INDEMNIFICATION AGREEMENT
EXHIBIT
10.1
THIS
AGREEMENT is made
this ____ day of __________, 2007, by and between Halliburton Company, a
Delaware corporation, (the “Company”) and the undersigned officer
(“Officer”).
W
I T N E S S E T H
WHEREAS,
Officer is a
corporate officer of the Company and is listed as an “executive officer” of the
Company in the Company’s filings under the Securities Exchange Act of 1934 and,
in such capacities, Officer is performing valuable services for the Company;
and
WHEREAS,
the Company
has purchased and presently maintains a policy or policies of directors’ and
officers’ liability insurance (“D&O Insurance”) covering certain liabilities
which may be incurred by the directors and officers of the Company in the
performance of their services for the Company; and
WHEREAS,
developments
with respect to the provisions of D&O Insurance and with respect to the
application, amendment and enforcement of statutory, charter and bylaw
indemnification provisions generally have raised questions concerning the
adequacy and reliability of the protection accorded to officers thereby and
may
increase the difficulty of attracting and retaining qualified persons to serve
as officers of the Company; and
WHEREAS,
the Board of
Directors of the Company has determined that difficulties relating to the
attraction and retention of such persons would be detrimental to the best
interests of the Company and of its stockholders and that the Company should
act
to assure such persons that there will be increased certainty of indemnification
protection in the future; and
WHEREAS,
the Delaware
General Corporation Law and the By-laws of the Company provide that they are
not
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled, and thereby contemplate that contracts
may be entered into between the Company and its officers with respect to
indemnification of such officers; and
WHEREAS,
in order to
lessen or alleviate the aforementioned concerns and thereby induce Officer
to
serve and to continue to serve as a corporate officer and an “executive officer”
of the Company, the Company has determined that it is in its best interests
to
enter into this Agreement with Officer;
NOW,
THEREFORE, in
consideration of the above premises and of the covenants contained herein,
the
parties hereto agree as follows:
1.
Indemnification - General. The Company shall indemnify and
advance Expenses (as hereinafter defined) to Officer to the fullest extent,
and
only to the extent, permitted by applicable law in effect on the date hereof
and
to such greater extent as applicable law may thereafter from time to time
permit. The rights of Officer provided under the preceding sentence
shall include, but shall not be limited to, the rights set forth in the other
Sections of this Agreement.
2.
Proceedings Other than Proceedings by or in the Right of the
Company. Officer shall be entitled to the indemnification rights
provided in this Section 2 if, by reason of Officer’s Corporate Status (as
hereinafter defined), Officer is, or is threatened to be made, a party to any
threatened, pending or completed Proceeding (as hereinafter defined), other
than
a Proceeding by or in the right of the Company. Pursuant to this
Section 2, Officer shall be indemnified against Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by Officer
or on Officer’s behalf in connection with such Proceeding or any claim, issue or
matter therein, if Officer acted in good faith and in a manner Officer
reasonably believed to be in, or not opposed to, the best interests of the
Company, and, with respect to any criminal Proceeding, had no reasonable cause
to believe Officer’s conduct was unlawful.
3.
Proceedings by or in the Right of the Company. Officer
shall be entitled to the indemnification rights provided in this Section 3,
if,
by reason of Officer’s Corporate Status, Officer is, or is threatened to be
made, a party to any threatened, pending or completed Proceeding brought by
or
in the right of the Company to procure a judgment in its
favor. Pursuant to this Section 3, Officer shall be indemnified
against Expenses actually and reasonably incurred by Officer or on Officer’s
behalf in connection with such Proceeding if Officer acted in good faith and
in
a manner Officer reasonably believed to be in, or not opposed to, the best
interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Officer shall have been adjudged
to be liable to the Company if applicable law prohibits such indemnification;
provided, however, that, if applicable law so permits, indemnification against
Expenses shall nevertheless be made by the Company despite such adjudication
of
liability, if and only to the extent that the Court of Chancery of the State
of
Delaware, or the court in which such Proceeding shall have been brought or
is
pending, shall determine.
4.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this
Agreement, to the extent that Officer is, by reason of Officer’s Corporate
Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, Officer shall be indemnified against all Expenses actually and
reasonably incurred by Officer or on Officer’s behalf in connection
therewith. If Officer is not wholly successful in such Proceeding but
is successful on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Officer against all Expenses actually and reasonably incurred by Officer or
on
Officer’s behalf in connection with each successfully resolved claim, issue or
matter. For the purposes of this Section 4 and without limitation,
the termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to
such
claim, issue or matter.
