INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Indemnification Agreement (this “Agreement”) is made and entered into as of
________ __, 2011, by and between Xxxxxx Geophysical Company, a Texas corporation (the
“Company”), and ________________ (the “Indemnitee”).
WHEREAS, qualified persons are reluctant to serve organizations as directors or officers or in
other capacities unless they are provided with adequate protection against risks of claims and
actions against them arising out of their service to and activities on behalf of such
organizations;
WHEREAS, the parties hereto recognize that the legal risks and potential liabilities, and the
threat thereof, associated with lawsuits filed against persons serving the Company and/or its
subsidiaries, and the resultant substantial time, expense and anxiety spent and endured in
defending lawsuits bears no reasonable relationship to the compensation received by such persons,
and thus poses a significant deterrent and increased reluctance on the part of experienced and
capable individuals to serve the Company and/or its subsidiaries;
WHEREAS, the uncertainties related to obtaining adequate insurance and indemnification have
increased the difficulty of attracting and retaining such persons;
WHEREAS, Chapter 8 of the Texas Business Organizations Code (the “TBOC”) of the State
of Texas, under which law the Company is organized, empowers a corporation organized in Texas to
indemnify persons who serve as directors and/or officers of the corporation, or persons who serve
at the request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise;
WHEREAS, the Bylaws of the Company permit indemnification to the fullest extent permitted by
applicable law;
WHEREAS, it is reasonable, prudent and necessary for the Company to contractually agree to
indemnify such persons to the fullest extent permitted by law, so that such persons will serve or
continue to serve the Company and/or its subsidiaries free from undue concern that they will not be
adequately indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve and to take on additional
service for and on behalf of the Company on the condition that the Indemnitee is indemnified
according to the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises and of the Indemnitee’s agreement to provide
services to the Company and/or its subsidiaries and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Certain Definitions. For purposes of this Agreement:
(a) “Agreement” shall have the meaning ascribed to such term in the
preamble.
(b) “Board” means the Board of Directors of the Company.
(c) “Change in Control” means a change in control of the Company
occurring after the date hereof in any of the following circumstances: (i) there
shall have occurred an event required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item on any similar
schedule or form) promulgated under the Exchange Act, whether or not the Company is
then subject to such reporting requirement; (ii) any “person” (as such term is used
in Section 13(d) and 14(d) of the Exchange Act), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or a
corporation or other entity owned directly or indirectly by the shareholders of the
Company in substantially the same proportions as their ownership of stock of the
Company, shall have become the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company representing
20% or more of the combined voting power of the Company’s then outstanding voting
securities without prior approval of at least two-thirds of the members of the Board
in office immediately prior to such person attaining such percentage interest; (iii)
the Company is a party to a merger, consolidation, share exchange, sale of assets or
other reorganization, or a proxy contest, as a consequence of which members of the
Board in office immediately prior to such transaction or event constitute less than
a majority of the Board thereafter; or (iv) during any fifteen-month period,
individuals who at the beginning of such period constituted the Board (including for
this purpose any new director whose election or nomination for election by the
Company’s shareholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such period)
cease for any reason to constitute at least a majority of the Board.
(d) “Company” shall have the meaning ascribed to such term in the
preamble.
(e) “Disqualifying Event” shall have the meaning ascribed to such term
in Section 6(d).
(f) “Exchange Act” means the Securities Exchange Act of 1934, as
amended.
(g) “Expenses” means any judgment, penalty, settlement, fine, excise or
similar tax and 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
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prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness or otherwise participating in a Proceeding.
(h) “Indemnifiable Event” means any event or occurrence related to the
fact that the Indemnitee is or was serving as a member of the Board and/or an
officer of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
(i) “Indemnitee” shall have the meaning ascribed to such term in the
preamble.
(j) “Special Legal Counsel” means a law firm, or member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor in
the five years previous to his selection or appointment has been, retained to
represent: (i) the Company or the Indemnitee in any matter material to either such
party; (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder; or (iii) the beneficial owner, directly or indirectly, of
securities of the Company representing 30% or more of the combined voting power of
the Company’s then outstanding voting securities. Notwithstanding the foregoing,
the term “Special Legal Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing in the State of Texas,
would have a conflict of interest in representing either the Company or the
Indemnitee in an action to determine the Indemnitee’s rights to indemnification
under this Agreement.
