INDEMNIFICATION AGREEMENT
EXHIBIT
10.2
THIS
AGREEMENT is made
this ____ day of __________, 2007, by and between Halliburton Company, a
Delaware corporation, (the “Company”) and the undersigned Director
(“Director”).
W
I T N E S S E T H
WHEREAS,
Director is a
member of the Board of Directors of the Company and in such capacity is
performing a valuable service for the Company; and
WHEREAS,
the Company
has purchased and presently maintains a policy or policies of Directors’ and
Officers’ Liability Insurance (“D&O Insurance”) covering certain liabilities
which may be incurred by the Directors and Officers of the Company in the
performance of their services for the Company; and
WHEREAS,
developments
with respect to the provisions of D&O Insurance and with respect to the
application, amendment and enforcement of statutory, charter and bylaw
indemnification provisions generally have raised questions concerning the
adequacy and reliability of the protection accorded to Directors thereby and
may
increase the difficulty of attracting and retaining qualified persons to serve
as Directors of the Company; and
WHEREAS,
the Board of
Directors of the Company has determined that difficulties relating to the
attraction and retention of such persons would be detrimental to the best
interests of the Company and of its stockholders and that the Company should
act
to assure such persons that there will be increased certainty of indemnification
protection in the future; and
WHEREAS,
the Delaware
General Corporation Law and the By-laws of the Company provide that they are
not
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled, and thereby contemplate that contracts
may be entered into between the Company and members of its Board of Directors
with respect to indemnification of such Directors; and
WHEREAS,
in order to
lessen or alleviate the aforementioned concerns and thereby induce Director
to
serve and to continue to serve as a member of the Board of Directors of the
Company, the Company has determined that it is in its best interests to enter
into this Agreement with Director;
NOW,
THEREFORE, in
consideration of the above premises and of Director’s continued service as a
member of the Company’s Board of Directors after the date hereof, the parties
hereto agree as follows:
1.
Indemnification- General. The Company shall
indemnify and advance Expenses (as hereinafter defined) to Director to the
fullest extent, and only to the extent, permitted by applicable law in effect
on
the date hereof and to such greater extent as applicable law may thereafter
from
time to time permit. The rights of Director provided under the
preceding sentence shall include, but shall not be limited to, the rights set
forth in the other Sections of this Agreement.
2.
Proceedings Other than Proceedings by or in the Right of the
Company. Director shall be entitled to the indemnification rights
provided in this Section 2 if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to any threatened, pending
or completed Proceeding (as hereinafter defined), other than a Proceeding by
or
in the right of the Company. Pursuant to this Section 2, Director
shall be indemnified against Expenses, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by him or on his behalf
in
connection with such Proceeding or any claim, issue or matter therein, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Company, and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was
unlawful.
3.
Proceedings by or in the Right of the Company. Director shall
be entitled to the indemnification rights provided in this Section 3, if, by
reason of his Corporate Status, he is, or is threatened to be made, a party
to
any threatened, pending or completed Proceeding brought by or in the right
of
the Company to procure a judgment in its favor. Pursuant to this
Section 3, Director shall be indemnified against Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
if he acted in good faith and in a manner he reasonably believed to be in,
or
not opposed to, the best interests of the Company. Notwithstanding
the foregoing, no indemnification against such Expenses shall be made in respect
of any claim, issue or matter in such Proceeding as to which Director shall
have
been adjudged to be liable to the Company if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Company
despite such adjudication of liability, if and only to the extent that the
Court
of Chancery of the State of Delaware, or the court in which such Proceeding
shall have been brought or is pending, shall determine.
4.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this
Agreement, to the extent that Director is, by reason of his Corporate Status,
a
party to and is successful, on the merits or otherwise, in any Proceeding,
he
shall be indemnified against all Expenses actually and reasonably incurred
by
him or on his behalf in connection therewith. If Director is not
wholly successful in such Proceeding but is successful on the merits or
otherwise, as to one or more but less than all claims, issues or matters in
such
Proceeding, the Company shall indemnify Director against all Expenses actually
and reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For the purposes of
this Section 4 and without limitation, the termination of any claim, issue
or
matter in such a Proceeding by dismissal, with or without prejudice, shall
be
deemed to be a successful result as to such claim, issue or
matter.
