INDEMNIFICATION AGREEMENT
THIS AGREEMENT, made and entered into this 12th day of
December, 2001 ("Agreement"), by and between Xxxxxxx Oil Company, a Delaware
corporation (the "Company"), and Xxxx Xxxxxx ("Indemnitee"):
WHEREAS, qualified persons are reluctant to serve
publicly-held corporations as directors or officers or in other capacities,
unless they are provided with adequate protection against inordinate risks of
claims and actions against them arising out of their service to and activities
on behalf of such corporations;
WHEREAS, the uncertainties related to obtaining adequate
insurance and indemnification have increased the difficulty of attracting and
retaining such persons;
WHEREAS, it is reasonable, prudent and necessary for the
Company to obligate itself contractually to indemnify such persons to the
fullest extent permitted by law, so that such persons will serve or continue to
serve the Company free from undue concern that they will not be adequately
indemnified;
WHEREAS, the Company and the Indemnitee recognize that the
legal risks and potential liabilities, and the threat thereof, associated with
lawsuits filed against persons serving the Company, and the resultant
substantial time, expense and anxiety spent and endured in defending lawsuits
bears no reasonable relationship to the compensation received by such persons,
and thus poses a significant deterrent and increased reluctance on the part of
experienced and capable individuals to serve the Company;
WHEREAS, the By-laws of the Company and the laws of the State
of Delaware provide for the indemnification of directors, officers, agents and
employees of the Company and specifically provide that they are not exclusive,
and thereby contemplate that contracts may be entered into between the Company
and persons providing services to it; and
WHEREAS, Indemnitee is willing to serve, continue to serve and
to take on additional service for or on behalf of the Company on the condition
that he be indemnified according to the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises and promises
contained herein, the parties agree as follows:
Section 1. Services by Indemnitee. Indemnitee agrees to serve as a director
of the Company, and, if he subsequently consents, at its request or for its
benefit, as a director, officer, employee, agent or fiduciary of certain other
corporations and entities. Nothing contained herein shall entitle or require
Indemnitee to continue in Indemnitee's present position or any future position
with the Company.
Section 2. Term of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) ten years after the date that Indemnitee ceases
to hold a Corporate Status or (b) 120 days after the final termination of all
pending Proceedings in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to Section 8 of
this Agreement.
Section 3. Indemnification
3.1 General. The Company shall hold harmless and indemnify
Indemnitee against all Liabilities and advance to Indemnitee all Expenses to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, or by any amendment thereof (but in the case of any such amendment,
only to the extent such amendment permits the Company to provide broader
indemnification than provided prior to such amendment), or by other statutory
provisions authorizing or permitting such indemnification applicable from time
to time hereafter.
3.2 Proceedings Other Than Proceedings by or in the Right of
the Company. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 3.2 if, by reason of Indemnitee's Corporate Status,
Indemnitee is, or is threatened to be, made a party to any threatened, pending
or completed Proceeding, other than a Proceeding by or in the right of the
Company. Under this Section 3.2, Indemnitee shall be indemnified against all
Liabilities actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection with such Proceeding or any claim, issue or matter therein,
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 Proceeding, had no reasonable cause to believe the conduct was
unlawful.
3.3 Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 3.3,
if, by reason of Indemnitee's Corporate Status, Indemnitee is, or is threatened
to be, made a party to any threatened, pending or completed Proceeding brought
by or in the right of the Company to procure a judgment in its favor. Subject to
the last sentence of this Section 3.3, Indemnitee shall be indemnified against
all Liabilities actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with such Proceeding or any claim, issue or
matter therein, 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. No indemnification of Liabilities shall be made in respect of any
claim, issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such Proceeding
was brought, determines such indemnification is proper.
3.4 Indemnification for Expenses as a Witness. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of Indemnitee's Corporate Status, a witness in any Proceeding, he shall
be indemnified against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection therewith.
