GENESIS FLUID SOLUTIONS HOLDINGS, INC. DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
Exhibit 10.2
This Director and Officer Indemnification Agreement, dated as of December 15, 2009 (this
“Agreement”), is made by and between Genesis Fluid Solutions Holdings, Inc., a Delaware corporation
(the “Company”), and Selby F. Little, III (the “Indemnitee”).
RECITALS:
A. Section 141 of the Delaware General Corporation Law provides that the business and affairs
of a corporation shall be managed by or under the direction of its board of directors.
B. By virtue of the managerial prerogatives vested in the directors and officers of a Delaware
corporation, directors and officers act as fiduciaries of the corporation and its stockholders.
C. Thus, it is critically important to the Company and its stockholders that the Company be
able to attract and retain the most capable persons reasonably available to serve as directors and
officers of the Company.
D. In recognition of the need for corporations to be able to induce capable and responsible
persons to accept positions in corporate management, Delaware law authorizes (and in some instances
requires) corporations to indemnify their directors and officers, and further authorizes
corporations to purchase and maintain insurance for the benefit of their directors and officers.
E. The Delaware courts have recognized that indemnification by a corporation serves the dual
policies of (1) allowing corporate officials to resist unjustified lawsuits, secure in the
knowledge that, if vindicated, the corporation will bear the expense of litigation, and (2)
encouraging capable women and men to serve as corporate directors and officers, secure in the
knowledge that the corporation will absorb the costs of defending their honesty and integrity.
F. The number of lawsuits challenging the judgment and actions of directors and officers of
Delaware corporations, the costs of defending those lawsuits and the threat to personal assets have
all materially increased over the past several years, chilling the willingness of capable women and
men to undertake the responsibilities imposed on corporate directors and officers.
G. Recent federal legislation and rules adopted by the Securities and Exchange Commission and
the national securities exchanges have exposed such directors and officers to new and substantially
broadened civil liabilities.
H. Under Delaware law, a director’s or officer’s right to be reimbursed for the costs of
defense of criminal actions, whether such claims are asserted under state or federal law, does not
depend upon the merits of the claims asserted against the director or officer and is separate and
distinct from any right to indemnification the director may be able to establish.
I. Indemnitee is, or will be, a director and/or officer of the Company and his or her
willingness to serve in such capacity is predicated, in substantial part, upon the Company’s
willingness to indemnify him or her in accordance with the principles reflected above, to the
fullest extent permitted by the laws of the State of Delaware, and upon the other undertakings set
forth in this Agreement.
J. Therefore, in recognition of the need to provide Indemnitee with substantial protection
against personal liability, in order to procure Indemnitee’s continued service as a director and/or
officer of the Company and to enhance Indemnitee’s ability to serve the Company in an effective
manner, and in order to provide such protection pursuant to express contract rights (intended to be
enforceable irrespective of, among other things, any amendment to the Company’s certificate of
incorporation or bylaws (collectively, the “Constituent Documents”), any change in the composition
of the Company’s Board of Directors (the “Board”) or any change-in-control or business combination
transaction relating to the Company), the Company wishes to provide in this Agreement for the
indemnification and advancement of Expenses to Indemnitee on the terms, and subject to the
conditions, set forth in this Agreement.
K. In light of the considerations referred to in the preceding recitals, it is the Company’s
intention and desire that the provisions of this Agreement be construed liberally, subject to their
express terms, to maximize the protections to be provided to Indemnitee hereunder.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this Agreement with initial capital letters:
(a) “Change in Control” shall have occurred at such time, if any, as Incumbent Directors cease
for any reason to constitute a majority of Directors. For purposes of this Section 1(a),
“Incumbent Directors” means the individuals who, as of the date hereof, are Directors of the
Company and any individual becoming a Director subsequent to the date hereof whose election,
nomination for election by the Company’s stockholders, or appointment, was approved by a vote of at
least a majority of the then Incumbent Directors (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for director, without
objection to such nomination); provided, however, that an individual shall not be an Incumbent
Director if such individual’s election or appointment to the Board occurs as a result of an actual
or threatened election contest (as described in Rule 14a-12(c) of the Securities Exchange Act of
1934, as amended) with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
(b) “Claim” means (i) any threatened, asserted, pending or completed claim, demand, action,
suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other,
and whether made pursuant to federal, state or other law; and (ii) any
inquiry or investigation, whether made, instituted or conducted by the Company or any other
Person, including, without limitation, any federal, state or other governmental entity, that
Indemnitee reasonably determines might lead to the institution of any such claim, demand, action,
suit or proceeding. For the avoidance of doubt, the Company intends indemnity to be provided
hereunder in respect of acts or failure to act prior to, on or after the date hereof.
