ALPHA NATURAL RESOURCES, INC. INDEMNIFICATION AGREEMENT
Exhibit 10.37
THIS INDEMNIFICATION AGREEMENT
(this "Agreement")
is made as of , 2009,
by and between Alpha Natural Resources, Inc., a Delaware corporation (the "Company"),
and ______________ (the "Indemnitee").
RECITALS:
A. It
is essential that the Company retain and attract as directors and officers the
most capable persons available.
B. The
Indemnitee is (or is being elected as) a director and/or officer of the Company
and in that capacity is (or will be) performing a valuable service for the
Company.
C. The
Company's Amended and Restated Bylaws (the "Bylaws")
contain a provision which provides for indemnification of and advancement of
expenses to the directors and officers of the Company for liabilities and
expenses they incur in their capacities as such, and the Bylaws and Section 145
of the General Corporation Law of the State of Delaware ("DGCL")
provide that they are not exclusive of any other rights to indemnification and
advancement of expenses.
D. In
recognition of Indemnitee's need for protection against personal liability in
order to enhance Indemnitee's service and continued service to the Company in an
effective manner, the potential difficulty in obtaining satisfactory Directors
and Officers Liability Insurance ("D&O
Insurance") coverage, and Indemnitee's reliance on the Bylaws, and in
part to provide Indemnitee with specific contractual assurance that the
protection promised by the Bylaws will be available to Indemnitee (regardless
of, among other things, any amendment to or revocation of the Bylaws or any
change in the composition of the Company's Board of Directors or acquisition
transaction relating to the Company), the Company desires to provide in this
Agreement for the indemnification of and the advancing of expenses to Indemnitee
to the fullest extent permitted by law and as set forth in this Agreement, and,
to the extent insurance is maintained, for the continued coverage of Indemnitee
under the Company's D&O Insurance policies.
E. The
Indemnitee is willing to serve and/or to continue to serve, the Company, only on
the condition that the Company furnish the indemnity provided for
herein.
NOW, THEREFORE, in
consideration of Indemnitee's service and/or continuing to serve the Company
directly, or, at its request, another enterprise and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Definitions.
(a) A
"Change in
Control" shall be
deemed to occur upon the earliest to occur after the date of this Agreement of
any of the following events:
(i) any merger,
consolidation or business combination in which the stockholders of Alpha
immediately prior to the merger, consolidation or business combination do not
own at least a majority of the outstanding equity interests of the surviving
parent entity;
(ii) the
sale of all or substantially all of the Company’s assets in a single transaction
or a series of related transactions;
(iii) the
acquisition of beneficial ownership or control of (including, without
limitation, power to vote) a majority of the outstanding common stock of the
Company by any person or entity (including a "group" as defined by or under
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended);
(iv) the
stockholders of the Company approve any plan for the dissolution or liquidation
of the Company; or
(v) a contested
election of directors, as a result of which or in connection with which the
persons who were directors of the Company before such election or their nominees
cease to constitute a majority of the Company’s Board.
(b) "Corporate
Status" describes the status of a person who is or was a director,
trustee, general partner, managing member, officer, employee, agent or fiduciary
of the Company.
(c) "Disinterested
Director" means a director of the Company who is not and was not a party
to the Proceeding in respect of which indemnification is sought by
Indemnitee.
(d) "Expenses"
include all reasonable attorneys' fees, retainers, court costs, transcript
costs, fees and costs 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,
investigating, being or preparing to be a witness in, or otherwise participating
in, a Proceeding. Expenses also include (i) Expenses incurred in connection
with any appeal resulting from any Proceeding, including without limitation the
premium, security for, and other costs relating to any cost bond, supersedeas
bond or other appeal bond or their equivalent, and (ii) for purposes of
Section 12(d), Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee's rights under this
Agreement or under any D&O Insurance policies maintained by the Company.
Expenses, however, shall not include amounts paid in settlement by Indemnitee or
the amount of judgments or fines against Indemnitee.