5.
Contribution. In the event that the indemnity contained in
Sections 2, 3 or 4 of this Agreement is unavailable or insufficient to hold
Officer harmless in a Proceeding described therein, then in accordance with
the
non-exclusivity provisions of the Delaware General Corporation Law and the
Certificate of Incorporation of the Company and the By-laws of the Company,
and
separate from and in addition to, the indemnity provided elsewhere herein,
the
Company shall contribute to Expenses, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by or on behalf of Officer
in connection with such Proceeding or any claim, issue or matter therein, in
such proportion as appropriately reflects the relative benefits received by,
and
fault of, the Company on the one hand and Officer on the other in the acts,
transactions or matters to which the Proceeding relates and other equitable
considerations.
6.
Procedure for Determination of Entitlement to
Indemnification.
(a) To
obtain indemnification under this Agreement, Officer shall submit to the Company
a written request, including such documentation and information as is reasonably
available to Officer and is reasonably necessary to determine whether and to
what extent Officer is entitled to indemnification. The determination
of Officer’s entitlement to indemnification shall be made not later than 90 days
after receipt by the Company of the written request for
indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors
in
writing that Officer has requested indemnification.
(b) Officer’s
entitlement to indemnification or contribution under any of Sections 2, 3,
4 and
5 of this Agreement shall be determined in the specific case: (i) by the
Board of Directors by a majority vote of a quorum of the Board consisting of
Disinterested Directors (as hereinafter defined); (ii) by Independent
Counsel (as hereinafter defined), in a written opinion if a quorum of the Board
of Directors consisting of Disinterested Directors is not obtainable or, even
if
obtainable, such quorum of Disinterested Directors so directs; or (iii) by
the stockholders of the Company. If, with regard to Section 5 of this
Agreement, such a determination is not permitted by law or if a quorum of
Disinterested Directors so directs, such determination shall be made by the
Court of Chancery of the State of Delaware or the court in which the Proceeding
giving rise to the claim for indemnification is brought.
(c) In
the event that the determination of entitlement to indemnification is to be
made
by Independent Counsel pursuant to Section 6(b) of this Agreement, the
Independent Counsel shall be selected as provided in this Section
6(c). The Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to Officer advising Officer
of the identity of the Independent Counsel so selected. Officer may,
within 7 days after receipt of such written notice of selection shall have
been
given, deliver to the Company a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 13 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. If such
written objection is made, the Independent Counsel so selected shall be
disqualified from acting as such. If, within 20 days after submission
by Officer of a written request for indemnification pursuant to Section 6(a)
of
this Agreement, no Independent Counsel shall have been selected, or if selected
shall have been objected to, in accordance with this Section 6(c), either the
Company or Officer may petition the Court of Chancery of the State of Delaware
for the appointment as Independent Counsel of a person selected by such court
or
by such other person as such court shall designate, and the person so appointed
shall act as Independent Counsel under Section 6(b) of this Agreement, and
the
Company shall pay all reasonable fees and expenses incident to the procedures
of
this Section 6(c), regardless of the manner in which such Independent Counsel
was selected or appointed.
7.
Advancement of Expenses. The Company shall advance all
reasonable Expenses incurred by or on behalf of Officer in connection with
any
Proceeding within 20 days after the receipt by the Company of a statement or
statements from Officer requesting such advance or advances from time to time,
whether prior to or after final disposition of such
Proceeding. Officer shall, and hereby undertakes to, repay any
Expenses advanced if it shall ultimately be determined that Officer is not
entitled to be indemnified against such Expenses.
8.
Presumptions and Effect of Certain Proceedings. The
termination of any proceeding described in any of Sections 2, 3 or 4 of this
Agreement, or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Officer to indemnification or create a presumption
that Officer did not act in good faith and in a manner which Officer reasonably
believed to be in or not opposed to the best interests of the Company or, with
respect to any criminal Proceeding, that Officer had reasonable cause to believe
that Officer’s conduct was unlawful.
9.
