EXHIBIT 10.15
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made as of this ______
day of _______________, 19___, by and between Sun Company, Inc., a
Pennsylvania corporation (the "Company") and _____________________________
("Indemnitee").
WHEREAS, the Company and Indemnitee recognize the increasing difficulty
in obtaining directors' and officers' liability insurance, the significant
increases in the cost of such insurance and the general reduction in the
coverage of such insurance; and
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation, in general, subjecting officers and
directors to expensive litigation risks at the same time as liability
insurance has been severely limited; and
WHEREAS, Indemnitee does not regard the current protection available as
adequate given the present circumstances, and Indemnitee and other officers
and directors of the Company may not be willing to serve as officers and
directors without adequate protection; and
WHEREAS, the Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as officers and
directors of the Company and to indemnify its officers and directors so as
to provide them with the maximum protection permitted by law.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. INDEMNIFICATION.
(a) Third Party Proceedings. The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Company,
or any affiliate of the Company, by reason of any action or inaction on the
part of Indemnitee while an officer or director, or by reason of the fact
that Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement (if such settlement is approved pursuant to
Section 2(f) hereof) actually and reasonably incurred by Indemnitee in
connection with such action, suit or proceeding if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
Indemnitee's conduct was unlawful. The termination of any action, suit or
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 or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee's conduct was
lawful.
(b) Proceedings By or in the Right of the Company. The Company
shall indemnify Indemnitee if Indemnitee was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit
by or in the right of the Company or any subsidiary of the Company to
procure a judgment in its favor by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Company, or any affiliate
of the Company, by reason of any action or inaction on the party of
Indemnitee while an officer or director or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees) and amounts paid in settlement (if such settlement is approved
pursuant to Section 2(f) hereof) actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such action or
suit if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have been adjudged to
be liable to the Company unless and only to the extent that the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
(c) Mandatory Indemnification. To the extent that Indemnitee has
been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in Sections 1(a) and 1(b) or the defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
Indemnitee in connection therewith. For purposes of this Section 1(c), the
term "successful on the merits or otherwise" shall include, but not be
limited to, (i) any termination, withdrawal, or dismissal (with or without
prejudice) of any claim, action, suit or proceeding against Indemnitee
without any express finding of liability or guilt against him, or (ii) the
expiration of a reasonable period of time after the making of any claim or
threat of an action, suit or proceeding without the institution of the same
and without any promise or payment made to induce a settlement.
2. EXPENSES AND INDEMNIFICATION PROCEDURE.
(a) Advancement of Expenses. The Company shall advance all
reasonable expenses incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal
action, suit or proceeding referenced in Section 1(a) or (b) hereof. For
purposes of any advancement hereunder, the Indemnitee shall be deemed to
have acted (i) in good faith and in a manner he reasonably believed to be
in or not opposed to the best interest of the Company, and (ii) with
respect to any criminal action or procedure, to have had no reasonable
cause to believe his conduct was unlawful if, under either (i) or (ii), his
action is based on the records or books of account of the Company, or the
records or books of account of another corporation, partnership, joint
venture, trust or another enterprise (collectively, the "other
enterprises"), including financial statements, or on information supplied
to him by the officers of the Company or other enterprises in the course of
their duties, or on the advice of legal counsel for the Company or other
enterprises or on information or records given or reports made to the
Company or other enterprises by an independent certified public accountant
or by an appraiser or other expert selected with reasonable care by the
Company or other enterprises. Indemnitee hereby undertakes to repay such
amounts advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the Company
as authorized hereby.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to his right to be indemnified under this Agreement,
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 Sun Company, Inc., 1801 Market Street,
Philadelphia, PA 19103, Attention: Vice President and General Counsel (or
such other address as the Company may from time to time designate in
writing to Indemnitee). Notice shall be deemed received on the third
business day after the date postmarked if sent by domestic certified or
registered mail, properly addressed; otherwise, notice shall be deemed
received when such notice shall actually be received by the Company. In
addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within
Indemnitee's power.
