Exhibit 10.10
INDEMNITY AGREEMENT
This Indemnity Agreement is made this ____ day of ________, ____, by and
between LYONDELL CHEMICAL COMPANY, a Delaware corporation ("Lyondell"), and
____________________ ("Indemnitee").
R E C I T A L S
Section 5.1 of Lyondell's By-Laws provides that Lyondell shall indemnify
the Indemnitee with respect to all matters to which Section 145 of the General
Corporation Law of the State of Delaware (the "DGCL") may in any way relate, to
the fullest extent permitted or allowed by the laws of the State of Delaware,
whether or not specifically required, permitted or allowed by said Section 145.
The By-Laws (Section 5.1(d)) also provide that Lyondell may from time to time
enter into indemnity agreements with the persons who are members of its Board of
Directors, its elected officers and such other persons as the Board may
designate, such indemnity agreements to be approved by a majority of the Board
then in office. Section 145(f) of the DGCL also provides that the
indemnification authorized by the other subsections of Section 145 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement or otherwise,
and Lyondell's By-Laws (Section 5.1(b)) likewise provide that the right to
indemnification and the payment of expenses conferred by Section 5.1 of the By-
Laws shall not be exclusive of any other right which any person may have or
thereafter acquire under any agreement or otherwise.
In exercising its discretion to authorize this Agreement, the Board of
Directors has considered the following, among other factors:
(a) It is essential to Lyondell to attract and retain as directors and
officers the most capable persons available.
(b) The substantial increase in corporate litigation that may subject
directors and officers to litigation costs and risks and the limitations on the
availability of directors' and officers' liability insurance have made and will
make it increasingly difficult for Lyondell to attract and retain such persons.
(c) When obtainable, insurance policies relating to indemnification are
often subject to retentions by the insured, co-insurance requirements,
exclusions and other limitations on coverage.
In view of the foregoing and in recognition of the Indemnitee's need for
substantial protection against personal liability in order to assure the
Indemnitee's continued service to Lyondell in an effective manner and the
Indemnitee's reliance on the provisions of Lyondell's By-Laws, and in part to
provide the Indemnitee with specific contractual assurance that the protection
promised by the By-Laws will be available to the Indemnitee (regardless of,
among other things, any amendment to or revocation of such By-Laws or any change
in the composition of Lyondell's Board of Directors or
any acquisition transaction relating to Lyondell), Lyondell wishes to provide in
this Agreement for the indemnification of and the advancing of expenses to the
Indemnitee to the fullest extent (whether partial or complete) permitted by law
and as set forth in this Agreement, and, to the extent insurance is maintained,
for the continued coverage of the Indemnitee under Lyondell's directors' and
officers' liability insurance policies.
A G R E E M E N T
In consideration of Indemnitee's continued service to Lyondell, Lyondell
hereby agrees with the Indemnitee as follows:
Section 1. Definitions.
a. Corporate Status: the status of a person who (i) is or was a director,
officer or employee of Lyondell, or is or was serving at the request of Lyondell
as a director (or in a position analogous to a director), officer or employee of
another corporation, partnership, joint venture, trust or other enterprise, in
each case which is controlled by Lyondell, (ii) is or was serving (1) on the
Partnership Governance Committee of Equistar Chemicals, LP ("Equistar"), the
Partnership Governance Committee of LYONDELL-CITGO Refining LP ("LCR") (or the
Owners Committee of the predecessor of LCR), or the Management Committee of
Lyondell Methanol Company, L.P. ("LMC"), as a representative of a subsidiary of
Lyondell that holds an ownership interest in Equistar, LCR or LMC, or (2) as an
officer of Equistar, LCR or LMC, provided that during a portion of such service
such person also served as an officer of Lyondell, or (iii) is or was serving,
at the written request of Lyondell or pursuant to an agreement in writing with
Lyondell, which request or agreement provides for indemnification under this
Agreement, as a director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust or other enterprise not
controlled by Lyondell, provided that if such written request or agreement
referred to in this clause (iii) provides for a lesser degree of indemnification
by Lyondell than that provided pursuant to this Agreement, the provisions
contained in or made pursuant to such written request or agreement shall govern.