2
(c) “Controlled Affiliate” means any corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or not for profit, that is directly or
indirectly controlled by the Company. For purposes of this definition, “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of an entity or enterprise, whether through the ownership of voting securities, through
other voting rights, by contract or otherwise; provided that direct or indirect beneficial
ownership of capital stock or other interests in an entity or enterprise entitling the holder to
cast 15% or more of the total number of votes generally entitled to be cast in the election of
directors (or persons performing comparable functions) of such entity or enterprise shall be deemed
to constitute control for purposes of this definition.
(d) “Disinterested Director” means a director of the Company who is not and was not a party to
the Claim in respect of which indemnification is sought by Indemnitee.
(e) “Expenses” means attorneys’ and experts’ fees and expenses and all other costs and
expenses paid or payable in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to investigate, defend, be a witness in or
participate in (including on appeal), any Claim.
(f) “Indemnifiable Claim” means any Claim based upon, arising out of or resulting from (i) any
actual, alleged or suspected act or failure to act by Indemnitee in his or her capacity as a
director, officer, employee or agent of the Company or as a director, officer, employee, member,
manager, trustee or agent of any other corporation, limited liability company, partnership, joint
venture, trust or other entity or enterprise, whether or not for profit, as to which Indemnitee is
or was serving at the request of the Company, (ii) any actual, alleged or suspected act or failure
to act by Indemnitee in respect of any business, transaction, communication, filing, disclosure or
other activity of the Company or any other entity or enterprise referred to in clause (i) of this
sentence, or (iii) Indemnitee’s status as a current or former director, officer, employee or agent
of the Company or as a current or former director, officer, employee, member, manager, trustee or
agent of the Company or any other entity or enterprise referred to in clause (i) of this sentence
or any actual, alleged or suspected act or failure to act by Indemnitee in connection with any
obligation or restriction imposed upon Indemnitee by reason of such status. In addition to any
service at the actual request of the Company, for purposes of this Agreement, Indemnitee shall be
deemed to be serving or to have served at the request of the Company as a director, officer,
employee, member, manager, trustee or agent of another entity or enterprise if Indemnitee is or was
serving as a director, officer, employee, member, manager, agent, trustee or other fiduciary of
such entity or enterprise and (i) such entity or enterprise is or at the time of such service was a
Controlled Affiliate, (ii) such entity or enterprise is or at the time of such service was an
employee benefit plan (or related trust) sponsored or maintained by the Company or a Controlled
Affiliate, or (iii) the Company or a Controlled Affiliate (by action of the Board, any committee
thereof or the Company’s Chief
Executive Officer (“CEO”) (other than as the CEO him or herself)) caused or authorized
Indemnitee to be nominated, elected, appointed, designated, employed, engaged or selected to serve
in such capacity.
3
(g) “Indemnifiable Losses” means any and all Losses relating to, arising out of or resulting
from any Indemnifiable Claim; provided, however, that Indemnifiable Losses shall not include Losses
incurred by Indemnitee in respect of any Indemnifiable Claim (or any matter or issue therein) as to
which Indemnitee shall have been adjudged liable to the Company, unless and only to the extent that
the Delaware Court of Chancery or the court in which such Indemnifiable Claim was brought shall
have determined 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 court shall deem proper.
(h) “Independent Counsel” means a nationally recognized law firm, or a member of a nationally
recognized law firm, that is experienced in matters of Delaware corporate law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company (or any
subsidiary) or Indemnitee in any matter material to either such party (other than with respect to
matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements) or (ii) any other named (or, as to a threatened matter, reasonably
likely to be named) party to the Indemnifiable Claim 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.
