Exhibit 10.2
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT made
and entered into as of
(“Agreement”), by and between EXTERRAN HOLDINGS, INC.,
a Delaware corporation (“Company”), and
(“Indemnitee”).
W I T
N E S S E T H:
WHEREAS, highly skilled and competent
persons are becoming more reluctant to serve public corporations as
directors or officers unless they are provided with adequate
protection through insurance and indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of a corporation; and
WHEREAS, uncertainties relating to
indemnification have increased the difficulty of attracting and
retaining such persons; and
WHEREAS, the Board of Directors has
determined that the inability to attract and retain such persons is
detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future; and
WHEREAS, while the Amended and
Restated Bylaws of the Company (the “Bylaws”) require
indemnification of the officers and directors of the Company, the
Bylaws and the General Corporation Law of the State of Delaware
(the “DGCL”) expressly provide that the indemnification
provisions set forth therein are not exclusive, and thereby
contemplate that contracts may be entered into between the Company
and its directors, officers and other persons with respect to
indemnification; and
WHEREAS, Indemnitee does not regard
the protection available under the Bylaws and through insurance as
adequate in the present circumstances, and may not be willing to
serve as an officer, director, employee or agent without adequate
protection, and the Company desires Indemnitee to serve in one or
more such capacities; and
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify Indemnitee to the fullest extent permitted by applicable
law so that Indemnitee will serve or continue to serve the Company
free from undue concern that Indemnitee will not be so indemnified;
and
WHEREAS, Indemnitee is willing to
serve and to take on additional service for or on behalf of the
Company on the condition that Indemnitee be so indemnified;
and
WHEREAS, this Agreement is a
supplement to and in furtherance of the Bylaws and any resolutions
adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder.
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1. Services by
Indemnitee . Indemnitee agrees to serve as a director, officer,
employee or agent of the Company. This Agreement does not create or
otherwise establish any right on the part of Indemnitee to be and
continue to be nominated to be a director, officer, employee or
agent of the Company and does not create an employment contract
between the Company and Indemnitee.
Section 2.
Indemnification . The Company shall indemnify Indemnitee to
the fullest extent permitted by applicable law in effect on the
date hereof or as such laws may from time to time be amended.
Without diminishing the scope of the indemnification provided by
this Section 2, the rights of indemnification of Indemnitee
provided hereunder shall include but shall not be limited to those
rights, except to the extent expressly prohibited by applicable
law.
Section 3. Action or
Proceeding Other Than an Action by or in the Right of the
Company . Indemnitee shall be entitled to the indemnification
rights provided in this Section 3 if Indemnitee is a party to
or participant in or is threatened to be made a party to or
participant in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative in nature, other than an action 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, officer, employee,
agent, or fiduciary of the Company or is or was serving at the
request of the Company as a director, officer, employee, agent, or
fiduciary of any other entity or by reason of anything done or not
done by him or her in any such capacity. Pursuant to this
Section 3, Indemnitee shall be indemnified to the fullest
extent permitted by applicable law against expenses (including
attorneys’ fees and disbursements), judgments, penalties,
fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with such action, suit or
proceeding (including, but not limited to, the investigation,
defense or appeal thereof or any claim, issue or matter therein),
if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful.
Section 4. Actions by or in
the Right of the Company . Indemnitee shall be entitled to the
indemnification rights provided in this Section 4 if
Indemnitee is a person who was or is made a party to or participant
in or is threatened to be made a party to or participant in any
threatened, pending or completed action or suit brought 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, officer,
employee, agent, or fiduciary of the Company or is or was serving
at the request of the Company as a director, officer, employee,
agent, or fiduciary of any other entity by reason of anything done
or not done by Indemnitee in any such capacity. Pursuant to this
Section 4, Indemnitee shall be indemnified to the fullest
extent permitted by applicable law against expenses (including
attorneys’ fees and disbursements) actually and reasonably
incurred by Indemnitee in connection
with
such action or suit (including, but not limited to, the
investigation, defense, settlement or appeal thereof or any claim,
issue or matter therein) if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company; provided , however
, that no such indemnification shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court to be liable to the Company, unless,
and only to the extent that, the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought
shall determine upon application that, despite such adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for
such expenses which such court shall deem proper.
Section 5. Indemnification
for Expenses of Successful Party . Notwithstanding the other
provisions of this Agreement, to the extent that Indemnitee has
been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 3 or 4
hereof, or in defense of any claim, issue or matter therein,
Indemnitee shall be indemnified against all expenses (including
attorneys’ fees and disbursements) actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith. For purposes of this Section and
Section 6 below, and without limitation, the termination of
any claim, issue or matter in any such action, suit or proceeding
by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
Section 6. Partial
Indemnification . If Indemnitee is only partially successful in
the defense, investigation, settlement or appeal of any action,
suit, investigation or proceeding described in Section 4
hereof, and as a result is not entitled under Section 5 hereof
to indemnification by the Company for the total amount of the
expenses (including attorneys’ fees and disbursements),
judgments, penalties, fines, and amounts paid in settlement
actually and reasonably incurred by Indemnitee, the Company shall
nevertheless indemnify Indemnitee, as a matter of right pursuant to
Section 5 hereof, to the extent Indemnitee has been partially
successful. If the Indemnitee is only partially successful in any
such action, suit, investigation or proceeding, the Company shall
also indemnify Indemnitee, to the fullest extent permitted by
applicable law, against all expenses (including attorneys’
fees and disbursements) reasonably incurred in connection with a
claim, issue or matter related to any claim, issue or matter on
which the Indemnitee was successful.