References above to "other enterprises" shall include employee benefit plans,
and references to "serving at the written request of Lyondell" shall include any
service as a director, officer, employee, fiduciary or agent which imposes
duties on, or involves services by, such director, officer, employee, fiduciary
or agent (including as a member of the Lyondell Benefits Administration
Committee) with respect to an employee benefit plan or its participants or
beneficiaries.
b. Change in Control: shall be deemed to have occurred if (i) any Person
becomes the beneficial owner, directly or indirectly, of securities of Lyondell
representing 25% or more of the total voting power represented by Lyondell's
then outstanding Voting Securities, (ii) the stockholders of Lyondell approve a
merger or consolidation of Lyondell with any other corporation, other than a
merger or consolidation which would result in the Voting Securities of Lyondell
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of Lyondell or such surviving entity outstanding immediately
after such merger or consolidation, (iii) the stockholders of Lyondell approve a
plan of complete liquidation of Lyondell or an agreement for the sale or
disposition by Lyondell (in one transaction or
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a series of transactions) of all or substantially all of Lyondell's assets, (iv)
there shall have occurred an event required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on
any similar schedule or form) promulgated under the Exchange Act, whether or not
Lyondell is then subject to such reporting requirement, (v) during any period of
two consecutive years, individuals who at the beginning of such period
constituted Lyondell's Board of Directors (including for this purpose any new
director whose election or nomination for election by Lyondell's stockholders
was approved by a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of such period) cease for any reason
to constitute at least a majority of Lyondell's Board of Directors, or (vi)
Lyondell is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter.
c. Claim: any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation that the Indemnitee in good faith
believes might lead to the institution of any such action, suit or proceeding,
whether civil, criminal, administrative, investigative or other, except one
initiated by an Indemnitee pursuant to Section 4a of this Agreement or by
Lyondell to recover payments by Lyondell of expenses incurred by Indemnitee in
connection with a Claim in advance of its final disposition.
d. Court: the Court of Chancery of the State of Delaware or any other
court of competent jurisdiction.
e. Exchange Act: the Securities Exchange Act of 1934, as amended.
f. Independent Counsel: means a law firm, or a member of a law firm, that
has not otherwise performed services within the last five years for Lyondell or
an Affiliate of Lyondell as defined under the Exchange Act, the Indemnitee, any
Person referred to in clause (i) of Section 1b hereof, or any "other
corporation" referred to in clause (ii) of Section 1b hereof.
g. Person: any person as defined in Section 3(a)(9) and 13(d)(3) of the
Exchange Act.
h. Potential Change in Control: shall be deemed to have occurred if (i)
Lyondell enters into an agreement or arrangement, the consummation of which
would result in the occurrence of a Change in Control; (ii) any Person publicly
announces an intention to take or to consider taking actions which if
consummated would constitute a Change in Control; (iii) any Person (other than a
trustee or other fiduciary, holding securities under an employee benefit plan of
Lyondell, acting in such capacity) who is or becomes the beneficial owner,
directly or indirectly, of securities of Lyondell representing 10% or more of
the combined voting power of Lyondell's then outstanding Voting Securities,
increases such Person's beneficial ownership of such securities by 5% or more
over the percentage so owned by such Person on the date hereof; or (iv) the
Board of Directors adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
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i. Reviewing Party: any person or body (i) permitted to determine
entitlement to indemnification under Section 145(d) of the DGCL, (ii) designated
as the Reviewing Party by Lyondell's Board of Directors, and (iii) who is not a
party to the particular Claim for which the Indemnitee is seeking
indemnification; provided, however, that if there has been a Change in Control,
the Reviewing Party shall be the Independent Counsel selected pursuant to
Section 3e of this Agreement.
j. Voting Securities: any securities of Lyondell having the right under
ordinary circumstances to vote at an election of the Board of Directors.