(k) “Proceeding” includes (i) any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution proceeding, investigation,
administrative hearing and any other proceeding, whether civil, criminal,
administrative, arbitrative, investigative or other, (ii) any appeal of an action or
proceeding described in (i), or (iii) any inquiry or investigation, whether
conducted by or on behalf of the Company, a subsidiary of the Company or any other
party, formal or informal, that the Indemnitee in good faith believes might lead to
the institution of an action or proceeding described in (i), except one initiated by
the Indemnitee (other than as provided pursuant to Section 8).
(l) “TBOC” shall have the meaning ascribed to such term in the
recitals.
2. Indemnification Arrangement. In the event the 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) an Indemnifiable Event,
to the fullest extent permitted by the TBOC or other applicable law as the same may exist or be
hereinafter amended (by statute or judicial decision) (but in the case of any such amendment, with
respect to matters occurring before such amendment, only to the extent that such amendment permits
the Company to provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment), the Company shall, subject to
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and in accordance with the provisions of Section 6, indemnify and hold harmless the Indemnitee
against any and all Expenses of such Proceeding as soon as practicable but in any event no later
than (a) in the case of an initial written request for indemnification in connection with a
Proceeding, five days after a determination has been made, or is deemed to have been made, that the
Indemnitee is entitled to indemnification and (b) in the case of a written request for
indemnification made pursuant to Section 5 in connection with a Proceeding for which a
determination has been made that the Indemnitee is entitled to indemnification in connection with
such Proceeding, five days after such written request.
3. Advancement or Reimbursement of Expenses. The rights of the Indemnitee provided
under Section 2 shall include, but not be limited to, the right to be indemnified and to have all
Expenses advanced (including the payment of Expenses before final disposition of a Proceeding) in
all Proceedings to the fullest extent permitted, or not prohibited, by the TBOC or other applicable
law. In addition, to the extent the Indemnitee is, by reason of (or arising in part out of) an
Indemnifiable Event, a witness or otherwise participates in any Proceeding at a time when he is not
named a defendant or respondent in the Proceeding, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith. The Indemnitee
shall be advanced Expenses, within five days after any request for such advancement, to the fullest
extent permitted, or not prohibited, by Chapter 8 of the TBOC; provided that the Indemnitee has
provided to the Company all affirmations, acknowledgments, representations and undertakings that
may be required of the Indemnitee by Chapter 8 of the TBOC.
4. No Settlement without Consent. The Company shall not be liable to indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected
without its written consent. The Company shall not settle any action or claim in any manner which
would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent.
Neither the Company nor the Indemnitee will unreasonably withhold or delay their consent to any
proposed settlement.
5. Request for Indemnification. To obtain indemnification as herein provided, the
Indemnitee shall submit to the Secretary of the Company a written claim or request. Such written
claim or request shall contain sufficient information to reasonably inform the Company about the
nature and extent of the indemnification or advance sought by the Indemnitee. The Secretary of the
Company shall promptly advise the Board of such request.
6. Determination of Request.
(a) Upon written request to the Company by the Indemnitee for indemnification
pursuant to this Agreement, a determination, if required by applicable law, with
respect to the Indemnitee’s entitlement thereto shall be made in accordance with
Section 8.103(a)(1) or (2) of the TBOC; provided, however, that notwithstanding the
foregoing, if a Change in Control shall have occurred, such determination shall be
made by a Special Legal Counsel selected by the Board, unless the Indemnitee shall
request (at the time the Indemnitee submits the written request for indemnification)
that such determination be made in accordance with Section 8.103(a)(1) or (2) of the
TBOC.
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(b) If entitlement to indemnification is to be determined by a Special Legal
Counsel, the Company shall furnish notice to the Indemnitee within ten days after
receipt of a claim of or request for indemnification, specifying the identity and
address of the Special Legal Counsel and a certification by the Special Legal
Counsel that the Special Legal Counsel has reviewed and is in compliance with the
requirements to be a Special Legal Counsel. The Indemnitee may, within seven days
after receipt of such written notice of selection, deliver to the Company a written
objection to such selection. Such objection may be asserted only on the ground that
the Special Legal Counsel selected does not meet the requirements of a Special Legal
Counsel as defined in this Agreement, and the objection shall set forth with
particularity the factual basis for that assertion. If there is an objection to the
selection of the Special Legal Counsel, either the Company or the Indemnitee may
petition the Court for a determination that the objection is without a reasonable
basis and/or for the appointment of a Special Legal Counsel selected by the Court.
