Exhibit 10.75
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this
“Agreement”) is entered into effective as of December
12, 2008, by and between FX ENERGY, INC., a Nevada corporation (the
“Corporation”), and [name of indemnitee]
(“Indemnitee”), based on the following:
PREMISES
A. The
Restated Articles of Incorporation of the Corporation (the
“Articles”) and the Bylaws (the “Bylaws”)
provide for indemnification of the Corporation’s directors
and officers to the fullest extent permitted by any applicable and
controlling Nevada law, statute, rule, decision, or finding
(collectively, “Nevada Law”) and contemplate that
contracts and other arrangements may be entered into respecting
indemnification of officers and directors.
B. The
parties recognize the continued difficulty in obtaining liability
insurance for the Corporation’s directors, officers,
employees, stockholders, controlling persons, agents, and
fiduciaries, the significant increases in the cost of such
insurance, and the general reductions in the coverage of such
insurance. Furthermore, the parties further recognize the
substantial increase in corporate litigation in general, subjecting
directors, officers, employees, controlling persons, stockholders,
agents, and fiduciaries to expensive litigation risks at the same
time as the availability and coverage of liability insurance have
been severely limited.
C. Indemnitee
does not regard the current protection available under the
Articles, Bylaws, and insurance as adequate under the present
circumstances, and Indemnitee and other directors, officers,
employees, stockholders, controlling persons, agents, and
fiduciaries of the Corporation may not be willing to serve in such
capacities without additional protection. Moreover, the Corporation
(i) desires to attract and retain the involvement of highly
qualified persons, such as Indemnitee, to serve the Corporation
and, in part, in order to induce Indemnitee to be involved with the
Corporation, (ii) wishes to provide for the indemnification
and advancing of expenses to Indemnitee to the maximum extent
permitted by law, and (iii) wishes to assure Indemnitee that
there will be increased certainty of adequate protection in the
future.
D. In
addition to any insurance purchased by the Corporation on behalf of
Indemnitee, it is reasonable, prudent, and necessary for the
Corporation to obligate itself contractually to indemnify
Indemnitee so that he may remain free from undue concern that he
will not be adequately protected both during his service as an
executive officer and a director of the Corporation and following
any termination of such service.
E. This
Agreement is a supplement to and in furtherance of the Articles and
Bylaws and shall not be deemed a substitute therefor or to abrogate
any rights of Indemnitee thereunder.
F. The
directors of the Corporation have duly approved this Agreement and
the indemnification provided herein with the express recognition
that the indemnification arrangements provided herein exceed that
which the Corporation would be required to provide pursuant to
Nevada Law.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Corporation
and Indemnitee do hereby covenant and agree as follows:
1.
Definitions . As used in this Agreement:
(a) The
term “Indemnifiable Matter” means any event,
occurrence, status, or condition that takes place either prior to
or after the execution of this Agreement, including any threatened,
pending, or completed action, suit, proceeding or alternative
dispute resolution activity, whether brought by or in the right of
the Corporation or otherwise and whether of a civil, criminal,
administrative, or investigative nature, in which Indemnitee was,
is, or believes might be involved as a party, witness, or otherwise
(except any of the foregoing initiated by Indemnitee pursuant to
section 17(a) to enforce Indemnitee’s rights under this
Agreement), by reason of the fact, in whole or in part, that
Indemnitee is or was actually or allegedly a director, officer,
agent, or advisor of the Corporation; by reason of any action
actually or allegedly taken by him or of any inaction or omission
on his part while acting as a director, officer, agent, or advisor
of the Corporation; by reason of the registration, offer, sale,
purchase, or ownership of any securities of the Corporation; by
reason of any duty owed to, respecting, or in connection with the
Corporation; or by reason of the fact, in whole or in part, that he
is or was actually or allegedly serving at the request of the
Corporation as a director, officer, employee, agent, or advisor of
another corporation, partnership, joint venture, trust, limited
liability company, or other entity or enterprise, in each case
whether or not he is acting or serving in any such capacity at the
time any loss, liability, or expense is incurred for which
indemnification or reimbursement can be provided under this
Agreement and even though Indemnitee may have ceased to serve in
such capacity.
(b) The
term “Losses” means any and all losses, claims,
damages, expenses, liabilities, judgments, fines, penalties and
actions in respect thereof, as they are incurred, against
Indemnitee in connection with an Indemnifiable Matter; amounts paid
by Indemnitee in settlement of an Indemnifiable Matter; any
indirect, consequential, or incidental damages suffered or incurred
by Indemnitee; and all attorneys’ fees and disbursements,
accountants’ fees and disbursements, private investigation
fees and disbursements, retainers, court costs, payments of
attachment, appeal or other bonds or security, 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 or
expenses reasonably incurred by or for Indemnitee in connection
with prosecuting, defending, preparing to prosecute or defend,
investigating, appealing, or being or preparing to be a witness in
any threatened or pending Indemnifiable Matter or establishing
Indemnitee’s right or entitlement to indemnification for any
of the foregoing.
