INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “ Agreement ”)
is made as of the ___day of
, 200_, by and between Magellan Petroleum Corporation, a Delaware
corporation (the “ Company ”), and
, an individual
residing at
,
,
(the “ Indemnitee ”).
A. The
Indemnitee is a director, officer, employee or agent of the Company
and in such capacity is performing a valuable service for the
Company.
B. The
Delaware General Corporation Law, as amended from time to time (the
“ DGCL ”), permits the Company to indemnify the
officers, directors, employees and agents of the
Company.
C. The
Company desires to hold harmless and indemnify the Indemnitee to
the fullest extent authorized or permitted by the provisions of the
DGCL, or by any amendment thereof or other statutory provisions
authorizing or permitting such indemnification which hereafter may
be adopted.
D. The
Company has entered into this Agreement and has assumed the
obligations imposed on the Company hereby in order to induce the
Indemnitee to serve or to continue to serve as a director, officer,
employee or agent of the Company, and acknowledges that the
Indemnitee is relying upon this Agreement in serving or continuing
to serve in such capacity.
Accordingly, in
consideration of the Indemnitee’s agreement to serve or
continue to serve as a director and/or officer of the Company, the
Company and the Indemnitee agree as follows:
1.
Initial Indemnification .
(a)
General . From and after the date hereof, the Company shall
indemnify the Indemnitee whenever he was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (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 he is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in
any such capacity, against any and all expenses (including, without
limitation, attorneys’ fees and expenses), judgments, fines,
settlements and other amounts actually and reasonably incurred by
the Indemnitee in connection with such action, suit or proceeding
and any appeal therefrom if the Indemnitee acted in good faith and
in a manner which he 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 his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself,
create a presumption that the Indemnitee did not satisfy the
foregoing standard of conduct to the extent applicable
thereto.
(b)
Derivative Actions . From and after the date hereof, the
Company shall indemnify the Indemnitee when he was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by or in the right of the
Company to procure a judgment in its favor by reason of the fact
that he is or was or had agreed to become a director, officer,
employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including, without limitation,
attorneys’ fees and expenses) actually and reasonably
incurred by him in connection with the defense or settlement of
such action, suit or proceeding or any appeal therefrom if he acted
in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Company, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which the 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 action, suit
or proceeding is or was brought, shall determine upon application
that, despite the adjudication of liability, but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such expenses and then only to the extent
that the Delaware Court of Chancery or such other court shall
determine.
(c)
Determination of Entitlement . Any indemnification under
Section 1(a) or 1(b) hereof (unless ordered by a court) shall be
made by the Company only if authorized in the specific case upon a
determination, in accordance with Section 4 hereof or any
applicable provision of the Company’s Restated Certificate of
Incorporation, as then amended (the “ Charter
”), its By-laws as then amended (the “ By-laws
”), any other agreement, any resolution or otherwise, that
indemnification of the Indemnitee is proper in the circumstances
because he has met the applicable standard of conduct set forth in
Section 1(a) or (b) above. Such determination shall be made
(i) by the Company’s Board of Directors (the “
Board ”) by a majority vote of a quorum consisting of
directors who are not parties to such action, suit or proceeding,
(ii) by a committee of such directors designate by majority
vote of such directors, even though less than a quorum,
(iii) if such a quorum of disinterested directors is not
available, or if such directors so direct, by independent legal
counsel in a written opinion or (iv) by the stockholders of
the Company (the " Stockholders ”).
(d)
Expenses . To the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Section 1(a) or 1(b) hereof, or
in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including, without limitation,
attorneys’ fees and expenses) actually and reasonably
incurred by him in connection therewith. Expenses (including,
without limitation, attorneys’ fees and expenses) incurred by
the Indemnitee in defending a civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the
Company in advance of the final disposition of such action, suit or
proceeding as authorized in accordance with Section 4 hereof
or any applicable provision of the Charter, the By-laws, any other
agreement, any resolution or otherwise.
