INDEMNIFICATION AGREEMENT
EXHIBIT 10.27
This INDEMNIFICATION AGREEMENT is made and entered into as of April 1, 2011 (this
“Agreement”), between NYTEX Energy Holdings, Inc., a Delaware corporation (the
“Company”), and Xxxxxxx X. Xxxxx (“Indemnitee”).
WHEREAS, it is essential to the Company to attract and retain as directors and officers
capable individuals;
WHEREAS, Indemnitee performs a valuable service for the Company;
WHEREAS, the Company’s Certificate of Incorporation (the “Certificate”), provides for
the indemnification of the officers and directors of the Company to the fullest extent permitted by
applicable law (“Law”);
WHEREAS, the Board of Directors of the Company (the “Board”) has adopted Bylaws (the
“Bylaws”) providing for the indemnification of the officers and directors of the Company;
WHEREAS, the Certificate, the Bylaws and the Law, by their nonexclusive nature, permit
contracts between the Company and the officers or directors of the Company with respect to
indemnification of such officers or directors;
WHEREAS, in accordance with the authorization as provided by the Law, the Company shall
purchase and maintain a policy or policies of directors’ and officers’ liability insurance
(“D&O Insurance”), covering certain liabilities which may be incurred by its officers or
directors in the performance of their obligations to the Company;
WHEREAS, Indemnitee has certain rights to indemnification and/or insurance provided by the
Company as provided herein, with the Company’s acknowledgement and agreement to the foregoing being
a material condition to Indemnitee’s willingness to serve on the Board; and
WHEREAS, in order to induce Indemnitee to continue to serve as an officer or director of the
Company, the Company has determined and agreed to enter into this Agreement with Indemnitee.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Indemnity of Indemnitee.
The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent
permitted by law, as such may be amended from time to time, and in accordance with all provisions
in this Agreement. In furtherance of the foregoing indemnification, and without limiting the
generality thereof:
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(a) 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 1 if, by reason of his
Corporate Status (as hereinafter defined), Indemnitee is made, or is threatened to be made, a party
to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the
right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified to the fullest
extent permitted by applicable law against all Expenses (as hereinafter defined), judgments,
penalties, fines and amounts paid in settlement 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 Indemnitee’s conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 1 if, by reason of Indemnitee’s Corporate
Status, Indemnitee is made, or is threatened to be made, a party to or participant in any
Proceeding brought by or in the right of the Company. Pursuant to this Section 1(b), Indemnitee
shall be indemnified to the fullest extent permitted by applicable law against all Expenses
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;
provided, however, if applicable law so provides, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have
been finally adjudged to be liable to the Company unless and only to the extent that the Court of
Chancery of the State of Delaware or any court in which such Proceeding was brought shall determine
upon application that such indemnification may be made, despite the adjudication of liability.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason
of Indemnitee’s Corporate Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, or in defense of any claim, issue or matter therein, in whole or in part, Indemnitee
shall be indemnified to the maximum extent permitted by law as such may be amended from time to
time, against all Expenses actually incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all Expenses actually incurred by him or
on his behalf in connection with each successfully resolved claim, issue or matter. For purposes of
this Section and without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to
such claim, issue or matter.
(d) Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the fullest extent permitted by applicable law, to the
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extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses
actually incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
Section 2. Additional Indemnity.
In addition to, and without regard to any limitations on, the indemnification provided for in
Section 1 hereof, the Company shall and hereby does indemnify and hold harmless to the fullest
extent permitted by applicable law Indemnitee against all Expenses, judgments, penalties, fines and
amounts paid in settlement actually incurred by Indemnitee or on Indemnitee’s behalf if, by reason
of Indemnitee’s Corporate Status, Indemnitee is made, or is threatened to be made, a party to or
participant in any Proceeding (including a Proceeding by or in the right of the Company),
including, without limitation, all liability arising out of, the negligence or active or passive
wrongdoing of Indemnitee. The only limitation that shall exist upon the Company’s obligations
pursuant to this Agreement shall be that the Company shall not be obligated to make any payment to
Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set
forth in Sections 5 and 6 hereof) to not be permitted by Law.
Section 3. Contribution in the Event of Joint Liability.
(a) Whether or not the indemnification provided in Section 1 and Section 2 hereof is
available, in respect of any threatened, pending or completed Proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in the Proceeding), the Company shall pay, in
the first instance, the entire amount of any judgment or settlement in connection with any
Proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives
and relinquishes any right of contribution it may have against Indemnitee. The Company shall not
enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such Proceeding) unless such settlement provides for a full and final
release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding
subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion
of any judgment or settlement in any threatened, pending or completed Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company
shall pay to Indemnitee the entire amount of any judgment or settlement of such Proceeding without
requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes
any right of contribution it may have against Indemnitee. Indemnitee shall not enter into any
settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if
joined in such Proceeding) unless such settlement provides for a full and final release of all
claims asserted against the Company.
