INDEMNIFICATION AGREEMENT
Exhibit 10.2
THIS AGREEMENT is effective between Superior Well Services, Inc., a Delaware corporation (the
"Corporation”), and the undersigned director or officer of the Corporation (“Indemnitee”) as of
November 18, 2008.
WHEREAS, the Corporation has adopted Amended and Restated Bylaws (as the same may be amended
from time to time, the “Bylaws”) providing for indemnification of the Corporation’s directors and
officers to the maximum extent authorized by the Delaware General Corporation Law (the “DGCL”); and
WHEREAS, the Bylaws and the DGCL contemplate that contracts and insurance policies may be
entered into with respect to indemnification of directors and officers; and
WHEREAS, there are questions concerning the adequacy and reliability of the protection which
might be afforded to directors and officers from acquisition of policies of Directors and Officers
Liability Insurance (“D&O Insurance”), covering certain liabilities which might be incurred by
directors and officers in the performance of their services to the Corporation; and
WHEREAS, it is reasonable, prudent and necessary for the Corporation to obligate itself
contractually to indemnify Indemnitee so that he will serve or continue to serve the Corporation
free from undue concern that he will not be adequately protected; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the Corporation on condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Corporation and Indemnitee do hereby covenant and agree as follows:
1. Definitions. As used in this Agreement:
(a) The term “Proceeding” shall include any threatened, pending or completed action, suit,
inquiry or proceeding, whether brought by or in the right of the Corporation or otherwise and
whether of a civil, criminal, administrative, arbitrative or investigative nature, in which
Indemnitee is or will be involved as a party, as a witness or otherwise, by reason of the fact that
Indemnitee is or was a director or officer of the Corporation, by reason of any action taken by him
or of any inaction on his part while acting as a director or officer or by reason of the fact that
he is or was serving at the request of the Corporation as a director, officer, trustee, employee or
agent of another corporation, partnership, joint venture, trust, limited liability company 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 or reimbursement can be provided
under this Agreement; provided that any such action, suit or proceeding that is brought by
Indemnitee against the Corporation or directors or officers of the Corporation, other than an
action brought by Indemnitee to enforce his rights under this Agreement, shall not be deemed a
Proceeding without prior approval by a majority of the Board of Directors of the Corporation.
(b) The term “Expenses” shall include, without limitation, any judgments, fines and penalties
against Indemnitee in connection with a Proceeding; amounts paid by Indemnitee in settlement of a
Proceeding; and all attorneys’ fees and disbursements, accountants’ fees, private investigation
fees and disbursements, retainers, court costs, 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, being or preparing to be a witness in a Proceeding or establishing
Indemnitee’s right of entitlement to indemnification for any of the foregoing.
(c) References to Indemnitee’s being or acting as “a director or officer of the Corporation”
or “serving at the request of the Corporation as a director, officer, trustee, employee or agent of
another corporation, partnership, joint venture, trust, limited liability company or other
enterprise” shall include in each case service to or actions taken while a director, officer,
trustee, employee or agent of any subsidiary or predecessor of the Corporation.
(d) References to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Corporation” shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director, officer, trustee, employee 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 reasonably
believed to be in the interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interest of the Corporation” as
referred to in this Agreement.
(e) 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 or decrees or settlement
agreements, as the case may be, accompanied by a sworn statement from Indemnitee that such bills,
invoices, court or agency orders or decrees or settlement agreements, represent costs or
liabilities meeting the definition of “Expenses” herein.
(f) The terms “he” and “his” have been used for convenience and mean “she” and “her” if
Indemnitee is a female.
2. Indemnity of Director or Officer. The Corporation hereby agrees to hold harmless and
indemnify Indemnitee against Expenses to the fullest extent authorized or permitted by law
(including the applicable provisions of the DGCL). The phrase “to the fullest extent permitted by
law” shall include, but not be limited to (a) to the fullest extent permitted by any provision of
the DGCL that authorizes or permits additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL and (b) 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.
Any amendment, alteration or repeal of the DGCL that adversely affects any right of Indemnitee
shall be prospective only and shall not limit or eliminate any such right with respect to any
Proceeding
involving any occurrence or alleged occurrence of any action or omission to act that took place
prior to such amendment or repeal.
