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EXHIBIT 10.14
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made as of
_______________, 2001 by and between Oil States International, Inc., a Delaware
corporation (the "Company"), and _________________ (the "Indemnitee").
AGREEMENT
In consideration of the mutual promises made in this Agreement, and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the Company and Indemnitee hereby agree as follows:
1. INDEMNIFICATION.
(a) THIRD PARTY PROCEEDINGS. The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of
the fact that Indemnitee is or was a director, officer, employee or
agent of the Company, or any subsidiary of the Company, by reason of
any action or inaction on the part of Indemnitee while an officer or
director or by reason of the fact that Indemnitee is or was serving at
the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection
with such action, suit or proceeding if Indemnitee acted in good faith
and in a manner 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 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 Indemnitee did not act in good faith and in a manner
which Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, or, with respect to any criminal action
or proceeding, that Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company
shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or proceeding by or in the right of the Company or any
subsidiary of the Company to procure a judgment in its favor by reason
of the fact that Indemnitee is or was a director, officer, employee or
agent of the Company, or any subsidiary of the Company, by reason of
any action or inaction on the part of Indemnitee while an officer or
director or by reason of the fact that Indemnitee is or was serving at
the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including
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attorneys' fees) and, to the fullest extent permitted by law, amounts
paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld), in each
case to the extent actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such action or suit if
Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company
and its stockholders, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have
been finally adjudicated by court order or judgment to be liable to the
Company in the performance of Indemnitee's duty to the Company and its
stockholders unless and only to the extent that the court in which such
action or proceeding is or was pending shall determine upon application
that, in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
(c) MANDATORY PAYMENT OF EXPENSES. To the extent that
Indemnitee has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 1(a) or Section
1(b) or the defense of any claim, issue or matter therein, Indemnitee
shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by Indemnitee in connection therewith.
2. NO EMPLOYMENT RIGHTS. Nothing contained in this Agreement is
intended to create in Indemnitee any right to continued employment.
3. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) ADVANCEMENT OF EXPENSES. The Company shall advance all
expenses incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of any civil or criminal action, suit or
proceeding referred to in Section l(a) or Section 1(b) hereof
(including amounts actually paid in settlement of any such action, suit
or proceeding). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the
Company as authorized hereby.
(b) NOTICE COOPERATION BY INDEMNITEE. Indemnitee shall, as a
condition precedent to his or her right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable of
any claim made against Indemnitee for which indemnification will or
could be sought under this Agreement. Notice to the Company shall be
directed to the Chief Executive Officer of the Company (unless the
Indemnitee is then the Chief Executive Officer, in which event then to
the Chief Financial Officer of the Company) and shall be given in
accordance with the provisions of Section 12(d) below. In addition,
Indemnitee shall give the Company such information and cooperation as
it may reasonably require and as shall be within Indemnitee's power.
(c) PROCEDURE. Any indemnification and advances provided for
in Section 1 and this Section 3 shall be made no later than twenty (20)
days after receipt of the written request of Indemnitee. If a claim
under this Agreement, under any statute, or under any provision of the
Company's Certificate of Incorporation or Bylaws providing for
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indemnification, is not paid in full by the Company within twenty (20)
days after a written request for payment thereof has first been
received by the Company, Indemnitee may, but need not, at any time
thereafter bring an action against the Company to recover the unpaid
amount of the claim and, subject to Section 11 of this Agreement,
Indemnitee shall also be entitled to be paid for the expenses
(including attorneys' fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that Indemnitee has not
met the standards of conduct which make it permissible under applicable
law for the Company to indemnify Indemnitee for the amount claimed, but
the burden of proving such defense shall be on the Company and
Indemnitee shall be entitled to receive interim payments of expenses
pursuant to Section 3(a) unless and until such defense may be finally
adjudicated by court order or judgment from which no further right of
appeal exists. It is the parties' intention that if the Company
contests Indemnitee's right to indemnification, the question of
Indemnitee's right to indemnification shall be for the court to decide,
and neither the failure of the Company (including its Board of
Directors, any committee or subgroup of the Board of Directors,
independent legal counsel, or its stockholders) to have made a
determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct required by applicable law, nor an actual determination by the
Company (including its Board of Directors, any committee or subgroup of
the Board of Directors, independent legal counsel, or its stockholders)
that Indemnitee has not met such applicable standard of conduct, shall
create a presumption that Indemnitee has or has not met the applicable
standard of conduct. In addition, to the fullest extent permitted by
law and prior to a final adjudication by court order or judgment from
which no further right of appeal exists as to Indemnitee's right to
indemnification, Indemnitee shall have the right to receive
advancement, on the same terms and subject to the same obligation to
repay as the advancement of expenses pursuant to Section 3, of any
amounts that Indemnitee pays for which Indemnitee would be entitled to
indemnification under Section 1 hereof if Indemnitee has met the
applicable standard of conduct (including, without limitation, the
costs of providing any bond in connection with the appeal of any
proceeding); provided, however, that Indemnitee shall only be entitled
to such advancement if Indemnitee delivers an opinion of independent
legal counsel, selected by Indemnitee and reasonably acceptable to the
Company, that such counsel has determined, after using customary
procedures for such opinion, that it is probable (i.e., more than a 50%
probability) that Indemnitee has met the applicable standard of conduct
necessary in order to receive indemnification.
(d) NOTICE TO INSURERS. If, at the time of the receipt of a
notice of a claim pursuant to Section 3(b) hereof, the Company has
director and officer liability insurance in effect, the Company shall
give prompt notice of the commencement of such proceeding to the
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.
