PIONEER NATURAL RESOURCES COMPANY INDEMNIFICATION AGREEMENT
Exhibit 10.3
This Agreement (“Agreement”) is made and entered into as of the 15th day of November, 2006, by
and between Pioneer Natural Resources Company, a Delaware corporation (the “Company”), and
(“Indemnitee”).
RECITALS
A. Highly competent and experienced persons are reluctant to serve corporations as directors,
executive officers or in other capacities unless they are provided with adequate protection through
insurance and indemnification against claims and actions against them arising out of their service
to and activities on behalf of the Company.
B. The Board of Directors of the Company (the “Board”) has determined that the inability to
attract and retain such persons would be detrimental to the best interests of the Company and its
stockholders and that the Company should act to assure such persons that there will be increased
certainty of such protection in the future.
C. The Board has also determined that it is reasonable, prudent and necessary for the Company,
in addition to purchasing and maintaining directors’ and officers’ liability insurance (or
otherwise providing for adequate arrangements of self-insurance), contractually to obligate itself
to indemnify 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 adequately
protected.
D. 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 to the fullest extent
permitted by law.
E. Article Twelfth of the Amended and Restated Certificate of Incorporation of the Company
provides for indemnification of directors and officers to the fullest extent permitted by law.
In consideration of the foregoing and the mutual covenants herein contained, and other good
and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereby agree as follows:
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ARTICLE I
Certain Definitions
As used herein, the following words and terms shall have the following respective meanings
(whether singular or plural):
“Acquiring Person” means any Person other than (i) the Company, (ii) any of the
Company’s Subsidiaries, (iii) any employee benefit plan of the Company or of a Subsidiary of the
Company or of a Company owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company, or (iv) any trustee
or other fiduciary holding securities under an employee benefit plan of the Company or of a
Subsidiary of the Company or of a Company owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company.
“Change in Control” means the occurrence of any of the following events:
(i) The acquisition by any Person of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 40% or more of either (x) the then outstanding shares of
Common Stock of the Company (the “Outstanding Company Common Stock”) or (y) the combined voting
power of the then outstanding voting securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company Voting Securities”); provided, however, that for
purposes of this Subparagraph (i), the following acquisitions shall not constitute a Change of
Control: (A) any acquisition directly from the Company, (B) any acquisition by the Company, (C)
any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (D) any acquisition by any corporation
pursuant to a transaction which complies with clauses (A), (B) and (C) of paragraph (iii) below; or
(ii) Members of the Incumbent Board cease for any reason to constitute at least a majority of
the Board; or
(iii) Consummation of a reorganization, merger or consolidation or sale or other disposition
of all or substantially all of the assets of the Company or an acquisition of assets of another
corporation (a “Business Combination”), in each case, unless, following such Business Combination,
(A) all or substantially all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately
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prior to such Business Combination of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan
(or related trust) of the Company or the corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 40% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of such corporation except to the extent
that such ownership results solely from ownership of the Company that existed prior to the Business
Combination and (C) at least a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board, providing for such Business
Combination; or
(iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company.
“Claim” means an actual or threatened claim or request for relief which was, is or may
be made by reason of anything done or not done by Indemnitee in, or by reason of any event or
occurrence related to, Indemnitee’s Corporate Status.
“Corporate Status” means the status of a person who is, becomes or was a director,
officer, employee, agent or fiduciary of the Company or is, becomes or was serving at the request
of the Company as a director, officer, partner, venturer, proprietor, trustee, employee, agent,
fiduciary or similar functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise. For purposes of
this Agreement, the Company agrees that Indemnitee’s service on behalf of or with respect to any
Subsidiary of the Company shall be deemed to be at the request of the Company.
“DGCL” means the Delaware General Corporation Law and any successor statute thereto,
as either of them may from time to time be amended.
“Disinterested Director” with respect to any request by Indemnitee for indemnification
hereunder, means a director of the Company who at the time of the vote is not a named defendant or
respondent in the Proceeding in respect of which indemnification is sought by Indemnitee.
“Exchange Act” means the Securities Exchange Act of 1934.
“Expenses” means all attorneys’ fees and disbursements, retainers, accountant’s fees
and disbursements, private investigator fees and disbursements, court costs, transcript costs, fees
and expenses of experts, witness fees and expenses, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service fees and all other disbursements,
costs or expenses of the types customarily incurred in connection with prosecuting, defending
(including affirmative defenses and counterclaims), preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or participating in or preparing to
participate in (including on appeal) a Proceeding and all interest or finance charges attributable
to any
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thereof. Should any payments by the Company under this Agreement be determined to be subject
to any federal, state or local income or excise tax, “Expenses” shall also include such amounts as
are necessary to place Indemnitee in the same after-tax position (after giving effect to all
applicable taxes) as Indemnitee would have been in had no such tax been determined to apply to such
payments.
“Incumbent Board” means the individuals who, as of the date of this Agreement,
constitute the Board and any other individual who becomes a director of the Company after that date
and whose election or appointment by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the directors then comprising the
Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Incumbent Board.
