EXHIBIT 10.36
FORM OF INDEMNITY AGREEMENT
INDEMNITY AGREEMENT (the "Agreement"), dated as of __________________, by and
between Premcor Inc., a Delaware corporation (the "Company" or the
"Indemnitor"), and ______________________________________________ (the
"Indemnitee").
R E C I T A L S
WHEREAS, the Indemnitee is a director and/or officer of the Company and/or an
Affiliate Indemnitee (as hereinafter defined). Indemnitor and the Indemnitee
recognize the increased risk of litigation and other claims being asserted
against directors and officers in today's environment.
WHEREAS, the Bylaws of the Company require the Company to indemnify its
directors and officers as currently provided therein, and the Indemnitee is
willing to serve, or to continue to serve, as a director and/or officer of the
Company in part in reliance on such provisions.
WHEREAS, the Bylaws of the Indemnitor permit Indemnitor to purchase and maintain
insurance or to furnish similar protection or make other arrangements (any such
insurance, protection or arrangement, an "Indemnification Arrangement") on
behalf of the Indemnitee against personal liability (including, but not limited
to, providing for Advanced Amounts as hereinafter defined) asserted against the
Indemnitee or incurred by or on behalf of the Indemnitee in such capacity as a
director or officer of such Indemnitor or as an Affiliate Indemnitee, or arising
out of the Indemnitee's status as such, whether or not Indemnitor would have the
power to indemnify the Indemnitee against such liability under the provisions of
this Agreement or under the Delaware General Corporation Law (the "DGCL"), as it
may then be in effect.
WHEREAS, DGCL Section 145(f) expressly recognizes that the indemnification
provisions of the DGCL are not exclusive of any other rights to which a person
seeking indemnification may be entitled under the Certificate of Incorporation
or Bylaws of the Indemnitor, or an agreement providing for indemnification, or a
resolution of stockholders or directors, or otherwise, and the Bylaws of the
Indemnitor expressly recognize that the indemnification provisions of such
Bylaws shall not be deemed exclusive of, and shall not affect, any other rights
to which a person seeking indemnification may be entitled under any agreement,
and this Agreement is being entered into pursuant to the Bylaws of the
Indemnitor, as permitted by the DGCL.
WHEREAS, in part to provide the Indemnitee with specific contractual assurance
of substantial protection against personal liability (regardless of, among other
things, any amendment to or revocation of the aforementioned provisions of any
of the Indemnitor's Bylaws or any change in the composition of the Indemnitor's
Board of Directors or control of such Indemnitor), the Indemnitor desires to
enter into this Agreement.
WHEREAS, in order to induce the Indemnitee to serve, or to continue to serve, as
a director and/or officer of the Company and in consideration of the
Indemnitee's so serving, the Indemnitor desires (i) to hold harmless and
indemnify the Indemnitee and to make arrangements pursuant to which the
Indemnitee may be advanced or reimbursed expenses incurred by the Indemnitee in
certain proceedings, in every case to the fullest extent authorized or permitted
by the DGCL, or any other applicable law, or by any amendment thereof or other
statutory provisions authorizing or permitting such indemnification which are
adopted after the date hereof (but, in the case of any such amendment, only to
the extent that such amendment permits the Indemnitor to provide broader
indemnification rights than the DGCL, or other
applicable law, permitted Indemnitor to provide prior to such amendment) and
(ii) to maintain adequate director and officer liability insurance (including
the formation of a captive insurance company as a means of providing such
insurance).
NOW, THEREFORE, in consideration of the foregoing recitals and of the
Indemnitee's continuing to serve the Company as a director and/or officer, the
parties hereby agree as follows:
1. Indemnification. To the fullest extent allowed by law (as it exists now and
as it may be amended in the future to provide additional indemnification to the
Indemnitee), the Indemnitor shall hold harmless and indemnify the Indemnitee,
the Indemnitee's executors, administrators or assigns against any and all
expenses, liabilities and losses (including, without limitation, investigation
expenses, expert witnesses' and attorneys' fees and expenses, judgments,
penalties, fines, amounts paid or to be paid in settlement, any interest,
assessments, or other charges imposed thereon and any federal, state, local or
foreign taxes imposed as a result of actual or deemed receipt of any payment
hereunder) actually incurred by the Indemnitee (net of any related insurance
proceeds or other amounts received by the Indemnitee or paid by or on behalf of
Indemnitor on the Indemnitee's behalf in compensation of such expenses,
liabilities or losses) in connection with any actual or threatened action, suit
or proceeding, or any inquiry or investigation, whether civil, criminal,
administrative or investigative or in arbitration (including, but not limited
to, any action by or on behalf of the Company), to which the Indemnitee is a
party or participant or is threatened to be made a party or participant
("Proceeding"), as a plaintiff, defendant, respondent, witness or otherwise,
whether prior to or after the date of this Agreement, based upon, arising from,
relating to or by reason of the fact that the Indemnitee: (a) is, was, shall be
or shall have been a director and/or officer of the Company, or (b) is or was
serving, shall serve, or shall have served at the request of the Company as a
director, officer, partner, trustee, fiduciary, employee or agent ("Affiliate
Indemnitee") of another foreign or domestic corporation or non-profit
corporation, cooperative, partnership, joint venture, limited liability company,
trust, employee benefit plan, or other incorporated or unincorporated
enterprise; or in any way arising from, relating to or connected with any action
or omission to act taken by the Indemnitee in any of the foregoing capacities;
provided, however, that, except as provided in Section 9(b) hereof, Indemnitor
shall indemnify the Indemnitee in connection with a Proceeding initiated by the
Indemnitee only if such Proceeding (or part thereof) was authorized by a
majority vote of the Board of Directors of Indemnitor.