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3. Additional Indemnity. The Corporation hereby further agrees to hold harmless and
indemnify Indemnitee against Expenses incurred by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of another corporation, partnership,
joint venture, trust, limited liability company or other enterprise, including, without limitation,
any predecessor, subsidiary or affiliated entity of the Corporation, but only if Indemnitee acted
in good faith and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Corporation. Additionally, in the case of a criminal proceeding, Indemnitee must
have had no reasonable cause to believe that his conduct was unlawful. The termination of any
Proceeding by judgment, order of the court, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the
best interest of the Corporation, and with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
4. Choice of Counsel. If Indemnitee is not an officer of the Corporation, he, together
with the other directors who are not officers of the Corporation (the “Outside Directors”), shall
be entitled to employ, and be reimbursed for the fees and disbursements of, counsel separate from
that chosen by Indemnitees who are officers of the Corporation. The principal counsel for Outside
Directors (“Principal Counsel”) shall be determined by majority vote of the Outside Directors, and
the Principal Counsel for the Indemnitees who are not Outside Directors (“Separate Counsel”) shall
be determined by majority vote of such Indemnitees, in each case subject to the consent of the
Corporation (not to be unreasonably withheld or delayed). The obligation of the Corporation to
reimburse Indemnitee for the fees and disbursements of counsel hereunder shall not extend to the
fees and disbursements of any counsel employed by Indemnitee other than Principal Counsel or
Separate Counsel, as the case may be, unless Indemnitee has interests that are different from those
of the other Indemnitees or defenses available to him that are in addition to or different from
those of the other Indemnitees such that Principal Counsel or Separate Counsel, as the case may be,
would have an actual or potential conflict of interest in representing Indemnitee.
5. Advances of Expenses. Expenses (other than judgments, penalties, fines and settlements)
incurred by Indemnitee shall be paid by the Corporation, in advance of the final disposition of the
Proceeding, within 20 calendar days after receipt of Indemnitee’s written request accompanied by
substantiating documentation and Indemnitee’s written affirmation that he has met the standard of
conduct for indemnification and a written undertaking to repay such amount to the extent it is
ultimately determined that indemnitee is not entitled to indemnification. No objections based on or
involving the question whether such charges meet the definition of “Expenses,” including any
question regarding the reasonableness of such Expenses, shall be grounds for failure to advance
to such Indemnitee, or to reimburse such Indemnitee for, the amount claimed within such 20-day
period, and the undertaking of Indemnitee set forth in Section 7 hereof to repay any such amount to
the extent it is ultimately determined that Indemnitee is not entitled to indemnification shall be
deemed to include an undertaking to repay any such amounts determined not to have met such
definition.
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6. Right of Indemnitee to Indemnification Upon Application; Procedure Upon Application.
Any indemnification under this Agreement, other than pursuant to Section 5 hereof, shall be made no
later than 60 days after receipt by the Corporation of the written request of Indemnitee,
accompanied by substantiating documentation, unless a determination is made within said 60-day
period by (a) the Board of Directors by a majority vote of a quorum consisting of directors who are
not or were not parties to such Proceeding, (b) a committee of the Board of Directors designated by
majority vote of the Board of Directors, even though less than a quorum, (c) if there are no such
directors, or if such directors so direct, independent legal counsel in a written opinion or (d)
the stockholders, that Indemnitee has not met the relevant standards for indemnification set forth
in Section 3 hereof.
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 that indemnification is
not appropriate shall be on the Corporation. Neither the failure of the Corporation (including its
Board of Directors, any committee thereof, independent legal counsel or its stockholders) to have
made a determination prior to the commencement of such action that indemnification is proper in the
circumstances because Indemnitee has met the applicable standards of conduct, nor an actual
determination by the Corporation (including its Board of Directors, any committee thereof,
independent legal counsel or its stockholders) 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.
7. Undertaking by Indemnitee. Indemnitee hereby undertakes to repay to the Corporation (a)
any advances of Expenses pursuant to Section 5 hereof and (b) any judgments, penalties, fines and
settlements paid to or on behalf of Indemnitee hereunder, in each case to the extent that it is
ultimately determined that Indemnitee is not entitled to indemnification. As a condition to the
advancement of such Expenses or the payment of such judgments, penalties, fines and settlements,
Indemnitee shall, at the request of the Company, execute an acknowledgment that such Expenses or
such judgments, penalties, fines and settlements, as the case may be, are delivered pursuant and
are subject to the provisions of this Agreement.
8. Indemnification Hereunder Not Exclusive. The indemnification and advancement of
expenses provided by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under the Company’s Amended and Restated Certificate of Incorporation
(as the same may be amended from time to time), the Bylaws, the DGCL, any D&O Insurance, any
agreement, or otherwise, both as to
action in his official capacity and as to action in another capacity while holding such office;
provided, however, that this Agreement supersedes all prior written indemnification agreements
between the Corporation (or any predecessor thereof) and Indemnitee with respect to the subject
matter hereof. However, Indemnitee shall reimburse the Corporation for amounts paid to him 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 a director or officer of the Corporation (or
is or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, limited liability company or other
enterprise) and shall continue thereafter so long as Indemnitee shall be subject
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to any possible Proceeding (notwithstanding the fact that Indemnitee has ceased to serve the Corporation).
10. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for a portion of Expenses, but not, however, for
the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion
of such Expenses 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 Proceeding effected without the
Corporation’s written consent. The Corporation shall not settle any Proceeding in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent.
Neither the Corporation nor Indemnitee will unreasonably withhold or delay their consent to
any proposed settlement. The Corporation shall not be liable to indemnify Indemnitee under this
Agreement 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. Acknowledgements.