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and neither contemporaneously is, nor in the five years theretofore
has been, retained to represent: (a) the Company or Indemnitee in any matter material to either
such party (other than as Independent Counsel under this Agreement or similar agreements), (b) any
other party to the Proceeding giving rise to a claim for indemnification hereunder or (c) the
beneficial owner, directly or indirectly, of securities of the Company representing 5% or more of
the combined voting power of the Company’s then outstanding voting securities (other than, in each
such case, with respect to matters concerning the rights of Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements). 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.
“Independent Directors” means the directors on the Board that are independent
directors as defined in Section 303A of the New York Stock Exchange Listed Company Manual or
successor provision, or, if the Company’s common stock is not then quoted on the NYSE, that qualify
as independent, disinterested, or a similar term as defined in the rules of the principal
securities exchange or inter-dealer quotation system on which the Company’s common stock is then
listed or quoted.
“Person” means any individual, entity or group (within the meaning of Sections
13(d)(3) and 14(d)(2) of the Exchange Act).
“Potential Change in Control” shall be deemed to have occurred if (i) any Person shall
have announced publicly an intention to effect a Change in Control, or commenced any action (such
as the commencement of a tender offer for the Company’s Common Stock or the solicitation of proxies
for the election of any of the Company’s directors) that, if successful, could reasonably be
expected to result in the occurrence of a Change in Control; (ii) the Company enters into an
agreement, the consummation of which would constitute a Change in
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Control; or (iii) any other event occurs which the Board declares to be a Potential Change of
Control.
“Proceeding” means any threatened, pending or completed action, suit, arbitration,
investigation, inquiry, alternate dispute resolution mechanism, administrative or legislative
hearing, or any other proceeding (including, without limitation, any securities laws action, suit,
arbitration, alternative dispute resolution mechanism, hearing or procedure) whether civil,
criminal, administrative, arbitrative or investigative and whether or not based upon events
occurring, or actions taken, before the date hereof, and any appeal in or related to any such
action, suit, arbitration, investigation, hearing or proceeding and any inquiry or investigation
(including discovery), whether conducted by or in the right of the Company or any other Person,
that Indemnitee in good faith believes could lead to any such action, suit, arbitration,
alternative dispute resolution mechanism, hearing or other proceeding or appeal thereof.
“Subsidiary” means, with respect to any Person, any corporation or other entity of
which a majority of the voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by that Person.
“Voting Securities” means any securities that vote generally in the election of
directors, in the admission of general partners, or in the selection of any other similar governing
body.
ARTICLE II
Services by Indemnitee
Indemnitee is serving as a officer of the Company. Indemnitee may from time to time also
agree to serve, as the Company may request from time to time, in another capacity for the Company
(including another officer or director position) or as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, fiduciary or similar functionary of another foreign or
domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan
or other enterprise. Indemnitee and the Company each acknowledge that they have entered into this
Agreement as a means of inducing Indemnitee to serve, or continue to serve, the Company in such
capacities. Indemnitee may at any time and for any reason resign from such position or positions
(subject to any other contractual obligation or any obligation imposed by operation of law). The
Company shall have no obligation under this Agreement to continue Indemnitee in any such position
or positions.
ARTICLE III
Indemnification
Section 3.1 General. Subject to the provisions set forth in Article IV, the Company
shall indemnify, and advance Expenses to, Indemnitee to the fullest extent permitted by applicable
law in effect on the date hereof and to such greater extent as applicable law may hereafter from
time to time permit. The other provisions set forth in this Agreement are provided
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in addition to and as a means of furtherance and implementation of, and not in limitation of,
the obligations expressed in this Article III. No requirement, condition to or limitation of any
right to indemnification or to advancement of Expenses under this Article III shall in any way
limit the rights of Indemnitee under Article VII.
Section 3.2 Additional Indemnity of the Company. Indemnitee shall be entitled to
indemnification pursuant to this Section 3.2 if, by reason of anything done or not done by
Indemnitee in, or by reason of any event or occurrence related to, Indemnitee’s Corporate Status,
Indemnitee is, was or becomes, or is threatened to be made, a party to, or witness or other
participant in any Proceeding. Pursuant to this Section 3.2, Indemnitee shall be indemnified
against any and all Expenses, judgments, penalties (including excise or similar taxes), fines and
amounts paid in settlement (including all interest, assessments and other charges paid or payable
in connection with or in respect of any such Expenses, 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. Notwithstanding the
foregoing, the obligations of the Company under this Section 3.2 shall be subject to the condition
that no determination (which, in any case in which Independent Counsel is involved, shall be in a
form of a written opinion) shall have been made pursuant to Article IV that Indemnitee would not be
permitted to be indemnified under applicable law. Nothing in this Section 3.2 shall limit the
benefits of Section 3.1 or any other Section hereunder.