Term of Agreement. All agreements and obligations of the
Company contained herein shall commence as of the time the Officer commenced
to
serve as a Officer, officer, employee or agent of the Company (or commenced
to
serve at the request of the Company as a Officer, officer, employee or agent
of
another corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise) and shall continue for so
long
as Officer shall so serve or shall be, or could become, subject to any possible
Proceeding in respect of which Officer is granted rights of indemnification
or
advancement of Expenses hereunder.
10. Notification
and Defense of Claim. Promptly after receipt by Officer of notice
of the commencement of any Proceeding, Officer will, if a claim in respect
thereof is to be made against the Company under this Agreement, notify the
Company of the commencement thereof; but the omission to notify the Company
will
not relieve it from any liability which it may have to Officer otherwise than
under this Agreement. With respect to any such Proceeding as to which
Officer notifies the Company of the commencement thereof:
(a) The
Company will be entitled to participate therein at its own expense.
(b) Except
as otherwise provided below, to the extent that it may wish, the Company jointly
with any other indemnifying party similarly notified will be entitled to assume
the defense thereof, with counsel satisfactory to Officer. After
notice from the Company to Officer of its election so to assume the defense
thereof, the Company will not be liable to Officer under this Agreement for
any
legal or other Expenses subsequently incurred by Officer in connection with
the
defense thereof other than reasonable costs of investigation or as otherwise
provided below. Officer shall have the right to employ its counsel in
such Proceeding but the fees and Expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the
expense of Officer unless (i) the employment of counsel by Officer has been
authorized by the Company, or (ii) Officer shall have reasonably concluded
that
there may be a conflict of interest between the Company and Officer in the
conduct of the defense of such Proceeding, or (iii) the Company shall not in
fact have employed counsel to assume the defense of such Proceeding, in each
of
which cases the fees and Expenses of counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of
any Proceeding brought by or on behalf of the Company or as to which Officer
shall have made the conclusion provided for in (ii) above.
(b) The
Company shall not be liable to indemnify Officer under this Agreement for any
amounts paid in settlement of any Proceeding or claim effected without its
written consent. The Company shall not settle any Proceeding or claim
in any manner which would impose any penalty or limitation on Officer without
Officer’s written consent. Neither the Company nor Officer will
unreasonably withhold their consent to any proposed settlement.
11. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order to induce
Officer to continue as a Officer of the Company, and acknowledges that Officer
is relying upon this Agreement in continuing in such capacity.
(b) In
the event Officer is required to bring any action to enforce rights or to
collect moneys due under this Agreement and is successful in such action, the
Company shall reimburse Officer for all of Officer’s reasonable Expenses in
bringing and pursuing such action.
12. Non-Exclusivity
of Rights. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Officer may at any time be entitled
under
applicable law, the Certificate of Incorporation of the Company, the By-laws
of
the Company, any agreement, a vote of stockholders or a resolution of directors,
or otherwise.
13. Definitions. For
purposes of this Agreement:
(a) “Corporate
Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation,
partnership, limited liability company, association, joint venture, trust,
employee benefit plan or other enterprise which such person is or was serving
at
the request of the Company.
(b) “Disinterested
Director” means a director of the Company who is not and was not at any time a
party to the Proceeding in respect of which indemnification is sought by
Officer.
(c) “Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend or
investigating a Proceeding.
(d) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the five years
previous to the selection or appointment has been, retained to represent: (i)
the Company or Officer in any matter material to either such party or (ii)
any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Officer in an action to determine Officer’s
rights under this Agreement.
(e) Proceeding”
includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative.
14. Severability. Each
of the provisions of this Agreement is a separate and distinct agreement and
independent of the others, so that if any provision hereof shall be held to
be
invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect the validity or enforceability of the other provisions
hereof.
15. Governing
Law; Binding Effect; Amendment and Termination.
(a) THIS
AGREEMENT SHALL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF DELAWARE.
(b) This
Agreement shall be binding upon Officer and upon the Company, its successors
and
assigns, and shall inure to the benefit of Officer, Officer’s heirs, personal
representatives and assigns and to the benefit of the Company, its successors
and assigns.
(c) No
amendment, modification, termination or cancellation
of this Agreement shall be effective unless in writing by the
parties.
The
parties have executed this Agreement as of the day and year first above
written.
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HALLIBURTON
COMPANY
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By:
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Chairman
of the Board, President and Chief Executive Officer
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Print
name:
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Title:
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