3.5 Partial Indemnity. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Liabilities but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify
-2-
Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
Section 4. Advancement of Expenses. The Company shall advance
all Expenses incurred or to be incurred by or on behalf of Indemnitee in
connection with any Proceeding within fifteen (15) days after the receipt by the
Company of a statement from Indemnitee requesting such advance from time to
time, whether prior to or after final disposition of such Proceeding. Each such
statement shall reasonably evidence the Expenses incurred or to be incurred by
Indemnitee. The Indemnitee hereby undertakes to repay any Expenses advanced, if
it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses.
Section 5. Specific Limitations on Indemnity. Indemnitee shall
not be entitled to indemnification under this Agreement:
(a) In respect to remuneration paid to or advantage gained
by the Indemnitee, if it shall be determined by final judgment or
other final adjudication that the Indemnitee was not legally
entitled to such remuneration or advantage;
(b) On account of the Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct; or
(c) Prior to a Change in Control in respect of any
Proceeding initiated by the Indemnitee against the Company or any
director or officer of the Company, unless the Company has joined
in or consented to the initiation of such Proceeding, except (i)
as provided in Section 8 hereof, (ii) in respect of any
counterclaims made against Indemnitee in any such Proceeding and
(iii) to the extent Indemnitee seeks contribution or
apportionment of an award or settlement against Indemnitee and
against the Company and/or any other director or officer of the
Company.
Section 6. Procedure for Determination of Entitlement to Indemnification.
6.1 Initial Request. To obtain indemnification under this
Agreement in connection with any Proceeding, and for the duration thereof,
Indemnitee shall submit to the Company a written request, including 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 Secretary of the Company shall, promptly upon
receipt of any request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
-3-
6.2 Method of Determination. Upon written request by
Indemnitee for indemnification pursuant to Section 6.1 hereof, a determination,
if required by applicable law, with respect to Indemnitee's entitlement thereto
shall be made in such case: (a) if a Change in Control shall have occurred, by
Independent Counsel (unless Indemnitee shall request that such determination be
made by the Board of Directors or the stockholders, in which case in the manner
provided for in clauses (b) or (c) of this Section 6.2) in a written opinion to
the Board of Directors, a copy of which shall be delivered to Indemnitee; (b) if
a Change of Control shall not have occurred, (i) by the Board of Directors by a
majority vote of a quorum consisting of Disinterested Directors, or (ii) if a
quorum of the Board consisting of Disinterested Directors is not obtainable, or
even if such quorum is obtainable, if such quorum of Disinterested Directors so
directs, either (x) by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee, or (y) by the stockholders of
the Company, as determined by such quorum of Disinterested Directors, or a
quorum of the Board, as the case may be; or (c) as provided in Section 7.2 of
this Agreement. If it is determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten (10) days after
such determination.
6.3 Selection, Payment and Discharge of Independent Counsel.
If required, Independent Counsel shall be selected as follows: (a) if a Change
of Control shall not have occurred, Independent Counsel shall be selected by the
Board, and the Company shall give written notice to Indemnitee advising him of
the identity of Independent Counsel so selected; or (b) if a Change of Control
shall have occurred, Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board, in which
event clause (a) shall apply), and Indemnitee shall give written notice to the
Company advising it of the identity of Independent Counsel so selected. In
either event, Indemnitee or the Company, as the case may be, may, within seven
(7) 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. Such objection may be asserted only on the ground that Independent
Counsel so selected does not meet the requirements of "Independent Counsel" as
defined in this Agreement, and the objection shall set forth with particularity
the factual basis of such assertion. If such written objection is made,
Independent Counsel so selected may not serve as Independent Counsel, unless and
until a court 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 6.1 hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may
petition the Court of Chancery of the State of Delaware, or other court of
competent jurisdiction, 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 such court or by such other person as such court shall designate, and the
person with respect to whom an objection is so resolved or the person so
appointed shall act as Independent Counsel under Section 6.2 hereof. The Company
shall pay any and all reasonable fees and expenses of Independent Counsel
incurred by such Independent Counsel in connection with its actions pursuant to
this Agreement, and the Company shall pay all reasonable fees and expenses
incident to the procedures of this Section 6.3, regardless of the manner in
which such Independent Counsel was selected or appointed. Upon the due
commencement date of any judicial proceeding or arbitration pursuant to Section
8.1 of this Agreement, Independent Counsel shall be discharged
-4-
and relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
6.4 Cooperation. Both the Company and the Indemnitee shall
cooperate with the person, persons or entity making the determination with
respect to Indemnitee's entitlement to indemnification, including providing to
such person, persons or entity any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee or the Company, as the case may be, and reasonably
necessary to such determination. Any reasonable costs or expenses (including
attorneys' fees 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).