Section 3.3 Advancement of Expenses. The Company shall pay all reasonable Expenses
incurred by, or in the case of retainers to be incurred by, or on behalf of Indemnitee (or, if
applicable, reimburse Indemnitee for any and all Expenses reasonably incurred by Indemnitee and
previously paid by Indemnitee) in connection with any Claim or Proceeding, whether brought by the
Company or otherwise, in advance of any determination respecting entitlement to indemnification
pursuant to Article IV hereof within 10 days after the receipt by the Company of (a) a written
request from Indemnitee requesting such payment or payments from time to time, whether prior to or
after final disposition of such Proceeding, and (b) a written affirmation from Indemnitee of
Indemnitee’s good faith belief that Indemnitee has met the standard of conduct necessary for
Indemnitee to be permitted to be indemnified under applicable law. Any such payment by the Company
is referred to in this Agreement as an “Expense Advance.” In connection with any request for an
Expense Advance, if requested by the Company, Indemnitee or Indemnitee’s counsel shall also submit
an affidavit stating that the Expenses incurred were, or in the case of retainers to be incurred
are, reasonable. Any dispute as to the reasonableness of any Expense shall not delay an Expense
Advance by the Company, and the Company agrees that any such dispute shall be resolved only upon
the disposition or conclusion of the underlying Claim against Indemnitee. Indemnitee hereby
undertakes and agrees that Indemnitee will reimburse and repay the Company without interest for any
Expense Advances to the extent that it shall ultimately be determined (in a final adjudication by a
court from which there is no further right of appeal or in a final adjudication of an arbitration
pursuant to Section 5.1 if Indemnitee elects to seek such arbitration) that Indemnitee is not
entitled to be indemnified by the Company against such Expenses. Indemnitee shall not be required
to provide collateral or otherwise secure the undertaking and agreement described in the prior
sentence.
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Section 3.4 Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all costs and expenses (of the types described in the definition of
Expenses in Article I) and, if requested by Indemnitee, shall (within two business days of that
request) advance those costs and expenses to Indemnitee, that are incurred by Indemnitee in
connection with any claim asserted against, or action brought by, Indemnitee for (i)
indemnification or an Expense Advance by the Company under this Agreement or any other agreement or
provision of the Company’s Certificate of Incorporation or Bylaws now or hereafter in effect
relating to any Claim or Proceeding, (ii) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, or (iii) enforcement of, or claims for breaches of,
any provision of this Agreement, in each of the foregoing situations regardless of whether
Indemnitee ultimately is determined to be entitled to that indemnification, advance expense
payment, insurance recovery, enforcement, or damage claim, as the case may be and regardless of
whether the nature of the proceeding with respect to such matters is judicial, by arbitration, or
otherwise.
Section 3.5 Partial Indemnity. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties, and amounts paid in settlement of a Claim or Proceeding but not, however, for all
of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense
of any or all Claims or Proceedings, or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
ARTICLE IV
Procedure for Determination of Entitlement
to Indemnification
to Indemnification
Section 4.1 Request by Indemnitee. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, 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. The Secretary
or an Assistant Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested indemnification.
Section 4.2 Determination of Request. Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required
by applicable law, with respect to whether Indemnitee is permitted under applicable law to be
indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as
follows:
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(a) If a Potential Change in Control or a Change in Control shall have occurred, by
Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the
Board and Indemnitee, unless Indemnitee shall request that such determination be made by the
Board, or a committee of the Board, in which case by the person or persons or in the manner
provided for in clause (i) or (ii) of paragraph (b) below; or
(b) If a Potential Change in Control or a Change in Control shall not have occurred,
(i) by the Board by a majority vote of the Disinterested Directors even though less than a
quorum of the Board, or (ii) by a majority vote of a committee solely of two or more
Disinterested Directors designated to act in the matter by a majority vote of all
Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent
Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses
(i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee
cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the
Company agree, by the stockholders of the Company in a vote that excludes the shares held by
directors who are not Disinterested Directors.
If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment
to Indemnitee shall be made within 10 days after such determination. Nothing contained in this
Agreement shall require that any determination be made under this Section 4.2 prior to the
disposition or conclusion of a Claim or Proceeding against Indemnitee; provided, however, that
Expense Advances shall continue to be made by the Company pursuant to, and to the extent required
by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making
such determination with respect to Indemnitee’s entitlement to indemnification, including providing
to such person upon reasonable advance request any documentation or information that is not
privileged or otherwise protected from disclosure and that 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 or persons making such
determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee
therefrom.
