INDEMNIFICATION AGREEMENT
Exhibit 10.18
THIS AGREEMENT, made as of the 5th day of August, 2010, by and among Xxxxxxx Oil & Gas, Inc., a Louisiana corporation (the “Company”), Xxxx X. Xxxxxxx (“Xxxx X. Xxxxxxx,” collectively with the Company, “Xxxxxxx”) and Xxxxx Xxxxxxxxx (“Xxxxxxxxx”).
WHEREAS, the Company, Xxxx X. Xxxxxxx and Radiant Oil & Gas, Inc., a Nevada corporation (“Radiant”) are parties to an exchange agreement (the “Exchange Agreement”)
WHEREAS, pursuant to the Exchange Agreement, Radiant agreed to certain indemnification provisions in favor of Xxxxxxx, as set forth therein (the “Radiant Exchange Agreement Indemnities”);
WHEREAS, Xxxxxxxxx, the sole officer and director of Radiant, has agreed to indemnify Xxxxxxx for any losses resulting from the Radiant Exchange Agreement Indemnities on the terms and conditions of this Agreement;
NOW THEREFORE, intending to be legally bound hereby, and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1
Indemnification. Xxxxxxxxx hereby agrees to indemnify and hold Xxxxxxx harmless from and against any and all notices, actions, suits, proceedings, claims, demands, assessments, judgments, costs, penalties and expenses against Xxxxxxx arising out of a breach by Radiant of a representation or covenant contained in Article 7 of the Exchange Agreement. Any such notices, actions, suits, proceedings, claims, demands, assessments, judgments, costs, penalties and expenses are hereinafter collectively referred to as “Losses”. Notwithstanding anything to the contrary herein, (i) the maximum amount of Losses that Xxxxxxxxx shall be liable for pursuant to this Agreement shall be $50,000.00 and (ii) Xxxxxxxxx shall have no further liability for any Loss that Xxxxxxx identifies in a Claim (as defined below) delivered to Xxxxxxxxx after two years from the date hereof.
1.2
Compensation.
Radiant shall pay a fee of $25,000.00 to Xxxxxxxxx within five (5) calendar days of closing an aggregate amount of $2 million in debt or equity financing, which may include numerous financings commencing upon the execution of this Agreement.
1.3
Procedures.
(a)
In the event that any legal proceedings shall be instituted or that any claim or demand (“Claim”) shall be asserted by any person in respect to which payment may be sought under Section 1.1 hereof, Xxxxxxx shall reasonably and promptly cause written notice of the assertion of any Claim of which it has knowledge which is covered by this indemnity to be forwarded to Xxxxxxxxx. Xxxxxxxxx shall have the right, at its sole option and expense, to be represented by counsel of its choice, which must be reasonably satisfactory to Xxxxxxx, and to defend against, negotiate, settle or otherwise deal with any Claim which relates to any Losses indemnified against hereunder. If Xxxxxxxxx elects to defend against, negotiate, settle or otherwise deal with any Claim which relates to any Losses indemnified against hereunder, it shall within ten (10) days (or sooner, if the nature of the Claim so requires) notify Xxxxxxx of its intent to do so. If Xxxxxxxxx elects not to defend against, negotiate, settle or otherwise deal with any Claim which relates to any Losses indemnified against hereunder, fails to notify Xxxxxxx of its election as herein provided or contests its obligation to indemnify Xxxxxxx for such Losses under this Agreement, Xxxxxxx may defend against, negotiate, settle or otherwise deal with such Claim. Xxxxxxxxx shall not be liable for any settlement of any Claim effected without its prior written consent, provided, however, that such consent shall not unreasonably be withheld, delayed, or conditioned. If Xxxxxxx defends any Claim, then Xxxxxxxxx shall reimburse Xxxxxxx for the actual expenses of defending such Claim upon submission of periodic bills. If Xxxxxxxxx shall assume the defense of any Claim, Xxxxxxx may participate, at its own expense, in the defense of such Claim; provided, however, that Xxxxxxx shall be entitled to participate in any such defense with separate counsel at the expense of Xxxxxxxxx, if, (i) so requested by Xxxxxxxxx to participate or (ii) in the reasonable opinion of counsel to Xxxxxxx, a conflict or potential conflict exists between Xxxxxxx and Xxxxxxxxx that would make such separate representation advisable. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Claim.
(b)
After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or Xxxxxxx and Xxxxxxxxx shall have arrived at a mutually binding agreement with respect to a Claim hereunder, Xxxxxxx shall forward to Xxxxxxxxx notice of any sums due and owing by Xxxxxxxxx pursuant to this Agreement with respect to such matter and Xxxxxxxxx shall be required to pay all of the sums so due and owing to Xxxxxxx by wire transfer of immediately available funds within 10 business days after the date of such notice. The failure of Xxxxxxx to give reasonably prompt notice of any Claim shall not release, waive or otherwise affect Xxxxxxxxx’x obligations with respect thereto except to the extent that Xxxxxxxxx can demonstrate actual loss and prejudice as a result of such failure.
ARTICLE II
MISCELLANEOUS PROVISIONS
2.1
Binding Effect; Benefits. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors and permitted assigns. Except as otherwise set forth herein, this Agreement may not be assigned by any party hereto without the prior written consent of the other party hereto. Except as otherwise set forth herein, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement.
2.2. Notices. All notices and other communications to be given or delivered or permitted under or by reason of the provisions of this Agreement or in connection with the transactions contemplated hereby shall be in writing and shall be deemed to be delivered and received by the intended recipient as follows: (i) if personally delivered, on the business day of such delivery (as evidenced by the receipt of the personal delivery service), (ii) if mailed certified or registered mail return receipt requested, two (2) business days after being mailed, (iii) if delivered by overnight courier (with all charges having been prepaid), on the business day of such delivery (as evidenced by the receipt of the overnight courier service of recognized standing), or (iv) if delivered by facsimile transmission, on the business day of such delivery if sent by 6:00 p.m. in the time zone of the recipient, or if sent after that time, on the next succeeding business day (as evidenced by the printed confirmation of delivery generated by the sending party’s telecopier machine). If any notice, demand, consent, request, instruction or other communication cannot be delivered because of a changed address of which no notice was given (in accordance with this Section 2.2), or the refusal to accept same, the notice, demand, consent, request, instruction or other communication shall be deemed received on the second business day the notice is sent (as evidenced by a sworn affidavit of the sender). All such notices, demands, consents, requests, instructions and other communications will be sent to the following addresses or facsimile numbers as applicable.
If to Xxxxxxx:
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
E-mail:
xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxx X. XxXxxxx, Esq.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
E-mail:
xxxxxx@xxxxxxxxx.xxx
If to Xxxxxxxxx:
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
(000) 000-0000
2.3
Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.
2.4
Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not be deemed to be a part of this Agreement or to affect the meaning or interpretation of this Agreement.
2.5
Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
2.6
Governing Law. This Agreement shall be construed as to both validity and performance and enforced in accordance with and governed by the laws of the State of Texas, without giving effect to the conflicts of law principles thereof.
2
2.7
Severability. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision of the Agreement shall be valid and enforced to the fullest extent permitted by law.
2.8
Amendments. This Agreement may not be modified or changed except by an instrument or instruments in writing executed by the parties hereto.
2.9
Termination of this Agreement. This Agreement shall terminate and be of no further force or effect with respect to any Claim delivered to Xxxxxxxxx after two years from the date hereof; provided that any Claim delivered to Xxxxxxxxx pursuant to Section 1 hereof prior to such termination period shall be governed by the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx Oil & Gas, Inc.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
3