(e) "Independent
Counsel" means a law firm, or a partner or 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
Indemnitee in any matter material to either such party (other than as
Independent Counsel with respect to matters concerning Indemnitee under this
Agreement or as Independent Counsel with respect to matters concerning other
indemnitees under other indemnification agreements), 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 Indemnitee in an action to determine Indemnitee's rights under this
Agreement.
(f) "Interested
Stockholder" means any person (other than the Company or any subsidiary
of the Company and other than any profit sharing, employee stock ownership, or
other employee benefit plan of the Company or any subsidiary of the Company or
any trustee of or fiduciary with respect to any such plan when acting in such
capacity) who or which:
(i) is
at such time the beneficial owner, directly or indirectly, of more then fifteen
percent (15%) of the voting power of the outstanding common stock of the
Company;
(ii) was
at any time within the two-year period immediately prior to such time the
beneficial owner, directly or indirectly, of more than fifteen percent (15%) of
the voting power of the then outstanding common stock of the Company;
or
(iii) is
at such time an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of common stock of the Company which were at any time
within the two-year period immediately prior to such time beneficially owned by
any Interested Stockholder, if such assignment or succession has occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933, as
amended.
(g) A
"Potential
Change of Control" shall occur if:
(i) the
Company enters into an agreement or arrangement the consummation of which would
result in the occurrence of a Change in Control;
(ii) any
Person (including the Company) publicly announces an intention to take or to
consider taking actions which if consummated would constitute a Change in
Control; or
(iii) the
Board of Directors of the Company adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change of Control has
occurred.
(h) "Proceeding"
means any threatened, pending or completed action, suit, arbitration, mediation,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or proceeding, whether brought in the right of the Company or otherwise
and whether of a civil, criminal, administrative or investigative nature,
including any appeal therefrom and including without limitation any such
Proceeding pending as of the date of this Agreement, in which Indemnitee was, is
or will be involved as a party, a potential party, a non-party witness or
otherwise by reason of (i) the fact that Indemnitee is or was a director or
officer of the Company, (ii) any action taken by Indemnitee or any action
or inaction on Indemnitee's part while acting as a director or officer of the
Company, or (iii) the fact that he or she is or was serving at the request
of the Company as a director, officer or trustee of another corporation,
partnership, joint venture, trust or other enterprise, in each case whether or
not serving in such capacity at the time any liability or Expense is incurred
for which indemnification or advancement of expenses can be provided under this
Agreement.
(i) "Unaffiliated
Director" means any member of the Board of Directors of the Company who
is unaffiliated with, and not a representative of, an Interested Stockholder and
who was a member of the Board of Directors prior to the time that the Interested
Stockholder became an Interested Stockholder or became a member subsequently to
fill a vacancy created by an increase in the size of the Board of Directors and
did receive the favorable vote of two-thirds (2/3) of the Disinterested
Directors in connection with being nominated for election by the stockholders to
fill such vacancy or in being elected by the Board of Directors to fill such
vacancy, and any successor of a Disinterested Director who is unaffiliated with,
and not a representative of, the Interested Stockholder and is recommended or
elected to succeed a Disinterested Director by a majority of the Disinterested
Directors then on the Board of Directors.
Reference
to "other
enterprises" shall include employee benefit plans and administrative
committees thereof; references to "fines"
shall include any excise taxes assessed on a person with respect to any employee
benefit plan; references to "serving
at the request of the Company" shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; a person who acted in
good faith and in a manner he or she reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not
opposed to the best interests of the Company" as referred to in this
Agreement; references to "to the
fullest extent permitted by applicable law" shall include, but not be
limited to: (i) the fullest extent permitted by the provision of the DGCL that
authorizes or contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the DGCL and (ii)
the fullest extent authorized or permitted by any amendments to or replacements
of the DGCL adopted after the date of this Agreement that increase the extent to
which a corporation may indemnify its officers and directors.
2. Indemnity
in Third-Party Proceedings. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 2 if
Indemnitee is, or is threatened to be made, a party to or a participant in any
Proceeding, other than a Proceeding by or in the right of the Company to procure
a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with
such Proceeding or any claim, issue or matter therein, if Indemnitee acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or her conduct was
unlawful.