Section 4.3 Independent Counsel. If a Potential Change in Control or a Change in
Control shall not have occurred and the determination of entitlement to indemnification is to be
made by Independent Counsel, the Independent Counsel shall be selected by (a) a majority vote of
the Disinterested Directors, even though less than a quorum of the Board or (b) if there are no
Disinterested Directors, by a majority vote of the Board, and the Company shall give written notice
to Indemnitee, within 10 days after receipt by the Company of Indemnitee’s request for
indemnification, specifying the identity and address of the Independent Counsel so selected. If a
Potential Change in Control or a Change in Control shall have occurred and the determination of
entitlement to indemnification is to be made by Independent Counsel, the Independent Counsel shall
be selected by Indemnitee, and Indemnitee shall give written notice to the Company, within 10 days
after submission of Indemnitee’s request for indemnification, specifying the identity and address
of the Independent Counsel so selected (unless Indemnitee shall request that such
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selection be made by the Disinterested Directors or a committee of the Board, in which event
the Company shall give written notice to Indemnitee within 10 days after receipt of Indemnitee’s
request for the Board or a committee of the Disinterested Directors to make such selection,
specifying the identity and address of the Independent Counsel so selected). In either event, (i)
such notice to Indemnitee or the Company, as the case may be, shall be accompanied by a written
affirmation of the Independent Counsel so selected that it satisfies the requirements of the
definition of “Independent Counsel” in Article I and that it agrees to serve in such capacity and
(ii) Indemnitee or the Company, as the case may be, may, within seven days after such written
notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may
be, a written objection to such selection. Any objection to selection of Independent Counsel
pursuant to this Section 4.3 may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of the definition of “Independent Counsel” in Article I,
and the objection shall set forth with particularity the factual basis of such assertion. If such
written objection is timely made, the Independent Counsel so selected may not serve as Independent
Counsel unless and until a court of competent jurisdiction (the “Court”) has determined that such
objection is without merit. In the event of a timely written objection to a choice of Independent
Counsel, the party originally selecting the Independent Counsel shall have seven days to make an
alternate selection of Independent Counsel and to give written notice of such selection to the
other party, after which time such other party shall have five days to make a written objection to
such alternate selection. If, within 30 days after submission of Indemnitee’s request for
indemnification pursuant to Section 4.1, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition the Court for resolution of any
objection that 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
Court or by such other person as the Court shall designate, and the person with respect to whom an
objection is so resolved or the person so appointed shall act as Independent Counsel under Section
4.2. The Company shall pay any and all reasonable fees and expenses incurred by such Independent
Counsel in connection with acting pursuant to Section 4.2, and the Company shall pay all reasonable
fees and expenses incident to the procedures of this Section 4.3, regardless of the manner in which
such Independent Counsel was selected or appointed. Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 5.1, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
Section 4.4 Establishment of a Trust. In the event of a Potential Change in Control
or a Change in Control, the Company shall, upon written request by Indemnitee, create a trust for
the benefit of Indemnitee (the “Trust”) and from time to time upon written request of Indemnitee
shall fund the Trust in an amount sufficient to satisfy any and all Expenses reasonably anticipated
at the time of each such request to be incurred in connection with investigating, preparing for,
and defending any Claim, and any and all judgments, fines, penalties, and settlement amounts of any
and all Claims from time to time actually paid or claimed, reasonably anticipated, or proposed to
be paid. The amount to be deposited in the Trust pursuant to the foregoing funding obligation shall
be determined by the Independent Counsel (or other person(s) making the determination of whether
Indemnitee is permitted to be indemnified by applicable law). The terms of the Trust shall provide
that, upon a Change in Control, (i) the Trust shall not
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be revoked or the principal thereof invaded, without the written consent of Indemnitee; (ii)
the trustee of the Trust shall advance, within ten business days of a request by Indemnitee, any
and all reasonable Expenses to Indemnitee, any required determination concerning the reasonableness
of the Expenses to be made by the Independent Counsel (and Indemnitee hereby agrees to reimburse
the Trust under the circumstances in which Indemnitee would be required to reimburse the Company
for Expenses Advances under Section 3.3 of this Agreement); (iii) the Trust shall continue to be
funded by the Company in accordance with the funding obligation set forth above; (iv) the trustee
of the Trust shall promptly pay to Indemnitee all amounts for which Indemnitee shall be entitled to
indemnification pursuant to this Agreement; and (v) all unexpended funds in the Trust shall revert
to the Company upon a final determination by the Independent Counsel or a court of competent
jurisdiction, as the case may be, that Indemnitee has been fully indemnified under the terms of
this Agreement. The trustee of the Trust shall be chosen by Indemnitee and shall be an institution
that is not affiliated with Indemnitee. Nothing in this Section 4.4 shall relieve the Company of
any of its obligations under this Agreement.
Section 4.5 Presumptions and Effect of Certain Proceedings.
(a) Indemnitee shall be presumed to be entitled to indemnification under this Agreement
upon submission of a request for indemnification under Section 4.1, and the Company shall
have the burden of proof in overcoming that presumption in reaching a determination contrary
to that presumption. Such presumption shall be used by Independent Counsel (or other person
or persons determining entitlement to indemnification) as a basis for a determination of
entitlement to indemnification unless the Company provides information sufficient to
overcome such presumption by clear and convincing evidence or unless the investigation,
review and analysis of Independent Counsel (or such other person or persons) convinces
Independent Counsel by clear and convincing evidence that the presumption should not apply.