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(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution which may be brought by officers, directors or employees of the Company other than
any indemnitee who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu
of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement, and/or
Expenses, in connection with any claim relating to any event requiring indemnification of
Indemnitee under the Certificate, the Bylaws, this Agreement, or of any other resolutions or
provisions thereof in such proportion as is deemed fair and reasonable in light of all of the
circumstances of such Proceeding in order to reflect (i) the relative benefits received by the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such
Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees
and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
Section 4. Advancement of Expenses.
Notwithstanding any other provision of this Agreement, the Company shall advance, to the
fullest extent permitted by law, all Expenses incurred by or on behalf of Indemnitee in connection
with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the
receipt by the Company of a statement or statements from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall include or be preceded or accompanied by an undertaking by or on
behalf of Indemnitee to repay any Expenses advanced if, and only to the extent that, it shall
ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.
Advances shall include any and all Expenses incurred pursuing an action to enforce this right of
advancement, including Expenses incurred preparing and forwarding statements to the Company to
support the advances claimed. Any advances and undertakings to repay pursuant to this Section 4
shall be unsecured and interest free. This Section 4 shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to Section 8 hereof.
Section 5. Procedures and Presumptions for Determination of Entitlement to
Indemnification.
It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as
favorable as may be permitted under the law and public policy of the State of Delaware.
Accordingly, the parties agree that the following procedures and presumptions shall apply in the
event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
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(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request for indemnification or advancement of Expenses, including therein or therewith 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 as soon as is
reasonably practicable following the receipt by Indemnitee of written notice thereof. Such written
request to the Company shall include a description of the nature of the Proceeding and the facts
underlying such Proceeding, to the extent known. The omission by Indemnitee to notify the Company
hereunder will not relieve the Company from any liability that it may have to Indemnitee hereunder
or otherwise than under this Agreement, and any delay in so notifying the Company shall not
constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of the Company
(or other executive officer if the secretary is otherwise unavailable) shall, promptly upon receipt
of such a request for indemnification, advise the Board in writing that Indemnitee has requested
indemnification.
(b) If a claim under this Agreement, under any statute, or under any provision of the
Certificate or Bylaws providing for indemnification is not paid in full by the Company within
thirty (30) days after a written request for payment thereof has first been received by the
Company, Indemnitee shall, at any time thereafter, be entitled to an adjudication in an appropriate
court of the State of Delaware, or in any other court of competent jurisdiction, of Indemnitee’s
entitlement to such indemnification. Alternatively, Indemnitee, at his option, may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. The Company shall not oppose Indemnitee’s right to seek
any such adjudication. In any such action by Indemnitee to recover the unpaid amount of the claim,
Indemnitee shall also be entitled to be paid for the Expenses of bringing such action. It shall be
a defense to any such action (other than an action brought to enforce a claim for Expenses incurred
in connection with any Proceeding in advance of its final disposition) that Indemnitee has not met
the standards of conduct which make it permissible under applicable law for the Company to
indemnify Indemnitee for the amount claimed, but the burden of proving such defense shall be on the
Company, and Indemnitee shall be entitled to receive interim payments of Expenses pursuant to
Section 5 unless and until such defense may be finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of Indemnitee’s right to indemnification shall
be for the court to decide, and neither the failure of the Company (including the Board, any
committee or subgroup of the Board, independent legal counsel or the Company’s stockholders) to
have made a determination that indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct required by applicable law, nor an actual
determination by the Company (including the Board, any committee or subgroup of the Board,
independent legal counsel or the Company’s stockholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that Indemnitee has or has not met the
applicable standard of conduct.
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(c) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Enterprise (as defined below), including financial
statements, or on information supplied to Indemnitee by the officers of the Enterprise in the
course of their duties, or on the advice of legal counsel for the Enterprise or on information or
records given or reports made to the Enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the
knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. Whether or not the foregoing provisions of this Section 5(c)
are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good
faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company. Anyone seeking to overcome this presumption shall have the burden of proof.
(d) The Company acknowledges that a settlement or other disposition short of final judgment
may be successful if it permits a party to avoid expense, delay, distraction, disruption and
uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any
manner other than by adverse judgment against Indemnitee (including, without limitation, settlement
of such Proceeding with or without payment of money or other consideration) it shall be presumed
that Indemnitee has been successful on the merits or otherwise in such Proceeding. Anyone seeking
to overcome this presumption shall have the burden of proof.
(e) 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 reasonably believed to be in or opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that Indemnitee’s conduct was unlawful.
Section 6. Remedies of Indemnitee.
