Exhibit 10.23
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“ Agreement ”) is effective as of February 17,
2005, by and among Cameron International Corporation, a Delaware
corporation (“Cameron”), and Mr. Peter J. Fluor
(the “ Indemnitee ”).
WHEREAS, the Indemnitee has been
asked to serve on the Board of Directors of Cameron (the “
Board ”);
WHEREAS, it is reasonable, prudent
and necessary for Cameron contractually to obligate itself to
indemnify persons serving as directors of Cameron to the fullest
extent permitted by applicable law so that they will serve or
continue to serve as directors of Cameron free from undue concern
that they will not be so indemnified;
WHEREAS, the Indemnitee is willing
to serve and continue to serve on the Board on the condition that
he be so indemnified; and
WHEREAS, to the extent permitted by
law, this Agreement is a supplement to and in furtherance of the
provisions of the Amended and Restated Certificate of Incorporation
of Cameron (the “Certificate”) and the provisions of
the Bylaws of Cameron (the “Bylaws”) or resolutions
adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of the Indemnitee
thereunder;
NOW THEREFORE, in consideration of
the premises and the covenants contained herein, Cameron and the
Indemnitee do hereby covenant and agree as follows:
Section 1.
Services by the
Indemnitee . The Indemnitee agrees to continue
to serve at the request of Cameron as a director of Cameron
(including, without limitation, service on one or more committees
of the Board). Notwithstanding the foregoing, the
Indemnitee may at any time and for any reason resign from any such
position.
Section 2.
Indemnification -
General . Cameron shall indemnify, and
advance Expenses (as hereinafter defined) to, the Indemnitee as
provided in this Agreement and to the fullest extent permitted by
applicable law in effect on the date hereof and to such greater
extent as applicable law may thereafter from time to time
permit. The rights of the Indemnitee provided under the
preceding sentence shall include, but shall not be limited to, the
rights set forth in the other Sections of this
Agreement.
Section 3.
Proceedings Other Than
Proceedings by or in the Right of Cameron . The Indemnitee shall be entitled to
the rights of indemnification provided in this Section 3 if,
by reason of his Corporate Status (as hereinafter defined), he is,
or is threatened to be made, a party to or participant in any
threatened, pending or completed Proceeding (as hereinafter
defined), other than a Proceeding by or in the right of
Cameron. Pursuant to this Section 3 , Cameron
shall indemnify the Indemnitee against Expenses, judgments,
penalties, fines and amounts paid in settlement (as and to the
extent permitted hereunder) actually and reasonably incurred by him
or on his behalf in connection with such Proceeding 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 Cameron, and, with respect to any criminal Proceeding,
if he also had no reasonable cause to believe his conduct was
unlawful.
Section 4.
Proceedings by or in the Right of
Cameron . The
Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4 if, by reason of his Corporate
Status, he is, or is threatened to be made, a party to or
participant in any threatened, pending or completed Proceeding
brought by or in the right of Cameron to procure a judgment in its
favor. Pursuant to this Section 4 , Cameron shall
indemnify the Indemnitee against Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding
if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of
Cameron. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which the
Indemnitee shall have been adjudged to be liable to Cameron or if
applicable law prohibits such indemnification; provided ,
however , that if applicable law so permits, indemnification
against Expenses shall nevertheless be made by Cameron in such
event if and to the extent that the court in which such Proceeding
shall have been brought or is pending, shall so
determine
Section 5.
Indemnification for Expenses of a
Party Who is Wholly or Partly Successful.
(a) To
the extent that the Indemnitee is, by reason of his Corporate
Status, a party to and is successful, on the merits or otherwise,
in any Proceeding, Cameron shall indemnify the Indemnitee against
all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith. If the Indemnitee is not
wholly successful in defense of any 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, Cameron shall
indemnify the Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
such claim, issue or matter as to which the Indemnitee is
successful, on the merits or otherwise. For purposes of
this Section 5(a) , the term “successful, on the
merits or otherwise,” shall include, but shall not be limited
to, (i) the termination of any claim, issue or matter in a
Proceeding by withdrawal or dismissal, with or without prejudice,
(ii) termination of any claim, issue or matter in a Proceeding by
any other means without any express finding of liability or guilt
against the Indemnitee, with or without prejudice, (iii) the
expiration of 120 days after the making of a claim or threat of a
Proceeding without the institution of the same and without any
promise or payment made to induce a settlement or (iv) the
settlement of any claim, issue or matter in a Proceeding pursuant
to which the Indemnitee pays less than $200,000. The
provisions of this Section 5(a) are subject to Section
5(b) below.
(b) In
no event shall the Indemnitee be entitled to indemnification under
Section 5(a) above with respect to a claim, issue or matter
to the extent (i) applicable law prohibits such indemnification, or
(ii) an admission is made by the Indemnitee in writing to Cameron
or in such Proceeding or a final, nonappealable determination is
made in such Proceeding that the standard of conduct required for
indemnification under this Agreement has not been met with respect
to such claim, issue or matter.