(b) If the person or persons empowered or selected under Article IV of this Agreement
to determine whether Indemnitee is entitled to indemnification shall not have made a
determination within 60 days after receipt by the Company of the request by Indemnitee
therefor, the requisite determination of entitlement to indemnification shall be deemed to
have been made and Indemnitee shall be entitled to such indemnification; provided, however,
that such 60-day period may be extended for a reasonable time, not to exceed an additional
30 days, if the person 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 to such determination; and provided, further,
that the 60-day limitation set forth in this Section 4.5(b) shall not apply and such period
shall be extended as necessary (i) if within 30 days after receipt by the Company of the
request for indemnification under Section 4.1 Indemnitee and the Company have agreed, and
the Board has resolved to submit such determination to the stockholders of the Company
pursuant to Section 4.2(b) for their consideration at an annual meeting of stockholders to
be held within 90 days after such agreement and such determination is made thereat, or a
special meeting of stockholders is called within 30 days after such receipt for the purpose
of making such determination,
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such meeting is held for such purpose within 60 days after having been so called and
such determination is made thereat, or (ii) if the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 4.2(a) of this
Agreement, in which case the applicable period shall be as set forth in Section 5.1(c).
(c) The termination of any Proceeding or of any Claim, issue or matter by judgment,
order, settlement (whether with or without court approval) or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this
Agreement) by itself adversely affect the rights of Indemnitee to indemnification or create
a presumption that Indemnitee failed to meet any particular standard of conduct, that
Indemnitee had any particular belief, or that a court has determined that indemnification is
not permitted by applicable law. Indemnitee shall be deemed to have been found liable in
respect of any Claim, issue or matter only after Indemnitee shall have been so adjudged by
the Court after exhaustion of all appeals therefrom.
ARTICLE V
Certain Remedies of Indemnitee
Section 5.1 Indemnitee Entitled to Adjudication in an Appropriate Court. If (a) a
determination is made pursuant to Article IV that Indemnitee is not entitled to indemnification
under this Agreement; (b) there has been any failure by the Company to make timely payment or
advancement of any amounts due hereunder (including, without limitation, any Expense Advances); or
(c) the determination of entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 4.2 and such determination shall not have been made and delivered in a written
opinion within 90 days after the latest of (i) such Independent Counsel’s being appointed, (ii) the
overruling by the Court of objections to such counsel’s selection, or (iii) expiration of all
periods for the Company or Indemnitee to object to such counsel’s selection, Indemnitee shall be
entitled to commence an action seeking an adjudication in the Court of Indemnitee’s entitlement to
such indemnification or advancements due hereunder, including, without limitation, Expense
Advances. 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. Indemnitee shall commence such action seeking an adjudication or an award
in arbitration within 180 days following the date on which Indemnitee first has the right to
commence such action pursuant to this Section 5.1, or such right shall expire. The Company agrees
not to oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
Section 5.2 Adverse Determination Not to Affect any Judicial Proceeding. If a
determination shall have been made pursuant to Article IV that Indemnitee is not entitled to
indemnification under this Agreement, any judicial proceeding or arbitration commenced pursuant to
this Article V 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 such initial adverse determination. In any
judicial proceeding or arbitration commenced pursuant to this Article V, Indemnitee shall
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be presumed to be entitled to indemnification or advancement of Expenses, as the case may be,
under this Agreement and the Company shall have the burden of proof in overcoming such presumption
and to show by clear and convincing evidence that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
Section 5.3 Company Bound by Determination Favorable to Indemnitee in any Judicial
Proceeding or Arbitration. If a determination shall have been made or deemed to have been made
pursuant to Article IV that Indemnitee is entitled to indemnification, the Company shall be
irrevocably bound by such determination in any judicial proceeding or arbitration commenced
pursuant to this Article V, and shall be precluded from asserting that such determination has not
been made or that the procedure by which such determination was made is not valid, binding and
enforceable.
Section 5.4 Company Bound by the Agreement. The Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Article V 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.
ARTICLE VI
Contribution
Section 6.1 Contribution Payment. To the extent the indemnification provided for
under any provision of this Agreement is determined (in the manner hereinabove provided) not to be
permitted under applicable law, then in the event Indemnitee was, is, or becomes a party to or
witness or other participant in, or is threatened to be made a party to or witness or other
participant in, a Proceeding by reason of (or arising in part out of) Indemnitee’s Corporate
Status, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount of any and
all Expenses, judgments, fines, or penalties assessed against or incurred or paid by Indemnitee on
account of such Proceeding and any and all amounts paid in settlement of that Proceeding (including
all interest, assessments, and other charges paid or payable in connection with or in respect of
such Expenses, judgments, fines, penalties, or amounts paid in settlement) for which such
indemnification is not permitted (“Contribution Amounts”), in such proportion as is appropriate to
reflect the relative fault with respect to the subject matter of the Proceeding giving rise to the
Contribution Amounts of Indemnitee, on the one hand, and of the Company and any and all other
parties (including officers and directors of the Company other than Indemnitee) who may be at fault
with respect to such matter (collectively, including the Company, the “Third Parties”) on the other
hand.
Section 6.2 Relative Fault. The relative fault of the Third Parties and Indemnitee
shall be determined (i) by reference to the relative fault of Indemnitee as determined by the court
or other governmental agency assessing the Contribution Amounts or (ii) to the extent such court or
other governmental agency does not apportion relative fault, by the Independent Counsel (or such
other party which makes a determination under Article IV) after giving effect to, among
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other things, the relative intent, knowledge, access to information, and opportunity to
prevent or correct the subject matter of the Proceedings and other relevant equitable
considerations of each party. The Company and Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 6.2 were determined by pro rata allocation or by
any other method of allocation which does take account of the equitable considerations referred to
in this Section 6.2.
