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MAVERICK TUBE CORPORATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”) is entered into as of __________________, 2005, by and between Maverick Tube Corporation, a Delaware corporation (the “Company”), and the undersigned, a director and/or officer of the Company (“Indemnitee”).
RECITALS
The Company and Indemnitee recognize the continued difficulty in obtaining liability insurance for directors and officers, the significant increases in the cost of such insurance and the general reductions in the coverage of such insurance.
The Company and Indemnitee further recognize the substantial increase in corporate litigation in general, subjecting directors and officers to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited.
The Company desires that Indemnitee resist and defend against what Indemnitee may consider to be unjustified investigations, claims, actions, suits and proceedings which have arisen or may arise in the future as a result of Indemnitee’s service to the Company.
The Company desires to attract and retain the involvement of highly qualified persons, such as Indemnitee, to serve and be associated with the Company and accordingly, wishes to provide for the indemnification and advancement of expenses to the Indemnitee to the maximum extent permitted by law.
AGREEMENT
In consideration of the premises and the covenants contained herein, the Company and Indemnitee agree as follows:
A. DEFINITIONS
The following terms shall have the meanings defined below in this Agreement:
1. “Board” means the Board of Directors of the Company.
2. “Change in Control” with respect to the Company, means, and shall be deemed to have occurred on the date upon which (i) the Board (or, if approval of the Board is not required as a matter of law, the stockholders of the Company) shall approve (a) any consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of Common Stock would be converted into cash, securities or other property, other than a merger of the Company in which the holders of Common Stock immediately prior to the merger have the same proportionate ownership of common stock of the surviving corporation immediately after the merger, or (b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or (c) the adoption of any plan or proposal for the liquidation or dissolution of the Company, or (ii) any person (as such term is defined in Section 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), corporation or other entity shall purchase any Common Stock of the Company (or securities convertible into Common Stock) for cash, securities or any other consideration pursuant to a tender offer or exchange offer, without the prior consent of the Board, or any such person, corporation or other entity (other than the Company or any benefit plan sponsored by the Company or any subsidiary) shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 35 percent or more of the combined voting power of the then outstanding securities of the Company ordinarily (and apart from rights accruing under special circumstances) having the right to vote in the election of directors (calculated as provided in paragraph (d) of such Rule 13d-3 in the case of rights to acquire the Company’s securities), or (iii) during any period of two consecutive years, individuals who at the beginning of such period constitute the entire Board shall cease for any reason to constitute a majority thereof unless the election, or the nomination for election by the Company’s stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period.
3. “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
4. “Expenses” shall include damages, judgments, fines, penalties, including ERISA excise taxes and penalties, settlements and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations and any expenses actually paid or reasonably incurred by Indemnitee in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding relating to an Indemnifiable Event, and any federal, state, local or foreign taxes (increased by any taxes imposed by such payments) actually and reasonably incurred or suffered by Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement.
5. “Indemnifiable Event” means any event or occurrence that takes place either before or after the execution of this Agreement, related to the fact that Indemnitee is or was a director and/or officer of the Company, or is or was serving at the request of the Company as a director and/or officer of another corporation, partnership, joint venture or other entity, or was a director and/or officer of an entity that was a predecessor of the Company or another entity at the request of such predecessor entity, or related to anything done or not done by Indemnitee in any such capacity.
6. “Participant” means a person who is a party to, a witness in or a participant (including on appeal) in a Proceeding.
7. “Proceeding” means any threatened, pending or completed action, suit or proceeding, or any inquiry, hearing or investigation, whether civil, criminal, administrative, investigative or other, in which Indemnitee may be or may have been involved as a party or otherwise by reason of an Indemnifiable Event.
8. “Reviewing Party” means:
(a) Prior to any Change in Control, the person, persons or entity who shall determine whether Indemnitee is entitled to indemnification in the first instance shall be (i) the Board acting by a majority vote of Disinterested Directors, whether or not such majority constitutes a quorum of the Board; (ii) a committee of Disinterested Directors designated by a majority vote of such directors, whether or not such majority constitutes a quorum; or (iii) if there are no Disinterested Directors, or if the Disinterested Directors so direct, by Independent Counsel (as described in Section A.8(b) hereof) in a written determination to the Board, a copy of which shall be delivered to Indemnitee.
(b) After a Change in Control, the Reviewing Party shall be the Independent Counsel referred to below. With respect to all matters arising from a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control) concerning the rights of Indemnitee to indemnity payments and Advancements of Expenses under this Agreement or any other agreement or under applicable law or the Company’s certificate of incorporation or by-laws now or hereafter in effect relating to indemnification for Indemnifiable Events, the Company shall seek legal advice only from Independent Counsel selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheld), and who has not otherwise performed services for the Company or the Indemnitee (other than in connection with indemnification matters) within the last five years. The 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 Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee should be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the Independent Counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities, losses and damages arising out of or relating to this Agreement or the engagement of Independent Counsel pursuant hereto.
B. AGREEMENT TO INDEMNIFY
1. General Agreement . To the fullest extent permitted by applicable law, the Company shall indemnify Indemnitee if:
(a) Indemnitee is or becomes a Participant in, or is threatened to be made a Participant in, a Proceeding (other than an action by or in the right of the Company) if Indemnitee acted in good faith and in a manner Indemnitee 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 Indemnitee’s 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 Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; or
(b) Indemnitee was or is a Participant or is threatened to be made a Participant to any Proceeding by or in the right of the Company to procure a judgment in its favor, against Expenses and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld), to the extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement of such action or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and its stockholders.
2. Indemnification of Expenses of Successful Party. Notwithstanding any other provision of this Agreem |
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