Exhibit 10(j)-3
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (this “Agreement”) is made and entered
into on
, 2008, by and between EnergySouth, Inc., a Delaware corporation
(the “Corporation”), and
, an officer and/or member of the Board of Directors of the
Corporation (“Indemnitee”).
WHEREAS, the Corporation
heretofore entered into an indemnification agreement with each of
its officers and directors providing for certain indemnification
rights under the laws of the State of Alabama (the “Alabama
Indemnification Agreement”); and
WHEREAS, on February 1,
2007, the Corporation completed its redomestication in the State of
Delaware; and
WHEREAS, the Corporation and
the Indemnitee desire to enter into this Agreement, which provides
for certain indemnification rights under the laws of the State of
Delaware; and
WHEREAS, this Agreement
supersedes the Alabama Indemnification Agreement as hereinafter
provided.
NOW, THEREFORE , in
consideration of the mutual agreements herein contained, the
parties agree as follows:
1. Indemnification
.
(a) Indemnitee shall be indemnified
and held harmless by the Corporation to the fullest extent
permitted by its Certificate of Incorporation, By-Laws and the
General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended, against all expenses, liability
and loss (including attorneys’ fees, judgments, fines, and
amounts paid or to be paid in any settlement approved in advance by
the Corporation, such approval not to be unreasonably withheld)
(collectively, “Indemnifiable Expenses”) actually and
reasonably incurred or suffered by Indemnitee in connection with
any present or future threatened, pending or contemplated
investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (collectively,
“Indemnifiable Litigation”), (i) to which
Indemnitee is or was a party or is threatened to be made a party by
reason of any action or inaction in Indemnitee’s capacity as
a director or officer of the Corporation, or (ii) with respect
to which Indemnitee is otherwise involved by reason of the fact
that Indemnitee is or was serving as a director, officer, employee
or agent of the Corporation, or of any subsidiary or division, or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise.
(b) In the event of payment under
this Agreement, the Corporation shall be subrogated to the extent
of such payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of
such documents necessary to enable the Corporation effectively to
bring suit to enforce such rights.
(c) The Corporation shall not be
liable under this Agreement to make any payment in connection with
any claim made against the Indemnitee:
(i) for which payment is actually
made to the Indemnitee under a valid and collectible insurance
policy, except in respect of any excess beyond the amount of
payment under such insurance;
(ii) for which the Indemnitee is
indemnified by the Corporation otherwise than pursuant to this
Agreement.
(iii) based upon or attributable to
the Indemnitee gaining in fact any personal profit or advantage to
which he/she was not legally entitled;
(iv) for an accounting of profits
made from the purchase or sale by the Indemnitee of securities of
the Corporation within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or similar provisions
of any state statutory law;
(v) brought about or contributed to
by the dishonesty of the Indemnitee seeking payment hereunder;
however, notwithstanding the foregoing, the Indemnitee shall be
protected under this Agreement as to any claims upon which suit may
be brought against him/her by reason of any alleged dishonesty on
his/her part, unless a judgment or final adjudication thereof
adverse to Indemnitee shall establish that he/she committed acts of
active and deliberate dishonesty with actual dishonest purpose and
intent, which acts were material to the cause of action so
adjudicated; or
(vi) if the Indemnitee acted in bad
faith and in a manner not re
