Blueprint






Exhibit 10.2










 



INDEMNIFICATION AGREEMENT


 


This Indemnification Agreement (this
“Agreement”) is made and entered into as of
______________, by and between Yuma Energy, Inc., a Delaware
corporation (the “Company”), and _________________
(“Indemnitee”).


 


WHEREAS, highly competent persons have become more
reluctant to serve corporations as directors or officers or in
other capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of the
corporation;


 


WHEREAS, the Board of Directors (the
“Board”) of the Company has determined that, in
order to attract and retain qualified individuals, the Company
will, unless certain conditions described below are met, maintain
on an ongoing basis, at its sole expense, liability insurance to
protect certain persons serving the Company and its subsidiaries
from certain liabilities. Although the furnishing of such insurance
has been a customary and widespread practice among United
States-based corporations and other business enterprises, the
Company believes that, given current market conditions and trends,
such insurance may be available to it in the future only at higher
premiums and with more exclusions;


 


WHEREAS, directors, officers, and other persons in service
to corporations or business enterprises are being increasingly
subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been
brought only against the Company or business enterprise
itself;


 


WHEREAS, the Amended and Restated Certificate of
Incorporation of the Company (as may be amended, the
“Certificate of
Incorporation”) requires
indemnification of the officers and directors of the Company to the
full extent permissible under applicable law. Indemnitee may also
be entitled to indemnification pursuant to the General Corporation
Law of the State of Delaware (“DGCL”). The Certificate of Incorporation and the
DGCL expressly provide that the indemnification provisions set
forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between the Company and members of
the Board, officers, and other persons with respect to
indemnification;


 


WHEREAS, the uncertainties relating to insurance and to
indemnification have increased the difficulty of attracting and
retaining persons to serve as officers and directors of United
States-based companies;


 


WHEREAS, the Board has determined that the increased
difficulty in attracting and retaining such persons is detrimental
to the best interests of the Company’s stockholders and that
the Company should act to assure such persons that there will be
increased certainty of such protection in the
future;


 


WHEREAS, it is reasonable, prudent, and necessary for the
Company contractually to obligate itself to indemnify, and to
advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they will not be so
indemnified;


 


WHEREAS, this Agreement is a supplement to and in
furtherance of the Certificate of Incorporation and the Amended and
Restated Bylaws of the Company (as may be amended, the
“Bylaws”) and any resolutions adopted by the Board,
and will not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder;
and



 







 






 


 


WHEREAS, Indemnitee does not regard the protection
available under the Certificate of Incorporation and insurance as
adequate in the present circumstances; may not be willing to serve
as an officer or director without adequate protection; and the
Company desires Indemnitee to serve in such capacity. Indemnitee is
willing to serve, continue to serve, and to take on additional
service for or on behalf of the Company on the condition that he or
she be so indemnified.


 


NOW, THEREFORE,
in consideration of the foregoing and
of Indemnitee’s agreement to serve as an officer or director
or both after the date of this Agreement, the parties to this
Agreement agree as follows:


 


1.           Indemnification
of Indemnitee. The Company
hereby agrees to defend, hold harmless, and indemnify Indemnitee to
the fullest extent permitted by law, as such may be amended from
time to time. In furtherance of the foregoing indemnification, and
without limiting the generality thereof:


 


(a)            Proceedings
Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be
entitled to the rights of indemnification provided in this Section
1(a) if, by reason of his or her Corporate Status (as defined
below), the Indemnitee is, or is threatened to be made, a party to
or participant in any Proceeding (as defined below) other than a
Proceeding by or in the right of the Company. Pursuant to this
Section 1(a), the Company shall indemnify, defend, and hold
Indemnitee harmless to the fullest extent permitted by applicable
law, as such may be amended from time to time (but in the case of
any such amendment, only to the extent that such amendment permits
the Company to provide broader indemnification rights than
permitted prior to such amendment), against all Expenses (as
defined below), judgments, penalties (including, but not limited
to, excise and similar taxes), fines, and amounts paid in
settlement actually and reasonably incurred by him or her, or on
his or her behalf, in connection with such Proceeding or any claim,
issue, or matter in any such 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, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe the 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 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 Company, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that the
Indemnitee’s conduct was unlawful.


 


(b)            Proceedings
by or in the Right of the Company. Indemnitee will be entitled to the rights of
indemnification provided in this Section 1(b) if, by reason of his
or her Corporate Status, Indemnitee is, or is threatened to be
made, a party to or participant in any Proceeding brought by or in
the right of the Company. Pursuant to this Section 1(b), Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in
connection with such 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;
provided, however, that if applicable law so provides, no
indemnification against such Expenses will be made in respect of
any claim, issue or matter in such Proceeding as to which
Indemnitee has been finally adjudged to be liable to the Company by
a court of competent jurisdiction from which there is no further
right of appeal unless and to the extent that the court in which
such action or suit was brought determines that such
indemnification may be made.



 

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(c)            Indemnification
for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee
is, by reason of his or her Corporate Status, a party to and is
wholly successful, on the merits or otherwise, in any Proceeding,
he or she will be indemnified by the Company to the fullest extent
permitted by law, as such may be amended from time to time (but in
the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification
rights than permitted prior to such amendment), against all
Expenses actually and reasonably incurred by him or her or on his
or her behalf in connection with such Proceeding. If Indemnitee is
not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues, or matters in such Proceeding, the Company will indemnify
Indemnitee against all Expenses actually and reasonably incurred by
him or her or on his or her behalf in connection with each
successfully resolved claim, issue, or matter. For purposes of this
Section 1(c) and without limitation, the termination of any
claim, issue, or matter in such a Proceeding by dismissal, with or
without prejudice, will be deemed to be a successful result as to
such claim, issue, or matter.


 


2.           Additional
Indemnity. In addition to, and
without regard to any limitations on, the indemnification provided
for in Section 1 of this Agreement, the Company shall and
hereby does indemnify, defend, and hold harmless Indemnitee against
all Expenses, judgments, penalties (including, but not limited to,
excise and similar taxes), fines, and amounts paid in settlement
actually and reasonably incurred by him or her or on his or her
behalf if, by reason of his or her Corporate Status, he or she is,
or is threatened to be made, a party to or participant in any
Proceeding (including a Proceeding by or in the right of the
Company), including, without limitation, all liability arising out
of the sole, contributory, comparative or other negligence, or
active or passive wrongdoing of Indemnitee. Except as provided in
this Section 2 or in Section 9, the only limitation that
will exist upon the Company’s obligations pursuant to this
Agreement will be that the Company will not be obligated to make
any payment to Indemnitee that is finally determined (under the
procedures, and subject to the presumptions, set forth in Sections
6 and 7) to be prohibited by applicable law.


 


3.       
    Contribution.


 


(a)           Regardless
of whether the indemnification provided in Sections 1 and 2 is
available, in respect of any threatened, pending, or completed
Proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such Proceeding), the Company shall pay,
in the first instance, the entire amount of any judgment or
settlement of such Proceeding without requiring Indemnitee to
contribute to such payment, and the Company hereby waives and
relinquishes any right of contribution it may have against
Indemnitee. The Company shall not, without prior written consent of
Indemnitee, enter into any settlement of any Proceeding in which
the Company is jointly liable with Indemnitee (or would be if
joined in such Proceeding) unless such settlement solely involves
the payment of money and includes a full, unconditional and final
release of all claims that are or were asserted against Indemnitee
in such Proceeding. In addition, the Company will not, without
prior written consent of Indemnitee, seek or agree to a bar order
that extinguishes Indemnitee’s rights to indemnification or
advancement of Expenses, whether under this Agreement or
otherwise.


 


(b)           Without
diminishing or impairing the obligations of the Company set forth
in Section 3(a), if, for any reason, Indemnitee elects or is
required to pay all or any portion of any judgment or settlement in
any Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the Company
will contribute to the amount of Expenses, judgments, penalties
(including, but not limited to, excise and similar taxes), fines,
and amounts paid in settlement actually and reasonably incurred and
paid or payable by Indemnitee in proportion to the relative
benefits received from the transaction that gave rise to such
Proceeding by (i) the Company and all officers, directors, or
employees of the Company, other than Indemnitee, who are jointly
liable with Indemnitee (or would be if joined in such Proceeding),
on the one hand; and (ii) Indemnitee, on the other
hand; provided, however, that the proportion determined on the basis of
relative benefit may, to the extent necessary to conform to law, be
further adjusted by reference to the relative fault of the Company
and all officers, directors, or employees of the Company other than
Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such Proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the events that resulted in such
Expenses, judgments, penalties (including, but not limited to,
excise and similar taxes), fines, or settlement amounts, as well as
any other equitable considerations that applicable law may require
to be considered. The relative fault of the Company and all
officers, directors, or employees of the Company, other than
Indemnitee, who are jointly liable with Indemnitee (or would be if
joined in such Proceeding), on the one hand, and Indemnitee, on the
other hand, will be determined by reference to, among other things,
the degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability
is primary or secondary, and the degree to which their conduct is
active or passive.



 

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(c)           The
Company hereby agrees to fully indemnify, defend, and hold harmless
Indemnitee from any claims of contribution that may be brought by
officers, directors, or employees of the Company, other than
Indemnitee, who may be jointly liable with
Indemnitee.


 


(d)           To
the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by
Indemnitee, whether for judgments, fines, penalties, excise and
similar taxes, and amounts paid or to be paid in settlement or for
Expenses, in connection with any claim relating to an indemnifiable
event under this Agreement, in such proportion as is deemed fair
and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits
received by the Company and Indemnitee as a result of the event(s)
or transaction(s) giving cause to such Proceeding; and
(ii) the relative fault of the Company (and its directors,
officers, employees, and agents) and Indemnitee in connection with
such event(s) or transaction(s).


 


4.           Indemnification
for Expenses of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his or
her Corporate Status, a witness or otherwise involved in any
Proceeding to which Indemnitee is not a party, the Company shall
indemnify, defend, and hold harmless the Indemnitee against all
Expenses actually and reasonably incurred by him or her or on his
or her behalf in connection therewith.


 


5.           Advancement
of Expenses. To the fullest
extent permitted by law, as such may be amended from time to time
(but in the case of any such amendment, only to the extent that
such amendment permits the Company to provide broader advancement
rights than permitted prior to such amendment), the Company shall
advance all Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding by reason of Indemnitee’s
Corporate Status within 10 days after the receipt by the Company of
a statement or statements from Indemnitee requesting such advance
or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall
include or be preceded or accompanied by an undertaking by or on
behalf of Indemnitee to repay any Expenses advanced if it is
ultimately determined that Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and undertakings to
repay pursuant to this Section 5 shall be unsecured and
interest-free and any advances shall be made without regard to
Indemnitee’s ability to repay the Expenses. Indemnitee will
qualify for and be entitled to receive such advances solely upon
execution and delivery to the Company of the statement or
statements and the undertaking referred to in this
Section 5.


 


6.           Procedures
and Presumptions for Determination of Entitlement to
Indemnification. It is the
intent of this Agreement to secure for Indemnitee rights of
indemnification that are as favorable as may be permitted under the
DGCL and public policy of the State of Delaware. Accordingly, the
parties agree that the following procedures and presumptions will
apply in the event of any question as to whether Indemnitee is
entitled to indemnification under this
Agreement:


 


(a)           To
obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including such
documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification. The
Secretary of the Company shall, promptly upon receipt of such a
request for indemnification, advise the Board that Indemnitee has
requested indemnification. Notwithstanding the foregoing, any
failure by Indemnitee to provide such a request to the Company, or
to provide such a request in a timely fashion, shall not relieve
the Company of any liability that it may have to Indemnitee unless,
and to the extent that, such failure actually prejudices the
interests of the Company. Any Expenses incurred by, or in the case
of retainers, to be incurred by, the Indemnitee in connection with
the Indemnitee’s request for indemnification hereunder shall
be borne by the Company.



 

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(b)           If
the Company shall be obligated to pay the Expenses of any
Proceeding against Indemnitee, the Company shall be entitled to
assume and control the defense of such Proceeding (with counsel
consented to by Indemnitee, which consent shall not be unreasonably
withheld), upon the delivery to Indemnitee of written notice of its
election so to do. After delivery of such notice, consent to such
counsel by Indemnitee and the retention of such counsel by the
Company, the Company shall not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding; provided, however, that if (i) the employment of separate
counsel by Indemnitee has been previously authorized by the
Company, (ii) Indemnitee or counsel selected by the Company
shall have concluded that there may be a conflict of interest
between the Company and Indemnitee or among Indemnitees jointly
represented in the conduct of any such defense; or (iii) the
Company shall not, in fact, have employed counsel, to which
Indemnitee has consented as aforesaid, 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.
Notwithstanding the foregoing, Indemnitee shall have the right to
employ counsel in any such Proceeding at Indemnitee’s
expense.


 


(c)           The
Company shall be entitled to participate in the Proceeding at its
own expense. The Company shall not, without prior written consent
of Indemnitee, effect any settlement of a claim against Indemnitee
in any threatened or pending Proceeding unless such settlement
solely involves the payment of money by any Person (as defined
below) other than Indemnitee and includes a full, unconditional and
final release of all claims that are or were asserted against
Indemnitee in such Proceeding. In addition, the Company shall not,
without prior written consent of Indemnitee, seek or agree to a bar
order that extinguishes Indemnitee’s rights to
indemnification or advancement of Expenses, whether under this
Agreement or otherwise.


 


(d)           Upon
written request by Indemnitee for indemnification pursuant to the
first sentence of Section 6(a), a determination, if required
by applicable law, with respect to Indemnitee’s entitlement
to indemnification shall be made in the specific case: (i) if
a Change in Control (as defined below) shall have occurred, by
Independent Counsel (as defined below) in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall not have occurred,
(A) by a majority vote of the Disinterested Directors (as
defined below), even though less than a quorum of the Board,
(B) by a committee of Disinterested Directors designated by a
majority vote of the Disinterested Directors, even though less than
a quorum of the Board, (C) if there are no such Disinterested
Directors or, if such Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee, or (D) if so directed
by the Board, by the stockholders of the
Company.


 


(e)           In
the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 6(d), the
Independent Counsel shall be selected as provided in this
Section 6(e). If a Change in Control has not occurred, the
Independent Counsel shall be selected by the Board, and the Company
will give written notice to Indemnitee advising him or her of the
identity of the Independent Counsel so selected. If a Change in
Control has occurred, the Independent Counsel shall be selected by
Indemnitee (unless Indemnitee requests that such selection be made
by the Board, in which event the preceding sentence will apply),
and Indemnitee shall give written notice to the Company advising it
of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within
10 days after such written notice of such selection has been
received, deliver to the Company or to Indemnitee, as the case may
be, a written objection to such selection; provided, however, that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the
requirements of “Independent Counsel” as defined in
this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected will act as
Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or
a court of competent jurisdiction has determined that such
objection is without merit. The Company agrees to pay the
reasonable fees and expenses of the Independent Counsel and to
fully indemnify such Independent Counsel against any and all
Expenses, claims, liabilities, and damages arising out of or
relating to this Agreement or its engagement pursuant to this
Agreement.



 

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(f)           In
making a determination with respect to entitlement to
indemnification under this Agreement, the Person making such
determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome
this presumption will have the burden of proof and the burden of
persuasion by clear and convincing evidence. Neither the failure of
the Company (including the Board, Independent Counsel or the
stockholders of the Company) to have made a determination prior to
the commencement of any action pursuant to this Agreement that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct set
forth in the DGCL, nor an actual determination by the Company
(including the Board, Independent Counsel or the stockholders of
the Company) that Indemnitee has not met such applicable standard
of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of
conduct.


 


(g)           Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s
action is based on the records or books of account of the
Enterprise (as defined below), including financial statements, or
on information supplied to Indemnitee by directors, officers,
employees or agents of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise or on
information or records given or reports made to the Enterprise by
an independent certified public accountant or by an appraiser or
other expert selected by the Enterprise. In addition, the knowledge
or actions, or failure to act, of any director, officer, agent, or
employee of the Enterprise shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this
Agreement. Regardless of whether the foregoing provisions of this
Section 6(g) are satisfied, it shall in any event be presumed
that Indemnitee has at all times 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. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.


 


(h)           If
the Person empowered or selected under Section 6(d) to
determine whether Indemnitee is entitled to indemnification has not
made a determination within 60 days after receipt by the Company of
the request therefor, the requisite determination of entitlement to
indemnification shall, to the fullest extent not prohibited by law,
be deemed to have been made and Indemnitee will be entitled to such
indemnification absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in
connection with the request for indemnification or (ii) a
prohibition of such indemnification under applicable law;
provided, however, that such 60-day period may be extended for a
reasonable time, not to exceed an additional 30 days, if
(A) the determination is to be made by Independent Counsel and
the Company objects to Indemnitee’s selection of Independent
Counsel and (B) the Independent Counsel ultimately selected
requires such additional time for the obtaining or evaluating of
documentation or information relating thereto; provided further,
however, that such 60-day
period may also be extended for a reasonable time, not to exceed an
additional 30 days, if the determination of entitlement to
indemnification is to be made by the stockholders of the
Company.


 


(i)           Indemnitee
shall cooperate with the Person making such determination with
respect to Indemnitee’s entitlement to indemnification,
including providing to such Person upon reasonable advance request
any documentation or information that is not privileged or
otherwise protected from disclosure and that is reasonably
available to Indemnitee and reasonably necessary to such
determination. Any Independent Counsel, member of the Board, or
stockholder of the Company will act reasonably and in good faith in
making a determination regarding the Indemnitee’s entitlement
to indemnification under this Agreement. Any Expenses actually and
reasonably incurred by Indemnitee in so cooperating with the Person
making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies,
defends, and agrees to hold Indemnitee harmless from any such costs
and Expenses. If it is determined that Indemnitee is entitled to
indemnification requested by Indemnitee in a written application
submitted to the Company pursuant to Section 6, payment to
Indemnitee shall be made within 60 days after the written request
for indemnification submitted by Indemnitee.


 


(j)           The
Company acknowledges that a settlement or other disposition short
of final judgment may be successful if it permits a party to avoid
expense, delay, distraction, disruption, or uncertainty. In the
event that any Proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against
Indemnitee (including, without limitation, settlement of such
Proceeding with or without payment of money or other
consideration), it shall be presumed that Indemnitee has been
successful on the merits or otherwise in such Proceeding. Anyone
seeking to overcome this presumption shall have the burden of proof
and the burden of persuasion by clear and convincing
evidence.



 

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(k)           The
termination of any Proceeding or of any claim, issue, or matter
therein, by judgment, order, settlement, or conviction, or upon a
plea of nolo contendere
or its equivalent, shall not (except
as otherwise expressly provided in this Agreement) 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 that 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 Indemnitee had reasonable cause to
believe that his or her conduct was unlawful.


 


7.      
      Remedies of
Indemnitee.


 


(a)           In
the event that (i) a determination is made pursuant to
Section 6 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 5 of this
Agreement, (iii) no determination of entitlement to
indemnification is made pursuant to Section 6(d) of this
Agreement within 30 days after receipt by the Company of the
request for indemnification, or (iv) payment of
indemnification is not made pursuant to this Agreement within 60
days after receipt by the Company of a written request therefor,
Indemnitee may at any time thereafter bring suit against the
Company to enforce Indemnitee’s claim to such indemnification
or payment. The Company will not oppose Indemnitee’s right to
bring such suit.


 


(b)           In
the event that a determination has been made pursuant to
Section 6(d) of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding commenced pursuant to
this Section 7 shall be conducted in all respects as a
de novo
trial on the merits, and Indemnitee
will not be prejudiced by reason of the adverse determination under
Section 6(d).


 


(c)           If
a determination has been made pursuant to Section 6(d) of this
Agreement that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial
proceeding commenced pursuant to this Section 7, absent
(i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make Indemnitee’s
misstatement not materially misleading in connection with the
application for indemnification, or (ii) a prohibition of such
indemnification under applicable law.


 


(d)           The
Company shall indemnify, defend, and hold harmless Indemnitee
against any and all Expenses and, if requested by Indemnitee, will
(within 30 days after receipt by the Company of a written request
therefor) advance, to the extent not prohibited by law, such
Expenses to Indemnitee, that are actually and reasonably incurred
by Indemnitee in connection with any action brought by Indemnitee
(i) for indemnification or advancement of Expenses from the
Company under this Agreement, (ii) to recover damages for
breach of this Agreement or (iii) related to any
directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advancement of Expenses, or insurance recovery, as the case may
be.


 


(e)           The
Company shall be precluded from asserting in any proceeding
commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding, and
enforceable and will stipulate in any court of competent
jurisdiction that the Company is bound by all the provisions of
this Agreement.


 


(f)           Notwithstanding
anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be
required to be made prior to the final disposition of the
Proceeding.


 


8.      
     Non-Exclusivity; Survival of
Rights; Insurance; Subrogation.


 


(a)           The
rights of indemnification as provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may at
any time be entitled under applicable law, the Certificate of
Incorporation, the Bylaws, any agreement, a vote of stockholders, a
resolution of directors, or otherwise. No amendment, alteration, or
repeal of this Agreement or of any provision of this Agreement
shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such
Indemnitee in his or her Corporate Status prior to such amendment,
alteration, or repeal. To the extent that a change in the DGCL,
whether by statute or judicial decision, permits greater
indemnification than would be afforded at the time of such change
under the Certificate of Incorporation, the Bylaws, or this
Agreement, it is the intent of the parties to this Agreement that
Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy conferred by this
Agreement is intended to be exclusive of any other right or remedy,
and every other right and remedy shall be cumulative and in
addition to every other right and remedy given under this Agreement
or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy under this
Agreement, or otherwise, shall not prevent the concurrent assertion
or employment of any other right or remedy.



 

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(b)         
The Company hereby covenants and
agrees that, so long as Indemnitee serves in a Corporate Status and
thereafter so long as Indemnitee may be subject to any possible
Proceeding by reason of the fact that Indemnitee served in a
Corporate Status, the Company, subject to Section 8(d), shall
maintain in full force and effect liability insurance to protect
Indemnitee from personal liabilities incurred by reason of the fact
that Indemnitee is or was serving in such capacity
(“Liability
Insurance”) in reasonable
amounts from established and reputable
insurers.


 


(c)        
   In all applicable
policies of Liability Insurance, Indemnitee shall be named as an
insured, to the extent practicable, and will be covered by such
policies in accordance with their terms to the maximum extent of
the coverage available for any director, officer, employee, or
agent or fiduciary under such policy or
policies.


 


(d)           Notwithstanding
the foregoing, the Company shall have no obligation to maintain
Liability Insurance if the Company determines in good faith that
such insurance is not reasonably available, the premium costs for
such insurance are disproportionate to the amount of coverage
provided, 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 a subsidiary of the
Company or by another Person pursuant to a contractual obligation
owed to the Company. The Company shall provide at least 30
days’ notice to Indemnitee prior to ceasing the maintenance
of Liability Insurance. The Company’s decision whether or not
to adopt and maintain such insurance shall not affect in any way
its obligations to indemnify the Indemnitee under this Agreement or
otherwise.


 


(e)           Following
the receipt of a notice of a claim pursuant to the terms of this
Agreement, the Company shall give prompt notice of the commencement
of such Proceeding to its 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 the Indemnitee, all amounts payable
as a result of such Proceeding in accordance with the terms of such
policies.


 


(f)           Except
as set forth in Section 8(g) below, in the event of any
payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all documents required and take all
action reasonably necessary to secure such rights, including
execution of such documents as are necessary to enable the Company
to bring suit to enforce such rights.


 


(g)           The
Company hereby acknowledges that Indemnitee may have rights to
indemnification or advancement of Expenses or insurance provided by
one or more Persons with whom or which the Indemnitee may be
associated (collectively, the “Third Party
Indemnitors”). The
Company hereby agrees that (i) it is the indemnitor of first
resort and that the obligations of the Company to Indemnitee are
primary and any obligation of the Third Party Indemnitors to
provide indemnification for or advancement of Expenses incurred by
Indemnitee are secondary, (ii) the Indemnitee’s right to
indemnification under this Agreement, and the Certificate of
Incorporation, including the right to advancement of Expenses,
indemnification, and contribution, shall not be diminished,
modified, qualified, or otherwise affected by any right of
Indemnitee against any Third Party Indemnitor, and (iii) it
irrevocably waives, relinquishes, and releases the Third Party
Indemnitors from any and all claims against the Third Party
Indemnitors for contribution, subrogation, or any other recovery of
any kind in respect thereof. The Company further agrees that no
advancement or payment by the Third Party Indemnitors on behalf of
the Indemnitee with respect to any claim for which Indemnitee has
sought indemnification from the Company shall affect the foregoing
and the Third Party Indemnitors shall have the right of
contribution and be subrogated to the extent of such advancement or
payment to all of the rights of recovery of Indemnitee against the
Company. The Company and Indemnitee agree that the Third Party
Indemnitors are third party beneficiaries of the terms of this
Section 8(g).



 

8







 






 


 


9.       
     Exception to Right of
Indemnification. Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to make any
indemnification in connection with:


 


(a)           any
claim made against Indemnitee for which payment has actually been
made to or on behalf of Indemnitee under any statute, insurance
policy held by the Company or other indemnity provision vote or
otherwise, except with respect to any excess beyond the amount paid
under any insurance policy or other indemnity provision;
provided, however, that the foregoing shall not affect the rights
of Indemnitee or the Third Party Indemnitors set forth in
Section 8(g) above;


 


(b)           any
claim made against Indemnitee for an accounting or disgorgement of
profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act (as defined below) or
similar provisions of state law;


(c)           for
any reimbursement of the Company by the Indemnitee of any bonus or
other incentive-based or equity-based compensation or of any
profits realized by such person from the sale of securities of the
Company, as required in each case under the Exchange Act (including
such reimbursements that arise from an accounting restatement of
the Company pursuant to Section 304 of the Sarbanes-Oxley Act of
2002 (the “Sarbanes-Oxley
Act”), or the payment to
the Company of profits arising from the purchase and sale by such
person of securities in violation of Section 306 of the
Sarbanes-Oxley Act), if such person is held liable therefore
(including pursuant to any settlement
arrangements);


 


(d)           for
any claim, issue or matter as to which the Indemnitee shall have
been adjudged to be liable to the Company unless and only to the
extent that the Delaware Court (as defined below) or 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, the Indemnitee is fairly and
reasonable entitled to indemnity for such expenses which the
Delaware Court or such other court shall deem
proper.


 


(e)           except
as otherwise provided in Section 7, any Proceeding (or any
part of any Proceeding) initiated by Indemnitee, including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee
against the Company or its directors, officers, employees, or other
indemnitees, unless (i) the Board authorized the Proceeding
(or such part of any Proceeding) prior to its initiation,
(ii) such indemnification is expressly required to be made by
applicable law or (iii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers
vested in the Company under applicable law; or


 


(f)           any
claim, issue or matter for which the indemnification would be
prohibited by applicable law.


 


10.           Duration
of Agreement. All agreements
and obligations of the Company contained in this Agreement shall
continue during the period Indemnitee is an officer or director of
the Company (or is or was serving at the request of the Company as
a director, officer, employee or agent of another Person) and shall
continue thereafter so long as Indemnitee is, or may be made, the
subject to any Proceeding (or any proceeding commenced under
Section 7) by reason of his or her Corporate Status,
regardless of whether he or she is acting or serving in any such
capacity at the time any liability or Expense is incurred for which
indemnification can be provided under this Agreement. This
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties and their respective successors
(including any direct or indirect successor by purchase, merger,
consolidation, reorganization, or otherwise to all or a majority of
the business, assets or income or revenue generating capacity of
the Company), assigns, spouses, heirs, executors, and personal and
legal representatives.


 


11.        
Successors and
Binding Agreement. The Company
shall require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization, or otherwise) to
all or a majority of the business, assets, or income or revenue
generating capacity of the Company, by agreement in form and
substance reasonably satisfactory to Indemnitee, to expressly
assume and agree to perform this Agreement in the same manner and
to the same extent the Company would be required to perform if no
such succession had taken place. This Agreement shall be binding
upon and inure to the benefit of the Company and any successor to
the Company by operation of law or otherwise.



 

9







 






 


 


12.           Enforcement.


 


(a)           The
Company expressly confirms and agrees that it has entered into this
Agreement and assumes the obligations imposed on it by this
Agreement in order to induce Indemnitee to serve as an officer or
director of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as an officer
or director of the Company.


 


(b)           Subject
to Section 8(a), this Agreement constitutes the entire
agreement between the parties hereto with respect to the matter
hereof and supersedes all prior written and oral, and
contemporaneous oral, agreements, negotiations, and understandings,
express or implied, between the parties with respect to the subject
matter hereof. This Section 12(b) shall not be construed to
limit any other rights Indemnitee may have under the Certificate of
Incorporation, the Bylaws, applicable law or
otherwise.


 


13.        
Period of
Limitations. No legal action
may be brought and no cause of action may be asserted by or in the
right of the Company against Indemnitee, Indemnitee’s estate,
spouse, heirs, executors, or personal or legal representatives
after the expiration of two years from the date of accrual of such
cause of action, and any claim or cause of action of the Company
shall be extinguished and deemed released, unless asserted by the
timely filing of a legal action within such two year period;
provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter
period will govern.


 


14.           Definitions.
For purposes of this
Agreement:


 


(a)           “Corporate
Status” describes the
status of a person who is or was a director, officer, manager,
partner, trustee, employee, agent, or fiduciary of the Enterprise
that such person is or was serving at the express request of the
Company and includes, without limitation, the status of such person
as an advisor to the Enterprise prior to the commencement of
service in any other Corporate Status.


 


(b)           “Change
in Control” shall be
deemed to occur upon the earliest to occur after the date of this
Agreement of any of the following events:


 


(i)
any Acquiring Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of
securities of the Company representing more than 50% of the
combined voting power of the Company’s then outstanding
securities;


 


(ii)
during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who
at the beginning of such period constitute the Board, and any new
director (other than a director designated by a Person who has
entered into an agreement with the Company to effect a transaction
described in paragraphs (i), (iii) or (iv) of this definition)
whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority of the members of the
Board;


 


(iii)
the effective date of a merger or consolidation of the Company with
any other Person, other than a merger or consolidation that would
result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 50% of
the combined voting power of the voting securities of the surviving
Person outstanding immediately after such merger or consolidation
and with the power to elect at least a majority of the board of
directors or other governing body of such surviving
Person;


 


(iv)
the approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or a majority of the
Company’s assets or income or revenue-generating capacity;
or



 

10







 






 


 


(v)
there occurs any other event of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar
schedule or form) promulgated under the Exchange Act, whether or
not the Company is then subject to such reporting
requirement.


 


For
purposes of the foregoing, the following terms shall have the
following meanings:


 


(A) “Acquiring
Person” shall mean a
“person” or “group” within the meaning of
Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Acquiring Person will exclude (i) the
Company, (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, and
(iii) any Person owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company.


 


(B) “Beneficial
Owner” shall have the
meaning given to such term in Rule 13d-3 under the Exchange
Act; provided, however, that Beneficial Owner will exclude any Person
otherwise becoming a Beneficial Owner by reason of the stockholders
of the Company approving a merger of the Company with another
Person.


 


(c)           “Disinterested
Director” means a
director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by
Indemnitee.


 


(d)           “Enterprise”
means the Company and any other Person that Indemnitee is or was
serving at the express request of the Company.


 


(e)           “Exchange
Act” means the Securities
Exchange Act of 1934, as amended.


 


(f)           “Expenses”
include all reasonable attorneys’ fees, accountants’
fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
any federal, state, local or foreign taxes imposed on Indemnitee as
a result of the actual or deemed receipt of any payment under this
Agreement (including taxes that may be imposed upon the actual or
deemed receipt of payments under this Agreement with respect to the
imposition of federal, state, local or foreign taxes), and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding, including reasonable compensation for
time spent by Indemnitee in connection with the prosecution,
defense, preparation to prosecute or defend, investigation,
participation, preparation or involvement as a witness, or appeal
of a Proceeding or action for indemnification for which Indemnitee
is not otherwise compensated by the Company or any third party.
“Expenses” also include expenses incurred in connection
with any appeal resulting from any Proceeding, including without
limitation the premium, security for, and other costs relating to
any cost bond, supersedeas bond, or other appeal bond or its
equivalent. “Expenses,” however, do not include amounts
paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.


 


(g)           “Independent
Counsel” means a law
firm, or a member of a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past five
years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other than
with respect to matters concerning Indemnitee under this Agreement
or of other indemnitees under similar indemnification agreements),
or (ii) any other party to the Proceeding giving rise to a
claim for indemnification under this Agreement. Notwithstanding the
foregoing, the term “Independent Counsel” will not
include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this
Agreement.


 


(h)           “Person”
means any individual, corporation, partnership, limited liability
company, trust, benefit plan, governmental or quasi-governmental
agency, and any other entity, public or
private.


 


(i)           “Proceeding”
includes any threatened, pending, or completed action, claim, suit,
arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing, or any other actual, threatened,
or completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative,
or investigative, in which Indemnitee was, is or will be involved
as a party or otherwise, by reason of the fact that Indemnitee is
or was acting in his or her Corporate Status, by reason of any
action taken by him or her or of any inaction on his or her part
while acting in his or her Corporate Status; in each case whether
or not he or she is acting or serving in any such capacity at the
time any liability or expense is incurred for which indemnification
can be provided under this Agreement; including any Proceeding
pending on or before the date of this Agreement, but excluding any
Proceeding initiated by an Indemnitee pursuant to Section 7 of
this Agreement to enforce his or her rights under this
Agreement.



 

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15.           Severability.
The invalidity or unenforceability of
any provision of this Agreement shall in no way affect the validity
or enforceability of any other provision. Without limiting the
generality of the foregoing, this Agreement is intended to confer
upon Indemnitee indemnification rights to the fullest extent
permitted by applicable law. In the event any provision of this
Agreement conflicts with any applicable law, such provision will be
deemed modified, consistent with the aforementioned intent, to the
extent necessary to resolve such conflict.


 


16.           Modification
and Waiver. No supplement,
modification, termination, or amendment of this Agreement shall be
binding unless executed in writing by each of the parties. No
waiver of any of the provisions of this Agreement shall be deemed
or will constitute a waiver of any other provisions of this
Agreement (whether or not similar) nor shall such waiver constitute
a continuing waiver. This Agreement cannot be modified or amended,
or any provision of this Agreement waived, by course of
conduct.


 


17.           Notice
by Indemnitee. Indemnitee
agrees promptly to notify the Company in writing upon being served
with or otherwise receiving any summons, citation, subpoena,
complaint, indictment, information, or other document relating to
any Proceeding or matter that may be subject to indemnification
covered under this Agreement. The failure to so notify the Company
shall not relieve the Company of any obligation that it may have to
Indemnitee under this Agreement unless and only to the extent that
such failure or delay materially prejudices the
Company.


 


18.           Notices.
All notices and other communications
given or made pursuant to this Agreement shall be in writing and
shall be deemed effectively given: (a) upon personal delivery
to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours
of the recipient, and if not so confirmed, then on the next
business day, (c) five days after having been sent by
registered or certified mail, return receipt requested, postage
prepaid, or (d) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications will be
sent:


 


(i)
To Indemnitee at the address on file with the Company.


 


(ii)
To the Company at:


 


Yuma
Energy, Inc.


1177
West Loop South, Suite 1825


Houston,
Texas 77027


Attention:
Corporate Secretary


 



or to such other address as may have been furnished to Indemnitee
by the Company or to the Company by Indemnitee, as the case may
be.


 


19.           Counterparts.
This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by
facsimile signature or other electronic means and in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same
instrument.


 


20.           Rules
of Construction.


 


(a)           The
headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction of this
Agreement.



 

12







 






 


 


(b)           Time
is of the essence with respect to this
Agreement.


 


(c)           Unless
the context otherwise requires, references to
“Sections” is to Sections of this
Agreement.


 


(d)           This
Agreement shall be liberally construed in favor of
Indemnitee.


 


(e)           Use
of the word “or” shall not be
exclusive.


 


(f)           Use
of defined terms in the singular shall include the plural,
and vice
versa.


 


21.           Governing
Law and Consent to Jurisdiction. This Agreement and the legal relations among the
parties shall be governed by, and construed and enforced in
accordance with, the Federal laws of the United States of America
and the laws of the State of Delaware, without regard to its
conflict of laws rules or any other principle that could result in
the application of the laws of any other jurisdiction. The Company
and Indemnitee hereby irrevocably and unconditionally
(a) agree that any action or proceeding arising out of or in
connection with this Agreement will be brought only in the Court of
Chancery of the State of Delaware (the “Delaware
Court”) and not in any
other state or Federal court in the United States of America or any
court in any other country, (b) consent to submit to the
exclusive jurisdiction of the Delaware Court for purposes of any
action or proceeding arising out of or in connection with this
Agreement, (c) appoint, to the extent such party is not
otherwise subject to service of process in the State of Delaware,
The Corporation Trust Company, as such party’s agent in the
State of Delaware for acceptance of legal process in connection
with any such action or proceeding against such party with the same
legal force and validity as if served upon such party personally
within the State of Delaware, (d) waive any objection to the
laying of venue of any such action or proceeding in the Delaware
Court, and (e) waive, and agree not to plead or to make, any
claim that any such action or proceeding brought in the Delaware
Court has been brought in an improper or inconvenient
forum.


 


22.           Section 409A.
This Agreement shall be interpreted to
comply with or, to the extent possible, be exempt from
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and the regulations and guidance
promulgated thereunder to the extent applicable (collectively
“Section 409A”), and all provisions of this Agreement
shall be construed in a manner consistent with the requirements for
avoiding taxes or penalties under Section 409A. Solely to the
extent that any otherwise required payment under this Agreement
would not be exempt from Section 409A (any such payment, a
“Non-Exempt
Payment”), such
Non-Exempt Payment shall comply with the following conditions:
(a) the amount of the Non-Exempt Payment payable to Indemnitee
in one calendar year shall not affect the amount of expenses
eligible for payment or reimbursement in any other calendar year,
whether pursuant to this Agreement or any other agreement between
the Indemnitee and the Company; (b) the Non-Exempt Payment
shall be made to Indemnitee no later than the last day of the
calendar year following the calendar year in which Indemnitee
incurs or is deemed to have incurred the costs or Expenses giving
rise to Indemnitee’s right to the Non-Exempt Payment; and
(c) Indemnitee’s right to the Non-Exempt Payment shall
not be subject to liquidation or exchange for another benefit.
Notwithstanding the foregoing, in the event of a bona fide dispute
regarding Indemnitee’s entitlement to the Non-Exempt Payment,
payment of the Non-Exempt Payment may be delayed to a later date to
the extent permitted by the Treasury Regulations under
Section 409A.


 


 


 



[Signature Page Follows]



 


 


 






 




 

13








 






IN WITNESS WHEREOF,
the parties hereto have executed this
Agreement on and as of the day and year first above
written.



 


 


	
 

	
 

	
 

	
 


	
 

	
 

	


YUMA ENERGY, INC.

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	

By: 



	
 

	
 


	
 

	
 

	

Name: 



	
 

	
 


	
 

	
 

	

Title: 



	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	


INDEMNITEE

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	

By: 



	
 

	
 


	
 

	
 

	

Name: 



	
 

	
 


	
 

	
 

	
 

	
 

	
 







 


 


 


 


 


 


 



[Signature Page to Indemnification Agreement]


 


 


 


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