ARTICLE VII
Miscellaneous
Section 7.1 Non-Exclusivity. The rights of Indemnitee to receive indemnification and
advancement of Expenses under this Agreement shall be in addition to, and shall not be deemed
exclusive of, any other rights Indemnitee shall under the DGCL or other applicable law, the charter
or bylaws of the Company, any other agreement, vote of stockholders or a resolution of directors,
or otherwise. No amendment or alteration of the charter or bylaws of the Company or any provision
thereof shall adversely affect Indemnitee’s rights hereunder and such rights shall be in addition
to any rights Indemnitee may have under the charter, bylaws and the DGCL or other applicable law.
To the extent that there is a change in the DGCL or other applicable law (whether by statute or
judicial decision) that allows greater indemnification by agreement than would be afforded
currently under the Company’s charter or bylaws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by virtue of this Agreement the greater benefit so afforded by
such change. 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 before such amendment or repeal.
Section 7.2 Insurance and Subrogation.
(a) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, agents or fiduciaries of the Company
or for individuals serving at the request of the Company as directors, officers, partners,
venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of
another foreign or domestic corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise, 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, employee, agent or fiduciary under such policy or
policies.
(b) In the event of any payment by the Company 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.
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(c) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise
actually received such payment under the Company’s charter or bylaws or any insurance
policy, contract, agreement or otherwise.
(d) If Indemnitee is a director of the Company, the Company will advise the Board of
any proposed material reduction in the coverage for Indemnitee to be provided by the
Company’s directors’ and officers’ liability insurance policy and will not effect such a
reduction with respect to Indemnitee without the prior approval of at least 80% of the
Independent Directors of the Company.
(e) If Indemnitee is a director of the Company during the term of this Agreement and if
Indemnitee ceases to be a director of the Company for any reason, the Company shall procure
a run-off directors’ and officers’ liability insurance policy with respect to claims arising
from facts or events that occurred before the time Indemnitee ceased to be a director of the
Company and covering Indemnitee, which policy, without any lapse in coverage, will provide
coverage for a period of six years after the time Indemnitee ceased to be a director of the
Company and will provide coverage (including amount and type of coverage and size of
deductibles) that are substantially comparable to the Company’s directors’ and officers’
liability insurance policy that was most protective of Indemnitee in the 12 months preceding
the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following
the time Indemnitee ceases to be a director of the Company if and only so long as
the Company has a directors’ and officers’ liability insurance policy in effect
covering Indemnitee for such claims that, if it were a run-off policy, would meet or
exceed the foregoing standards, but in any event this suspension period shall end
when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding
clause (i) (whether because of failure to have a policy meeting the foregoing
standards or because a Change in Control occurs), the Company shall procure a
run-off directors’ and officers’ liability insurance policy meeting the foregoing
standards and lasting for the remainder of the six-year period.
(f) Notwithstanding the preceding clause (e) including the suspension provisions
therein, if Indemnitee ceases to be an officer or director of the Company in connection with
a Change in Control or at or during the one-year period following the occurrence of a Change
in Control, the Company shall procure a run-off directors’ and officers’ liability insurance
policy covering Indemnitee and meeting the foregoing standards in clause (e) and lasting for
a six-year period upon the Indemnitee’s ceasing to be an officer or director of the Company
in such circumstances.
14
Section 7.3 Self Insurance of the Company; Other Arrangements. The parties hereto
recognize that the Company may, but except as provided in Section 7.2(d) and Section 7.2(e) is not
required to, procure or maintain insurance or other similar arrangements, at its expense, to
protect itself and any person, including Indemnitee, who is or was a director, officer, employee,
agent or fiduciary of the Company or who is or was serving at the request of the Company as a
director, officer, partner, venturer, proprietor, trustee, employee, agent, fiduciary or similar
functionary of another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against any expense, liability or
loss asserted against or incurred by such person, in such a capacity or arising out of the person’s
status as such a person, whether or not the Company would have the power to indemnify such person
against such expense or liability or loss.
