Exhibit
10.19


 


DIRECTOR INDEMNIFICATION AGREEMENT


 


Indemnification Agreement (this “Agreement”), dated as of
              ,
2009 between Cobalt International Energy, Inc., a Delaware corporation
(the “Company”), and
                  
(“Indemnitee”).


 


W I T N E S S E T H:


 


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


 


WHEREAS, directors are increasingly being subjected
to expensive and time-consuming litigation relating to, among other things,
matters that traditionally would have been brought only against the corporation
itself.


 


WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain
qualified individuals, the Company will attempt to maintain on an ongoing
basis, at its sole expense, liability insurance to protect persons serving the
Company and its subsidiaries from certain liabilities.  At the same time, the Board recognizes the
limitations on the protection provided by liability insurance and the
uncertainties as to the scope and level of such coverage that may be available
in the future.


 


WHEREAS, the Company’s directors have certain
existing indemnification arrangements pursuant to the Company’s certificate of
incorporation and bylaws and may be entitled to indemnification pursuant to the
General Corporation Law of the State of Delaware (“DGCL”).  At the same time, the Board recognizes the
limitations on the protection provided by such indemnification and the
uncertainties as to its availability in any particular situation.


 


WHEREAS, the Board believes that in light of the
limitations and uncertainties about the protection provided by the Company’s
liability insurance and existing indemnification arrangements and the impact
these uncertainties may have on the Company’s ability to attract and retain
qualified individuals to serve as directors, the Company should act to assure
such persons that there will be increased certainty of 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 adequately protected.


 


WHEREAS, Indemnitee is concerned that the protection
provided under the Company’s liability insurance and existing indemnification
arrangements may not be adequate and may not be willing to serve as a director
of the Company without greater certainty concerning such protection, and the
Company desires Indemnitee to serve in such capacity and is willing to provide
such greater certainty.


 


[WHEREAS, Indemnitee has certain rights to
indemnification and/or insurance provided by the Sponsor Indemnitors (as
defined below) which Indemnitee and the Sponsor Indemnitors intend to be
secondary to the primary obligation of the Company to indemnify Indemnitee as
provided herein, with the Company’s acknowledgement and agreement to the
foregoing being a material condition to Indemnitee’s willingness to serve on
the Board.]*


 


NOW, THEREFORE, in consideration of the premises and
the covenants contained herein, the Company and Indemnitee do hereby covenant
and agree as follows:


 


ARTICLE
1


CERTAIN
DEFINITIONS


 


(a) As used in this Agreement:


 


“Change of Control”
means any one of the following circumstances occurring after the date hereof: (i) there
shall have occurred an event required to be reported with respect to the
Company in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any other schedule or form) under the Exchange
Act, regardless of whether the Company is then subject to such reporting
requirement; (ii) any “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) shall have become, without prior
approval of a majority of the Continuing Directors, the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing a majority or more of the combined
voting power of the Company’s then outstanding voting securities (provided that
for purposes of this clause (ii), the term “person” shall exclude a trustee or
other fiduciary holding securities under an employee benefit plan of the
Company); (iii) there occurs a merger or consolidation of the Company with
any other entity, other than a merger or consolidation which would result in
the voting securities of


 






* Bracketed language to be included in
indemnification agreements between the Company and the Sponsor Indemnitors’
designees.


 


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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 or
resulting entity) more than 51% of the combined voting power of the voting
securities of the surviving or resulting entity 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 or resulting
entity; (iv) all or substantially all the assets of the Company are sold
or otherwise disposed of in a transaction or series of related transactions; (v) the
approval by the stockholders of the Company of a complete liquidation of the
Company; or (vi) the Continuing Directors cease for any reason to
constitute at least a majority of the members of the Board.


 


“Continuing Directors”
means the directors who are on the Board on the date hereof and any new
directors whose election or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the directors
then still in office who were directors on the date hereof or whose election or
nomination was so approved.


 


“Corporate Status”
means the status of a person who is or was a director, officer, employee,
consultant or agent of the Company or who is or was serving at the request of
the Company as a director, officer, employee, consultant or agent of any other
Enterprise.


 


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


 


“Enterprise”
means any corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other person or enterprise.


 


“Exchange Act”
means the Securities Exchange Act of 1934.


