INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “Agreement”) is made
and delivered this day of
, , by El Paso Corporation
(the “Company”), to and for the benefit of
(“Participant”).
WHEREAS, in order
to induce Participant to continue as a member of the
Company’s Board of Directors (“Board”), the
Company is executing and delivering to Participant this
Indemnification Agreement.
NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants contained
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company
hereby agrees as follows:
SECTION 1.
Right To Indemnification
If Participant is
made a party or is threatened to be made a party to or is involved
(including, without limitation, as a witness) in any actual or
threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a
“proceeding”), by reason of the fact that he is or was
a Director of the Company (or of any subsidiary of the Company) or
is or was serving at the request of the Company or the Board of
Directors, including service with respect to any employee benefit
plan or any subsidiary of the Company, whether the basis of such
proceeding is alleged action in an official capacity as a Director
or in any other capacity while serving as a Director, he shall be
indemnified and held harmless by the Company to the fullest extent
permitted by the General Corporation Law of the State of Delaware,
as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits
the Company to provide broader indemnification rights than said law
permitted the Company to provide prior to such amendment), or by
other applicable law as then in effect, against all expense,
liability and loss (including attorneys’ fees, judgments,
fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) actually and reasonably incurred or suffered by him in
connection therewith and such indemnification shall continue after
Participant has ceased to be a Director and shall inure to the
benefit of Participant’s heirs, executors and administrators;
provided, however, that except as provided in Section 2 of
this Agreement with respect to proceedings seeking to enforce
rights to indemnification or to advancement of expenses ,
the Company shall be required to indemnify Participant in
connection with a proceeding (or part thereof) initiated by
Participant only if such proceeding (or part thereof) was
authorized by the Board. The right to indemnification conferred in
this Agreement shall include the right to be paid by the
corporation the reasonable expenses (including attorneys’
fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an “advancement of
expenses”); further provided, however, that, if the General
Corporation Law of the State of Delaware requires, an advancement
of expenses incurred by Participant in his capacity as a Director
(and not in any other capacity in which service was or is rendered
by
Participant while
a Director, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the Company of an
undertaking, if permitted by Federal Law, by or on behalf of
Participant, to repay all amounts so advanced if it shall
ultimately be determined that he is not entitled to be indemnified
under this Agreement, or otherwise, and provided further that
except as provided in Section 2 of this Agreement with respect
to proceedings seeking to enforce rights to indemnification or an
advancement of expenses, the Company shall be required to advance
expenses to Participant in connection with a proceeding initiated
by him only if such proceeding was authorized by the
Board.
SECTION 2.
Right To Bring Suit
If a claim under
Section 1 of this Agreement is not paid in full by the Company
within sixty (60) days after a written claim has been received
by the Company, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty
(20) days, Participant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and,
to the extent successful in whole or in material part, Participant
shall be entitled to be paid the expense of prosecuting such suit.
Participant shall be presumed to be entitled to indemnification
under this Agreement upon submission of a written claim (and, in an
action brought to enforce a claim for an advancement of expenses,
where the required undertaking, if any is required, has been
tendered to the Company), and thereafter the Company shall have the
burden of proof to overcome the presumption that Participant is not
so entitled. Neither the failure of the Company (including its
Board, independent legal counsel, or its stockholders), to have
made a determination prior to the commencement of such suit that
indemnification of Participant is proper in the circumstances, nor
an actual determination by the Company (including its Board,
independent legal counsel or its stockholders) that Participant is
not entitled to indemnification, shall be a defense to the suit or
create a presumption that Participant is not so
entitled.
SECTION 3.
Nonexclusivity of Rights
The rights to
indemnification and to the advancement of expenses conferred in
this Agreement are in addition to and shall not be exclusive of any
other right Participant may have or hereafter acquire under any
statute, provision of the Restated Certificate of Incorporation of
the Company or its By-laws, or under any other plan, program,
arrangement, agreement, vote of stockholders or disinterested
Directors or otherwise.
SECTION 4.
Insurance, Contracts and Funding
The Company may
maintain insurance, at its expense, to protect itself and
Participant against any expense, liability or loss, whether or not
the Company would have the power to indemnify Participant against
such expense, liability or loss under the General Corporation Law
of the State of Delaware. The Company may enter into contracts with
Participant in furtherance of the provisions of this Agreement and
may create a trust fund, grant a security interest or use other
means (including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect
indemnification as provided in this Agreement. To the extent the
Company maintains an insurance policy or policies providing
directors’ and officers’
liability
insurance, Participant shall be c
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