Exhibit 99.1
AMENDED AND RESTATED INDEMNITY AGREEMENT
----------------------------------------
This Amended and Restated Indemnity Agreement (this "Agreement")
made
and entered into this 29th day of November, 2006, but effective as
of (the
"Effective Date"), by and between Brigham Exploration Company, 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 and 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, the Certificate of Incorporation and Bylaws of the
Company, which set
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, are
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
WHEREAS, after due consideration and investigation of the terms
and
provisions of this Agreement, the form of Indemnity Agreement
previously
approved by the Board of Directors and the stockholders of the
Company 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 entry
into the following Agreement, which contains provisions clarifying
the
indemnification process and procedure not contained in the form of
Indemnity
Agreement previously approved by the Board of Directors and the
stockholders of
the Company, is not only reasonable and prudent but necessary to
promote and
ensure the best interests of the Company and its stockholders;
and
<PAGE>
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;
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 and as Indemnitee
and the
Company may agree, as a director, officer, trustee, general
partner, managing
member, fiduciary, employee or agent of another Enterprise, for so
long as he is
duly elected or appointed and qualified in accordance with the
provisions of the
General Corporation Law of the State of Delaware and the
Certificate of
Incorporation and Bylaws of the Company or until such time as he
tenders his
resignation. The Company acknowledges that the Indemnitee is
relying on this
Agreement in so serving.
2.
DEFINITIONS. As used in this Agreement:
(a) "Change in
Control" means a change in control of the
Company of a nature that would be required to be reported in
response
to Item 6(e) of Schedule 14A of Regulation 14A (or in response to
any
similar item on any similar schedule or form) promulgated under
the
Securities Exchange Act of 1934 (the "Act"), whether or not the
Company
is then subject to such reporting requirement; provided, however,
that,
without limitation, such a Change in Control shall be deemed to
have
occurred if (i) any "person" (as such term is used in Sections
13(d)
and 14(d) of the Act) other than a trustee or other fiduciary
holding
securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of
the
Company in substantially the same proportions as their ownership
of
stock of the Company is or becomes the "beneficial owner" (as
defined
in Rule 13d-3 under the Act), directly or indirectly, of securities
of
the Company representing 15% or more of the combined voting power
of
the Company's then outstanding securities without the prior
approval of
at least two-thirds of the members of the Board of Directors of
the
Company in office immediately prior to such person attaining
such
percentage interest; (ii) there occurs a proxy contest, or the
Company
is a party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization not approved by at least
two-thirds
of the members of the Board of Directors of the Company then in
office,
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 (iii) during
any
period of two consecutive years, other than as a result of an
event
described in clause (ii) of this subsection (a), individuals who at
the
beginning of such period constituted the Board of Directors of
the
Company (including for this purpose any new director whose election
or
nomination for election by the Company's stockholders 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.
<PAGE>
(b) "Disinterested
Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of
which
indemnification is sought by Indemnitee.
(c) "Enterprise"
shall mean any other corporation, limited
liability company, partnership, joint venture, trust, employee
benefit
plan, organization or other enterprise of which Indemnitee is or
was
serving at the request of the Company as a director, officer,
trustee,
general partner, managing member, fiduciary, employee or agent.
(d)
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, or otherwise involved in, a Proceeding. Should
any
payments by the Company under this Agreement be determined to
be
subject to any federal, state or local income or excise tax,
Expenses
will also include such amounts as are necessary to place Indemnitee
in
the same after-tax position, after giving effect to all
applicable
taxes, Indemnitee would have been in had such tax not have been
determined to apply to those payments. Expenses also shall include
(i)
Expenses incurred in connection with any appeal resulting from
any
Proceeding, including, without limitation, the premium, security
for,
and other costs relating to any cost bond, supersedeas bond, or
other
appeal bond or its equivalent and (ii) Expenses incurred by
Indemnitee
in connection with the interpretation, enforcement or defense
of
Indemnitee's rights under this Agreement, by litigation or
otherwise.
(e) "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 past five years has been, retained to
represent: (i) the Company 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 party to the
Proceeding
giving rise to a claim for indemnification hereunder.