(c) Reference
to “other enterprise” shall include employee benefit
plans; references to “fines” shall include any excise
tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Corporation” shall
include any service as a director, officer, employee, agent, or
advisor 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 interests of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best
interests of the Corporation” as referred to in this
Agreement.
(d) The
term “Indemnitee” shall include the Indemnitee named in
the first paragraph of this Agreement and such Indemnitee’s
actual or alleged alter egos, spouse, family members, and
corporations, partnerships, limited liability companies, trusts,
and other enterprises or entities of any form whatsoever under the
control of any of the foregoing, and the property of all of the
foregoing. The term “control” (including the terms
“controlling,” “controlled by,” and
“under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a person or entity, whether
through the ownership of voting securities, by contract, or
otherwise, as interpreted under the Securities Act of 1933 or the
Securities Exchange Act of 1934.
(e) The
term “substantiating documentation” shall mean copies
of bills or invoices for costs incurred by or for Indemnitee, or
copies of court or agency orders, decrees, or settlement
agreements, as the case may be, accompanied by a declaration, which
need not be notarized, from Indemnitee that such bills, invoices,
court or agency orders, decrees, or settlement agreements represent
costs or liabilities meeting the definition of “Losses”
herein.
(f) Except
as provided in section 15, the term “Independent
Counsel” shall mean an attorney, law firm, or member of a law
firm, who (or which) is licensed to practice law in the state of
Nevada and is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent (i) the Corporation or Indemnitee in any other
matter material to either such party; or (ii) any other party
to the Indemnifiable Matter giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Corporation or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. From time to time,
the Corporation may select and preapprove the names of persons or
law firms that it deems qualified as Independent Counsel under the
foregoing criteria. Further, at the request of Indemnitee, the
Corporation shall review the qualifications and suitability under
the foregoing criteria of persons or law firms selected by
Indemnitee and preapprove them as Independent Counsel if they meet
the foregoing criteria. An Independent Counsel that has already
been preapproved by the board of directors may be appointed as
Independent Counsel without any further evaluation, so long as such
prospective Independent Counsel continues, as determined by the
board of directors, to remain independent.
(g) A
“Change in Control” shall be deemed to have occurred if
(i) any “person” (as such term is used in Section
13(d)(3) and 14(d)(2) of the Securities Exchange Act), other than a
trustee or other fiduciary holding securities under an employee
benefit plan of the Corporation or a corporation owned directly or
indirectly by the stockholders of the Corporation in substantially
the same proportions as their ownership of stock of the
Corporation, (1) that is or becomes the beneficial owner,
directly or indirectly, of securities of the Corporation
representing 20% or more of the combined voting power of the
Corporation’s then-outstanding voting securities, increases
its beneficial ownership of such securities by 5% or more over the
percentage so owned by such person, or (2) becomes the
“beneficial owner” (as defined in Rule 13d-3 under the
Securities Exchange Act), directly or indirectly, of securities of
the Corporation representing more than 30% of the total voting
power represented by the Corporation’s then-outstanding
voting securities, (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute
the board of directors of the Corporation and any new director
whose election by the board of directors or combination for
election by the Corporation’s stockholders was approved by a
vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, or
(iii) the stockholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation other
than a merger or consolidation that would result in the voting
securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at
least two-thirds of the total voting power represented by the
voting securities of the Corporation or such surviving entity
outstanding immediately after such merger or consolidation, or the
stockholders of the Corporation approve a plan of complete
liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation of (in one transaction or a series
of transactions) all or substantially all of the
Corporation’s assets.
2.
Indemnity of Indemnitee . The Corporation hereby agrees to
indemnify, protect, defend and hold harmless Indemnitee against any
and all Losses incurred by reason of the fact that Indemnitee is or
was a director, officer, agent, or advisor of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, employee, agent or advisor of another corporation,
partnership, joint venture, trust, limited liability company, or
other entity or enterprise, to the fullest extent permitted by
Nevada Law. The termination of any Indemnifiable Matter 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 is not entitled to indemnification,
and with respect to any criminal proceeding, shall not create a
presumption that such person believed that his conduct was
unlawful. The indemnification provided herein shall be applicable
whether or not the breach of any standard of care or duty,
including a breach of a fiduciary duty, of the Indemnitee is
alleged or proven, except as limited by section 3 herein.
Notwithstanding the foregoing, in the case of any Indemnifiable
Matter brought by or in the right of the Corporation, Indemnitee
shall not be entitled to indemnification for any claim, issue, or
matter as to which Indemnitee has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the Corporation or for amounts paid in settlement
to the Corporation unless, and only to the extent that, the court
in which the Indemnifiable Matter was brought or another court of
competent jurisdiction determines, on application, that in view of
all the circumstances, the person is fairly and reasonably entitled
to indemnity for such expenses as the court deems
proper.
3.
Limit on Indemnification . Notwith