5.
Contribution. In the event that the indemnity contained
in Sections 2, 3 or 4 of this Agreement is unavailable or insufficient to hold
Director harmless in a Proceeding described therein, then in accordance with
the
non-exclusivity provisions of the Delaware General Corporation Law and the
Certificate of Incorporation and By-laws, and separate from and in addition
to,
the indemnity provided elsewhere herein, the Company shall contribute to
Expenses, judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by or on behalf of Director in connection with such
Proceeding or any claim, issue or matter therein, in such proportion as
appropriately reflects the relative benefits received by, and fault of, the
Company on the one hand and Director on the other in the acts, transactions
or
matters to which the Proceeding relates and other equitable
considerations.
6.
Procedure for Determination of Entitlement to
Indemnification.
(a) To
obtain indemnification under this Agreement, Director shall submit to the
Company a written request, including such documentation and information as
is
reasonably available to Director and is reasonably necessary to determine
whether and to what extent Director is entitled to
indemnification. The determination of Director’s entitlement to
indemnification shall be made not later than 90 days after receipt by the
Company of the written request for indemnification. The Secretary of
the Company shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Director has requested
indemnification.
(b) Director’s
entitlement to indemnification under any of Sections 2, 3, 4 and 5 of this
Agreement shall be determined in the specific case: (i) by the Board of
Directors by a majority vote of a quorum of the Board consisting of
Disinterested Directors (as hereinafter defined); (ii) by Independent Counsel
(as hereinafter defined), in a written opinion if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable or, even
if
obtainable, such quorum of Disinterested Directors so directs; or (iii) by
the
stockholders of the Company. If, with regard to Section 5 of this
Agreement, such a determination is not permitted by law or if a quorum of
Disinterested Directors so directs, such determination shall be made by the
Chancery Court of the State of Delaware or the court in which the Proceeding
giving rise to the claim for indemnification is brought.
(c) In
the event that the determination of entitlement to indemnification is to be
made
by Independent Counsel pursuant to Section 6(b) of this Agreement, the
Independent Counsel shall be selected as provided in this Section
6(c). The Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to Director advising him
of
the identity of the Independent Counsel so selected. Director may,
within 7 days after receipt of such written notice of selection shall have
been
given, deliver to the Company a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 13 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. If such
written objection is made, the Independent Counsel so selected shall be
disqualified from acting as such. If, within 20 days after submission
by Director of a written request for indemnification pursuant to Section 6(a)
of
this Agreement, no Independent Counsel shall have been selected, or if selected
shall have been objected to, in accordance with this Section 6(c), either the
Company or Director may petition the Court of Chancery of the State of Delaware
for the appointment as Independent Counsel of a person selected by such court
or
by such other person as such court shall designate, and the person so appointed
shall act as Independent Counsel under Section 6(b) of this Agreement, and
the
Company shall pay all reasonable fees and expenses incident to the procedures
of
this Section 6(c), regardless of the manner in which such Independent Counsel
was selected or appointed.
7.
Advancement of Expenses. The Company shall advance all
reasonable Expenses incurred by or on behalf of Director in connection with
any
Proceeding within 20 days after the receipt by the Company of a statement or
statements from Director requesting such advance or advances from time to time,
whether prior to or after final disposition of such
Proceeding. Director shall, and hereby undertakes to, repay any
Expenses advanced if it shall ultimately be determined that Director is not
entitled to be indemnified against such Expenses.
8.
Presumptions and Effect of Certain Proceedings. The
termination of any proceeding described in any of Sections 2, 3 or 4 of this
Agreement, or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolocontendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of Director to indemnification or create
a
presumption that Director did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Company
or, with respect to any criminal Proceeding, that Director had reasonable cause
to believe that his conduct was unlawful.
9.
