INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is entered into this
__ day of _____, 1994, between Douglas A. Brown ("Brown") and Empire Gas
Corporation, formerly Empire Gas Acquisition Corporation (the "Company").
RECITALS
WHEREAS, as part of a series of transactions that will effect a change
in its ownership and management, the Company filed on April 29, 1994 a
registration statement on Form S-1 (the "Registration Statement") relating to
the registration of Senior Secured Notes due 2004 in an aggregate principal
amount expected to result in gross proceeds of $100,000,000 in a public offering
(the "Offering"); and
WHEREAS, Brown will become a director of the Company upon the
consummation of the Offering; and
WHEREAS, included as an exhibit to the Registration Statement is a
written consent by Brown to be named in the Registration Statement as a
prospective director of the Company; and
WHEREAS, Article 9 of the Company's Articles of Incorporation provides
for the indemnification of all directors, officers, employees and agents of the
Company; and
WHEREAS, the Company agrees to indemnify Brown with respect to
liability incurred by him as a result of his being named as a director and
consenting thereto, as an inducement to become a director;
In consideration of the foregoing and the respective covenants and
agreements set forth in this Agreement, Brown and the Company agree as follows:
Section 1 INDEMNIFICATION.
Notwithstanding the fact that Brown was not a director of the Company
at the time the Registration Statement was filed, the Company agrees to
indemnify Brown, to the full extent provided for indemnification of directors
set forth in Article 9 of the Company's Articles of Incorporation as in effect
on the date of this Agreement, against any and all loss, liability, claim,
damage and expense whatsoever (a "Loss"), as incurred, arising out of or
resulting from his being named as a director in
the Registration Statement and consenting thereto, including without limitation
any Loss arising out of any untrue statement or alleged untrue statement of
material fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the regulations pursuant to the Securities
Act of 1933, as amended, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary or
final prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
Section 2 PROCEDURE.
(a) Indemnification under this Agreement shall be provided in
accordance with the procedures set forth in Article 9 of the Articles of
Incorporation of the Company and as set forth in this Section 3.
(b) Brown shall give notice as promptly as reasonably practicable to
the Company of any action commenced against him in respect of which an indemnity
may be sought hereunder, but failure to do so notify the Company shall not
relieve the Company from any liability which it may have otherwise than on
account of this Agreement. The Company may participate at its own expense in
the defense of such action. If it so elects within a reasonable time after
receipt of such notice, the Company may assume the defense of such action with
counsel chosen by it and approved by Brown, unless Brown reasonably objects to
such assumption on the ground that the named parties to any such action
(including any impleaded parties) include both Brown and the Company, and Brown
reasonably believes that there may be legal defenses available to him which are
different from or in addition to those available to the Company. If the Company
assumes the defense of such action, the Company shall not be liable for any fees
and expenses of counsel for Brown incurred thereafter in connection with such
action. In no event shall the Company be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from its own
counsel for Brown in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
Section 3 NOTICES.
All notices called for under this Agreement must be in writing and
will be deemed given for all purposes (i) upon
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personal delivery, (ii) two days after being sent, when sent by professional
overnight courier service, (iii) five days after posting when sent by registered
or certified mail, or (iv) on the date of transmission when sent by telegram,
telegraph, telex, or facsimile transmission, addressed to Brown and the Company
at the following addresses (or at such other address for a party as is specified
by like notice; provided that notices of a change of address will be effective
only upon receipt of the notice):
To Douglas A. Brown:
Holding Capital Group
685 Fifth Avenue
New York, New York 10022
Attention: Douglas A. Brown
To Empire Gas Corporation:
Empire Gas Corporation
1700 South Jefferson Street
Lebanon, Missouri 65536
Attention: Paul S. Lindsey, Jr.
Section 4 SEVERABILITY.
If any provision of this Agreement is held invalid, such invalidity
will not affect any other provision of the Agreement that can be given effect
without the invalid provision, and to this end, the provisions of this Agreement
are separable.
Section 5 ASSIGNMENT.
This Agreement will bind and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests and obligations hereunder, may be
assigned by any party without the written consent of the other party.
Section 6 AMENDMENT.
This Agreement may be modified only by a written instrument duly
executed by the Company and Brown and compliance with any provision or condition
contained in this Agreement, or the obtaining of any consent provided for in
this Agreement, may be waived only by written instrument duly executed by the
party to be bound by such waiver.
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Section 7 GOVERNING LAW.
The rights of the parties arising under this Agreement shall be
construed and enforced under the laws of the State of Missouri without giving
effect to any choice of law or conflict of law rules.
Section 8 ENTIRE AGREEMENT.
This Agreement contains the entire understanding of the parties to
this Agreement respecting the subject matter hereof and supersedes all prior
agreements, discussions, and understandings.
Section 9 CAPTIONS.
The captions in this Agreement are for convenience only, do not
form a part of it, and do not in any way modify, interpret or construe the
intentions of the parties to it.
Section 10 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which will be deemed an original but all of which will constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date set forth in the first paragraph of this Agreement.
Empire Gas Corporation
By: __________________________
__________________________
Douglas A. Brown
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