EXHIBIT 10.10
INDEMNIFICATION AGREEMENT
This
Agreement is made this 29th day of June 2005
between NEW EXM
INC., a Kentucky corporation, whose name will be changed to
ASHLAND INC.
("Company"), and the undersigned individual
("Director").
WITNESSETH:
WHEREAS, Company was
organized for the purpose of engaging in
the
transactions contemplated by that certain Master
Agreement,
dated as of
March 18, 2004, among Ashland Inc., ATB Holdings
Inc., EXM LLC,
Company,
Marathon Oil Corporation, Marathon Domestic LLC, among Marathon Oil
Company, USX Corporation, and Marathon
Ashland Petroleum LLC, as amended by
Amendment No. 1, dated as of April 27, 2005 (as amended, the "Master
Agreement"); and
WHEREAS, pursuant to
the Master Agreement,
EXM LLC will merge into
Company, following the merger of Ashland
Inc. ("Old Ashland") into EXM LLC,
as a result of which Company will become
the successor of Old Ashland, and
will change its corporate name to Ashland
Inc.; and
WHEREAS, Director has
provided valuable
service as a member of the
Board of Directors of Old Ashland, and
Company desires Director to serve as
a member of its Board of Directors,
thereby performing a valuable service
for Company; and
WHEREAS, Article
X of the Amended and Restated Articles of
Incorporation of Company (the "Article")
authorizes
Company to
indemnify
directors of Company to the maximum extent
permitted by law; and
WHEREAS, the Article authorizes Company to enter into contracts
with
members of its Board of Directors with
respect to
indemnification of
such
directors; and
WHEREAS, recent
developments
with respect to the
applications and
enforcement of indemnification provisions
and the availability of insurance
to protect directors against liabilities generally have raised
questions
concerning the adequacy and reliability of the protection afforded to
directors thereby; and
WHEREAS, to provide
greater certainty with respect to Director's
right to indemnification and the payment thereof, and thereby induce
Director to serve as a member of the Board
of Directors of Company, Company
has determined and agreed to enter into
this Agreement with Director.
Now,
THEREFORE, in consideration of Director's agreement to serve as
a Director after the date of this
Agreement, Company and
Director agree as
follows:
<PAGE>
1.
Indemnity of Director.
Subject only to the
exclusions set forth
in Sections 2 and 12 of this Agreement, Company hereby agrees to hold
harmless and indemnify Director against any and all reasonable
costs and
expenses (including, but not limited to, attorneys' fees) and any
liabilities (including, but not limited to,
judgments, fines, penalties and
reasonable settlements) paid by or on behalf of, or imposed against,
Director in connection with any threatened, pending or completed claim,
action, suit or proceeding, whether civil, criminal, administrative,
legislative, investigative or other
(including any appeal relating thereto)
and whether made or brought by or in the
right of Company or otherwise, in
which Director is, was or at any time
becomes a party or
witness, or is
threatened to be made a party or witness,
or otherwise, by reason of the
fact that Director is, was or at any time
becomes a director, officer,
employee or agent of Company or a
director, officer, partner, trustee,
employee or agent of an Affiliate of
Company, as hereafter
defined, or any
employee benefit plan maintained by Company or any
Affiliates of Company.
As used in this Agreement, an Affiliate of Company means any
corporation,
partnership or other entity which,
directly or
indirectly, controls,
is
controlled by or is under common control
with Company.
2.
Limitations on Indemnity. No indemnity pursuant to Section 1 of
this Agreement shall be paid by Company if a court of competent
jurisdiction renders a Final Adjudication, as hereinafter defined in
section 5, on the merits that such
indemnity is
prohibited
by law; or to
the extent and only to the extent
that, prior to a Change of Control,
as
hereinafter defined, a majority of the Board of
Directors of Company or a
duly designated committee thereof, in either case consisting of
directors
who are not at the time parties to the
claim, action,
suit or proceeding
against Director, determines that the
amount of expenses and/or settlements
for which indemnification is sought is
unreasonable.
For
purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred if [i] any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended
("Exchange Act")), other than a trustee or other fiduciary holding
securities under an employee benefit plan of Company or a corporation
owned, directly or indirectly, by the shareholders of Company in
substantially the same proportions as their
ownership of stock of Company,
is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the
Exchange Act), directly or indirectly of
securities of Company representing
20% or more of the combined voting power of Company's then outstanding
voting securities; or [ii] during any period of twenty-four (24)
consecutive months (not including any period prior to the date of this
Agreement), individuals who at the
beginning of such period constituted the
Board of Directors of Company and any new director
(other than a
director
designated by a person who has entered into
an agreement
with Company to
effect a transaction described in clauses [iii] or [iv]
of this Paragraph)
whose election by the Board of
Directors or nomination for election by
Company's shareholders was approved by a
vote of at least two-thirds (2/3)
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
of
the Board of Directors or [iii] the shareholders of Company approve a
merger or consolidation of Company with any
other corporation,
other than
(a) a merger or consolidation of the Company into or with a direct or
indirect wholly-owned subsidiary, or (b) a merger or consolidation
which
would result in the voting securities of the Company outstanding or
converted into voting securities of the
surviving entity being at least 70%
of the combined voting power of the voting
securities
of Company or such
surviving entity
-2-
<PAGE>
outstanding immediately after such merger or consolidation; or [iv] the
shareholders of Company approve a plan of complete
liquidation of
Company
or an agreement for the sale or disposition by Company of all or
substantially all of the assets owned by Company, whether directly or
indirectly; provided, however, that no sale or disposition of all or
substantially all of the assets owned by Company
shall be deemed to
occur
unless assets constituting 80% of the total assets of the Company are
transferred pursuant to such sale or disposition. Notwithstanding the
foregoing, none of the transactions provided for in that certain
Master
Agreement, dated as of March 18, 2004,
among Ashland
Inc., ATB Holdings
Inc., EXM LLC, Company, Marathon Oil Corporation,
Marathon Domestic
LLC,
,among Marathon Oil Company, USX Corporation, and Marathon Ashland
Petroleum LLC, as amended by Amendment No. 1, dated as of April 27,
2005
(as amended, the "Master Agreement"), shall be deemed to constitute a
Change in Control.
3.
Continuation
of Indemnity.
All agreements
and obligations of
Company contained in this Agreement shall continue during the period
Director serves in any capacity entitling
Director to indemnification under
this Agreement and shall continue thereafter so long as Director
shall be
subject to any possible claim or
threatened, pending or
completed action,
suit or proceeding, whether civil,
criminal, administrative, legislative or
investigative, or other, arising as a
result of acts or omissions occurring
during the period Director served as a
director of Company.
4.
Notification
of Claim. It shall be a condition precedent to
indemnification under this Agreement that,
within twenty days after receipt
by Director of actual notice that
Director is or will be
a party, witness
or otherwise involved in any threatened or pending action, suit or
proceeding described in Section 1 of this
Agreement,
Director shall
have
notified Company in writing of the
assertion or commencement thereof; but
the omission to so notify Company will not relieve it from any
liability
which it may have to Director otherwise
than under this Agreement.
5.
Advancement
of