(a) In the event that Indemnitee seeks a judicial adjudication of Indemnitee’s rights under,
or to recover damages for breach of, this Agreement, or to recover under any D&O Insurance policies
maintained by the Company, the Company shall pay on Indemnitee’s behalf, in advance, any and all
expenses (of the types described in the definition of Expenses in Section 13(d) of this Agreement)
actually incurred by Indemnitee in such judicial adjudication, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advancement of expenses, or
insurance recovery.
(b) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 6 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such
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court that the Company is bound by all the provisions of this Agreement. The Company shall
indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within
thirty (30) days after receipt by the Company of a written request thereof) advance, to the fullest
extent permitted by law, such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for indemnification or advance of Expenses from
the Company under this Agreement or under any D&O Insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of Expenses, or insurance recovery, as the case may be.
(c) Notwithstanding anything in this Agreement to the contrary unless required by law, no
determination as to entitlement to indemnification under this Agreement shall be required to be
made prior to the final disposition of the Proceeding.
Section 7. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification 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, the Bylaws, any agreement, a vote of stockholders, a resolution of directors, or
otherwise. No amendment, alteration, or repeal of the Certificate, the Bylaws, this Agreement or of
any other provision hereof shall limit or restrict any right of Indemnitee under this Agreement in
respect of any action taken or omitted by such Indemnitee in Indemnitee’s Corporate Status prior to
such amendment, alteration or repeal. To the extent that a change in the law, whether by statute or
judicial decision, permits greater indemnification than would be afforded currently under the
Certificate, the Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change. To the extent that a
change in the law, whether by statute or judicial decision, limits the indemnification rights that
would be afforded currently under the Certificate, the Bylaws and this Agreement, it is the intent
of the parties hereto that such change, to the extent not otherwise required by such law, statute,
or rule to be applied to this Agreement, shall have no effect on this Agreement or the parties’
rights and obligations hereunder. No right or remedy herein conferred is intended to be exclusive
of any other right or remedy, and every other right and remedy shall be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or remedy. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified capacity even though he may have ceased to serve in such capacity
at the time of any action or other covered Proceeding.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees or agents or fiduciaries of the Company or
of any other corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the Company, Indemnitee shall be covered by
such policy or policies in accordance with its
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or their terms to the maximum extent of the coverage available for any such director, officer,
employee, agent or fiduciary under such policy or policies.
(c) 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.
Section 8. Exception to Right of Indemnification.
Notwithstanding any provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance
policy, except with respect to any excess beyond the amount paid under any insurance policy; or
(b) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the
Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized
the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company provides
the indemnification, in its sole discretion, pursuant to the powers vested in the Company under
applicable law, (iii) the Proceeding was initiated to establish or enforce a right to
indemnification under this Agreement, any other agreement or insurance policy, or under the Bylaws
or the Certificate or (iv) as otherwise required under the laws of the State of Delaware.
Section 9. Duration of Agreement.
All agreements and obligations of the Company contained herein shall continue during the
period Indemnitee is a director of the Company (or is or was serving at the request of the Company
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise) and shall continue thereafter so long as Indemnitee shall be subject to any
Proceeding (or any proceeding commenced under this Agreement) by reason of Indemnitee’s Corporate
Status, whether or not he is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this Agreement.
Section 10. Period of Limitations.
No legal action shall be brought and no cause of action shall be asserted by or in the right
of the Company against Indemnitee, Indemnitee’s estate, spouse, heirs, executors or personal or
legal representatives after the expiration of two years from the date of accrual of such cause of
action, and any claim or cause of action of the Company shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such two-year period; provided,
however, that if any shorter period of
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limitations is otherwise applicable to any such cause of action, such shorter period shall
govern.
Section 11. Security.
To the extent requested by Indemnitee and approved by the Board, the Company may at any time
and from time to time provide security to Indemnitee for the Company’s obligations hereunder
through an irrevocable bank line of credit, funded trust or other collateral. Any such security,
once provided to Indemnitee, may not be revoked or released without the prior written consent of
Indemnitee.
Section 12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumes the obligations imposed on it hereby in order to induce Indemnitee to serve or continue to
serve as a director of the Company, and the Company acknowledges that Indemnitee is relying upon
this Agreement in serving as a director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided however,
that this Agreement is a supplement to and in furtherance of the Certificate, the Bylaws and any
applicable law, and shall not be deemed a substitute thereof, nor to diminish or abrogate any
rights of Indemnitee thereunder.
Section 13. Definitions.
For purposes of this Agreement:
(a) “Business Day” means any day except Saturday, Sunday or any day on which banks are
generally not open for business in the City of New York.
(b) “Corporate Status” describes the status of a person who is or was a director,
officer, employee or agent or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving
at the request of the Company, including on or prior to the date of this Agreement.
