Exhibit 10.76
SUPPLEMENTAL INDEMNIFICATION AGREEMENT
THIS SUPPLEMENTAL INDEMNIFICATION AGREEMENT (this "Agreement") is
entered into effective as of December 9, 2004, by and between FX ENERGY, Inc., a
Nevada corporation (the "Corporation"), and XXXXXX X. XXXXXXXXX ("Indemnitee"),
based on the following premises.
Premises
A. The Corporation has the power and authority pursuant to its Restated
Articles of Incorporation ("Articles") to engage in any lawful act for which
corporations may be organized under the laws of the state of Nevada. Further,
Section 78.060 of the Nevada Revised Statutes states that corporations may, at
any time, exercise these rights, privileges, and powers consistent with the
purposes and objects for which the corporation is organized and that the
corporation is empowered to make contracts.
B. Indemnitee is currently a director of the Corporation, which has
agreed to indemnify, protect, and defend Indemnitee and hold him harmless
pursuant to that certain Indemnification Agreement dated effective December 9,
2004 (the "Director Indemnification").
C. The parties recognize the continued difficulty in obtaining
liability insurance for the Corporation's directors, officers, employees,
stockholders, controlling persons, agents, and fiduciaries, the significant
increases in the cost of such insurance, and the general reductions in the
coverage of such insurance. Furthermore, the parties further recognize the
substantial increase in corporate litigation in general, subjecting directors,
officers, employees, controlling persons, stockholders, agents, and fiduciaries
to expensive litigation risks at the same time as the availability and coverage
of liability insurance have been severely limited.
D. Neither Indemnitee nor the Corporation regards the current
protection available under the Articles, bylaws, and other indemnifications as
adequate under the present circumstances, and Indemnitee would be unwilling to
serve in such capacities without additional protection. Moreover, the
Corporation (i) desires to attract and retain the involvement of highly
qualified persons, such as Indemnitee, to be associated with the Corporation
and, in part, in order to induce Indemnitee to be associated with the
Corporation, (ii) wishes to provide for the indemnification and advancing of
expenses to Indemnitee to the maximum extent permitted by law, and (iii) wishes
to assure Indemnitee that there will be increased certainty of adequate
protection in the future.
E. Indemnitee serves for a portion of his time as an outside director
of the Corporation, for which he receives modest compensation. Indemnitee is an
attorney licensed to practice law in the state of California, but does not
provide legal services to the Corporation. Indemnitee has determined to
associate with the firm of Jeffer, Mangels, Xxxxxx & Xxxxxxx, LLP ("Law Firm"),
as "of counsel," As a condition of such association, the Law Firm has required
that Corporation indemnify, protect, defend, and hold the Law Firm and its
partners, employees, and representatives harmless from and against any and all
claims made or asserted against the Law Firm and its partners, employees, and
representatives on account of any act or omission of Indemnitee performed for
the Corporation, whether or not such action could be construed as legal advice,
all as more particularly set forth in a letter of indemnification dated October
20, 2004, a copy of which is attached hereto as Exhibit A and incorporated
herein by reference.
F. The Law Firm requires as a matter of policy that any Firm lawyer who
serves on the board of directors of a publicly-traded corporation first agree to
indemnify, protect, defend, and hold the Law Firm and its partners, employees,
and representatives harmless from and against any and all claims made or
asserted against the Law Firm and its partners, employees, and representatives
on account of an act or omission of Indemnitee performed for the Corporation,
whether or not such actions could be construed as legal advice Pursuant to this
policy, and as a condition of his association with the Law Firm, Indemnitee has
been required to give, and has given, such an indemnity to the Firm (the
"Xxxxxxxxx Firm Indemnification"), which provides as follows:
(i) FX Energy, Inc. This will acknowledge that Attorney is
currently a Director of FX Energy, Inc., a NASDAQ listed public
company. This will confirm that such activities will not interfere with
your full time practice with the Firm. Attorney will obtain for the
Firm a "hold harmless" letter from FX Energy, Inc. in form satisfactory
to the Firm indemnifying the Firm and acknowledging that the Firm is
not and will not provide any services to FX Energy, Inc. and will have
no liability for your actions or services for FX Energy, Inc. as a
Director or in any other capacity. Additionally, you will indemnify,
protect, defend and hold the Firm and its partners, employees and
representatives harmless from and against any and all claims made or
asserted against the Firm and its partners, employees and
representatives on account of an act or omission performed by you for
FX Energy, Inc. whether or not such actions could be construed as legal
advice.