Notwithstanding
the foregoing, the term "Independent Counsel" shall not include
any
person who, under the applicable standards of professional conduct
then
prevailing, would have a conflict of interest in representing
either
the Company or Indemnitee in an action to determine Indemnitee's
rights
under this Agreement. The Company agrees to pay the reasonable fees
and
expenses of the
Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this
Agreement or
its engagement pursuant hereto.
<PAGE>
(f) "Proceeding"
shall mean any threatened, pending or
completed 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 irrespective of
the
initiator thereof. The final disposition of a Proceeding shall be
as
determined by a settlement or the judgment of a court or other
investigative or administrative body. The Board of Directors shall
not
make a determination as to the final disposition of a
Proceeding.
(g) 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, trustee, general partner,
managing
member, fiduciary, employee or agent which imposes duties on,
or
involves services by, such director, officer, trustee, general
partner,
managing member, fiduciary, employee or agent with respect to
an
Enterprise; and a person who acts in good faith and in a manner
he
reasonably believed to be in the interest of the Enterprise 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
is otherwise
involved in any 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
was serving at
the request of the Company as a director, officer, trustee, general
partner,
managing member, fiduciary, employee or agent of an Enterprise,
against all
Expenses, judgments, fines and amounts paid in settlement actually
and
reasonably incurred by Indemnitee (or on his behalf) in connection
with such
Proceeding or any claim, issue or matter therein, provided it is
determined
pursuant to Section 8 of this Agreement or by the court having
jurisdiction in
the matter, that Indemnitee 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, and, with respect to any criminal Proceeding, had no
reasonable cause
to believe his conduct was unlawful. The termination of any
Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or
conviction, or
upon a plea of nolo contendere or its equivalent, shall not, 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
Company, or, with respect to any criminal Proceeding, had
reasonable cause to
believe that his conduct was unlawful. Indemnitee shall have the
right to employ
Indemnitee's own legal counsel in any Proceeding for which
indemnification is
available under this Section 3.
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 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, trustee, general partner,
managing member,
fiduciary, employee or agent of an Enterprise, against all Expenses
actually and
reasonably incurred by Indemnitee (or on his behalf) in connection
with such
Proceeding provided it is determined pursuant to
<PAGE>
Section 8 of this Agreement or by the court having jurisdiction in
the matter,
that Indemnitee 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 or is pending, 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. Indemnitee shall have the right to employ
Indemnitee's
own legal counsel in any Proceeding for which indemnification is
available under
this Section 4.
5.
INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee
is, 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,
trustee, general partner, managing member, fiduciary, employee or
agent of an
Enterprise, a witness in any Proceeding to which Indemnitee is not
a party, he
shall be indemnified against all Expenses actually and reasonably
incurred by
Indemnitee (or on his behalf) in connection therewith.
6.
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
with or
without prejudice, Indemnitee shall be indemnified against all
Expenses actually
and reasonably incurred by Indemnitee (or on his behalf) in
connection
therewith. If Indemnitee is not wholly successful in any Proceeding
referred to
in Sections 3 and/or 4 of this Agreement, but is successful on the
merits or
otherwise (including dismissal with or without prejudice) as to one
or more, but
less than all claims, issues or matters therein, including
dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses
actually and
reasonably incurred by Indemnitee (or on his behalf) in connection
with each
successfully resolved claim, issue or matter. For purposes of this
Section 6,
and without limitation, the termination of any claim, issue or
matter in any
Proceeding referred to in Sections 3 and/or 4 of this Agreement by
dismissal,
with or without prejudice, shall be deemed to be a successful
result as to such
claim, issue or matter.
7.
ADVANCES OF EXPENSES. To the fullest extent permitted by
applicable law, the Expenses incurred by Indemnitee pursuant to
Sections 3
and/or 4 of this Agreement in connection with any Proceeding or any
claim, issue
or matter therein shall be paid by the Company currently and in
advance of the
final disposition of such Proceeding or any claim, issue or matter
therein no
later than 10 days after receipt by