Except as provided in Section 7.2(d) and Section 7.2(e), in considering the cost and
availability of such insurance, the Company (through the exercise of the business judgment of its
directors and officers) may, from time to time, purchase insurance which provides for certain (i)
deductibles, (ii) limits on payments required to be made by the insurer, or (iii) coverage which
may not be as comprehensive as that previously included in insurance purchased by the Company or
its predecessors. The purchase of insurance with deductibles, limits on payments and coverage
exclusions, even if in the best interest of the Company, may not be in the best interest of
Indemnitee. As to the Company, purchasing insurance with deductibles, limits on payments and
coverage exclusions is similar to the Company’s practice of self-insurance in other areas. In
order to protect Indemnitee who would otherwise be more fully or entirely covered under such
policies, the Company shall, to the maximum extent permitted by applicable law, indemnify and hold
Indemnitee harmless to the extent (i) of such deductibles, (ii) of amounts exceeding payments
required to be made by an insurer, or (iii) of amounts that prior policies of directors’ and
officers’ liability insurance held by the Company or its predecessors have provided for payment to
Indemnitee, if by reason of Indemnitee’s Corporate Status Indemnitee is or is threatened to be made
a party to any Proceeding. The obligation of the Company in the preceding sentence shall be
without regard to whether the Company would otherwise be required to indemnify such officer or
director under the other provisions of this Agreement, or under any law, agreement, vote of
stockholders or directors or other arrangement. Without limiting the generality of any provision
of this Agreement, the procedures in Article IV hereof shall, to the extent applicable, be used for
determining entitlement to indemnification under this Section 7.3.
Section 7.4 Certain Settlement Provisions. The Company shall have no obligation to
indemnify Indemnitee under this Agreement for amounts paid in settlement of a Proceeding or Claim
without the Company’s prior written consent. The Company shall not settle any Proceeding or Claim
in any manner that would impose any fine or other obligation on Indemnitee without Indemnitee’s
prior written consent. Neither the Company nor Indemnitee shall unreasonably withhold their
consent to any proposed settlement.
Section 7.5 Duration of Agreement. This Agreement shall continue for so long as
Indemnitee serves as a director, officer, employee, agent or fiduciary of the Company or, at the
request of the Company, as a director, officer, partner, venturer, proprietor, trustee, employee,
agent, fiduciary or similar functionary of another foreign or domestic corporation, partnership,
15
joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, and
thereafter shall survive until and terminate upon the later to occur of: (a) the expiration of 20
years after the latest date that Indemnitee shall have ceased to serve in any such capacity; (b)
the final termination of all pending Proceedings in respect of which Indemnitee is granted rights
of indemnification or advancement of Expenses hereunder and of any proceeding commenced by
Indemnitee pursuant to Article IV relating thereto; or (c) the expiration of all statutes of
limitation applicable to possible Claims arising out of Indemnitee’s Corporate Status.
Section 7.6 Notice by Each Party. Indemnitee shall promptly notify the Company in
writing upon being served with any summons, citation, subpoena, complaint, indictment, information
or other document or communication relating to any Proceeding or Claim for which Indemnitee may be
entitled to indemnification or advancement of Expenses hereunder; provided, however, that any
failure of Indemnitee to so notify the Company shall not adversely affect Indemnitee’s rights under
this Agreement except to the extent the Company shall have been materially prejudiced as a direct
result of such failure. The Company shall promptly notify Indemnitee in writing as to the pendency
of any Proceeding or Claim that may involve a claim against Indemnitee for which Indemnitee may be
entitled to indemnification or advancement of Expenses hereunder.
Section 7.7 Amendment. This Agreement may not be modified or amended except by a
written instrument executed by or on behalf of each of the parties hereto.
Section 7.8 Waivers. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or prospectively) by the
party entitled to enforce such term only by a writing signed by the party against which such waiver
is to be asserted. Unless otherwise expressly provided herein, no delay on the part of any party
hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder.
Section 7.9 Entire Agreement. This Agreement and the documents expressly referred to
herein constitute the entire agreement between the parties hereto with respect to the matters
covered hereby, and any other prior or contemporaneous oral or written understandings or agreements
with respect to the matters covered hereby are expressly superseded by this Agreement.
Section 7.10 Severability. If any provision of this Agreement (including any
provision within a single section, paragraph or sentence) or the application of such provision to
any Person or circumstance, shall be judicially declared to be invalid, unenforceable or void, such
decision will not have the effect of invalidating or voiding the remainder of this Agreement or
affect the application of such provision to other Persons or circumstances, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by modifying such provision to
the extent necessary to render it valid, legal and enforceable while preserving its intent, or if
such
16
modification is not possible, by substituting therefor another provision that is valid, legal
and unenforceable and that achieves the same objective. Any such finding of invalidity or
unenforceability shall not prevent the enforcement of such provision in any other jurisdiction to
the maximum extent permitted by applicable law.
Section 7.11 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter’s confirmation of a receipt of a facsimile
transmission if during normal business hours of the recipient, otherwise on the next business day,
(b) confirmed delivery of a standard overnight courier or when delivered by hand or (c) the
expiration of five business days after the date mailed by certified or registered mail (return
receipt requested), postage prepaid, to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice):
If to the Company, to it at:
Pioneer Natural Resources Company
0000 Xxxxx X’Xxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attn: Corporate Secretary
Facsimile: (000) 000-0000
0000 Xxxxx X’Xxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attn: Corporate Secretary
Facsimile: (000) 000-0000
If to Indemnitee, to Indemnitee at:
0000 00xx Xxxxxx
Xxx 0000
Xxxxxx, XX 00000
Xxx 0000
Xxxxxx, XX 00000
or to such other address or to such other individuals as any party shall have last designated by
notice to the other parties. All notices and other communications given to any party in accordance
with the provisions of this Agreement shall be deemed to have been given when delivered or sent to
the intended recipient thereof in accordance with and as provided in the provisions of this Section
7.11.
