INDEMNIFICATION AGREEMENT
Exhibit
10.1
This
Indemnification Agreement (“Agreement”) is made
as of ______________, 20__ by and between Xxxxxxx Petroleum Corporation, a
Delaware corporation (the “Company”), and
[INDEMNITEE] (“Indemnitee”).
RECITALS
WHEREAS, highly competent
persons have become more reluctant to serve publicly−held corporations as
directors, officers or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the corporation;
WHEREAS, the Board of
Directors of the Company (the “Board”) has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. At the same time, directors, officers, and other
persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time−consuming litigation relating to,
among other things, matters that traditionally would have been brought only
against the Company or business enterprise itself;
WHEREAS, the Certificate of
Incorporation of the Company (as amended, the “Certificate of
Incorporation”) and the By-laws of the Company (as amended, the “By-laws”) provide
that the Company will indemnify its directors and officers to the fullest extent
permitted by law, and directors and officer may also be entitled to
indemnification pursuant to applicable provisions of the Delaware General
Corporation Law (“DCGL”);
WHEREAS, the indemnification
provisions set forth in the Certificate of Incorporation, the By-laws and the
DGCL are not exclusive, and contracts may be entered into between the Company
and members of the board of directors, officers and other persons with respect
to indemnification;
WHEREAS, the uncertainties
relating to such insurance and to indemnification have increased the difficulty
of attracting and retaining such persons;
WHEREAS, the Board has
determined that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company’s stockholders and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future;
WHEREAS, it is reasonable,
prudent and necessary for the Company contractually to obligate itself to
indemnify and hold harmless, and to advance expenses on behalf of, such persons
to the fullest extent permitted by applicable law so that they will serve or
continue to serve the Company free from undue concern that they will not be so
protected against liabilities;
WHEREAS, this Agreement is a
supplement to and in furtherance of the Certificate of Incorporation and the
By-laws and any resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder;
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal liability in order
to enhance Indemnitee’s continued service to the Company in an effective manner,
and Indemnitee’s reliance on the aforesaid provisions of the Certificate of
Incorporation and By-laws, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such provisions will be
available to Indemnitee (regardless of, among other things, any amendment to or
revocation of such provisions or any change in the composition of the Company’s
Board of Directors or any acquisition or business combination transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancement of expenses to Indemnitee as set
forth in this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company’s directors’ and officers’
liability insurance policies; 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 Indemnitee be so indemnified
hereunder.
NOW, THEREFORE, in
consideration of the promises and the covenants contained herein, the Company
and Indemnitee do hereby covenant and agree as follows:
Section
1. Services to the
Company. Indemnitee will serve or continue to serve as a director or
officer of the Company for so long as Indemnitee is duly elected or appointed or
until Indemnitee tenders Indemnitee’s resignation or is no longer serving in
such capacity. This Agreement shall not be deemed an employment contract between
the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.
Indemnitee specifically acknowledges that Indemnitee’s service to the Company
(or any of its subsidiaries or any Enterprise), if any, is at will, and the
Indemnitee may be discharged at any time for any reason, with or without cause,
except as may be otherwise provided in any written employment contract between
Indemnitee and the Company (or any of its subsidiaries or any Enterprise), other
applicable formal severance policies or contracts duly adopted by the Board, or
by the Certificate of Incorporation, the By-laws and the DGCL.
Section
2. Definitions. As used
in this Agreement:
(a) References
to “agent”
shall mean any person who is or was a director, officer, or employee of the
Company or a subsidiary of the Company or other person authorized by the Company
to act for the Company, to include such person serving in such capacity as a
director, officer, employee, fiduciary or other official of another corporation,
partnership, limited liability company, joint venture, trust or other Enterprise
at the request of, for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company.
(b)
“Corporate
Status” describes the status of a person who is or was a director,
officer, trustee, general partner, managing member, fiduciary, employee or agent
of the Company or of any other Enterprise which such person is or was serving at
the request of the Company.
(d)
“Disinterested
Director” shall mean 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.
(e)
“Enterprise”
shall mean the Company and any other corporation, constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger to which the Company (or any of its wholly owned subsidiaries) is a
party, limited liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the
request of the Company as a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent.