(i) “Losses” means any and all Expenses, damages, losses, liabilities, judgments, fines,
penalties (whether civil, criminal or other) and amounts paid or payable in settlement, including,
without limitation, all interest, assessments and other charges paid or payable in connection with
or in respect of any of the foregoing.
(j) “Person” means any individual, entity or group, within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended.
(k) “Standard of Conduct” means the standard for conduct by Indemnitee that is a condition
precedent to indemnification of Indemnitee hereunder against Indemnifiable Losses relating to,
arising out of or resulting from an Indemnifiable Claim. The Standard of Conduct is (i) good faith
and a reasonable belief by Indemnitee that his action was in or not opposed to the best interests
of the Company and, with respect to any criminal action or proceeding, that Indemnitee had no
reasonable cause to believe that his conduct was unlawful, or (ii) any other applicable standard of
conduct that may hereafter be substituted under Section 145(a) or (b) of the Delaware General
Corporation Law or any successor to such provision(s).
4
2. Indemnification Obligation. Subject only to Section 7 and to the proviso in this
Section, the Company shall indemnify, defend and hold harmless Indemnitee, to the fullest extent
permitted or required by the laws of the State of Delaware in effect on the date hereof or as such
laws may from time to time hereafter be amended to increase the scope of such permitted
indemnification, against any and all Indemnifiable Claims and Indemnifiable Losses; provided,
however, that, except as provided in Section 5, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with (i) any Claim initiated by Indemnitee
against the Company or any director or officer of the Company unless the Company has joined in or
consented to the initiation of such Claim, or (ii) the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended. The
Company acknowledges that the foregoing obligation may be broader than that now provided by
applicable law and the Company’s Constituent Documents and intends that it be interpreted
consistently with this Section and the recitals to this Agreement.
3. Advancement of Expenses. Indemnitee shall have the right to advancement by the
Company prior to the final disposition of any Indemnifiable Claim of any and all actual and
reasonable Expenses relating to, arising out of or resulting from any Indemnifiable Claim paid or
incurred by Indemnitee. Without limiting the generality or effect of any other provision hereof,
Indemnitee’s right to such advancement is not subject to the satisfaction of any Standard of
Conduct. Without limiting the generality or effect of the foregoing, within five business days
after any request by Indemnitee that is accompanied by supporting documentation for specific
reasonable Expenses to be reimbursed or advanced, the Company shall, in accordance with such
request (but without duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to
Indemnitee funds in an amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such
Expenses; provided that Indemnitee shall repay, without interest, any amounts actually advanced to
Indemnitee that, at the final disposition of the Indemnifiable Claim to which the advance related,
were in excess of amounts paid or payable by Indemnitee in respect of Expenses relating to, arising
out of or resulting from such Indemnifiable Claim. In connection with any such payment,
advancement or reimbursement, at the request of the Company, Indemnitee shall execute and deliver
to the Company an undertaking, which need not be secured and shall be accepted without reference to
Indemnitee’s ability to repay the Expenses, by or on behalf of the Indemnitee, to repay any amounts
paid, advanced or reimbursed by the Company in respect of Expenses relating to, arising out of or
resulting from any Indemnifiable Claim in respect of which it shall have been determined, following
the final disposition of such Indemnifiable Claim and in accordance with Section 7, that Indemnitee
is not entitled to indemnification hereunder.
4. Indemnification for Additional Expenses. Without limiting the generality or effect
of the foregoing, the Company shall indemnify and hold harmless Indemnitee against and, if
requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five
business days of such request accompanied by supporting documentation for specific Expenses to be
reimbursed or advanced, any and all actual and reasonable Expenses paid or incurred by Indemnitee
in connection with any Claim made, instituted or conducted by Indemnitee for (a) indemnification or
reimbursement or advance payment of Expenses by the Company under any provision of this Agreement,
or under any other agreement or provision of the Constituent Documents now or hereafter in effect
relating to Indemnifiable Claims, and/or (b) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company; provided, however, if it is ultimately determined
that the Indemnitee is not entitled to such indemnification, reimbursement, advance or insurance
recovery, as the case may be, then the Indemnitee shall be obligated to repay any such Expenses to
the Company; provided further, that, regardless in each case of whether Indemnitee ultimately is
determined to be entitled to such indemnification, reimbursement, advance or insurance recovery, as
the case may be, Indemnitee shall return,
without interest, any such advance of Expenses (or portion thereof) which remains unspent at
the final disposition of the Claim to which the advance related.
