Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the “Agreement”) is made as of the 7th day of May 2006, by and
between NEWPARK RESOURCES, INC. a Delaware corporation (the “Company”), and PAUL L. HOWES
(“Indemnitee”), with reference to the following:
A. Indemnitee is currently serving as a director and chief executive officer of the Company,
and the Company wishes Indemnitee to continue to serve in such capacity.
B. The Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company
provide that the Company shall indemnify its “agents” (as defined herein), including directors and
officers, against specified expenses and losses arising as a result of their services as such
agents, to the fullest extent permitted by the Delaware General Corporation Law (the “GCL”).
C. Section 145(f) of the GCL provides that the indemnification provisions of the GCL are not
exclusive of any rights to which a person seeking indemnification may be entitled under the
Certificate of Incorporation or Bylaws of a corporation or under an agreement providing for
indemnification.
D. Indemnitee has indicated that he may not be willing to serve or to continue to serve as a
director or officer of the Company in the absence of indemnification in addition to that provided
by the Company’s Certificate of Incorporation and Bylaws.
E. It is the intention of this Agreement to provide to Indemnitee certain indemnification
rights which are in addition to those rights described in the Company’s Certificate of
Incorporation and Bylaws.
NOW, THEREFORE, as an inducement to Indemnitee to serve or to continue to serve as a director
or officer of the Company, the Company agrees with Indemnitee as follows:
1.
Indemnification
. The Company shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any proceeding (including but not limited to a
proceeding by or in the right of the Company to procure a judgment in its favor) by reason of the
fact that Indemnitee is or was an agent of the Company or of any other entity for which Indemnitee
served at the request of the Company, against all expenses (including without limitation attorneys’
fees and litigation costs), judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with such proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the best interests of the Company, and, in the case of a
criminal proceeding, had no reasonable cause to believe that Indemnitee’s conduct was unlawful.
The termination of any 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 the best interests of the Company or that the Indemnitee had reasonable cause to believe that
the Indemnitee’s conduct was unlawful.
2.
Personal Liability Policy
. The Company also agrees to pay for a personal liability
insurance policy providing coverage reasonably acceptable to Indemnitee for his actions or
inactions as a director, officer, employee, or agent of the Company or of any other entity for
which Indemnitee so served at the request of the Company. Such insurance policy shall cover
liability exposure not covered by the Company’s general directors and officers liability policy,
and shall cover director, officer, employee, and agent liability risks directly if there is no
underlying coverage. Such policy shall have an aggregate claims limit of no less than $10 million
for claims arising from actions prior to as well as during Indemnitee’s tenure at the Company. In
the event the insurance policy so provided is written on a claims-made basis (where only claims
made against the insured during the policy period are covered), the Company shall pay for and
provide tail coverage for Indemnitee with the same $10 million policy limits for a period of six
years beyond the end of each policy term or in lieu of tail coverage, keep such policy in place for
a period not less than six years after Indemnitee ceases to be a director, officer, or employee of
the Company.
3.
Letter of Credit
. If, for events that have occurred prior to the date hereof (i)
the Company is unable to obtain or maintain the personal liability insurance policy required in
Section 2
, or (ii) the Company determines in good faith that such insurance policy is not
reasonably available, or that the premium costs for such insurance policy are disproportionate to
the amount of coverage provided, or that the coverage provided by such insurance policy is limited
by exclusions so as to provide insufficient benefits,
and
if Indemnitee does not object to such
determination by the Company, then the Company shall obtain a letter of credit naming Indemnitee as
payee, from an insured U.S. bank, providing for the payment of any and all claims by Indemnitee
under this Agreement without requiring that Indemnitee first seek payment from the Company,
permitting one or more draws totaling up to $3,000,000. Such letter of credit shall be evergreen
(which may be drawn upon if not renewed prior to two weeks before its expiration date), and
continue to be in effect for a period of six years after Indemnitee ceases to be a director,
officer, or employee of the Company.
4.
Expenses; Indemnification Procedure.