(f)
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.
(g)
“Expenses”
shall include all direct and indirect costs, fees and expenses of any type or
nature whatsoever, including, without limitation, all attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, fees of private investigators and professional advisors, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees, fax transmission charges, secretarial services and all other
disbursements, obligations or expenses in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing
to be a witness in, settlement or appeal of, or otherwise participating in, a
Proceeding (as defined below), including reasonable compensation for time spent
by the Indemnitee for which he or she is not otherwise compensated by the
Company or any third party. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding (as defined below),
including without limitation the principal, premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal bond or its
equivalent. Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee.
(h)
“Independent
Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the
past five years has been, retained to represent: (i) the Company or Indemnitee
in any matter material to either such party (other than with respect to matters
concerning the Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, 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.
(i)
“Proceeding”
shall include any threatened, pending or completed action, suit, arbitration,
mediation, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding,
whether brought in the right of the Company or otherwise and whether of a civil
(including intentional or unintentional tort claims), criminal, administrative
or investigative nature, in which Indemnitee was, is, will or might be involved
as a party or otherwise by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, by reason of any action (or
failure to act) taken by him or of any action (or failure to act) on his part
while acting as a director, officer, employee or agent of the Company, or by
reason of the fact that he is or was serving at the request of the Company as a
director, officer, trustee, general partner, managing member, fiduciary,
employee or agent of any other Enterprise, in each case whether or not serving
in such capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be provided under
this Agreement.
(j) References
“fines” shall
include any excise tax or penalties assessed with respect to any employee
benefit plan; references to “serving at the request of
the Company” shall include any service as a director, officer, employee,
trustee, fiduciary or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee, trustee, fiduciary or agent with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in manner “not opposed to the best
interests of the Company” as referred to in this Agreement.
(k) In
connection with any merger or consolidation, references to the “Company” shall
include not only the resulting or surviving company, but also any constituent
company or constituent of a constituent company, which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents. The intent of this provision is that a
person who is or was a director of such constituent company after the date
hereof or is or was serving at the request of such constituent company as a
director, officer, employee, trustee or agent of another company, partnership,
joint venture, trust, employee benefit plan or other Enterprise after the date
hereof, shall stand in the same position under this Agreement with respect to
the resulting or surviving company as the person would have under this Agreement
with respect to such constituent company if its separate existence had
continued.
Section
3. Indemnification in
Third−Party Proceedings. The Company shall indemnify and hold harmless
Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee was, is, or is threatened to be made, a party to or a participant (as
a witness or otherwise) in any Proceeding, other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee
shall be indemnified and held harmless against all Expenses, judgments,
liabilities, 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 Expenses, judgments, fines, penalties 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, in the case of a criminal Proceeding had no reasonable cause to believe
that Indemnitee’s conduct was unlawful.
Section
4. Indemnification in
Proceedings by or in the Right of the Company. The Company shall
indemnify and hold harmless Indemnitee in accordance with the provisions of this
Section
4 if Indemnitee was, is, or is threatened to be made, a party
to or a participant (as a witness or otherwise) in any Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee
shall be indemnified and held harmless 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. No indemnification or hold
harmless for Expenses shall be made under this Section 4 in respect
of any claim, issue or matter as to which Indemnitee shall have been finally
adjudged by a court to be liable to the Company, unless and only to the extent
that any court in which the Proceeding was brought or the Delaware Court shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification.
Section
5. Indemnification for Expenses
of a Party Who Is Wholly or Partly Successful. Notwithstanding any other
provisions of this Agreement, to the extent that Indemnitee is a party to (or a
participant in) 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, the
Company shall indemnify and hold harmless Indemnitee against all Expenses
actually and reasonably incurred by Indemnitee 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 and hold harmless
Indemnitee against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with each successfully resolved claim,
issue or matter. If the Indemnitee is not wholly successful in such Proceeding,
the Company also shall indemnify and hold harmless Indemnitee against all
Expenses reasonably incurred in connection with a claim, issue or matter related
to any claim, issue, or matter on which the Indemnitee was successful. 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.
