Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (the “
Agreement ”) is made and entered into this
day of
,
2009, between Cheniere Energy Partners GP, LLC, a Delaware limited
liability company (the “ Company ”), and
(“ Indemnitee ”).
INTRODUCTION:
A. Indemnitee, as a member of the
Company’s Board of Directors and/or an officer of the
Company, performs valuable services for the Company.
B. The Company and Indemnitee
recognize the substantial increase in corporate litigation in
general, subjecting directors, officers, employees, controlling
persons, agents and fiduciaries to expensive litigation risks at
the same time as the availability and coverage of liability
insurance has been severely limited.
C. The Company’s Second
Amended and Restated Limited Liability Company Agreement (the
“ LLC Agreement ”), provides for the
indemnification of the directors, officers, employees and agents of
the Company to the fullest extent permitted by law, but subject to
the limitations provided in the LLC Agreement.
D. Indemnitee desires to ensure that
the indemnification currently provided to Indemnitee under the LLC
Agreement is not changed in the future as a result of an amendment
to the LLC Agreement, and Indemnitee may not be willing to serve or
continue to serve in such capacities without additional
protection.
E. The LLC Agreement and the
Delaware Limited Liability Company Act (the “
DLLCA ”), by their non-exclusive nature, permit
contracts between the Company and its directors, officers,
employees, controlling persons, agents or fiduciaries with respect
to indemnification.
F. The Company (i) desires to
attract and retain the involvement of highly qualified individuals,
such as Indemnitee, to serve the Company and, in part, in order to
induce Indemnitee to be involved with the Company, and
(ii) wishes to provide for the indemnification and advancing
of expenses to Indemnitee to the maximum extent permitted by
law.
G. In view of the considerations set
forth above, the Company desires that Indemnitee be indemnified by
the Company as set forth herein.
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AGREEMENT:
NOW, THEREFORE
, in consideration of
Indemnitee’s service to the Company, the parties hereto agree
as follows:
1. Indemnity of
Indemnitee . The
Company hereby agrees to indemnify Indemnitee to the fullest extent
permitted by applicable law, the Company’s Certificate of
Formation (the “ Certificate ”) LLC
Agreement or by statute. In the event of any change after the date
of this Agreement in any applicable law, statute or rule that
expands the right of a Delaware limited liability company to
indemnify a manager, director, officer, employee, controlling
person, agent or fiduciary, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits
afforded by such change. In the event of any change in any
applicable law, statute or rule that narrows the right of a
Delaware limited liability company to indemnify a manager,
director, officer, employee, agent or fiduciary, such change, to
the extent not otherwise required by such law, statute or rule to
be applied to this Agreement, shall have no effect on this
Agreement or the parties’ rights and obligations hereunder
except as set forth in Section 8(a) hereof.
2. Indemnification
Rights .
(a) Indemnification of
Expenses . The Company shall indemnify and hold harmless
Indemnitee, together with Indemnitee’s partners, affiliates,
employees, agents and spouse and each person who controls any of
them or who may be liable within the meaning of Section 15 of
the Securities Act of 1933, as amended (the “
Securities Act ”), or Section 20 of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), to the fullest extent
permitted by law if Indemnitee was or is or becomes a party to or
witness or other participant in, or is threatened to be made a
party to or witness or other participant in, any threatened,
pending or completed action, suit, proceeding or alternative
dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith reasonably believes
might lead to the institution of any such action, suit, proceeding
or alternative dispute resolution mechanism, whether civil,
criminal, administrative, investigative or other (hereinafter a
“ Claim ”) against any and all expenses
(including attorneys’ fees and all other costs, expenses and
obligations incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in, any such
action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, fines, penalties and
amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably
withheld) of any Claim and any federal, state, local or foreign
taxes imposed on Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement (collectively,
hereinafter “ Expenses ”), including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, incurred by
Indemnitee by reason of (or arising in part out of) any event or
occurrence related to the fact that Indemnitee is or was a
director, officer, employee, controlling person, agent or fiduciary
of the Company or any subsidiary of the Company, or is or was
serving at the request of the Company as a director, officer,
employee, controlling person, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action or inaction on the part of Indemnitee
while serving in such capacity including, without limitation, any
and all losses, claims, damages, expenses and liabilities,
joint
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or several (including any investigation, legal
and other expenses incurred in connection with, and any amount paid
in settlement of, any action, suit, proceeding or any claim
asserted) under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or
otherwise, that relate directly or indirectly to the registration,
purchase, sale or ownership of any securities of the Company or to
any fiduciary obligation owed with respect thereto (hereinafter an
“ Indemnification Event ”). Such payment
of Expenses shall be made by the Company as soon as practicable but
in any event no later than 25 days after written demand by
Indemnitee therefor is presented to the Company.