(a) Corporation Acknowledgement. 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 or to continue to serve as a director or officer of the Corporation, and
acknowledges that Indemnitee is relying upon this Agreement in agreeing to serve or in continuing
to serve as a director or officer of the Corporation.
(b) Mutual Acknowledgment . Both the Corporation and Indemnitee acknowledge that in certain instances, Federal law or public
policy may override applicable state law and prohibit the Corporation from indemnifying its
directors and officers under this Agreement or otherwise. For example, the Corporation and
Indemnitee acknowledge that the Securities and Exchange Commission (the “SEC”) has taken the
position that indemnification is not permissible for liabilities arising under certain federal
securities laws, and federal legislation prohibits indemnification for certain ERISA violations.
Indemnitee understands and acknowledges that the Corporation has undertaken or may be required in
the future to undertake with the SEC to submit the question of indemnification to a court in
certain circumstances for a determination of the Corporation’s right under public policy to
indemnify Indemnitee.
13. Enforcement. In the event Indemnitee is required to bring any action or other
proceeding to enforce rights or to collect moneys due under this Agreement and is successful in
such action, the Corporation shall reimburse Indemnitee for all of Indemnitee’s Expenses in
bringing and pursuing such action.
14. Exceptions. Any other provision herein to the contrary notwithstanding, the
Corporation shall not be obligated pursuant to the terms of this Agreement:
(a) No Entitlement to Indemnification. To indemnify Indemnitee for any expenses incurred by
Indemnitee with respect to any proceeding instituted by Indemnitee to
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enforce or interpret this Agreement, if a court of competent jurisdiction determines that Indemnitee was not entitled to
indemnification hereunder;
(b) Insured Claims. To indemnify Indemnitee for Expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) to the extent such Expenses or liabilities have been paid directly to Indemnitee by
an insurance carrier under a D&O Insurance policy maintained by the Corporation;
(c) Remuneration in Violation of Law. To indemnify Indemnitee in respect of remuneration paid to
Indemnitee if it shall be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(d) Indemnification Unlawful. To indemnify Indemnitee if a final decision by a court having
jurisdiction in the matter shall determine that such indemnification is not lawful;
(e) Misconduct, Etc. To indemnify Indemnitee on account of Indemnitee’s conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest or to constitute intentional misconduct, a
knowing violation of law, a violation of Section 174 of the DGCL or a transaction from which
Indemnitee derived an improper personal benefit;
(f) Breach of Duty. To indemnify Indemnitee on account of Indemnitee’s conduct which is the
subject of any Proceeding brought by the Corporation and approved by a majority of the Board of
Directors which alleges willful misappropriation of corporate assets by Indemnitee, disclosure of
confidential information in violation of Indemnitee’s fiduciary or contractual obligations to the
Corporation, or any other willful and deliberate breach in bad faith of Indemnitee’s duty to the
Corporation or its stockholders; or
(g) Claims Under Section 16(b). To indemnify Indemnitee for expenses or the payment of profits
arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor statute.
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 with respect to any aspect of any claim varies between two or more sections of this
Agreement, that section providing the most comprehensive indemnification shall apply.
16. Miscellaneous.
(a) Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and
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interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflict of law.
(b) Entire Agreement; Enforcement of Rights. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and merges all prior discussions
between them. No modification of or amendment to this Agreement, nor any waiver of any rights under
this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The
failure by either party to
enforce any rights under this Agreement shall not be construed as a waiver of any rights of such
party.
(c) Construction. This Agreement is the result of negotiations between and has been reviewed by
each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall
be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in
favor of or against any one of the parties hereto.
(d) Notices. All notices, demands or other communications to be given or delivered under or by
reason of the provisions of this Agreement shall be in writing and shall be deemed to have been
given (i) when delivered personally to the recipient, (ii) when sent to the recipient by telecopy
(receipt electronically confirmed by sender’s telecopy machine) if during normal business hours of
the recipient, otherwise on the next business day, (iii) one business day after the date when sent
to the recipient by reputable overnight courier service (charges prepaid), or (iv) five business
days after the date when mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications shall be sent to the
parties at the addresses indicated on the signature page hereto, or to such other address as any
party hereto may, from time to time, designate in writing delivered pursuant to the terms of this
Section 16(d).
(e) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one instrument.
(f) Successors and Assigns. This Agreement shall be binding upon the Corporation and its
successors and assigns and shall inure to the benefit of Indemnitee and Indemnitee’s heirs, legal
representatives and assigns.
(g) Subrogation. In the event of payment under this Agreement, the Corporation shall be subrogated
to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all
documents required and shall do all acts that may be necessary to secure such rights and to enable
the Corporation to effectively bring suit to enforce such rights.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
| SUPERIOR WELL SERVICES, INC. | ||||||
| By: Name: Title: Address: |
/s/ Xxxxx X. Xxxxxxx
|
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| Xxxxxxx, Xxxxxxxxxxxx 00000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| INDEMNITEE: | ||||||
| By: Name: Address: |
/s/ Xxxx Xxxxxxxx
|
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