arises out of any action or inaction of the Indemnitee, indemnification under this
Agreement shall be available only if (a) either (i) the Indemnitee, at the time of such action or
inaction, determined in good faith that its, his or her course of conduct was in, or not opposed
to, the best interests of the Company, or (ii) in the case of inaction by the Indemnitee, the
Indemnitee did not intend its, his or her inaction to be harmful or opposed to the best interests
of the Company, and (b) the action or inaction did not constitute fraud, gross negligence or
willful misconduct by the Indemnitee or a breach of the Company’s limited liability company
agreement; and provided, further, that indemnification shall be recoverable only from the assets of
the Company and not from any assets of the Company’s members. THE FOREGOING INDEMNITY IS INTENDED
TO INDEMNIFY THE INDEMNITEE FOR HIS OWN ACTS OF NEGLIGENCE AND SHALL APPLY IRRESPECTIVE OF ANY
CLAIM OF CONCURRENT OR CONTRIBUTORY NEGLIGENCE ON THE PART OF THE INDEMNITEE.
1.5 Determination That Indemnification Is Proper. Any indemnification under
this Agreement shall (unless otherwise ordered by a court) be made by the Company unless a
determination is made that indemnification of such person is not proper in the circumstances
because he or she has not met the applicable standards of conduct set forth in Section 1.1 or
1.2, as applicable, and Section 1.4 above. Any such determination shall be made (i) by
a majority vote of the managers who are not parties to the action, suit or proceeding in question
(“disinterested managers”), even if less than a quorum, (ii) by a majority vote of a committee of
disinterested managers designated by majority vote of disinterested managers, even if less than a
quorum, (iii) by a majority vote of a quorum of the members of the Company, which quorum shall
consist of members who are not at that time parties to the action, suit or proceeding in question,
(iv) by independent legal counsel, or (v) by the Court of Chancery of the State of Delaware or
other court of competent jurisdiction. Upon submission to the Company of a written request for
indemnification, Indemnitee shall be entitled to a rebuttable presumption that he has met the
applicable standard of conduct for indemnification set forth in this Section 1. The
Company shall have
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the burden of proof to overcome that presumption in connection with the making of any
determination contrary to that presumption. If the Company contests the right of Indemnitee to
indemnification, the Company shall furnish to Indemnitee a statement of reasons underlying the
Company’s position within sixty (60) days following receipt of a written request for
indemnification. If the Company fails to respond to a written request for indemnification within
such 60-day period, Indemnitee may thereafter submit to the Company a second written request for
indemnification. If the Company fails to respond to such second request within an additional
period of thirty (30) days, the Company shall thereafter be deemed to have waived its right to
contest the right of Indemnitee to indemnification under this Agreement. Nothing contained in this
Agreement shall limit the ability of the Court of Chancery of the State of Delaware or other court
of competent jurisdiction to determine that Indemnitee has or has not met the applicable standard
of conduct for indemnification.
1.6 Amendments to the Delaware Limited Liability Company Act or Limited
Liability Company Agreement. This Agreement is intended to provide indemnity to Indemnitee to
the fullest extent allowed under Delaware law and the Company’s limited liability company
agreement. Accordingly, to the extent permitted by law, if the Limited Liability Company Act of
the State of Delaware or the Company’s limited liability company agreement permits greater
indemnity than the indemnity set forth herein, or if any amendment is made to the Limited Liability
Company Act of the State of Delaware or the Company’s limited liability company agreement expanding
the indemnity permissible under law or such agreement, the indemnity obligations of the Company
contained herein shall automatically be expanded, without the necessity of action on the part of
any party, to the extent necessary to provide to Indemnitee the fullest indemnity permissible under
law or such agreement.
Section 2. Expenses: Indemnification Procedure.
2.1 Advancement of Expenses. The Company shall advance all expenses
incurred by Indemnitee, and, to the fullest extent permitted by law, amounts paid in settlement by
Indemnitee, in connection with the investigation, defense, settlement, or appeal of any civil or
criminal action, suit, or proceeding referenced in Section 1.1 or 1.2 of this Agreement.
Indemnitee hereby undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that Indemnitee is not entitled to be indemnified by the Company as
authorized by this Agreement.
2.2 Notice/Cooperation by Indemnitee. Indemnitee shall give the Company
notice in writing as soon as practicable of any claim made against Indemnitee for which
indemnification shall or could be sought under this Agreement. Notice to the Company shall be
directed to the Chief Executive Officer of the Company at the address shown on the signature page
of this Agreement, or such other address as the Company shall designate in writing to Indemnitee.
