Exhibit 10.3
UNOCAL CORPORATION OFFICER
INDEMNITY AGREEMENT
This Unocal Corporation Officer Indemnity Agreement ("Agreement") is
made as of March 26, 2003 by and between Unocal Corporation, a Delaware
corporation (the "Corporation"), and [Name of Officer] (the "Officer") with
reference to the following facts:
RECITALS
A. The Corporation and the Officer have previously entered into a
Unocal Corporation Officer Indemnity Agreement (the "Old Agreement") setting
forth terms and conditions under which the Corporation provides indemnification
and insurance to the Officer.
B. The Corporation and the Officer are entering into this Agreement,
which amends and restates the Old Agreement, in order to update the terms and
conditions under which the Corporation provides indemnification and insurance to
the Officer.
C. It is essential to the Corporation to retain and attract as officers
the most capable persons available.
D. It is now and has been the express policy of the Corporation to
indemnify and insure its officers so as to provide them with the maximum
possible protection permitted by law.
E. The Officer is currently an officer of the Corporation and is
performing valuable services for the Corporation. The Corporation wishes the
Officer to continue in such capacity, and the Officer is willing, under certain
circumstances, to continue in such capacity.
F. The Bylaws of the Corporation provide for the indemnification of the
officers 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or superseded.
G. In addition to the indemnification to which the Officer is entitled
pursuant to the Bylaws of the Corporation and as additional consideration for
the Officer'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.
H. The Officer has indicated that he or she does not regard 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 Officer 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 Officer to continue to serve as
an officer 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 Agreement shall be amended and
restated to read in its 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 Officer and his or her heirs, executors,
administrators or assigns any Expenses (as defined below) actually and
reasonably incurred by the Officer 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 an officer 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 Officer is or was an officer 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 Officer with respect to a Proceeding initiated
by the Officer 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
Officer, 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 Officer, 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 Officer in connection with any Proceeding or in establishing a right of
indemnification under this Agreement. The Corporation shall advance to the
Officer as soon as practicable any Expenses incurred by the Officer upon receipt
by the Corporation of an undertaking, if such undertaking is required by law, by
or on behalf of the Officer to repay all amounts so advanced if the Officer 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,
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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 Officer:
(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 Officer under an insurance policy or
otherwise; or
(c) based upon or attributable to the Officer 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 Officer 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 Officer 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 Officer in
any court of competent jurisdiction. The Corporation's sole defense to an action
by the Officer seeking indemnification shall be that the Officer has not met the
standard of conduct which makes it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the Officer 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 Officer 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 Officer has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the Officer 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 Officer 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,
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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 Officer at the most recent address the Corporate
Secretary has for the Officer, 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 Officer 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 Officer 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 Officer, and shall be in addition to all other
remedies available at law or in equity to the Officer. The Corporation waives
any requirement for the securing or posting of any bond in connection with any
such remedy.
7. The Officer 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 Officer'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 Officer, the Officer shall only be required to provide
information to and cooperate with any insurance company providing Insurance
coverage.
8. The Officer 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 Officer or for which Insurance coverage could be
available.
9. Nothing herein shall be deemed to diminish or otherwise restrict the
Officer'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 Officer.
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 Officer, 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.
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.
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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
Officer.
13. This Agreement shall be governed by and construed in accordance
with Delaware law.
14. The indemnification under this Agreement shall cover the Officer's
service as an officer 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 Officer. 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 OFFICER:
By______________________________________ ______________________
____________________, Vice President [Name of Officer]
By______________________________________
____________________, Secretary
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