INDEMNIFICATION
AGREEMENT
THIS AGREEMENT,
dated August 30, 2005, is effective between Superior Well
Services, Inc., a Delaware corporation (the “
Corporation ”), and the undersigned director or
officer of the Corporation (“ Indemnitee
”).
WHEREAS ,
the Corporation has adopted Amended and Restated Bylaws (as the
same may be amended from time to time, the “
Bylaws ”) providing for indemnification of the
Corporation’s directors and officers to the maximum extent
authorized by the Delaware General Corporation Law (the “
DGCL ”); and
WHEREAS ,
the Bylaws and the DGCL contemplate that contracts and insurance
policies may be entered into with respect to indemnification of
directors and officers; and
WHEREAS ,
there are questions concerning the adequacy and reliability of the
protection which might be afforded to directors and officers from
acquisition of policies of Directors and Officers Liability
Insurance (“ D&O Insurance ”),
covering certain liabilities which might be incurred by directors
and officers in the performance of their services to the
Corporation; and
WHEREAS ,
it is reasonable, prudent and necessary for the Corporation to
obligate itself contractually to indemnify Indemnitee so that he
will serve or continue to serve the Corporation free from undue
concern that he will not be adequately protected; and
WHEREAS ,
Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Corporation on condition
that he be so indemnified;
NOW ,
THEREFORE , in consideration of the premises and the
covenants contained herein, the Corporation and Indemnitee do
hereby covenant and agree as follows:
1.
Definitions . As used in this Agreement:
(a) The
term “Proceeding” shall include any threatened, pending
or completed action, suit, inquiry or proceeding, whether brought
by or in the right of the Corporation or otherwise and whether of a
civil, criminal, administrative, arbitrative or investigative
nature, in which Indemnitee is or will be involved as a party, as a
witness or otherwise, by reason of the fact that Indemnitee is or
was a director or officer of the Corporation, by reason of any
action taken by him or of any inaction on his part while acting as
a director or officer or by reason of the fact that he is or was
serving at the request of the Corporation as a director, officer,
trustee, employee or agent of another corporation, partnership,
joint venture, trust, limited liability company or other
enterprise; in each case whether or not he is acting or serving in
any such capacity at the time any liability or expense is incurred
for which indemnification or reimbursement can be provided under
this Agreement; provided that any such action, suit or proceeding
that is brought by Indemnitee against the Corporation or directors
or officers of the Corporation, other than an action brought by
Indemnitee to enforce his rights under this Agreement, shall not be
deemed a Proceeding without prior approval by a majority of the
Board of Directors of the Corporation.
(b) The
term “Expenses” shall include, without limitation, any
judgments, fines and penalties against Indemnitee in connection
with a Proceeding; amounts paid by Indemnitee in settlement of a
Proceeding; and all attorneys’ fees and disbursements,
accountants’ fees, private investigation fees and
disbursements, retainers, court costs, transcript costs, fees of
experts, fees and expenses of witnesses, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements, or
expenses, reasonably incurred by or for Indemnitee in connection
with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in a Proceeding
or establishing Indemnitee’s right of entitlement to
indemnification for any of the foregoing.
(c) References
to Indemnitee’s being or acting as “a director or
officer of the Corporation” or “serving at the request
of the Corporation as a director, officer, trustee, employee or
agent of another corporation, partnership, joint venture, trust,
limited liability company or other enterprise” shall include
in each case service to or actions taken while a director, officer,
trustee, employee or agent of any subsidiary or predecessor of the
Corporation.
(d) References
to “other enterprise” shall include employee benefit
plans; references to “fines” shall include any excise
tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Corporation” shall
include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by,
such director, officer, trustee, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably
believed to be in the interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interest of the
Corporation” as referred to in this Agreement.
(e) The
term “substantiating documentation” shall mean copies
of bills or invoices for costs incurred by or for Indemnitee, or
copies of court or agency orders or decrees or settlement
agreements, as the case may be, accompanied by a sworn statement
from Indemnitee that such bills, invoices, court or agency orders
or decrees or settlement agreements, represent costs or liabilities
meeting the definition of “Expenses” herein.
(f) The
terms “he” and “his” have been used for
convenience and mean “she” and “her” if
Indemnitee is a female.
2.
Indemnity of Director or Officer . The Corporation
hereby agrees to hold harmless and indemnify Indemnitee against
Expenses to the fullest extent authorized or permitted by law
(including the applicable provisions of the DGCL). The phrase
“to the fullest extent permitted by law” shall include,
but not be limited to (a) to the fullest extent permitted by
any provision of the DGCL that authorizes or permits additional
indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL and (b) to the fullest
extent authorized or permitted by any amendments to or replacements
of the DGCL adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its officers and
directors. Any amendment, alteration or repeal of the DGCL that
adversely affects any right of Indemnitee shall be prospective only
and shall not limit or eliminate any such right with respect to any
Proceeding involving any occurrence or alleged occurrence of any
action or omission to act that took place prior to such amendment
or repeal.
2
3.
Additional Indemnity . The Corporation hereby further
agrees to hold harmless and indemnify Indemnitee against Expenses
incurred by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust, limited liability company or
other enterprise, including, without limitation, any predecessor,
subsidiary or affiliated entity of the Corporation, but only if
Indemnitee acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation. Additionally, in the case of a criminal proceeding,
Indemnitee must have had no reasonable cause to believe that his
conduct was unlawful. The termination of any Proceeding by
judgment, order of the court, settlement, 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 which he reasonably believed to be in, or not opposed to,
the best interest of the Corporation, and with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to
believe that his conduct was unlawful.
4.
Choice of Counsel . If Indemnitee is not an officer
of the Corporation, he, together with the other directors who are
not officers of the Corporation (the “ Outside
Directors ”), shall be entitled to employ, and be
reimbursed for the fees and disbursements of, counsel separate from
that chosen by Indemnitees who are officers of the Corporation. The
principal counsel for Outside Directors (“ Principal
Counsel ”) shall be determined by majority vote of
the Outside Directors, and the Principal Counsel for the
Indemnitees who are not Outside Directors (“ Separate
Counsel ”) shall be determined by majority vote of
such Indemnitees, in each case subject to the consent of the
Corporation (not to be unreasonably withheld or delayed). The
obligation of the Corporation to reimburse Indemnitee for the fees
and disbursements of counsel hereunder shall not extend to the fees
and disbursements of any counsel employed by Indemnitee other than
Principal Counsel or Separate Counsel, as the case may be, unless
Indemnitee has interests that are different from those of the other
Indemnitees or defenses available to him that are in addition to or
different from those of the other Indemnitees such that Principal
Counsel or Separate Counsel, as the case may be, would have an
actual or potential conflict of interest in
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