G. In view of the foregoing, as an express condition of Indemnitee
continuing to serve as a director of the Corporation and in order for the
Corporation to obtain the continuing services of Indemnitee on behalf of the
Corporation, the parties desire to enter into this Supplemental Indemnification
Agreement to provide protection to Indemnitee that is broader, more
comprehensive, and supplemental and in addition to the protection provided under
the Director Indemnification.
Agreement
NOW, THEREFORE, for and in consideration of these premises, which are
incorporated herein by reference, and the mutual promises and covenants
contained herein, the Corporation and Indemnitee do hereby covenant and agree as
follows:
1. Definitions. As used in this Agreement:
(a) The term "Indemnifiable Matter" means any event,
occurrence, status, or condition that takes place either prior to or
after the execution of this Agreement, including any inquiry,
examination, audit, investigation, review or inspection, or any
threatened, pending, or completed action, suit, proceeding, or
alternative dispute resolution activity, whether brought by or in the
right of the Corporation or otherwise and whether of a civil, criminal,
administrative, or investigative nature, in which Indemnitee was, is,
or believes might be involved as a party, witness, or otherwise,
related to or arising out of, in whole or in part, (i) any act, failure
to act, statement, omission, transaction, fact, circumstance, or event
related to or connected with Indemnitee's association with, on behalf
of, or by the Corporation, including association in connection with
Indemnitee's being an investor or having a financial interest, directly
or indirectly, in the Corporation, (ii) the fact that Indemnitee is or
was a director of the Corporation, (iii) Indemnitee's actual or alleged
participation in the management or direction of the Corporation as a
director or in any other capacity, (iv) Indemnitee's actual or alleged
performance of services for, or acting in any capacity with respect to
the Corporation, including the provision of services, advice, or other
assistance of any kind to the Corporation whether or not construed to
be legal assistance or advice, (v) any matter covered or encompassed by
the Xxxxxxxxx Firm Indemnification, and (vi) Indemnitee being a person
described in Section 15 of the Securities Act of 1933 or Section 20 of
the Securities Exchange Act of 1934, even though Indemnitee may have
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ceased to be associated with the Corporation in any capacity, save and
except only any matters for which indemnification is actually provided
under the Director Indemnification or under the Articles, the
Corporation's bylaws, any policy or policies of directors' and
officers' liability insurance, any other agreement, any vote of
stockholders or disinterested directors, and any applicable and
controlling law, statute, rule, decision, or finding, at common law or
otherwise, under any theory or form, at law or in equity.
(b) The term "Indemnifiable Amount" means any and all losses,
claims, damages, expenses, liabilities, judgments, fines, penalties,
and actions in respect thereof, as they are incurred, against
Indemnitee in connection with an Indemnifiable Matter; amounts paid by
Indemnitee in settlement of an Indemnifiable Matter; amounts paid by
Indemnitee under the Xxxxxxxxx Firm Indemnification or any other
indemnification obligation of Indemnitee to any third party arising out
of or related in whole or in part to Indemnitee's actual or alleged
association with the Corporation; any indirect, consequential, or
incidental damages suffered or incurred by Indemnitee; and all
reasonable attorneys' fees and disbursements, accountants' fees and
disbursements, private investigation fees and disbursements, retainers,
court costs, payments of attachment, appeal or other bonds or security,
transcript costs, fees of experts, fees and expenses of witnesses,
travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other
disbursements or expenses reasonably incurred by or for Indemnitee in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, appealing, or being or preparing to be a witness
in any threatened or pending Indemnifiable Matter or establishing
Indemnitee's right or entitlement to indemnification for any of the
foregoing, save and except only amounts actually paid Indemnitee under
the Director Indemnification, as it may be amended from time to time,
or under the Articles, the Corporation's bylaws, any policy or policies
of directors' and officers' liability insurance, any other agreement,
any vote of stockholders or disinterested directors, and any applicable
and controlling law, statute, rule, decision, or finding, at common law
or otherwise, under any theory or form, at law or in equity.