The Company shall pay any and all reasonable fees and expenses of the Special Legal
Counsel incurred in connection with any such determination. If a Change in Control
shall have occurred, the Indemnitee shall be presumed (except as otherwise expressly
provided in this Agreement) to be entitled to indemnification under this Agreement
upon submission of a request to the Company for indemnification, and thereafter the
Company shall have the burden of proof in overcoming that presumption in reaching a
determination contrary to that presumption. The presumption shall be used by the
Special Legal Counsel, or such 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 the investigation, review and analysis of the
Special Legal Counsel or such other person or persons convinces him or them by clear
and convincing evidence that the presumption should not apply.
(c) The Indemnitee will cooperate with the person or persons making the
determination under this Section 6 with respect to the Indemnitee’s entitlement to
indemnification under this Agreement, including providing to such person or persons,
on reasonable advance request, any documentation or information that is: (i) not
privileged or otherwise protected from disclosure; (ii) reasonably available to
Indemnitee; and (iii) reasonably necessary to that determination.
(d) Any determination of the Indemnitee’s entitlement to indemnification to be
made pursuant to this Section 6 shall be made, and the Indemnitee shall be notified
of such determination, not later than 20 days after receipt by the Secretary of the
Company of the Indemnitee’s written claim for indemnification; provided, however,
that in the case of a determination to be made by Special Legal Counsel the
selection of whom is the subject of an existing objection, such determination, and
the Indemnitee’s notification of such determination, shall be made not later than 20
days after the selection of the Special Legal Counsel is finally determined.
Notwithstanding anything herein to
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the contrary, if the person or persons empowered under this Section 6 to
determine entitlement to indemnification have not made a determination within the
applicable period set forth in this Section 6(d), the Indemnitee shall be deemed to
be entitled to indemnification unless the Company establishes that a Disqualifying
Event has occurred. Subject to applicable law, determinations of entitlement to
indemnification made, or deemed to have been made, in accordance with the provisions
of this Section 6, shall be conclusive, final and binding on the parties hereto
unless, in the event the Company has previously determined to indemnify the
Indemnitee, the Company establishes as provided in the final sentence of this
Section 6 that: (i) the Indemnitee misrepresented or failed to disclose a material
fact in making the request for indemnification; or (ii) such indemnification is
prohibited by applicable law (each event described in subclause (i) or (ii) of this
Section 6, a “Disqualifying Event”). Notwithstanding the foregoing, the
Company may bring an action, in an appropriate court in the State of Texas or any
other court of competent jurisdiction, contesting the right of the Indemnitee to
receive indemnification hereunder due to the occurrence of a Disqualifying Event;
provided, however, that in any such action the Company will have the burden of
proving the occurrence of such Disqualifying Event.
7. Effect of Certain Proceedings. The termination of any Proceeding or of any matter
therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of the Indemnitee to indemnification or create a presumption that (a)
the Indemnitee did not conduct himself in good faith and in a manner which he reasonably believed,
in the case of conduct in his official capacity, to be in the best interests of the Company, or, in
all other cases, that at least his conduct was not opposed to the Company’s best interests, or (b)
with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that
his conduct was unlawful.
8. Expenses of Enforcement of Agreement. The Indemnitee shall be entitled to seek an
adjudication to enforce his rights under, or to recover damages for breach of rights created under
or pursuant to, this Agreement either, at the Indemnitee’s option, in (a) an appropriate court of
the State of Texas or any other court of competent jurisdiction, or (b) an arbitration to be
conducted by a single arbitrator, selected by mutual agreement of the Company and the Indemnitee
(or, failing such agreement by the then sitting Chief Judge of the United States District Court for
the appropriate jurisdiction), pursuant to the commercial arbitration rules of the American
Arbitration Association. In the event that the Indemnitee seeks any such judicial adjudication or
arbitration award to enforce his rights under, or to recover damages for breach of rights created
under or pursuant to, this Agreement, the Indemnitee shall be entitled to recover from the Company,
and shall be indemnified by the Company against, any and all Expenses actually and reasonably
incurred by him in such judicial adjudication but only if he prevails therein. If it shall be
determined in said judicial adjudication that the Indemnitee is entitled to receive part but not
all of the indemnification or advancement of Expenses sought, the Expenses incurred by the
Indemnitee in connection with such judicial adjudication shall be reasonably prorated in good faith
by counsel for the Indemnitee. Notwithstanding the foregoing, if a Change in Control shall have
occurred, the Indemnitee shall be entitled to indemnification
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under this Section 8 regardless of whether the Indemnitee ultimately prevails in such judicial
adjudication.