Section 7. Presumptions and Effects of Certain Proceedings.
7.1 Burden of Proof. In making a determination with respect to
entitlement to indemnification hereunder, the person, 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- 6.1 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.
7.2 Failure to Determine Entitlement. If the person, persons
or entity empowered or selected under Section 6 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; provided, however, that such 60-day period may 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 require(s) such additional time for the obtaining
or evaluating of documentation or information relating thereto; and provided,
further, that the foregoing provisions of this Section 7.2 shall not apply if
the determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 6.2 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 seventy-five (75)
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 sixty (60) days after having been so called and such
determination is made thereat.
7.3 Effect of Other Proceedings. 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
Indemnitee
-5-
reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal Proceeding, that Indemnitee had reasonable
cause to believe that the conduct was unlawful.
Section 8. Remedies of Indemnitee.
8.1 Adjudication. In the event that (a) a determination is
made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (b) advancement of Expenses is not timely
made pursuant to Section 4 of this Agreement, (c) payment of indemnification is
not made pursuant to Section 3 of this Agreement within ten (10) days after
receipt by the Company of a written request therefor, or (d) payment of
indemnification is not made within ten (10) days after a determination has been
made that Indemnitee is entitled to indemnification or such determination is
deemed to have been made pursuant to Sections 6 or 7 of this Agreement,
Indemnitee shall be entitled to an adjudication, in any court of competent
jurisdiction selected by Indemnitee within or without the State of Delaware, of
Indemnitee's entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association. Indemnitee shall commence any action under this Section
8.1 within 180 days following the date on which Indemnitee first has the right
to commence such action hereunder.
8.2 De Novo Review. In the event that a determination shall
have been made pursuant to Section 6 of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to Section 8.1 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 such judicial proceeding or arbitration, the
Company shall have the burden of proving that Indemnitee is not entitled to
indemnification or the advancement of Expenses.
8.3 Company Bound. If a determination shall have been made or
deemed to have been made pursuant to Section 6 or 7 of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration absent (a) a
misstatement of a material fact by Indemnitee, or an omission of a material fact
necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification or the furnishing of information
or (b) a prohibition of such indemnification under applicable law. The Company
shall be precluded from asserting in any such judicial proceeding or arbitration
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 provisions of this Agreement.
8.4 Expenses of Adjudication. In the event that Indemnitee
seeks an adjudication or an award to enforce his rights under, or to recover
damages for breach of, this Agreement, Indemnitee shall be entitled to recover
from the Company, and shall be indemnified by the Company against, any and all
expenses (of the type described in the definition of Expenses) actually and
reasonably incurred by Indemnitee in such adjudication or arbitration, but only
if Indemnitee prevails therein. If it shall be determined in such adjudication
or arbitration
-6-
that Indemnitee is entitled to receive part but not all of the indemnification
or advancement of Expenses sought, the Indemnitee shall be entitled to recover
expenses from the Company on a pro rata basis.
Section 9. Non-Exclusivity; Subrogation.
9.1 Non-Exclusivity. 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 or by-laws of
any corporation, any other agreement, a vote of stockholders, a resolution of
directors or otherwise.