(c) The term "Indemnitee" shall include the Indemnitee named
in the first paragraph of this Agreement and such Indemnitee's actual
or alleged alter egos, spouse, family members, and corporations,
partnerships, limited liability companies, trusts, and other
enterprises and entities of any form whatsoever under the control of
any of the foregoing, together with the property of all of the
foregoing. The term "control" (including the terms "controlling,"
"controlled by," and "under common control with") means the possession,
direct or indirect, of the power to direct or cause the direction of
the management and policies of a person or entity, whether through the
ownership of voting securities, by contract, or otherwise, as
interpreted under the Securities Act of 1933 or the Securities Exchange
Act of 1934.
(d) The term "substantiating documentation" shall mean copies
of bills or invoices for costs incurred by or for Indemnitee, or copies
of court or agency orders, decrees, or settlement agreements, as the
case may be, accompanied by a declaration, which need not be notarized,
from Indemnitee that such bills, invoices, court or agency orders,
decrees, or settlement agreements represent items meeting the
definition of "Indemnifiable Amount" herein.
2. Indemnity. The Corporation hereby agrees to indemnify, protect,
defend, and hold harmless Indemnitee against any and all Indemnifiable Matters
for all Indemnifiable Amounts.
3. Choice of Counsel. Indemnitee shall be entitled to employ, and be
reimbursed for the fees and disbursements of, counsel separate from that chosen
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by any other person or persons whom the Corporation is obligated to indemnify
with respect to the same or any related or similar Indemnifiable Matter.
4. Advances of Indemnifiable Amounts. Indemnifiable Amounts (other than
judgments, penalties, fines, arbitration awards, and settlements) incurred by
Indemnitee shall be paid by the Corporation, in advance of the final disposition
of the Indemnifiable Matter, within 10 days after receipt of Indemnitee's
written request accompanied by substantiating documentation.
5. Right of Indemnitee to Indemnification upon Application. The right
to indemnification or advances as provided by this Agreement shall be
enforceable by Indemnitee in any court of competent jurisdiction. The burden of
proving, by clear and convincing evidence, that indemnification is not
appropriate shall be on the Corporation.
6. Notice to Insurers. If, at the time of the receipt of an application
for indemnification pursuant to section 2 hereof or a request for advances of
expenses pursuant to section 4 hereof, the Corporation has liability insurance
in effect, the Corporation shall give prompt notice of the commencement of such
Indemnifiable Matter to the insurers in accordance with the procedures set forth
in the respective policies. The Corporation shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Indemnifiable Matter in accordance with the
terms of such policies.
7. Undertaking by Indemnitee. Indemnitee hereby undertakes to repay to
the Corporation any advances of Indemnifiable Amounts pursuant to this Agreement
to the extent that it is ultimately determined that Indemnitee is not entitled
to indemnification.
8. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of Indemnifiable Amounts provided by this Agreement is intended to
be broader, more comprehensive, and supplemental and in addition to the
protection actually received by Indemnitee under the Director Indemnification or
any other protection Indemnitee may actually receive under the Articles, the
Corporation's bylaws, any policy or policies of directors' and officers'
liability insurance, any other agreement, any vote of stockholders or
disinterested directors, and any applicable and controlling law, statute, rule,
decision, or finding, at common law or otherwise, under any theory or form, at
law or in equity. However, Indemnitee shall reimburse the Corporation for
amounts paid to him under this Agreement in an amount equal to any payments
received pursuant to such other rights to the extent such payments duplicate any
payments received pursuant to this Agreement.
9. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is
associated with the Corporation and shall continue thereafter so long as
Indemnitee shall be subject to any possible Indemnifiable Matter.
10. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of Indemnifiable Amounts, but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion
of such Indemnifiable Amounts to which Indemnitee is entitled.
11. Settlement of Claims. The Corporation shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any Indemnifiable Matter effected without the Corporation's written consent. The
Corporation shall not settle any Indemnifiable Matter in any manner that would
impose any penalty or limitation on Indemnitee's rights under this Agreement
without Indemnitee's written consent. Neither the Corporation nor Indemnitee
will unreasonably withhold its or his consent to any proposed settlement. The
Corporation shall not be liable to indemnify Indemnitee under this Agreement
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with regard to any judicial award if the Corporation was not given a reasonable
and timely opportunity, at its expense, to participate in the defense of such
action.
12. Enforcement.
(a) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Corporation hereby in order to induce Indemnitee to serve as a director
or officer of the Corporation, and acknowledges that Indemnitee is
relying upon this Agreement in continuing as a director or officer. The
Corporation shall be precluded from asserting in any action commenced
pursuant to this section 12 that the procedures and presumptions in
this section are not valid, binding and enforceable and shall stipulate
in any such judicial proceedings that the Corporation is bound by all
of the provisions of this Agreement.
(b) In any action commenced pursuant to this section 12,
Indemnitee shall be presumed to be entitled to indemnification and
advancement of Losses in accordance with section 4 under this
Agreement, as the case may be, and the Corporation shall have the
burden of proof in overcoming such presumption and must show by clear
and convincing evidence that Indemnitee is not entitled to
indemnification or advancement of Losses, as the case may be.
(c) The execution of this Agreement shall constitute the
Corporation's stipulation by which it shall be irrevocably bound in any
action by Indemnitee for enforcement of Indemnitee's rights hereunder
that the Corporation's obligations set forth in this Agreement are
unique and special, and that failure of the Corporation to comply with
the provisions of this Agreement will cause irreparable and immediate
to Indemnitee, for which a remedy at law will be inadequate. As a
result, in addition to any other right or remedy Indemnitee may have at
law or in equity respecting a breach of this Agreement, Indemnitee
shall be entitled to injunctive or mandatory relief directing specific
performance by the Corporation of its obligations under this Agreement.
(d) In the event that Indemnitee shall deem it shall be
necessary or desirable to retain legal counsel and/or incur other costs
and expenses in connection with the interpretation or enforcement of
any or all of Indemnitee's rights under this Agreement, Indemnitee
shall be entitled to recover from the Corporation, and the Corporation
shall indemnify Indemnitee against, any and all fees, costs, and
expenses (of the types described in the definition of Indemnifiable
Amounts in section 1(b)) incurred by Indemnitee in connection with the
interpretation or enforcement of said rights. The Corporation shall
make payment to the Indemnitee at the time such fees, costs, and
expenses are incurred by Indemnitee. If, however, the Indemnitee does
not prevail in such action under this section 12, Indemnitee shall
repay any and all such amounts to the Corporation. If it shall be
determined in an action pursuant to this section 12 that Indemnitee is
entitled to receive part but not all of the indemnification or
advancement of fees, costs, and expenses or other benefit sought, the
expenses incurred by Indemnitee in connection with an action pursuant
to this section 12 shall be equitably allocated between the Corporation
and Indemnitee. Notwithstanding the foregoing, if a Change in Control
shall have occurred, Indemnitee shall be entitled to indemnification
under this section 12 regardless of whether Indemnitee ultimately
prevails in such judicial adjudication or arbitration.