5
5. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Company for some or a portion of any Indemnifiable Loss but not for all
of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
6. Procedure for Notification. To obtain indemnification under this Agreement in
respect of an Indemnifiable Claim or Indemnifiable Loss, Indemnitee shall submit to the Company a
written request therefore, including a brief description (based upon information then available to
Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at the time of the receipt of
such request, the Company has directors’ and officers’ liability insurance in effect under which
coverage for such Indemnifiable Claim or Indemnifiable Loss is potentially available, the Company
shall give prompt written notice of such Indemnifiable Claim or Indemnifiable Loss to the
applicable insurers in accordance with the procedures set forth in the applicable policies. The
Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all Indemnifiable Claims and Indemnifiable Losses in accordance with the
terms of such policies. The Company shall provide to Indemnitee a copy of such notice delivered to
the applicable insurers, substantially concurrently with the delivery thereof by the Company. The
failure by Indemnitee to timely notify the Company of any Indemnifiable Claim or Indemnifiable Loss
shall not relieve the Company from any liability hereunder unless, and only to the extent that, the
Company did not otherwise learn of such Indemnifiable Claim or Indemnifiable Loss and to the extent
that such failure results in forfeiture by the Company of substantial defenses, rights or insurance
coverage.
7. Determination of Right to Indemnification.
(a) To the extent that Indemnitee shall have been successful on the merits or otherwise in
defense of any Indemnifiable Claim or any portion thereof or in defense of any issue or matter
therein, including, without limitation, dismissal without prejudice, Indemnitee shall be
indemnified against all Indemnifiable Losses relating to, arising out of or resulting from such
Indemnifiable Claim in accordance with Section 2 and no Standard of Conduct Determination (as
defined in Section 7(b)) shall be required.
(b) To the extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable
Claim that shall have been finally disposed of, any determination of whether Indemnitee has
satisfied the applicable Standard of Conduct (a “Standard of Conduct Determination”) shall be made
as follows: (i) if a Change in Control shall not have occurred, or if a Change in Control shall
have occurred but Indemnitee shall have requested that the Standard of Conduct Determination be
made pursuant to this clause (i), (A) by a majority vote of the Disinterested Directors, even if
less than a quorum of the Board, (B) if such Disinterested Directors so direct, by a majority vote
of a committee of Disinterested Directors designated by a majority vote of all Disinterested
Directors, or (C) if there are no such Disinterested Directors, or if a majority of the
Disinterested Directors so direct, by Independent Counsel in a written opinion addressed to the
Board, a copy of which shall be delivered to Indemnitee; and (ii) if a Change in Control shall have
occurred and Indemnitee shall not have requested that the Standard of
Conduct Determination be made pursuant to clause (i) above, by Independent Counsel in a
written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee.
6
(c) If (i) Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable
Losses pursuant to Section 7(a), (ii) no determination of whether Indemnitee has satisfied any
applicable standard of conduct under Delaware law is a legally required condition precedent to
indemnification of Indemnitee hereunder against any Indemnifiable Losses, or (iii) Indemnitee has
been determined or deemed pursuant to Section 7(b) to have satisfied the applicable Standard of
Conduct, then the Company shall pay to Indemnitee, within five business days after the later of (x)
the Notification Date in respect of the Indemnifiable Claim or portion thereof to which such
Indemnifiable Losses are related, out of which such Indemnifiable Losses arose or from which such
Indemnifiable Losses resulted, and (y) the earliest date on which the applicable criterion
specified in clause (i), (ii) or (iii) above shall have been satisfied, an amount equal to the
amount of such Indemnifiable Losses. Nothing herein is intended to mean or imply that the Company
is intending to use Section 145(f) of the Delaware General Corporation Law to dispense with a
requirement that Indemnitee meet the applicable Standard of Conduct where it is otherwise required
by such statute.