9. Common Attorney. Notwithstanding the obligation of the Company to indemnify the
Indemnitee against Expenses pursuant to Section 2, in the event there is a Proceeding by reason of
(or arising in part out of) an Indemnifiable Event against several persons, including the
Indemnitee, who have a right of indemnification against the Company with respect to Expenses
relating to such Proceeding and who have totally common interests such that their goals are
identical and there are no conflicts-of-interest among them, then such group of persons shall, by
majority vote of such persons, select a single attorney or law firm to serve as the sole and
exclusive legal counsel for all of the members of such group (including the Indemnitee). In the
event the Indemnitee acts independently by retaining the legal services of any other attorney or
law firm to additionally or separately represent him, all Expenses relating to such independently
retained attorney or law firm shall be the sole responsibility of the Indemnitee.
10. Nonexclusive Rights; Subsequent Change in Law. 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 the Indemnitee may at any time be entitled under applicable law, the
articles of incorporation of the Company, the Bylaws of the Company, agreement, insurance,
arrangement, a vote of shareholders or a resolution of directors, or otherwise. To the extent that
a change in the TBOC or other applicable law (whether by statute or judicial decision) permits
greater indemnification by agreement than would be afforded currently under the Company’s articles
of incorporation or bylaws and this Agreement, it is the intent of the parties hereto that the
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
11. D&O Liability Insurance. The Company shall from time to time make a good faith
determination whether or not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing the directors and officers of
the Company or its subsidiaries or affiliates, with coverage for losses incurred in connection with
their services to the Company or its subsidiaries or affiliates or to ensure the Company’s
performance of its indemnification obligations under this Agreement. Among other considerations,
the Company will weigh the costs of obtaining such insurance coverage against the protection
afforded by such coverage. To the extent the Company maintains an insurance policy or policies
providing directors’ and/or officers’ liability insurance, the 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 of the Company’s directors and/or officers. The Company shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that the Indemnitee has otherwise actually received such payment under any bylaws, insurance
policy, contract, agreement or otherwise.
12. No Employment Rights. Nothing in this Agreement is intended to create in the
Indemnitee any right to continued service as a director and/or officer with the Company.
13. Amendments; Waiver. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties hereto. No
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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.
14. 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, who
shall execute all papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
15. Term. This Agreement shall be effective from and after the date hereof, and shall
continue until and terminate upon the later of: (a) the sixth anniversary after the Indemnitee has
ceased to be a member of the Board and/or an officer of the Company or otherwise hold a position
that could give rise to an Indemnifiable Event or (b) the final termination or resolution of all
Proceedings with respect to which the Company is indemnifying the Indemnitee against any and all
Expenses relating to such Proceeding pursuant to the terms of this Agreement that are commenced
prior to such six-year anniversary.
16. Notification and Defense of Claims. The Indemnitee agrees to notify the Company
promptly in writing upon being served with any summons, citation, subpoena, complaint, indictment,
information, or other document relating to any matter which may be subject to indemnification
hereunder, whether civil, criminal, or investigative; provided. however, that the failure of the
Indemnitee to give such notice to the Company shall not adversely affect the Indemnitee’s rights
under this Agreement except to the extent the Company has been materially prejudiced as a direct
result of such failure. Nothing in this Agreement shall constitute a waiver of the Company’s right
to seek participation at its own expense in any Proceeding which may give rise to indemnification
hereunder.
17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors or 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), spouses, heirs, executors and
personal or legal representatives. This Agreement shall continue in effect regardless of whether
the Indemnitee continues to serve as a director and/or officer of the Company.
18. 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) is held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable in any respect, and the validity and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired and shall
remain enforceable to the fullest extent permitted by law. To the fullest extent possible, the
provisions of this Agreement shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
19. Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and
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interpreted in accordance with the laws of the State of Texas, without giving effect to
conflicts of law provisions thereof.
20. Notice. All notices, demands and other communications required or permitted under
this Agreement shall be made in writing and shall be deemed to have been duly received upon actual
receipt if delivered by hand, against receipt, or mailed, postage prepaid, certified or registered
mail, return receipt requested, and addressed to the Company at:
Xxxxxx Geophysical Company
000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Secretary
000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Secretary
and to Indemnitee at the address set forth on the signature page attached hereto.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth
above.
| XXXXXX GEOPHYSICAL COMPANY | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INDEMNITEE | ||||||
| Name: | ||||||
| Address: | ||||||
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