EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT (this "Agreement") made as of July 3, 1996, by
▇▇▇▇▇ ▇▇▇▇▇, an individual having an address at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Young"), in favor of Cheniere Energy Operating
Co., Inc. ("Cheniere"), a corporation formed and existing under the laws of the
State of Delaware, having an address at Two ▇▇▇▇▇ Center, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; the Stockholders of Cheniere listed on
Schedule A attached to the Reorganization Agreement (as defined below)
(collectively, the "Cheniere Stockholders"); and Cheniere Energy, Inc. (f/k/a
BEXY Communications, Inc.), a corporation formed and existing under the laws of
the State of Delaware (the "Company"), having an address at Two ▇▇▇▇▇ Center,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. Capitalized terms used
herein without definition shall have the same meanings as ascribed to them in
the Reorganization Agreement (as defined below).
W I T N E S S E T H:
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WHEREAS, the parties have entered into a certain Agreement and Plan of
Reorganization dated April 16, 1996 (the "Reorganization Agreement"), pursuant
to which, prior to or concurrently with the execution and delivery of this
Agreement, among other things, (i) the Company has assigned and transferred
substantially all of the assets and business of the Company, subject to
liabilities, to Mar Ventures, Inc. ("Newco") and distributed the shares of Newco
to its stockholders (the "Divestiture") and (ii) the Cheniere Stockholders have
exchanged their Cheniere Shares for shares of the BEXY Stock; and
WHEREAS, in order to obtain the approval of the stockholders of the Company
to the Reorganization and to register the stock of Newco under the Securities
Exchange Act of 1934 (the "Exchange Act"), the Company has caused to be prepared
and filed with the Securities and Exchange Commission (the "SEC") the Proxy
Materials and the Registration Statement, respectively; and
WHEREAS, in order to induce Cheniere and the Cheniere Stockholders to enter
into the Reorganization Agreement, Young has agreed to indemnify the Company,
Cheniere and the Cheniere Stockholders from and against certain Claims (as
hereinafter defined) described below; and
WHEREAS, it is in the interest and to the direct or indirect benefit of
Young and the stockholders of the Company for Cheniere and the Cheniere
Stockholders to enter into the Reorganization Agreement and consummate the
Acquisition and the other transactions contemplated by the Reorganization
Agreement.
NOW, THEREFORE, in consideration of TEN DOLLARS ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Young agrees as follows:
1. INDEMNIFICATION. (a) Young unconditionally and irrevocably
indemnifies and agrees to indemnify and hold harmless the Company, Cheniere and
the Cheniere Stockholders and their respective officers, directors, attorneys
and other agents (the "Cheniere Indemnified Parties") from and against all
Claims (as hereinafter defined) which any Cheniere Indemnified Party may suffer,
incur, or pay arising under or incurred in connection with (i) the operation of
the business of the Company prior to the Closing, (ii) any error or omission
with respect to a material fact stated or required to be stated in the Proxy
Materials or the Registration Statement with respect to the Company prior to the
Closing and (iii) any Taxes (as defined below) (individually, a "Claim" and
collectively, the "Claims").
(b) The indemnity given by the Indemnitor is a guaranty to pay fully and
promptly all sums due with respect to any and all Claims and is not a guaranty
of collection only. None of the Company, Cheniere and the Cheniere Stockholders
shall be required to exhaust any right or remedy or take any action against any
other person or any collateral. All suretyship defenses that Young has or may
have under applicable law are hereby expressly waived and relinquished by Young.
Without limiting any of the foregoing, Young hereby waives presentment, notice
of dishonor, nonperformance or nonpayment, protest and notice of protest, any
other notice of every kind or nature and diligence in bringing suit or taking
any other action on account of nonpayment of any Claim, and consents to any
modification, amendment or addition to the Reorganization Agreement and agrees
that notwithstanding any such modification, amendment or addition, this
Agreement shall remain in full force and effect in all respects. Further, and
without limiting any of the foregoing, Young further waives the benefit of any
statute of limitations affecting Young's liability under this Agreement or the
enforcement thereof for so long as the underlying obligation is subject to being
enforced, and Young agrees that any payment of any amounts due with respect to
any Claims or other act which shall toll any statute of limitations applicable
thereto shall similarly operate to toll the statute of limitations applicable to
Young's liability under this Agreement. Young warrants and agrees that each of
the foregoing waivers are made with Young's full knowledge of their significance
and consequences, and that under the circumstances, the waivers are reasonable
and not contrary to public policy or law. If any of said waivers are determined
to be contrary to any applicable law or public policy, such waivers shall be
effective only to the maximum extent permitted by law. Young hereby agrees to
the jurisdiction of any court in which jurisdiction is obtained against Young
with respect to any Claim. Young acknowledges that there are no conditions
precedent to the effectiveness of this Agreement, and this Agreement is in full
force and effect and is binding on Young as of the date hereof.
