Exhibit 10.44
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement"), made as of ____________________,
1996, by and between Triton Energy Limited, a Cayman Islands company (the
"Company"), and __________________, a director and/or officer of the Company
("Indemnitee"),
W I T N E S S E T H:
WHEREAS, it is essential to the Company to retain and attract as
directors and officers the most capable persons available; and
WHEREAS, service as a director or officer of a company, particularly a
company the securities of which are publicly held, may subject a person to
substantial litigation and other risks; and
WHEREAS, it is now and has always been the express policy of the Company
to indemnify its directors and officers so as to provide to them the maximum
protection permitted by law; and
WHEREAS, Indemnitee considers that the protection available under the
Company's Articles of Association may not be adequate in the present
circumstances and the Company desires to ensure that Indemnitee serve or
continue to serve the Company as a director or officer;
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to
serve as a director and/or officer of the Company until his or her death, or
his or her resignation or removal from office, or the election or appointment
and qualification of his or her successor, whichever shall first occur.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed, claim, action, suit or proceeding, whether of a civil, criminal,
administrative or investigative nature (including all appeals therefrom)
(including, without limitation, any such claim, action, suit or proceeding by
or in the right of the Company), in which Indemnitee may be or may have been
or may be threatened to be made to become involved as a party or otherwise, by
reason of the fact that Indemnitee is or was a director, officer, employee or
agent of, or his acting in any other capacity for or on behalf of the Company
(including his serving as an officer of or director of any direct or indirect
subsidiaries of the Company or for, on behalf of or at the request of the
Company as a director, officer, employee or agent of another corporation,
company, partnership, joint venture, limited liability company, joint
operating company, trust or other enterprise, or in a fiduciary or other
capacity with respect to any employee benefit plan maintained by the Company),
or by reason of anything actually or allegedly done or not done by Indemnitee
in any such capacity, whether or not Indemnitee is serving in such capacity at
the time any liability or expense is incurred for which indemnification or
reimbursement can be provided under this Agreement.
(b) The term "Expenses" shall include, without limitation thereto,
all costs, expenses and obligations (including by way of example and not by
way of limitation attorneys' fees, court costs, travel expenses and fees of
experts) incurred or paid in connection with (i) investigating, defending,
being a witness in or otherwise participating in, or preparing to defend, be a
witness in or participate in any Proceeding, (ii) establishing Indemnitee's
right to indemnification under this Agreement any (iii) obtaining recovery
under any directors' and officers' liability or similar insurance policy or
policies purchased or maintained at any time by the Company. Without limiting
in any way the rights of Indemnitee hereunder or under the Company's Articles
of Association, the term Expenses is intended expressly to include the fees
and expenses of counsel of Indemnitee's own choosing (i) in the event a change
of control of the Company shall have occurred and/or (ii) where the named
parties to any Proceeding include both Indemnitee and the Company and
Indemnitee has been advised by Indemnitee's counsel that there may be one or
more legal defenses available to Indemnitee that are different from or
additional to those available to the Company (in which case, however, the
Company shall not, in connection with any one Proceeding or separate but
substantially similar or related Proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at
any time for the Indemnitee, which firm shall be designated in writing by
Indemnitee).
(c) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with
respect to any employee benefit plan; references to "serving at the request of
the Company" shall include any service as a director, officer, employee, or
agent of the Company, including at the request of the Board of Directors or
another officer of the Company, that imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who is
determined to have acted in good faith and in a manner he reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "he reasonably believed
to be in or not opposed to the best interests of the Company" for purposes of
this Agreement.