Section
6. Indemnification for Expenses
of 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 to which Indemnitee is not a party, Indemnitee shall
be indemnified and held harmless against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
Section
7. Additional
Indemnification.
(a) Notwithstanding
any limitation in Section 3, Section 4 or Section 5, the
Company shall indemnify Indemnitee to the fullest extent permitted by applicable
law if Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the Company to procure
a judgment in its favor) against all Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee in connection with
the Proceeding.
(b) For
purposes of Section
7(a), the meaning of the phrase “to the fullest extent
permitted by applicable law” shall include, but not be limited
to:
(i) to
the fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL, and
(ii) to
the fullest extent authorized or permitted by any amendments to or replacements
of the DGCL adopted after the date of this Agreement that increase the extent to
which a corporation may indemnify its officers and directors.
Section
8. Contribution in the Event of
Joint Liability.
(a) To
the fullest extent permissible under applicable law, if the indemnification and
hold harmless rights provided for in this Agreement are unavailable to
Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu
of indemnifying and holding harmless Indemnitee, shall pay, in the first
instance, the entire amount incurred by Indemnitee, whether for judgments,
liabilities, fines, penalties, amounts paid or to be paid in settlement and/or
for Expenses, 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 at any time against Indemnitee.
(b) 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.
(c) The
Company hereby agrees to fully indemnify and hold harmless Indemnitee from any
claims for contribution which may be brought by officers, directors or employees
of the Company other than Indemnitee who may be jointly liable with
Indemnitee.
Section
9. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall not be
obligated under this Agreement to make any indemnity payment:
(a) in
connection with any claim made against Indemnitee for which payment has actually
been received by or on behalf of Indemnitee under any insurance policy or other
indemnity provision, except with respect to any excess beyond the amount
actually received under any insurance policy, contract, agreement, other
indemnity provision or otherwise; or
(b) in
connection with any claim made against Indemnitee for (i) an accounting of
profits made from the purchase and sale (or sale and purchase) by Indemnitee of
securities of the Company within the meaning of Section 16(b) of the Exchange
Act or similar provisions of state statutory law or common law, or (ii) any
reimbursement of the Company by the Indemnitee of any bonus or other
incentive−based or equity−based compensation or of any profits realized by the
Indemnitee from the sale of securities of the Company, as required in each case
under the Exchange Act (including any such reimbursements that arise from an
accounting restatement of the Company pursuant to Section 304 of the
Sarbanes−Oxley Act of 2002 (the “Sarbanes−Oxley Act”),
or the payment to the Company of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 306 of the Sarbanes−Oxley Act),
or
(c) except
as otherwise provided in Section 14(e), 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 or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law.
Section
10. Advances of Expenses;
Defense of Claim.
(a) Notwithstanding
any provision of this Agreement to the contrary, and to the fullest extent not
prohibited by applicable law, the Company shall advance the Expenses reasonably
incurred by Indemnitee (or reasonably expected by Indemnitee to be incurred by
Indemnitee within three months) in connection with any Proceeding within ten
days after the receipt by the Company of a statement or statements requesting
such advances from time to time. Advances shall be unsecured and interest free.
Advances shall be made without regard to Indemnitee’s ability to repay the
Expenses and without regard to Indemnitee’s ultimate entitlement to
indemnification under the other provisions of this Agreement. Advances shall
include any and all reasonable Expenses incurred pursuing a Proceeding to
enforce this right of advancement. The Indemnitee shall qualify for Advances, to
the fullest extent permitted by applicable law, solely upon the execution and
delivery to the Company of an undertaking providing that the Indemnitee
undertakes to repay the advance to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Company under the
provisions of this Agreement, the Certificate of Incorporation, the By−laws,
applicable law or otherwise. This Section 10(a) shall
not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to Section
9.
(b) The
Company will be entitled to participate in the Proceeding at its own
expense.
(c) The
Company shall not settle any action, claim or Proceeding (in whole or in part)
that would impose any Expense, judgment, fine, penalty or limitation on the
Indemnitee without the Indemnitee’s prior written consent.
Section
11. Procedure for Notification
and Application for Indemnification.
(a) Indemnitee
shall notify promptly the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter that may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so
notify the Company shall not relieve the Company of any obligation that it may
have to the Indemnitee under this Agreement, or otherwise.