Section 2. General Right to Indemnification. Subject to Sections 3 and
4g, Lyondell shall indemnify the Indemnitee in the event that Indemnitee was or
is a party or is threatened to be made a party to or is involved or is
threatened to be involved (as a witness or otherwise) in or otherwise requires
representation by counsel in connection with any Claim by reason of the fact
that Indemnitee is or was serving in a Corporate Status or by reason of
Indemnitee's alleged action or inaction in such capacity, and Indemnitee shall
be indemnified and held harmless by Lyondell to the fullest extent permitted by
the DGCL, as the same exists or may hereafter be amended (but, in the case of
any such amendment with reference to events occurring prior to the effective
date thereof, only to the extent that such amendment permits Lyondell to provide
broader indemnification rights than such law permitted Lyondell to provide prior
to such amendment), against all costs, charges, expenses, liabilities and losses
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) actually and reasonably incurred or suffered by
such person in connection therewith, and such indemnification shall continue as
to the Indemnitee when the Indemnitee has ceased to be a director or officer (or
to serve another entity at the request of Lyondell) and shall inure to the
benefit of the Indemnitee's heirs, personal representatives and estate.
Notwithstanding the foregoing, if the Indemnitee's Corporate Status arises by
virtue of clause (ii) of the definition of Corporate Status, Lyondell's
obligation to indemnify under this Agreement shall be subject to the obligation
of Equistar, LCR or LMC, as the case may be, to indemnify the Indemnitee as set
forth by law or under their respective organizational agreements, governance or
partnership committee resolutions or other agreements, and the Indemnitee shall
proceed first against Equistar, LCR or LMC, as the case may be, for
indemnification of any costs, charges, expenses, liabilities and losses;
provided that, Lyondell shall advance any such amounts incurred by the
Indemnitee in the event of a Claim that would give rise to a right
indemnification hereunder (were it not for this sentence), and, in the event the
Indemnitee is not indemnified by Equistar, LCR or LMC, as the case may be, to
the fullest extent as he or she would be entitled under this Agreement (were it
not for this sentence), Lyondell shall satisfy any deficiency subject to the
terms, conditions and procedures of this Agreement, it being the intent of
Lyondell that the Indemnitee shall receive the full benefit intended by this
Agreement, whether such indemnification is funded by Equistar, LCR, LMC or
Lyondell.
Section 3. Determination of Entitlement to Indemnification.
a. The obligations of Lyondell under Section 2 of this Agreement shall be
subject to the condition that the Reviewing Party shall have determined (in a
written opinion, in any case in which Independent Counsel is the Reviewing
Party) or have been deemed to determine that the Indemnitee is permitted to be
indemnified under applicable law.
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b. In making a determination as to indemnification, the Reviewing Party
shall use the presumptions and conventions described in Sections 4c and 4e of
this Agreement.
c. After the final disposition of any Claim covered by this Agreement, the
Indemnitee shall send to Lyondell a written request for any indemnification
sought under this Agreement. Such written request shall contain sufficient
information to reasonably inform Lyondell about the nature and extent of the
indemnification sought by Indemnitee.
d. If there has not been a Change of Control, no later than 15 days
following receipt by Lyondell of a request for indemnification, Lyondell shall
deliver such request to the Reviewing Party for its review pursuant to this
Agreement. Except in the event that the determination of entitlement to
indemnification is required by applicable law to be made in a written opinion,
if such Reviewing Party shall not have made and furnished to Indemnitee in
writing a determination as to the Indemnitee's entitlement to indemnification
within 60 days after receipt by Lyondell of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made, and Indemnitee shall be entitled to such indemnification unless Indemnitee
knowingly misrepresented a material fact in connection with the request for
indemnification or such indemnification is prohibited by applicable law.
e. If there has been a Change in Control, then with respect to all matters
thereafter arising concerning the rights of the Indemnitee to indemnity payments
and advances under this Agreement, the Reviewing Party shall be an Independent
Counsel selected in the following manner. Indemnitee shall give Lyondell
written notice advising of the identity and address of the Independent Counsel
selected by Indemnitee. Unless Lyondell objects within seven days after receipt
of such written notice of selection, the Independent Counsel selected by
Indemnitee shall be the Reviewing Party. Any such objection by Lyondell may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of Independent Counsel, and the objection shall set forth
with particularity the factual basis of such assertion. If Lyondell so objects,
Indemnitee may petition the Court for a determination that Lyondell's objection
to the selection of an Independent Counsel is without a reasonable basis and/or
for the appointment as Reviewing Party of an Independent Counsel selected by the
Court.
f. The Indemnitee and Indemnitee's counsel shall be given an opportunity
to be heard and to present evidence on the Indemnitee's behalf in connection
with consideration by the Reviewing Party.
g. An Independent Counsel who serves as a Reviewing Party, among other
things, shall render its written opinion to Lyondell and the Indemnitee as to
whether and to what extent the Indemnitee would be permitted to be indemnified
under applicable law. Lyondell agrees to provide full cooperation to and to pay
the reasonable fees of such Independent Counsel and to indemnify fully such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages actually and reasonably incurred, arising out of or
relating to this Agreement or its engagement pursuant hereto.