Section 7.12 Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware without regard to the principles of conflict of laws.
Section 7.13 Certain Construction Rules.
(a) The article and section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this
Agreement. As used in this Agreement, unless otherwise provided to the contrary, (1) all
references to days shall be deemed references to calendar days and (2) any reference to a
“Section” or “Article” shall be deemed to refer to a section or article of this
17
Agreement. The words “hereof,” “herein” and “hereunder” and words of similar import
referring to this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. Whenever the words “include,” “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words “without
limitation.” Unless otherwise specifically provided for herein, the term “or” shall not be
deemed to be exclusive. Whenever the context may require, any pronoun used in this
Agreement shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice versa.
(b) For purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes assessed on a
person 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 or agent of the
Company which imposes duties on, or involves services by, such director, nominee, officer,
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 the person 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
Company” for purposes of this Agreement and the DGCL.
Section 7.14 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument, notwithstanding that both parties are not signatories to
the original or same counterpart.
Section 7.15 Certain Persons Not Entitled to Indemnification. Notwithstanding any
other provision of this Agreement (but subject to Section 7.1), Indemnitee shall not be entitled to
indemnification or advancement of Expenses pursuant to the terms of this Agreement with respect to
any Proceeding or any Claim, issue or matter therein, brought or made by Indemnitee against the
Company, except as specifically provided in Article III, Article IV or Section 7.3. In addition,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) To indemnify Indemnitee if (and to the extent that) a final decision by a court or
arbitration body having jurisdiction in the matter shall determine that such indemnification
is not lawful; or
(b) To indemnify Indemnitee for the payment to the Company of profits pursuant to
Section 16(b) of the Exchange Act, or Expenses incurred by Indemnitee for Proceedings in
connection with such payment under Section 16(b) of the Exchange Act.
Section 7.16 Indemnification for Negligence, Gross Negligence, etc. Without limiting
the generality of any other provision hereunder, it is the express intent of this Agreement that
Indemnitee be indemnified and Expenses be advanced regardless of Indemnitee’s acts of negligence,
gross negligence, intentional or willful misconduct to the extent that indemnification
18
and advancement of Expenses is allowed pursuant to the terms of this Agreement and under
applicable law.
Section 7.17 Mutual Acknowledgments. Both the Company and Indemnitee acknowledge that
in certain instances, applicable law (including applicable federal law that may preempt or override
applicable state law) or public policy may prohibit the Company from indemnifying the directors,
officers, employees, agents or fiduciaries of the Company under this Agreement or otherwise. For
example, the Company and Indemnitee acknowledge that the U.S. Securities and Exchange Commission
has taken the position that indemnification of directors, officers and controlling Persons of the
Company for liabilities arising under federal securities laws is against public policy and,
therefore, unenforceable. Indemnitee understands and acknowledges that the Company has undertaken
or may be required in the future to undertake with the Securities and Exchange Commission to submit
the question of indemnification to a court in certain circumstances for a determination of the
Company’s right under public policy to indemnify Indemnitee. In addition, the Company and
Indemnitee acknowledge that federal law prohibits indemnifications for certain violations of the
Employee Retirement Income Security Act of 1974, as amended.
Section 7.18 Enforcement. The Company agrees that its execution of this Agreement
shall constitute a stipulation by which it shall be irrevocably bound in any court or arbitration
in which a proceeding by Indemnitee for enforcement of Indemnitee’s rights hereunder shall have
been commenced, continued or appealed, that its obligations set forth in this Agreement are unique
and special, and that failure of the Company to comply with the provisions of this Agreement will
cause irreparable and irremediable injury to Indemnitee, for which a remedy at law will be
inadequate. As a result, in addition to any other right or remedy Indemnitee may have at law or in
equity with respect to breach of this Agreement, Indemnitee shall be entitled to injunctive or
mandatory relief directing specific performance by the Company of its obligations under this
Agreement. The Company agrees not to seek, and agrees to waive any requirement for the securing or
posting of, a bond in connection with Indemnitee’s seeking or obtaining such relief.
Section 7.19 Successors and Assigns. All of the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto
and their respective successors, assigns, heirs, executors, administrators, legal representatives.
Section 7.20 Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of the Company or any affiliate of the Company against
Indemnitee or Indemnitee’s spouse, heirs, executors, or personal or legal representatives after the
expiration of one year from the date of accrual of that cause of action, and any claim or cause of
action of the Company or its affiliate shall be extinguished and deemed released unless asserted by
the timely filing of a legal action within that one-year period; provided, however, that for any
claim based on Indemnitee’s breach of fiduciary duties to the Company or its stockholders, the
period set forth in the preceding sentence shall be three years instead of one year; and provided,
further, that, if any shorter period of limitations is otherwise applicable to any such cause of
action, the shorter period shall govern.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to be effective as of
the date first above written.
| PIONEER NATURAL RESOURCES COMPANY | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Executive Vice President and General Counsel | |||||
| INDEMNITEE: | ||||||
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