EXHIBIT 10.18
INDEMNITY AGREEMENT
This Agreement made and entered into as of this _____ day of
_______________, _____, by and between NOBLE AFFILIATES, INC., a Delaware
corporation (the "Company"), and ___________________ ("Indemnitee"), who is
currently serving the Company in the capacity of a director and/or officer
thereof;
W I T N E S S E T H:
WHEREAS, the Company and Indemnitee recognize that the interpretation of
ambiguous statutes, regulations and court opinions and of the Certificate of
Incorporation and Bylaws of the Company, and the vagaries of public policy,
are too uncertain to provide the directors and officers of the Company with
adequate or reliable advance knowledge or guidance with respect to the legal
risks and potential liabilities to which they become personally exposed as a
result of performing their duties in good faith for the Company; and
WHEREAS, the Company and the Indemnitee are aware that highly
experienced and capable persons are often reluctant to serve as directors or
officers of a corporation unless they are protected to the fullest extent
permitted by law by comprehensive insurance or indemnification, especially
since the legal risks and potential liabilities, and the very threat thereof,
associated with lawsuits filed against the officers and directors of a
corporation, and the resultant substantial time, expense, harassment,
ridicule, abuse and anxiety spent and endured in defending against such
lawsuits, whether or not meritorious, bear no reasonable or logical
relationship to the amount of compensation received by the directors or
officers from the corporation; and
WHEREAS, Section 145 of the General Corporation Law of the State of
Delaware, which sets forth certain provisions relating to the mandatory and
permissive indemnification of, and advancement of expenses to, officers and
directors (among others) of a Delaware corporation by such corporation, is
specifically not exclusive of other rights to which those indemnified
thereunder may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, and, thus, does not by itself limit
the extent to which the Company may indemnify persons serving as its officers
and directors (among others); and
WHEREAS, after due consideration and investigation of the terms and
provisions of this Agreement and the various other options available to the
Company and the Indemnitee in lieu thereof, the board of directors of the
Company has determined that the following Agreement is not only reasonable
and prudent but necessary to promote and ensure the best interests of the
Company and its stockholders; and
WHEREAS, the Company desires to have Indemnitee serve or continue to
serve as an officer and/or director of the Company, free from undue concern
for unpredictable, inappropriate or unreasonable legal risks and personal
liabilities by reason of his acting in good faith in the performance of his
duty to the Company; and Indemnitee desires to serve, or to continue to serve
(provided that he is furnished the indemnity provided for hereinafter), in
either or both of such capacities;
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NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
Indemnitee, intending to be legally bound, do hereby agree as follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to
serve as director and/or officer of the Company, at the will of the Company
or under separate contract, if such exists, for so long as he is duly elected
or appointed and qualified in accordance with the provisions of the Bylaws of
the Company or until such time as he tenders his resignation in writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall mean any action, suit or proceeding,
whether civil, criminal, administrative, arbitrative or investigative, any
appeal in such an action, suit or proceeding, and any inquiry or
investigation that could lead to such an action, suit or proceeding, except
one initiated by Indemnitee to enforce his rights under this Agreement.
(b) The term "Expenses" includes, without limitation, 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.
(c) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any (i) excise taxes assessed
with respect to any employee benefit plan and (ii) penalties; 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; and
a person who acts in good faith and in a manner he reasonably believes to
be in the interest 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.
3. INDEMNITY IN THIRD PARTY PROCEEDINGS. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is
a party to or is threatened to be made a party to or otherwise involved in any
threatened, pending or completed Proceeding (other than a Proceeding by or in
the right of the Company to procure a judgment in its favor) by reason of the
fact that Indemnitee is or was a director and/or officer of the Company, or is
or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against all Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with
such Proceeding, provided it is determined pursuant to Section 7 of this
Agreement or by the court having jurisdiction in the matter, that Indemnitee
acted in good
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faith and in a manner that he 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 his conduct was unlawful. The
termination of any Proceeding by judgment, order, settlement or conviction,
or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself,
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 Company, and, with respect to any criminal Proceeding, had
reasonable cause to believe that his conduct was unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is a party to or is threatened to be made a party to
or otherwise involved in any threatened, pending or completed Proceeding by
or in the right of the Company to procure a judgment in its favor by reason
of the fact that Indemnitee is or was a director and/or officer of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against all Expenses actually and
reasonably incurred by Indemnitee in connection with the defense, settlement
or other disposition of such Proceeding, but only if he acted in good faith
and in a manner that he reasonably believed to be in or not opposed to the
best interests of the Company, except that no indemnification shall be made
under this Section 4 in respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the Company unless and
only to the extent that the Delaware Court of Chancery or the court in which
such 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 indemnity for such
Expenses as the Delaware Court of Chancery or such other court shall deem
proper.
5. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
any other provision of this Agreement to the contrary, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding referred to in Sections 3 and/or 4 of this Agreement, or in
defense of any claim, issue or matter therein, including dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee in connection therewith.
6. ADVANCES OF EXPENSES. The Expenses incurred by Indemnitee pursuant
to Sections 3 and/or 4 of this Agreement in connection with any Proceeding
shall, at the written request of the Indemnitee, be paid by the Company in
advance of the final disposition of such Proceeding upon receipt by the
Company of an undertaking by or on behalf of Indemnitee ("Indemnitee's
Undertaking") to repay such amount to the extent that it is ultimately
determined that Indemnitee is not entitled to be indemnified by the Company.
The request for advancement of Expenses by Indemnitee and the undertaking to
repay of Indemnitee, which need not be secured, shall be substantially in the
form of Exhibit A to this Agreement.
7. RIGHT OF INDEMNITEE TO INDEMNIFICATION OR ADVANCEMENT OF EXPENSES
UPON APPLICATION; PROCEDURE UPON APPLICATION.
(a) Any indemnification under Sections 3 and/or 4 of this Agreement
shall be made no later than 45 days after receipt by the Company of the
written request of
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Indemnitee, unless a determination is made within said
45-day period by (i) a majority vote of the directors of the Company who
are not parties to the involved Proceeding, even though less than a quorum,
or (ii) independent legal counsel in a written opinion (which counsel shall
be appointed if there are no such directors or if such directors so
direct), that the Indemnitee has not met the applicable standards for
indemnification set forth in Section 3 or 4, as the case may be.
(b) Any advancement of Expenses under Section 6 of this Agreement
shall be made no later than 10 days after receipt by the Company of
Indemnitee's Undertaking.
(c) In any action to establish or enforce the right of
indemnification or to receive advancement of Expenses as provided in this
Agreement, the burden of proving that indemnification or advancement of
Expenses is not appropriate shall be on the Company. Neither the failure
of the Company (including its board of directors or independent legal
counsel) to have made a determination prior to the commencement of such
action that indemnification or advancement of Expenses is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct, nor an actual determination by the Company (including its board of
directors or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create
a presumption that Indemnitee has not met the applicable standard of
conduct. Expenses incurred by Indemnitee in connection with successfully
establishing or enforcing his right of indemnification or to receive
advancement of Expenses, in whole or in part, under this Agreement shall
also be indemnified by the Company.
8. INDEMNIFICATION AND ADVANCEMENT OF EXPENSES UNDER THIS AGREEMENT
NOT EXCLUSIVE. 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 Indemnitee may be entitled under the Certificate of
Incorporation or Bylaws of the Company, any other agreement, any vote of
stockholders or disinterested directors, the General Corporation Law of the
State of Delaware, or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
9. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification or to receive advancement by
the Company for some or a portion of the Expenses, judgments, fines or
amounts paid in settlement actually and reasonably incurred by Indemnitee in
the investigation, defense, appeal, settlement or other disposition of any
Proceeding but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee
is entitled.
10. RIGHTS CONTINUED. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall continue as to
Indemnitee even though Indemnitee may have ceased to be a director or officer
of the Company and shall inure to the benefit of Indemnitee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
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11. NO CONSTRUCTION AS AN EMPLOYMENT AGREEMENT OR ANY OTHER COMMITMENT.
Nothing contained in this Agreement shall be construed as giving Indemnitee
any right to be retained in the employ of the Company or any of its
subsidiaries, if Indemnitee currently serves as an officer of the Company, or
to be renominated as a director of the Company, if Indemnitee currently
serves as a director of the Company.
12. LIABILITY INSURANCE. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms, to the maximum extent of the coverage
available for any director or officer of the Company under such policy or
policies.
13. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable under
this Agreement if, and to the extent that, Indemnitee has otherwise actually
received such payment under any contract, agreement or insurance policy, the
Certificate of Incorporation or Bylaws of the Company, or otherwise.
14. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including without
limitation the execution of such documents as may be necessary to enable the
Company effectively to bring suit to enforce such rights.
15. EXCEPTIONS. Notwithstanding any other provision in this Agreement,
the Company shall not be obligated pursuant to the terms of this Agreement,
to indemnify or advance Expenses to the Indemnitee with respect to any
Proceeding, or any claim therein, (i) brought or made by Indemnitee against
the Company, or (ii) in which final judgment is rendered against the
Indemnitee for an accounting of profits made from the purchase and sale or
the sale and purchase by Indemnitee of securities of the Company pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of any federal, state or local statute.
16. NOTICES. Any notice or other communication required or permitted
to be given or made to the Company or Indemnitee pursuant to this Agreement
shall be given or made in writing by depositing the same in the United States
mail, with postage thereon prepaid, addressed to the person to whom such
notice or communication is directed at the address of such person on the
records of the Company, and such notice or communication shall be deemed
given or made at the time when the same shall be so deposited in the United
States mail. Any such notice or communication to the Company shall be
addressed to the Secretary of the Company.