2
(e)
Benefit Plan Matters . For purposes of this Agreement,
references to “other enterprises” shall include
employee benefit plans; references to “fines” shall
include any excise taxes assessed on the Indemnitee 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, the Indemnitee with respect to
an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and the
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the
Company” as referred to in this Section 1.
2.
Additional Indemnification .
(a)
General . If and to the extent that (i) the DGCL is
amended hereafter to require or permit indemnification, expense
advancement or exculpation that is or may be more favorable to the
Indemnitee than the maximum permissible indemnification, expense
advancement and exculpation now permitted thereunder and provided
in this Agreement, or (ii) the Company reincorporates in or
merges, consolidates or combines into or with any other corporation
or entity by virtue of which transaction the Company is not the
surviving, resulting or acquiring corporation and the surviving,
resulting or acquiring corporation is incorporated in a different
jurisdiction which at such time requires or permits
indemnification, expense advancement or exculpation that is or may
be more favorable to the Indemnitee than the maximum permissible
indemnification, expense advancement and exculpation now permitted
under the DGCL and provided in this Agreement, then pursuant to
this Agreement the Indemnitee shall be entitled to, and this
Agreement shall be deemed to be amended to provide for the
Indemnitee’s contractual entitlement to, indemnification,
expense advancement and exculpation to the maximum extent that may
be permitted or required under such applicable law at the time of
any initial or subsequent request for indemnity hereunder
(determined as contemplated by Section 4 hereof), whether or
not the Company has adopted any Charter or By-law provisions
adopting, effecting or implementing any provisions thereof which
are permissive and not mandatory in nature. Nothing contained
herein shall be deemed to detract from, diminish, impair, limit or
adversely affect any right which the Indemnitee may have under this
Agreement, and to the extent that any terms, conditions or
provisions of this Agreement (including, without limitation, those
in Section 1 hereof) are more favorable to the Indemnitee than
the maximum indemnification, expense advancement and exculpation
then permitted or required under such applicable law (determined as
aforesaid), then such terms, conditions and provisions of this
Agreement shall be preserved and integrated with such more
favorable terms from then applicable law and shall continue to
apply to the Indemnitee’s rights by virtue of this Agreement.
The same expansion of the Indemnitee’s rights and deemed
inclusion herein and integration herewith of any terms, conditions
or provisions more favorable to the Indemnitee shall occur upon and
with respect to any amendment of the provisions relating to
indemnification, expense advancement and exculpation in the
Company’s Charter or By-laws and any provision by the Company
to any other officer or director of the Company of any other
different form of indemnification contract or agreement.
3
(b)
Examples and Limitations . Without limiting the generality
of Section 2(a) hereof, the Indemnitee hereby may become entitled
to indemnification of any and all amounts which he becomes legally
obligated to pay (including, without limitation, damages,
judgments, fines, settlements, expenses of investigation and
defense of legal actions, proceedings or claims and appeals
therefrom, and expenses of appeal, attachment or similar bonds)
relating to or arising out of any claim made against him because of
any act, failure to act or neglect or breach of duty, including any
actual or alleged error, misstatement or misleading statement,
which he commits, suffers, permits or acquiesces in while acting in
his capacity as an officer, director, employee or agent of the
Company, subject only to any limitations on the maximum
permissible, expense advancement or indemnification which may exist
under applicable law (determined as provided in Section 2(a)
hereof). In no event, however, shall the Company be obligated under
this Section 2 to make any payment in connection with any
claim against the Indemnitee:
(i)
for which payment actually has been made to the Indemnitee under a
valid and collectible insurance policy, except in respect of any
retention or excess beyond the amount of payment under such
insurance;
(ii)
which results in a final, nonappealable order for the Indemnitee to
pay a fine or similar governmental imposition which the Company is
prohibited by applicable law from paying; or
(iii)
which is based upon or attributable to the Indemnitee
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