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Section 4. Right of Indemnitee to Bring Suit and Related Matters.
a. If (i) the Reviewing Party determines that the Indemnitee substantively
would not be permitted to be indemnified in whole or in part under applicable
law; (ii) a Reviewing Party who is an Independent Counsel selected pursuant to
Section 3d has not rendered its written opinion determining the request for
indemnification within 90 days after receipt by Lyondell of the request
therefor; (iii) a Reviewing Party who is an Independent Counsel selected
pursuant to Section 3e has not rendered its written opinion determining the
request for indemnification (a) within 90 days after the time for Lyondell to
object to such Reviewing Party's selection, or (b) within 90 days after
objections to such Reviewing Party's selection have been overruled by the Court,
or (c) within 90 days after being appointed by the Court; (iv) payment of
indemnification is not made to Indemnitee by Lyondell within 15 days after a
determination of entitlement to indemnification has been made or deemed to have
been made pursuant to this Agreement; or (v) a claim for advances under Section
6 is not paid in full by Lyondell within 15 days after a written claim
satisfying the requirements of Section 6 (together with the undertaking
referenced in Section 6, if applicable) has been received by Lyondell: the
Indemnitee shall have the right to bring suit in the Court seeking a
determination by the Court of Indemnitee's entitlement to indemnification or
advances or challenging any such determination by the Reviewing Party or any
aspect thereof, and Lyondell hereby consents to service of process and to appear
in any such proceeding. Any determination by the Reviewing Party that the
Indemnitee is entitled to indemnification shall be conclusive and binding on
Lyondell and the Indemnitee, unless Indemnitee knowingly misrepresented a
material fact in connection with such request for indemnification, or such
indemnification is prohibited by law. If successful in whole or in part, the
Indemnitee shall be entitled to be paid also the expenses actually and
reasonably incurred by Indemnitee in prosecuting its claim.
b. The provisions of Sections 4(c) through 4(f) shall also apply in any
action brought by Lyondell to recover payments by Lyondell of expenses incurred
by the Indemnitee in connection with a Claim in advance of its final
disposition.
c. In any judicial proceeding commenced pursuant to Section 4a, the
Indemnitee shall be presumed to be entitled to indemnification or advancement,
and the burden of proving that the Indemnitee is not entitled to be indemnified
or to obtain advances under this Agreement or otherwise shall be on Lyondell.
d. In any judicial proceeding commenced pursuant to Section 4a, neither
the failure of Lyondell (including its Board of Directors, independent legal
counsel, or its stockholders) or the Reviewing Party to have made a
determination (prior to the commencement by Indemnitee of an action pursuant to
Section 4a) that indemnification of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct
set forth in the DGCL, nor an actual determination by the Company (including its
Board of Directors, independent legal counsel, or its stockholders) or the
Reviewing Party that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such an action, brought by the
Indemnitee, be a defense to the action and if there is such a failure to make a
determination or an adverse determination, any judicial proceeding
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commenced pursuant to Section 4a shall be conducted in all respects as a de novo
trial on the merits, and Indemnitee shall not be prejudiced by reason thereof.
e. In any judicial proceeding commenced pursuant to Section 4a, the
termination of any Claim or of any matter in a Claim, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not of itself adversely affect the right of Indemnitee to indemnification
or 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 Lyondell, or with respect to any criminal proceeding, that
Indemnitee had reasonable cause to believe that Indemnitee's conduct was
unlawful. A person who 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 of Lyondell shall be deemed to have acted in a
manner not opposed to the best interests of Lyondell. For purposes of any
determination hereunder, a person shall be deemed to have acted in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of Lyondell, or, with respect to any criminal action or Claim, to
have had no reasonable cause to believe Indemnitee's conduct was unlawful, if
Indemnitee's action is based on the records or books of account of Lyondell or
another enterprise or on information supplied to him by the officers of Lyondell
or another enterprise in the course of their duties or on the advice of legal
counsel for Lyondell or another enterprise or on information or records given or
reports made to Lyondell or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by Lyondell or another enterprise. The term "another enterprise" as used
in this Section shall mean any other corporation, joint venture, trust or other
enterprise as to which the Indemnitee is or was serving in a Corporate Status.