The Indemnitee shall be presumed to be entitled to such indemnification under
this Agreement upon submission of a written claim pursuant to Section 4 hereof.
Thereafter, the Indemnitor shall have the burden of proof to overcome the
presumption that the Indemnitee is so entitled. Such presumption shall only be
overcome by a judgment or other final adjudication, after all appeals and all
time for appeals has expired ("Final Determination"), which is adverse to the
Indemnitee and which establishes that the Indemnitee's acts were committed in
bad faith, or were the result of active and deliberate dishonesty, and were
material to the cause of action so adjudicated. If the Indemnitee is not wholly
successful in any 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
Indemnitor agrees to indemnify the Indemnitee to the maximum extent permitted by
law against all losses and expenses incurred by the Indemnitee in connection
with each successfully resolved claim, issue or matter. Neither the failure of
the Indemnitor (including its Board of Directors, legal counsel or stockholders)
to have made a determination prior to the commencement of such Proceeding that
indemnification of the Indemnitee is proper in the circumstances because such
person has met the applicable standard of conduct set forth in the DGCL, nor an
actual determination by Indemnitor (including its Board of Directors, its legal
counsel or its stockholders) that the Indemnitee has not met the
applicable standard of conduct, shall be a defense to any action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
The purchase, establishment or maintenance of any Indemnification Arrangement
shall not in any way diminish, restrict, limit or adversely affect the rights
and obligations of the Indemnitor or of the Indemnitee under this Agreement,
except as expressly provided herein, and the execution and delivery of this
Agreement by the Indemnitor and the Indemnitee shall not in any way diminish,
restrict, limit or adversely affect the Indemnitee's right to indemnification
from the Indemnitor or any other party or parties under any other
Indemnification Arrangement, the Certificate of Incorporation or Bylaws of the
Indemnitor, or the DGCL or otherwise.
2. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of Indemnitor or any affiliate of
Indemnitor against the Indemnitee, Indemnitee's spouse, heirs, executors, or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, or such longer period as may be
required by applicable law under the circumstances. Any claims or cause of
action of the Indemnitor or its affiliate shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action the shorter period shall
govern.
3. Insurance. Indemnitor represents that it currently maintains directors' and
officers' liability insurance underwritten by commercial insurance companies
with a limit of coverage of $75 million (plus an additional $25 million in
excess coverage for directors and officers on an individual basis), with a $1
million per-claim deductible (and no deductible for the additional individual
coverage). Indemnitor agrees to form a captive insurance company (within 90 days
of the execution of this Agreement) for the purpose of writing a trust-funded
directors' and officers' policy (the "Captive Policy", and collectively with one
or more commercial directors' and officers' insurance policies with terms no
less favorable to the Indemnitee than Indemitor's current policy, the "Minimum
Insurance Coverage") to provide additional protection to the directors and
officers of Indemnitor. Indemnitor agrees to initially fund such captive
insurance company with $3 million and, thereafter, to fund such company with $1
million annually until such time as the corpus of such company exceeds $10
million. Any funding in excess of $10 million shall be at the discretion of the
Indemnitor.
Subject only to the provisions of this Section 3, as long as the Indemnitee
shall continue to serve as a director and/or officer of Indemnitor (or shall
continue at the request of Indemnitor to serve as an Affiliate Indemnitee) and,
thereafter, as long as the Indemnitee shall be subject to any possible
Proceeding by reason of the fact that the Indemnitee was a director and/or
officer of the Company (or served in any of said other capacities), the
Indemnitor shall purchase and maintain in effect for the benefit of the
Indemnitee (or cause to be purchased and maintained in effect for the benefit of
Indemnitee), the Minimum Insurance Coverage. Indemnitor shall promptly notify
the Indemnitee of any lapse, amendment or failure to renew said Insurance
Policies or any provision thereof relating to the extent or nature of coverage
provided thereunder.
