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EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("Agreement") is made as of
___________,
2006 by and between DELEK US HOLDINGS, INC., a Delaware corporation
(the
"Company"), and ______________ ("Indemnitee").
W I T N E S S E T H:
WHEREAS,
highly competent persons have become more reluctant to serve
publicly-held corporations as directors, officers or in other
capacities unless
they are provided with adequate protection through insurance and/or
adequate
indemnification against inordinate risks of claims and actions
against them
arising out of their service to and activities on behalf of a
corporation;
WHEREAS,
the uncertainties relating to such insurance and
indemnification
have increased the difficulty of attracting and retaining such
persons;
WHEREAS,
the Board of Directors of the Company (the "Board") has
determined that the increased difficulty in attracting and
retaining 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;
WHEREAS,
although Indemnitee may be entitled to indemnification pursuant
to the Company's certificate of incorporation, as amended (the
"Certificate of
Incorporation"), the Company's bylaws and the Delaware General
Corporation Law
("DGCL"), the DGCL expressly provides that the indemnification
provisions set
forth therein are not exclusive, and thereby contemplates that
contracts may be
entered into between the Company and members of the Board, officers
and other
persons with respect to indemnification;
WHEREAS,
it is reasonable, prudent and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses
on behalf
of, such persons to the fullest extent permitted by applicable law
so that they
will serve or continue to serve the Company free from undue concern
that they
will not be so indemnified;
WHEREAS,
this Agreement is a supplement to and in furtherance of the
Certificate of Incorporation and the bylaws of the Company and any
resolutions
adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS,
Indemnitee believes that this Agreement is desirable to augment
the protection available under the Certificate of Incorporation and
the
Company's bylaws and insurance, and may not be willing to serve as
a director or
officer or in other capacities without the additional protection
provided for
under this Agreement, and the Company desires Indemnitee to serve
in such
capacity and Indemnitee is willing to serve and continue to serve
on the
condition that he or she be so indemnified.
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NOW, THEREFORE, in consideration of the premises and the
covenants
contained herein, the Company and Indemnitee do hereby covenant and
agree as
follows:
1.
Services to the Company. Indemnitee will serve or continue to
serve, at
the will of the Company in accordance with the Company's bylaws, as
a director
or officer of one or more Enterprises for so long as Indemnitee is
duly elected,
appointed or requested or until Indemnitee tenders his or her
resignation from
all Enterprises.
2.
Definitions. As used in this Agreement:
(a) A "Change in Control" shall be deemed to occur upon the
earliest
to occur
after the date of this Agreement of any of the following
events:
(i) Change in Board of Directors. During any period of two (2)
consecutive years (not including any period prior to the
execution
of this Agreement), individuals who at the beginning of such
period
constitute the Board, and any new director (other than a
director
designated by a person who has entered into an agreement with
the
Company to effect a transaction described in Sections 2(a)(ii)
or
2(a)(iii)) whose election by the Board 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 either
were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for
any
reason to constitute at least a majority of the members of the
Board;
(ii) Corporate Transactions. The effective date of a merger or
consolidation of the Company with any other entity, other than
a
merger or consolidation which would result in the voting
securities
of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) more than 51% of the combined voting power of
the
voting securities of the surviving entity outstanding
immediately
after such merger or consolidation and with the power to elect
at
least a majority of the board of directors or other governing
body
of such surviving entity;
(iii) Liquidation. The approval by the stockholders of the
Company of a complete liquidation of the Company or an agreement
for
the sale or disposition by the Company of all or substantially
all
of the Company's assets; and
(iv) Other Events. There occurs any other event of a nature
that would be required to be reported in response to Item 6(e)
of
Schedule 14A of Regulation 14A (or a response to any similar item
on
any similar schedule or form) promulgated under the Exchange Act
(as
defined below), whether or not the Company is then subject to
such
reporting requirement.
(b)
"Corporate Status" describes the status of a person who is or
was a
director, officer, trustee, partner, managing member,
fiduciary,
employee
or agent of the Company or
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of any
other corporation, limited liability company, limited or
general
partnership or joint venture, trust, employee benefit plan or
other
enterprise
which such person is or was serving at the request of the
Company.
(c) "Disinterested Director" means a director of the Company who
is
not and
was not a party to the Proceeding (as defined below) in respect
of
which
indemnification is sought by Indemnitee.
