Syntroleum Indemnification Agreement
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CONFIDENTIAL
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement"), is made and entered into
as of the 17th day of June, 1999 by and between Syntroleum Corporation, a
Delaware corporation (the "Corporation"), and ___________________________
("Indemnitee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Indemnitee is currently serving or is about to begin serving as a
director and/or officer of the Corporation and/or in another Corporate Status,
and Indemnitee is willing, subject to, among other things, the Corporation's
execution and performance of this Agreement, to continue in or assume such
capacity or capacities; and
WHEREAS, the Bylaws of the Corporation provide that the Corporation
Shall indemnify directors and officers of the Corporation in the manner set
forth therein; and
WHEREAS, the Corporation and Indemnitee desire to enter into this
agreement to induce Indemnitee to provide services as contemplated hereby and
the Corporation has deemed it to be in its best interest to enter into
this Agreement with indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's agreement to provide
services to the Corporation and/or certain of its affiliates as contemplated by
this Agreement, the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows.
1. Certain Definitions
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As used herein, the following words and terms shall have the following
respective meanings (whether singular or plural):
"CHANGE OF CONTROL" means a change in control of the Corporation after the
date Indemnitee acquired his Corporate Status, which shall be deemed to have
occurred in any one of the following circumstances occurring after such date:
(i) there shall have occurred an event required to be reported with respect to
the Corporation in response to Item 6(e) of Schedule 14A of Regulation 14A (or
in response to any similar item or any similar schedule or form) promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
whether or not the Corporation is then subject to such reporting requirement;
(ii) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) shall have become the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 40% or more of the combined voting power of the
Corporation's then outstanding voting securities without prior approval of at
least two-thirds of the members of the Board of Directors in office immediately
prior to such person attaining such percentage interest; (iii) the Corporation
is a party to a merger, consolidation, sale of assets or other reorganization,
or a proxy contest, as a consequence of which members of the Board of Directors
in office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; or (iv) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (including, for this purpose, any new director whose
election or nomination for election by the Corporation's shareholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
"CORPORATE STATUS" describes the status of Indemnitee as a director,
officer, employee, agent or fiduciary of the Corporation or of any other
corporation, partnership, limited liability company, association, joint venture,
trust, employee benefit plan or other enterprise that Indemnitee is or was
serving at the request of the Corporation.
"COURT" means the District Court of Tulsa County of the State of Oklahoma
or any other court of competent jurisdiction.
"DGCL" means the Delaware General Corporation Law, as amended from time to
time.
"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, investigating, or being or preparing to be a witness in a
Proceeding.
"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 his selection or appointment has been, retained to
represent: (i) the Corporation or Indemnitee in any matter material to either
such party or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder.
"MATTER" is a claim, a material issue or a substantial request for relief.
"PROCEEDING" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, except one
initiated by Indemnitee pursuant to Section 6.01 of this Agreement to enforce
his rights under this Agreement.
2. Services by Indemnitee
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2.01 SERVICES BY INDEMNITEE. Indemnitee agrees to serve or continue to
serve in his current capacity or capacities as a director, officer, employee,
agent or fiduciary of the Corporation. Indemnitee also agrees to serve, as the
Corporation may request from time to time, as a director, officer, employee,
agent or fiduciary of any other corporation, partnership, limited liability
company, association, joint venture, trust or other enterprise in which the
Corporation has an interest. Indemnitee and the Corporation each acknowledge
that they have entered into this Agreement as a means of inducing Indemnitee to
serve the Corporation in such capacities.
2.02 TERMINATION OF SERVICES. Indemnitee may at any time and for any reason
resign from such position or positions (subject to any other contractual
obligation or any obligation imposed by operation of law). The Corporation
shall have no obligation under this Agreement to continue Indemnitee in any such
position for any period of time and shall not be precluded by the provisions of
this Agreement from removing or terminating Indemnitee from any such position at
any time.
3. Indemnification
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3.01 GENERAL. The Corporation shall, to the fullest extent permitted by
applicable law in effect on the date hereof, and to such greater extent as
applicable law may thereafter permit, indemnify and hold Indemnitee harmless
from and against any and all losses, liabilities, claims, damages and, subject
to Section 3.02, Expenses (as this and all other capitalized words are defined
in Article 1. of this Agreement), whatsoever arising out of any event or
occurrence related to the fact that Indemnitee is or was a director or officer
of the Corporation or is or was serving in another Corporate Status.
3.02 EXPENSES. If Indemnitee is, by reason of his Corporate Status, a party
to and is successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to any Matter
in such Proceeding, the Corporation shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or on his behalf relating to
such Matter. The termination of any Matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
Matter. To the extent that the Indemnitee is, by reason of his Corporate
Status, a witness in any Proceeding, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf in connection
therewith.