(d) If a Standard of Conduct Determination is required to be, but has not been, made by
Independent Counsel pursuant to Section 7(b)(i), the Independent Counsel shall be selected by the
Board or a committee of the Board, and the Company shall give written notice to Indemnitee advising
him or her of the identity of the Independent Counsel so selected. If a Standard of Conduct
Determination is required to be, or to have been, made by Independent Counsel pursuant to Section
7(b)(ii), the Independent Counsel shall be selected by Indemnitee, and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent Counsel so selected.
In either case, Indemnitee or the Company, as applicable, may, within five business days after
receiving written notice of selection from the other, deliver to the other 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 satisfy the criteria set forth in the definition of
“Independent Counsel” in Section 1(h), 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 properly and timely made and
substantiated, (i) 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 and (ii) the non-objecting party may, at its option, select an alternative Independent
Counsel and give written notice to the other party advising such other party of the identity of the
alternative Independent Counsel so selected, in which case the provisions of the two immediately
preceding sentences and clause (i) of this sentence shall apply to such subsequent selection and
notice. If applicable, the provisions of clause (ii) of the immediately preceding sentence shall
apply to successive alternative selections. If no Independent Counsel that is permitted under the
foregoing provisions of this Section 7(d) to make the Standard of Conduct Determination shall have
been selected within 30 calendar days after the Company gives its initial notice pursuant to the
first sentence of this Section 7(d) or Indemnitee gives its initial notice pursuant to the second
sentence of this Section 7(d), as the case may be, either the Company or Indemnitee may petition
the Court of Chancery of the State of Delaware for resolution of any objection which shall have
been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for
the appointment as
Independent Counsel of a person or firm selected by the Court or by such other person as the
Court shall designate, and the person or firm with respect to whom all objections are so resolved
or the person or firm so appointed will act as Independent Counsel. In all events, the Company
shall pay all of the actual and reasonable fees and expenses of the Independent Counsel incurred in
connection with the Independent Counsel’s determination pursuant to Section 7(b).
7
8. Cooperation. Indemnitee shall cooperate with reasonable requests of the Company in
connection with any Indemnifiable Claim and any individual or firm making such Standard of Conduct
Determination, including providing to such Person documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee
and reasonably necessary to defend the Indemnifiable Claim or make any Standard of Conduct
Determination without incurring any unreimbursed cost in connection therewith. The Company shall
indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse
Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by
supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all
costs and expenses (including attorneys’ and experts’ fees and expenses) actually and reasonably
incurred by Indemnitee in so cooperating with the Person defending the Indemnifiable Claim or
making such Standard of Conduct Determination.
9. Presumption of Entitlement. Notwithstanding any other provision hereof, in making
any Standard of Conduct Determination, the Person making such determination shall presume that
Indemnitee has satisfied the applicable Standard of Conduct.
10. No Other Presumption. For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court approval) or conviction, or
upon a plea of nolo contendere or its equivalent, will not create a presumption that Indemnitee did
not meet any applicable Standard of Conduct or that indemnification hereunder is otherwise not
permitted.
11. Non-Exclusivity. The rights of Indemnitee hereunder will be in addition to any
other rights Indemnitee may have under the Constituent Documents, or the substantive laws of the
Company’s jurisdiction of incorporation, any other contract or otherwise (collectively, “Other
Indemnity Provisions”); provided, however, that (a) to the extent that Indemnitee otherwise would
have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will
without further action be deemed to have such greater right hereunder, and (b) to the extent that
any change is made to any Other Indemnity Provision which permits any greater right to
indemnification than that provided under this Agreement as of the date hereof, Indemnitee will be
deemed to have such greater right hereunder. The Company may not, without the consent of
Indemnitee, adopt any amendment to any of the Constituent Documents the effect of which would be to
deny, diminish or encumber Indemnitee’s right to indemnification under this Agreement.