4.1
Advance of Expenses
. At the times specified in
Section 4.4(a)
hereof, the Company
shall advance all expenses incurred by Indemnitee in defending any proceeding prior to the final
disposition of such proceeding. Indemnitee hereby undertakes to repay such amounts advanced if it
shall be determined ultimately that Indemnitee is not entitled to be indemnified by the Company.
2
4.2
Notice/Cooperation by Indemnitee
. As a condition precedent to Indemnitee’s right
to be indemnified under this Agreement, Indemnitee shall give the Company notice in writing as soon
as practicable of any claim made against Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be directed to the Secretary of the
Company at the address shown on the signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). Delay in providing notice shall not preclude
Indemnitee from asserting his rights under this Agreement, unless and only to the extent such delay
causes actual loss to the Company. Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee’s reasonable ability to
provide.
4.3
Determination of Standard of Conduct
. It shall be a defense to any claim by
Indemnitee for indemnification hereunder and to any action brought by Indemnitee pursuant to
Section 4.4(a)
(other than a claim or action to enforce a claim for expenses incurred in connection
with any proceeding in advance of its final disposition) that Indemnitee has not met the standard
of conduct which makes it permissible for the Company to indemnify Indemnitee for the amount
claimed, but the burden of proving such defense (by clear and convincing evidence) shall be on the
Company, and Indemnitee shall be entitled to receive interim payments of expenses pursuant to
Section 4.1
unless and until such defense is finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the parties’ intention that, if the Company
contests Indemnitee’s right to indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the failure of the Company (including
its Board of Directors, any committee or subgroup of the Board of Directors, independent legal
counsel, or its stockholders) to have made a determination that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its stockholders) that Indemnitee has not met
such standard of conduct, shall create a presumption that Indemnitee has or has not met the
applicable standard of conduct. Except as provided in
Section 4.1
, Indemnitee shall be indemnified
by the Company under this Agreement unless it shall be determined by a court of competent
jurisdiction that indemnification of Indemnitee is improper under the circumstances of the
particular proceeding because the Indemnitee has not met the applicable standard of conduct set
forth in
Section 1
.
4.4
Certain Procedural Matters
.
(a) Any indemnification and advances provided for in this Agreement shall be made no later
than thirty (30) days after receipt of the written request of Indemnitee. If a claim under this
Agreement, under any statute, or under any provision of the Company’s Certificate of Incorporation
or Bylaws providing for indemnification is not paid in full by the Company within thirty (30) days
after a written request for payment thereof has first been received by the Company, Indemnitee may,
but need not, at any time thereafter bring an action against the Company to recover the unpaid
amount
3
of the claim, and, subject to
Section 15
of this Agreement, Indemnitee shall also be entitled
to be paid for the expenses of bringing such action.
(b)
Notice to Insurers
. If, at the time of the receipt of a notice of a claim
pursuant to
Section 4.2
hereof, the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policies.
If the Company fails to take such action on Indemnitee’s behalf, Indemnitee may do so, whereupon
the Company shall indemnify Indemnitee against all expenses incurred by Indemnitee in connection
with any proceeding brought by Indemnitee against the insurers for recovery under any such
insurance.
(c)
Selection of Counsel
. The Company shall be entitled to assume the defense of any
proceeding with respect to which it is obligated to advance expenses pursuant to
Section 4.1
, with
counsel satisfactory to Indemnitee, upon the delivery to Indemnitee of written notice of its
election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to advance counsel fees to
Indemnitee with respect to the same proceeding, provided that (i) Indemnitee shall have the right
to employ his or her counsel in any such proceeding at Indemnitee’s expense for amounts due or paid
to such counsel in excess of 20 percent of the amount due or paid to the counsel engaged by the
Company; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by
the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company
shall not, in fact, have employed counsel to assume the defense of such proceeding, then all of the
fees and expenses of Indemnitee’s counsel shall be at the expense of the Company.
5.
Additional Indemnification Rights; Non-exclusivity
.
5.1
Scope
. Notwithstanding any other provision of this Agreement, the Company hereby
agrees to indemnify the Indemnitee to the fullest extent permitted by law (in effect at any time
between the date the Indemnitee became an agent of the Company and the date the claim is resolved)
notwithstanding that such indemnification is not specifically authorized by the other provisions of
this Agreement, the Company’s Certificate of Incorporation, Bylaws or by statute. In the event of
any change in any applicable law, statute or rule which narrows the right of a Delaware corporation
to indemnify a member of its Board of Directors or an officer, such changes, 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.
