Contract
Exhibit
10.2
[FORM
OF]
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is made this [14th]
day of
[October], 200[8], between EnerJex
Resources, Inc.,
a
Nevada corporation (the “Company”), and __________________________, an
individual (“Indemnitee”).
RECITALS
WHEREAS,
Indemnitee is a member of the board of directors (“Board” or “Board of
Directors”) and/or an executive officer of the Company;
WHEREAS,
the Corporation has adopted bylaws (“Bylaws”) providing for the indemnification
of the directors and executive officers of the Company; (“Covered
Persons”);
WHEREAS,
the Bylaws and Nevada Revised Statute Sections 78.751 and 78.7502 (the “State
Statutes”) specifically provide that they are not exclusive, and thereby
contemplate that agreements may be entered into between the Company and a
Covered Person with respect to indemnification of such Covered
Person;
WHEREAS,
Indemnitee is willing to serve, to continue to serve, and to take on additional
service for and on behalf of the Company on the condition that Indemnitee
is
indemnified as set forth in this Agreement;
WHEREAS,
it is intended that Indemnitee shall be paid promptly by the Company all
amounts
necessary to effectuate in full the indemnity provided in this Agreement;
and
WHEREAS,
to induce Indemnitee to continue to serve as a director and/or executive
officer
of the Company has determined and agreed to enter into this Agreement with
Indemnitee.
NOW,
THEREFORE, in consideration of Indemnitee’s continued service as a director
and/or executive officer of the Company after the date hereof, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged, the Company and Indemnitee hereby agree as follows:
AGREEMENT
1.
Indemnification
of Indemnitee.
The
Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest
extent authorized or permitted by the provisions of the State Statutes, or
any
successor statute or amendment thereof, or any other statutory provisions
authorizing or permitting such indemnification that is adopted after the
date of
this Agreement.
2.
Additional
Indemnity.
Subject
only to the exclusions set forth in Section 3 of this Agreement, the Company
hereby further agrees to hold harmless, indemnify and defend
Indemnitee:
1
(a)
against any and all expenses (including fees for attorneys, accountants,
private
investigators, court and transcript costs, fees and expenses of witnesses,
travel expenses and all other like disbursements or expenses reasonably incurred
by or for Indemnitee), judgment damages, fines, penalties and amounts paid
in
settlement (including all interest assessments and other charges paid or
payable
in connection with or in respect of such judgment, fines, penalties, or amounts
paid in settlement) actually and reasonably incurred by or for Indemnitee
in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (including an action
by
or in the right of the Company) (a “Covered Action”) to which Indemnitee is made
a party as a result of the fact that at the time of the act or omission which
is
the subject matter of such Covered Action the Indemnitee was a director,
officer
or employee of the Company, and
(b)
otherwise to the fullest extent as may be provided to Indemnitee by the Company
under the non-exclusivity provisions the Bylaws of the Company, the State
Statutes or any employment agreement between the Company and the Indemnitee.
The
provisions of this Agreement are in addition to, and not in limitation of,
the
provisions of such Bylaws, the State Statutes or any employment agreement
between the Company and the Indemnitee.
3.
Limitations
on Additional Indemnity.
No
indemnity pursuant to Sections 1 and 2 of this Agreement shall be paid by
the
Company to the extent that:
(a)
payment therefor is actually made to Indemnitee under a valid and collectible
insurance policy or policies, except with respect to any excess amount due
to
Indemnitee beyond the amount of payment to Indemnitee under such insurance
policy or policies. Notwithstanding the availability of such insurance policy
or
policies, Indemnitee also may claim indemnification from the Company pursuant
to
this Agreement by assigning to the Company in writing any claims of Indemnitee
under such insurance policy or policies to the extent of the amount Indemnitee
is paid by the Company;
(b)
Indemnitee is indemnified by the Company otherwise than pursuant to this
Agreement;
(c)
final
judgment is rendered against Indemnitee for the payment of dividends or other
distributions to stockholders of the Company in violation of the provisions
of
Subsection 2 of Nevada Revised Statutes § 78.300, as amended;
(d)
final
judgment is rendered against Indemnitee for an accounting of profits made
from
the purchase or sale by Indemnitee of securities of the Company pursuant
to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended
(the “Act”), or other similar provisions of any federal, state or local
statutory law;
(e)
Indemnitee’s conduct giving rise to the claim for indemnification is finally
adjudged by a court of competent jurisdiction to have been a breach of fiduciary
duty which involved intentional misconduct, fraud or a knowing violation
of the
law; and/or
2
(f)
except as otherwise provided in this Agreement, in connection with all or
any
part of a suit or other proceeding which is initiated or maintained by or
on
behalf of Indemnitee, or any suit or other proceeding by Indemnitee against
the
Company or its directors, officers, employees or other agents, unless (i)
such
indemnification is expressly required by Nevada law; (ii) the suit or other
proceeding was expressly authorized by an official act of the Board of Directors
of the Company or (iii) such indemnification is provided by the Company,
in its
sole discretion, pursuant to the powers vested in the Company under Nevada
law.