(d) A "change in control of the Company" shall mean the occurrence of
any of the following events: (i) there shall be consummated (x) any merger,
amalgamation or consolidation of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which the Company's
Ordinary Shares would be converted into cash, securities or other property,
other than a merger of the Company in which the holders of the Company's
Ordinary Shares immediately prior to the merger have the same proportionate
ownership of common stock or ordinary shares of the surviving corporation
immediately after the merger, or (y) any sale, lease, exchange or other
transfer (excluding transfer by way of pledge or hypothecation), in one
transaction or a series of related transactions, of all, or substantially all,
of the assets of the Company, (ii) the shareholders of the Company approve any
plan or proposal for the liquidation or dissolution of the Company, (iii) any
"person" (as such term is defined in Section 3(a)(9) or Section 13(d)(3) under
the Securities Exchange Act of 1934, as amended (the "1934 Act)) or any
"group" (as such term is used in Rule 13d-5 promulgated under the 1934 Act),
other than the Company or any successor of the Company or any subsidiary of
the Company or any employee benefit plan of the Company or any subsidiary
(including such plan's trustee), becomes, without the prior approval of the
Board of Directors of the Company (the "Board"), a beneficial owner for
purposes of Rule 13d-3 promulgated under the 1934 Act, directly or indirectly,
of securities of the Company representing 25.0% or more of the Company's then
outstanding securities having the right to vote in the election of directors
of the Company, or (iv) during any period of two consecutive years,
individuals who, at the beginning of such period constituted the entire Board,
cease for any reason (other than death) to constitute a majority of the
directors of the Company, unless the election, or the nomination for election,
by the Company's shareholders, of each new director of the Company was
approved by a vote of at least two-thirds of the directors of the Company then
still in office who were directors of the Company at the beginning of the
period.
3. Indemnity in Third Party Proceedings. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee
is or was a party to, or is or was threatened to be made a party to, or is
otherwise involved in any manner (as a witness or otherwise) in any Proceeding
(other than a Proceeding by or in the right of the Company to procure a
judgment in its favor in which Indemnitee is a party defendant) against any
and all Expenses, and any and all judgments, fines and penalties entered or
assessed against Indemnitee and any and all amounts reasonably paid or payable
in settlement by Indemnitee, in connection with such Proceeding, but only if
Indemnitee acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company and, in the case
of a criminal proceeding, in addition, had no reasonable cause to believe that
his conduct was unlawful.
4. Indemnity in Proceedings By or In the Right of the Company. The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if and to the extent that Indemnitee is a party to, or is or was
threatened to be made a party to, or is otherwise involved in any manner (as a
witness or otherwise) in any Proceeding by or in the right of the Company to
procure a judgment in its favor in which Indemnitee is a party defendant,
against any and all Expenses, but only if he or she acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the best
interests of the Company, except that no indemnification for Expenses shall be
made under this Section 4 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, any court in which such Proceeding 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 as such court shall deem proper.
5. Indemnification of Expenses of Successful Party; No Adverse
Presumption. Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding or in defense of any claim, issue or matter therein,
including the dismissal of an action without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith. The
termination of any such Proceeding by judgment, order of court, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption for purposes of any provision of this Agreement
that Indemnitee did not act in good faith in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company or, with
respect to any criminal proceeding, that such person had reasonable cause to
believe that his or her conduct was unlawful.
6. Advances of Expenses. The Expenses incurred by Indemnitee in
connection with any Proceeding shall be paid by the Company in advance of a
final disposition of such Proceeding, promptly upon the written request of
Indemnitee, if Indemnitee shall undertake in writing (without the need for
security therefor) to repay such amount if and to the extent that it is
ultimately determined that Indemnitee is not entitled to indemnification for
such Expenses.
7. Right of Indemnitee to Indemnification Upon Application; Procedure
Upon Application. Without limiting Indemnitee's rights, and the Company's
obligations, under Section 6, any indemnification under Sections 3 and/or 4
shall be made or paid by the Company no later than 30 days after receipt by
the Company of the written request of Indemnitee therefor, unless a
determination is made within such 30-day period by (i) the Board of Directors
of the Company by a vote of an affirmative majority of directors who are not
and were not parties to such Proceedings, or (ii) if at least a majority of
the directors are or were parties to such Proceedings, then by independent
legal counsel in a written opinion that Indemnitee has not met the relevant
standards for indemnification set forth in Sections 3 and/or 4. The burden of
proving that indemnification is not appropriate shall be on the Company.
Indemnitee's expenses reasonably incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such Proceeding shall also be indemnified by the Company.
8. Indemnification Hereunder Not Exclusive. The indemnification
provided by this Agreement shall not be deemed exclusive of and shall be in
addition to any other rights to which Indemnitee may be entitled under the
laws of the Cayman Islands, the Articles of Association of the Company or any
other company, the certificate or articles of incorporation of any other
entity, any other agreement, any and all insurance policies, any vote of
stockholders or disinterested directors, or otherwise, either as to action in
his or her official capacity or as to action in another capacity. To the
extent that Indemnitee otherwise would have any greater right to
indemnification from the Company, whether under the laws of the Cayman Islands
or the Articles of Association of the Company as in effect on the date hereof
or otherwise, Indemnitee will be deemed to have such greater right hereunder,
and to the extent that any change is made to the laws of the Cayman Islands
and/or the Articles of Association of the Company which permits any greater
right to indemnification than that provided by this Agreement as of the date
hereof, Indemnitee will be deemed to have such greater right hereunder.