9.2 Subrogation. 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.
9.3 No Duplicative Payment. The Company shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or otherwise.
Section 10. Insurance. The Company hereby covenants and agrees
that during the term hereof, the Company shall obtain and maintain in full force
and effect directors' and officers' liability insurance ("D&O Insurance") in
reasonable amounts from established and reputable insurers. The Indemnitee shall
be named as an insured in such a manner as to provide the Indemnitee the same
rights and benefits as are accorded to the most favorably insured of the
Company's directors, if the Indemnitee is a director; or of the Company's
officers, if the Indemnitee is an officer but not a director of the Company; or
of the Company's key employees, if the Indemnitee is not a director or officer
but is a key employee. Notwithstanding the provisions of this Section, the
Company shall have no obligation to obtain or maintain D&O Insurance, if the
Company determines in good faith that such insurance is not reasonably
available, the premium costs for such insurance are disproportionate to the
amount of coverage provided, the coverage provided by such insurance is limited
by exclusion so as to provide an insufficient benefit, or the Indemnitee is
covered by similar insurance maintained by an affiliate of the Company. If, at
the time of the receipt of the notice of the commencement of a Proceeding, the
Company has D&O 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 applicable policy. 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 policy.
Section 11. Escrow Fund. In the event of a Change in Control,
as collateral security for its obligations hereunder, the Company shall dedicate
and maintain for the benefit of Indemnitee, for a period of five years following
the Change in Control, an escrow account in an
-7-
aggregate amount of five hundred thousand dollars ($500,000) by depositing
assets or bank letters of credit in escrow or reserving lines of credit that may
be drawn down by an escrow agent in said amount (the "Escrow Reserve") . The
terms of the escrow agreement shall provide that upon a Change in Control (a)
the escrow shall not be revoked or the principal of the Escrow Reserve invaded
without the written consent of the Indemnitee, (b) the escrow agent shall
advance within two business days of a request by the Indemnitee any and all
Expenses, (c) the escrow agent shall promptly pay to the Indemnitee all amounts
for which the Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (d) all unexpended funds in such escrow shall revert
to the Company upon a final determination by a court of competent jurisdiction
that the Indemnitee has been fully indemnified under the terms of this
Agreement. The escrow agent shall be chosen by the Indemnitee. The Company may
in its sole discretion establish an Escrow Reserve in anticipation of a Change
in Control. Promptly following the establishment of the Escrow Reserve, the
Company shall provide Indemnitee with a true and complete copy of the agreement
relating to the establishment and operation of the Escrow Reserve, together with
such additional documentation or information with respect to the Escrow Reserve
as Indemnitee may from time to time reasonably request. Promptly following the
establishment of the Escrow Reserve, the Company shall deliver a copy of this
Agreement to the escrow agent for the Escrow Reserve to evidence to that agent
that Indemnitee is a beneficiary of that Escrow Reserve and shall deliver to
Indemnitee the escrow agent's signed receipt evidencing that delivery. Nothing
in this Section 11 shall relieve the Company of any of its obligations under
this Agreement.
Section 12. Company May Assume Defense. In the event the Company shall be
obligated to pay the Expenses of any Proceeding against the Indemnitee, the
Company, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel reasonably acceptable to the Indemnitee, upon the
delivery to the Indemnitee of written notice of its election to do so. After
delivery of such notice, the Company shall not be liable to the Indemnitee under
this Agreement for any fees of counsel subsequently incurred by the Indemnitee
with respect to the same Proceeding; provided, however, that (a) the Indemnitee
shall have the right to employ counsel in any such Proceeding at the
Indemnitee's expense and (b) if (i) the employment of counsel by the Indemnitee
has been previously authorized by the Company, (ii) the Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of any such defense, or (iii) the
Company shall not, in fact, have employed counsel to assume the defense of such
Proceeding, the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company.
Section 13. Definitions. For purposes of this Agreement:
(a) "Change in Control" means a change in control of the
Company occurring after the Effective Date of a nature that would
be required to be reported in response to Item 6(e) of Schedule
14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities
Exchange Act of 1934 (the "Act"), whether or not the Company is
then subject to such reporting requirement; provided, however,
that, without limitation, such a Change in Control shall be
deemed to have occurred if after the Effective
-8-
Date (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding
securities without the prior approval of at least a majority of
the members of the Board of Directors in office immediately prior
to such person attaining such percentage interest; (ii) the
Company is a party to a merger, consolidation, sale of assets or
other reorganization, or a proxy contest, as a consequence of
which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a
majority of the Board thereafter; or (iii) during any period of
two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors (including for this
purpose any new director whose election or nomination for
election by the Company's stockholders was approved by a vote of
the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors.