4.
Continuation
of Indemnity.
All
agreements and obligations of the Company contained in this Agreement shall
continue during the period Indemnitee is a Covered Person, and shall continue
thereafter for so long as Indemnitee shall be subject to any possible claim
or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that Indemnitee
was a Covered Person.
5.
Advancement
of Expenses.
In the
event Indemnitee incurs costs or expenses in connection with the defense
of any
such civil, criminal, administrative or investigative action, suit or proceeding
(including any costs or expenses incurred for any appeal therefor), the Company
agrees to pay such costs or expenses within 30 calendar days of submission
of
bills or vouchers for such costs or expenses, provided that Indemnitee delivers
to Company prior to such payment a written undertaking by or on behalf of
Indemnitee to repay the amount paid by the Company, including amounts paid
in
settlement, if it is ultimately determined by a court of competent jurisdiction
that Indemnitee is not entitled to be indemnified by the Company for such
expenses under the provisions of the State Statutes, the Bylaws, this Agreement
or otherwise. However, in the case of an action brought against Indemnitee
by
the Company pursuant to the provisions of Section 16(b) of the Act, or other
similar provisions of any federal, state or local statutory law for an
accounting of profits made from the purchase or sale by Indemnitee of securities
of the Company, Indemnitee’s costs and expenses will not be advanced unless such
advancement is approved by the Board of Directors by a majority vote of a
quorum
consisting of directors who are not parties to the action, suit or proceeding,
or, if such a quorum cannot be obtained, by independent legal counsel in
a
written opinion that such indemnification is proper in the
circumstances.
6.
Presumptions
and Effect on Certain Proceedings.
Upon
making a request for indemnification, Indemnitee shall be presumed to be
entitled to indemnification under this Agreement. The termination of any
action,
suit or proceeding by judgment, order, settlement, arbitration award, conviction
or by a plea of nolo contendere or its equivalent shall not affect this
presumption except as may be provided in Section 3 of this
Agreement.
7.
Notification
and Defense of Claim.
Promptly after receipt by Indemnitee of notice of the commencement of any
action, suit or proceeding, if a request with respect thereto is to be made
against the Company under this Agreement, Indemnitee shall notify the Company
of
the commencement thereof; but the failure by Indemnitee to notify the Company
will not relieve the Company of any liability which it may have to Indemnitee
under this Agreement or otherwise. With respect to any such action, suit
or
proceeding as to which Indemnitee notifies the Company as required
herein:
3
(a)
The
Company shall be entitled to participate therein at its own expense;
and
(b)
Except as otherwise provided below, to the extent that it may wish, the Company,
jointly with any other indemnifying party similarly notified, shall be entitled
to assume the defense of Indemnitee with counsel reasonably satisfactory
to
Indemnitee. After notice from the Company to Indemnitee of its election to
assume the defense of Indemnitee in the action, suit or proceeding, the Company
will not be liable to Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by Indemnitee in connection with the defense
thereof, other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right to employ its own counsel in such
action,
suit or proceeding, but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense shall be at the
sole
expense of Indemnitee unless (i) the employment of counsel by Indemnitee
at the
Company’s expense has been authorized in writing by the Company; (ii) Indemnitee
shall have reasonably concluded, upon advice of counsel experienced in such
matters, that there may be a conflict of interest between the Company and
Indemnitee in the conduct of the defense of such action; or (iii) the Company
shall not in fact have employed counsel to assume the defense of such action,
suit or proceeding. In each such instance set forth in (i) through (iii)
of this
paragraph (b), the reasonable cost of Indemnitee’s counsel shall be borne by the
Company. Notwithstanding the foregoing, the Company shall not be entitled
to
assume the defense of any action, suit or proceeding brought against Indemnitee
by or on behalf of the Company or as to which Indemnitee shall have reasonably
made the conclusion provided in (ii) above.
