Exhibit 10.2
UNOCAL CORPORATION DIRECTOR
INDEMNITY AGREEMENT
This Unocal Corporation Director Indemnity Agreement ("Agreement") is
made as of March 26, 2003 by and between Unocal Corporation, a Delaware
corporation (the "Corporation"), and [Name of Director] (the "Director") with
reference to the following facts:
RECITALS
A. The Corporation and the Director have previously entered into a
Unocal Corporation Director Indemnity Agreement and a Unocal Corporation
Director Insurance Agreement (jointly, the "Old Agreements") setting forth terms
and conditions under which the Corporation provides indemnification and
insurance to the Director.
B. The Corporation and the Director are entering into this Agreement,
which amends and restates the Old Agreements, in order to update the terms and
conditions under which the Corporation provides indemnification and insurance to
the Director.
C. It is essential to the Corporation to retain and attract as
directors the most capable persons available.
D. It is now and has been the express policy of the Corporation to
indemnify and insure its directors so as to provide them with the maximum
possible protection permitted by law.
E. The Director is currently a member of the Board of Directors of the
Corporation and is performing valuable services for the Corporation. The
Corporation wishes the Director to continue in such capacity, and the Director
is willing, under certain circumstances, to continue in such capacity.
F. The Corporation's Certificate of Incorporation, as permitted by
Section 102(b)(7) of the Delaware General Corporation Law, limits the Director's
liability to the Corporation and its stockholders for monetary damages for
certain breaches of fiduciary duty.
G. The Bylaws of the Corporation provide for the indemnification of the
directors of the Corporation to the maximum extent authorized by Section 145 of
the Delaware General Corporation Law, as amended or as may be amended, revised
or superseded.
H. In addition to the indemnification to which the Director is entitled
pursuant to the Certificate of Incorporation and Bylaws of the Corporation and
as additional consideration for the Director's services, the Corporation has, in
the past, furnished at its expense director and officer liability insurance
("Insurance"). Many insurance carriers, as a condition of issuing Insurance
policies, are requiring that corporations protect directors and officers from
liability to the maximum extent permitted by law.
I. The Director has indicated that he or she does not regard the
Corporation's Certificate of Incorporation, the indemnities available under the
Corporation's Bylaws, and the Insurance currently in effect as adequate to
protect him or her against the risks associated with his or her services to the
Corporation. The Director may not be willing to continue in office in the
absence of the further lawful protection afforded by the instant Agreement.
AGREEMENT
NOW, THEREFORE, in order to induce the Director to continue to serve as
a director of the Corporation and of certain subsidiaries and affiliates of the
Corporation, in consideration for his or her continued services, and in order to
do everything possible to procure and maintain adequate Insurance policies, the
parties hereby agree as follows:
1. As of the date hereof, the Old Agreements shall be amended and
restated to read in their entirety as set forth in this Agreement.
2. Subject only to the limitations set forth in Section 4, the
Corporation will pay on behalf of the Director and his or her heirs, executors,
administrators or assigns any Expenses (as defined below) actually and
reasonably incurred by the Director because of any threatened, pending or
completed action, suit, proceeding, inquiry, hearing or investigation, whether
brought by or in the right of the Corporation or otherwise and whether of a
civil, criminal, administrative or investigative nature (a "Proceeding"),
resulting from any act or omission or neglect or breach of duty, including any
actual or alleged error or misstatement or misleading statement, which he or she
commits or suffers while acting in his or her capacity as a director of the
Corporation or, at the request of the Corporation, acting as a director,
officer, trustee, fiduciary, employee, or agent (collectively, "Agent") of
another foreign or domestic corporation, limited liability company, partnership,
joint venture, trust, or any other enterprise or entity whatsoever, including
without limitation, employee benefit plans (collectively, "Affiliate"), or by
reason of the fact that the Director is or was a director of the Corporation or
is or was serving at the request of the Corporation as an Agent of an Affiliate,
whether the basis of such Proceeding is alleged action in an official capacity,
or in any other capacity, to the fullest extent authorized by law, including but
not limited to the Delaware General Corporation Law, as the same exists on the
date hereof or as may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment); provided, however, that except with respect
to a Proceeding seeking to enforce rights to indemnification hereunder, the
Corporation shall indemnify the Director with respect to a Proceeding initiated
by the Director only if such Proceeding was authorized by the Board of Directors
of the Corporation.
3. The payments (the "Expenses") which the Corporation will be
obligated to make hereunder shall include any expense, liability or loss of the
Director, including without limitation, damages, judgments, fines, ERISA excise
taxes, penalties, amounts paid or to be paid in settlement or in costs by or on
behalf of the Director, expenses relating to investigations or to judicial or
administrative proceedings or appeals, attorneys' fees or any other costs of
defense of legal actions, claims, or proceedings or appeals therefrom, costs of
attachment or similar bonds, and any other amounts actually incurred or suffered
by the Director in connection with any
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Proceeding or in establishing a right of indemnification under this Agreement.
The Corporation shall advance to the Director as soon as practicable any
Expenses incurred by the Director upon receipt by the Corporation of an
undertaking, if such undertaking is required by law, by or on behalf of the
Director to repay all amounts so advanced if the Director is not entitled to be
indemnified by the Corporation pursuant to this Agreement or otherwise, as
decided by a court, arbitrator or other judicial agent having the requisite
legal authority to make such a decision, which decision has become final and
from which no appeal or other review proceeding is permissible.