(c) For purposes of this Agreement, "Tax" or "Taxes" means all United
States federal, state, local or foreign income, profits, franchise, sales,
property, excise, value added, estimated, stamp, alternative or add-on minimum,
environmental, withholding, and other taxes, assessments, duties, fees and
governmental charges or impositions of each and every kind, together with all
interest, penalties, and additions imposed with respect to such amounts, arising
as the result of or incurred in connection with the consummation of the
transactions contemplated by the Divestiture, including, without limitation, the
assignment
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and transfer of any asset to, or assumption of any liability by, Newco or the
distribution of any shares of Newco or the business of the Company prior to the
Closing Date or Newco after the Closing Date.
(d) Notwithstanding the foregoing, the estate of ▇▇▇▇▇ ▇▇▇▇▇ shall have
no liability under this Agreement.
2. FURTHER ASSURANCES. Young shall take such actions and sign and
deliver such other instruments and documents as may be reasonable, necessary or
appropriate to effectuate its fulfillment of the obligations described in this
Agreement.
3. AMENDMENT. No modification, waiver or termination of this
Agreement, or any part hereof, shall be effective unless made in writing and
signed by Young, the Company, Cheniere and the Cheniere Stockholders in each
instance. Receipt by any party of any money or other consideration due under
this Agreement, with or without knowledge, shall not constitute a waiver of any
provision of this Agreement.
4. ENTIRE AGREEMENT. This Agreement, together with any Exhibits and
Schedules hereto, constitutes the entire agreement between Young, the Company,
Cheniere and the Cheniere Stockholders with respect to the subject matter hereof
and supersedes all prior agreements or understandings, or communications of
Young, the Company, Cheniere and the Cheniere Stockholders relating thereto.
5. WAIVER; REMEDIES. No delay on the part of the Company, Cheniere,
the Cheniere Stockholders or Young in exercising any right, power, privilege, or
remedy hereunder shall operate as a waiver thereof or as a waiver of any other
right, power, privilege, or remedy hereunder, nor shall any single or partial
exercise of any right, power, privilege or remedy hereunder preclude any other
or future exercise hereunder. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which Cheniere, the
Cheniere Stockholders, the Company or Young hereto may otherwise have at law or
in equity.
6. NOTICES. Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally or three (3) days
after being sent by registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telecopy with oral confirmation, addressed as
follows or to such other address of which the parties may have given notice in
accordance with this paragraph 7:
If to Young:
c/o BEXY Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, President & CEO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
Hand & Hand
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Jehu Hand, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, Cheniere or the Cheniere
Stockholders:
Cheniere Energy, Inc.
Two ▇▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Breed ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Brighton, Jr., Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
7. CAPTIONS. Paragraph titles or captions contained in this Agreement
are listed only as a matter of convenience and for reference, and shall not be
construed in any way to define, limit, extend or describe the scope of this
Agreement or the intention of the provisions thereof.
8. SEVERABILITY. The invalidity of any one or more provisions hereof
or of the Reorganization Agreement shall not affect the remaining portions of
this Agreement or of the Reorganization Agreement, all of which are inserted
conditionally on their being held valid in law; and if one or more of the
provisions contained herein or therein should be valid, or should operate to
render this or the Agreement invalid, this Agreement and Reorganization
Agreement shall be construed as if such invalid provisions had not been
inserted.
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9. SURVIVAL. The obligations of Young hereunder shall survive the
consummation of the transactions contemplated by the Reorganization Agreement
for a period of three years.
IN WITNESS WHEREOF, Young has executed this Agreement as of the date set
forth on the first page of this Agreement.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
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ACKNOWLEDGED AND ACCEPTED:
CHENIERE ENERGY OPERATING CO., INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
CHENIERE ENERGY, INC.
(F/K/A BEXY COMMUNICATIONS, INC.)
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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