4
5.2
Other Rights Authorized
. The indemnification provided by this Agreement shall not
be exclusive of (a) any additional rights to indemnification for breach of duty to the Company and
its stockholders while acting in the capacity of a director, officer, employee, or agent of the
Company or of any other entity for which Indemnitee served at the request of the Company or (b) any
other rights to which Indemnitee may be entitled under any Bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in Indemnitee’s official capacity and
as to action in another capacity while holding such office, in each case, to the extent such
additional rights to indemnification are authorized in the Company’s Certificate of Incorporation.
The indemnification provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though Indemnitee may have ceased
to serve in such capacity at the time of any covered proceeding.
6.
Partial Indemnification
. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the expense, judgments, fines
or penalties actually or reasonably incurred by him or her in the investigation, defense, appeal or
settlement of any civil or criminal action, suit or proceeding, but not for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such expenses,
judgments, fines or penalties to which Indemnitee is entitled.
7.
Mutual Acknowledgement
. Both the Company and Indemnitee acknowledge that in
certain instances, Federal law or applicable public policy may prohibit the Company from
indemnifying its directors, officers, employees, and/or agents under this Agreement or otherwise.
Indemnitee understands and acknowledges that the Company has undertaken or may be required in the
future to undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify Indemnitee.
8.
Charter Provisions
. The Company at all times shall have and maintain in its
Certificate of Incorporation or Bylaws, or both, as necessary in order to be effective under the
GCL, provisions for exculpating directors from liability and for indemnifying officers, directors,
employees and agents, in each case to the fullest extent permitted under the GCL, which provisions
shall not be amended except as required by applicable law or except to make changes, permitted by
law, that would enlarge Indemnitee’ s right of indemnification.
9.
Officer and Director Liability Insurance
. The Board of Directors of the Company
shall, from time to time, make the good faith determination whether or not it is practicable for
the Company to obtain and maintain a policy or policies of insurance with reputable insurance
companies providing the officers and directors of the Company with coverage for losses from
wrongful acts, or to ensure the Company’s performance of its
5
indemnification obligations under this Agreement. Among other considerations, the Company
will weigh the costs of obtaining such insurance coverage against the protection afforded by such
coverage.
10.
Severability
. Nothing in this Agreement is intended to require or shall be
construed as requiring the Company to do or fail to do any act in violation of applicable law. The
Company’s inability, pursuant to court order, to perform its obligations under this Agreement shall
not constitute a breach of this Agreement. The provisions of this Agreement shall be severable as
provided in this
Section 10
. If this Agreement or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not
have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
11.
Exceptions
. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
11.1 To indemnify or advance expenses to Indemnitee with respect to proceedings or claims
initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under this Agreement, the
Company’s Certificate of Incorporation or Bylaws, or any other statute or law or otherwise as
required or permitted under Section 145 of the GCL, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board of Directors has approved
the initiation or bringing of such suit; or
11.2 To indemnify Indemnitee for any expenses incurred by the Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous; or
11.3 To indemnify Indemnitee for expenses or liabilities of any type whatsoever (including,
but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to Indemnitee by an insurance carrier under a policy of
officers’ and directors’ liability insurance maintained by the Company; or
11.4 To indemnify Indemnitee for expenses and the payment of profits arising from the purchase
and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or any similar successor statute; or
6
11.5 To indemnify Indemnitee for any act, omission or transaction listed in the exceptions to
waiver of personal liability of a director set forth in Section 102(b)(7) of the GCL.
12.
Construction of Certain Phrases
.
12.1 For purposes of this Agreement, “agent” means any person who is or was a director,
officer, employee or other agent of the Company, or is or was serving at the request of the Company
as a director, member of a committee of the Board of Directors, officer, employee or agent of
another foreign or domestic corporation which was a predecessor corporation of the Company or of
another enterprise at the request of such predecessor corporation; “proceeding” means any
threatened, pending or completed action or proceeding, whether civil, criminal, administrative or
investigative; and “expenses” includes, without limitation, attorney’s fees and any expenses of
establishing a right to indemnification or any other right under this Agreement.
