EXHIBIT 10(g)
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made as of November 17, 1998, by
and between Offshore Tool & Energy Corporation, a Delaware corporation (the
"Corporation"), and XxXxxxx X. Xxxxxxx, Xx. ("Indemnitee").
In consideration of Indemnitee's continued service after the date hereof,
the Corporation and Indemnitee do hereby agree as follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve as a director of the
Corporation for so long as he is elected or appointed or until such earlier time
as he tenders his resignation in writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Expenses" shall have the meaning set forth in the
Corporation's Bylaws.
(b) The term "Claim" shall have the meaning set forth in the Corporation's
Bylaws.
(c) The term "Determining Body" shall have the meaning set forth in the
Corporation's Bylaws.
(d) The term "Standard of Conduct" shall have the meaning set forth in
Section 9(b) of the Corporation's Bylaws.
3. MAINTENANCE OF INSURANCE AND SELF-INSURANCE.
(a) The Corporation represents that it presently maintains in force and
effect the following policies (the "Insurance Policies") of directors and
officers liability insurance ("D&O Insurance"):
Insurer Policy No. Coverage
------- ---------- --------
Lloyd's of London MC92638 $5,000,000
Subject only to the provisions of Section 3(b) hereof, the Corporation hereby
agrees that so long as Indemnitee shall continue to serve as a director (or
shall continue at the request of the Corporation to serve in any capacity
referred to in Section 4(a) hereof) and thereafter so long as Indemnitee shall
be subject to any possible Claim, the Corporation shall use its best efforts to
purchase and maintain in effect for the benefit of Indemnitee one or more valid
and enforceable policy or policies of D&O Insurance providing, in all respects,
coverage at least comparable to that currently provided pursuant to the
Insurance Policies.
(b) The Corporation shall not be required to purchase and maintain the
Insurance Policies in effect if D&O Insurance is not reasonably available or if,
in the reasonable business judgment of the then directors of the Corporation,
either (i) the premium cost for such insurance is excessive in light of the
amount of coverage or (ii) the coverage provided by such insurance is so limited
by exclusions, retentions, deductibles or otherwise that there is insufficient
benefit from such insurance.
(c) If the Corporation does not purchase and maintain in effect the
Insurance Policies pursuant to the provisions of Section 3(b) hereof, the
Corporation agrees to hold harmless and indemnify Indemnitee to the full extent
of the coverage that would otherwise have been provided for the benefit of
Indemnitee pursuant to the Insurance Policies.
4. ADDITIONAL INDEMNITY.
(a) To the extent any Expenses incurred by Indemnitee are in excess of the
amounts reimbursed or indemnified pursuant to the provisions of Section 3
hereof, the Corporation shall indemnify and hold harmless Indemnitee against any
such Expenses actually and reasonably incurred, as they are incurred, in
connection with any Claim against Indemnitee (whether as a subject of or party
to, or a proposed or threatened subject of or party to, the Claim) or in which
Indemnitee is involved solely as a witness or person required to give evidence,
by reason of his position
(i) as a director of the Corporation,
(ii) as a director or officer of any subsidiary of the Corporation or as a
fiduciary with respect to any employee benefit plan of the Corporation, or
(iii) as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other for profit or not for profit entity
or enterprise, if such position is or was held at the request of the
Corporation, whether relating to service in such position before or after the
effective date of this Agreement, if (A) the Indemnitee is successful in his
defense of the Claim on the merits or otherwise or (B) the Indemnitee has been
found by the Determining Body to have met the Standard of Conduct; provided that
no indemnification shall be made in respect of any Claim as to which Indemnitee
shall have been adjudged in a final payment to be liable to the Corporation
unless, and only to the extent that, the court in which such Claim was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses as the court shall deem
proper; provided further that, if the Claim involves Indemnitee by reason of his
or her position with an entity or enterprise described in clause (ii) or (iii)
of this Section 4(a) and if Indemnitee may be entitled to indemnification with
respect to such Claim from such entity or enterprise, Indemnitee shall be
entitled to indemnification hereunder only (x) if he or she has applied to such
entity or enterprise for indemnification with respect to the Claim and (y) to
the extent that indemnification to which he or she would be entitled hereunder
but for this proviso exceeds the indemnification paid by such other entity or
enterprise; and provided further that this Section 4(a) shall not be effective
with respect to an action or claim (other than an action or claim under Section
9.2 of the Corporation's Bylaws or an action or claim to enforce the provisions
of this Agreement) commenced by Indemnitee against the Corporation or by
Indemnitee as a derivative action by or in the right of the Corporation that has
not been authorized by the Board of Directors of the Corporation.
