INDEMNIFICATION AGREEMENT
EXHIBIT 10.25
This Indemnification Agreement (this “Agreement”) is entered into as of December ___,
2005, by and between Global Energy Group, Inc., a Delaware corporation (the “Company”) and Xxxx X.
Xxxxxx (the “Indemnitee”).
Recitals
A. The Company and the Indemnitee recognize the continued difficulty in obtaining liability
insurance for its directors, officers, employees, Stockholders, controlling persons, agents and
fiduciaries, the significant increases in the cost of such insurance and the general reductions in
the coverage of such insurance.
B. The Company and the Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, controlling persons,
Stockholders, agents and fiduciaries to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited.
C. The Indemnitee does not regard the current protection available as adequate under the
present circumstances, and the Indemnitee and other directors, officers, employees, Stockholders,
controlling persons, agents and fiduciaries of the Company may not be willing to serve in such
capacities without additional protection.
D. The Company (i) desires to attract and retain the involvement of highly qualified groups,
such as the Indemnitee, to serve the Company and, in part, in order to induce the Indemnitee to be
involved with the Company and (ii) wishes to provide for the indemnification and advancing of
expenses to the Indemnitee to the maximum extent permitted by law.
E. In view of the considerations set forth above, the Company desires that the Indemnitee be
indemnified by the Company as set forth herein.
Now Therefore, the Company and the Indemnitee hereby agrees as follows:
1. Indemnification.
(a) Indemnification of Expenses. The Company shall indemnify and hold harmless the Indemnitee
(including its respective directors, officers, general partners, limited partners, members,
managing members, employees, agents and spouses) and each person who controls any of them or who
may be liable within the meaning of Section 15 of the Securities Act of 1933, as amended (the
“Securities Act”), or Section 20 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), to the fullest extent permitted by law if the Indemnitee was or 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, any threatened, pending or completed action, suit, proceeding or alternative
dispute resolution mechanism, or any hearing, inquiry or investigation that the Indemnitee believes
might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or
other (hereinafter a “Claim”) by reason of (or arising in part out of) any event or occurrence
related to the fact that the Indemnitee is or was or may be deemed a director, officer,
Stockholder, employee, controlling person, agent or fiduciary of the Company, or any subsidiary of
the Company, or is or was or may be deemed to be serving at the request of the Company as a
director, officer, Stockholders, employee, controlling person, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise, or by reason of any action or
inaction on the part of the Indemnitee while serving in such capacity including, without
limitation, any and all losses, claims, damages, expenses and liabilities, joint or several
(including any investigation, legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit, proceeding or any claim asserted) under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at common law or
otherwise, which relate directly or indirectly to the registration, purchase, sale or ownership of
any securities of the Company or to any fiduciary obligation owed with respect thereto or as a
result of any claim (i) made by any Stockholder of the Company against the Indemnitee and arising
out of or related to any round of financing of the Company (including, but not limited to, claims
regarding participation, non-participation, or non-prorata participation, in such round by such
Stockholder or by the Indemnitee or any affiliated or related entity, (ii) made by a third party
against the Indemnitee based on any misstatement or omission of a material fact by the Company in
violation of any duty of disclosure imposed on the Company by Federal or state securities or common
laws, (iii) made by a third party against the Indemnitee based (in whole or in part) on, or arising
in any way out of, or relating to conduct attributed to the Company or anyone alleged to be acting
on the Company’s behalf, or (iv) made by a third party against the Indemnitee based (in whole or in
part) on, or arising in any way out of, or relating to (A) the Indemnitee being an investor in the
Company, (B) the Indemnitee’s alleged participation in the management or direction of the Company,
(C) the Indemnitee’s alleged participation in providing any assistance or advice to the Company, or
(D) the Indemnitee being a person described in Section 15 of Securities Act or Section 20 of the
Exchange Act (hereinafter an individually an “Indemnification Event” and collectively the
“Indemnification Events”) against any and all expenses (including attorneys’ fees and all other
costs, expenses and obligations incurred in connection with investigating, defending, being a
witness in or participating in (including an appeal), or preparing to defend, be a witness in or
participate in, any such action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, fines, penalties and amounts paid in settlement (if,