Term of Agreement. All agreements and obligations of the
Company contained herein shall commence as of the time the Director commenced
to
serve as a director, officer, employee or agent of the Company (or commenced
to
serve at the request of the Company as a director, officer, employee or agent
of
another corporation, partnership, joint venture, trust, employee benefit plan
or
other enterprise) and shall continue for so long as Director shall so serve
or
shall be, or could become, subject to any possible Proceeding in respect of
which Director is granted rights of indemnification or advancement of Expenses
hereunder.
10. Notification
and Defense of Claim. Promptly after receipt by Director of
notice of the commencement of any Proceeding, Director will, if a claim in
respect thereof is to be made against the Company under this Agreement, notify
the Company of the commencement thereof; but the omission to notify the Company
will not relieve it from any liability which it may have to Director otherwise
than under this Agreement. With respect to any such Proceeding as to
which Director notifies the Company of the commencement thereof:
(a) The
Company will be entitled to participate therein at its own expense.
(b) Except
as otherwise provided below, to the extent that it may wish, the Company jointly
with any other indemnifying party similarly notified will be entitled to assume
the defense thereof, with counsel satisfactory to Director. After
notice from the Company to Director of its election so to assume the defense
thereof, the Company will not be liable to Director under this Agreement for
any
legal or other Expenses subsequently incurred by Director in connection with
the
defense thereof other than reasonable costs of investigation or as otherwise
provided below. Director shall have the right to employ its counsel
in such Proceeding but the fees and Expenses of such counsel incurred after
notice from the Company of its assumption of the defense thereof shall be at
the
expense of Director unless (i) the employment of counsel by Director has been
authorized by the Company, or (ii) Director shall have reasonably concluded
that
there may be a conflict of interest between the Company and Director in the
conduct of the defense of such Proceeding, or (iii) the Company shall not in
fact have employed counsel to assume the defense of such Proceeding, in each
of
which cases the fees and Expenses of counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of
any Proceeding brought by or on behalf of the Company or as to which Director
shall have made the conclusion provided for in (ii) above.
(c) The
Company shall not be liable to indemnify Director under this Agreement for
any
amounts paid in settlement of any Proceeding or claim effected without its
written consent. The Company shall not settle any Proceeding or claim
in any manner which would impose any penalty or limitation on Director without
Director’s written consent. Neither the Company nor Director will
unreasonably withhold their consent to any proposed settlement.
11. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Director
to
continue as a director of the Company, and acknowledges that Director is relying
upon this Agreement in continuing in such capacity.
(b) In
the event Director is required to bring any action to enforce rights or to
collect moneys due under this Agreement and is successful in such action, the
Company shall reimburse Director for all of Director’s reasonable fees and
Expenses in bringing and pursuing such action.
12. Non-Exclusivity
of Rights. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Director may at any time be entitled
under applicable law, the Certificate of Incorporation, the By-laws, any
agreement, a vote of stockholders or a resolution of directors, or
otherwise.
13. Definitions. For
purposes of this Agreement:
(a) “Corporate
Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the Company.
(b) “Disinterested
Director” means a director of the Company who is not and was not at any time a
party to the Proceeding in respect of which indemnification is sought by
Director.
(c) “Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or Expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend or
investigating a Proceeding.
(d) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: (i) the Company or Director in any matter
material to either such party or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Director
in an
action to determine Director’s rights under this Agreement.
(e) “Proceeding”
includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative.
14. Severability. Each
of the provisions of this Agreement is a separate and distinct agreement and
independent of the others, so that if any provision hereof shall be held to
be
invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect the validity or enforceability of the other provisions
hereof.
15. Governing
Law; Binding Effect; Amendment and Termination.
(a) THIS
AGREEMENT SHALL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF DELAWARE.
(b) This
Agreement shall be binding upon Director and upon the Company, its successors
and assigns, and shall inure to the benefit of Director, his heirs, personal
representatives and assigns and to the benefit of the Company, its successors
and assigns.
(c) No
amendment, modification, termination or cancellation of this Agreement shall
be
effective unless in writing by the parties.
The
parties have executed this
Agreement as of the day and year first above written.
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HALLIBURTON
COMPANY
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By:
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Chairman
of the Board, President and Chief Executive Officer
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Print
name:
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Director
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