Notwithstanding the foregoing, Indemnitor shall not be required to purchase and
maintain commercial directors' and officers' insurance, to the extent
Indemnitor's Board of Directors, by a 2/3 vote thereof, determines that (i) such
insurance is not reasonably available in the market, (ii) the premium cost for
such insurance is substantially disproportionate to the amount of insurance or
(iii) the coverage is so limited by exclusions that there is insufficient
benefit provided by such insurance; provided, however, that in the event the
Board makes such a determination, then
Indemnitor shall replace the commercial insurance policies with other liability
protection that the Indemitor's Board of Directors (by a 2/3 vote thereof) deems
comparable, such as increased funding of the captive insurance company. To the
extent Indemnitor maintains one or more Insurance Policies providing directors
and officers liability insurance, 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 director or officer of Indemnitor.
Notwithstanding the foregoing, in the event of a Change in Control of
Indemnitor, Indemnitor shall, from time to time upon written request of
Indemnitee, fund such captive insurance company in an amount sufficient to
satisfy any and all expenses, liabilities and losses reasonably anticipated at
the time of each such request to be incurred pursuant to Section 1. The amount
or amounts to be deposited pursuant to the foregoing funding obligation shall be
determined by (a) the Board of Directors of Indemnitor by a 2/3 vote of a quorum
thereof consisting of directors who are not parties to such proceeding or (b) at
the election of the Indemnitee, independent legal counsel (which counsel shall
be appointed by a 2/3 of all the directors, including interested directors).
Nothing contained herein shall relieve Indemnitor of any of its obligations
under this Agreement and neither the failure of Indemnitee to request funding
nor the funding pursuant to this Section shall serve to waive, limit or
otherwise impair the rights of Indemnitee against Indemnitor for indemnification
pursuant to this Agreement.
For purposes of this Agreement, "Change of Control" of Indemnitor shall mean (a)
the consummation of (i) any consolidation, reorganization, merger or similar
transaction involving Indemnitor, other than a consolidation, reorganization,
merger or similar transaction in which the shareholders immediately prior to
such transaction own more than 50% of the combined voting power of the voting
securities of the surviving corporation, (ii) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all of the assets of Indemnitor, or (iii) the liquidation or
dissolution of Indemnitor; (b) when any person (as defined in Sections 13(d) and
14(d)(2) of the Exchange Act), other than an employee benefit plan or trust
maintained by Indemnitor or any of its subsidiaries, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of more than 25% of the voting power of Indemnitor outstanding at
the time (in one or more related or unrelated transactions)(a "Significant
Interest"), but only if at such time such interest is greater than The
Blackstone Group's beneficial ownership (as defined in Rule 13d-3 under the
Exchange Act) of the voting power of Indemnitor ("Blackstone's Interest"); or
(c) when, during any period of 24 months or less, the individuals who
constituted the Board of Directors of Indemnitor at the beginning of such period
shall cease for any reason to constitute at least a majority thereof, unless the
election or the nomination for election by the Indemnitor's shareholders, as the
case may be, of each new director during such period 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.
4. Claims for Payment. The Indemnitee shall have the right to receive from the
Indemnitor on demand or, at the Indemnitee's option, to have the Indemnitor pay
promptly on the Indemnitee's behalf, in advance of a Final Determination of a
Proceeding, all amounts payable by the Indemnitor pursuant to the terms of this
Agreement as corresponding amounts are expended or incurred by the Indemnitee in
connection with any Proceeding or otherwise (such amounts so expended or
incurred being referred to as "Advanced Amounts"). In making any claim for
payment by the Indemnitor of any amount, including any Advanced Amount, pursuant
to this Agreement, the Indemnitee shall submit to the Indemnitor a written
request for payment (a "Claim") which includes a schedule setting forth in
reasonable detail the dollar amount expended (or incurred or expected to be
expended or incurred). Each item on such schedule shall be supported by the
xxxx, agreement, or other documentation relating thereto, a copy of
which shall be appended to the schedule as an exhibit. Where the Indemnitee is
requesting Advanced Amounts, the Indemnitee hereby agrees to repay such Advanced
Amounts if a Final Determination is made that the Indemnitee is not entitled to
indemnification hereunder.
5. Section 16(b) Liability. Notwithstanding anything contained herein to the
contrary, Indemnitor shall not be liable under this Agreement to make any
payment in connection with any claim made against the Indemnitee for an
accounting of profits made from the purchase or sale by the Indemnitee of
securities of Indemnitor within the meaning of Section 16(b) of the Securities
Exchange Act of 1934, and amendments thereto, or similar provisions of any state
statutory law or common law.