and only if, such settlement is approved in advance by the Company, which approval shall not be
unreasonably withheld) of such Claim and any federal, state, local or foreign taxes imposed on the
Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement
(collectively, hereinafter “Expenses”), including all interest, assessments and other charges paid
or payable in connection with or in respect of such Expenses. Such payment of Expenses shall be
made by the Company as soon as practicable but in any event no later than ten (10) days after
written demand by the Indemnitee therefor is presented to the Company.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the obligations of the Company under
Section 1(a) shall be subject to the condition that it shall not have been finally determined that
the Indemnitee would not be permitted to be indemnified under applicable law (initial determination
shall be made by the Reviewing Party as described in
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Section 9(e) hereof in a written opinion, in any case in which the Independent Legal Counsel
referred to in Section 1(e) hereof is involved), and (ii) and the Indemnitee acknowledges and
agrees that the obligation of the Company to make an advance payment of Expenses to the Indemnitee
pursuant to Section 2(a) (an “Expense Advance”) shall be subject to the condition that, if, when
and to the extent that it is so determined that the Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed by the Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided,
however, that if the Indemnitee has commenced or thereafter commences legal proceedings in a court
of competent jurisdiction to secure a determination that the Indemnitee should be indemnified under
applicable law, any initial determination made by the Reviewing Party that the Indemnitee would not
be permitted to be indemnified under applicable law shall not be binding and the Indemnitee shall
not be required to reimburse the Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). The Indemnitee’s obligation to reimburse the Company for any Expense Advance
shall be unsecured and no interest shall be charged thereon. If there has not been a Change in
Control (as defined in Section 9(c) hereof), the Reviewing Party shall be selected by the Company’s
Board of Directors (the “Board of Directors”), and if there has been such a Change in Control
(other than a Change in Control which has been approved by a majority of the Board of Directors who
were directors immediately prior to such Change in Control), the Reviewing Party shall be the
Independent Legal Counsel referred to in Section 1(e) hereof. If there has been no determination
by the Reviewing Party or if the Reviewing Party determines that the Indemnitee substantively would
not be permitted to be indemnified in whole or in part under applicable law, the Indemnitee shall
have the right to commence litigation seeking an initial determination by the court or challenging
any such determination by the Reviewing Party or any aspect thereof, including the legal or factual
bases therefor, and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on
the Company and the Indemnitee.
(c) Contribution. If the indemnification provided for in Section 1(a) above for any reason is
held by a court of competent jurisdiction to be unavailable to the Indemnitee in respect of any
losses, claims, damages, expenses or liabilities referred to therein, then the Company, in lieu of
indemnifying the Indemnitee thereunder, shall contribute to the amount paid or payable by the
Indemnitee as a result of such losses, claims, damages, expenses or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Indemnitee, or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Indemnitee in connection with
the action or inaction which resulted in such losses, claims, damages, expenses or liabilities, as
well as any other relevant equitable considerations. In connection with the registration of the
Company’s securities, the relative benefits received by the Company and the Indemnitee shall be
deemed to be in the same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and the Indemnitee, in each case as set forth in the
table on the cover page of the applicable prospectus, bears to the aggregate public offering price
of the securities so offered. The relative fault of the Company and the Indemnitee shall be
determined by reference to, among other things, whether the untrue
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or alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Indemnitee and the parties
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 1(c) were determined by pro rata or per capita allocation or by any other
method of allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. In connection with the registration of the Company’s securities,
in no event shall the Indemnitee be required to contribute any amount under this Section 1(c) in
excess of the lesser of (i) that proportion of the total of such losses, claims, damages or
liabilities indemnified against equal to the proportion of the total securities sold under such
registration statement which is being sold by the Indemnitee or (ii) the proceeds received by the
Indemnitee from its sale of securities under such registration statement. No person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not found guilty of such fraudulent
misrepresentation.