(b) Indemnitee
may deliver to the Company a written application to indemnify and hold harmless
Indemnitee in accordance with this Agreement. Such application(s) may be
delivered from time to time and at such time(s) as Indemnitee deems appropriate
in Indemnitee’s sole discretion. Following such a written application for
indemnification by Indemnitee, the Indemnitee’s entitlement to indemnification
shall be determined according to Section
12(a).
Section
12. Procedure upon Application
for Indemnification.
(a) A
determination, if required by applicable law, with respect to Indemnitee’s
entitlement to indemnification shall be made in the specific case by one of the
following methods, which shall be at the election of Indemnitee: (i) by a
majority vote of the Disinterested Directors, even though less than a quorum of
the Board, or (ii) by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee. The Company promptly
will advise Indemnitee in writing with respect to any determination that
Indemnitee is or is not entitled to indemnification, including a description of
any reason or basis for which indemnification has been denied. If it
is so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten days after such determination. Indemnitee
shall reasonably cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any 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) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(b) In
the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 12(a), the
Independent Counsel shall be selected as provided in this Section 12(b). The
Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board), and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent
Counsel so selected and certifying that the Independent Counsel so selected
meets the requirements of “Independent Counsel” as defined in Section 2. If the
Independent Counsel is selected by the Board, the Company shall given written
notice to Indemnitee advising Indemnitee of the identity of the Independent
Counsel so selected and certifying that the Independent Counsel so selected
meets the requirements of “Independent Counsel” as defined in Section 2. In either
event, Indemnitee or the Company, as the case may be, may, within ten days after
such written notice of selection shall have been received, deliver to the
Company or to Indemnitee, as the case may be, a written objection to such
selection; provided, however, that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the requirements
of “Independent Counsel” as defined in Section 2, and the
objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so selected shall
act as Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court of competent
jurisdiction has determined that such objection is without merit. If, within
twenty days after submission by Indemnitee of a written request for
indemnification pursuant to Section 11(b), no
Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition the Delaware Court 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 the Delaware Court, and the person with respect
to whom all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 12(a). Upon
the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a),
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(c) The
Company agrees to pay the reasonable fees and expenses of Independent Counsel
and to fully indemnify and hold harmless such Independent Counsel against any
and all Expenses, claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.
Section
13. Presumptions and Effect of
Certain Proceedings.
(a) 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 11(b), 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. Neither the failure of the Company (including by
its directors or Independent Counsel) to have made a determination prior to the
commencement of any action pursuant to this Agreement that indemnification is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Company (including by its
directors or Independent Counsel) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct.
(b) If
the person, persons or entity empowered or selected under Section 12 to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within thirty 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, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or
(ii) a final judicial determination that any or all such indemnification is
expressly prohibited under applicable law; provided, however, that such
thirty−day period may be extended for a reasonable time, not to exceed an
additional fifteen days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto.
(c) 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 not 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.
(d) For
purposes of any determination of good faith, 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, including financial statements, or on information
supplied to Indemnitee by the directors or officers of the Enterprise in the
course of their duties, or on the advice of legal counsel for the Enterprise,
its Board, any committee of the Board or any director, or on information or
records given or reports made to the Enterprise, its Board, any committee of the
Board or any director, by an independent certified public accountant or by an
appraiser or other expert selected by the Enterprise, its Board, any committee
of the Board or any director. The provisions of this Section 13(d) shall
not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed or found to have met the applicable standard
of conduct set forth in this Agreement.
(e) The
knowledge and/or actions, or failure to act, of any other director, officer,
trustee, partner, managing member, fiduciary, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
Section
14. Remedies of
Indemnitee.
(a) In
the event that (i) a determination is made pursuant to Section 12 that
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses, to the fullest extent permitted by applicable law, is
not timely made pursuant to Section 10, (iii) no
determination of entitlement to indemnification shall have been made pursuant to
Section 12(a)
within thirty days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section 5, Section 6 or Section 7 or the last
sentence of Section
12(a) within ten days after receipt by the Company of a written request
therefor, (v) a contribution payment is not made in a timely manner pursuant to
Section 8, or
(vi) payment of indemnification pursuant to Section 3 or Section 4 is not made
within ten days after a determination has been made that Indemnitee is entitled
to indemnification, Indemnitee shall be entitled to an adjudication by the
Delaware Court to such indemnification, contribution or advancement of Expenses.