(b) The procedures for notification and determination of Claims, settlement
and defense of Claims, advancement of Expenses by the Corporation and
confidentiality of this Agreement shall be governed in all respects by Sections
9(b) through 9(l) of the Bylaws of the Corporation as in effect on the date of
this Agreement.
5. ENFORCEMENT.
(a) The rights provided by this Agreement shall be enforceable by
Indemnitee in any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights under, or to
recover damages for breach of, this Agreement, Indemnitee shall be entitled to
recover from the Corporation, and shall be indemnified by the Corporation
against, any and all Expenses actually and reasonably incurred by him in
connection with such proceeding, but only if he prevails therein. If it shall
be determined that Indemnitee is entitled to receive part but not all of the
relief sought, then Indemnitee shall be entitled to be reimbursed for all
Expenses incurred by him in connection with such proceeding if the
indemnification amount to which he is determined to be entitled exceeds 50% of
the amount of his claim. Otherwise, the Expenses incurred by Indemnitee in
connection with such judicial adjudication shall be appropriately pro-rated.
(c) In any judicial proceeding described in this Section 6, the Corporation
shall bear the burden of proving that Indemnitee is not entitled to Expenses
sought with respect to any Claim.
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6. SAVINGS CLAUSE. If any provision of this Agreement is determined by a court
having jurisdiction over the matter to require the Corporation to do or refrain
from doing any act that is in violation of applicable law, the court shall be
empowered to modify or reform such provision so that, as modified or reformed,
such provision provides the maximum indemnification permitted by law and such
provision, as so modified or reformed, and the balance of this Agreement, shall
be applied in accordance with their terms. Without limiting the generality of
the foregoing, if any portion of this Agreement shall be invalidated on any
ground, the Corporation shall nevertheless indemnify Indemnitee to the full
extent permitted by any applicable portion of this Agreement that shall not have
been invalidated and to the full extent permitted by law with respect to that
portion that has been invalidated.
7. NON-EXCLUSIVITY.
(a) The indemnification and payment of Expenses provided by or granted
pursuant to this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee is or may become entitled under any statute, article of
incorporation, bylaw, authorization of shareholders or directors, agreement or
otherwise.
(b) It is the intent of the Corporation by this Agreement to indemnify and
hold harmless Indemnitee to the fullest extent permitted by law, so that if
applicable law would permit the Corporation to provide broader indemnification
rights than are currently permitted, the Corporation shall indemnify and hold
harmless Indemnitee to the fullest extent permitted by applicable law
notwithstanding that the other terms of this Agreement would provide for lesser
indemnification.
8. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall constitute the original.
9. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon Indemnitee
and upon the Corporation, its successors and assigns, and shall inure to the
benefit of Indemnitee's heirs, personal representatives, and assigns and to the
benefit of the Corporation, its successors and assigns.
11. AMENDMENT. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless made in writing signed by the Corporation
and Indemnitee. Notwithstanding any amendment or modification to or termination
or cancellation of this Agreement or any portion hereof, Indemnitee shall be
entitled to indemnification in accordance with the provisions hereof with
respect to any acts or omissions of Indemnitee which occur prior to such
amendment, modification, termination or cancellation.
12. GENDER. All pronouns and variations thereof used in this Agreement shall
be deemed to refer to the masculine, feminine or neuter gender, singular or
plural, as the identity of the person, persons, entity or entities refer to may
require.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the date and year first above written.
INDEMNITEE: OFFSHORE TOOL & ENERGY CORPORATION
By:
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Name:
--------------------------------
Title:
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