(d) Survival Regardless of Investigation. The indemnification and contribution provided for
in this Section 1 will remain in full force and effect regardless of any investigation made by or
on behalf of the Indemnitee or any officer, director, general partner, limited partner, member,
managing member, employee, agent or controlling person of the Indemnitee.
(e) Change in Control. The Company agrees that if there is a Change in Control of the Company
(other than a Change in Control which has been approved by a majority of the Board of Directors who
were directors immediately prior to such Change in Control) then, with respect to all matters
thereafter arising concerning the rights of the Indemnitee to payments of Expenses under this
Agreement or any other agreement or under the Company’s Certificate of Incorporation, as amended
and in effect from time to time (the “Certificate”) or the Company’s Bylaws, as amended and in
effect from time to time (the “Bylaws”), Independent Legal Counsel (as defined in Section 9(d)
hereof) shall be selected by the Indemnitee and approved by the Company (which approval shall not
be unreasonably withheld). Such counsel, among other things, shall render its written opinion to
the Company and the Indemnitee as to whether and to what extent the Indemnitee would be permitted
to be indemnified under applicable law. The Company agrees to abide by such opinion and to pay the
reasonable fees of the Independent Legal Counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.
(f) Mandatory Payment of Expenses. Notwithstanding any other provision of this Agreement, to
the extent that the Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in the defense of any action, suit,
proceeding, inquiry or investigation referred to in Section 1(a) hereof or in the defense of any
claim, issue or matter therein, the Indemnitee shall be indemnified against all Expenses incurred
by the Indemnitee in connection herewith.
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2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all Expenses incurred by the
Indemnitee. The advances to be made hereunder shall be paid by the Company to the Indemnitee as
soon as practicable but in any event no later than fifteen (15) days after written demand by the
Indemnitee therefor to the Company.
(b) Notice/Cooperation by the Indemnitee. The Indemnitee shall give the Company notice as
soon as practicable of any Claim made against the Indemnitee for which indemnification will or
could be sought under this Agreement. Notice to the Company shall be directed to the Chief
Executive Officer of the Company at the address shown on the signature page of this Agreement (or
such other address as the Company shall designate in writing to the Indemnitee).
(c) No Presumptions; Burden of Proof. For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court approval) or conviction, or
upon a plea of nolo contendere, or its equivalent, shall not create a presumption
that the Indemnitee did not meet any particular standard of conduct or have any particular belief
or that a court has determined that indemnification is not permitted by applicable law. In
addition, neither the failure of the Reviewing Party to have made a determination as to whether the
Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that the Indemnitee has not met such standard of conduct or
did not have such belief, prior to the commencement of legal proceedings by the Indemnitee to
secure a judicial determination that the Indemnitee should be indemnified under applicable law,
shall be a defense to the Indemnitee’s claim or create a presumption that the Indemnitee has not
met any particular standard of conduct or did not have any particular belief. In connection with
any determination by the Reviewing Party or otherwise as to whether the Indemnitee is entitled to
be indemnified hereunder, the burden of proof shall be on the Company to establish that the
Indemnitee is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the Company of a notice of a Claim
pursuant to Section 2(b) hereof, the Company has liability insurance in effect which may cover such
Claim, the Company shall give prompt written notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in each of the 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 action, suit, proceeding, inquiry or
investigation in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be obligated hereunder to pay the
Expenses of any Claim, the Company shall be entitled to assume the defense of such Claim, with
counsel reasonably approved by the Indemnitee, upon the delivery to the Indemnitee of written
notice of its election to do so. After delivery of such notice, approval of such counsel by the
Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel
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subsequently incurred by the Indemnitee with respect to the same Claim; provided that, (i) the
Indemnitee shall have the right to employ Indemnitee’s own counsel in any such Claim at the
Indemnitee’s expense; (ii) the Indemnitee shall have the right to employ the Indemnitee’s own
counsel in connection with any such proceeding, at the expense of the Company, if such counsel
serves in a review, observer, advice and counseling capacity and does not otherwise materially
control or participate in the defense of such proceeding; and (iii) if either (A) the employment of
counsel by the Indemnitee has been previously authorized by the Company, (B) the Indemnitee shall
have reasonably concluded that there is a conflict of interest between the Company and the
Indemnitee in the conduct of any such defense, or (C) the Company shall not continue to retain such
counsel to defend such Claim, then the fees and expenses of the Indemnitee’s counsel shall be at
the expense of the Company.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify the Indemnitee to the fullest extent
permitted by law, even if such indemnification is not specifically authorized by the other
provisions of this Agreement or any other agreement, the Certificate, the Bylaws or by statute.