 


“Expenses” means
all  costs and expenses (including fees and
expenses of counsel, 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 payments under this Agreement) incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding.  Expenses shall also include expenses incurred
in connection with any appeal resulting from any Proceeding (including the
premium, security for and other costs relating to any cost bond, supersedeas bond
or other appeal bond or its equivalent). 
Expenses, however, shall not include Liabilities.


 


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“Independent Counsel”
means a law firm, or a partner or member of a law firm, that is experienced in
matters of corporate law and neither currently is, nor in the five years
previous to its selection or appointment has been, retained to represent (i) the
Company or Indemnitee in any matter material to either such party  (provided that acting as an Independent Counsel under this
Agreement or in a similar capacity with respect to any other indemnification
arrangements between the Company and its present or former directors shall not
be deemed a representation of the Company or Indemnitee) or (ii) any other
party to the Proceeding giving rise to a claim for indemnification or
advancement of expenses hereunder. 
Notwithstanding the foregoing, the term “Independent Counsel” shall 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.


 


“Liabilities”
means all judgments, fines (including any excise taxes assessed with
respect to any employee benefit plan), penalties and amounts paid in settlement
and other liabilities (including all interest, assessments and other charges
paid or payable in connection with or in respect of any such amounts) arising
out of or in connection with any Proceeding; provided
that Liabilities shall not include any Expenses.


 


“person” means
an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization.


 


“Proceeding” includes any threatened, pending or completed
action, suit or other proceeding (which shall include an arbitration or other
alternate dispute resolution mechanism or an inquiry, investigation or
administrative hearing), whether civil, criminal, administrative, legislative
or investigative (formal or informal) in nature (including any and all appeals
therefrom) and whether instituted by or on behalf of the Company or any other
party, in any such case, in which Indemnitee was, is or may be involved as a
party or otherwise by reason of any Corporate Status of Indemnitee or by reason
of any action taken (or failure to act) by him or on his part while serving in
any Corporate Status or any inquiry or investigation that Indemnitee in good
faith believes might lead to the institution of any such action, suit or other
proceeding; provided that Proceeding shall not
include an action, suit or other proceeding contemplated by Section 8.06(b).


 


(b)                                 For the purposes of this
Agreement:


 


References to the “Company”
shall include, in addition to the surviving or resulting corporation in any
merger or consolidation, any constituent corporation (including any constituent
of a constituent) absorbed in a merger or consolidation which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that if Indemnitee is or was a
director, officer, employee, consultant or agent of such constituent
corporation or is or was serving at the request of such constituent


 


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corporation as a director, officer, employee,
consultant or agent of another Enterprise, then Indemnitee shall stand in the
same position under the provisions of this Agreement with respect to the
surviving or resulting corporation as Indemnitee would have with respect to
such constituent corporation if its separate existence had continued.


 


References to “director, officer,
employee, consultant or agent” shall include, in addition to
directors, officers, employees, consultants and agents, a trustee, general
partner, manager, managing member, fiduciary or member of a committee of a
board of directors.


 


References to “serving at the request of
the Company” shall include any service as a director, officer,
employee, consultant or agent of the Company or any other Enterprise which
imposes duties on, or involves services by, such director, officer, employee,
consultant or agent with respect to an employee benefit plan, its participants
or beneficiaries;  and a person who acted in good
faith and in a manner such person reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interests of
the Company” as used herein.


 


References to “hereof”, “herein” and “hereunder” and
words of like import shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. 
References to “includes” or “including” shall be deemed to be followed by the words “without
limitation”, whether or not they are in fact followed by those words or words
of like import.  Unless otherwise
expressly stated herein, references to any statute shall be deemed to refer to
such statute as amended from time to time and to any rules or regulations
promulgated thereunder.


 


ARTICLE
2


SERVICES
BY INDEMNITEE


 


Section 2.01.  Services by
Indemnitee.  Indemnitee hereby
agrees to serve or continue to serve as a director of the Company, for so long
as Indemnitee is duly elected or appointed or until Indemnitee tenders his
resignation or is removed.


 


ARTICLE
3


INDEMNIFICATION


 


Section 3.01. 
General.  (a) The Company hereby agrees to
and shall indemnify Indemnitee and hold Indemnitee harmless, to the fullest
extent permitted by applicable law, from and against any and all Expenses and


 


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Liabilities actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding.  The phrase “to the fullest extent permitted
by applicable law” shall include:


 


(i)                                     to the fullest
extent permitted by the DGCL as in effect on the date of this Agreement, and


 


(ii)                                  to the fullest
extent authorized or permitted by any amendments to or replacements of the DGCL
adopted after the date of this Agreement.


 


(b)                                 To the extent that
Indemnitee is a party to (or a participant in) and is successful, on the merits
or otherwise, in the defense of any Proceeding or any claim, issue or matter
therein, in whole or in part, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.  If Indemnitee is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in any Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or matter
and any claim, issue or matter related to each such successfully resolved claim,
issue or matter.  For purposes of this Section 3.01(b) and
without limitation, the termination of any Proceeding or any claim, issue or
matter in a Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such Proceeding, claim, issue or matter.  Nothing in this Section 3.01(b) is
intended to limit Indemnitee’s rights provided for in Section 3.01(a).


 


(c)                                  To the extent that
Indemnitee is, by reason of his Corporate Status, a witness in or is otherwise
asked to participate in any Proceeding to which Indemnitee is not a party, he
shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith. 
Nothing in this Section 3.01(c) is intended to limit Indemnitee’s
rights provided for in Section 3.01(a).


 


(d)                                 If Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for
some or a portion of Expenses, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.


 


Section 3.02. Exclusions.  Notwithstanding
any provision of this Agreement to the contrary (including Section 3.01),
the Company shall not be obligated under this Agreement to indemnify in
connection with:


 


(a)                                  any claim made against
Indemnitee for an accounting of profits made from the purchase and sale (or
sale and purchase) by Indemnitee of securities of the Company pursuant to Section 16(b) of
the Exchange Act or similar provisions of state statutory law or common law;


 


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(b)                                 except for an action, suit
or other proceeding contemplated by Section 8.06(b), any action, suit or
other proceeding (or part thereof) initiated by Indemnitee against the Company
or its directors, officers, employees, agents or other indemnitees unless (i) the
Board authorizes the action, suit or other proceeding (or part thereof), (ii) the
Company provides the indemnification or advancement of Expenses, in its sole
discretion, pursuant to the powers vested in the Company under applicable law,
or (iii) such indemnification or advancement of Expenses is otherwise
required under the DGCL; or


 


(c)                                  any claim, issue or matter
in a Proceeding by or in the right of the Company to procure a judgment in its
favor as to which Indemnitee shall have been finally adjudged by a court of
competent jurisdiction to be liable to the Company unless and only to the
extent the Delaware Chancery Court or the court in which such Proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnity for such expenses which the Delaware
Chancery Court or such other court shall deem proper.


 


ARTICLE
4


ADVANCEMENT
OF EXPENSES; DEFENSE OF CLAIMS


 


Section 4.01.  Advances. The Company shall advance any
Expenses that shall be actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with any Proceeding within 20 days after
receipt by the Company of a written request for advancement of Expenses, which
request may be delivered to the Company at such time and from time to time as
Indemnitee deems appropriate in his sole discretion (whether prior to or after
final disposition of any such Proceeding). 
Advances shall be made without regard to Indemnitee’s ability to repay
such amounts and without regard to Indemnitee’s ultimate entitlement to
indemnification under this Agreement or otherwise.  Any such advances shall be made on an
unsecured basis and be interest free. 
Nothing in this Section 4.01 shall require the Company to advance
Expenses in any case in which indemnification would not be permitted under Section 3.02(a) or
(b) or following the entry of a final, nonappealable judgment of the type
described in Section 3.02(c).


 


Section 4.02.  Repayment of Advances or Other
Expenses.  Indemnitee agrees
that Indemnitee shall reimburse the Company for all amounts advanced by the
Company pursuant to Section 4.01 if it is ultimately determined, by a
court of competent jurisdiction in a final judgment, not subject to appeal,
that Indemnitee is not entitled to be indemnified by the Company for such
Expenses.  If Indemnitee seeks a judicial
adjudication or an arbitration pursuant to Section 6.01(a), or if the
Company initiates an action, suit or other proceeding against Indemnitee to
recover any amounts advanced by the Company pursuant to Section 4.01,
Indemnitee shall not be required to reimburse the Company pursuant to this


 


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Section 4.02 until a final determination
(as to which all rights of appeal have been exhausted or lapsed) has been made.


 


Section 4.03.  Defense Of Claims.  (a) If a Change of Control
shall not have occurred, the Company shall be entitled to assume the defense of
any Proceeding with counsel reasonably acceptable to Indemnitee upon delivery
of written notice to the Indemnitee. 
After the Company assumes the defense, the Company will not be liable to
Indemnitee under this Agreement for any fees or expenses of counsel
subsequently incurred by Indemnitee with respect to such Proceeding; provided that (i) Indemnitee shall have the right to
employ separate counsel in respect of any Proceeding at Indemnitee’s expense
and (ii) if the employment of counsel by Indemnitee has been previously
authorized in writing by the Company or Indemnitee shall have reasonably
concluded upon the advice of counsel that (x) there is a conflict of interest
between the Company and Indemnitee in the conduct of the defense of such
Proceeding or (y) Indemnitee has one or more legal defenses available to
him which are different from or additional to those available to the Company in
such Proceeding, then, in each such case, the fees and expenses of Indemnitee’s
counsel shall be at the Company’s expense. 
The Company shall not settle any Proceeding (in whole or in part) which
would impose any Expense, Liability or limitation on Indemnitee without
Indemnitee’s prior written consent, such consent not to be unreasonably
withheld.  Indemnitee shall not settle
any Proceeding (in whole or in part) which would impose any Expense, Liability
or limitation on the Company without the Company’s prior written consent, such consent
not to be unreasonably withheld.


 


(b)  If a Change of Control shall have
occurred, the Company shall not have the right to assume the defense of any
Proceeding; provided, however, that the Company will
be entitled to participate in any Proceeding at its own expense.


 


ARTICLE
5


REQUEST
FOR INDEMNIFICATION AND DETERMINATION OF ENTITLEMENT


 


Section 5.01. 
Notification; Request For Indemnification.  (a) As
soon as reasonably practicable after receipt by Indemnitee of written
notice that Indemnitee is a party to or a participant (as a witness or
otherwise) in any Proceeding or of any other matter in respect of which
Indemnitee intends to seek indemnification or advancement of Expenses
hereunder, Indemnitee shall provide to the Company written notice thereof
(including the nature and facts underlying such matter).  The omission by Indemnitee to so notify the
Company will not relieve the Company from any liability which it may have to
Indemnitee under this Agreement or otherwise than under this Agreement.  Any delay in so notifying the Company shall
not constitute a waiver by Indemnitee of any rights under this Agreement or
otherwise than under this Agreement.


 


(b)                                 To obtain indemnification
under this Agreement, Indemnitee shall deliver to the Company a written request
for indemnification, including therewith


 


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such information as is reasonably available to
Indemnitee and reasonably necessary to determine Indemnitee’s entitlement to
indemnification hereunder.  Such request(s) may
be delivered at such times and from time to time as Indemnitee deems
appropriate in his sole discretion. 
Indemnitee’s entitlement to indemnification shall be determined
according to Section 5.02 of this Agreement and applicable law.


 


Section 5.02. 
Determination of Entitlement.  (a) Except with
respect to requests for indemnification pursuant to Sections 3.01(b) or
(c), in which case payment of indemnification shall be made by the Company
automatically within 10 days of receipt by the Company of a written request
therefor, as soon as reasonably practicable (but in no event later than 60
days) after the later of request for indemnification pursuant to Section 5.01(b) and
the final disposition of the matter that is the subject of the request for
indemnification, a determination shall be made with respect to Indemnitee’s
entitlement thereto in the specific case. 
If a Change in Control shall not have occurred, such determination shall
be made (i) by a majority vote of the Disinterested Directors or of a
committee of Disinterested Directors designated by a majority vote of the
Disinterested Directors (in either case, even though less than a quorum of the
Board) or (ii) if there are no Disinterested Director or the Disinterested
Directors so direct, by Independent Counsel. 
If a Change in Control shall have occurred, such determination shall be
made by Independent Counsel.  Any
determination made by Independent Counsel pursuant to this Section 5.02(a) shall
be in the form of a written opinion to the Board, a copy of which shall be
delivered to Indemnitee.  Indemnitee
shall reasonably cooperate with the person or persons making such determination
including providing to such person or persons upon reasonable advance request
any documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination.  Any
costs or expenses (including fees and expenses of counsel) incurred by
Indemnitee in so cooperating with the person or persons making such
determination shall be deemed “Expenses” hereunder and shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom. 
Indemnification for the Expenses referred to in the immediately
preceding sentence shall be made by the Company automatically within 10 days of
receipt by the Company of a written request therefor.


 


(b)                                 If the determination is to
be made by Independent Counsel, such Independent Counsel shall be selected as
provided in this Section 5.02(b). 
If a Change in Control shall not have occurred, the Independent Counsel
shall be selected by the Board, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so
selected.  If a Change in Control shall
have occurred, the Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board, in which
event the preceding sentence shall apply), and Indemnitee shall


 


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give written notice to the Company advising it of
the identity of the Independent Counsel so selected.  In either case, the party receiving the
notice may, within 10 days after receipt thereof, deliver to the other a
written objection to such selection; provided 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 Article 1 of 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 shall act as Independent Counsel.  If a proper and timely objection is made, the
counsel selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court of competent jurisdiction  (or,
at Indemnitee’s option pursuant to Section 6.01, an arbitration) has
determined that such objection is without merit.  If, within 20 days after the later of the
receipt by the Company of a request for indemnification pursuant to Section 5.01(b) and
the final disposition of the matter, no Independent Counsel shall have been
selected and not objected to, either the Company or Indemnitee may petition a
court of competent jurisdiction (or, at Indemnitee’s option pursuant to Section 6.01,
an arbitration) for resolution of any objection which shall have been made to
the selection of Independent Counsel and/or for the appointment of another
person as Independent Counsel, and the person with respect to whom all
objections are so resolved or the person so appointed shall act as Independent
Counsel.  The Company agrees to pay the
reasonable fees and expenses of any Independent Counsel appointed pursuant to
this Section and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.


 


(c)                                  If it is determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within 10 days after such determination.


 


Section 5.03.  Presumptions
and Burdens of Proof; Effect of Certain Proceedings.  (a) In making any determination as to Indemnitee’s
entitlement to indemnification hereunder, Indemnitee shall, to the fullest
extent not prohibited by law, be entitled to a presumption that he is entitled
to indemnification under this Agreement if Indemnitee has submitted a request
for indemnification in accordance with Section 5.01(b), and the Company
shall, to the fullest extent not prohibited by law, have the burdens of coming
forward with evidence and of persuasion to overcome that presumption.


 


(b)                                 The termination of any
Proceeding or of any claim, issue or matter therein by judgment, order,
settlement or conviction, or upon a plea of guilty, nolo contendere or its
equivalent shall not  of itself
create a presumption (i) that Indemnitee did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, (ii) that with respect to any criminal
Proceeding, Indemnitee had reasonable cause to believe that his conduct was unlawful
or (iii) that Indemnitee did not otherwise satisfy the applicable standard
of conduct to be indemnified pursuant to this Agreement.


 


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(c)        For purposes of any determination of good faith, Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based (i) on
the records or books of account of the Company or other Enterprise, as
applicable, including financial statements, (ii) on information supplied
to Indemnitee by the officers of the Company or other Enterprise, as
applicable, in the course of their duties, (iii) on the advice of legal
counsel for the Company or other Enterprise, as applicable, or counsel selected
by any committee of the board of directors of such entity, or (iv) on
information or records given or reports made to the Company or other
Enterprise, as applicable, by an independent certified public accountant or an
appraiser, investment banker or other expert selected with reasonable care by
such entity or the board of directors or any committee of the board of
directors of such entity.  The provisions
of this Section 5.03(c) shall not be deemed to be exclusive or to
limit in any way other circumstances in which Indemnitee may be deemed or found
to  have met the applicable standard of
conduct to be indemnified pursuant to this Agreement.


 


(d)        The knowledge or actions or failure to act of any other
director, officer, employee, consultant or agent of the Company or other
Enterprise, as applicable, shall not be imputed to Indemnitee for purposes of
determining Indemnitee’s right to indemnification under this Agreement.


 


(e)        If a determination as to Indemnitee’s entitlement to
indemnification shall not have been made pursuant to this Agreement within 60
days after the later of the request for indemnification pursuant to Section 5.01(b) and
the final disposition of the matter that is the subject of the request for
indemnification, the requisite determination of entitlement to indemnification
shall, to the fullest extent not prohibited by law, be deemed to have been made
in favor of Indemnitee, and Indemnitee shall be entitled to such
indemnification, absent a misstatement by Indemnitee of a material fact or an omission
by Indemnitee of a material fact necessary in order to make the information
provided not misleading in connection with the request for indemnification; provided that such 60-day period may be extended for a
reasonable time, not to exceed an additional 30 days, if the person or persons
making the determination in good faith requires such additional time to obtain
or evaluate any documentation or information relating thereto.


 


ARTICLE 6

REMEDIES OF INDEMNITEE


 


Section 6.01.  Adjudication or
Arbitration.  (a) Indemnitee shall be entitled
to an adjudication (by a court of competent jurisdiction or, at Indemnitee’s
option, through an arbitration conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association) of
any determination pursuant to Section 5.02 that Indemnitee is not entitled
to indemnification under this Agreement. 
Any such adjudication shall be conducted 


 


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in all respects as a de novo
trial or arbitration on the merits, and any prior adverse determination shall
not be referred to or introduced into evidence, create a presumption that
Indemnitee is not entitled to indemnification or advancement of expenses, be a
defense or otherwise adversely affect Indemnitee.  In addition, neither the failure of the
Company, the Disinterested Directors, a committee of the Disinterested
Directors or Independent Counsel to have made a determination prior to the
commencement of any such adjudication that indemnification under this Agreement
is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company, the
Disinterested Directors, a committee of the Disinterested Directors or Independent
Counsel 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 in such adjudication.  In any such judicial proceeding or arbitration,
the provisions of Section 5.03 (including the presumption in favor of
Indemnitee and the burdens on the Company) shall apply.


 


(b)        Indemnitee shall also be entitled to an adjudication (by a
court of competent jurisdiction or, at Indemnitee’s option, through an
arbitration as described above) of any other disputes under this Agreement,
including any disputes arising because (i) advancement of Expenses is not
timely made pursuant to Section 4.01, (ii) no determination of
entitlement to indemnification shall have been made pursuant to Section 5.02
of this Agreement within the required time period, (iii) payment of
indemnification is not made pursuant to Section 3.01(b) or (c) or
the last two sentences of Section 5.02(a) within 10 days after
receipt by the Company of written request therefor, (iv) payment of
indemnification pursuant to Section 3.01(a) is not made within 10
days after a determination has been made that Indemnitee is entitled to
indemnification, or (v) the Company takes or threatens to take any action
to declare this Agreement void or unenforceable, or institutes any litigation
or other action or Proceeding designed to deny, or to recover from, the
Indemnitee the benefits provided or intended to be provided to the Indemnitee
hereunder.


 


(c)        If a determination shall have been made pursuant to Section 5.02
that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in any judicial proceeding or arbitration commenced pursuant
to this Section 6.01, absent a misstatement by Indemnitee of a material
fact or an omission by Indemnitee of a material fact necessary in order to make
the information provided not misleading in connection with the request for
indemnification.


 


(d)        In connection with any judicial proceeding or arbitration
commenced pursuant to this Section 6.01, the Company shall not oppose
Indemnitee’s right to seek such adjudication, shall be precluded from asserting
that the procedures and presumptions of this Agreement are not valid, binding
or enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all of the provisions of this
Agreement.


 


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ARTICLE 7

DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE


 


Section 7.01.  D&O Liability
Insurance.  (a) The Company shall obtain and
maintain a policy or policies of insurance (“D&O
Liability Insurance”) with reputable insurance companies providing
liability insurance for directors of the Company in their capacities as such
(and for any capacity in which any director of the Company serves any other
Enterprise at the request of the Company), in respect of acts or omissions
occurring while serving in such capacity, on terms with respect to coverage and
amount (including with respect to the payment of expenses) no less favorable
than those of such policy in effect on the date hereof; provided
that such coverage and amounts are available on commercially reasonable terms.


 


(b)        Indemnitee shall be covered by the Company’s D&O
Liability Insurance policies as in effect from time to time in accordance with
the applicable terms to the maximum extent of the coverage available for any
other director under such policy or policies. 
The Company shall, promptly after receiving notice of a Proceeding as to
which Indemnitee is a party or a participant (as a witness or otherwise), give
notice of such Proceeding to the insurers under the Company’s D&O Liability
Insurance policies in accordance with the procedures set forth in the respective
policies.  The Company shall thereafter
take all necessary or desirable actions to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such Proceeding in
accordance with the terms of such policies. 
The failure or refusal of any such insurer to pay any such amount shall
not affect or impair the obligations of the Company under this Agreement.


 


(c)        Upon request by Indemnitee, the Company shall provide to
Indemnitee copies of the D&O Liability Insurance policies as in effect from
time to time.  The Company shall promptly
notify Indemnitee of any material changes in such insurance coverage.


 


[(d)      The Company hereby acknowledges that Indemnitee has certain
rights to indemnification, advancement of expenses and/or insurance provided by
[Insert name of applicable Sponsor] and/or certain of its affiliates
(collectively,the “Sponsor Indemnitors”).  The Company hereby agrees (i) that it is
the indemnitor of first resort (i.e., its obligations to Indemnitee are primary
and any obligation of the Sponsor Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by Indemnitee are
secondary), (ii) that it shall be required to advance the full amount of
Expenses incurred by Indemnitee and shall be liable for the full amount of all
Expenses and Liabilities to the extent legally permitted and as required by the
terms of this Agreement and the Company’s certificate of incorporation and
bylaws (or any other agreement between the Company and Indemnitee), without
regard to any rights Indemnitee may have against the Sponsor Indemnitors, and, (iii) that
it irrevocably waives, relinquishes and releases the Sponsor Indemnitors from
any 


 


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and all claims against the
Sponsor 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 Sponsor Indemnitors on
behalf of Indemnitee with respect to any claim for which Indemnitee has sought
indemnification from the Company shall affect the foregoing and the Sponsor
Indemnitors shall have a right of contribution and/or 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 Sponsor Indemnitors are express third
party beneficiaries of the terms of this Section 7.01(d).]*


 


ARTICLE 8

MISCELLANEOUS


 


Section 8.01. 
Nonexclusivity of Rights.  The
rights of indemnification and advancement of Expenses provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled to under applicable law, the Company’s certificate
of incorporation or bylaws, any other agreement, any vote of stockholders or
resolution of directors or otherwise.  No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal. 
To the extent that a change in Delaware law, whether by statute or
judicial decision, permits greater indemnification or advancement of Expenses
than would be afforded currently under this Agreement, it is the intent of the
parties hereto that Indemnitee shall be entitled under this Agreement to the
greater benefits so afforded by such change. 
No right or remedy herein conferred is intended to be exclusive of any
other right or remedy, and every right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder or
otherwise shall not prevent the concurrent assertion or employment of any other
right or remedy.


 


Section 8.02.  Subrogation,
etc.  (a) [Except as provided in Section 7.01(d),]
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 [(other than against the Sponsor Indemnitors)], who shall execute
all papers required and take all actions necessary to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.


 






* Bracketed language to be
included in indemnification agreements between the Company and the Sponsor Indemnitors’
designees.


 


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(b)        [Except as provided
in Section 7.01(d),] the Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder (or
for which advancement is provided hereunder) if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.


 


(c)        [Except as provided
in Section 7.01(d),] the Company’s obligation to indemnify or
advance Expenses hereunder to Indemnitee who is or was serving at the request
of the Company as a director, officer, employee, consultant or agent of any
other Enterprise shall be reduced by any amount Indemnitee has actually
received as indemnification or advancement of Expenses from such Enterprise.


 


Section 8.03.  Contribution.  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
or on his behalf, whether for Liabilities and/or Expenses in connection with a
Proceeding or other expenses relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all
of the circumstances in order to reflect (i) the relative benefits
received by the Company and Indemnitee as a result of the event(s) and/or
transaction(s) giving rise to such action, suit or other proceeding;
and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).


 


Section 8.04. 
Amendment.  This
Agreement may not be modified or amended except by a written instrument executed
by or on behalf of each of the parties hereto.


 


Section 8.05. 
Waivers.  The
observance of any term of this Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively) only by a
writing signed by the party against which such waiver is to be asserted.  Unless otherwise expressly provided herein,
no delay on the part of any party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party hereto of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder.


 


Section 8.06.  Expenses.  (a) The Company shall pay all
costs and expenses (including fees and expenses of counsel) incurred by the
Company and Indemnitee in connection with the preparation of this Agreement.


 


(b)        The Company shall indemnify and hold Indemnitee harmless from
any and all Expenses (including fees and expenses of counsel and expenses
incurred in connection with the preparation and forwarding of statements to the



 


15

















 


Company to support an
advancement of Expenses hereunder) actually and reasonably incurred by
Indemnitee or on his behalf in seeking (whether through a judicial proceeding
or arbitration (including any and all appeals resulting therefrom) or
otherwise) to enforce, interpret or defend any rights against the Company for
indemnification or advancement of Expenses (whether under this Agreement or
otherwise) or to recover under any liability insurance policy maintained by any
person for the benefit of Indemnitee in connection with the performance of his
duties for or on behalf of the Company. 
The Company shall pay (or reimburse Indemnitee for the payment of) any
such Expenses within 10 days after receipt by the Company of a written request
for the payment of such amounts, which request may be delivered to the Company
at such time or from time to time as Indemnitee deems appropriate in his sole
discretion (whether prior to or after final disposition of any such matter).  Indemnitee shall have no obligation to
reimburse any amounts paid by the Company pursuant to this Section 8.06(b).


 


Section 8.07.  Entire
Agreement.  This Agreement
constitutes the entire agreement between the parties hereto with respect to the
matters covered herein and supersedes all prior oral, written or implied
understandings or agreements with respect to the matters covered herein.  This Section 8.07 shall not be construed
to limit any other rights Indemnitee may have under the Company’s certificate
of incorporation or bylaws, applicable law or otherwise.


 


Section 8.08. 
Severability.  If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: 
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by applicable law; (b) such provision or
provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.


 


Section 8.09.  Notices.  All notices, requests and other
communications under this Agreement shall be in writing (including facsimile
transmission or electronic mail (“e-mail”) transmission so long as a
confirmation of receipt of such e-mail is requested and received).  All such notices, requests and other
communications shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. on a business day in the place of
receipt.  Otherwise, any such notice,
request or communication shall be deemed to have been received on the next
succeeding business day in the place of receipt.  The address for notice to a party is as shown
on the signature page of this Agreement, 


 


16

















 


or such other address as any party shall have
given by written notice to the other party as provided above.


 


Section 8.10.  Binding
Effect.  (a) The Company expressly
confirms and agrees that it has entered into this Agreement and assumed the
obligations imposed on it hereby in order to induce Indemnitee to serve as a
director of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as a director of the Company.


 


(b)        This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective successors and
permitted 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 the Company, heirs, executors, administrators or other
successors.  The Company shall require
and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all or substantially all or a substantial part
of the business or assets of the Company, by written agreement in form and
substance reasonably satisfactory to Indemnitee, expressly to assume and agree
to perform this Agreement in the manner and to the same extent that the Company
would be required to perform if no such succession had taken place.


 


(c)        The indemnification and advancement of expenses provided by
this Agreement shall continue as to a person who has ceased to be a director,
officer, employee, consultant or agent or is deceased and shall inure to the
benefit of the heirs, executors, administrators or other successors of the
estate of such person.


 


Section 8.11.  Governing
Law.  This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without regard to its conflict of laws rules.


 


Section 8.12.  Consent To Jurisdiction.  Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 6.01, the Company
and Indemnitee hereby irrevocably and unconditionally (i) agree that any
action, suit or other proceeding arising out of or in connection with this
Agreement shall be brought only in the Delaware Chancery Court and any court to
which an appeal may be taken in such action, suit or other proceeding (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, (ii) consent
to submit to the exclusive jurisdiction of the Delaware Court for purposes of
any action, suit or other proceeding arising out of or in connection with this
Agreement, (iii) appoint, to the extent such party is not otherwise
subject to service of process in the State of Delaware, The Corporation Trust
Company, Wilmington, Delaware as its agent in the State of Delaware as such
party’s agent 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, (iv) waive
any objection to the laying of venue of any such action, suit or other
proceeding in the Delaware Court, and (v) waive, and agree not to plead or
to 


 


17

















 


make, any claim that any such action, suit or
other proceeding brought in the Delaware Court has been brought in an improper
or inconvenient forum.


 


Section 8.13. 
Headings.  The Article and
Section headings in this Agreement are for convenience of reference only,
and shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.


 


Section 8.14. 
Counterparts.  This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. 
Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.


 


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IN WITNESS WHEREOF, this Agreement has been duly
executed and delivered to be effective as of the date first above written.


 


 


	
   

  	
  COBALT
  INTERNATIONAL ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Facsimile:

  
	
   

  	
  Attention:

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Facsimile:

  
	
   

  	
  Attention:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [INDEMNITEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Facsimile:

  
	
   

  	
  Attention:

  



 


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