3. Indemnity
in Proceedings by or in the Right of the Company. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is, or is threatened to be made, a party to or a participant in any
Proceeding by or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest
extent permitted by applicable law against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Company. No indemnification for Expenses shall be made
under this Section 3 in respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged by a court of competent jurisdiction to be
liable to the Company, unless and only to the extent that the Delaware Court of
Chancery or any court in which the Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification for such expenses as the Delaware Court of Chancery or such
other court shall deem proper.
4. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful. To the extent
that Indemnitee is a party to or a participant in and is successful (on the
merits or otherwise) in defense of any Proceeding or any claim, issue or matter
therein, the Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
therewith. To the extent permitted by applicable law, if Indemnitee is not
wholly successful in such Proceeding but is successful, on the merits or
otherwise, in defense of one or more but less than all claims, issues or matters
in such Proceeding, the Company shall indemnify Indemnitee to the fullest extent
permitted by applicable law against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section, 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. Indemnification
for Expenses of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee, by reason of his or her Corporate
Status, is to be a witness or to be interviewed in any threatened, pending or
completed action, suit, arbitration, mediation, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or proceeding to which
Indemnitee is not a party, Indemnitee shall be indemnified to the fullest extent
permitted by applicable law against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection
therewith.
6. Additional
Indemnification. In the event that applicable law
permits indemnification in addition to the indemnification provided in Sections
2, 3 and 4, the Company shall indemnify Indemnitee to the fullest extent
permitted by applicable law if Indemnitee is, or is threatened to be made, a
party to or a participant in any Proceeding (including a Proceeding by or in the
right of the Company to procure a judgment in its favor) against all Expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Indemnitee or on his or her behalf in connection with the Proceeding or any
claim, issue or matter therein. To the extent that a change in
Delaware law, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently
under the Company's Amended and Restated Certificate of Incorporation
("Certificate of Incorporation") and Bylaws and this Agreement, it is the intent
of the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change, subject to the restrictions expressly set
forth herein or therein. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify the Indemnitee for the portion of such Expenses to
which the Indemnitee is entitled.
7. Contribution. To
the fullest extent permissible under applicable law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee, then in respect of
any actual or threatened proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such proceeding) the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for Expenses, judgments, fines or amounts paid or to be paid in
settlement, in connection with any claim relating to an indemnifiable event
under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect
(i) the relative benefits received by the Company and Indemnitee as a
result of the event(s) and transaction(s) giving rise to such Proceeding; and
(ii) the relative fault of Indemnitee and the Company (and its other
directors, officers, employees and agents) in connection with such event(s) and
transaction(s).
8. Notification
and Defense of Claim.
(a) Indemnitee
shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses as soon as
reasonably practicable following the receipt by Indemnitee of written notice
thereof. The written notification to the Company shall include a description of
the nature of the Proceeding and the facts underlying the Proceeding. The
failure by Indemnitee to notify the Company will not relieve the Company from
any liability which it may have to Indemnitee hereunder or otherwise than under
this Agreement, and any delay in so notifying the Company shall not constitute a
waiver by Indemnitee of any rights. With respect to any Proceeding as
to which the Indemnitee has so notified the Company:
(i) The
Company will be entitled to participate therein at its own expense;
and
(ii) Except
as otherwise provided below, the Company may assume the defense thereof, with
counsel reasonably satisfactory to the Indemnitee. After the Company notifies
the Indemnitee of its election to so assume the defense, the Company will not be
liable to the Indemnitee under this Agreement for any legal Expenses
subsequently incurred by the Indemnitee in connection with the defense, other
than legal Expenses relating to the reasonable costs of investigation, including
an investigation in connection with determining whether there exists a conflict
of interest of the type described in clause (ii) of this paragraph, or as
otherwise provided in this paragraph. The Indemnitee shall have the right to
employ his or her counsel in such action, suit or proceeding but the fees and
expenses of such counsel incurred after the Company notifies the Indemnitee of
its assumption of the defense shall be at the expense of the Indemnitee unless
(i) the Company authorizes the Indemnitee's employment of counsel,
provided, that following a Change in Control, the Indemnitee shall be entitled
to employ his or her own counsel at the Company's expense after giving not less
than 30 days' notice to the Company unless the Company has Disinterested
Directors and a majority of the Disinterested Directors determine that the
Indemnitee's interests are adequately represented by the counsel employed by the
Company; (ii) the Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and the Indemnitee in the conduct
of the defense or (iii) the Company shall not have employed counsel to
assume the defense of such action, 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 action, suit or proceeding brought
by or on behalf of the Company or as to which the Indemnitee shall have made the
conclusion described in clause (ii) of this paragraph.