4. Advancement of Expenses
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4.01 ADVANCES. In the event of any threatened or pending action, suit or
proceeding in which Indemnitee is a party or is involved and that may give rise
to a right of indemnification under this Agreement, following written request to
the Corporation by Indemnitee, the Corporation shall promptly pay to Indemnitee
amounts to cover expenses reasonably incurred by Indemnitee in such proceeding
in advance of its final disposition upon the receipt by the Corporation of (i) a
written undertaking executed by or on behalf of Indemnitee providing that
Indemnitee will repay the advance if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Corporation as provided in
this Agreement and (ii) satisfactory evidence as to the amount of such expenses.
4.02 REPAYMENT OF ADVANCES OR OTHER EXPENSES. Indemnitee agrees that
Indemnitee shall reimburse the Corporation for all expenses paid by the
Corporation in defending any civil, criminal, administrative or investigative
action, suit or proceeding against Indemnitee in the event and only to the
extent that it shall be determined pursuant to the provisions of this Agreement
or by final judgment or other final adjudication under the provisions of any
applicable law that Indemnitee is not entitled to be indemnified by the
Corporation for such expenses.
5. Procedure for Determination of Entitlement to Indemnification
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5.01 REQUEST FOR INDEMNIFICATION. To obtain indemnification, Indemnitee
shall submit to the Secretary of the Corporation a written claim or request.
Such written claim or request shall contain sufficient information to reasonably
inform the Corporation about the nature and extent of the indemnification or
advance sought by Indemnitee. The Secretary of the Corporation shall promptly
advise the Board of Directors of such request.
5.02 DETERMINATION OF ENTITLEMENT; NO CHANGE OF CONTROL. If there has been
no Change of Control at the time the request for indemnification is submitted,
Indemnitee's entitlement to indemnification shall be determined in accordance
with Section 145(d) of the DGCL. If entitlement to indemnification is to be
determined by Independent Counsel, the Corporation shall furnish notice to
Indemnitee within 10 days after receipt of the request for indemnification,
specifying the identity and address of Independent Counsel. The Indemnitee may,
within 14 days after receipt of such written notice of selection, deliver to the
Corporation 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 and the objection shall set forth
with particularity the factual basis for such assertion. If there is an
objection to the selection of Independent Counsel, either the Corporation or
Indemnitee may petition the Court for a determination that the objection is
without a reasonable basis and/or for the appointment of Independent Counsel
selected by the Court.
5.03 DETERMINATION OF ENTITLEMENT; CHANGE OF CONTROL. If there has been a
Change of Control at the time the request for indemnification is submitted,
Indemnitee's entitlement to indemnification shall be determined in a written
opinion by Independent Counsel selected by Indemnitee. Indemnitee shall give
the Corporation written notice advising of the identity and address of the
Independent Counsel so selected. The Corporation may, within seven days after
receipt of such written notice of selection, deliver to the Indemnitee a written
objection to such selection. Indemnitee may, within five days after the receipt
of such objection from the Corporation, submit the name of another Independent
Counsel and the Corporation may, within seven days after receipt of such written
notice of selection, deliver to the Indemnitee a written objection to such
selection. Any objections referred to in this Section 5.03 may be asserted only
on the ground that the Independent Counsel so selected does not meet the
requirements of Independent Counsel and such objection shall set forth with
particularity the factual basis for such assertion. Indemnitee may petition the
Court for a determination that the Corporation's objection to the first and/or
second selection of Independent Counsel is without a reasonable basis and/or for
the appointment as Independent Counsel of a person selected by the Court.
5.04 PROCEDURES OF INDEPENDENT COUNSEL. If a Change of Control shall have
occurred before the request for indemnification is sent by Indemnitee,
Indemnitee shall be presumed (except as otherwise expressly provided in this
Agreement) to be entitled to indemnification upon submission of a request for
indemnification in accordance with Section 5.01 of this Agreement, and
thereafter the Corporation shall have the burden of proof to overcome the
presumption in reaching a determination contrary to the presumption. The
presumption shall be used by Independent Counsel as a basis for a determination
of entitlement to indemnification unless the Corporation provides information
sufficient to overcome such presumption by clear and convincing evidence or the
investigation, review and analysis of Independent Counsel convinces him by clear
and convincing evidence that the presumption should not apply.
