Exhibit 10.Y
INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “Agreement”) is made
and delivered this
day
of
,
,
(the “Effective Date”) by El Paso Corporation (the
“Company”), to and for the benefit of
(“Participant”).
WHEREAS, in order to induce Participant to continue as an officer
of the Company (an “Officer”) and/or in the capacity of
a fiduciary under certain of the Company’s employee benefit
plans (a “Fiduciary”), the Company is executing and
delivering to Participant this Indemnification
Agreement.
NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Company hereby agrees as follows:
SECTION 1. Right To
Indemnification
If
Participant is made a party or is threatened to be made a party to
or is involved (including, without limitation, as a witness) in any
actual or threatened action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a
“proceeding”), by reason of the fact that he is or was
an Officer and/or Fiduciary or, while an Officer and/or Fiduciary,
is or was serving as an officer, director, employee or agent of any
subsidiary of the Company (or otherwise is or was serving at the
request of the Company including service with respect to any
employee benefit plan), whether the basis of such proceeding is
alleged action in an official capacity as an Officer or Fiduciary
or in any other capacity while serving as an Officer and/or
Fiduciary, he shall be indemnified and held harmless by the Company
to the fullest extent permitted by the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to
provide prior to such amendment), or by other applicable law as
then in effect, against all expense, liability and loss (including
attorneys’ fees, judgments, fines, ERISA excise taxes or
penalties and amounts to be paid in settlement) actually and
reasonably incurred or suffered by him in connection therewith and
such indemnification shall continue after Participant has ceased to
be an Officer and/or a Fiduciary and shall inure to the benefit of
Participant’s heirs, executors and administrators; provided,
however, that except as provided in Section 2 of this
Agreement with respect to proceedings seeking to enforce rights to
indemnification or to advancement of expenses, the Company shall be
required to indemnify Participant in connection with a proceeding
(or part thereof) initiated by Participant only if such proceeding
(or part thereof) was authorized by the Board of Directors of the
Company (the “Board”). The right to indemnification
conferred in this Agreement shall include the right to be paid by
the corporation the reasonable expenses (including attorneys’
fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an “advancement of
expenses”); further provided, however, that, if the General
Corporation Law of the State of Delaware requires, an advancement
of expenses incurred by Participant in his capacity as an Officer
and/or a Fiduciary (and not in any other capacity in which service
was or is rendered by Participant while an Officer and/or a
Fiduciary, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the Company of an
undertaking, if permitted by Federal Law, by or on behalf of
Participant, to repay all amounts so advanced if it shall
ultimately be determined that he is not entitled to be indemnified
under this Agreement, or otherwise, and provided further that
except as provided in Section 2 of this Agreement with respect
to proceedings seeking to enforce rights to indemnification or an
advancement of expenses, the Company shall be required to advance
expenses to Participant in connection with a proceeding initiated
by him only if such proceeding was authorized by the
Board.
SECTION 2. Right To
Bring Suit
If a
claim under Section 1 of this Agreement is not paid in full by
the Company (following the final disposition of the proceeding)
within sixty (60) days after a written claim has been received
by the Company, except in the case of a claim for an advancement of
expenses, in which case final disposition of the proceeding is not
required and the applicable period shall be twenty (20) days,
Participant may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim and, to the
extent successful in whole or in material part, Participant shall
be entitled to be paid the expense of prosecuting such suit.
Participant shall be presumed to be entitled to indemnification
under this Agreement upon submission of a written claim (and, in an
action brought to enforce a claim for an advancement of expenses,
where the required undertaking, if any is required, has been
tendered to the Company), and thereafter the Company shall have the
burden of proof to overcome the presumption that Participant is not
so entitled. Neither the failure of the Company (including its
Board, independent legal counsel, or its stockholders), to have
made a determination prior to the commencement of such suit that
indemnification of Participant is proper in the circumstances, nor
an actual determination by the Company (including its Board,
independent legal counsel or its stockholders) that Participant is
not entitled to indemnification, shall be a defense to the suit or
create a presumption that Participant is not so
entitled.
SECTION 3.
Nonexclusivity of Rights
The
rights to indemnification and to the advancement of expenses
conferred in this Agreement are in addition to and shall not be
exclusive of any other right Participant may have or hereafter
acquire under any statute, provision of the Restated Certificate of
Incorporation of the Company or its By-laws, or under any other
plan, program, arrangement, agreement, vote of stockholders or
disinterested Directors or otherwise.
SECTION 4. Insurance,
Contracts and Funding
The
Company may maintain insurance, at its expense, to protect itself
and Participant against any expense, liability or loss, whether or
not the Company would have the power to indemnify Participant
against such expense, liability or loss under the General
Corporation Law of the State of Delaware. The Company may enter
into contracts with Participant in furtherance of the provisions of
this Agreement and may 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 effect indemnification as provided in this Agreement.
To the extent the Company maintains an insurance policy or policies
providing directors’, officers’ and fiduciaries
liability insurance, Participant 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 Company director, officer
or fiduciary.
SECTION 5. Change of
Control
(a) A “Change in Control” shall mean the
occurrence of any of the following:
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(I) An acquisition (other than directly from the Company) of
any voting securities of the Company (the “Voting
Securities”) by any “Person” (as the term
“person” is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), immediately after which such Person
has “Beneficial Ownership” (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of more than
twenty percent (20%) of (1) the then-outstanding shares of
common stock of the Company (or any other securities into which
such shares of common stock are changed or for which such shares of
common stock are exchanged) (the “Shares”) or
(2) the combined voting power of the Company’s
then-outstanding Voting Securities; provided ,
however , that in determining whether a Change in Control
has occurred pursuant to this paragraph (I), the acquisition
of Shares or Voting Securities in a “Non-Control
Acquisition” (as hereinafter defined) shall not constitute a
Change in Control. A “Non-Control Acquisition” shall
mean an acquisition by (i) an employee benefit plan (or a
trust forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person the majority of the voting
power, voting equity securities or equity interest of which is
owned, directly or indirectly, by the Company (for purp
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