12.2 For purposes of this Agreement, “person” means any individual, and any domestic or
foreign corporation, partnership, association, trust or other entity or organization, including a
government or political subdivision or any agency or instrumentality thereof; and “predecessor or
acquired person” means a person which was a predecessor of the Company or a majority of whose
equity interests or assets is or was acquired by the Company.
12.3 For purposes of this Agreement, references to the “Company” shall include any subsidiary
of the Company and, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors,
officers, and employees or agents, so that if Indemnitee is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate existence had continued.
12.4 For purposes of this Agreement, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to “serving at the request of the Company”
shall include any service as a director, member of a committee of the Board of Directors officer,
employee or agent of the Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to any employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to be in
7
the best interests of the participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
13.
Counterparts
. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
14.
Successors and Assigns
. This Agreement shall be binding upon the Company and its
successors and assigns, and shall inure to the benefit of Indemnitee and the heirs, executors, and
administrators of the Indemnitee.
15.
Attorneys’ Fees
. In the event that any action is instituted by Indemnitee under
this Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be entitled to be
paid all court costs and expenses, including reasonable attorneys’ fees, incurred by Indemnitee
with respect to such action, unless as a part of such action, the court of competent jurisdiction
determines that each of the material assertions made by Indemnitee as a basis for such action was
not made in good faith or was frivolous. In the event of an action instituted by or in the name of
the Company under this Agreement, or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including attorneys’ fees,
incurred by Indemnitee in defense of such action (including with respect to Indemnitee’s
counterclaims and cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee’s material defenses to such action was not made in good faith or
was frivolous.
16.
Notice
. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (a) if delivered by hand and receipted
for by the party addressed, on the date of such receipt, or (b) if mailed by domestic certified or
registered mail with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of this Agreement, or as
subsequently modified by written notice.
17.
Choice of Law
. This Agreement shall be governed by and its provisions construed
in accordance with the laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within Delaware.
18.
Authorization
. By executing this Agreement on behalf of the Company, the
undersigned Company representative certifies that this Agreement has been duly authorized and
approved by the Board of Directors of the Company.
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
|
|
|
|
|
|
|
|
|
|
|
|
|
NEWPARK RESOURCES, INC. (the “Company”)
|
|
|
|
|
|
3850 North Causeway Boulevard, #1770
|
|
|
|
|
|
Metairie, LA 70002-1752
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Eric Wingerter
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: Vice President
|
|
|
|
|
AGREED TO AND ACCEPTED:
/s/ Paul L. Howes
(“Indemnitee”)
Paul L. Howes
456 Shetland Valley Court
Chesterfield, Missouri 63005
9
Exhibit 10.2
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the “Agreement”) is made as of the 7th day of June, 2006, by
and between NEWPARK RESOURCES, INC. a Delaware corporation (the “Company”), and [
]
(“Indemnitee”), with reference to the following:
A. The Company has employed Indemnitee as the President of one of the Company’s [significant
operating segments][subsidiaries].
B. The Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company
provide that the Company shall indemnify its “agents” (as defined herein), including directors and
officers and officers of its subsidiaries, against specified expenses and losses arising as a
result of their services as such agents, to the fullest extent permitted by the Delaware General
Corporation Law (the “GCL”).
C. Section 145(f) of the GCL provides that the indemnification provisions of the GCL are not
exclusive of any rights to which a person seeking indemnification may be entitled under the
Certificate of Incorporation or Bylaws of a corporation or under an agreement providing for
indemnification.
D. Indemnitee has indicated that he may not be willing to continue [in the employ of the
Company][the offered employment] in the absence of indemnification in addition to that provided by
the Company’s Certificate of Incorporation and Bylaws.
E. It is the intention of this Agreement to provide to Indemnitee certain indemnification
rights that are in addition to those rights described in the Company’s Certificate of Incorporation
and Bylaws.
NOW, THEREFORE, as an inducement to Indemnitee to serve as an officer of a subsidiary of the
Company, the Company agrees with Indemnitee as follows:
1.