(c) Procedure. Any indemnification and advances provided for in
Section 1 hereof and this Section 2 shall be made no later than forty-five
(45) days after receipt of the written request of Indemnitee, coupled with
appropriate documentation to support the requested payment. 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 forty-five (45)
days after receipt of a fully documented 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 13 hereof,
Indemnitee shall also be entitled to be paid for the expenses (including
attorneys' fees) of bringing such action. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in connection with any action, suit or proceeding in advance of
its final disposition) that Indemnitee has not met the standards of conduct
which make it permissible under applicable law for the Company to indemnify
Indemnitee for the amount claimed, but the burden of proving such defense
shall be on the Company, and Indemnitee shall be entitled to receive
interim payments of expenses pursuant to Section 2(a) hereof unless and
until such defense may be 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 of Indemnitee is proper in the circumstances because
Indemnitee has met the
applicable standard of conduct required by applicable law, 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 applicable standard
of conduct, shall create a presumption that Indemnitee has or has not met
the applicable standard of conduct.
(d) Notice to Insurers. If, at the time of the receipt of a notice
of claim pursuant to Section 2(b) hereof, the Company has directors' and
officers' 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 Indemnitee, all amounts payable as a result
of such proceeding in accordance with the terms of such policies.
(e) Selection of Counsel. If the Company shall be obligated under
Section 2(a) hereof to pay the expenses of any proceeding against
Indemnitee, the Company, if appropriate, shall be entitled to assume the
defense of such proceeding, with counsel approved by 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
Indemnitee under this Agreement for any fees of counsel subsequently
incurred by Indemnitee with respect to the same proceeding; provided that
(i) Indemnitee shall have the right to employ separate 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 reasonable fees and
expenses of Indemnitee's counsel shall be at the expense of the Company.
(f) Settlements. The Company shall not be liable to Indemnitee
under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent. The Company shall not settle
any action or claim in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee's written consent. Neither the
Company nor Indemnitee will reasonably withhold consent to any proposed
settlement.
(g) Change in Control. If, at any time subsequent to the date of
this Agreement, continuing directors do not constitute a majority of the
members of the Board of Directors, or there is otherwise a change in
control of the Company (as contemplated by Item 403(c) of Regulation S-K
under the Securities Act of 1933, as amended, and the Securities Exchange
Act of 1934, as amended), then upon the request of Indemnitee, the Company
shall cause the determination of indemnification and advances required by
Section 2 hereof to be made by a third-party (mutually agreed upon by the
parties or failing such agreement, as determined by the Chief Judge of the
Federal District Court for the Eastern District of Pennsylvania). The fees
and expenses incurred by the third party in making the determination of
indemnification and advances shall be borne solely by the Company. If such
third party is unwilling and/or unable to make the determination of
indemnification and advances, then the Company shall cause the
indemnification and advances to be made by a majority vote or consent of a
Board committee consisting solely of continuing directors. For purposes of
this Agreement, a "continuing director" means either a member of the Board
at the date of this Agreement or a person nominated to serve as a member of
the Board by a majority of then-continuing directors.
3. ADDITIONAL INDEMNIFICATION RIGHTS:
(a) Scope. Notwithstanding any other provision of this Agreement,
the Company shall indemnify Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company's
Certificate of Incorporation, the Company's Bylaws or by statute. In the
event of any change, after the date of this Agreement, in any applicable
law, statute, or rule which expands the right of a Pennsylvania corporation
to indemnify a member of its board of directors or an officer, such changes
shall be, ipso facto, within the purview of Indemnitee's rights and
Company's obligations under this Agreement. In the event of any change in
any applicable law, statute or rule which narrows the right of a
Pennsylvania 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.
(b) Non-exclusivity. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which an
Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or
disinterested directors, the Pennsylvania Business Corporation Law of 1988,
as amended, or otherwise, both as to action in Indemnitee's official
capacity and as to action in another capacity while holding such office.
4. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Company contained herein shall continue during the period Indemnitee is a
director, officer, employee or agent of the Company (or is or was serving
at the request of the Company as a director, officer, employee or agent of
other enterprises) and shall continue thereafter, so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal or investigative, by
reason of the fact that Indemnitee was a director, officer, employee or
agent of the Company or serving in any other capacity referred to herein.
