EXHIBIT 10.8
INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
THIS INDEMNIFICATION AND HOLD HARMLESS AGREEMENT (this "Agreement") is
made as of April __, 2004, by and between W&T Offshore, Inc., a Texas
corporation (the "Company"), and ______________ ("Indemnitee").
WHEREAS, in order to incentivize Indemnitee to serve, or to continue to
serve, as a director of the Company (in any such case, the "Service"), the
Company has agreed to indemnify Indemnitee as set forth below;
NOW, THEREFORE, in consideration of the foregoing and certain other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
1. Indemnification. Effective as of the original date of Indemnitee's beginning
Service, the Company shall indemnify Indemnitee and hold Indemnitee harmless if
the Indemnitee is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, and in any appeal in such action,
suit or proceeding, and in any inquiry or investigation that could lead to such
an action, suit or proceeding, against any and all liabilities, obligations
(whether known or unknown, or due or to become due or otherwise), judgments,
fines, fees, penalties, interest obligations, deficiencies, other actual losses
(for example, verifiable lost income related to time spent defending such claim
or action) and reasonable expenses (including, without limitation amounts paid
in settlement, interest, court costs, costs of investigators, reasonable fees
and expenses of attorneys, accountants, financial advisors and other experts)
incurred or suffered by Indemnitee in connection with such action, suit or
proceeding arising out of or pertaining to any actual or alleged action or
omission which arises out of or relates to the fact that Indemnitee is or was
serving as a director or officer of the Company or at the request of the Company
as a director, officer, trustee, employee, or agent of or in any other capacity
for another corporation, partnership, joint venture, trust or other enterprise,
to the fullest extent permitted by then applicable law and the Company's
Articles of Incorporation and Bylaws, each as amended (but in the case of any
such amendment, only to the extent that such amendment permits the Company to
provide the same or broader indemnification rights than permitted prior thereto)
(each such liability, obligation, judgment, fine, fee, penalty, interest
obligation, deficiency, other actual losses, and reasonable expenses being
referred to herein as a "Loss," and collectively, as "Losses").
2. Payment. Any Loss incurred by Indemnitee shall be paid in full by the Company
on a regular monthly basis. This indemnity applies even if the Indemnitee caused
the Loss through his or her negligence, strict liability or other fault;
however, if any Losses for which Indemnitee received payment from the Company
under this Agreement are determined by final judicial decision from which there
is no further right to appeal, to have been caused by Indemnitee under
circumstances with respect to which indemnification is not permitted by
applicable law or this Agreement (any such Loss, a "Non-Indemnification Loss"),
Indemnitee shall repay to the Company such Losses paid on behalf of Indemnitee
hereunder.
3. Term. The indemnification rights provided hereby to Indemnitee shall continue
even though he or she may have ceased to be a director, officer, trustee,
employee, or agent of or in any other capacity for the applicable entity.
4. Notice and Coverage Prior to Notice. Indemnitee shall give notice (the
"Notice") to the Company within five days after actual receipt of service or
summons related to any action begun in respect of which indemnity may be sought
hereunder or actual notice of assertion of a claim with respect to which he
seeks indemnification; provided, however, that the Indemnitee's failure to give
such notice to the Company within such time shall not relieve the Company from
any of its obligations under Section 1 of this Agreement except to the extent
the Company has been materially prejudiced by Indemnitee's failure to give such
notice within such time period. Upon receipt of the Notice, the Company shall
assume the defense of such action, whereupon the Indemnitee shall not be liable
for any reasonable fees or expenses of counsel for Indemnitee or any other
Losses incurred thereafter with respect to the matters set forth in the Notice
and the Company shall reimburse the Indemnitee for all reasonable expenses
related to the action or claim incurred by the Indemnitee prior to the
Indemnitee's giving of the Notice.
5. Non-Exclusivity. The rights of Indemnitee hereunder shall be in addition to
any rights that Indemnitee may have under the Company's governance documents
(e.g. Articles of Incorporation, By-laws, Articles of Organization, Regulations,
etc.) (the "Governance Documents"), applicable law or otherwise and shall
survive any termination, resignation, death or other dismissal of Indemnitee. No
amendment or alteration of the Company's Governance Documents shall adversely
affect Indemnitee's rights under the Governance Documents or this Agreement.
6. Insurance. To the extent the Company maintains, at its expense, an insurance
policy or policies providing liability insurance with respect to the acts or
omissions covered by this Agreement, Indemnitee shall be covered by such policy
or policies, in accordance with its or their terms, to the maximum extent of the
coverage available there under.
7. Payment. The Company shall not be liable to Indemnitee under this Agreement
to make any payment in connection with any claim against Indemnitee to the
extent the Indemnitee has otherwise actually received, and is entitled to
retain, payment (under any insurance policy or otherwise) of the amounts
otherwise indemnifiable hereunder.
8. Enforceability. The indemnification contained in this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns (including any direct or
indirect successor by purchase, merger, consolidation, liquidation or otherwise
to all or substantially all of the business and/or assets of the Company),
spouses, heirs and personal and legal representatives.
9. Binding Obligation. If this Agreement or any portion hereof shall be found to
be invalid on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless Indemnitee, as to costs,
charges and expenses (including court costs and attorneys' fees), judgments,
fines, penalties and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative, arbitrative or
investigative, and in any appeal in such action, suit or proceeding, and in any
inquiry or investigation that could lead to such an action, suit or proceeding,
to the full extent permitted by
any applicable portion of this Agreement that shall not have been invalidated
and to the fullest extent permitted by applicable law.
10. Governing Law; Venue. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas, without regard to the principles
of conflicts of laws. The parties agree that any litigation directly or
indirectly relating to this Agreement must be brought before and determined by a
court of competent jurisdiction within Xxxxxx County, Texas, and the parties
hereby agree to waive any rights to object to, and hereby agree to submit to,
the jurisdiction of such courts.
11. Right to Xxx; Attorneys' Fees and Costs. If a claim by Indemnitee for
payment of Losses hereunder is not paid in full by the Company within forty-five
(45) days after a written claim has been delivered to the Company, Indemnitee
may at any time thereafter bring suit against the Company to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit,
Indemnitee shall be entitled to be paid also the reasonable costs and expenses
of prosecuting such suit. In any suit brought by Indemnitee to enforce any right
hereunder (including, without limitation, the right to indemnification), the
burden of proving that Indemnitee is not entitled to such right shall be borne
by the Company. If a claim by the Company for repayment of any
Non-Indemnification Losses previously paid on behalf of Indemnitee hereunder is
not repaid in full to the Company within forty-five (45) days after such ruling
has been delivered to Indemnitee, the Company may at any time thereafter bring
suit against the Indemnitee to recover the unpaid amount.
12. Successors and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the heirs, successors and assigns of each party to this
Agreement. 13. Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by each of the parties
hereto.
14. Facsimile and Counterpart Signature. This Agreement may be executed by
facsimile signature and in one or more counterparts, each of which shall for all
purposes be deemed an original and all of which shall constitute the same
instrument, but only one of which need be produced.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
W&T OFFSHORE, INC.
By:
------------------------------
Name: X. Xxxx Xxx
Title: Chief Financial Officer
-------------------------------------
INDEMNITEE
By:
------------------------------
Name:
Title:
