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EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the
___ day of _____, ____, by and between Michigan Consolidated Gas Company, a
Michigan corporation (the "Company"), and ________________, a director and
officer of the Company (the "Indemnitee").
RECITALS
A. The Indemnitee is presently serving as a director and
officer of the Company and the Company desires the Indemnitee to continue in
such capacity. The Indemnitee is willing, subject to certain conditions,
including without limitation the execution and performance of this Agreement by
the Company, to continue in that capacity.
B. In addition to the indemnification to which the Indemnitee
is entitled under the Restated Articles of Incorporation (the "Articles") or
By-Laws of the Company in effect from time to time, the Company has obtained at
its sole expense insurance protecting its officers and directors, including the
Indemnitee, against certain losses arising out of actual or threatened actions,
suits or proceedings to which such persons may be made or threatened to be made
parties. However, as a result of circumstances having no relation to, and beyond
the control of, the Company and the Indemnitee, there can be no assurance of the
continuation, renewal or scope of that insurance.
Accordingly, and in order to induce the Indemnitee to continue
to serve in the Indemnitee's present capacity, the Company and Indemnitee agree
as follows:
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1. Continued Service. The Indemnitee will continue to serve as a
director and officer of the Company so long as the Indemnitee is duly elected
and qualified in accordance with the By-Laws of the Company in effect from time
to time or until the Indemnitee resigns in writing in accordance with applicable
law.
2. Initial Indemnity.
(a) The Company shall indemnify the Indemnitee when the
Indemnitee was or is 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 and whether formal or informal, other
than an action by or in the right of the Company, by reason of the fact that the
Indemnitee is or was 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 another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, whether for profit or not, against expenses,
including attorneys' fees, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by the Indemnitee in connection with
such action, suit or proceeding if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in, or not opposed to the best
interests of the Company or its shareholders, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such 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 the Indemnitee did not act in good
faith and in a manner which the Indemnitee reasonably believed to be in or not
opposed to the best interests of the
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Company or its shareholders and, with respect to any criminal action or
proceeding, that the Indemnitee had reasonable cause to believe that such
conduct was unlawful.
(b) The Company shall indemnify the Indemnitee when the
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 to procure a judgment in its favor by reason of the fact that the
Indemnitee is or was a director, officer, employee, or agent of the Company, or
is or was serving or had agreed to serve at the request of the Company as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, against expenses, including attorneys' fees and
amounts paid in settlement actually and reasonably incurred by the Indemnitee in
connection with the action or suit, if the Indemnitee acted in good faith and in
a manner the Indemnitee reasonably believed to be in, or not opposed to the best
interests of the Company or its shareholders. Indemnification shall not be made
for a claim, issue or matter in which the Indemnitee has been found liable to
the Company except to the extent the Court conducting the proceeding or another
court of competent jurisdiction shall determine upon application that the
Indemnitee is fairly and reasonably entitled to indemnification in view of all
relevant circumstances whether or not the Indemnitee met the standard of conduct
set forth in this paragraph (b) or was so adjudged liable to the Company;
provided that if the Indemnitee was adjudged liable, such indemnification is
limited to reasonable expenses incurred.
(c) To the extent that the Indemnitee has been successful, on
the merits or otherwise, in defense of any action, suit or proceeding referred
to in Section 2(a) or 2(b) hereof, or in defense of any claim, issue or matter
in the action, suit or proceeding, the Indemnitee shall
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be indemnified against actual and reasonable expenses, including attorneys' fees
incurred by the Indemnitee in connection with the action, suit or proceeding and
an action suit or proceeding brought to enforce the mandatory indemnification
provided in this Section.
(d) Any indemnification under Section 2(a) or 2(b) (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination in accordance with Section 4 hereof or any
applicable provision of the Restated Articles of Incorporation of the Company in
effect from time to time, By-Laws, other agreement, resolution or otherwise.
Such determination shall be made (i) by a majority vote of a quorum of the Board
of Directors of the Company (the "Board") consisting of directors who are not
parties or threatened to be made parties to such action, suit or proceeding or
(ii) if such a quorum is not obtainable, by a majority vote of a committee duly
designated by the Board consisting solely of two or more directors not at the
time parties or threatened to be made parties to the suit, action, or proceeding
or (iii) by independent legal counsel (designated in the manner provided below
in this subsection (d)) in a written opinion or (iv) by all independent
directors who are not parties to such action, suit or proceeding or (v) by the
shareholders of the Company (the "Shareholders"), but shares held by directors,
officers, employees or agents who are parties or threatened to be made parties
to the action suit or proceeding may not be voted. Independent legal counsel
shall be designated by the Board or its Committee in the manner prescribed in
Section 2(d)(i) or 2(d)(ii); provided, however, that if the Board is unable or
fails to so designate, such designation shall be made by the Indemnitee subject
to the approval of the Company (which approval shall not be unreasonably
withheld). In the designation of a committee under subsection 2(d)(ii) or the
selection of independent legal counsel by the Board, all directors may
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participate. Independent legal counsel shall not be any person or firm who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or the Indemnitee
in an action to determine the Indemnitee's rights under this Agreement. The
Company agrees to pay the reasonable fees and expenses of such independent legal
counsel and to indemnify fully such counsel against costs, charges and expenses
(including attorneys' and others' fees and expenses) actually and reasonably
incurred by such counsel in connection with this Agreement or the opinion of
such counsel pursuant hereto.
(e) If the Indemnitee is entitled to indemnification under
Section 2(a) or 2(b) for a portion of expenses, including reasonable attorneys'
fees, judgments, penalties, fines and amounts paid in settlement, but not for
the total amount, the Company shall indemnify the Indemnitee for the portion of
the expenses, judgments, penalties, fines or amounts paid in settlement for
which the Indemnitee is entitled to be indemnified.
(f) The Company shall pay or reimburse the reasonable expenses
(including attorneys' and others' fees and expenses) incurred by the Indemnitee
in the Indemnitee's capacity as a director or officer of the Company who is a
party or threatened to be made a party to an action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding subject to
the provisions of and in the manner prescribed by Section 4(b) hereof.
(g) The Company shall not adopt any amendment to the Articles
or By-Laws the effect of which would be to deny, diminish or encumber the
Indemnitee's rights to indemnity pursuant to the Articles, By-Laws, the Business
Corporation Act of the State of Michigan (the "BCA") or any other applicable law
as applied to any act or failure to act occurring in whole or in part prior to
the date (the "Effective Date") upon which the amendment was approved by the
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Board or the Shareholders, as the case may be. In the event that the Company
shall adopt any amendment to the Articles or By-Laws the effect of which
is to so deny, diminish or encumber the Indemnitee's rights to indemnity, such
amendment shall apply only to acts or failures to act occurring entirely after
the Effective Date thereof unless the Indemnitee shall have voted in favor of
such adoption as a director or holder of record of the Company's voting stock,
as the case may be.
(h) Upon application to a court by the Indemnitee pursuant to
Section 564c of the BCA, and a determination of such court that the Indemnitee
is fairly and reasonably entitled to indemnification, the Company shall pay to
the Indemnitee the amount so ordered by the court.
3. Additional Indemnification.
(a) Pursuant to Section 565 of the BCA, without limiting any
right which the Indemnitee may have pursuant to Section 2 hereof, the Articles,
the By-Laws, the BCA, any policy of insurance or otherwise, but subject to the
limitations on the maximum permissible indemnity which may exist under
applicable law at the time of any request for indemnity hereunder determined as
contemplated by Section 3(a) hereof, the Company shall indemnify the Indemnitee
against any amount which the Indemnitee is or becomes legally obligated to pay
relating to or arising out of any claim made against the Indemnitee because of
any act, failure to act or neglect or breach of duty, including any actual or
alleged error, misstatement or misleading statement, which the Indemnitee
commits, suffers, permits or acquiesces in while acting in such capacity as a
director or officer of the Company, or, at the request of the Company, as a
director, officer, employee or agent of another corporation, partnership, joint
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venture, trust or other enterprise. The payments which the Company is obligated
to make pursuant to this Section 3 shall include without limitation damages,
judgments, settlements and charges, costs, expenses, expenses of investigation
and expenses of defense of legal actions, suits, proceedings or claims and
appeals therefrom, and expenses of appeal, attachment or similar bonds;
provided, however, that the Company shall not be obligated under this Section
3(a) to make any payment in connection with any claim against the Indemnitee:
(i) to the extent of any fine or similar governmental imposition which
the Company is prohibited by applicable law from paying which results
from a final, nonappealable order;
or
(ii) to the extent based upon or attributable to the Indemnitee gaining
in fact a personal profit to which the Indemnitee was not legally
entitled, including without limitation profits made from the purchase
and sale by the Indemnitee of equity securities of the Company which
are recoverable by the Company pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended, and profits arising from
transactions in publicly traded securities of the Company which were
effected by the Indemnitee in violation of Section 10(b) of the
Securities Exchange Act of 1934, as amended, including Rule 10b-5
promulgated thereunder.
The determination of whether the Indemnitee shall be entitled to indemnification
under this Section 3(a) may be, but shall not be required to be, made in
accordance with Section 4(a) hereof. If that determination is so made, it shall
be binding upon the Company and the Indemnitee for all purposes.
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(b) Expenses (including without limitation attorneys' and
others' fees and expenses) incurred by Indemnitee in defending any actual or
threatened civil or criminal action, suit, proceeding or claim shall be paid by
the Company in advance of the final disposition thereof as authorized in
accordance with Section 4(b) hereof.
4. Certain Procedures Relating to Indemnification and
Advancement of Expenses.
(a) Except as otherwise permitted or required by the BCA,
for purposes of pursuing the Indemnitee's rights to indemnification under
Section 2(a), 2(b) or 3(a) hereof, as the case may be, the Indemnitee may, but
shall not be required to, (i) submit to the Board a sworn statement of request
for indemnification substantially in the form of Exhibit 1 attached hereto and
made a part hereof (the "Indemnification Statement") averring that the
Indemnitee is entitled to indemnification hereunder; and (ii) present to the
Company reasonable evidence of all expenses for which payment is requested.
Submission of an Indemnification Statement to the Board shall create a
presumption that the Indemnitee is entitled to indemnification under Section
2(a), 2(b) or 3(a) hereof, as the case may be, and the Board shall be deemed to
have determined that the Indemnitee is entitled to such indemnification unless
within 30 calendar days after submission of the Indemnification Statement the
Board shall determine by vote of a majority of the directors at a meeting at
which a quorum is present, based upon clear and convincing evidence (sufficient
to rebut the foregoing presumption), and the Indemnitee shall have received
notice within such period in writing of such determination, that the Indemnitee
is not so entitled to indemnification. No such determination shall be effective
unless written notice thereof, disclosing with particularity the evidence in
support of the Board's determination, shall have been given to the Indemnitee
within 30 calendar days after submission of the
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Indemnification Statement. The foregoing notice shall be sworn to by all persons
who participated in the determination and voted to deny indemnification. The
provisions of this Section 4(a) are intended to be procedural only and shall not
affect the right of the Indemnitee to indemnification under this Agreement, and
any determination by the Board that the Indemnitee is not entitled to
indemnification and any failure to make the payments requested in the
Indemnification Statement shall be subject to judicial review as provided in
Section 6 hereof.
(b) For purposes of determining whether to authorize
advancement of expenses pursuant to Section 2(e) hereof, the Indemnitee shall
submit to the Board a sworn statement of request for advancement of expenses
substantially in the form of Exhibit 2 attached hereto and made a part hereof
(the "Undertaking"), averring that (i) the Indemnitee, in good faith, believes
that the applicable standards of conduct set forth in Section 2(a), 2(b) or
3(a), as the case may be, have been met, (ii) the Indemnitee has reasonably
incurred or will reasonably incur actual expenses in defending an actual civil
or criminal action, suit, proceeding or claim and (iii) the Indemnitee
undertakes to repay such amount if it shall ultimately be determined that the
Indemnitee did not meet the applicable standard of conduct or is not entitled to
be indemnified by the Company under this Agreement or otherwise. For purposes of
requesting advancement of expenses pursuant to Section 3(b) hereof, the
Indemnitee may, but shall not be required to, submit an Undertaking or such
other form of request as the Indemnitee determines to be appropriate (an
"Expense Request"). Upon receipt of an Undertaking or Expense Request, as the
case may be, such payments shall immediately be made by the Company provided
that a determination is made that facts then known to those making the
determination would not preclude indemnification under the BCA. Such
determination shall be made within 10
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calendar days of the date of receipt by the Company of the Expense Request and
shall be made in the manner specified in Section 2(d). No security shall be
required in connection with any Undertaking or Expense Request and any
Undertaking or Expense Request shall be accepted without reference to the
Indemnitee's ability to make repayment.
5. Subrogation; Duplication of Payments.
(a) In the event of payment under this Agreement, the 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 the Company effectively to bring suit to
enforce such rights.
(b) The Company 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 actually received payment (under any insurance policy,
the Articles, the By-Laws or otherwise) of the amounts otherwise payable
hereunder.
6. Enforcement.
(a) If a claim for indemnification made to the Company
pursuant to Section 4 hereof is not paid in full by the Company within 30
calendar days after a written claim has been received by the Company, the
Indemnitee may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim.
(b) In any action brought under Section 6(a) hereof, it shall
be a defense to a claim for indemnification pursuant to Section 2(a) or 2(b)
hereof that the Indemnitee has not met the standards of conduct which make it
permissible under the BCA for the Company to
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indemnify the Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the Company (including
the Board, independent legal counsel or the Shareholders) to have made a
determination prior to commencement of such action that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the BCA, nor an actual determination
by the Company (including the Board, independent legal counsel or the
Shareholders) that the Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(c) It is the intent of the Company that the Indemnitee not be
required to incur the expenses associated with the enforcement of the
Indemnitee's rights under this Agreement by litigation or other legal action
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. Accordingly, if it
should appear to the Indemnitee that the Company has failed to comply with any
of its obligations under the Agreement or in the event that the Company or any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any action, suit or proceeding designed (or having the effect of
being designed) to deny, or to recover from, the Indemnitee the benefits
intended to be provided to the Indemnitee hereunder, the Company irrevocably
authorizes the Indemnitee from time to time to retain counsel of the
Indemnitee's choice, at the expense of the Company as hereafter provided, to
represent the Indemnitee in connection with the initiation or defense of any
litigation or other legal action, whether by or against the Company or any
director, officer, stockholder or other person affiliated with the
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Company, in any jurisdiction. Regardless of the outcome thereof, the Company
shall pay and be solely responsible for any and all costs, charges and expenses,
including without limitation attorneys' and others' fees and expenses,
reasonably incurred by the Indemnitee (i) as a result of the Company's failure
to perform this Agreement or any provision thereof or (ii) as a result of the
Company or any person contesting the validity or enforceability of this
Agreement or any provision thereof as aforesaid.
7. Merger or Consolidation. In the event that the Company shall
be a constituent corporation in a consolidation, merger or other
reorganization, the Company, if it shall not be the surviving, resulting or
other corporation therein, shall require as a condition thereto the surviving,
resulting or acquiring corporation to agree to indemnify the Indemnitee to the
full extent provided in this Agreement. Whether or not the Company is the
resulting, surviving or acquiring corporation in any such transaction, the
Indemnitee shall also stand in the same position under this Agreement with
respect to the resulting, surviving or acquiring corporation as the Indemnitee
would have with respect to the Company if its separate existence had continued.