The provisions of this paragraph shall not be deemed to be exclusive or to limit
in any way the circumstances in which an Indemnitee may be deemed to have met
the applicable standards of conduct for determining entitlement to rights under
this Agreement.
f. Lyondell shall be precluded from asserting in any judicial proceeding
commenced pursuant to Section 4a that the procedures and presumptions of this
Agreement are not valid, binding and enforceable, and shall stipulate in any
such proceeding that Lyondell is bound by all provisions of this Agreement.
g. Notwithstanding any other provisions of this Agreement to the contrary
and except as provided in Section 4a and Section 5, Lyondell shall indemnify the
Indemnitee in connection with a proceeding (or part thereof) initiated by the
Indemnitee against Lyondell only if such proceeding (or part thereof) was
authorized prior to its initiation by a majority of the disinterested members of
the Board of Directors of Lyondell. If such authorization is obtained, the
rights to indemnification confirmed by this paragraph shall include the right to
be paid by Lyondell any expenses incurred in defending such proceeding in
advance of its final disposition.
Section 5. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Agreement, to the extent
that the Indemnitee has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action with or without prejudice, in
defense of any Claim covered by this Agreement, or in defense of any claim,
issue or matter therein, the Indemnitee shall be indemnified against all costs,
charges and expenses,
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including attorneys' fees, actually and reasonably incurred by the Indemnitee or
on Indemnitee's behalf in connection therewith.
Section 6. Advances.
a. In the event of a Claim in which Indemnitee is a party or is involved
and that may give rise to a right of indemnification under this Agreement,
following written request by Indemnitee to Lyondell (which written request
includes reasonably satisfactory evidence as to the amount of such expenses),
expenses reasonably incurred by the Indemnitee in connection with such Claim,
including attorneys' fees, judgments, fines and amounts paid in settlements,
shall be paid by Lyondell in advance of the final disposition of the Claim;
provided, however, that if the DGCL requires or if Lyondell so requests, payment
shall be made to or on behalf of the Indemnitee only upon delivery to Lyondell
of an undertaking, by or on behalf of the Indemnitee, to repay all amounts so
advanced if it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by Lyondell under Section 145 of the DGCL.
b. Indemnitee agrees that Indemnitee shall reimburse Lyondell for all
expenses paid by Lyondell in defending any Claim against Indemnitee in the event
and only to the extent that it shall be determined pursuant to the provisions of
this Agreement or by final judgment or other final adjudication under the
provisions of any applicable law that Indemnitee is not entitled to be
indemnified by Lyondell for such expenses.
Section 7. Establishment of Trust. In the event of a Potential Change in
Control, Lyondell shall, upon written request by the Indemnitee, create a trust
for the benefit of the Indemnitee and from time to time upon written request of
the Indemnitee shall fund such trust in an amount sufficient to satisfy any and
all expenses reasonably anticipated at the time of each such request to be
incurred in connection with investigating, preparing for and defending any
Claim, and any and all judgments, fines, penalties and settlement amounts of any
and all Claims covered by this Agreement, from time to time actually paid or
claimed, reasonably anticipated or proposed to be paid. The terms of the trust
shall provide that upon a Change in Control, (a) the trust shall not be revoked
or the principal thereof invaded, without the written consent of the Indemnitee,
(b) the trustee shall advance within two business days of a request by the
Indemnitee any and all expenses reasonably incurred by the Indemnitee (and the
Indemnitee hereby agrees to reimburse the trust under the circumstances under
which the Indemnitee would be required to reimburse Lyondell under this
Agreement), (c) the trust shall continue to be funded by Lyondell in accordance
with the funding obligation set forth above, (d) the trustee shall promptly pay
to the Indemnitee all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (e) all unexpended
funds in such trust shall revert to Lyondell upon a final determination by the
Court that the Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by the Indemnitee. Nothing in this
Section 7 shall relieve Lyondell of any of its obligations under this Agreement.