Indemnification
. The Company shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any proceeding (including but not limited to a
proceeding by or in the right of the Company to procure a judgment in its favor) by reason of the
fact that Indemnitee is or was an agent of the Company or of any other entity for which Indemnitee
served at the request of the Company, against expenses (including but not limited to attorneys’
fees and litigation costs), judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with such proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the best interests of the Company and its subsidiaries,
and, in the case of a criminal proceeding, had no reasonable cause to believe that Indemnitee’s
conduct was unlawful. The termination of any 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 the best interests of the Company and its subsidiaries or that the Indemnitee had
reasonable cause to believe that the Indemnitee’s conduct was unlawful.
2.
Mandatory Payment of Expenses
. To the extent that Indemnitee has been successful
on the merits in defense of any proceeding referred to in Section 1 or in defense of
any claim, issue or matter therein, Indemnitee shall be indemnified against expenses actually
and reasonably incurred by Indemnitee in connection therewith.
3.
Expenses; Indemnification Procedure.
3.1
Advance of Expenses
. At the times specified in Section 3.4(a) hereof, the Company
shall advance all expenses incurred by Indemnitee in defending any proceeding prior to the final
disposition of such proceeding. Indemnitee hereby undertakes to repay such amounts advanced if it
shall be determined ultimately that Indemnitee is not entitled to be indemnified by the Company.
3.2
Notice/Cooperation by Indemnitee
. As a condition precedent to Indemnitee’s right
to be indemnified under this Agreement, Indemnitee shall give the Company notice in writing as soon
as practicable of any claim made against Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be directed to the Secretary of the
Company at the address shown on the signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). Delay in providing notice shall not preclude
Indemnitee from asserting his rights under this Agreement, unless and only to the extent that such
delay causes actual loss to the Company. Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee’s reasonable ability to
provide.
3.3
Determination of Standard of Conduct
.
(a) It shall be a defense to any claim by Indemnitee for indemnification hereunder and to any
action brought by Indemnitee pursuant to Section 3.4(a) (other than a claim or action to enforce a
claim for expenses incurred in connection with any proceeding in advance of its final disposition)
that Indemnitee has not met the standard of conduct which makes it permissible for the Company to
indemnify Indemnitee for the amount claimed, but the burden of proving such defense (by clear and
convincing evidence) shall be on the Company, and Indemnitee shall be entitled to receive interim
payments of expenses pursuant to Section 3.1 unless and until such defense is finally adjudicated
by court order or judgment from which no further right of appeal exists. It is the parties’
intention that, if the Company contests Indemnitee’s right to indemnification, the question of
Indemnitee’s right to indemnification shall be for the court to decide, and neither the failure of
the Company (including its Board of Directors, any committee or subgroup of the Board of Directors,
independent legal counsel, or its stockholders) to have made a determination that indemnification
is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including its Board of Directors, any committee or subgroup
of the Board of Directors, independent legal counsel, or its stockholders) that Indemnitee has not
met such standard of conduct, shall create a presumption that Indemnitee has or has not met the
applicable standard of conduct. Except as provided in Sections 2 and 3.1, Indemnitee shall be
indemnified by the Company under this Agreement unless it shall be determined by a court of
competent jurisdiction that indemnification of Indemnitee is improper under the circumstances of
the particular proceeding because the Indemnitee has not met the applicable standard of conduct set
forth in Section 1.
2
(b) No indemnification or advance shall be made under this Agreement, except as provided in
Section 2 or Section 3.1, in any circumstance where it appears that it would be inconsistent with
any condition expressly imposed by a court in approving a settlement.
3.4
Certain Procedural Matters
.
(a) Any indemnification and advances provided for in this Agreement shall be made no later
than thirty (30) days after receipt of the written request of Indemnitee. If a claim under this
Agreement, under any statute, or under any provision of the Company’s Certificate of Incorporation
or Bylaws providing for indemnification is not paid in full by the Company within thirty (30) days
after a written request for payment thereof has first been received by the Company, Indemnitee may,
but need not, at any time thereafter bring an action against the Company to recover the unpaid
amount of the claim, and, subject to Section 14 of this Agreement, Indemnitee shall also be
entitled to be paid for the expenses of bringing such action.
