INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “ Agreement ”)
is made as of the 3 rd day of February, 2009, by and between Magellan
Petroleum Corporation, a Delaware corporation (the “
Company ”), and William H. Hastings, an individual
residing at 2 Thurston Lane, Falmouth, Maine 04105 (the “
Indemnitee ”).
A. The
Indemnitee became a director, officer and employee of the Company
on December 11, 2008 (the “Effective Date”) and in
such capacities is performing valuable services 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
and employee of the Company, and acknowledges that the Indemnitee
is relying upon this Agreement in serving or continuing to serve in
such capacities.
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 Effective Date, the Company
shall indemnify the Indemnitee to the fullest extent permitted by
applicable law whenever he was or is, or is threatened to be made,
a party to or a participant in any threatened, pending or completed
action, suit, arbitration, alternative dispute resolution
mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed 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, amounts paid in settlements and other
amounts actually and reasonably incurred by the
Indemnitee or
on his behalf in connection with such action, suit or proceeding
and any appeal therefrom or any claim, issue or matter therein 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 Effective Date, the
Company shall indemnify the Indemnitee to the fullest extent
permitted by applicable law when he was or is, or is threatened to
be made, a party to or a participant in any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution
mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed proceeding, whether civil,
criminal, administrative or investigative, 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 or on his behalf in connection with the defense or
settlement of such action, suit or proceeding and any appeal
therefrom or any claim, issue or matter therein 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 fully adjudged by
a court 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 l(a) or l(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 l(a) or
(b) above. Such determination shall be made (i) by the
Company’s Board of Directors (the “Board”) by a
majority vote of directors who are not parties to such action, suit
or proceeding, even though less than a quorum of the Board,
(ii) by a committee of such directors designated by majority
vote of such directors, even though less than a quorum,
(iii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion or
(iv) by the stockholders of the Company (the
“Stockholders”). Notwithstanding the foregoing, as
contemplated by Section 3, no subsequent amendment or change
to the By-laws or Charter which limits or restricts the rights of
the Company to indemnify Indemnitee shall adversely affect the
rights of Indemnitee hereunder.
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(d)
Mandatory Indemnification . Notwithstanding any other
provisions of this Agreement, to the fullest extent permitted by
applicable law and to the extent that Indemnitee is a party to (or
participant in) and is successful, on the merits or otherwise, in
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, in
whole or in part, the Company shall indemnify Indemnitee against
all expenses (including, without limitation, attorneys’ fees
and expenses) actually and reasonably incurred by him in connection
therewith. If Indemnitee is not wholly successful in such action,
suit or proceeding but is successful, on the merits or otherwise,
as to one or more but less than all claims, issues or matters
therein, the Company shall indemnify Indemnitee against all
expenses actually and reasonably incurred by him or on his behalf
in connection with or related to each successfully resolved claim,
issue or matter to the fullest extent permitted by law.
(e)
Advancement of Expenses . Notwithstanding any provision of
this Agreement to the contrary (other than Section 4), the
Company shall advance, to the extent not prohibited by law, the
expenses (including, without limitation, attorneys’ fees and
expenses) incurred by the Indemnitee in defending any civil,
criminal, administrative or investigative action, suit or
proceeding, and such advancement shall be made within thirty
(30) days after the receipt by Company of a statement or
statements requesting such advances from time to time, whether
prior to or 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.
(f)
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
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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 under any circumstances, including without limitation in
the event of subsequent amendment or revision to the Charter or
By-laws, 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.
(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 c
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