The rights to indemnification and advancement of expenses under this
Agreement shall continue as to Indemnitee even though he or she may have
ceased to be a director or officer or to serve in any capacity the Company or
any other enterprise and shall inure to the benefit of the heirs, executors,
administrators and personal representatives of Indemnitee.
9. Partial Indemnification. In the event that Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for a
portion but less than the entire amount of any Expenses, judgments, fines,
penalties and/or amounts paid or payable in settlement, the Company shall
fully indemnify Indemnitee in accordance with this Agreement for such portion
of such Expenses, judgments, fines, penalties and/or amounts paid in
settlement.
10. Subrogation. In the event that the Company provides any
indemnification or makes any payment to Indemnitee in respect of any matter in
respect of which indemnification or the advancement of expenses is provided
for herein, the Company shall be subrogated to the extent of such
indemnification or other payment to all of the related rights of recovery of
Indemnitee against other persons or entities. Indemnitee shall execute all
papers reasonably required and shall do everything that may be reasonably
necessary to secure such rights and enable the Company effectively to bring
suit to enforce such rights (with all of Indemnitee's reasonable costs and
expenses, including attorneys' fees and disbursements, to be reimbursed by or,
at the option of Indemnitee, advanced by the Company).
11. No Duplication of Payments. The Company shall not be obligated
under this Agreement to provide any indemnification or make any payment to
which Indemnitee is otherwise entitled hereunder to the extent, but only to
the extent, that such indemnification or payment hereunder would be
duplicative of any amount actually receive by Indemnitee pursuant to any
insurance policy, the laws of the Cayman Islands, the Articles of Association
or otherwise.
12. Saving Clause. If any provision of this Agreement or the
application of any provision hereof to any circumstance is held illegal,
invalid or otherwise unenforceable, the remainder of this Agreement and the
application of such provision to any other circumstance shall not be affected,
and the provision so held to be illegal, invalid or otherwise unenforceable
shall be reformed to the extent (but only to the extent) necessary to make it
legal, valid and enforceable.
13. Notice. Indemnitee shall give to the Company notice in writing
as soon as practicable of any claim made against him or her for which
indemnification will or could be sought under this Agreement, provided,
however, that any failure to give such notice to the Company will not relieve
the Company from its obligations hereunder unless, and only to the extent
that, such failure results in the forfeiture of substantial rights and
defenses. Notice to the Company shall be directed to the Company (to the
attention of the Chief Executive Officer, with a copy to the General Counsel)
at its principal executive office or such other address as the Company shall
designate in writing to Indemnitee. Notice shall be deemed received when hand
delivered or dispatched by electronic facsimile transmission, or three
calendar days after having been mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or one business day
after having been sent for next-day delivery by a nationally recognized
overnight courier. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and shall be within
Indemnitee's power.
14. Successors. This Agreement shall be binding upon the Company and
its successors, including without limitation any person acquiring directly or
indirectly all or substantially all of the business or assets of the Company
whether by purchase, merger, amalgamation, continuation, consolidation,
reorganization or otherwise (and such successor will thereafter be deemed the
"Company" for purposes of this Agreement), but will not otherwise be
assignable, transferable or delegatable by the Company. The Company shall
require any successor (whether direct or indirect, by purchase, merger,
amalgamation, continuation, consolidation, reorganization or otherwise) to all
or substantially all of the business or assets of the Company, to assume and
agree in writing to perform this Agreement, expressly for the benefit of
Indemnitee, in the same manner and to the same extent the Company would be
required to perform if no such succession had taken place.
15. Consent to Jurisdiction. The Company hereby irrevocably submits
to the jurisdiction of any Texas State or Federal court sitting in the
Northern District of Texas over any action or proceeding arising out of or
relating to this Agreement and the Company hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
such Texas State or Federal court.
16. Counterparts. This Agreement may be executed in any number of
counterparts, and upon the execution hereof by all parties hereto, in
counterparts or otherwise, each executed counterpart shall constitute an
original.
17. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS OF
LAWS) OF THE CAYMAN ISLANDS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth below.
Date:, 19
TRITON ENERGY LIMITED
By _______________________________
INDEMNITEE