In the event of any change after the date of this Agreement in any applicable law, statute or rule
which expands the right of a Delaware corporation to indemnify a member of its board of directors
or an officer, stockholder, employee, controlling person, agent or fiduciary, it is the intent of
the parties hereto that the Indemnitee shall enjoy by this Agreement the greater benefits afforded
by such change. In the event of any change in any applicable law, statute or rule which narrows
the right of a Delaware corporation to indemnify a member of its board of directors or an officer,
stockholder, employee, agent or fiduciary, such change, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement, shall have no effect on this Agreement
or the parties rights and obligations hereunder except as set forth in Section 7(a) hereof. The
Company and the Indemnitee acknowledge that in certain instances, Federal law or applicable public
policy may prohibit the Company from indemnifying its directors, officers, stockholders, employees,
controlling persons, agents or fiduciaries under this Agreement or otherwise.
(b) Nonexclusivity. The indemnification provided by this Agreement shall be in addition to
any rights to which the Indemnitee may be entitled under the Certificate, the Bylaws, any
agreement, any vote of Stockholders or disinterested directors, the laws of the State of Delaware,
or otherwise. The indemnification provided under this Agreement shall continue as to the
Indemnitee for any action the Indemnitee took or did not take while serving in an indemnified
capacity even though the Indemnitee may have ceased to serve in such capacity and such
indemnification shall inure to the benefit of the Indemnitee from and after Indemnitee’s first day
of service with the Company.
4. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment in connection with any Claim made against the Indemnitee to the extent the Indemnitee
has otherwise actually received payment (under any insurance policy, the Certificate, the Bylaws or
otherwise) of the amounts otherwise indemnifiable hereunder.
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5. Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for any portion of Expenses incurred in connection with
any Claim, but not, however, for all of the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses to which the Indemnitee is entitled.
6. Liability Insurance. To the extent the Company maintains liability insurance applicable to
directors, officers, Stockholders, employees, control persons, agents or fiduciaries, the
Indemnitee shall be covered by such policies in such a manner as to provide the Indemnitee the same
rights and benefits as are accorded to the most favorably insured of the Company’s directors, if
the Indemnitee is a director, or of the Company’s officers, if the Indemnitee is not a director of
the Company but is an officer, or of the Company’s key employees, controlling persons, agents or
fiduciaries, if the Indemnitee is not an officer or director but is a key employee, agent, control
person, or fiduciary.