Except in the event that the determination of entitlement to indemnification is
to be made by Independent Counsel, if the person or persons empowered under
Section 5.02 or 5.03 of this Agreement to determine entitlement to
indemnification shall not have made and furnished to Indemnitee in writing a
determination within 60 days after receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification unless Indemnitee knowingly misrepresented a material fact in
connection with the request for indemnification or such indemnification is
prohibited by applicable law. The termination of any Proceeding or of any
Matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner that he reasonably believed to be in or not opposed to the
best interests of the Corporation, or with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful. A
person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
of the Corporation shall be deemed to have acted in a manner not opposed to the
best interests of the Corporation.
For purposes of any determination hereunder, a person shall be deemed to have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or Proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account
of the Corporation or another enterprise or on information supplied to him by
the officers of the Corporation or another enterprise in the course of their
duties or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section shall
mean any other corporation or any partnership, limited liability company,
association, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of this paragraph shall
not be deemed to be exclusive or to limit in any way the circumstances in which
an Indemnitee may be deemed to have met the applicable standards of conduct for
determining entitlement to rights under this Agreement.
5.05 INDEPENDENT COUNSEL EXPENSES. The Corporation shall pay any and all
reasonable fees and expenses of Independent Counsel incurred acting pursuant to
this Article 5. and in any proceeding to which it is a party or witness in
respect of its investigation and written report and shall pay all reasonable
fees and expenses incident to the procedures in which such Independent Counsel
was selected or appointed. No Independent Counsel may serve if a timely
objection has been made to his selection until a Court has determined that such
objection is without a reasonable basis.
6. Certain Remedies of Indemnitee
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6.01 ADJUDICATION. In the event that (i) a determination is made pursuant
to Section 5.02 or 5.03 hereof that Indemnitee is not entitled to
indemnification under this Agreement; (ii) advancement of Expenses is not timely
made pursuant to Section 4.01 of this Agreement; (iii) Independent Counsel has
not made and delivered a written opinion determining the request for
indemnification (a) within 90 days after being appointed by the Court, or (b)
within 90 days after objections to his selection have been overruled by the
Court or (c) within 90 days after the time for the Corporation or Indemnitee to
object to his selection; or (iv) payment of indemnification is not made within
five days after a determination of entitlement to indemnification has been made
or deemed to have been made pursuant to Section 5.02, 5.03 or 5.04 of this
Agreement, Indemnitee shall be entitled to an adjudication in the Court, or in
any other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. In the event that a determination
shall have been made that Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section 6.01 shall
be conducted in all respects as a de novo trial on the merits and Indemnitee
shall not be prejudiced by reason of that adverse determination. If a Change of
Control shall have occurred, in any judicial proceeding commenced pursuant to
this Section 6.01, the Corporation shall have the burden of proving that
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be. If a determination shall have been made or deemed to have been
made that Indemnitee is entitled to indemnification, the Corporation shall be
bound by such determination in any judicial proceeding commenced pursuant to
this Section 6.01, or otherwise, unless Indemnitee knowingly misrepresented a
material fact in connection with the request for indemnification, or such
indemnification is prohibited by law.
The Corporation shall be precluded from asserting in any judicial proceeding
commenced pursuant to this Section 6.01 that the procedures and presumptions of
this Agreement are not valid, binding and enforceable, and shall stipulate in
any such proceeding that the Corporation is bound by all provisions of this
Agreement. In the event that Indemnitee, pursuant to this Section 6.01, seeks a
judicial adjudication to enforce his rights under, or to recover damages for
breach of, this Agreement, Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and all
Expenses actually and reasonably incurred by him in such judicial adjudication,
but only if he prevails therein. If it shall be determined in such judicial
adjudication that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the Expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall be
appropriately prorated.
7. Participation by the Corporation
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7.01 PARTICIPATION BY THE CORPORATION. With respect to any such claim,
action, suit, proceeding or investigation as to which Indemnitee notifies the
Corporation of the commencement thereof: (a) the Corporation will be entitled
to participate therein at its own expense; (b) except as otherwise provided
below, to the extent that it may wish, the Corporation (jointly with any other
indemnifying party similarly notified) will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee. After receipt of
notice from the Corporation to Indemnitee of the Corporation's election so to
assume the defense thereof, the Corporation will not be liable to Indemnitee
under this Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the right
to employ his own counsel in such action, suit, proceeding or investigation but
the fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of Indemnitee
unless (i) the employment of counsel by Indemnitee has been authorized by the
Corporation, (ii) Indemnitee shall have reasonably concluded that there is a
conflict of interest between the Corporation and Indemnitee in the conduct of
the defense of such action or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of counsel employed by Indemnitee shall be subject to
indemnification pursuant to the terms of this Agreement (the Corporation shall
not be entitled to assume the defense of any action, suit, proceeding or
investigation brought in the name of or on behalf of the Corporation or as to
which Indemnitee shall have made the conclusion provided for in (ii) above); and
(c) the Corporation shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent, which consent shall not be unreasonably withheld.