Alternatively, Indemnitee, at Indemnitee’s 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. Except as set forth
herein, the provisions of Delaware law (without regard to its conflict of laws
rules) shall apply to any such arbitration. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in
arbitration.
(b) In
the event that a determination shall have been made pursuant to Section 12(a) that
Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 14 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 judicial proceeding or arbitration commenced pursuant to this Section 14,
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement and the Company shall have the burden of proving Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may be, and
the Company may not refer to or introduce into evidence any determination
pursuant to Section
12(a) adverse to Indemnitee for any purpose. If Indemnitee commences a
judicial proceeding or arbitration pursuant to this Section 14,
Indemnitee shall not be required to reimburse the Company for any advances
pursuant to Section
10 until a final determination is made with respect to Indemnitee’s
entitlement to indemnification (as to which all rights of appeal have been
exhausted or lapsed).
(c) If
a determination shall have been made pursuant to Section 12(a) that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section
14, absent (i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 14 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 the provisions of this Agreement.
(e) The
Company shall indemnify and hold harmless Indemnitee to the fullest extent
permitted by law against all Expenses and, if requested by Indemnitee, shall
(within ten days after the Company’s receipt of such written request) advance to
Indemnitee, to the fullest extent permitted by applicable law, such Expenses
that are incurred by Indemnitee in connection with any judicial proceeding or
arbitration brought by Indemnitee (i) to enforce Indemnitee’s rights under, or
to recover damages for breach of, this Agreement or any other indemnification,
advancement or contribution agreement or provision of the Certificate of
Incorporation or the By−laws now or hereafter in effect; or (ii) for recovery or
advances under any insurance policy maintained by any person for the benefit of
Indemnitee, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance, contribution or insurance recovery,
as the case may be.
(f) Notwithstanding
anything in this Agreement to the contrary, 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
15. Non−Exclusivity; Survival of
Rights; Insurance; Subrogation.
(a) 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, the By−laws, any agreement, a vote of members or a resolution of
directors, or otherwise. No amendment, alteration or repeal of this Agreement or
of any 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 applicable law, whether by statute or judicial
decision, permits greater indemnification or advancement of Expenses than would
be afforded currently under the Certificate of Incorporation, the By-laws or
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. 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.
(b) The
DGCL, the Certificate of Incorporation and the By-laws permit the Company to
purchase and maintain insurance or furnish similar protection or make other
arrangements (“Indemnification
Arrangements”) on behalf of Indemnitee against any liability asserted
against Indemnitee or incurred by or on behalf of Indemnitee or in such capacity
as a director, officer, employee or agent of the Company, or arising out of
Indemnitee’s status as such, whether or not the Company would have the power to
indemnify Indemnitee against such liability under the provisions of this
Agreement or under the DGCL, as it may then be in effect. The purchase,
establishment, and maintenance of any such Indemnification Arrangement shall not
in any way limit or affect the rights and obligations of the Company or of the
Indemnitee under this Agreement except as expressly provided herein, and the
execution and delivery of this Agreement by the Company and the Indemnitee shall
not in any way limit or affect the rights and obligations of the Company or the
other party or parties thereto under any such Indemnification
Arrangement.
(c) To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, trustees, partners, managing
members, fiduciaries, employees, or agents of the Company or of any 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 or their
terms to the maximum extent of the coverage available for any such director,
officer, trustee, partner, managing member, fiduciary, employee or agent under
such policy or policies. If, at the time the Company receives notice from any
source of a Proceeding as to which Indemnitee is a party or a participant (as a
witness or otherwise), the Company has director and officer liability insurance
in effect, the Company shall give prompt notice of such Proceeding to the
insurers in accordance with the procedures set forth in the respective policies.
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
policies.
(d) 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.
(e) The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
trustee, partner, managing member, fiduciary, employee or agent of any other
Enterprise shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of expenses from such Enterprise.