7. Exceptions. Notwithstanding any other provision herein to the contrary, the Company shall
not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by the Indemnitee. To indemnify or advance expenses to the Indemnitee
with respect to Claims initiated or brought voluntarily by the Indemnitee and not by way of
defense, except (i) with respect to actions or proceedings to establish or enforce a right to
indemnification under this Agreement or any other agreement or insurance policy or under the
Certificate or Bylaws relating to Claims for Indemnifiable Events, (ii) in specific cases if the
Board of Directors has approved the initiation or bringing of such Claim, or (iii) as otherwise
required under Delaware statute or law, regardless of whether the Indemnitee ultimately is
determined to be entitled to such indemnification, advance expense payment or insurance recovery,
as the case may be; or
(b) Claim Under Section 16(b). To indemnify the Indemnitee for expenses and the payment of
profits arising from the purchase and sale by the Indemnitee of securities in violation of Section
16(b) of the Exchange Act or any similar successor statute; or
(c) Unlawful Indemnification. To indemnify the Indemnitee if a final decision by a court
having jurisdiction in the matter shall determine that such indemnification is not lawful.
8. Period of Limitations. No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against the Indemnitee, the Indemnitee’s estate, spouse,
heirs, executors or personal or legal representatives after the expiration of five (5) years from
the date of accrual of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a legal action within
such five (5) year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall govern.
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9. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to the “Company” shall include, in addition to
the resulting corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, Stockholders, employees, agents or
fiduciaries, so that if the Indemnitee is or was or may be deemed a director, officer, Stockholder,
employee, agent, control person, or fiduciary of such constituent corporation, or is or was or may
be deemed to be serving at the request of such constituent corporation as a director, officer,
Stockholder, employee, control person, agent or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, the Indemnitee shall stand in the
same position under the provisions of this Agreement with respect to the resulting or surviving
corporation as the Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.
(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 the Indemnitee with
respect to an employee benefit plan; and references to “serving at the request of the Company”
shall include any service as a director, officer, Stockholder, employee, agent or fiduciary of the
Company which imposes duties on, or involves services by, such director, officer, Stockholder,
employee, agent or fiduciary with respect to an employee benefit plan, its participants or its
beneficiaries; and if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an employee benefit plan,
the Indemnitee shall be deemed to have acted in a manner not opposed to the best interests of the
Company as referred to in this Agreement.
(c) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if
(i) any person (as such term is used in Section 13(d)(3) and 14(d)(2) of the Exchange Act), other
than a trustee or other fiduciary holding securities under an employee benefit plan of the Company
or a corporation owned directly or indirectly by the Stockholders in substantially the same
proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing twenty percent (20%) or more of
the combined voting power of the Company’s then outstanding Voting Securities, increases his
beneficial ownership of such securities by five percent (5%) or more over the percentage so owned
by such person, or (B) becomes the beneficial owner (as defined in Rule 13d-3 under said Exchange
Act), directly or indirectly, of securities of the Company representing more than fifty percent
(50%) of the total voting power represented by the Company’s then outstanding Voting Securities,
(ii) during any period of two (2) consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new director whose election by the
Board of Directors or combination for election by the Stockholders was approved by a vote of at
least two-thirds (2/3) of the Board of Directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or (iii) the Stockholders approve
a merger or consolidation of the Company with any other corporation other than a merger or
consolidation which would result in the Voting Securities outstanding immediately prior thereto
continuing to represent (either by
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remaining outstanding or by being converted into Voting Securities of the surviving entity) at
least two-thirds (2/3) of the total voting power represented by the Voting Securities or such
surviving entity outstanding immediately after such merger or consolidation, or the Stockholders
approve a plan of complete liquidation of the Company or an agreement for the sale or disposition
by the Company of (in one transaction or a series of transactions) all or substantially all of the
Company’s assets.
(d) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm
of attorneys, selected in accordance with the provisions of Section 1(e) hereof, who shall not have
otherwise performed services for the Company or the Indemnitee within the last three (3) years
(other than with respect to matters concerning the rights of the Indemnitee under this Agreement).
(e) For purposes of this Agreement, a “Reviewing Party” shall mean any appropriate person or
body consisting of a member or members of the Board of Directors or any other person or body
appointed by the Board of Directors who is not a party to the particular Claim for which the
Indemnitee is seeking indemnification or Independent Legal Counsel.