(b)
Notice to Insurers
. If, at the time of the receipt of a notice of a claim
pursuant to Section 3.2 hereof, the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policies.
If the Company fails to take such action on Indemnitee’s behalf, Indemnitee may do so, whereupon
the Company shall indemnify Indemnitee against all expenses incurred by Indemnitee in connection
with any proceeding brought by Indemnitee against the insurers for recovery under any such
insurance.
(c)
Selection of Counsel
. The Company shall be entitled to assume the defense of any
proceeding with respect to which it is obligated to advance expenses pursuant to Section 3.1, with
counsel reasonably satisfactory to Indemnitee, upon the delivery to Indemnitee of written notice of
its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and
the retention of such counsel by the Company, the Company will not be liable to advance counsel
fees to Indemnitee with respect to the same proceeding, provided that (i) Indemnitee shall have the
right to employ his or her counsel in any such proceeding at Indemnitee’s expense; and (ii) if (A)
the employment of counsel by Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact,
have employed counsel to assume the defense of such proceeding, then the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Company.
4.
Additional Indemnification Rights; Non-exclusivity
.
4.1
Scope
. Notwithstanding any other provision of this Agreement, the Company hereby
agrees to indemnify the Indemnitee to the fullest extent permitted by law (in effect at any time
between the date the Indemnitee became an agent of the Company and the date
3
the claim is resolved) notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company’s Certificate of Incorporation,
Bylaws or by statute. In the event of any change in any applicable law, statute or rule which
narrows the right of a Delaware corporation to indemnify a member of its Board of Directors or an
officer or other agent, such changes, 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.
4.2
Other Rights Authorized
. The indemnification provided by this Agreement shall not
be exclusive of (a) any additional rights to indemnification for breach of duty to the Company and
its stockholders while acting in the capacity of a director, officer, employee or agent of the
Company or of any other entity for which Indemnitee served at the request of the Company or (b) any
other rights to which Indemnitee may be entitled under any Bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in Indemnitee’s official capacity and
as to action in another capacity while holding such office, in each case, to the extent such
additional rights to indemnification are authorized in the Company’s Certificate of Incorporation.
The indemnification provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though Indemnitee may have ceased
to serve in such capacity at the time of any covered proceeding.
5.
Partial Indemnification
. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the expense, judgments, fines
or penalties actually or reasonably incurred by him or her in the investigation, defense, appeal or
settlement of any civil or criminal action, suit or proceeding, but not for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such expenses,
judgments, fines or penalties to which Indemnitee is entitled.
6.
Mutual Acknowledgement
. Both the Company and Indemnitee acknowledge that in
certain instances, Federal law or applicable public policy may prohibit the Company from
indemnifying its directors, officers and agents under this Agreement or otherwise. Indemnitee
understands and acknowledges that the Company has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of indemnification to
a court in certain circumstances for a determination of the Company’s right under public policy to
indemnify Indemnitee.
7.
Charter Provisions
. The Company at all times shall have and maintain in its
Certificate of Incorporation or Bylaws, or both, as necessary in order to be effective under the
GCL, provisions for exculpating directors from liability and for indemnifying officers, directors,
employees and agents, in each case to the fullest extent permitted under the GCL, which provisions
shall not be amended except as required by applicable law or except to make changes, permitted by
law, that would enlarge Indemnitee’ s right of indemnification.
8.
Officer and Director Liability Insurance
. The Board of Directors of the Company
shall, from time to time, make the good faith determination whether or not it is practicable for
the Company to obtain and maintain a policy or policies of insurance with reputable insurance
companies providing the officers and directors of the Company with coverage for losses from
4
wrongful acts, or to ensure the Company’s performance of its indemnification obligations under
this Agreement. Among other considerations, the Company will weigh the costs of obtaining such
insurance coverage against the protection afforded by such coverage. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain such insurance if the Company
determines in good faith that such insurance is not reasonably available, if the premium costs for
such insurance are disproportionate to the amount of coverage provided, if the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient benefit, or if Indemnitee
is covered by similar insurance maintained by a subsidiary or parent of the Company.