Section
16. Duration of
Agreement. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee serves as a director or officer of the
Company or as a director, officer, trustee, partner, managing member, fiduciary,
employee or agent of any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other Enterprise
which Indemnitee serves at the request of the Company and shall continue
thereafter so long as Indemnitee shall be subject to any possible Proceeding
(including any rights of appeal thereto and any Proceeding commenced by
Indemnitee pursuant to Section 14) by reason
of Indemnitee’s Corporate Status, whether or not Indemnitee is acting in any
such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement.
Section
17. Severability. If any
provision or provisions of this Agreement shall be held to be invalid, illegal
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, paragraph or sentence 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, paragraph or sentence 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.
Section
18. Enforcement and Binding
Effect.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve and/or continue to serve as a director or officer of the Company, and
the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a director or officer of the Company.
(b) Without
limiting any of the rights of Indemnitee under the Certificate of Incorporation
or By−laws as they may be amended from time to time, 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.
(c) The
rights to be indemnified and to receive contribution and advancement of Expenses
provided by or granted Indemnitee pursuant to this Agreement shall apply to
Indemnitee’s service as an officer, director, employee or agent of the Company
prior to the date of this Agreement.
(d) The
indemnification and advancement of Expenses provided by or granted pursuant to
this Agreement shall be binding upon and be enforceable by the parties hereto
and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), shall continue as
to an Indemnitee who has ceased to be a director, officer, employee or agent of
the Company or of any other Enterprise at the Company’s request, and shall inure
to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees,
executors and administrators and other legal representatives.
(e) 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 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.
(f) The
Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of
proof, and further agree that such breach may cause Indemnitee irreparable harm.
Accordingly, the parties hereto agree that Indemnitee may enforce this Agreement
by seeking injunctive relief and/or specific performance hereof, without any
necessity of showing actual damage or irreparable harm and that by seeking
injunctive relief and/or specific performance, Indemnitee shall not be precluded
from seeking or obtaining any other relief to which Indemnitee may be entitled.
The Company and Indemnitee further agree that Indemnitee shall be entitled to
such specific performance and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, without the necessity
of posting bonds or other undertaking in connection therewith. The Company
acknowledges that in the absence of a waiver, a bond or undertaking may be
required of Indemnitee by the Delaware Court, and the Company hereby waives any
such requirement of such a bond or undertaking.
Section
19. Modification and
Waiver. No supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by 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 of this Agreement nor shall any waiver constitute a
continuing waiver.
Section
20. Notices. All notices,
requests, demands and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand to
the party to whom said notice or other communication shall have been directed,
or (ii) 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, at the address indicated on the signature page of this Agreement,
or such other address as Indemnitee shall provide in writing to the
Company.
(b) If
to the Company to Xxxxxxx Petroleum Corporation, 1700 Xxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000, Facsimile No.: (000) 000-0000, Attn: General
Counsel, or to such other address as the Company shall provide in writing to
Indemnitee.
Section
21. Applicable 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 laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 14(a), the
Company and Indemnitee hereby irrevocably and unconditionally: (a) agree that
any action or proceeding arising out of or in connection with this Agreement
shall be brought only in 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;
(b) 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; (c) appoint irrevocably, to the extent such party is not a resident
of the State of Delaware, The Corporation Trust Company, 1200 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 xs such party’s agent for acceptance of legal process
in connection with any such action or proceeding against such party with the
same legal force and validity as if served upon such party personally within the
State of Delaware; (d) waive any objection to the laying of venue of any such
action or proceeding in the Delaware Court; and (e) 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, or is
subject (in whole or in part) to a jury trial.
Section
22. Identical
Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement. Only one such
counterpart signed by the party against whom enforceability is sought needs to
be produced to evidence the existence of this Agreement.
Section
23. Miscellaneous. The
headings 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.
[The
Remainder of this Page Is Intentionally Left
Blank.]
IN WITNESS WHEREOF, the
parties hereto have caused this Indemnification Agreement to be signed as of the
day and year first above written.
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PETROLEUM CORPORATION
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By:
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Name:
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Title:
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INDEMNITEE
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By:
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Name:
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Address:
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