(b) The
Company shall not be obligated to indemnify the Indemnitee under this Agreement
for any amounts paid in settlement of any action or claim 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 shall
unreasonably withhold their consent to any proposed settlement.
9. Procedure for
Indemnification.
(a) To
obtain indemnification, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and information as is
reasonably available to Indemnitee and as is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification following
the final disposition of such Proceeding. The Company shall, as soon as
reasonably practicable after receipt of such a request for indemnification,
advise the Board of Directors that Indemnitee has requested
indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to Section 9(a),
a determination, if required by applicable law, with respect to Indemnitee's
entitlement thereto shall be made in the specific case (i) if a Change in
Control shall have occurred, by Independent Counsel in a written opinion to the
Company's Board of Directors, a copy of which shall be delivered to Indemnitee
or (ii) if a Change in Control shall not have occurred, (A) by a
majority vote of the Disinterested Directors, even though less than a quorum of
the Company's Board of Directors, (B) by a committee of Disinterested
Directors designated by a majority vote of the Disinterested Directors, even
though less than a quorum of the Company's Board of Directors, (C) if there
are no such Disinterested Directors or, if such Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Company's Board of
Directors, a copy of which shall be delivered to Indemnitee or (D) if so
directed by the Company's Board of Directors, by the stockholders of the
Company. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within sixty (60) days
after such determination. Indemnitee shall cooperate with the person, persons or
entity making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements) reasonably
incurred by Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company, to the extent permitted
by applicable law.
(c) In
the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(b), the Independent Counsel shall
be selected as provided in this Section 9(c). If a Change in Control shall
not have occurred, the Independent Counsel shall be selected by the Company's
Board of Directors, and the Company shall give written notice to Indemnitee
advising him or her of the identity of the Independent Counsel so selected. If a
Change in Control shall have occurred, the Independent Counsel shall be selected
by Indemnitee (unless Indemnitee shall request that such selection be made by
the Company's Board of Directors, in which event the preceding sentence shall
apply), and Indemnitee shall give written notice to the Company advising it of
the identity of the Independent Counsel so selected. In either event, Indemnitee
or the Company, as the case may be, may, within ten (10) days after such written
notice of selection shall have been given, deliver to the Company or to
Indemnitee, as the case may be, a written objection to such selection; provided, however, that 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 1
of this Agreement, and the objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If such written objection
is so made and substantiated, the Independent Counsel so selected may not serve
as Independent Counsel unless and until such objection is withdrawn or a court
has determined that such objection is without merit. If, within twenty (20) days
after the later of (i) submission by Indemnitee of a written request for
indemnification pursuant to Section 9(a) hereof and (ii) the final
disposition of the Proceeding, the parties have not agreed upon an Independent
Counsel, either the Company or Indemnitee may petition a court of competent
jurisdiction for resolution of any objection which shall have been made by the
Company or Indemnitee to the other's selection of Independent Counsel and for
the appointment as Independent Counsel of a person selected by the court or by
such other person as the court shall designate, and the person with respect to
whom all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 9(b) hereof. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 12(a) of this
Agreement, the Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing),
(d) The
Company agrees to pay the reasonable fees and expenses of any Independent
Counsel and to fully indemnify such counsel against any and all Expenses,
claims, liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
10. Advancement
of Expenses; Procedure for Advances. The Company shall advance, to the
extent not prohibited by law, the Expenses incurred by Indemnitee in connection
with any Proceeding. Advances shall be unsecured and interest free
and made without regard to Indemnitee's ability to repay such advances.