(b) "Corporate Status" means the position of a person as a
director, officer, employee, agent or fiduciary of the Company or
of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise held at the request of
the Company and shall include any position which imposes duties
on, or involves services by, such person with respect to an
employee benefit plan, its participants or beneficiaries.
(c) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of
which indemnification is sought by Indemnitee.
(d) "Effective Date" means the date of this Agreement.
(e) "Expenses" means all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts,
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 of
customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or
preparing to be a witness in a Proceeding.
(f) "Independent Counsel" means a law firm, or a member of a
law firm, that is nationally recognized as experienced in matters
of corporation law and-neither presently is, nor in the past five
years has been, retained to represent either (i) the Company or
Indemnitee in any matter material to either such party or (ii)
any other party to the
-9-
Proceeding giving rise to a claim for indemnification hereunder.
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.
(g) "Liabilities" means any judgments, fines, penalties, or
similar payments or amounts paid or incurred by Indemnitee in
connection with any Proceeding, and amounts paid or incurred by
Indemnitee or on Indemnitee's behalf in settlement of any
Proceeding (including any excise taxes assessed upon Indemnitee
with respect to any employee benefit plan) and all Expenses.
(h) "Proceeding" means any action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, pending or
threatened, whether civil, criminal, administrative or
investigative, except one initiated by the Indemnitee, unless the
Board of Directors consents thereto.
Section 14. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (a) delivered by hand and receipted for by the party to whom such
notice or other communication shall have been directed or (b) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to:
Xxxx Xxxxxx
0000 Xxxxxxxxxx Xxx.
Xxxxx 000
Xxxxxx, XX 00000
(b) If to the Company, to:
Xxxxxxx Oil Company
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Secretary
or to such other address as may have been furnished to the other party. Promptly
after receipt by the Indemnitee of notice of the commencement of or the threat
of commencement of any Proceeding, the Indemnitee shall notify the Company of
the commencement or the threat of commencement thereof.
-10-
Section 15. General Provisions.
15.1 Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of Indemnitee and his heirs, executors and administrators. The Company shall
require and cause any successor to substantially own all of the business or
assets of the Company, by written agreement in form and substance satisfactory
to the Indemnitee, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place.
15.2 No Adequate Remedy. The parties acknowledge that it is
impossible to measure in money the damages which will accrue to either party by
reason of a failure to perform any of the obligations under this Agreement.
Therefore, if either party shall institute any action or proceeding to enforce
the provisions hereof, the party against whom such action or proceeding is
brought hereby waives the claim or defense that the party bringing such action
has an adequate remedy at law, and the party against whom the action is brought
shall not urge in any action or proceeding the claim or defense that the other
party has an adequate remedy at law.
15.3 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
15.4 Severability. If any provision or provisions of this
Agreement shall be held to be invalid 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 or unenforceable) shall not
in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the remaining provisions of this Amendment (including, without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid or unenforceable, that is not itself invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid or unenforceable.
15.5 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 amendment, alteration, rescission or replacement of
this Agreement or any provision hereof shall be effective as to Indemnitee with
respect to any action taken or omitted by such Indemnitee in Indemnitee's
Corporate Status before such amendment, alteration, rescission or replacement.
No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver. The party shall not be deemed
to have waived a right or remedy provided in or relating to this Agreement,
unless the waiver is in writing and duly executed by the party.
15.6 Entire Agreement. This Agreement as to its subject
matter, exclusively and completely states the rights and duties of the parties,
sets forth their entire understanding and merges all prior and contemporaneous
representations, promises, proposes, discussions and understandings by or
between the parties.
-11-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above first above written.
XXXXXXX OIL COMPANY
By:
------------------------------
ATTEST: Xxxxx X. Xxxxxxx,
Chairman
By
------------------------------------------
WITNESS:
---------------------------------------------
-12-