Section 8. Insurance. To the extent Lyondell maintains an insurance
policy or policies providing directors' and officers' liability insurance, the
Indemnitee shall be covered by such policy
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or policies, in accordance with its or their terms, to the maximum extent of the
coverage available for Lyondell's directors or officers.
Section 9. Notice to Lyondell. The Indemnitee must provide prompt written
notice to Lyondell of any Claim in connection with which the Indemnitee may
assert a right to be indemnified hereunder; however, failure to provide such
notice shall not be construed as a waiver of any right of the Indemnitee to an
advance or indemnification hereunder. Any communication required or permitted
to Lyondell under this Agreement shall be addressed to the Secretary of
Lyondell, and any such communication to Indemnitee shall be addressed to the
Indemnitee's address as shown on Lyondell's records unless the Indemnitee
specifies otherwise. Any communication on behalf of either Lyondell or the
Indemnitee shall be in writing, and any notice shall be effective upon receipt.
Section 10. Other Rights; Continuation of Right to Indemnification. The
indemnification and advances provided by this Agreement shall not be deemed
exclusive of any other rights to which the Indemnitee seeking indemnification
may be entitled under any law (common or statutory), provision of Lyondell's
Certificate of Incorporation or By-Laws, vote of stockholders or disinterested
directors, or otherwise, both as to action in the Indemnitee's official capacity
and as to action in another capacity while holding office or while employed by
or acting as agent for Lyondell, and shall continue as to a person who has
ceased to be a director or officer, and shall inure to the benefit of the
estate, heirs, executors and administrators of the Indemnitee; provided,
however, that notwithstanding the foregoing, this Agreement supersedes all other
prior indemnity agreements, indemnification agreements or other agreements of a
similar nature heretofore entered into between Lyondell and the Indemnitee, as
well as any prior oral agreements or oral understandings with respect to the
subject matter of this indemnity agreement; provided, however, that,
notwithstanding the foregoing proviso, and in light of the fact that this
Agreement is generally intended to provide for indemnification to the fullest
extent permitted by the DGCL, this Agreement shall not be construed to deprive
the Indemnitee of any indemnification by Lyondell permitted by applicable law
with respect to an act or omission occurring prior to the date hereof that
Indemnitee would otherwise have been entitled to under any such prior agreement.
Section 11. Subrogation. In the event of payment under this Agreement,
Lyondell 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 Lyondell effectively to bring
suit to enforce such rights.
Section 12. No Duplication of Payments. Lyondell shall not be liable under
this Agreement to make any payment in connection with any claim made against the
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any insurance policy or otherwise) of the amounts otherwise indemnifiable
hereunder.
Section 13. Amendments. This Agreement may not be amended without the
agreement in writing of Lyondell and the Indemnitee.
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Section 14. Savings Clause. If this Agreement or any portion hereof shall
be deemed invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby, and Lyondell shall nevertheless
indemnify the Indemnitee as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any Claim
to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated and to the full extent permitted by applicable
law.
Section 15. Survival Clause. Lyondell acknowledges that in continuing to
provide services to Lyondell, the Indemnitee is relying on this Agreement.
Accordingly, Lyondell agrees that its obligations hereunder will survive (a) any
actual or purported termination of this Agreement by Lyondell or its successors
or assigns whether by operation of law or otherwise, and (b) termination of the
Indemnitee's services to Lyondell, whether such services were terminated by
Lyondell or the Indemnitee, with respect to any Claim, whether or not such Claim
is made, threatened or commenced before or after the actual purported
termination of this Agreement or the termination of the Indemnitee's services to
Lyondell.
Section 16. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of Lyondell and spouses, heirs, and personal and legal
representatives of Indemnitee. Lyondell shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of Lyondell, by written
agreement in form and substance satisfactory to the Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that Lyondell would be required to perform if no such succession had
taken place.
Section 17. Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Delaware (without giving effect to the provisions thereof relating to
conflicts of law).
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
thereto, and in the case of Lyondell, by a duly authorized officer thereof on
its behalf.
Attest: LYONDELL CHEMICAL COMPANY
By: _______________________ By: _________________________________
Name: Name:
Title: Title:
INDEMNITEE
By: __________________________________
Name:
Title:
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Officers and Directors with whom the Registrant has
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entered into Indemnity Agreements:
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