Section 6.
Indemnification for Expenses as a
Witness . Notwithstanding any provisions
herein to the contrary, to the extent that the Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding,
Cameron shall indemnify the Indemnitee against all Expenses
actually and reasonably incurred by or on behalf of the Indemnitee
in connection therewith.
Section 7.
Advancement of
Expenses . Cameron shall advance all
reasonable Expenses incurred by or on behalf of the Indemnitee in
connection with any Proceeding within 10 days after the receipt by
Cameron of a statement or statements from the Indemnitee requesting
such advance or advances from time to time, whether prior to or
after the final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses
incurred by or on behalf of the Indemnitee. The
Indemnitee hereby expressly undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined by a final, non-appealable adjudication or arbitration
decision that the Indemnitee is not entitled to be indemnified
against such Expenses. All amounts advanced to the
Indemnitee by Cameron pursuant to this Section 7 shall be
without interest. Cameron shall make all advances
pursuant to this Section 7 without regard to the financial
ability of the Indemnitee to make repayment, without bond or other
security and without regard to the prospect of whether the
Indemnitee may ultimately be found to be entitled to
indemnification under the provisions of this
Agreement. Any required reimbursement of Expenses by the
Indemnitee shall be made by the Indemnitee to Cameron within 10
days following the entry of the final, non-appealable adjudication
or arbitration decision pursuant to which it is determined that the
Indemnitee is not entitled to be indemnified against such
Expenses.
Section 8.
Procedure for Determination of
Entitlement to Indemnification.
(a) To obtain
indemnification under this Agreement, the Indemnitee shall submit
to Cameron a written request therefor, along with such
documentation and information as is reasonably available to the
Indemnitee and reasonably necessary to determine whether and to
what extent the Indemnitee is entitled to
indemnification. The Secretary of Cameron shall,
promptly upon receipt of such a request for indemnification, advise
the Board in writing that the Indemnitee has requested
indemnification.
(b) Upon written
request by the Indemnitee for indemnification pursuant to the first
sentence of Section 8(a) hereof, a determination, if
required by applicable law, with respect to the Indemnitee’s
entitlement thereto shall be made in the specific case: (i) by the
Board by a majority vote of a quorum consisting of Disinterested
Directors (as hereinafter defined); or (ii) if a quorum of the
Board consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel (as hereinafter defined), as
selected pursuant to Section 8(d) , in a written opinion to
the Board (which opinion may be a “more likely than
not” opinion), a copy of which shall be delivered to the
Indemnitee. If it is so determined that the Indemnitee
is entitled to indemnification, Cameron shall make payment to the
Indemnitee within 10 days after such determination. The
Indemnitee shall cooperate with the Person or Persons making such
determination with respect to the Indemnitee’s entitlement to
indemnification, including providing to such Person or Persons upon
reasonable advance request any documentation or information which
is not privileged or otherwise protected from disclosure and which
is reasonably available to the Indemnitee and reasonably necessary
to such determination. Subject to the provisions of
Section 10 hereof, any costs or expenses (including
reasonable attorneys’ fees and disbursements) incurred by the
Indemnitee in so cooperating with the Person or Persons making such
determination shall be borne by Cameron, and Cameron hereby agrees
to indemnify and hold the Indemnitee harmless therefrom.
(c) Notwithstanding
the foregoing, if a Change of Control has occurred, the Indemnitee
may require a determination with respect to the Indemnitee’s
entitlement to indemnification to be made by Independent Counsel,
as selected pursuant to Section 8(d) , in a written opinion
to the Board (which opinion may be a “more likely than
not” opinion), a copy of which shall be delivered to the
Indemnitee.
(d) In the event the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8(b) or (c)
hereof, the Independent Counsel shall be selected as provided in
this Section 8(d) . If a Change of Control shall
not have occurred, the Independent Counsel shall be selected by the
Board (including a vote of a majority of the Disinterested
Directors if obtainable), and Cameron shall give written notice to
the Indemnitee advising him of the identity of the Independent
Counsel so selected. If a Change of Control shall have
occurred, the Independent Counsel shall be selected by the
Indemnitee (unless the Indemnitee shall request that such selection
be made by the Board, in which event the preceding sentence shall
apply), and approved by Cameron (which approval shall not be
unreasonably withheld). If (i) an Independent Counsel is
to make the determination of entitlement pursuant to Section
8(b) or (c) hereof, and (ii) within 20 days after
submission by the Indemnitee of a written request for
indemnification pursuant to Section 8(a) hereof, no
Independent Counsel shall have been selected, either Cameron or the
Indemnitee may petition the appropriate court of the State (as
hereafter defined) or other court of competent jurisdiction for the
appointment as Independent Counsel of a Person selected by such
court or by such other Person as such court shall
designate. Cameron shall pay any and all reasonable fees
and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 8(b)
or (c) hereof, and Cameron shall pay all reasonable fees and
expenses incident to the procedures of this
Section 8(d) , regardless of the manner in which such
Independent Counsel was selected or appointed. Upon the
due commencement of any judicial proceeding or arbitration pursuant
to Section 10(a)(iv) of this Agreement, Independent Counsel
shall be discharged and relieved of any further responsibility in
such capacity (subject to the applicable standards of professional
conduct then prevailing).