17. CONTRACTUAL RIGHTS. The right to be indemnified or to receive
advancement of Expenses under this Agreement (i) is a contract right based
upon good and valuable consideration, pursuant to which Indemnitee may ▇▇▇,
(ii) is and is intended to be retroactive and shall be available as to events
occurring prior to the date of this Agreement and (iii) shall continue after
any rescission or restrictive modification of this Agreement as to events
occurring prior thereto.
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18. 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 provisions held invalid,
illegal or unenforceable.
19. SUCCESSORS; BINDING AGREEMENT. The Company shall require any
successor to all or substantially all of the business and/or assets of the
Company (whether direct or indirect, by purchase, merger, consolidation or
otherwise), by agreement in form and substance reasonably satisfactory to
Indemnitee, to expressly 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. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 19 or which otherwise becomes bound by
the terms and provisions of this Agreement by operation of law.
20. COUNTERPARTS, MODIFICATION, HEADINGS, GENDER.
(a) This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument, and either
party hereto may execute this Agreement by signing any such counterpart.
(b) No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Indemnitee and an appropriate officer of the Company.
No waiver by any party at any time of any breach by any other party of, or
compliance with, any condition or provision of this Agreement to be
performed by any other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or at any prior or
subsequent time.
(c) Section headings are not to be considered part of this Agreement,
are solely for convenience of reference, and shall not affect the meaning
or interpretation of this Agreement or any provision set forth herein.
(d) Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall
be construed to include the plural and vice versa, unless the context
otherwise requires.
21. ASSIGNABILITY. This Agreement shall not be assignable by either party
without the consent of the other.
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22. EXCLUSIVE JURISDICTION; GOVERNING LAW. The Company and Indemnitee
agree that all disputes in any way relating to or arising under this
Agreement, including, without limitation, any action for advancement of
Expenses or indemnification, shall be litigated, if at all, exclusively in
the Delaware Court of Chancery, and, if necessary, the corresponding
appellate courts. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws. The Company and Indemnitee expressly submit
themselves to the personal jurisdiction of the State of Delaware.
23. TERMINATION.
(a) This Agreement shall terminate upon the mutual agreement of the
parties that this Agreement shall terminate or upon the death of Indemnitee
or the resignation, retirement, removal or replacement of Indemnitee from
all of his positions as a director and/or officer of the Company.
(b) The termination of this Agreement shall not terminate:
(i) the Company's liability for claims or actions against
Indemnitee arising out of or related to acts, omissions, occurrences,
facts or circumstances occurring or alleged to have occurred prior to
such termination; or
(ii) the applicability of the terms and conditions of this
Agreement to such claims or actions.
IN WITNESS WHEREOF, the Company and Indemnitee have executed this Agreement
as of the date and year first above written.
NOBLE AFFILIATES, INC.
By:_________________________________
Name:_________________________
Title:________________________
INDEMNITEE
____________________________________
Name:_______________________________
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EXHIBIT A
INDEMNITEE'S UNDERTAKING
___________, 19__
Noble Affiliates, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: INDEMNITY AGREEMENT
Gentlemen:
Reference is made to the Indemnity Agreement dated as of ___________,
19__ by and between Noble Affiliates, Inc. and the undersigned Indemnitee,
and particularly to Section 6 thereof relating to advance payment by the
Company of certain Expenses incurred by the undersigned Indemnitee.
Capitalized terms used and not otherwise defined in this Indemnitee's
Undertaking shall have the respective meanings ascribed to such terms in the
Agreement.
The undersigned Indemnitee has incurred Expenses pursuant to Section 3
and/or 4 of the Agreement in connection with a Proceeding. The types and
amounts of Expenses are itemized on Attachment I to this Indemnitee's
Undertaking. The undersigned Indemnitee hereby requests that the total
amount of these Expenses (the "Advanced Amount") be paid by the Company in
advance of the final disposition of such Proceeding in accordance with the
Agreement.
The undersigned Indemnitee hereby agrees to repay the Advanced Amount to
the Company to the extent that it is ultimately determined that the
undersigned Indemnitee is not entitled to be indemnified by the Company.
This agreement of Indemnitee to repay shall be unsecured.
Very truly yours,
_________________________________
Signature
_________________________________
Name of Indemnitee (Type or Print)
ATTACHMENT I TO
INDEMNITEE'S UNDERTAKING
ITEMIZATION OF
TYPES AND AMOUNTS OF EXPENSES
Attached hereto are receipts, statements or invoices for the following
qualifying Expenses which Indemnitee represents have been incurred by
Indemnitee in connection with a Proceeding:
TYPE AMOUNT
---- ------
1.
------
Total Advanced Amount
------
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