INDEMNIFICATION AGREEMENT
Exhibit
10.41
This
INDEMNIFICATION AGREEMENT (“Agreement”), effective as of ___________, is by and
between Frontier Oil Corporation, a Wyoming corporation (“Company”), and the
undersigned individual (“Individual”).
WITNESSETH:
WHEREAS,
Company desires to indemnify Individual against certain losses in order to
induce Individual to continue to serve as a director or officer of Company
or of
an affiliate of the Company (“Company Affiliate” which for purposes hereof shall
mean any company or entity that directly or indirectly controls, is controlled
by or is under common control with the Company);
NOW,
THEREFORE, in consideration of the premises and the mutual benefits to be
derived, the parties agree as follows:
1. Third
Party Proceedings.
Company
shall indemnify any Individual who was or is party to or is threatened to
be
made party to any threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, whether formal
or
informal, any appeal in such action, suit or proceeding, and any inquiry
or
investigation that could lead to such an action, suit or proceeding, (other
than
an action by or in the right of Company or a Company Affiliate), (i) by reason
of the fact that Individual is or was a director or officer of Company or
a
Company Affiliate or advisory director or officer of Company or Company
Affiliate, (ii) by reason of the activities of Individual in such capacity,
including without limitation by reason of serving at the request of Company
or a
Company Affiliate as a director, officer, partner, venturer, proprietor,
trustee, employee, agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other
enterprise, or (iii) any person nominated or designated by (or pursuant to
authority granted by) the board of directors or any committee thereof to
serve
in any of the capacities referred to in clauses (i) and (ii) hereof, against
any
and all reasonable expenses (including court costs and attorneys' fees),
judgments, penalties, fines, and reasonable amounts paid in settlement (if
such
settlement is approved in advance by a majority of the directors of Company
then
in office, with a view to curtailment of the costs of litigation) actually
incurred by Individual in connection with or in anticipation of such action,
suit, or proceeding, if he conducted himself in good faith and in a manner
which
he reasonably believed to be in or not opposed to the best interests of Company
and any Company Affiliate and, with respect to any criminal action or
proceeding, that he had no reasonable cause to believe that his conduct was
unlawful.
2. Proceedings
By or in the Right of Company.
Company
shall indemnify Individual if Individual 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 Company or a Company Affiliate to procure a judgment in its
favor
by reason of the fact that Individual is or was an officer or director of
Company or a Company Affiliate, or by reason of any action or inaction on
the
part of Individual while an officer or director of Company or a Company
Affiliate, or by reason of the fact that Individual is or was serving at
the
request of Company or a Company Affiliate as a director, officer, employee
or
agent of another domestic or foreign corporation, partnership, joint venture,
trust or other enterprise against expenses (including court costs and 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 Individual
in
connection with the defense or settlement of such action or suit if Individual
conducted himself in good faith and in a manner Individual reasonably believed
to be in or not opposed to the best interests of Company, the Company Affiliate
and their shareholders, except that no indemnification shall be made in respect
of any claim, issue or matter as to which Individual shall have been adjudged
by
a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to
be liable to Company or a Company Affiliate in the performance of Individual's
duty to Company, the Company Affiliate and their shareholders unless and
only to
the extent that the court in which such action or suit is or was pending,
or
other court of competent jurisdiction, shall determine upon application that,
in
view of all the circumstances of the case, Individual is fairly and reasonably
entitled to indemnity for expenses and then only to the extent that the court
shall determine.
For
purposes of section 1 and 2, the termination of any action, suit, or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or
its
equivalent, is not of itself determinative that Individual did not conduct
himself in good faith and in a manner which he reasonably believed to be
in or
not opposed to the best interests of Company or a Company Affiliate or, with
respect to any criminal action or proceeding, that he had reasonable cause
to
believe that his conduct was unlawful.
3.
Payments.
Upon
written request by Individual submitted to Company in accordance with this
section 3, Company shall pay Individual all amounts he is entitled to receive
pursuant to section 1 or 2 (“Indemnified Amounts”). Each written request for
payment shall include an itemized list setting forth in detail the dollar
amounts expended (or incurred and expected to be expended), shall be supported
by copies of the relevant bills, agreements, and other documentation, and
shall
state that he conducted himself in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of Company
or
any Company Affiliate and, with respect to a criminal action or proceeding,
that
he had no reasonable cause to believe that his conduct was
unlawful.
4.
Selection
of Counsel.
In the
event of the commencement or threat of commencement of any action, suit or
proceeding for which Individual may be entitled to indemnification hereunder,
Company shall have the right to select counsel for Individual; provided that
counsel selected by Company to represent Individual (i) shall have a national
reputation in handling matters similar to the matter that is the subject
of the
indemnification and (ii) shall advise Individual that, in such counsel's
opinion, the representation by such counsel of other parties that may have
an
interest in the matter that is the subject of the indemnification does not
present a conflict of interest. In the event counsel selected by the Company
to
represent Individual at any time cannot, during the course of representation
of
Individual, continue to advise Individual as provided in clause (ii) of the
proviso of the foregoing sentence, then Individual may select his own counsel,
whose expenses shall be advanced and indemnified as provided in this Agreement.
Nothing in this Section 4 shall limit the ability of the Individual to engage
separate counsel in connection with the indemnified matter at the expense
of the
Individual.
5.
Advancement
of Indemnified Amounts.
(a)
Company shall pay Indemnified Amounts in advance of the final disposition
of the
related action, suit, or proceeding, upon written request by Individual
submitted to Company, within 30 days of receipt of such request. Each such
request shall include (i) an affirmation by Individual of his good faith
belief
that he has met the standard of conduct necessary for indemnification by
Company
as stated in sections 1 and 2, (ii) an itemized list and the supporting
documentation described in section 3(a) and (iii) an undertaking by Individual,
or on his behalf, to repay the Indemnified Amount if Individual ultimately
is
found not to be entitled to indemnification pursuant to section 1 or 2.