9.
Severability
. Nothing in this Agreement is intended to require or shall be
construed as requiring the Company to do or fail to do any act in violation of applicable law. The
Company’s inability, pursuant to court order, to perform its obligations under this Agreement shall
not constitute a breach of this Agreement. The provisions of this Agreement shall be severable as
provided in this Section 9. If this Agreement or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not
have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
10.
Exceptions
. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
10.1 To indemnify or advance expenses to Indemnitee with respect to proceedings or claims
initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under this Agreement, the
Company’s Certificate of Incorporation or Bylaws, or any other statute or law or otherwise as
required or permitted under Section 145 of the GCL, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board of Directors has approved
the initiation or bringing of such suit; or
10.2 To indemnify Indemnitee for any expenses incurred by the Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous; or
10.3 To indemnify Indemnitee for expenses or liabilities of any type whatsoever (including,
but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to Indemnitee by an insurance carrier under a policy of
officers’ and directors’ liability insurance maintained by the Company; or
10.4 To indemnify Indemnitee for expenses and the payment of profits arising from the purchase
and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or any similar successor statute; or
10.5 To indemnify Indemnitee for any act, omission or transaction listed in the exceptions to
waiver of personal liability of a director set forth in Section 102(b)(7) of the GCL.
5
11.
Construction of Certain Phrases
.
11.1 For purposes of this Agreement, “agent” means any person who is or was a director,
officer, employee or other agent of the Company, or is or was serving at the request of the Company
as a director, member of a committee of the Board of Directors, officer, employee or agent of
another foreign or domestic corporation which was a predecessor corporation of the Company or of
another enterprise at the request of such predecessor corporation; “proceeding” means any
threatened, pending or completed action or proceeding, whether civil, criminal, administrative or
investigative; and “expenses” includes, without limitation, attorney’s fees and any expenses of
establishing a right to indemnification or any other right under this Agreement.
11.2 For purposes of this Agreement, “person” means any individual, and any domestic or
foreign corporation, partnership, association, trust or other entity or organization, including a
government or political subdivision or any agency or instrumentality thereof; and “predecessor or
acquired person” means a person which was a predecessor of the Company or a majority of whose
equity interests or assets is or was acquired by the Company.
11.3 For purposes of this Agreement, references to the “Company” shall include any subsidiary
of the Company and, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors,
officers, and employees or agents, so that if Indemnitee is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate existence had continued.
11.4 For purposes of this Agreement, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to “serving at the request of the Company”
shall include any service as a director, member of a committee of the Board of Directors officer,
employee or agent of the Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to any employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to be in the best interests of the participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
12.
Counterparts
. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
13.
Successors and Assigns
. This Agreement shall be binding upon the Company and its
successors and assigns, and shall inure to the benefit of Indemnitee and the heirs, executors, and
administrators of the Indemnitee.
6
14.
Attorneys’ Fees
. In the event that any action is instituted by Indemnitee under
this Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be entitled to be
paid all court costs and expenses, including reasonable attorneys’ fees, incurred by Indemnitee
with respect to such action, unless as a part of such action, the court of competent jurisdiction
determines that each of the material assertions made by Indemnitee as a basis for such action was
not made in good faith or was frivolous. In the event of an action instituted by or in the name of
the Company under this Agreement, or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including attorneys’ fees,
incurred by Indemnitee in defense of such action (including with respect to Indemnitee’s
counterclaims and cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee’s material defenses to such action was not made in good faith or
was frivolous.
15.
Notice
. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (a) if delivered by hand and receipted
for by the party addressed, on the date of such receipt, or (b) if mailed by domestic certified or
registered mail with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of this Agreement, or as
subsequently modified by written notice.
16.
Choice of Law
. This Agreement shall be governed by and its provisions construed
in accordance with the laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
|
|
|
|
|
|
|
|
|
|
|
NEWPARK RESOURCES, INC. (the “Company”)
|
|
|
|
|
|
3850 North Causeway Boulevard, #1770
|
|
|
|
|
|
Metairie, LA 70002-1752
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
Title:
|
|
|
AGREED TO AND ACCEPTED:
(“Indemnitee”)
[
]
7