The Corporation shall not settle any action or claim in any manner that would
impose any limitation or unindemnified penalty on Indemnitee without
Indemnitee's written consent, which consent shall not be unreasonably withheld.
8. Miscellaneous
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8.01 NONEXCLUSIVITY OF RIGHTS. The rights of indemnification and
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled to
under applicable law, the Corporation's Certificate of Incorporation, the
Corporation's Bylaws, any agreement, a vote of shareholders or a resolution of
directors, or otherwise. No amendment, alteration or repeal of this Agreement
or any provision hereof shall be effective as to Indemnitee for acts, events and
circumstances that occurred, in whole or in part, before such amendment,
alteration or repeal. The provisions of this Agreement shall continue as to
Indemnitee whose Corporate Status has ceased for any reason and shall inure to
the benefit of his heirs, executors and administrators.
8.02 INSURANCE AND SUBROGATION. The Corporation shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if, but only to the extent that, Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise. In the
event of any payment hereunder, the Corporation shall be subrogated to the
extent of such payment to all the rights of recovery of Indemnitee, who shall
execute all papers required and take all action reasonably requested by the
Corporation to secure such rights, including execution of such documents as are
necessary to enable the Corporation to bring suit to enforce such rights.
8.03 ACKNOWLEDGMENT OF CERTAIN MATTERS. Both the Corporation and Indemnitee
acknowledge that in certain instances, applicable law or public policy may
prohibit indemnification of Indemnitee by the Corporation under this Agreement
or otherwise. Indemnitee understands and acknowledges that the Corporation has
undertaken or may be required in the future to undertake, by the Securities and
Exchange Commission, to submit the question of indemnification to a court in
certain circumstances for a determination of the Corporation's right under
public policy to indemnify Indemnitee.
8.04 AMENDMENT. This Agreement may not be modified or amended except by a
written instrument executed by or on behalf of each of the parties hereto.
8.05 WAIVERS. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term only by a writing
signed by the party against which such waiver is to be asserted. Unless
otherwise expressly provided herein, no delay on the part of any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
8.06 ENTIRE AGREEMENT. This Agreement and the documents referred to herein
constitute the entire agreement between the parties hereto with respect to the
matters covered hereby, and any other prior or contemporaneous oral or written
understandings or agreements with respect to the matters covered hereby are
superseded by this Agreement.
8.07 SEVERABILITY. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Agreement shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
8.08 CERTAIN ACTIONS FOR WHICH INDEMNIFICATION IS NOT PROVIDED.
Notwithstanding any other provision of this Agreement, Indemnitee shall not be
entitled to indemnification or advancement of Expenses under this Agreement with
respect to any Proceeding, or any Matter therein, brought or made by Indemnitee
against the Corporation.
8.09 NOTICES. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee shall, if he
anticipates or contemplates making a claim for expenses or an advance pursuant
to the terms of this Agreement, notify the Corporation of the commencement of
such action, suit or proceeding; provided, however, that any delay in so
notifying the Corporation shall not constitute a waiver or release by Indemnitee
of rights hereunder and that any omission by Indemnitee to so notify the
Corporation shall not relieve the Corporation from any liability that it may
have to Indemnitee otherwise than under this Agreement. Any communication
required or permitted to the Corporation shall be addressed to the Secretary of
the Corporation and any such communication to Indemnitee shall be addressed to
the Indemnitee's address as shown on the Corporation's records unless the
Indemnitee specifies otherwise and shall be personally delivered or delivered by
overnight mail delivery. Any such notice shall be effective upon receipt.
8.10 GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware without regard to any
principles of conflict of laws that, if applied, might permit or require the
application of the laws of a different jurisdiction.
8.11 HEADINGS. The Article and Section headings in this Agreement are for
convenience of reference only, and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
8.12 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
8.13 USE OF CERTAIN TERMS. As used in this Agreement, the words "herein,"
"hereof," and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular paragraph, subparagraph, section,
subsection, or other subdivision. Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to be
effective as of the date first above written.
SYNTROLEUM CORPORATION
By:
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Xxxx X. Xxxx, President
INDEMNITEE
By:
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APPENDIX TO EXHIBIT 10.2
Syntroleum Corporation has entered into indemnification agreements on
substantially the same terms as Exhibit 10.2 with the following executive
officers and directors:
Xxxxxxx X. Xxxx
Xxxx X. Xxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx, Xx.
Xxxxx Xxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxx, Xx.
Xxxxx Xxxxxxxx
P. Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxx
J. Xxxxxx Xxxxxxxx