Notice shall be deemed received three business days after the date postmarked if sent by domestic
certified or registered mail, properly addressed; otherwise notice shall be deemed received when
such notice shall actually be received by the Company. In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as shall be within
Indemnitee’s power.
2.3 Procedure. Any indemnification and advances provided for in Section
1 and this Section 2 shall be made no later than 60 days after receipt of the written
request of Indemnitee. If a claim under this Agreement, under any statute, or under any provision
of the Company’s certificate of formation or limited liability company agreement providing for
indemnification, is not paid in full by the Company within 60 days after a written request for
payment of such claim has first been received by the Company, Indemnitee may, but need not, at any
time thereafter bring an action against the Company to recover the unpaid amount of the claim and,
subject to Section 10 of this Agreement, Indemnitee shall also be entitled to be paid for
the expenses (including attorneys’ fees) of bringing such action. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses incurred in connection with any action, suit, or proceeding in advance of its final disposition) that
Indemnitee has not met the standards of conduct that make
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it permissible under applicable law and
this Agreement for the Company to indemnify Indemnitee for the amount claimed, but the burden of
proving such defense shall be on the Company and Indemnitee shall be entitled to receive interim
payments of expenses pursuant to Section 2.1 unless and until such defense may be finally
adjudicated by court order or judgment from which no further right of appeal exists. It is the
parties’ intention that if the Company contests Indemnitee’s right to indemnification, the question
of Indemnitee’s right to indemnification shall be for the court to decide, and neither the failure
of the Company (including its Board of Managers, any committee or subgroup of the Board of
Managers, independent legal counsel, or its members) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by applicable law, nor an actual determination by the
Company (including its Board of Managers, any committee or subgroup of the Board of Managers,
independent legal counsel, or its members) that Indemnitee has not met such applicable standard of
conduct, shall create a presumption that Indemnitee has or has not met the applicable standard of
conduct.
2.4 Insurance; Subrogation. The Company may purchase and maintain insurance
on behalf of Indemnitee who is or was or has agreed to serve at the request of the Company as a
manager or officer of the Company, or is or was serving at the request of the Company as a
director, manager, officer, employee or agent of another corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against, and incurred by, Indemnitee or on Indemnitee’s behalf in any such capacity, or
arising out of Indemnitee’s status as such, whether or not the Company would have the power to
indemnify Indemnitee against such liability under the provisions of this Agreement. If the Company
has such insurance in effect at the time of the receipt of a notice of a claim pursuant to
Section 2.2 of this Agreement, 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 shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies. In the event of any payment by the Company on behalf
of Indemnitee under this Agreement, the Company shall be subrogated to the extent of such payment
to all of the rights of recovery of Indemnitee with respect to any insurance policy. Indemnitee
shall execute all documents required and take all action necessary to secure the Company’s
subrogation rights, including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights in accordance with the terms of such insurance policy.
2.5 Selection of Counsel. In the event the Company shall be obligated under
Section 2.1 of this Agreement to pay the expenses of any proceeding against Indemnitee, the
Company shall be entitled to assume the defense of such proceeding, with counsel approved by
Indemnitee (whose approval shall not be unreasonably withheld), upon the delivery to Indemnitee of
written notice of its election so to do. After delivery of such notice, approval of such counsel
by Indemnitee and the retention of such counsel by the Company, the Company shall not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same proceeding; provided, however, that (i) Indemnitee shall at all times
have the right to employ his own counsel in any such proceeding at Indemnitee’s sole expense, (ii)
if the Company has not, in fact, employed counsel to assume the defense of such proceeding, or if
the Company has authorized in writing the employment of counsel by Indemnitee, then the fees and
expenses of Indemnitee’s counsel shall be at the expense of the Company, and (iii) if counsel to
the Company or Indemnitee shall have reasonably concluded that there is a substantial likelihood of
a conflict of interest or position between the Company and Indemnitee in the conduct of any such
defense, then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company.
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Section 3. Nonexclusivity. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which Indemnitee may be entitled under the Company’s
certificate of formation or limited liability company agreement or the Limited Liability Company
act of the State of Delaware, or otherwise, both as to action in Indemnitee’s official capacity and
as to action in another capacity while holding such office.