Indemnitee hereby undertakes to repay any advance to the extent that it is
ultimately determined that Indemnitee is not entitled to be indemnified by the
Company. To obtain advances of Expenses, Indemnitee shall
submit from time to time to the Company a written request requesting such
advances and shall provide copies of invoices received by Indemnitee in
connection with such Expenses but, in the case of invoices in connection with
legal services, any references to legal work performed or to expenditure made
that Indemnitee's lawyers believe would likely cause Indemnitee to waive any
privilege accorded by applicable law may be redacted from the copy of the
invoice submitted to the Company (in which case, Indemnitee shall also submit a
letter addressed to the Company from such lawyers to the effect that they
believe submission of the redacted information would likely cause Indemnitee to
waive a privilege accorded by applicable law). Upon receipt of a such
a request for an advance of Expenses along with copies of the related invoices
(and, if applicable, a letter from Indemnitee's lawyers with respect to
redactions on the legal invoice(s)), Company shall advance the Expenses to
Indemnitee as soon as reasonably practicable, but in any event no later than
twenty (20) days, after such receipt by the Company. This
Section 10 shall not apply to any claim made by Indemnitee for which
indemnity is excluded pursuant to Section 16 of this Agreement.
11. Maintenance
of Insurance; Funding.
(a) The
Company represents that a summary of the terms of the D&O Insurance in
effect as of the date of this Agreement is attached hereto as Exhibit A
(the "Insurance
Policies"). Subject only to the provisions of
Section 11(b) hereof, the Company agrees that, so long as Indemnitee
shall continue to serve as an officer or director of the Company (or shall
continue at the request of the Company to serve as a director, officer,
employee, trustee or representative of another corporation, partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan) and thereafter so long as Indemnitee shall be subject to
any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative, by reason of the fact that
Indemnitee was a director or officer of the Company (or served in any of said
other capacities), the Company shall purchase and maintain in effect for the
benefit of Indemnitee one or more valid, binding and enforceable policy or
policies of D&O Insurance providing coverage at least comparable to that
provided pursuant to the Insurance Policies.
(b) The
Company shall not be required to maintain said policy or policies of D&O
Insurance in effect if, in the reasonable, good faith business judgment of the
then Board of Directors of the Company (i) the premium cost for such
insurance is substantially disproportionate to the amount of coverage,
(ii) the coverage provided by such insurance is so limited by exclusions
that there is insufficient benefit from such insurance or (iii) said
insurance is not otherwise reasonably available; provided, however, that in the
event the then Board of Directors makes such a judgment, the Company shall
purchase and maintain in force a policy or policies of D&O Insurance in the
amount and with such coverage as the then Board of Directors determines to be
reasonably available. Notwithstanding the general provisions of this
Section 11(b), following a Change in Control, any decision not to maintain
any policy or policies of D&O Insurance or to reduce the amount or coverage
under any such policy or policies shall be effective only if there are
Disinterested Directors (as defined in Section 1(c) hereof) and shall
require the concurrence of a majority of the Disinterested
Directors.
(c) If
and to the extent the Company, acting under Section 11(b), does not
purchase and maintain in effect the policy or policies of D&O Insurance
described in Section 11(a), the Company shall indemnify and hold harmless
the Indemnitee to the full extent of the coverage which would otherwise have
been provided by such policies. The rights of the Indemnitee hereunder
shall be in addition to all other rights of Indemnitee under the remaining
provisions of this Agreement.
(d) In
the event of a Potential Change of Control and if and to the extent the Company
is not required to maintain in effect the policy or policies of D&O
Insurance described in Section 11(a) pursuant to the provisions of
Section 11(b), the Company shall, upon written request of Indemnitee,
create a "Trust" for the benefit of Indemnitee, and from time to time, upon
written request by Indemnitee, shall fund such Trust in an amount sufficient to
pay any and all Expenses and any and all liability and loss, including
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement actually and reasonably incurred by him or on his behalf for which
the Indemnitee is entitled to indemnification or with respect to which
indemnification is claimed, reasonably anticipated or proposed to be paid in
accordance with the terms of this Agreement or otherwise; provided that in no
event shall more than $100,000 be required to be deposited in any Trust created
hereunder in excess of the amounts deposited in respect of reasonably
anticipated Expenses. The amounts to be deposited in the Trust pursuant to
the foregoing funding obligation shall be determined by a majority of the
Unaffiliated Directors whose determination shall be final and conclusive.
At all times the Trust shall remain as an asset of the Company and subject to
the claims of the Company's creditors.
The terms of the Trust shall provide
that upon a Change in Control (i) the Trust shall not be revoked or the
principal thereof invaded, without the written consent of the Indemnitee except
as set forth in the preceding paragraph, (ii) the procedures set forth in
Section 10 regarding advancement of expenses with respect to the Company shall
apply to the Trust, (iii) the Trust shall continue to be funded by the
Company in accordance with the funding obligation set forth above (and in the
event that there are no Unaffiliated Directors, the decision regarding the
amount to fund shall be made by Independent Counsel selected as provided in
Section 9(c)), (iv) the Trustee shall promptly pay to the Indemnitee all
amounts for which the Indemnitee shall be entitled to indemnification pursuant
to this Agreement or otherwise, and (v) all unexpended funds in such Trust
shall revert to the Company upon a final determination by a majority of the
Unaffiliated Directors or by Independent Counsel or a court of competent
jurisdiction, as the case may be, that the Indemnitee has been fully indemnified
under the terms of this Agreement. The Trustee shall be a bank or trust
company or other individual or entity chosen by the Indemnitee and reasonably
acceptable and approved of by the Company.
12. Remedies
of Indemnitee.
(a) Subject
to Section 12(d), in the event that (i) a determination is made
pursuant to Section 9 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not
timely made pursuant to Section 10 or 12(d) of this Agreement,
(iii) no determination of entitlement to indemnification shall have been
made pursuant to Section 9 of this Agreement within ninety (90) days after
receipt by the Company of the request for indemnification, (iv) payment of
indemnification pursuant to this Agreement is not made (A) within ten (10)
days after a determination has been made that Indemnitee is entitled to
indemnification or (B) with respect to indemnification pursuant to
Sections 4, 5 or 12(d) of this Agreement, within thirty (30) days after
receipt by the Company of a written request therefor, or (v) the Company or
any other person or entity takes or threatens to take any action to declare this
Agreement void or unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, Indemnitee the benefits
provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be
entitled to an adjudication by the Delaware Court of Chancery of Indemnitee's
right to such indemnification or advancement of Expenses. Alternatively,
Indemnitee, at his or her option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. The Company shall not oppose Indemnitee's
right to seek any such adjudication or award in arbitration in accordance with
this Agreement.
(b) The
failure of the Company, its Board of Directors, any committee or subgroup of the
Board of Directors, Independent Counsel or stockholders to have made a
determination that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct shall not be a defense to
the action or create a presumption that Indemnitee has or has not met the
applicable standard of conduct. In the event that a determination shall have
been made pursuant to Section 9 of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 12, the Company shall, to the fullest extent not
prohibited by law, have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) To
the fullest extent not prohibited by law, the Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 12 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement. If a determination shall have been made pursuant to Section 9 of
this Agreement that Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 12, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statements not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(d) The
Company shall indemnify Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (as soon as reasonably practicable, but in any
event no later than sixty (60) days, after receipt by the Company of a written
request therefor) advance such Expenses to Indemnitee, that are incurred by
Indemnitee in connection with any action for indemnification or advancement of
Expenses from the Company under this Agreement or under any directors' and
officers' liability insurance policies maintained by the Company, to the extent
Indemnitee is successful in such action and to the extent not prohibited by
law.
(e) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification shall be required to be made prior to the final disposition
of the Proceeding.
13. Presumptions
and Effect of Certain Proceedings.