(f) For purposes of this Agreement, “Voting Securities” shall mean any securities of the
Company that vote generally in the election of Board of Directors.
(g) For purposes of this Agreement, “Stockholder” shall include any holder of any capital
stock of the Company and an affiliate thereof.
(h) For purposes of this Agreement, “affiliate” shall include any limited partner, general
partner, or any member or managing member of such general partner.
(i) For purposes of this Agreement, “Certificate” shall mean the Certificate of Incorporation
of the Company, as amended and in effect from time to time.
10. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall constitute an original.
11. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation or otherwise to all
or substantially all of the business and/or assets of the Company, partnership, spouses, heirs, and
personal and legal representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the Company, by written agreement in form and
substance satisfactory to 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. This Agreement shall continue in effect with respect to Claims
relating to Indemnifiable Events regardless of whether the Indemnitee continues to serve as a
director, officer, employee, agent, controlling person, or
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fiduciary of the Company or of any other enterprise, including subsidiaries of the Company, at the
Company’s request.
12. Attorneys’ Fees. In the event that any action is instituted by the Indemnitee under this
Agreement or under any liability insurance policies maintained by the Company to enforce or
interpret any of the terms hereof or thereof, the Indemnitee shall be entitled to be paid all
Expenses incurred by the Indemnitee with respect to such action, regardless of whether the
Indemnitee is ultimately successful in such action, and shall be entitled to the advancement of
Expenses with respect to such action, unless, as a part of such action, a court of competent
jurisdiction over such action determines that each of the material assertions made by the
Indemnitee as a basis for such action was not made in good faith or was frivolous. In the event of
an action instituted by or in the name of the Company under this Agreement to enforce or interpret
any of the terms of this Agreement, the Indemnitee shall be entitled to be paid all Expenses
incurred by the Indemnitee in defense of such action (including costs and expenses incurred with
respect to the Indemnitee’s counterclaims and cross-claims made in such action), and shall be
entitled to the advancement of Expenses with respect to such action.
13. Notice. All notices and other communications required or permitted hereunder shall be in
writing, shall be effective when given, and shall in any event be deemed to be given (a) five (5)
days after deposit with the U.S. Postal Service or other applicable postal service, if delivered by
first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day
after the business day of deposit with Federal Express or similar overnight courier, freight
prepaid, or (d) one day after the business day of delivery by facsimile transmission, if
deliverable by facsimile transmission, with copy by first class mail, postage prepaid, and shall be
addressed, if to the Indemnitee, at the Indemnitee’s address as set forth beneath the Indemnitee’s
signature to this Agreement, and, if to the Company, at the address of its principal corporate
offices (attention: corporate secretary), or at such other address as such party may designate by
ten (10) days advance written notice to the other parties hereto.
14. Severability. The provisions of this Agreement shall be severable in the event that any
of the provisions hereof (including any provision within a single section, paragraph or sentence)
are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without
limitations, each portion of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so
as to give effect to the extent manifested by the provision held invalid, illegal or unenforceable.
15. Choice of Law. This Agreement shall be governed by and its provisions construed and
enforced in accordance with the internal substantive laws of the State of Delaware, without giving
effect to the principles of conflicts of law.
16. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee
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who shall execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such rights.
17. Amendment and Termination. No amendment, modification, termination or cancellation of
this Agreement shall be effective unless it is in writing signed by the parties to be bound
thereby. Notice of same shall be provided to all parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
18. Corporate Authority. The Board of Directors of the Company and its stockholders have
approved the terms of this Agreement in accordance with Delaware law.
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In Witness Whereof, the parties hereto have executed this Indemnification Agreement
on and as of the day and year first above written.
| GLOBAL ENERGY GROUP, INC., a Delaware corporation | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| Address: | ||||
| Xxxx X. Xxxxxx | ||||
| Address: | ||||
| Address: | ||||
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