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 expenses, judgments, fines or penalties actually or
reasonably incurred by him 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 ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge
that, in certain instances, federal law or public policy may override
applicable state law and prohibit the Company from indemnifying its
directors and officers under this Agreement or otherwise. For example, the
Company and Indemnitee acknowledge that the Securities and Exchange
Commission (the "SEC") has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws,
and federal legislation prohibits indemnification for certain ERISA
violations. Indemnitee understands and acknowledges that the Company has
undertaken with the SEC 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. OFFICER AND DIRECTOR LIABILITY INSURANCE. 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 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. In all policies of directors' and officers' liability
insurance, Indemnitee shall be insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company's directors, if Indemnitee is a director;
or of the Company's officers, if Indemnitee is not a director of the
Company but is an officer; or one of the Company's key employees, if
Indemnitee is not an officer or director but is a key employee.
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 Indemnitee is covered by similar
insurance maintained by an affiliate of the Company.
8. 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 8. 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.
9. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms
of this Agreement:
(a) Claims Initiated by Indemnitee. 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 or any other statute or law or
otherwise as required under the Pennsylvania Business Corporation Act of
1988, as amended, but such indemnification or advancement of expenses may
be provided by Company in specific cases if the Board of Directors finds it
to be appropriate;
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses
incurred by 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
Indemnitee in such proceeding was not made in good faith or was frivolous;
(c) Insured Claims. 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 other enterprise; or
(d) Claims Under Section 16(b). To indemnify Indemnitee for
expenses or 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.
10. CONSTRUCTION OF CERTAIN PHRASES.
(a) For purposes of this Agreement, references to the "Company"
shall include, 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 other enterprises, 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.
(b) 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 reference to "serving at the request of the
Company" shall include any service as a director, officer, employee or
agent of the Company which imposes duties on, or involves services by,
Indemnitee with respect to an 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 interest 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.
(c) For the purposes of this Agreement, references to "affiliates"
shall mean any entity which, directly or indirectly, is in the control of,
is controlled by, or is under common control with, the Company.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns, and
Indemnitee and Indemnitee's estate, heirs, legal representatives and
assigns.
13. ATTORNEYS' FEES. If 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 made in bad faith or was frivolous.
14. NOTICE. All notices, requests, demands and other communications
under this Agreement shall be in writing and, unless otherwise provided,
shall be deemed duly given (a) if delivered by hand and receipted for by
the party addressee, 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. The address for notice to the
Company shall be as set forth in Section 2(b) hereof, and the address for
notice to Indemnitee shall be as set forth on the signature page of this
Agreement, or as subsequently modified by written notice.
15. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the Commonwealth
of Pennsylvania for all purposes in connection with any action or
proceeding which arises out of or relates to this Agreement. Any action
instituted under this Agreement shall be brought only in the state courts
of the Commonwealth of Pennsylvania.
16. Subrogation. In the event of payment under this Agreement, Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, 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 Company effectively to
bring suit to enforce such rights.
17. CHOICE OF LAW. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the Commonwealth of
Pennsylvania, as applied to contracts between Pennsylvania residents
entered into and to be performed within Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ACCEPTED AND AGREED TO: SUN COMPANY, INC.
INDEMNITEE:
_______________________ By:______________________
(signature) (name and title)
_______________________
(name)
_______________________
(address)
_______________________
SCHEDULE TO
EXHIBIT 10.15
INDEMNIFICATION AGREEMENT
The Indemnification Agreements dated as of February 1, 1996, between Sun
Company, Inc. and the directors and executive officers named below are
identical in all material respects.
Robert M. Aiken, Jr. Raymond E. Cartledge
Robert H. Campbell Robert E. Cawthorn
John G. Driscoll Mary J. Evans
Jack L. Foltz Thomas P. Gerrity
Deborah M. Fretz James G. Kaiser
Thomas W. Hofmann Robert D. Kennedy
David E. Knoll Thomas W. Langfitt
Malcolm I. Ruddock, Jr. R. Anderson Pew
Sheldon L. Thompson Albert E. Piscopo
William F. Pounds
Alexander B. Trowbridge