(d) "Enterprise" shall mean the Company and any other
corporation,
limited
liability company, limited or general partnership, joint
venture,
trust,
employee benefit plan or other enterprise of which Indemnitee is
or
was
serving at the request of the Company as a director, officer,
trustee,
partner,
managing member, employee, agent or fiduciary.
(e) "Exchange Act" shall mean the Securities Exchange Act of
1934,
as
amended.
(f) "Expenses" shall include all reasonable attorneys' fees and
expenses,
retainers, court costs, transcript costs, fees of experts
(including, without limitation, auditors and accountants), 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, being or
preparing
to be a witness in, or otherwise participating in, a
Proceeding.
Expenses
also shall include Expenses incurred in connection with any
appeal(s)
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.
Expenses,
however,
shall not include amounts paid in settlement by Indemnitee or
the
amount of
judgments or fines against Indemnitee. Should any payments by
the
Company to or for the account of an Indemnitee under this Agreement
be
determined
to be subject to any federal, state or local income or excise
tax,
Expenses shall 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 no such tax been
determined
to apply to those payments.
(g) "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 (5) years has been, retained to
represent:
(i) any Enterprise, Delek Group Ltd. or any affiliate thereof
or
Indemnitee in any matter material to any such party (other than
with
respect to
matters concerning 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.
(h) The term "Proceeding" shall include any threatened, pending
or
completed
action, suit, arbitration, alternate dispute resolution
mechanism,
investigation, inquiry, administrative hearing or any other
actual,
threatened or completed proceeding, whether
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brought in
the right of the Company or otherwise and whether of a civil,
criminal,
administrative or investigative nature, in which Indemnitee
was,
is or will
be involved as a party or otherwise by reason of the fact that
Indemnitee
is or was a director or officer of the Company, by reason of
any action
taken (or failure to act) by him or her or any action (or
failure to
act) on his or her part while acting as a director or officer
of the
Company, or by reason of the fact that he or she is or was
serving
at the
request of the Company as a director, officer, trustee,
partner,
managing
member, fiduciary, employee or agent of any Enterprise, in each
case
whether or not serving in such capacity at the time any liability
or
expense is
incurred for which indemnification, reimbursement or
advancement of expenses can be provided under this Agreement,
except one
initiated
by Indemnitee to enforce his or her rights under this
Agreement;
provided
that, the term "Proceeding" shall not include any threatened,
pending or
completed action, suit, arbitration, alternate dispute
resolution
mechanism, investigation, inquiry, administrative hearing or
any other
actual, threatened or completed proceeding by Indemnitee
against
the
Company, including, without limitation, proceedings initiated
by
Indemnitee
or involving a counterclaim by Indemnitee.
(i) Reference 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 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
acted in
good faith and in a manner he or she reasonably believed to be
in
the best
interests of the participants and beneficiaries of an employee
benefit
plan shall be deemed to have acted in 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,
or is threatened to be made, a party to or a participant in any
Proceeding,
other than a Proceeding by or in the right of the Company to
procure a judgment
in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified to the
fullest extent permitted by applicable law against all Expenses,
judgments,
fines, penalties and amounts paid in settlement (including all
interest,
assessments and other charges paid or payable in connection with or
in respect
of such Expenses, judgments, fines, penalties and amounts paid in
settlement)
actually and reasonably incurred by Indemnitee or on his or her
behalf in
connection with such Proceeding or any claim, issue or matter
therein, if
Indemnitee acted in good faith and in a manner he or she reasonably
believed to
be in or not opposed to the best interests of the Company and, in
the case of a
criminal proceeding, he or she had no reasonable cause to believe
that his or
her 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, or is threatened to be made, a party to or a
participant in
any Proceeding by or in the right of the Company to procure a
judgment in its
favor. Pursuant to this Section 4, Indemnitee shall be indemnified
to the
fullest extent permitted by applicable law against all Expenses
actually and
reasonably incurred by him or her or on his or her behalf in
connection with
such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in
good faith and in a manner he or she reasonably believed to be in
or
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not opposed to the best interests of the Company. No
indemnification for
Expenses shall be made under this Section 4 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 then only to the extent that, the
Delaware
Court of Chancery or any court in which the 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 indemnification.
