Exhibit 10.20
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT
(this “
Agreement ”) is effective as of February 5,
2009 and is by and between Newfield Exploration Company, a Delaware
corporation (the “ Company ”), and the
undersigned director or officer of the Company (“
Indemnitee ”).
WHEREAS , the Company’s Amended and Restated
Bylaws (as the same have been and may be amended from time to time,
the “ Bylaws ”) provide for
indemnification of the Company’s directors and officers to
the maximum extent permitted by the General Corporation Law of the
State of Delaware (the “ DGCL
”);
WHEREAS , the Company’s Second Restated
Certificate of Incorporation (as the same has been and may be
amended from time to time, the “ Charter
”) provides for indemnification of the Company’s
directors and officers to the maximum extent permitted by
law;
WHEREAS , the Board of Directors of the Company (the
“ Board ”) has determined that, in order
to attract and retain qualified individuals to serve as directors
and officers of the Company, the Company will attempt to maintain
on an ongoing basis, at its sole expense, liability insurance to
protect such persons from certain liabilities (“
D&O Insurance ”);
WHEREAS , the Company believes, in light of current
market conditions and trends, that D&O Insurance may be
available to it in the future only at higher premiums and with more
exclusions;
WHEREAS , the Charter, the Bylaws and the DGCL
contemplate that contracts may be entered into with respect to
indemnification of directors and officers;
WHEREAS , it is reasonable, prudent and necessary for
the Company to obligate itself contractually to indemnify
Indemnitee so that Indemnitee may serve or continue to serve the
Company free from undue concern that Indemnitee will not be
adequately protected; and
WHEREAS , Indemnitee is willing to serve or continue to
serve the Company on the condition that Indemnitee be so
indemnified;
NOW, THEREFORE , in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
agree as follows:
1.
Definitions . The following capitalized terms
shall have the meanings given to them below:
“ Capacity ” means,
with respect to an Enterprise, serving such Enterprise in any
capacity, including as a director, officer, partner (limited or
general), venturer, proprietor, trustee, employee, agent, manager,
member, fiduciary, committee member, chairperson, sponsor or
functionary.
“ Covered Proceeding ”
means any Proceeding, whether brought by or in the right of the
Company or otherwise, in which Indemnitee is or will be involved as
a party, as a witness or otherwise, because (a) Indemnitee is or
previously was a director or officer of the Company, (b) of any
action taken by Indemnitee or of any inaction on the part of
Indemnitee while so acting as a director or officer of the Company
or (c) because Indemnitee is or previously was, at the request of
the Company, serving another Enterprise in any Capacity;
provided that any Proceeding that is brought by Indemnitee
against the Company or any of its directors or officers, other than
a Proceeding brought by Indemnitee to enforce Indemnitee’s
rights under this Agreement, shall not be deemed a “Covered
Proceeding” without prior approval by a majority of the
Board.
“ Enterprise ” means a
corporation, partnership (general or limited), limited liability
company, joint venture, sole proprietorship, trust, employee
benefit plan, committee or other similar enterprise, entity,
organization, association, venture or group.
“ Expenses ” means any
judgments, fines and penalties (including any excise tax assessed
with respect to an employee benefit plan) against Indemnitee in
connection with a Covered Proceeding; amounts paid by Indemnitee in
settlement of a Covered Proceeding and all attorneys’ fees
and disbursements, accountants’ fees, private investigation
fees and disbursements, retainers, court costs, transcript costs,
fees of experts, fees and expenses of witnesses, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements and
expenses reasonably incurred by or for Indemnitee in connection
with prosecuting, defending, preparing to prosecute or defend,
investigating or being or preparing to be a witness in, a Covered
Proceeding or to establish Indemnitee’s right of entitlement
to indemnification for any of the foregoing.
“ Proceeding ” means
any threatened, pending or completed action, suit, inquiry or
proceeding, whether of a civil, criminal, administrative,
arbitrative or investigative nature.
“ Substantiating
Documentation ” means copies of bills, invoices or
receipts for costs incurred by or for Indemnitee, or copies of
court or agency orders or decrees or settlement agreements, as the
case may be, accompanied by a sworn statement from Indemnitee that
such bills, invoices, receipts, court or agency orders or decrees
or settlement agreements represent costs or liabilities meeting the
definition of “Expenses.”
2.
Indemnity of Director or Officer . The
Company hereby agrees to hold harmless and indemnify Indemnitee
against Expenses to the fullest extent permitted by
law. The meaning of the phrase “to the fullest
extent permitted by law” includes (a) to the fullest extent
permitted by any 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 (b) 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. Any amendment,
alteration or repeal of the DGCL that adversely affects any right
of Indemnitee shall be prospective only and shall not limit or
eliminate any such right with respect to any Proceeding involving
any occurrence or alleged occurrence of any action or omission to
act that took place prior to such amendment or repeal.
3.
Additional Indemnity . The Company hereby
further agrees to hold harmless and indemnify Indemnitee against
Expenses provided that Indemnitee (a) acted in good faith, (b)
acted in a manner he or she reasonably believed to be in or not
opposed to the best interests of (i) in the case of an employee
benefit plan, the participants or beneficiaries of such plan and
(ii) in all other cases, the Company and (c) in the case of a
criminal Proceeding, had no reasonable cause to believe that his or
her conduct was unlawful. The termination of any
Proceeding by judgment, order of the court, settlement, conviction
or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not (x) act in
good faith, (y) act in a manner that he or she reasonably believed
to be in or not opposed to the best interests of the participants
or beneficiaries of an employee benefit plan or the Company, as
applicable, or (z) have reasonable cause to believe that his or her
conduct was unlawful. The Company shall not be required
to indemnify Indemnitee under this Agreement with regard to any
judicial award if the Company was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of the
underlying Covered Proceeding.
4.
Selection of Counsel . If the Company is
obligated to indemnify Indemnitee for Expenses with respect to a
Covered Proceeding (other than a Proceeding that is brought by
Indemnitee (x) against the Company or any of its directors or
officers or (y) to enforce Indemnitee’s rights under this
Agreement), the Company shall be entitled to assume the defense of
such Covered Proceeding, with counsel approved by Indemnitee (whose
approval shall not be unreasonably withheld or delayed), upon the
delivery to Indemnitee of written notice of its election so to
do. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Covered Proceeding;
provided that (a) Indemnitee shall have the right to employ
his or her own separate counsel in any such Covered Proceeding at
Indemnitee’s expense and (b) if (i) the employment of
separate counsel by Indemnitee has been previously authorized by
the Company, (ii) Indemnitee has reasonably concluded that there
may be a conflict of interest between the Company and Indemnitee in
the conduct of any such defense or (iii) the Company does not, in
fact, employ counsel to assume the defense of such Covered
Proceeding, then, in each such case, the Expenses of
Indemnitee’s separate counsel shall be subject to
indemnification under this Agreement.
5.
Advancement of Expenses . Expenses (other
than judgments, penalties, fines and settlements) incurred by
Ind