Section 4. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a portion of the
expenses, judgments, fines, or penalties actually or reasonably incurred by Indemnitee in the
investigation, defense, appeal, or settlement of any civil or criminal action, suit, or proceeding,
but not, however, for the total amount of any such expenses, judgments, fines, or penalties, the
Company shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments, fines,
or penalties to which Indemnitee is entitled.
Section 5. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge
that in certain instances Federal law or applicable public policy may prohibit the Company from
indemnifying its managers or officers under this Agreement or otherwise, in which event,
notwithstanding any other provisions of this Agreement to the contrary, the indemnification
provided by this Agreement shall be limited to such extent as is necessary to comply with
applicable Federal law or public policy. For example, the Company and Indemnitee acknowledge that
the Securities and Exchange Commission (the “SEC”) has taken the position that indemnification is
not permissible for liabilities arising under certain federal securities laws, and federal
legislation prohibits indemnification for certain violations of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”). Indemnitee understands and acknowledges that in the
event the Company undertakes a public offering of its securities pursuant to a registration with
the SEC, the Company may be required to undertake with the SEC to submit the question of
indemnification to a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify Indemnitee.
Section 6. Severability. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in violation of applicable
law. The Company’s inability, pursuant to court order, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. The provisions of this Agreement shall
be severable as provided in this Section 6. If this Agreement or any portion of this
Agreement shall be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance of this Agreement
not so invalidated shall be enforceable in accordance with its terms.
Section 7. Exceptions. Any other provision in this Agreement to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
7.1 Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and
not by way of defense, except with respect to proceedings brought to establish or enforce a right
to indemnification under this Agreement or any other statute, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the Board of Managers
finds it to be appropriate;
7.2 Lack of Good Faith. To indemnify Indemnitee for any expenses incurred
by the Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret
this Agreement, if a court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous;
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7.3 Insured Claims. To indemnify Indemnitee for expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, ERISA, excise taxes or
penalties, and amounts paid in settlement) that have been paid directly to Indemnitee by an
insurance carrier under a policy of officers’ and directors’ liability insurance maintained by the
Company;
7.4 Claims Under Section 16(b). To indemnify Indemnitee for expenses and
the payment of profits arising from the purchase and sale by Indemnitee of securities in violation
of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor
statute;
7.5 Contract Claims. To indemnify Indemnitee in connection with proceedings
or claims involving the enforcement of nondisclosure, employment, consulting or similar agreements
to which the Indemnitee may be a party (excluding this Agreement) with the Company or any affiliate
of the Company.
Section 8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
Section 9. Successors And Assigns. This Agreement shall be binding upon the
Company and its successors and assigns, and shall be binding upon and inure to the benefit of
Indemnitee and his estate, heirs and legal representatives.
Section 10. Attorneys’ Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including reasonable
attorneys’ fees, incurred by Indemnitee with respect to such action, unless as a part of such
action, the court of competent jurisdiction determines that the material assertions made by
Indemnitee as a basis for such action were not made in good faith or were frivolous. In the event
of an action instituted by or in the name of the Company under this Agreement or to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid all court
costs and expenses, including attorneys’ fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee’s counterclaims and cross-claims made in such action), unless
as a part of such action the court determines that Indemnitee’s material defenses to such action
were made in bad faith or were frivolous.
Section 11. Notice. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed duly given on the third business day
after the date postmarked, if delivered by domestic certified or registered mail with postage
prepaid, or, if delivered by other means, on the date actual notice is received. Addresses for
notice to either party are as shown on the signature page of this Agreement, or as subsequently
modified by written notice.
Section 12. Consent To Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the non-exclusive jurisdiction of the courts of the State of Delaware for
all purposes in connection with any action or proceeding that arises out of or relates to this
Agreement and agree that any action instituted under this Agreement may be brought in any court of
competent jurisdiction in the State of Delaware.
Section 13. Choice Of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND ITS
PROVISIONS CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS
BETWEEN DELAWARE RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN DELAWARE.
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Section 14. Headings. The section and subsection headings contained in this
Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 15. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed to be or shall constitute a
waiver of any other provision hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
Section 16. Entire Agreement. This Agreement and the documents expressly
referred to herein constitute the entire agreement between the parties hereto with respect to the
matters covered hereby, and any other prior or contemporaneous oral or written understandings or
agreements with respect to the matters covered hereby are expressly superseded by this Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties to this Indemnification Agreement have executed this Agreement
as of the date first written above.
Rio Vista GP LLC
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