(a) In
making a determination with respect to entitlement to indemnification hereunder,
the person, persons or entity making such determination shall, to the fullest
extent not prohibited by law, presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with Section 9 of this Agreement, and the
Company shall, to the fullest extent not prohibited by law, have the burden of
proof to overcome that presumption in connection with the making by such person,
persons or entity of any determination contrary to that
presumption.
(b) The
termination of any Proceeding or of any claim, issue or 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 Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his or her conduct was unlawful.
(c) For
purposes of any determination of good faith, Indemnitee shall be deemed to have
acted in good faith to the extent Indemnitee relied in good faith on
(i) the records or books of account of the Company, including financial
statements, (ii) information supplied to Indemnitee by the officers of the
Company in the course of their duties, (iii) the advice of legal counsel
for the Company or its Board of Directors or counsel selected by any committee
of the Board of Directors or (iv) information or records given or reports
made to the Company by an independent certified public accountant, an appraiser,
investment banker or other expert selected with reasonable care by the Company
or its Board of Directors or any committee of the Board of Directors. The
provisions of this Section 13(c) shall not be deemed to be exclusive or to
limit in any way the other circumstances in which Indemnitee may be deemed to
have met the applicable standard of conduct set forth in this
Agreement.
(d) Neither
the knowledge, actions nor failure to act of any other director, officer, agent
or employee of the Company shall be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
14. Subrogation;
No Duplication of Payments. In the event that
the Company pays any Expenses 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. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder (or
for which advancement is provided hereunder) if and to the extent that
Indemnitee has otherwise actually received payment from a third party for such
amounts under any insurance policy, contract, agreement or otherwise; provided,
however, that if the Indemnitee repays any of these payments to such third party
(whether due to a reservation of rights or otherwise), the Company
shall again be obligated to Indemnitee under this Agreement with respect to such
payments.
15. Services
to Company. Indemnitee agrees to serve as a director or
officer of the Company for so long as Indemnitee is duly elected or appointed or
until Indemnitee tenders his or her resignation. This Agreement shall not be
deemed an employment contract between the Company (or any of its subsidiaries)
and Indemnitee. Indemnitee specifically acknowledges that any employment with
the Company (or any of its subsidiaries) is at will, and Indemnitee may be
discharged at any time for any reason, with or without cause, with or without
notice, except as may be otherwise expressly provided in any executed, written
employment contract between Indemnitee and the Company (or any of its
subsidiaries), any existing formal severance policies adopted by the Company's
Board of Directors or, with respect to service as a director or officer of the
Company, the Company's Certificate of Incorporation or Bylaws or the
DGCL.
16. Exclusions. Notwithstanding
the foregoing, the Company shall not be liable under this Agreement to pay any
Expenses in connection with any Proceeding:
(a) for
any reimbursement of the Company by Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits realized by
Indemnitee from the sale of securities of the Company, as required in each case
under the Securities Exchange Act of 1934, as amended (including any such
reimbursements that arise from an accounting restatement of the Company pursuant
to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx
Act"), or the payment to the Company of profits arising from the purchase
and sale by Indemnitee of securities in violation of Section 306 of the
Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant
to any settlement arrangements);
(b) for
a disgorgement of profits made from the purchase and sale by the Indemnitee of
securities pursuant to Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any state statutory law or common
law;
(c) initiated
by Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company or its directors, officers,
employees, agents or other indemnitees, unless (i) the Company's Board of
Directors authorized the Proceeding (or the relevant part of the Proceeding)
prior to its initiation, (ii) otherwise authorized in Section 12(d) or
(iii) otherwise required by applicable law; or
(d) if
prohibited by applicable law.
17. Amendments. The
entitlement to payment hereunder of an Indemnitee shall not be affected or
diminished by any amendment, termination or repeal of the General Corporation
Law of the State of Delaware or the Bylaws of the Company with respect to any
Proceeding arising out of or relating to any actions, transactions or facts
occurring prior to the final adoption of any such amendment, termination or
repeal. This Agreement may not be modified or altered except by a
formal writing signed by both parties that specifically refers to this
Agreement.