13. Governing Law; Binding Effect; Amendment and Termination;
Construction.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the state of Nevada respecting matters
governing corporations organized under the laws of that state.
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Otherwise, this Agreement shall be interpreted and enforced in
accordance with the laws of the state of California, as applied to
contracts between California residents, without respect to principles
of conflicts of law.
(b) This Agreement shall be binding upon the Corporation, its
successors and assigns, and shall inure to the benefit of Indemnitee,
his spouse, estate, family members, heirs, executors, personal or legal
representatives, and assigns.
(c) No amendment, modification, termination, or cancellation
of this Agreement shall be effective unless in writing signed by the
Corporation and Indemnitee.
(d) This Agreement shall be construed liberally in favor of
Indemnitee to the fullest extent possible under applicable law, even if
such indemnification is not specifically authorized by this Agreement
or any other agreement, the Articles or Corporation's bylaws, or
applicable law. The parties to this Agreement expressly acknowledge
that it is their intent to shift to the Corporation all losses, claims,
damages, expenses, liabilities, judgments, fines and penalties incurred
by Indemnitee under the Xxxxxxxxx Firm Indemnification. In the event
applicable law is changed after the date of this Agreement, through
statutory amendment, judicial interpretation, administrative
regulations, or otherwise, to allow additional indemnification or to
remove or restrict current limitations on indemnification, this
Agreement shall be deemed to be amended and reformed so that Indemnitee
shall enjoy by this Agreement the greater benefit of such changes. In
the event of any change in applicable law that narrows or restricts the
right of a the Corporation to indemnify Indemnitee, such change, to the
extent not otherwise required by applicable law, to be applied to
Indemnitee in the relevant circumstances, shall have no effect on this
Agreement or the rights and obligations of the parties hereunder.
14. Indemnitee as Director. In consideration of the Corporation's
covenants in this Agreement, Indemnitee agrees to continue to serve as a
director of the Corporation; however, nothing in this Agreement shall be
construed to obligate the Corporation to recommend Indemnitee's re-election to
the board or to obligate Indemnitee to continue as a director against his will
should he subsequently decide to resign for any reason.
15. Severability. If any provision of this Agreement shall be held to
be invalid, illegal, or unenforceable:
(a) the validity, legality, and enforceability of the
remaining provisions of this Agreement shall not be in any way affected
or impaired thereby; and
(b) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal, or unenforceable.
Each section of this Agreement is a separate and independent portion of this
Agreement. If the indemnification to which Indemnitee is entitled as respects
any aspect of any claim varies between two or more sections of this Agreement,
that section providing the most comprehensive indemnification shall apply. The
parties shall use their best efforts to replace any void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the greatest extent possible, the economic, business, and other
purposes of the void or unenforceable provision.
16. Notice. Any notice, demand, request, or other communication
permitted or required under this Agreement shall be in writing and shall be
deemed to have been given as of the date so delivered, if personally served; as
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of the date so sent, if transmitted by facsimile and receipt is confirmed by the
facsimile operator of the recipient; as of the date so sent, if sent by
electronic mail and receipt is acknowledged by the recipient; one day after the
date so sent, if delivered by overnight courier service; or three days after the
date so mailed, if mailed by certified mail, return receipt requested, addressed
as follows:
If to the Corporation: FX Energy, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxxxx@xxxxxxxx.xxx
If to Indemnitee, to: Xxxxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
E-mail: xxxxxxxxxxxxxxx@xxxxxxxx.xxx
(with a copy to xxxxxxx@xxxxx.xxx)
or such other addresses, facsimile numbers, or electronic mail address as shall
be furnished in writing by any party in the manner for giving notices hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective on and as of the day and year first above written.
Corporation:
FX ENERGY, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx, President
Indemnitee:
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
XXXXXX X. XXXXXXXXX
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