8
12. Liability Insurance and Funding. For the duration of Indemnitee’s service as a
director and/or officer of the Company and for a reasonable period of time thereafter, which such
period shall be determined by the Company in its sole discretion, the Company shall use
commercially reasonable efforts (taking into account the scope and amount of coverage available
relative to the cost thereof) to cause to be maintained in effect policies of directors’ and
officers’ liability insurance providing coverage for directors and/or officers of the Company, and,
if applicable, that is substantially comparable in scope and amount to that provided by the
Company’s current policies of directors’ and officers’ liability insurance. Upon reasonable
request, the Company shall provide Indemnitee or his or her counsel with a copy of all directors’
and officers’ liability insurance applications, binders, policies, declarations, endorsements and
other related materials. In all policies of directors’ and officers’ liability insurance obtained
by the Company, Indemnitee shall be named as an insured in such a manner as to provide Indemnitee
the same rights and benefits, subject to the same limitations, as are accorded to the Company’s
directors and officers most favorably insured by such policy. Notwithstanding the foregoing, (i)
the Company may, but shall not be required to, create a trust fund, grant a security interest or
use other means, including, without limitation, a letter of credit, to ensure the payment of such
amounts as may be necessary to satisfy its obligations to indemnify and advance expenses pursuant
to this Agreement and (ii) in renewing or seeking to renew any insurance hereunder, the Company
will not be required to expend more than 2.0 times the premium amount of the immediately preceding
policy period (equitably adjusted if necessary to reflect differences in policy periods).
13. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee
against other Persons (other than Indemnitee’s successors), including any entity or enterprise
referred to in clause (i) of the definition of “Indemnifiable Claim” in Section 1(f). Indemnitee
shall execute all papers reasonably required to evidence such rights (all of Indemnitee’s
reasonable Expenses, including attorneys’ fees and charges, related thereto to be reimbursed by or,
at the option of Indemnitee, advanced by the Company).
14. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment to Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee
has otherwise already actually received payment (net of Expenses incurred in connection therewith)
under any insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise
(including from any entity or enterprise referred to in clause (i) of the definition of
“Indemnifiable Claim” in Section 1(f)) in respect of such Indemnifiable Losses otherwise
indemnifiable hereunder.
15. Defense of Claims. Subject to the provisions of applicable policies of directors’
and officers’ liability insurance, if any, the Company shall be entitled to participate in the
defense of any Indemnifiable Claim or to assume or lead the defense thereof with counsel reasonably
satisfactory to the Indemnitee; provided that if Indemnitee determines, after consultation with
counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent
Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties
in any such Indemnifiable Claim (including any impleaded parties) include both the Company and
Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to
him or her that are different from or in addition to those available to the Company, (c) any such
representation by such counsel would be precluded under the applicable standards of professional
conduct then prevailing, or (d) Indemnitee has interests in the claim or underlying subject matter
that are different from or in addition to those of other Persons against whom the Claim has
9
been
made or might reasonably be expected to be made, then Indemnitee shall be entitled to retain separate counsel (but not more than one law
firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim for all
indemnitees in Indemnitee’s circumstances) at the Company’s expense. The Company shall not be
liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or
pending Indemnifiable Claim effected without the Company’s prior written consent. The Company
shall not, without the prior written consent of the Indemnitee, effect any settlement of any
threatened or pending Indemnifiable Claim which the Indemnitee is or could have been a party unless
such settlement solely involves the payment of money and includes a complete and unconditional
release of the Indemnitee from all liability on any claims that are the subject matter of such
Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to
any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does
not provide a complete and unconditional release of Indemnitee.
16. Mutual Acknowledgment. Both the Company and the Indemnitee acknowledge that in
certain instances, Federal law or applicable public policy may prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise. Indemnitee understands
and acknowledges that the Company may be required in the future to undertake to the Securities and
Exchange Commission to submit the question of indemnification to a court in certain circumstances
for a determination of the Company’s right under public policy to indemnify Indemnitee and, in that
event, the Indemnitee’s rights and the Company’s obligations hereunder shall be subject to that
determination.
17. Successors and Binding Agreement.
(a) This Agreement shall be binding upon and inure to the benefit of the Company and any
successor to the Company, including, without limitation, any Person acquiring directly or
indirectly all or substantially all of the business or assets of the Company whether by purchase,
merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed
the “Company” for purposes of this Agreement), but shall not otherwise be assignable or delegatable
by the Company.
(b) This Agreement shall inure to the benefit of and be enforceable by the Indemnitee’s
personal or legal representatives, executors, administrators, heirs, distributees, legatees and
other successors.