Individual may make as many requests for advancements as he deems reasonably
necessary, except that each such request shall be for an Indemnified Amount
of
at least $3,000.
(b)
Unless
Individual ultimately is found not to be entitled to indemnification pursuant
to
section 1 or 2, Individual later may request payment of the portion of the
Indemnified Amounts which exceeds the advancements received pursuant to section
5(a) by following the procedure described in section 3. In such a case, the
itemized list with respect to such request shall set forth each and every
advancement received as of the date of such request. Conversely, if the total
of
the advancements received by Individual as of the date of his request exceeds
the total of the Indemnified Amounts, then Individual shall repay such excess
promptly upon the determination of the amount thereof.
6.
Exceptions.
Any
other provision herein to the contrary notwithstanding, Company shall not
be
obligated pursuant to the terms of this Agreement:
(a)
Claims
Initiated by Individual.
To
indemnify or advance expenses to Individual with respect to proceedings or
claims initiated or brought voluntarily by Individual and not by way of defense,
except with respect to proceedings brought in Company's or a Company Affiliate's
name or behalf, or to establish or enforce a right to indemnification under
this
agreement or any other statute or law; or
(b)
Lack
of Good Faith.
To
indemnify Individual for any expenses incurred by Individual with respect
to any
proceeding instituted by Individual to enforce or interpret this Agreement,
if a
court of competent jurisdiction determines that the material assertions made
by
the Individual in such proceeding were not made in good faith or were frivolous;
or
(c)
Insured
Claims.
To
indemnify Individual 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) which have been paid directly
to
Individual by an insurance carrier under a policy of officers' and directors'
liability insurance maintained by Company or a Company Affiliate;
or
(d)
Claims
Under Section 16(b).
To
indemnify Individual for expenses and the payment of profits arising from
purchases and sales by Individual of securities in violation of Section 16(b)
of
the Securities and Exchange Act of 1934, as amended, or any similar successor
statute.
7.
Indemnification
Not Exclusive; Subrogation Rights.
(a) The
indemnification provided by sections 1 and 2 shall not be deemed exclusive
of,
or to preclude, any other rights to which Individual may be entitled under
the
common law or any, statute, ordinance, regulation, agreement, article of
incorporation, bylaw provision, partnership agreement, vote of shareholders
or
disinterested directors, or otherwise, both as to the activities of Individual
in his capacity as a director or officer of Company or any Company Affiliate
and
as to his activities in another capacity while serving in such position,
and
shall continue as to Individual after he ceases to be a director or officer
of
Company or any Company Affiliate.
(b)
If
Individual receives any payments from an insurance carrier, or from the
plaintiff in any action, suit, or proceeding against Individual, in respect
of
Indemnified Amounts after payments of all or a portion of such Indemnified
Amounts have been made by Company pursuant hereto, Individual shall repay
the
amount by which the sum of the payments by such insurance carrier or plaintiff
and the payments by Company exceeds the Indemnified Amounts; provided,
however, that
any
portion of such payments that is required to be paid to the insurance carrier
under the terms of its insurance policy shall not be deemed to be payments
to
Individual hereunder.
(c)
Upon
payment of Indemnified Amounts hereunder, Company shall be subrogated to
the
rights of Individual (to the extent thereof) against any insurance carrier
in
respect of such Indemnified Amounts (to the extent permitted under such
insurance policies). This right of subrogation shall terminate upon receipt
by
Company of the amount to be paid by Individual pursuant to section
7(b).
8.
Successors;
Binding Agreement.
This
Agreement shall inure to the benefit of and be enforceable by the personal
and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees of Individual. If Individual dies while
any
Indemnified Amounts are payable hereunder, such Indemnified Amounts shall
be
paid in accordance with the terms of this Agreement to the devisee, legatee,
or
other designee of the Individual, or if there is no such designee, to his
estate.
9.
Enforcement.
(a) If
either party to this Agreement is required to bring any action against the
other
to enforce their respective rights or to collect moneys due under this Agreement
and is successful in such action, such successful party shall be reimbursed
by
the other party for any and all reasonable expenses (including court costs
and
attorneys' fees) actually incurred by such successful party in bringing and
pursuing such action, in addition to any other damages to which such party
is
entitled.
(b)
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect. If any provision of this Agreement
shall be invalid or unenforceable, such invalidity or unenforceability shall
not
create a damage claim against the Company.
10.
Amendment;
Waiver.
No
provision of this Agreement may be amended, modified, waived, or discharged
unless such amendment, waiver, modification, or discharge is agreed to in
writing by Individual and either the president of Company or another duly
authorized officer of Company. No waiver by a party of any breach by the
other
party of, or of any compliance by the other party with, any condition or
provision of this Agreement shall be deemed a waiver of similar or dissimilar
conditions or provisions at the same time or at any prior or subsequent
time.
11.
Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties concerning,
the
subject matter hereof. This Agreement further supersedes any prior agreements
between the parties concerning the subject matter hereof. No agreements or
representations, oral or written, express or implied, other than those set
forth
herein have been made by either party with respect to the subject matter
hereof.
12.
Authority.
This
Agreement is entered into in accordance with Section 7.7 of the Bylaws of
Company.
13.
Governing
Law.
This
Agreement shall be governed by the laws of the State of Wyoming.
14.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same instrument.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day of
____
day of _______, ______.
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FRONTIER
OIL CORPORATION
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By:
__________________________________
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Name:
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Title:
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Officer/Director
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