(c)
The
Company shall not be liable to indemnify Indemnitee under this Agreement
for any
amounts paid in settlement of any action or claim effected without the Company’s
prior written consent. The Company shall not settle any action or claim in
any
manner that would impose any penalty or limitation on Indemnitee without
Indemnitee’s prior written consent. Neither the Company nor Indemnitee will
unreasonably withhold consent to any proposed settlement.
8.
Enforcement.
(a)
The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on the Company hereby in order to induce
Indemnitee to continue as a Covered Person, and acknowledges that Indemnitee
is
relying on this Agreement in continuing in such capacity.
(b)
In
the event Indemnitee is required to bring any action to enforce his or her
rights or to collect moneys due under this Agreement, the Company shall advance
Indemnitee all of Indemnitee’s reasonable fees and expenses in bringing and
pursuing such action. Indemnitee shall be responsible for reimbursement to
the
Company of such advance unless it is ultimately determined by a court of
competent jurisdiction that Indemnity is entitled to be indemnified by the
Company for such fees and expenses under the provisions of the State Statutes,
the Bylaws, this Agreement or otherwise.
4
9.
No
Employment Rights.
Nothing
in this Agreement is intended to confer on Indemnitee any right to continue
in
the employ of the Company for any period of time or to interfere with or
otherwise restrict in any way the rights of the Company or of Indemnitee,
which
rights are hereby expressly reserved by each, to terminate Indemnitee’s service
at any time and for any reason, with or without cause, except as may be provided
otherwise in an agreement, if any, between the Company and
Indemnitee.
10.
Severability.
Each of
the provisions of this Agreement are separate and distinct and independent
of
one another, so that if any provision of this Agreement shall be held by
a court
of competent jurisdiction to be invalid or unenforceable for any reason,
such
invalidity or unenforceability shall not effect the validity or enforceability
of the other provisions of this Agreement. If any provision of this Agreement
is
so held to be invalid or unenforceable, the parties agree that the court
making
such determination shall have the power to amend such provision or to delete
specific words or phrases so that such provision shall then be enforceable
to
the fullest extent permitted by law unless such change is contrary to the
intent
of the parties hereto.
11.
Subrogation.
In the
event of payment to Indemnitee under this Agreement, the Company shall be
subrogated to the extent of the amount of such payment to all rights of recovery
of Indemnitee, who shall execute all papers required and shall do everything
that may be necessary or reasonable to secure such rights, including, without
limitation, the execution of such documents necessary or reasonable to enable
the Company to effectively bring suit to enforce such rights.
12.
Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Nevada without resort to conflict of laws principles.
13.
Binding
Effect; Amendment.
This
Agreement shall be binding on the parties, their heirs, personal
representatives, successors and assigns, and shall inure to the benefit of
Indemnitee, his or her heirs, personal representatives and assigns, and to
the
benefit of the Company, its successors and assigns. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
a
writing signed by both parties.
14.
Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) when delivered by
hand
and receipted for by the party to whom said communication shall have been
directed or (ii), if mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which said communication
is
so mailed and addressed to the appropriate party at the following
address:
|
If
to Indemnitee:
|
||
5
|
If
to the Company:
|
||
|
00
Xxxxxxxxx Xxxxx, Xxxxx 000
|
||
|
00000
Xxxxxxxxx Xxxxx
|
||
|
Xxxxxxxx
Xxxx, Xxxxxx 00000
|
A
party
may change its address by delivering notice of such change in the manner
set
forth in this Section 14.
IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement
as of the date first above written.
Indemnitee:
Company:
a
Nevada
corporation
|
By:
|
||
|
C.
Xxxxxxx Xxxxxxxxx,
|
||
|
Chief
Executive Officer
|
6
