INDEMNIFICATION AGREEMENT - JACK F. HARPERIndemnification Agreement |
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Exhibit 10.1
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is effective August 21, 2007, between Concho Resources Inc., a Delaware
corporation (the Corporation), and the undersigned director or officer of the Corporation
(Indemnitee).
WHEREAS, the Certificate of Incorporation of the Corporation (as the same may be amended from
time to time, the Certificate of Incorporation) provides for indemnification of the Corporations
directors and officers; and
WHEREAS, the Corporation has adopted Bylaws (as the same may be amended from time to time, the
Bylaws) providing for indemnification of the Corporations directors and officers; and
WHEREAS, the Bylaws and the Delaware General Corporation Law (the DGCL) contemplate that
contracts and insurance policies may be entered into with respect to indemnification of directors
and officers; and
WHEREAS, there are questions concerning the adequacy and reliability of the protection which
might be afforded to directors and officers from acquisition of policies of Directors and Officers
Liability Insurance (D&O Insurance), covering certain liabilities which might be incurred by
directors and officers in the performance of their services to the Corporation; and
WHEREAS, it is reasonable, prudent and necessary for the Corporation to obligate itself
contractually to indemnify Indemnitee so that he will serve or continue to serve the Corporation
free from undue concern that he will not be adequately protected;
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 Proceeding shall include any threatened, pending or completed action, suit,
claim, inquiry or proceeding, whether brought by or in the right of the Corporation or otherwise
and whether of a civil, criminal, administrative, arbitrative or investigative nature, in which
Indemnitee is or is reasonably expected to be involved as a party, as a witness or otherwise, by
reason of the fact that Indemnitee is or was a director or officer of the Corporation, by reason of
any action taken by him or of any inaction on his part while acting as a director or officer of the
Corporation or by reason of the fact that he is or was serving at the request of the Corporation as
a director, officer, trustee, employee or agent of another corporation, partnership, joint venture,
trust, limited liability company or other enterprise; in each case whether or not he is acting or
serving in any such capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement; provided that any such
action, suit, claim, inquiry or proceeding which is brought by Indemnitee against the Corporation
or directors or officers of the Corporation, other than an action brought by Indemnitee to enforce
his rights under this Agreement, shall not be deemed a Proceeding without prior approval by a
majority of the Board of Directors of the Corporation.
(b) The term Expenses shall include, without limitation, any judgments, fines and penalties
against Indemnitee in connection with a Proceeding; amounts paid by Indemnitee in settlement of a
Proceeding pursuant to this Agreement; and all attorneys fees and disbursements, accountants
fees, private investigation fees and disbursements, retainers, court costs, 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, being or preparing to be a witness in a Proceeding
or establishing Indemnitees right of entitlement to indemnification for any of the foregoing.
(c) References to Indemnitees being or acting as a director or officer of the Corporation
or serving at the request of the Corporation as a director, officer, trustee, employee or agent of
another corporation, partnership, joint venture, trust, limited liability company or other
enterprise shall include in each case service to or actions taken while a director, officer,
trustee, employee or agent of any subsidiary of the Corporation or while serving as a member of a
committee of the Board of Directors of the Corporation.
(d) References 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 or agent of the Corporation which imposes duties on, or involves services by, such
director, officer, trustee, employee or agent 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 interest of the Corporation as
referred to in this Agreement.
(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 or decrees or settlement
agreements, as the case may be, accompanied by a sworn statement from Indemnitee that such bills,
invoices, court or agency orders or decrees or settlement agreements, represent costs or
liabilities meeting the definition of Expenses herein.
(f) The terms he and his have been used for convenience and mean she and her if
Indemnitee is a female.
2. Indemnity of Director or Officer. The Corporation hereby agrees to hold harmless and indemnify
Indemnitee against Expenses to the fullest extent authorized or permitted by law (including the
applicable provisions of the DGCL). The phrase to the fullest extent permitted by law shall
include, but not be limited to (a) to the fullest extent permitted by any provision of the DGCL
that authorizes or permits additional indemnification by agreement, or the corresponding provision
of any amendment to or replacement of the DGCL and (b) to the fullest extent authorized or
permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement
that increase the extent to which a corporation may indemnify its officers and directors. Any
amendment, alteration or repeal of the DGCL that adversely affects any right of Indemnitee shall be
prospective only and shall not limit or
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eliminate any such right with respect to any Proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such amendment or repeal.
3. Additional Indemnity. The Corporation hereby further agrees to hold harmless and indemnify
Indemnitee against Expenses incurred by reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of another corporation, partnership,
joint venture, trust, limited liability company or other enterprise, but only if Indemnitee acted
in good faith and, in the case of conduct in his official capacity, in a manner he reasonably
believed to be in the best interests of the Corporation and, in all other cases, not opposed to the
best interests of the Corporation. Additionally, in the case of a criminal proceeding, Indemnitee
must have had no reasonable cause to believe that his conduct was unlawful. The termination of any
Proceeding 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 did not
act in good faith and in a manner which he reasonably believed to be in or not opposed to the best
interest of the Corporation, and with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
4. Contribution. If the indemnification provided under Section 2 or Section 3 is unavailable by
reason of a court decision finding that Indemnitee is not eligible to receive indemnification for
Expenses incurred by Indemnitee under this Agreement, based on grounds other than any of those set
forth in Section 15, then, in respect of any Proceeding in which the Corporation is jointly liable
with Indemnitee (or would be if joined in such Proceeding), the Corporation shall contribute to the
amount of Expenses actually and reasonably incurred and paid or payable by Indemnitee in such
proportion as is appropriate to reflect (i) the relative benefits received by the Corporation on
one hand and Indemnitee on the other from the transaction from which such Proceeding arose and (ii)
the relative fault of the Corporation on the one hand and of Indemnitee on the other in connection
with the events that resulted in such Expenses as well as any other relevant equitable
considerations. The relative fault of the Corporation on the one hand and of Indemnitee on the
other shall be determined by reference to, among other things, the parties relative intent,
knowledge, access to information and opportunity to correct or prevent the circumstances resulting
in such Expenses. The Corporation agrees that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation or any other method of allocation
that does not take into account of the foregoing equitable considerations.
5. Choice of Counsel. Each Indemnitee that is an Outside Director, Chase Director or Other
Indemnitee, together with the other Indemnitees who are designated in the same group, shall be
entitled to employ, and be reimbursed for the fees and disbursements of, separate counsel to
represent the Outside Directors, the Chase Directors or the Other Indemnitees, as the case may be,
in connection with any Proceeding. For purposes of this Agreement, an Indemnitee shall be
designated as (i) an Outside Director if such Indemnitee is a director and not an officer of the
Corporation and is not a Chase Director, (ii) a Chase Director if such Indemnitee is G. Carl
Everett, Larry V. Kalas, John A. Knorr, Bradley D. Bartek or Robert C. Chase, and (iii) an Other
Indemnitee if such Indemnitee is not an Outside Director or a Chase Director. The principal
counsel for Outside Directors (Outside Director Counsel) shall be determined by
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majority vote of the Outside Directors, the principal counsel for Chase Directors (Chase Counsel)
shall be determined by majority vote of the Chase Directors, and the Principal Counsel for the
Other Indemnitees (Other Indemnitee Counsel) shall be determined by majority vote of the Other
Indemnitees, in each case subject to the consent of the Corporation (n