(b) Reviewing Party . If the
Reviewing Party (as described in Section 10(e) hereof) shall
have determined (in a written opinion, in any case in which the
Independent Legal Counsel (as defined below) is involved) that
Indemnitee would not be permitted to be indemnified under
applicable law, then (i) the Company shall not be obligated to
provide any indemnification under Section 1 or 2 and
(ii) Indemnitee acknowledges and agrees that the Company shall
not be obligated to make an advance payment of Expenses to
Indemnitee pursuant to Section 3(a) (an “ Expense
Advance ”) and Indemnitee agrees to reimburse the
Company for such Expense Advance; provided , however
, that if Indemnitee has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under
applicable law, any determination made by the Reviewing Party that
Indemnitee would not be permitted to be indemnified under
applicable law shall not be binding and Indemnitee shall not be
required to reimburse the Company for any Expense Advance until a
final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or lapsed)
and until such time, Indemnitee shall be entitled to receive
interim payments of expenses pursuant to Section 2(a).
Indemnitee’s obligation to reimburse the Company for any
Expense Advance shall be unsecured and no interest shall be charged
thereon. If there has not been a Change in Control (as defined in
Section 10(d) hereof), the Reviewing Party shall be selected
by the Board of Directors, and if there has been a Change in
Control (other than a Change in Control that has been approved by a
majority of the Company’s Board of Directors who were
directors immediately prior to such Change in Control), the
Reviewing Party shall be an attorney or firm of attorneys selected
by the Board of Directors who shall not have otherwise performed
services for the Company or any Indemnitee within the last three
years (other than with respect to matters concerning the right of
any Indemnitee under this Agreement, or of other indemnitees under
similar indemnity agreements) (the “ Independent Legal
Counsel ”). If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified
in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation seeking an initial determination by
the court or challenging any such determination by the Reviewing
Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and
to appear in any such proceeding. Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the
Company and Indemnitee.
(c) Contribution . If the
indemnification provided for in Section 2(a) above is for any
reason held by a court of competent jurisdiction to be unavailable
to an Indemnitee in respect of any losses, claims, damages,
expenses or liabilities referred to therein (after a final judicial
determination is made with respect thereto, and as to which all
rights of appeal therefrom have been exhausted or lapsed), then the
Company, in lieu of indemnifying Indemnitee
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thereunder, shall contribute to the amount paid
or payable by Indemnitee as a result of such losses, claims,
damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company and Indemnitee, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company and Indemnitee in connection with the action
or inaction that resulted in such losses, claims, damages, expenses
or liabilities, as well as any other relevant equitable
considerations. In connection with the registration of the
Company’s securities, the relative benefits received by the
Company and Indemnitee shall be deemed to be in the same respective
proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and the Indemnitee, in
each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price
of the securities so offered. The relative fault of the Company and
Indemnitee shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by the Company or Indemnitee and
the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company and Indemnitee agree
that it would not be just and equitable if contribution pursuant to
this Section 2(c) were determined by pro rata or per capita
allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the
immediately preceding paragraph. In connection with the
registration of the Company’s securities, in no event shall
an Indemnitee be required to contribute any amount under this
Section 2(c) in excess of the lesser of (i) that
proportion of the total of such losses, claims, damages or
liabilities indemnified against equal to the proportion of the
total securities sold under such registration statement that is
being sold by Indemnitee or (ii) the proceeds received by
Indemnitee from its sale of securities under such registration
statement. No person found guilty of fraudulent misrepresentation
(within the meaning of Section 10(b) of the Exchange Act)
shall be entitled to contribution from any person who was not found
guilty of such fraudulent misrepresentation.
(d) Survival Regardless of
Investigation . The indemnification and contribution provided
for herein will remain in full force and effect regardless of any
investigation made by or on behalf of Indemnitee or any officer,
director, employee, agent or controlling person of
Indemnitee.
(e) Mandatory Payment of
Expenses . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal
of an action without prejudice, in the defense of any action, suit,
proceeding, inquiry or investigation referred to in
Section 2(a) hereof or in the defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against all
Expenses incurred by Indemnitee in connection herewith.
3. Expenses; Indemnification
Procedure .
(a) Advancement of Expenses .
The Company shall advance all Expenses incurred by Indemnitee. The
advances to be made hereunder shall be paid by the Company to
Indemnitee as soon as practicable but in any event no later than 25
days after written demand by Indemnitee therefor to the
Company.
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(b) Notice/Cooperation by
Indemnitee . Indemnitee shall give the Company notice in
writing in accordance with Section 14 of this Agreement as
soon as practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this
Agreement.
(c) No Presumptions; Burden of
Proof . For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court
approv