(e) SELECTION OF COUNSEL. In the event the Company shall be
obligated under Section 3(a) hereof to pay the expenses of any
proceeding against Indemnitee, the
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Company, if appropriate, shall be entitled to assume the defense of
such proceeding, with counsel approved by Indemnitee, upon the delivery
to Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be
liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same
proceeding, provided that (i) Indemnitee shall have the right to employ
counsel in any such proceeding at Indemnitee's expense; and (ii) if (A)
the employment of counsel by Indemnitee has been previously authorized
by the Company, (B) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee
in the conduct of any such defense or (C) the Company shall not, in
fact, have employed counsel to assume the defense of such proceeding,
then the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company.
4. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) SCOPE. Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify the Indemnitee to the
fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions
of this Agreement, the Company's Certificate of Incorporation, the
Company's Bylaws or by statute. In the event of any change, after the
date of this Agreement, in any applicable law, statute, or rule which
expands the right of a Delaware corporation to indemnify a member of
its board of directors or an officer, such changes shall be deemed to
be within the purview of Indemnitee's rights and the Company's
obligations under this Agreement. In the event of any change in any
applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an
officer, such changes, to the extent not otherwise required by such
law, statute or rule to be applied to this Agreement shall have no
effect on this Agreement or the parties' rights and obligations
hereunder.
(b) NONEXCLUSIVITY. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which
Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or
disinterested members of the Company's Board of Directors, the General
Corporation Law of the State of Delaware, or otherwise, both as to
action in Indemnitee's official capacity and as to action in another
capacity while holding such office. The indemnification provided under
this Agreement shall continue as to Indemnitee for any action taken or
not taken while serving in an indemnified capacity even though he or
she may have ceased to serve in any such capacity at the time of any
action, suit or other covered proceeding.
5. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred in the investigation, defense, appeal or settlement of any civil or
criminal action, suit or proceeding, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such expenses, judgments, fines or penalties to which Indemnitee is entitled.
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6. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge
that in certain instances, Federal law or public policy may override applicable
state law and prohibit the Company from indemnifying its directors and officers
under this Agreement or otherwise. For example, the Company and Indemnitee
acknowledge that the Securities and Exchange Commission (the "SEC") has taken
the position that indemnification is not permissible for liabilities arising
under certain federal securities laws, and federal legislation prohibits
indemnification for certain ERISA violations. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the SEC to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee.
7. OFFICER AND DIRECTOR LIABILITY INSURANCE. The Company shall, from
time to time, make the good faith determination whether or not it is practicable
for the Company to obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors of the
Company with coverage for losses from wrongful acts, or to ensure the Company's
performance of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. In all policies of
director and officer liability insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and benefits
as are accorded to the most favorably insured of the Company's directors, if
Indemnitee is a director; or of the Company's officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company's key employees, if
Indemnitee is not an officer or director but is a key employee. Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or if Indemnitee is covered by similar insurance maintained by a parent
or subsidiary of the Company.
8. SEVERABILITY. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 8. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
9. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance
expenses to Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by Indemnitee and not by way of defense, except
with respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or
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law or otherwise as required under Section 145 of the Delaware General
Corporation Law, but such indemnification or advancement of expenses
may be provided by the Company in specific cases if the Board of
Directors finds it to be appropriate;
(b) LACK OF GOOD FAITH. To indemnify Indemnitee for any
expenses incurred by Indemnitee with respect to any proceeding
instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material
assertions made by Indemnitee in such proceeding was not made in good
faith or was frivolous;
(c) INSURED CLAIMS. To indemnify Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) to the extent such expenses or liabilities have been paid
directly to Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the Company;
or
(d) CLAIMS UNDER SECTION 16(B). To indemnify Indemnitee for
expenses or the payment of profits arising from the purchase and sale
by Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor
statute.
10. CONSTRUCTION OF CERTAIN PHRASES.
(a) For purposes of this Agreement, references to the
"Company" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that if Indemnitee is
or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving corporation
as Indemnitee would have with respect to such constituent corporation
if its separate existence had continued.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to "serving at the
request of the Company" shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or
involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnitee
shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
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11. ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement or to enforce
or interpret any of the terms of this Agreement, Indemnitee shall be entitled to
be paid all court costs and expenses, including attorneys' fees, incurred by
Indemnitee in defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving
effect to principles of conflict of law.
(b) ENTIRE AGREEMENT; ENFORCEMENT OF RIGHTS. This Agreement
sets forth the entire agreement and understanding of the parties
relating to the subject matter herein and merges all prior discussions
between them. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, shall be effective
unless in writing signed by the parties to this Agreement. The failure
by either party to enforce any rights under this Agreement shall not be
construed as a waiver of any rights of such party.
(c) CONSTRUCTION. This Agreement is the result of negotiations
between and has been reviewed by each of the parties hereto and their
respective counsel, if any; accordingly, this Agreement shall be deemed
to be the product of all of the parties hereto, and no ambiguity shall
be construed in favor of or against any one of the parties hereto.
(d) NOTICES. Any notice, demand or request required or
permitted to be given under this Agreement shall be in writing and
shall be deemed sufficient when delivered personally or sent by
telegram or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and
addressed to the party to be notified at such party's address as set
forth below or as subsequently modified by written notice.
(e) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Company and its successors and assigns, and inure to the
benefit of Indemnitee and Indemnitee's heirs, legal representatives and
assigns.
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(g) SUBROGATION. In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of
the rights of recovery of Indemnitee, who shall execute all documents
required and shall do all acts that may be necessary to secure such
rights and to enable the Company to effectively bring suit to enforce
such rights.
[Signature Page Follows]
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The parties hereto have executed this Agreement as of the day and year
set forth on the first page of this Agreement.
OIL STATES INTERNATIONAL, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
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Address: Three Xxxxx Center
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
AGREED TO AND ACCEPTED:
Indemnitee: ________________________
____________________________________
(Signature)
Address:
____________________________________
____________________________________
____________________________________
____________________________________
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