6. Continuation of Indemnity. All agreements and obligations of the Indemnitor
contained herein shall continue during the period the Indemnitee is a director
and/or officer of Indemnitor (or is serving at the request of Indemnitor as an
Affiliate Indemnitee) and shall continue thereafter so long as the Indemnitee
shall be subject to any possible Proceeding by reason of the fact that the
Indemnitee was a director or officer of Indemnitor or served as such an
Affiliate Indemnitee.
7. Successors; Binding Agreement. This Agreement shall be binding on, and shall
inure to the benefit of and be enforceable by, the Indemnitor's successors and
assigns and by the Indemnitee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
Indemnitor shall require any successor or assignee (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of Indemnitor, by written agreement in form and
substance reasonably satisfactory to Indemnitor and its Board of Directors
(exclusive of any directors representing the successor or assign), expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that Indemnitor would be required to perform if no such succession or
assignment had taken place.
8. Notification and Defense of Claims. Promptly after receipt by the Indemnitee
of notice of the commencement of any Proceeding, the Indemnitee shall, if a
claim in respect thereof is to be made against Indemnitor under this Agreement,
notify Indemnitor of the commencement thereof, but the failure to so notify
Indemnitor will not relieve the Indemnitor from any liability that it may have
to the Indemnitee. With respect to any such Proceeding:
(a) Indemnitor shall be entitled to assume the defense of any Proceeding or
participate therein at its own expense; and
(b) Indemnitor shall not settle any Proceeding in any manner that would impose
any penalty or limitation on the Indemnitee without the Indemnitee's prior
written consent.
The Indemnitee shall not settle any Proceeding with respect to which the
Indemnitee has received indemnified amounts or Advanced Amounts without the
Indemnitor's prior written consent, which shall not be unreasonably withheld.
9. Enforcement. (a) Indemnitor has entered into this Agreement and assumed the
obligations imposed on Indemnitor hereby in order to induce the Indemnitee to
act as a director and/or officer of the Company or as an Affiliate Indemnitee
and acknowledges that the Indemnitee is relying upon this Agreement in serving,
or in continuing to serve, in such capacity.
(b) All expenses incurred by the Indemnitee in connection with the preparation
and submission of the Indemnitee's request for indemnification hereunder shall
be borne by the Indemnitor. In the event the Indemnitee has requested payment of
any amount under this Agreement and has
not received payment thereof within thirty (30) days of such request, the
Indemnitee may bring an action to enforce rights or collect moneys due under
this Agreement, and, if the Indemnitee is successful in such action, the
Indemnitor shall reimburse the Indemnitee for all of the Indemnitee's fees and
expenses in bringing and pursuing such action. If it is determined that the
Indemnitee is entitled to indemnification for part (but not all) of the
indemnification so requested, expenses incurred in seeking enforcement of such
partial indemnification shall be reasonably prorated among the claims, issues or
matters for which the Indemnitee is entitled to indemnification and the claims,
issues or matters for which the Indemnitee is not so entitled. The Indemnitee
shall be entitled to the advancement of such amounts to the full extent
contemplated by Section 4 hereof in connection with such Proceeding.
10. Separability. If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable, for any reason whatsoever, (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, all portions of any sections or
subsections of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not by themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby, and (ii) to
the fullest extent possible, the provisions of any section or subsections of
this Agreement containing any such provisions held to be invalid, illegal or
unenforceable shall be construed so as to give effect to the intent of the
parties that the Indemnitors (or any of them) provide protection to the
Indemnitee to the fullest extent enforceable.
11. Miscellaneous. No modification, waiver, discharge, cancellation or
termination of this Agreement shall be effective unless agreed to in writing
signed by the Indemnitee and an authorized officer of the Indemnitor. No waiver
by either party at any time of any breach by the other party of, or of
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same time or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Delaware, without giving effect to the principles of
conflicts of law thereof. The Indemnitee may bring an action seeking resolution
of disputes or controversies arising under, or in any way related to, this
Agreement in the state or federal court jurisdiction in which the Indemnitee
resides or in which the Indemnitee's place of business is located and in any
related appellate courts, and the Indemnitor hereby consents to the jurisdiction
of such courts and to such venue.
12. Notices. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when hand delivered, when received if sent by
telecopies or by same day or overnight recognized commercial carrier service, or
three days after being mailed by United States certified or registered mail,
return receipt requested, postage prepaid, as follows:
If to the Indemnitee: [Name]
[Address]
If to the Company: General Counsel
Premcor Inc.
0000 Xxxx Xxxxxx Xxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
14. Subrogation. In the event of payment to Indemnitee under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee against any other person, and Indemnitee 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.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed,
and it is effective, as of the day and year first above written.
PREMCOR INC. INDEMNITEE
By: ___________________________________ __________________
Xxxxxx X. Xxxxx
Executive Vice President, Secretary
and General Counsel