(c) “Enterprise” shall mean the Company and any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at
the express written request of the Company as a director, officer, employee, agent or fiduciary.
(d) “Expenses” shall mean all 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
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disbursements or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding.
(e) “Proceeding” includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or any other actual, threatened or completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that
Indemnitee is or was an officer or director of the Company, by reason of any action taken by
Indemnitee or of any inaction on Indemnitee’s part while acting as a director of the Company, or by
reason of the fact that Indemnitee is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or
other Enterprise; in each case whether or not he is acting or serving in any such capacity at the
time any liability or expense is incurred for which indemnification can be provided under this
Agreement; including one pending on or before the date of this Agreement.
Section 14. Severability.
If any provision or provisions of this Agreement shall be held by a court of competent
jurisdiction to be invalid, void, illegal or otherwise 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, illegal, or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the 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, illegal, or
unenforceable) shall be construed so as to give effect to the intent manifested thereby. Without
limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee
indemnification rights to the fullest extent permitted by applicable laws. In the event any
provision hereof conflicts with any applicable law, such provision shall be deemed modified,
consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
Section 15. Attorneys’ Fees.
In the event that any action is instituted by Indemnitee under this Agreement to enforce or
interpret any of the terms hereof, Indemnitee shall be entitled to be paid all expenses (of the
types described in the definition of Expenses in Section 13(d) hereof) incurred by Indemnitee with
respect to such action. In the event of an action instituted by or in the name of the Company under
this Agreement or to enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all
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expenses (of the types described in the definition of Expenses in Section 13(d) hereof) in
defense of such action (including with respect to Indemnitee’s counterclaims and cross claims made
in such action).
Section 16. Modification and Waiver.
No supplement, modification, termination or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. 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.
Section 17. Assignment.
This Agreement shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the business and/or
assets of the Company), assigns, spouses, heirs, and personal and legal representatives. The
Company shall require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or
assets of the Company, by written agreement in form and substance satisfactory to 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. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as a director,
officer, employee, or agent of the Company or of any other Enterprise. Indemnitee may not assign
his rights hereunder without the prior written consent of the Company.
Section 18. Notice by Indemnitee.
Indemnitee agrees within five (5) days to notify the Company in writing upon being served or
otherwise receiving with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to indemnification covered
hereunder. The failure to so notify the Company shall not relieve the Company of any obligation
which it may have to the Indemnitee under this Agreement or otherwise unless and only to the extent
that such failure or delay materially prejudices the Company.
Section 19. Notices.
All notices and other communications given or made pursuant to this Agreement shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business
hours of the recipient, and if not so confirmed, then on the next Business Day, (c) five (5) days
after having been sent by registered or certified mail, return receipt requested, postage prepaid,
or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications shall be sent:
INDEMNIFICATION AGREEMENT — XXXXXXX X. XXXXX
Page 11 of 14
To the Indemnitee:
Xxxxxxx X. Xxxxx
00000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
00000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
To the Company:
NYTEX Energy Holdings, Inc.
00000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Corporate Secretary
Phone: (000) 000-0000
Facsimile: (000) 000-0000
00000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Corporate Secretary
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxxxxx & Price, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other representative or at such other address of a party as such party may furnish to
the other parties in writing. Any notice which is delivered personally or by facsimile or other
electronic transmission in the manner provided herein shall be deemed to have been duly given to
the party to whom it is directed upon actual receipt by such party or its agent. Any notice which
is addressed and mailed in the manner herein provided shall be conclusively presumed to have been
duly given to the party to which it is addressed at the close of business, local time of the
recipient, on the fourth Business Day after the day it is so placed in the mail (or on the first
Business Day after placed in the mail if sent by overnight courier) or, if earlier, the time of
actual receipt.
Section 20. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same Agreement. This Agreement may
also be executed and delivered by facsimile signature and in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
INDEMNIFICATION AGREEMENT — XXXXXXX X. XXXXX
Page 12 of 14
Section 21. Captions.
The captions of the paragraphs of this Agreement are inserted for convenience only and shall
not be deemed to constitute part of this Agreement or to affect the construction thereof.
Section 22. Governing Law and Consent to Jurisdiction.
This Agreement and the legal relations among the parties shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict
of law rules. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement shall be brought only in
the Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other
state or federal court in the United States of America or any court in any other country, (ii)
consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (iv) waive, and agree
not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum.
INDEMNIFICATION AGREEMENT — XXXXXXX X. XXXXX
Page 13 of 14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
| NYTEX ENERGY HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Chief Executive Officer | |||
| INDEMNITEE |
||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
INDEMNIFICATION AGREEMENT — XXXXXXX X. XXXXX
Page 14 of 14