Section 7. Indemnification
for Expenses of a Witness . To the extent that Indemnitee is,
by reason of Indemnitee’s Corporate Status (as hereinafter
defined), a witness in any proceeding, Indemnitee shall be
indemnified by the Company against all expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection therewith.
Section 8. Additional
Indemnification .
(a) Notwithstanding any
limitation in Sections 3, 4, 5 or 6 hereof, the Company shall
indemnify Indemnitee to the fullest extent permitted by applicable
law if Indemnitee is a party to or threatened to be made a party to
any action, suit or proceeding (including any action, suit or
proceeding by or in the right of the Company to procure a judgment
in its favor) against all expenses, judgments, fines and amounts
paid in settlement actually and reasonably incurred by Indemnitee
in connection with the action, suit or proceeding.
(b) For purposes of
Section 8(a), the meaning of the phrase “to the fullest
extent permitted by applicable law” shall include, but not be
limited to:
(i) to the fullest extent permitted
by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL, and
(ii) 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.
Section 9. Exclusions .
Notwithstanding any provision of this Agreement, the Company shall
not be obligated under this Agreement to make any indemnity (and,
with respect to clause (c) below, advancement of expenses) in
connection with any claim made against Indemnitee:
(a) for which payment has
actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect
to any excess beyond the amount paid under any insurance policy or
other indemnity provision; or
(b) for (i) an accounting
of profits made from the purchase and sale (or sale and purchase)
by Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act (as hereinafter defined) or
similar provisions of state statutory law or common law, or
(ii) any reimbursement of the Company by the Indemnitee of any
bonus or other incentive-based or equity-based compensation or of
any profits realized by the Indemnitee from the sale of securities
of the Company, as required in each case under the Exchange Act
(including any such reimbursements that arise from an accounting
restatement of the Company pursuant to Section 304 of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”),
or the payment to the Company of profits arising from the purchase
and sale by Indemnitee of securities in violation of
Section 306 of the Sarbanes-Oxley Act), or
(c) except as provided in
Section 13 of this Agreement, in connection with any action,
suit or proceeding (or any part thereof) initiated by Indemnitee,
including any action, suit or proceeding (or any part thereof)
initiated by Indemnitee against the Company or its directors,
officers, employees or other indemnitees, unless (i) the Board
of Directors authorized the action, suit or proceeding (or any part
thereof) prior to its initiation or (ii) the Company provides
the indemnification or advancement of expenses, in its sole
discretion, pursuant to the powers vested in the Company under
applicable law.
Section 10. Determination of
Entitlement to Indemnification .
(a) Upon written request by
Indemnitee for indemnification pursuant to Section 3 or 4
hereof, the entitlement of the Indemnitee to indemnification
pursuant to the terms of this Agreement shall be determined by the
following person or persons who shall be empowered to make such
determination: (i) if a Change of Control shall have occurred,
by Independent Counsel (as hereinafter defined) in a written
opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, or (ii) if a Change of Control shall
not have
occurred, (A) by the Board of Directors, by a majority vote of
the Disinterested Directors (as hereinafter defined) even if less
than a quorum; or (B) if there are no such Disinterested
Directors or if such Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to Indemnitee; or (C) if so
directed by the Board of Directors, by the stockholders of the
Company. Such determination of entitlement to indemnification shall
be made not later than 60 days after receipt by the Company of
a written request for indemnification. Such request shall include
documentation or information which is necessary for such
determination and which is reasonably available to Indemnitee. To
the fullest extent not prohibited by law, any expenses (including
attorneys’ fees) incurred by Indemnitee in connection with
Indemnitee’s request for indemnification hereunder shall be
borne by the Company, and the Company hereby indemnifies and agrees
to hold Indemnitee harmless therefrom irrespective of the outcome
of the determination of Indemnitee’s entitlement to
indemnification. If the person making such determination shall
determine that Indemnitee is entitled to indemnification as to part
(but not all) of the application for indemnification, such person
shall reasonably prorate such partial indemnification among such
claims, issues or matters.
(b) In the event the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 10(a) hereof, the
Independent Counsel shall be selected as provided in this
Section 10(b). If a Change of Control shall not have occurred,
the Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to Indemnitee
advising Indemnitee of the identity of the Independent Counsel so
selected. If a Change of Control shall have occurred, the
Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board
of Directors, in which event the preceding sentence shall apply),
and Indemnitee shall give written notice to the Company advising it
of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within
ten (10) days after such written notice of selection shall
have been given, deliver to the Company or to Indemnitee, as the
case may be, 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 meet the
requirements of “Independent Counsel” as defined
herein, 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 so made and substantiated, 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. If, within twenty
(20) days after the later of submission by Indemnitee of a
written request for indemnification pursuant to Section 10(a)
hereof and the final disposition of the action, suit or proceeding,
no Independent Counsel shall have been selected and not objected
to, either the Company or Indemnitee may petition a court of
competent jurisdiction 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 selected by the Court or by such
other person as the Court shall designate, and the person with
respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 10(a)
hereof. Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 13 of this Agreement,
Independent Counsel shall be discharged
and
relieved of any further responsibility in such capacity (subject to
the applicable standards of professional conduct then
prevailing).
Section 11. Presumptions and
Effect of Certain Proceedi
|