Section 9.
Presumptions and Effect of
Certain Proceedings; Construction of Certain
Phrases.
(a) In making a
determination with respect to whether the Indemnitee is entitled to
indemnification hereunder, the Reviewing Party making such
determination shall presume that the Indemnitee is entitled to
indemnification under this Agreement if the Indemnitee has
submitted a request for indemnification in accordance with
Section 8(a) of this Agreement, and anyone seeking to
overcome this presumption shall have the burden of proof and the
burden of persuasion, by clear and convincing evidence.
(b) Subject to the
terms of Section 16 below, the termination of any Proceeding
or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of
the Indemnitee to indemnification or create a presumption that the
Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests
of Cameron or, with respect to any criminal Proceeding, that the
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
(c) For purposes of
any determination of the Indemnitee’s entitlement to
indemnification under this Agreement or otherwise, the Indemnitee
shall be deemed to have acted in good faith and in a manner he
reasonably believe to be in or not opposed to the best interests of
Cameron, and, with respect to a criminal Proceeding, to have also
had no reasonable cause to believe his conduct was unlawful, if the
Indemnitee’s action is based on the records or books of
account of Cameron or another enterprise, including financial
statements, or on information supplied to the Indemnitee by the
officers of Cameron or another enterprise in the course of their
duties, or on the advice of legal or financial counsel for Cameron
or the Board (or any committee thereof) or for another enterprise
or its board of directors (or any committee thereof), or on
information or records given or reports made by an independent
certified public accountant or by an appraiser or other expert
selected by Cameron or the Board (or any committee thereof) or by
another enterprise or its board of directors (or any committee
thereof). For purposes of this Section 9(c) , the
term “another enterprise” means any other corporation,
partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise of which the Indemnitee
is or was serving at the request of Cameron as a director, officer,
employee or agent. The provisions of this
Section 9(c) shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee
may be deemed or found to have met the applicable standard of
conduct set forth in this Agreement. In addition, the
knowledge and/or actions, or failure to act, of any other director,
trustee, partner, managing member, fiduciary, officer, agent or
employee of Cameron shall not be imputed to the Indemnitee for
purposes of determining the right to indemnification under this
Agreement. Whether or not the foregoing provisions of
this Section 9(c) are satisfied, it shall in any event
be presumed that the Indemnitee has acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of Cameron, and, with respect to a criminal Proceeding,
that he also had no reasonable cause to believe his conduct was
unlawful. Anyone seeking to overcome this presumption
shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence.
(d) For purposes of
this Agreement, references to “fines” shall include any
excise taxes assessed on the Indemnitee with respect to an employee
benefit plan; references to “serving at the request of
Cameron” shall include, but shall not be limited to, any
service as a director, officer, employee or agent of Cameron which
imposes duties on, or involves services by, the Indemnitee with
respect to an employee benefit plan, its participants or its
beneficiaries; and if the Indemnitee has acted in good faith and in
a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, he
shall be deemed to have acted in a manner “not opposed to the
best interests of Cameron” as used in this
Agreement. The provisions of this Section 9(d)
shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed or found
to have met the applicable standard of conduct set forth in this
Agreement.
Section 10.
Remedies of the
Indemnitee .
(a) In the event that
(i) a determination is made pursuant to Section 8 of this
Agreement that the Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not
timely made pursuant to Section 7 of this Agreement,
(iii) the determination of entitlement to indemnification is
to be made by the Board pursuant to Section 8(b) of
this Agreement and such determination shall not have been made and
delivered to the Indemnitee in writing within twenty (20) days
after receipt by Cameron of the request for indemnification, (iv)
the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 8(b) or
(c) of this Agreement and such determination shall not have
been made in a written opinion to the Board and a copy delivered to
the Indemnitee within forty-five (45) days after receipt by Cameron
of the request for indemnification, (v) payment of indemnification
is not made pursuant to Section 6 of this Agreement within
10 days after receipt by Cameron of a written request therefor or
(vi) payment of indemnification is not made within 10 days
after a determination has been made that the Indemnitee is entitled
to indemnification or such determination is deemed to have been
made pursuant to Section 8 or 9 of this Agreement,
the Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of his entitlement to such
indemnification or advancement of
Expenses. Alternatively, the Indemnitee, at his sole
option, may seek an award in arbitration to be c