8. Nonexclusivity and Severability.
(a) The right to indemnification provided by this Agreement
shall not be exclusive of any other rights to which the Indemnitee may be
entitled under the Articles, By-Laws, the BCA, any other statute, insurance
policy, agreement, vote of shareholders or of directors or otherwise, both as to
actions in the Indemnitee's official capacity and as to actions in another
capacity while holding such office, and shall continue after the Indemnitee has
ceased to
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be a director, officer, employee or agent and shall inure to the benefit of the
Indemnitee's heirs, executors and administrators.
(b) If any provision of this Agreement or the application of
any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid and legal.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan, without
giving effect to the principles of conflict of laws thereof.
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10. Modification; Survival. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
may be modified only by an instrument in writing signed by both parties hereto.
The provisions of this Agreement shall survive the death, disability, or
incapacity of the Indemnitee or the termination of the Indemnitee's service as a
director or officer of the Company and shall inure to the benefit of the
Indemnitee's heirs, executors and administrators.
11. Certain Terms. 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 any
employee benefit plan; and references 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, the Indemnitee
with respect to an employee benefit plan, its participants or beneficiaries;
references to the masculine shall include the feminine and vice versa;
references to the singular shall include the plural and vice versa; and if the
Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan the Indemnitee shall be deemed to have acted in a manner
"not opposed to the best interests of the Company" as referred to herein.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
MICHIGAN CONSOLIDATED GAS COMPANY
By:______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and
Corporate Secretary
INDEMNITEE:
_________________________________
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EXHIBIT 1
INDEMNIFICATION STATEMENT
STATE OF MICHIGAN )
) SS
COUNTY OF__________________________ )
I, , being first duly sworn, do depose and say as follows:
1. This Indemnification Statement is submitted pursuant to
the Indemnification Agreement, dated as of , ____, between Michigan Consolidated
Gas Company, a Michigan corporation (the Company"), and the undersigned.
2. I am requesting indemnification against charges, costs,
expenses (including attorneys' and others' fees and expenses), judgments, fines
and amounts paid in settlement, all of which (collectively, "Liabilities") have
been or will be incurred by me in connection with an actual or threatened
action, suit, proceeding or claim to which I am a party or am threatened to be
made a party.
3. With respect to all matters related to any such action,
suit, proceeding or claim, I am entitled to be indemnified as herein
contemplated pursuant to the aforesaid Agreement.
4. Without limiting any other rights which I have or may
have, I am requesting indemnification against Liabilities which have arisen or
may arise out of
________________________________________________________________________________
______________________________________________________.
___________________________
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this___day of , 20__.
___________________________
[Seal]
My commission expires the______day of_______, 20__.
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EXHIBIT 2
UNDERTAKING
STATE OF MICHIGAN )
) SS
COUNTY OF__________________________ )
I,_____________ , being first duly sworn do depose and say as
follows:
1. This Undertaking is submitted pursuant to the
Indemnification Agreement (the "Agreement"), dated as of____ , ____, between
Michigan Consolidated Gas Company, a Michigan corporation (the "Company"), and
the undersigned.
2. I am requesting advancement of certain costs, charges and
expenses which I have incurred or will incur in defending an actual or pending
civil or criminal action, suit, proceeding or claim.
3. I affirm my good faith belief that I meet the applicable
standard of conduct set forth in Section 2(a), 2(b) or 3(a) of the Agreement.
4. I hereby undertake to repay this advancement of expenses
if it shall ultimately be determined that I did not meet the applicable standard
of conduct or am not entitled to be indemnified by the Company under the
aforesaid Agreement or otherwise.
5. My undertaking to repay is my unlimited general
obligation.
6. The costs, charges and expenses for which advancement
is requested are, in general, all expenses related to__________________________.
___________________________
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this________ day of____ , 20__.
[Seal] ___________________________
My commission expires the_______day of________, 20__.
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