4. The Corporation shall not be obligated under this Agreement to make
any payment of Expenses to the Director:
(a) the payment of which is prohibited by Delaware law;
(b) for which and to the extent payment is actually and
unqualifiedly made to the Director under an insurance policy or
otherwise; or
(c) based upon or attributable to the Director gaining in fact
any personal profit or advantage to which he or she was not legally
entitled, as decided by a court, arbitrator or other judicial agent
having the requisite legal authority to make such a decision, which
decision has become final and from which no appeal or other review
proceeding is permissible.
5. If a claim under this Agreement is not paid by the Corporation, or
on its behalf, within sixty (60) days after a written claim has been received by
the Corporation (except in the case of a claim for the advancement of Expenses
incurred in a Proceeding in advance of its final disposition, in which case the
applicable period shall be twenty (20) days), the Director may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim, and if successful in whole or in part in such suit or in a suit
brought by the Corporation to recover an advancement of Expenses pursuant to the
terms of an undertaking, the Director shall also be entitled to be paid the
Expenses of prosecuting or defending such claim. The right to indemnification or
advances as provided by this Agreement shall be enforceable by the Director in
any court of competent jurisdiction. The Corporation's sole defense to an action
by the Director seeking indemnification shall be that the Director has not met
the standard of conduct which makes it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the Director for the amount
claimed, and the burden of proving such defense shall be on the Corporation;
provided, however, that in the case of a claim for the advancement of Expenses
incurred in a Proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation, that
defense shall not be available to the Corporation. Neither the failure of the
Corporation (including the Board of Directors, its independent legal counsel or
its stockholders) to have made a determination prior to the commencement of such
action that indemnification of the Director is proper under the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including the Board of Directors, its independent legal counsel or its
stockholders) that the Director has not
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met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the Director has not met the applicable standard of
conduct.
6. The Corporation shall maintain in full force and effect, at its own
expense, Insurance coverage for the Director in amounts and scope at least as
favorable as that maintained by the Corporation on September 30, 1996, or, to
the extent more favorable, any Insurance policy entered into or renewed by the
Corporation following such date. Notwithstanding the foregoing, if (a) the
Corporation, after using its best efforts, cannot obtain and purchase such
coverage for an amount no more than what it paid for the most recent expiring
Insurance policy plus a reasonable additional amount and (b) the Corporation has
so notified the Director at the most recent address the Corporate Secretary has
for the Director, then the Corporation shall only be required to purchase such
Insurance coverage for any act or omission occurring at or prior to the time of
such notification or, if more favorable to the directors and officers of the
Corporation as a whole, such Insurance coverage as is standard within the
Corporation's industry. Such obligation shall continue for so long as the
Director may be subject to any possible claim which might be covered under such
Insurance coverage. The Corporation agrees that money damages would not be a
sufficient remedy for any breach of this provision and that the Director shall
be entitled to specific performance and injunctive or other equitable relief as
remedies for any such breach. Such remedies shall not be deemed to be the
exclusive remedies of the Director, and shall be in addition to all other
remedies available at law or in equity to the Director. The Corporation waives
any requirement for the securing or posting of any bond in connection with any
such remedy.
7. The Director shall give the Corporation and any insurance company
providing Insurance coverage such information and cooperation in the defense of
a Proceeding as they may reasonably require and as shall be within the
Director's power; provided, however, that if a Proceeding is brought by the
Corporation, or if the Corporation is assisting or cooperating in the
prosecution of a Proceeding against the Director, the Director shall only be
required to provide information to and cooperate with any insurance company
providing Insurance coverage.
8. The Director shall give to the Corporation notice as soon
practicable of any Proceeding for which indemnity will or could be sought under
this Agreement, the Corporation's Bylaws or any other obligation whatsoever of
the Corporation to indemnify the Director or for which Insurance coverage could
be available.
9. Nothing herein shall be deemed to diminish or otherwise restrict the
Director's right to indemnification under any provision of the Certificate of
Incorporation or Bylaws of the Corporation, under Delaware law or under any
other obligation whatsoever of the Corporation to indemnify the Director.
10. In the event of payment under this Agreement, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of
the Director, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Corporation effectively to bring suit to
enforce such rights.
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11. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof are held by a court of competent jurisdiction
to be invalid, void or otherwise unenforceable, and the remaining provisions
shall remain enforceable to the fullest extent permitted by law. Furthermore, to
the fullest extent permitted, the provisions of this Agreement shall be
construed so as to give effect to the intent manifested by any provision held
invalid, void or otherwise unenforceable.
12. This Agreement shall be binding upon all successors and assigns of
the Corporation (including any transferee of all or substantially all of its
assets and any successor by merger, consolidation or operation of law) and shall
inure to the benefit of the heirs, personal representatives and estate of the
Director.
13. This Agreement shall be governed by and construed in accordance
with Delaware law.
14. The indemnification under this Agreement shall cover the Director's
service as a director of the Corporation or as an Agent of an Affiliate and
shall continue after he or she has ceased to act in such capacity with respect
to all of his or her acts in such capacity, whether arising prior to, on or
after the date of this Agreement.
15. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by the Corporation and the Director. No
waiver of any of the provisions of this Agreement shall operate as a waiver of
any other provisions of this Agreement, nor shall any waiver constitute a
continuing waiver. Except as specifically provided in this Agreement, no failure
to exercise or delay in exercising any right or remedy under this Agreement
shall constitute a waiver of the right or remedy.
16. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
UNOCAL CORPORATION DIRECTOR:
By______________________________________ ________________________
____________________, Vice President [Name of Director]
By______________________________________
____________________, Secretary
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