5.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement,
to the
fullest extent permitted by applicable law and to the extent that
Indemnitee is
a party to (or a participant in) and is successful, on the merits
or otherwise,
in any Proceeding or in defense of any claim, issue or matter
therein, in whole
or in part, the Company shall indemnify Indemnitee against all
Expenses actually
and reasonably incurred by him or her in connection therewith. If
Indemnitee is
not wholly successful in such Proceeding but is successful, on the
merits or
otherwise, as to one or more but less than all claims, issues or
matters in such
Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually
and reasonably incurred by him or her or on his or her behalf in
connection with
each successfully resolved claim, issue or matter. If Indemnitee is
not wholly
successful in such Proceeding, the Company also shall indemnify
Indemnitee
against all Expenses reasonably incurred in connection with a
claim, issue or
matter related to any claim, issue, or matter on which Indemnitee
was
successful. For purposes of this Section 5 and without limitation,
the
termination of any claim, issue or matter in such a Proceeding by
dismissal,
with or without prejudice, shall be deemed to be a successful
result as to such
claim, issue or matter.
6.
Indemnification for Expenses of a Witness. Notwithstanding any
other
provision of this Agreement, to the fullest extent permitted by
applicable law
and to the extent that Indemnitee is, by reason of his or her
Corporate Status,
a witness in any Proceeding to which Indemnitee is not a party, he
or she shall
be indemnified against all Expenses actually and reasonably
incurred by him or
her or on his or her behalf in connection therewith.
7.
Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4 or 5, 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
Proceeding (including a Proceeding by or in the right of the
Company to procure
a judgment in its favor) against all Expenses, judgments, fines,
penalties and
amounts paid in settlement (including all interest, assessments and
other
charges paid or payable in connection with or in respect to such
Expenses,
judgments, fines, penalties and amounts paid in settlement)
actually and
reasonably incurred by Indemnitee in connection with the
Proceeding; provided,
however, that the Company shall have the right to consent to any
settlement,
which consent shall not be unreasonably withheld. No indemnity
shall be made
under this Section 7(a) on account of Indemnitee's conduct which
constitutes a
breach of Indemnitee's duty of loyalty to the Company or its
stockholders or is
an act or omission not in good faith or which involves intentional
misconduct or
a knowing violation of the law.
(b) For purposes of Section 7(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
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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 and persons serving in certain
other
capacities at the request of a corporation.
8.
Exclusions. Notwithstanding any other provision in this Agreement,
the
Company shall not be obligated under this Agreement to make any
indemnity 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 under another valid and
enforceable indemnity provision, except with respect to any excess
beyond
the amount
paid under any insurance policy or other indemnity provision
and except
for any payments which are required to be disgorged by
Indemnitee; or
(b) for 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 or similar provisions of
other
federal or state statutory law or common law; or
(c) except as otherwise provided in Section 13(e), in
connection
with any
Proceeding (or any part of any Proceeding) initiated by
Indemnitee, including any Proceeding (or any part of any
Proceeding)
initiated
by Indemnitee against the Company's directors, officers,
employees
or other indemnitees, unless (i) such indemnification is
expressly
required to be made by applicable law, (ii) the Board
authorized
the
Proceeding (or any part of the Proceeding) prior to its initiation
or
(iii) the
Company provides the indemnification, in its sole discretion,
pursuant
to the powers vested in the Company to the fullest extent
permitted
by applicable law.
9.
Advances of Expenses. Notwithstanding any provision of this
Agreement
to the contrary, to the fullest extent permitted by applicable law
the Company
shall advance the expenses incurred by Indemnitee in connection
with any
Proceeding within thirty (30) days after the receipt by the Company
of a
statement or statements requesting such advances from time to time,
whether
prior to or after final disposition of any Proceeding. Advances
shall be
unsecured and interest free. Advances shall be made without regard
to
Indemnitee's ability to repay the expenses and without regard to
Indemnitee's
ultimate entitlement to indemnification under the other provisions
of this
Agreement. Advances shall include any and all reasonable Expenses
incurred
pursuing an action to enforce this right of advancement, including
Expenses
incurred preparing and forwarding statements to the Company to
support the
advances claimed. Indemnitee shall qualify for advances solely upon
the
execution and delivery to the Company of an undertaking providing
that
Indemnitee undertakes to repay the advance to the extent that it is
ultimately
determined that Indemnitee is not entitled to be indemnified by the
Company.
This Section 9 shall not apply to any claim made by Indemnitee for
which
indemnity is excluded pursuant to Section 8.
10.
Procedure for Notification and Defense of Claim.
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(a) Within thirty (30) days after service of process on
Indemnitee
relating to notice of the commencement of any Proceeding,
Indemnitee shall
submit to the Company a written request, including therein or
therewith such
documentation and information as is reasonably available to
Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is
entitled to indemnification. The omission to notify the Company
within such
thirty (30) day period will not relieve the Company from any
liability