(c) This Agreement is personal in nature and neither of the parties hereto shall, without the
consent of the other, assign or delegate this Agreement or any rights or obligations hereunder
except as expressly provided in Sections 17(a) and 17(b). Without limiting the generality or
effect of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable,
whether by pledge, creation of a security interest or otherwise, other than by a transfer by the
Indemnitee’s will or by the laws of descent and distribution, and, in the event of any attempted
assignment or transfer contrary to this Section 17(c), the Company shall have no liability to pay
any amount so attempted to be assigned or transferred.
10
18. Notices. For all purposes of this Agreement, all communications, including
without limitation notices, consents, requests or approvals, required or permitted to be given
hereunder must be in writing and shall be deemed to have been duly given when hand delivered
or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or one
business day after having been sent for next-day delivery by a nationally recognized overnight
courier service, addressed to the Company (to the attention of the Secretary of the Company) and to
Indemnitee at the applicable address shown on the signature page hereto, or to such other address
as any party may have furnished to the other in writing and in accordance herewith, except that
notices of changes of address will be effective only upon receipt.
19. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Delaware, without giving effect to the principles of conflict of laws of such State. The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the Chancery Court of
the State of Delaware for all purposes in connection with any action or proceeding which arises out
of or relates to this Agreement, waive all procedural objections to suit in that jurisdiction,
including, without limitation, objections as to venue or inconvenience, agree that service in any
such action may be made by notice given in accordance with Section 18 and also agree that any
action instituted under this Agreement shall be brought only in the Chancery Court of the State of
Delaware.
20. Validity. If any provision of this Agreement or the application of any provision
hereof to any Person or circumstance is held invalid, unenforceable or otherwise illegal, the
remainder of this Agreement and the application of such provision to any other Person or
circumstance shall not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent, and only to the extent, necessary to make it
enforceable, valid or legal. In the event that any court or other adjudicative body shall decline
to reform any provision of this Agreement held to be invalid, unenforceable or otherwise illegal as
contemplated by the immediately preceding sentence, the parties thereto shall take all such action
as may be necessary or appropriate to replace the provision so held to be invalid, unenforceable or
otherwise illegal with one or more alternative provisions that effectuate the purpose and intent of
the original provisions of this Agreement as fully as possible without being invalid, unenforceable
or otherwise illegal.
21. Miscellaneous. No provision of this Agreement may be waived, modified or
discharged unless such waiver, modification or discharge is agreed to in writing signed by
Indemnitee and the Company. No waiver by either party hereto at any time of any breach by the
other party hereto or compliance with any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by either party that
are not set forth expressly in this Agreement.
11
22. Certain Interpretive Matters. Unless the context of this Agreement otherwise
requires, (1) “it” or “its” or words of any gender include each other gender, (2) words using the
singular or plural number also include the plural or singular number, respectively, (3) the terms
“hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement, (4)
the terms “Article,” “Section,” “Annex” or “Exhibit” refer to the specified Article, Section, Annex
or Exhibit of or to this Agreement, (5) the terms “include,” “includes” and “including”
will be deemed to be followed by the words “without limitation” (whether or not so expressed),
and (6) the word “or” is disjunctive but not exclusive. Whenever this Agreement refers to a number
of days, such number will refer to calendar days unless business days are specified and whenever
action must be taken (including the giving of notice or the delivery of documents) under this
Agreement during a certain period of time or by a particular date that ends or occurs on a
non-business day, then such period or date will be extended until the immediately following
business day. As used herein, “business day” means any day other than Saturday, Sunday or a United
States federal holiday.
23. Entire Agreement. This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, between the parties hereto with
respect to the subject matter of this Agreement. Any prior agreements or understandings between
the parties hereto with respect to indemnification are hereby terminated and of no further force or
effect. This Agreement is not the exclusive means of securing indemnification rights of Indemnitee
and is in addition to any rights Indemnitee may have under any Constituent Documents.
24. Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original but all of which together shall constitute one and the same
agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
12
IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized
representative to execute this Agreement as of the date first above written.
| GENESIS FLUID SOLUTIONS HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Chief Executive Officer | |||
| INDEMNITEE: |
||||
| /s/ Selby F. Little | ||||
| Name: | Selby F. Little, III | |||
| Address: | X.X. Xxx 00000 | |||
| Xxxx, XX 00000 | ||||
Signature Page to Director and Officer Indemnification Agreement
13