18. Counterparts. This Agreement
may be executed in any number of counterparts, all of which taken together shall
constitute one instrument.
19. Indemnification
Hereunder Not Exclusive. Nothing herein shall be deemed to
diminish or otherwise restrict the Indemnitee's right to indemnification under
any provision of the Certificate of Incorporation or the Bylaws of the Company
and amendments thereto or under law. Except as expressly set forth
herein, no right or remedy herein conferred is intended to be exclusive of any
other right or remedy, and every other right and remedy shall be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy. It is the
intention of the parties in entering into this Agreement that the insurers under
any D&O Insurance policy shall be obligated ultimately to pay any claims by
Indemnitee which are covered by such policy and not to give such insurers any
rights against the Company under or with respect to this Agreement, including,
without limitation, any right to be subrogated to any of Indemnitee's rights
hereunder, unless otherwise expressly agreed to by the Company in writing, and
the obligation of such insurers to the Company or Indemnitee shall not be deemed
reduced or impaired in any respect by virtue of the provisions of this
Agreement.
20. Governing
Law. This Agreement
shall be governed by and construed in accordance with Delaware law.
21. Saving
Clause. Wherever there is
conflict between any provision of this Agreement and any applicable present or
future statute, law or regulation contrary to which the Company and the
Indemnitee have no legal right to contract, the latter shall prevail but
(a) the validity, legality and enforceability of the remaining provisions
of this Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain
enforceable to the fullest extent permitted by law; (b) such provision or
provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby but in such
event the affected provisions of this Agreement shall be curtailed and
restricted only to the extent necessary to bring them within applicable legal
requirements.
22. Coverage;
Continuation of Indemnity. The provisions of
this Agreement shall apply with respect to the Indemnitee's service as a
Director or officer of the Company prior to the date of this Agreement (if any)
and with respect to all periods of such service after the date of this
Agreement, even though the Indemnitee may have ceased to be a Director or
officer of the Company and shall inure to the benefit of the heirs, executors
and administrators of Indemnitee. To the extent Indemnitee served as
an officer or director of Alpha Natural Resources, Inc., a predecessor of the
Company, the provisions of this Agreement shall also apply with respect to the
time period that Indemnitee served as an officer or director of Alpha Natural
Resources, Inc. All agreements and obligations of the Company
contained in this Agreement shall continue during the period the Indemnitee is a
director or officer of the Company (or is or was serving at the request of the
Company as a director, trustee, general partner, managing member, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust, limited liability company or other enterprise and shall continue
thereafter so long as the Indemnitee shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that the Indemnitee was a
director or officer of the Company or serving in any other capacity referred to
herein.
23. Successors. This Agreement
shall be binding upon the Company and its successors and assigns, including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business or assets of the Company, and shall
inure to the benefit of Indemnitee and Indemnitee's heirs, executors and
administrators. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by written
agreement, 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.
24. Miscellaneous.
(a) No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless in writing signed by both of the parties hereto; provided,
however, that the Company may amend this Agreement from time to time without
Indemnitee's consent to the extent deemed necessary or appropriate, in its sole
discretion, to effect compliance with Section 409A of the Internal Revenue
Code, including regulations and interpretations thereunder, which amendments may
result in a reduction of benefits provided hereunder and/or other unfavorable
changes to Indemnitee.
(b) This
Agreement is intended to provide for the indemnification of, and/or purchase of
insurance policies providing for payments of, expenses and damages incurred with
respect to bona fide
claims against the Indemnitee, as a service provider, or the Company, as the
service recipient, in accordance with Treas. Reg. Section 1.409A-1(b)(10),
pursuant to which the Agreement shall not provide for the deferral of
compensation. The Agreement shall be construed consistently, and limited
in accordance with, the provisions of such regulation.
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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed and signed as of
the day and year first above written.
By: _______________________
Name: [Xxxxx X.
Xxxxxxxxxxx]
Title: [Chief
Executive Officer]
INDEMNITEE
__________________________
Name:
