FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.1
THIS
INDEMNIFICATION AGREEMENT (the “Agreement”) is effective as of , 20___ by and among GulfMark Offshore, Inc., a Delaware corporation (the
“Company”), and (the “Indemnitee”).
WHEREAS, the Indemnitee has been asked to serve on the Board of Directors of the Company (the
“Board”) or as an officer of the Company, as the case may be;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify persons serving as directors or officers of the Company to the fullest extent
permitted by applicable law so that they will serve or continue to serve as directors or officers
of the Company free from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve and continue to serve on the Board or as an
officer of the Company, as the case may be, on the condition that he be so indemnified;
NOW THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and the Indemnitee do hereby covenant and agree as follows:
Section 1. Services by the Indemnitee. The Indemnitee agrees to continue to serve at the
request of the Company as a director or officer of the Company (including, without limitation,
service on one or more committees of the Board), as the case may be. Notwithstanding the
foregoing, the Indemnitee may at any time and for any reason resign from any such position.
Section 2. Indemnification — General. The Company shall indemnify, and advance Expenses (as
hereinafter defined in Section 21 of this Agreement) to, the Indemnitee as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may thereafter from time to time permit. The rights of the
Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the
rights set forth in the other Sections of this Agreement.
Section 3. Proceedings Other Than Proceedings by or in the Right of the Company. The
Indemnitee shall be entitled to the rights of indemnification provided in this Section 3
if, by reason of his Corporate Status (as hereinafter defined in Section 21 of this
Agreement), he was, is, or is threatened to be made, a party to or participant in any threatened,
pending or completed Proceeding (as hereinafter defined in Section 21 of this Agreement),
other than a Proceeding by or in the right of the Company. Pursuant to this Section 3, the
Company shall indemnify the Indemnitee against Expenses, judgments, penalties, fines (including any
excise taxes assessed on the Indemnitee with respect to an employee benefit plan) and amounts paid
in settlement actually and reasonably incurred
by him or on his behalf in connection with such Proceeding or any claim, issue or matter
therein, if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal Proceeding, if he
also had no reasonable cause to believe his conduct was unlawful.
Section 4. Proceedings by or in the Right of the Company. The Indemnitee shall be entitled to
the rights of indemnification provided in this Section 4 if, by reason of his Corporate
Status, he was, is, or is threatened to be made, a party to or participant in any threatened,
pending or completed Proceeding brought by or in the right of the Company to procure a judgment in
its favor. Pursuant to this Section 4, the Company shall indemnify the Indemnitee against
Expenses actually and reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company. Notwithstanding the foregoing, no indemnification against
such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which
the Indemnitee shall have been adjudged to be liable to the Company or if applicable law prohibits
such indemnification; provided, however, that, in such event, if applicable law so
permits, indemnification against Expenses shall nevertheless be made by the Company if and to the
extent that the court in which such Proceeding shall have been brought or is pending shall
determine that, despite the adjudication of liability but in view of all the circumstances of the
case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
(a) To the extent that the Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, the Company shall indemnify the
Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith. If the Indemnitee is not wholly successful in defense of any 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 shall indemnify the Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection with each such claim, issue
or matter as to which the Indemnitee is successful, on the merits or otherwise. For purposes of
this Section 5(a), the term “successful, on the merits or otherwise,” shall include, but
shall not be limited to, (i) the termination of any claim, issue or matter in a Proceeding by
withdrawal or dismissal, with or without prejudice, (ii) termination of any claim, issue or matter
in a Proceeding by any other means without any express finding of liability or guilt against the
Indemnitee, with or without prejudice, or (iii) the expiration of 120 days after the making of a
claim or threat of a Proceeding without the institution of the same and without any promise or
payment made to induce a settlement. The provisions of this Section 5(a) are subject to
Section 5(b) below.
(b) In no event shall the Indemnitee be entitled to indemnification under Section 5(a)
above with respect to a claim, issue or matter to the extent (i) applicable law prohibits such
indemnification or (ii) an admission is made by the Indemnitee in writing to the Company or in such
Proceeding or a final, nonappealable determination is made in such Proceeding that the standard of
conduct required for
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indemnification under this Agreement has not been met with respect to such claim, issue or matter.
Section 6. Indemnification for Expenses as a Witness. Notwithstanding any provisions herein
to the contrary, to the extent that the Indemnitee is, by reason of his Corporate Status, a witness
in any Proceeding, the Company shall indemnify the Indemnitee against all Expenses actually and
reasonably incurred by or on behalf of the Indemnitee in connection therewith.
Section 7. Advancement of Expenses. The Company shall advance all reasonable Expenses
incurred by or on behalf of the Indemnitee in connection with any Proceeding within 30 days after
the receipt by the Company of a statement or statements from the Indemnitee requesting such advance
or advances from time to time, whether prior to or after the final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the Expenses incurred by or on behalf of the
Indemnitee. The Indemnitee hereby expressly undertakes to repay such amounts advanced, if, but
only if, and then only to the extent that, it shall ultimately be determined by a final,
non-appealable adjudication or arbitration decision that the Indemnitee is not entitled to be
indemnified against such Expenses. The Indemnitee further undertakes to return any such advance
which remains unspent at the final, non-appealable conclusion of the Proceeding to which the
advance related. All amounts advanced to the Indemnitee by the Company pursuant to this
Section 7 and repaid shall be repaid without interest. The Company shall make all advances
pursuant to this Section 7 without regard to the financial ability of the Indemnitee to
make repayment, without bond or other security and without regard to the prospect of whether the
Indemnitee may ultimately be found to be entitled to indemnification under the provisions of this
Agreement. Any required reimbursement of Expenses by the Indemnitee shall be made by the
Indemnitee to the Company within 30 days following the entry of the final, non-appealable
adjudication or arbitration decision pursuant to which it is determined that the Indemnitee is not
entitled to be indemnified against such Expenses.
Section 8. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, following final disposition of the
applicable Proceeding, the Indemnitee shall submit to the Company in care of the Secretary of the
Company a written request therefor, along with such documentation and information as is reasonably
available to the Indemnitee and reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification; provided, however, that no deficiency in
any such request, documentation or information shall adversely affect the Indemnitee’s rights to
indemnification or advancement of Expenses under this Agreement. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise the Board in writing
that the Indemnitee has requested indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant to the first sentence
of Section 8(a) hereof, a determination, if required by applicable law, with respect to the
Indemnitee’s entitlement thereto shall be made in the
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specific case: (i) by the Board by a majority vote of a quorum consisting of Disinterested
Directors (as hereinafter defined); or (ii) if a quorum of the Board consisting Disinterested
Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel (as hereinafter defined), as selected pursuant to Section
8(d), in a written opinion to the Board (which opinion may be a “should hold” or a “more likely
than not” opinion), a copy of which shall be delivered to the Indemnitee. If it is so determined
that the Indemnitee is entitled to indemnification, the Company shall make payment to the
Indemnitee within 10 days after such determination. The Indemnitee shall cooperate with the
Person or Persons making such determination with respect to the Indemnitee’s entitlement to
indemnification, 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 the Indemnitee and reasonably necessary to such determination.
Subject to the provisions of Section 10 hereof, any costs or expenses (including reasonable
attorneys’ fees and disbursements) incurred by the Indemnitee in so cooperating with the Person or
Persons making such determination shall be borne by the Company, and the Company hereby agrees to
indemnify and hold the Indemnitee harmless therefrom.
(c) Notwithstanding the foregoing, if a Change of Control has occurred, the Indemnitee may
require a determination with respect to the Indemnitee’s entitlement to indemnification to be made
by Independent Counsel, as selected pursuant to Section 8(d), in a written opinion to the
Board (which opinion may be a “should hold” or a “more likely than not” opinion), a copy of which
shall be delivered to the Indemnitee.
(d) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8(b) or (c) hereof, the Independent Counsel
shall be selected as provided in this Section 8(d). If a Change of Control shall not have
occurred, the Independent Counsel shall be selected by the Board (including a vote of a majority of
the Disinterested Directors if obtainable), and the Company shall give written notice to the
Indemnitee advising him of the identity of the Independent Counsel so selected. If a Change of
Control shall have occurred, the Independent Counsel shall be selected by the Indemnitee (unless
the Indemnitee shall request that such selection be made by the Board, in which event the preceding
sentence shall apply), and approved by the Company (which approval shall not be unreasonably
withheld, conditioned or delayed). If (i) an Independent Counsel is to make the determination of
entitlement pursuant to Section 8(b) or (c) hereof, and (ii) within 20 days after
submission by the Indemnitee of a written request for indemnification pursuant to Section
8(a) hereof, no Independent Counsel shall have been selected, either the Company or the
Indemnitee may petition the Court of Chancery of the State of Delaware for the appointment as
Independent Counsel of a Person selected by such court or by such other Person as such court shall
designate. The Company shall pay any and all reasonable fees and expenses of Independent Counsel
incurred by such Independent Counsel in connection with acting pursuant to Section 8(b) or
(c) hereof, and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 8(d), regardless of the manner in which such Independent Counsel
was selected
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or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to
Section 10(a)(iv) of this Agreement, Independent Counsel shall be discharged and relieved
of any further responsibility in such capacity (subject to the applicable standards of professional
conduct then prevailing).
Section 9. Presumptions and Effect of Certain Proceedings; Construction of Certain Phrases.
(a) In making a determination with respect to whether the Indemnitee is entitled to
indemnification hereunder, the Person(s) making such determination shall presume that the
Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted a
request for indemnification in accordance with Section 8(a) of this Agreement, and anyone
seeking to overcome this presumption shall have the burden of proof and the burden of persuasion,
by clear and convincing evidence.
(b) Subject to the terms of Section 16 hereof, 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 the Indemnitee to indemnification or create a
presumption that the 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 or, with respect to any
criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was
unlawful.
(c) For purposes of any determination of the Indemnitee’s entitlement to indemnification under
this Agreement or otherwise, the Indemnitee shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Company, and,
with respect to a criminal Proceeding, to have also had no reasonable cause to believe his conduct
was unlawful, if it is determined by the Board or by the Independent Counsel, as applicable, that
the Indemnitee’s actions were based on reliance in good faith on the records or books of account of
the Company or Another Enterprise (as hereinafter defined in Section 21 of this Agreement),
including financial statements, or on information supplied to the Indemnitee by the officers of the
Company or Another Enterprise in the course of their duties, or on the advice of legal or financial
counsel for the Company or the Board (or any committee thereof) or for Another Enterprise or its
board of directors (or any committee thereof), or on information or records given or reports made
by an independent certified public accountant or by an appraiser or other expert selected by the
Company or the Board (or any committee thereof) or by Another Enterprise or its board of directors
(or any committee thereof). In addition, (i) the knowledge and/or actions, or failure to act, of
any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of the
Company or Another Enterprise shall not be imputed to the Indemnitee for purposes of determining
the right to indemnification under this Agreement and (ii) if the Indemnitee has acted in good
faith and in a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan, he shall be deemed to have acted in a manner “not
opposed to the best interests of the Company” as used in this Agreement. The provisions of this
Section 9(c) shall not be deemed to be exclusive or to limit in any
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way the other circumstances in which the Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this Agreement.
Section 10. Remedies of the Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 8 of this
Agreement that the Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii)
the determination of entitlement to indemnification is to be made by the Board pursuant to
Section 8(b) of this Agreement and such determination shall not have been made and
delivered to the Indemnitee in writing within 20 days after receipt by the Company of the request
for indemnification, (iv) the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8(b) or (c) of this Agreement and such
determination shall not have been made in a written opinion to the Board and a copy delivered to
the Indemnitee within 20 days after receipt by the Company of the request for indemnification,
(v) payment of indemnification is not made pursuant to Section 6 of this Agreement within
30 days after receipt by the Company of a written request therefor or (vi) payment of
indemnification is not made within 10 days after a determination has been made that the
Indemnitee is entitled to indemnification or such determination is deemed to have been made
pursuant to Section 8 or Section 9 of this Agreement, the Indemnitee shall be
entitled to an adjudication in the Court of Chancery of the State of Delaware of his entitlement to
such indemnification or advancement of Expenses. Alternatively, the Indemnitee, at his sole
option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association. The Indemnitee shall commence such Proceeding
seeking an adjudication or an award in arbitration within 180 days following the date on which
the Indemnitee first has the right to commence such Proceeding pursuant to this Section
10(a); provided, however, that the foregoing clause shall not apply in respect
of a Proceeding brought by the Indemnitee to enforce his rights under Section 5 of this
Agreement.
(b) In the event that a determination is made pursuant to Section 8 of this Agreement
that the Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 10 shall be conducted in all respects as a de novo trial
or a de novo arbitration (as applicable) on the merits, and the Indemnitee shall not be prejudiced
by reason of that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 10, the Company shall have the burden of proving that the
Indemnitee is not entitled to indemnification, and the Company shall be precluded from referring to
or offering into evidence a determination made pursuant to Section 8 of this Agreement that
is adverse to the Indemnitee’s right to indemnification. If the Indemnitee commences a judicial
proceeding or arbitration pursuant to this Section 10, the Indemnitee shall not be required
to reimburse the Company for any advances pursuant to Section 7 of this Agreement until a
final determination is made with respect to the Indemnitee’s entitlement to indemnification (as to
which all rights of appeal have been exhausted or have lapsed).
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(c) If a determination is made or deemed to have been made pursuant to Section 8 or
Section 9 of this Agreement that the Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant
to this Section 10, absent (i) an intentional misstatement by the Indemnitee of a material
fact, or an intentional omission by the Indemnitee of a material fact necessary to make the
Indemnitee’s statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 10 that the procedures and presumptions of this
Agreement are not valid, binding and 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.
(e) In the event that the Indemnitee, pursuant to this Section 10, seeks a judicial
adjudication or an award in arbitration to enforce his rights under, or to recover damages for
breach of, this Agreement, the Indemnitee shall be entitled to recover from the Company, and shall
be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him
in such judicial adjudication or arbitration to the fullest extent permitted by law;
provided, however, that until such final determination is made, the Indemnitee
shall be entitled under and as provided in Section 7 hereof to receive payment of Expenses
hereunder with respect to such Proceeding. In the event that a Proceeding is commenced by or in
the right of the Company against the Indemnitee to enforce or interpret any of the terms of this
Agreement, the Indemnitee shall be entitled to recover from the Company, and shall be indemnified
by the Company against, any and all Expenses actually and reasonably incurred by him in such
Proceeding (including with respect to any counter-claims or cross-claims made by the Indemnitee
against the Company in such Proceeding) to the fullest extent permitted by law;
provided, however, that until such final determination is made, the Indemnitee
shall be entitled under and as provided in Section 7 hereof to receive payment of Expenses
hereunder with respect to such Proceeding.
(f) Any judicial adjudication or arbitration determined under this Section 10 shall be
final and binding on the parties.
Section 11. Defense of Certain Proceedings. In the event the Company shall be obligated under
this Agreement to pay the Expenses of any Proceeding against the Indemnitee in which the Company is
a co-defendant with the Indemnitee, the Company shall be entitled to assume the defense of such
Proceeding, with counsel approved by the Indemnitee, which approval shall not be unreasonably
withheld, conditioned or delayed, upon the delivery to the Indemnitee of written notice of its
election to do so. After delivery of such notice, approval of such counsel by the Indemnitee and
the retention of such counsel by the Company, the Indemnitee shall nevertheless be entitled to
employ or continue to employ his own counsel in such Proceeding. Employment of such counsel by
the Indemnitee shall be at the cost and expense of the Company unless and until the Company
shall have demonstrated to the reasonable satisfaction of the Indemnitee and
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the Indemnitee’s counsel that there is complete identity of issues and defenses and no conflict of
interest between the Company and the Indemnitee in such Proceeding, after which time further
employment of such counsel by the Indemnitee shall be at the cost and expense of the Indemnitee.
In all events, if the Company shall not, in fact, have timely employed counsel to assume the
defense of such Proceeding, then the fees and Expenses of the Indemnitee’s counsel shall be at the
cost and expense of the Company.
Section 12. Exception to Right of Indemnification or Advancement of Expenses. (a)
Notwithstanding any other provision of this Agreement, the Indemnitee shall not be entitled to
indemnification or advancement of Expenses under this Agreement with respect to any Proceeding, or
any claim therein, brought or made by the Indemnitee against:
(i) the Company, except for (x) any claim or Proceeding in respect of this Agreement and/or
the Indemnitee’s rights hereunder, (y) any claim or Proceeding to establish or enforce a right to
indemnification under (A) any statute or law, (B) any other agreement with the Company or (C) the
Company’s Certificate of Incorporation or Bylaws as now or hereafter in effect and (z) any
counter-claim or cross-claim brought or made by him against the Company in any Proceeding brought
by or in the right of the Company against him; or
(ii) any other Person, except for Proceedings or claims approved by the Board.
(b) In the event that a claim for indemnification against liabilities arising under the
Securities Act of 1933 (other than the payment by the Company of Expenses incurred or paid by the
Indemnitee in the successful defense of any Proceeding) is asserted by the Indemnitee in connection
with securities being registered under the Securities Act, the Company shall, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a court of competent
jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and the parties hereto shall be governed by the final adjudication of such
issue.
Section 13. Contribution
(a) If, with respect to any Proceeding, the indemnification provided for in this Agreement is
held by a court of competent jurisdiction to be unavailable to the Indemnitee for any reason other
than that the Indemnitee did not act in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company or, with respect to a criminal Proceeding, that
the Indemnitee had reasonable cause to believe his conduct was unlawful, the Company shall
contribute to the amount of Expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee or on his behalf in connection with such
Proceeding or any claim, issue or matter therein in such proportion as is appropriate to reflect
the relative benefits received by the Indemnitee and the relative fault of the Indemnitee versus
the other defendants or participants in connection with the action or
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inaction which resulted in such Expenses, judgments, penalties, fines and amounts paid in
settlement, as well as any other relevant equitable considerations.
(b) The Company and the Indemnitee agree that it would not be just and equitable if
contribution pursuant to this Section 13 were determined by pro rata or per capita
allocation or by any other method of allocation which does not take into account the equitable
considerations referred to in Section 13(a) above.
(c) No Person found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act of 1933) shall be entitled to contribution from any Person who was not
found guilty of such fraudulent misrepresentation.
Section 14. Officer and Director Liability Insurance.
(a) The Company shall use all commercially reasonable efforts to obtain and maintain in effect
during the entire period for which the Company is obligated to indemnify the Indemnitee under this
Agreement, one or more policies of insurance with reputable insurance companies to provide the
directors and officers of the Company with coverage for losses from wrongful acts and omissions and
to ensure the Company’s performance of its indemnification obligations under this Agreement. In
all such insurance policies, the Indemnitee shall be named as an insured in such a manner as to
provide the Indemnitee with the same rights and benefits as are accorded to the most favorably
insured of the Company’s current or former directors and officers. Notwithstanding the foregoing,
the Company shall have no obligation to obtain or maintain such insurance if the Company determines
in good faith that the Indemnitee is covered by such insurance maintained by a subsidiary or parent
of the Company.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors or officers of Another Enterprise, the Indemnitee shall be named as
an insured under and shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available for the most favorably insured director or
officer under such policy or policies.
(c) In the event that the Company is a named insured under any policy or policies of insurance
referenced in either Section 14(a) or (b) above, the Company hereby covenants and
agrees that it will not settle any claims under such policy or policies with the relevant insurance
company or companies in respect of any Proceeding that may be covered by such policy or policies of
insurance and in which the Indemnitee has or may incur Expenses, judgments, penalties, fines or
amounts paid in settlement without the prior written consent of the Indemnitee, which consent shall
not be unreasonably withheld.
Section 15. Security. The Company may, but shall not be required to, provide security to the
Indemnitee for the Company’s obligations hereunder through an irrevocable bank letter of credit,
funded trust or other similar collateral. Any such security, once provided to the Indemnitee, may
not be revoked or released without the
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prior written consent of the Indemnitee, which consent shall not be unreasonably withheld.
Section 16. Settlement of Claims. The Company shall not be required to obtain the consent of
the Indemnitee to the settlement of any Proceeding which the Company has undertaken to defend if
such settlement solely involves the payment of money, the Company assumes full and sole
responsibility for such settlement and the settlement grants the Indemnitee a complete and
unqualified release in respect of the potential liability. The Company shall not be liable for any
amount paid by an Indemnitee in settlement of any Proceeding unless the Company has consented to
such settlement, which consent shall not be unreasonably withheld.
Section 17. Duration of Agreement. This Agreement shall be unaffected by the termination of
the Corporate Status of the Indemnitee and shall continue for so long as the Indemnitee may have
any liability or potential liability by virtue of his Corporate Status, including, without
limitation, the final termination of all pending Proceedings in respect of which the Indemnitee is
granted rights of indemnification or advancement of Expenses hereunder and of any Proceeding
commenced by the Indemnitee pursuant to Section 10 of this Agreement relating thereto,
whether or not he is acting or serving in 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 hereto and their
respective successors (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company),
assigns, spouses, heirs, executors and personal and legal representatives.
Section 18. Remedies of the Company. The Company hereby covenants and agrees to submit any
and all disputes relating to this Agreement that the parties are unable to resolve between
themselves to binding arbitration pursuant to the rules of the American Arbitration Association,
and waives all rights to judicial adjudication of any matter or dispute relating to this Agreement,
except where judicial adjudication is requested or required by the Indemnitee.
Section 19. Limitation of Liability. Notwithstanding any other provision of this Agreement,
neither party shall have any liability to the other for, and neither party shall be entitled to
recover from the other, any consequential, special, punitive, multiple or exemplary damages as a
result of a breach of this Agreement.
Section 20. Subrogation. 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 the Indemnitee, who
shall execute all papers required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
Section 21. Definitions. For purposes of this Agreement:
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(a) “Affiliate” means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such Person. For purposes
hereof, “control” (including, with correlative meaning, the terms “controlling”, “controlled by”
and “under common control with”) means the possession, directly or indirectly, of the power to
direct or cause the direction of management and policies of such Person, by contract or otherwise
(b) “Another Enterprise” means any corporation (other than the Company), partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of which
the Indemnitee is serving at the request of the Company or any of its Affiliates as an officer,
director, employee, agent, fiduciary or trustee or in a similar capacity.
(c) “Change of Control” shall mean the occurrence of any one or more of the following:
(i) Change in Board Composition. Individuals who constitute the members of the board
of directors of the Company (the “Board”) as of the date hereof (the “Incumbent
Directors”), cease for any reason to constitute at least a majority of members of the Board;
provided that any individual becoming a director of the Company subsequent to the date
hereof shall be considered an Incumbent Director if such individual’s appointment, election or
nomination was approved by a vote of at least 50% of the Incumbent Directors; provided
further that any such individual whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election of members of the Board or other
actual or threatened solicitation of proxies or contests by or on behalf of a “person” (within the
meaning of Sections 13(d) and 14(d) of the Exchange Act) other than the Board, including by reason
of agreement intended to avoid or settle any such actual or threatened contest or solicitation,
shall not be considered an Incumbent Director;
(ii) Business Combination. Consummation of (x) a reorganization, merger,
consolidation, share exchange or other business combination involving the Company or any of its
subsidiaries or the disposition of all or substantially all the assets of the Company, whether in
one or a series of related transactions, or (y) the acquisition of assets or stock of another
entity by the Company (either, a “Business Combination”), excluding, however, any Business
Combination pursuant to which: (A) individuals who were the “beneficial owners” (as such term is
defined in Rule 13d-3 under the Exchange Act), respectively, of the then outstanding shares of
common stock of the Company (the “Outstanding Stock”) and the combined voting power of the
then outstanding securities entitled to vote generally in the election of directors of the Company
(the “Outstanding Company Voting Securities”) immediately prior to such Business
Combination beneficially own, upon consummation of such Business Combination, directly or
indirectly, more than 50% of the then outstanding shares of common stock (or similar securities or
interests in the case of an entity other than a
11
corporation) and more than 50% of the combined voting power of the then outstanding securities (or
interests) entitled to vote generally in the election of directors (or in the selection of any
other similar governing body in the case of an entity other than a corporation) of the Surviving
Corporation (as defined below) in substantially the same proportions as their ownership of the
Outstanding Stock and Outstanding Company Voting Securities, immediately prior to the consummation
of such Business Combination (that is, excluding any outstanding voting securities of the Surviving
Corporation that such beneficial owners hold immediately following the consummation of the Business
Combination as a result of their ownership prior to such consummation of voting securities of any
company or other entity involved in or forming part of such Business Combination other than the
Company); (B) no person (other than the Company, any subsidiary of the Company, any employee
benefit plan of the Company or any of its subsidiaries or any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any subsidiary of the Company) or group
(as such term is defined in Rule 13d-3 under the Exchange Act) becomes the beneficial owner of 20%
or more of either (1) the then outstanding shares of common stock (or similar securities or
interests in the case of entity other than a corporation) of the Surviving Corporation, or (2) the
combined voting power of the then outstanding securities (or interests) entitled to vote generally
in the election of directors (or in the selection of any other similar governing body in the case
of an entity other than a corporation); and (C) individuals who were Incumbent Directors at the
time of the execution of the initial agreement or of the action of the Board providing for such
Business Combination constitute at least a majority of the members of the board of directors (or of
any similar governing body in the case of an entity other than a corporation) of the Surviving
Corporation; where for purposes of this subsection (ii), the term “Surviving Corporation”
means the entity resulting from a Business Combination or, if such entity is a direct or indirect
subsidiary of another entity, the entity that is the ultimate parent of the entity resulting from
such Business Combination;
(iii) Stock Acquisition. Any person (other than the Company, any subsidiary of the
Company, any employee benefit plan of the Company or any of its subsidiaries or any trustee or
other fiduciary holding securities under an employee benefit plan of the Company or any subsidiary
of the Company) or group becomes the beneficial owner of 20% or more of either (x) the Outstanding
Stock or (y) the Outstanding Company Voting Securities; provided, however, that for
purposes of this subsection (iii), no Change of Control shall be deemed to have occurred as a
result of any acquisition directly from the Company; or
(iv) Liquidation. Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company (or, if no such approval is required, the consummation of
such a liquidation or dissolution).
(d) “Corporate Status” describes the status of an individual who is or was director or
officer of the Company or any of the Company’s Affiliates, or is or was serving at the request of
the Company or any of its Affiliates as an officer, director, employee, agent, fiduciary or trustee
or in a similar capacity of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise.
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(e) “Disinterested Director” means a director of the Company who is not and was not a
party to, or otherwise involved in, the Proceeding for which indemnification is sought by the
Indemnitee.
(f) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(g) “Expenses” shall include all reasonable attorneys’ 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 and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness in a Proceeding.
(h) “Independent Counsel” means a law firm or a member of a law firm that is
experienced in matters of corporation law and such law firm neither presently is, nor in the past
five years has been, retained to represent: (i) the Company or the Indemnitee in any matter
material to either such party or (ii) any other party to the Proceeding giving rise to a claim for
indemnification 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 the Indemnitee in an action
to determine the Indemnitee’s rights under this Agreement.
(i) “Person” means a natural person, firm, partnership, joint venture, association,
corporation, company, limited liability company, trust, business trust, estate or other entity.
(j) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative (including on appeal).
Section 22. Non-Exclusivity. The Indemnitee’s rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other
rights to which the Indemnitee may at any time be entitled under applicable law, the Company’s
Certificate of Incorporation, the Company’s Bylaws, any other agreement, a vote of stockholders, a
resolution of directors or otherwise.
Section 23. Remedies Not Exclusive. No right or remedy herein conferred upon the Indemnitee
is intended to be exclusive of any other right or remedy, and every other right or remedy shall be
cumulative of and in addition to the rights and remedies given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy of
the Indemnitee hereunder or otherwise shall not be deemed an election of remedies on the part of
the Indemnitee and shall not prevent the concurrent assertion or employment of any other right or
remedy by the Indemnitee.
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Section 24. Changes in Law. In the event that a change in applicable law after the date of
this Agreement, whether by statute, rule or judicial decision, expands or otherwise increases the
right or ability of a Delaware corporation to indemnify (or to otherwise pay or advance Expenses as
to any Proceeding for the benefit of) a member of its board of directors or an officer, the
Indemnitee shall, by this Agreement, enjoy the greater benefits so afforded by such change. In the
event that a change in applicable law after the date of this Agreement, whether by statute, rule or
judicial decision, narrows or otherwise reduces the right or ability of a Delaware corporation to
indemnify (or to otherwise pay or advance Expenses as to any Proceeding for the benefit of) a
member of its board of directors or an officer, such change shall have no effect on this Agreement
or any of the Indemnitee’s rights hereunder, except and only to the extent required by law.
Section 25. Interpretation of Agreement; Negligence. The Company and the Indemnitee
acknowledge and agree that it is their intention that this Agreement be interpreted and enforced so
as to provide indemnification to the Indemnitee to the fullest extent now or hereafter permitted by
law. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY AND THE INDEMNITEE EACH HEREBY
EXPRESSLY ACKNOWLEDGES AND AGREES THAT (A) THE INDEMNIFICATION PROVIDED UNDER THIS AGREEMENT SHALL
EXTEND TO AND INCLUDE, BUT SHALL NOT BE LIMITED TO, INDEMNIFICATION FOR EXPENSES, JUDGMENTS,
PENALTIES, FINES AND AMOUNTS PAID IN SETTLEMENT ARISING, IN WHOLE OR IN PART, OUT OF THE SOLE OR
CONCURRENT NEGLIGENCE OF THE INDEMNITEE AND (B) THIS SECTION 25 CONSTITUTES A CONSPICUOUS
NOTICE OF SUCH AGREEMENT FOR ALL PURPOSES.
Section 26. 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, without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision or
provisions will be deemed reformed to the extent necessary to conform to applicable law and to give
maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, 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 by the provision or provisions held invalid, illegal or unenforceable.
Section 27. Governing Law; Jurisdiction and Venue; Specific Performance.
(a) The parties agree that this Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Delaware without giving effect to any choice or
conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Delaware.
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(b) EXCEPT AS PROVIDED IN SECTION 10 AND SECTION 18 OF THIS AGREEMENT, ANY
“ACTION OR PROCEEDING” (AS SUCH TERM IS DEFINED BELOW) ARISING OUT OF OR RELATING TO THIS AGREEMENT
SHALL BE FILED IN AND LITIGATED SOLELY BEFORE THE COURT OF CHANCERY OF THE STATE OF DELAWARE, AND
EACH PARTY TO THIS AGREEMENT: (i) EXCEPT AS PROVIDED IN SECTION 10 AND SECTION 18
OF THIS AGREEMENT, GENERALLY AND UNCONDITIONALLY ACCEPTS THE EXCLUSIVE JURISDICTION OF THE
AFORESAID COURT AND VENUE THEREIN, AND WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY DEFENSE OR
OBJECTION TO SUCH JURISDICTION AND VENUE BASED UPON THE DOCTRINE OF “FORUM NON CONVENIENS;” AND
(ii) GENERALLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
BY DELIVERY OF CERTIFIED OR REGISTERED MAILING OF THE SUMMONS AND COMPLAINT IN ACCORDANCE WITH THE
NOTICE PROVISIONS OF THIS AGREEMENT. FOR PURPOSES OF THIS SECTION, THE TERM “ACTION OR PROCEEDING”
IS DEFINED AS ANY AND ALL CLAIMS, SUITS, ACTIONS, HEARINGS, ARBITRATIONS OR OTHER SIMILAR
PROCEEDINGS, INCLUDING APPEALS AND PETITIONS THEREFROM, WHETHER FORMAL OR INFORMAL, GOVERNMENTAL OR
NON-GOVERNMENTAL, OR CIVIL OR CRIMINAL. THE FOREGOING CONSENT TO JURISDICTION SHALL NOT CONSTITUTE
GENERAL CONSENT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE FOR ANY PURPOSE EXCEPT AS PROVIDED
ABOVE, AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON ANY PERSON OTHER THAN THE PARTIES TO THIS
AGREEMENT.
(c) The Company acknowledges that the Indemnitee may, as a result of the Company’s breach of
its covenants and obligations under this Agreement, sustain immediate and long-term substantial and
irreparable injury and damage which cannot be reasonably or adequately compensated by damages at
law. Consequently, the Company agrees that the Indemnitee shall be entitled, in the event of the
Company’s breach or threatened breach of its covenants and obligations hereunder, to obtain
equitable relief from a court of competent jurisdiction, including enforcement of each provision of
this Agreement by specific performance and/or temporary, preliminary and/or permanent injunctions
enforcing any of the Indemnitee’s rights, requiring performance by the Company, or enjoining any
breach by the Company, all without proof of any actual damages that have been or may be caused to
the Indemnitee by such breach or threatened breach and without the posting of bond or other
security in connection therewith. The Company waives the claim or defense therein that the
Indemnitee has an adequate remedy at law, and the Company shall not allege or otherwise assert the
legal position that any such remedy at law exists. The Company agrees and acknowledges that: (i)
the terms of this Section 27(c) are fair, reasonable and necessary to protect the
legitimate interests of the Indemnitee; (ii) this waiver is a material inducement to the Indemnitee
to serve and continue to serve as a director or officer of the Company and in any other
Corporate Status capacity; and (iii) the Indemnitee relied upon this waiver in entering into
this Agreement and will continue to rely on this waiver in its future dealings with the
15
Company. The Company represents and warrants that it has reviewed this provision with its legal
counsel, and that it has knowingly and voluntarily waived its rights referenced in this Section
27 following consultation with such legal counsel.
Section 28. Nondisclosure of Payments. Except as expressly required by Federal securities or
tax laws, the Company shall not disclose any payments under this Agreement without the prior
written consent of the Indemnitee. Any payments to the Indemnitee that must be disclosed shall,
unless otherwise required by law, be described only in the Company proxy or information statements
relating to special and/or annual meetings of the Company’s stockholders, and the Company shall
afford the Indemnitee a reasonable opportunity to review all such disclosures and, if requested by
the Indemnitee, to explain in such statement any mitigating circumstances regarding the events
reported.
Section 29. Notice by the Indemnitee; Notice to Insurers.
(a) The Indemnitee agrees to promptly notify the Company in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of Expenses covered
hereunder; provided, however, that the failure of the Indemnitee to timely provide
such notice shall not affect the Indemnitee’s right to be indemnified or to receive advancement of
Expenses under this Agreement except if, and then only to the extent that, the Company is actually
prejudiced by such failure.
(b) If, at the time of the receipt by the Company of a notice of a Proceeding pursuant to
Section 29(a) above, the Company has insurance in effect which may cover such Proceeding,
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.
Section 30. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if (a) delivered by hand and received for
by the party to whom said notice or other communication shall have been directed, (b) mailed by
U.S. certified or registered mail with postage prepaid, on the third business day after the date on
which it is so mailed, or (c) sent via facsimile or electronic mail transmission (with electronic
or telephonic confirmation of receipt): (i) If to the Company: GulfMark Offshore, Inc., 00000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Facsimile: [insert fax number], Email: [insert
email address], Attention: [Secretary]; and (ii) if to any other party hereto, including the
Indemnitee, to the address of such party set forth on the signature page hereof; or to such other
address as may have been furnished by any party to the other(s), in accordance with this
Section 30.
Section 31. Modification and Waiver. No supplement, modification or amendment of this
Agreement or any provision hereof shall limit or restrict in any way
16
any right of the Indemnitee under this Agreement with respect to any action taken or omitted by the
Indemnitee in his Corporate Status prior to such supplement, modification or amendment. No
supplement, modification or amendment of this Agreement or any provision hereof shall be binding
unless executed in writing by both of the Company and the Indemnitee. No waiver of any provision
of this Agreement shall be deemed or shall constitute a wavier of any other provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 32. Entire Agreement. This Agreement embodies the final, entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes any and all prior
negotiations, commitments, agreements, representations and understandings, whether written or oral,
relating to such subject matter and may not be contradicted or varied by evidence of prior,
contemporaneous or subsequent oral agreements or discussions of the parties hereto.
Section 33. Headings. The headings of the Sections or 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 thereof.
Section 34. Gender. Use of the masculine pronoun in this Agreement shall be deemed to include
usage of the feminine pronoun where appropriate.
Section 35. Identical Counterparts. This Agreement may be executed in one or more
counterparts (whether by original, photocopy or facsimile signature), 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 executed by the party against whom enforcement is sought must
be produced to evidence the existence of this Agreement.
Section 36. (a) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the
business or assets of the Company, by agreement in form and substance satisfactory to Indemnitee
and his counsel, expressly to 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.
(b) This Agreement is personal in nature and neither of the parties hereto will, without the
consent of the other, assign or delegate this Agreement or any rights or obligations hereunder
except as expressly provided in Section 36(a). Without limiting the generality or effect
of the foregoing, Indemnitee’s right to receive payments hereunder will not be assignable, whether
by pledge, creation of a security interest or otherwise, other than by a transfer by Indemnitee’s
will or by the laws of descent and distribution, and, in the event of any attempted assignment or
transfer contrary to this Section 36(b), the Company will have no liability to pay any
amount so attempted to be assigned or transferred.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day
and year first above written.
GULFMARK OFFSHORE, INC.,
By: |
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Name: |
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Title: |
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[INDEMNITEE],
Address: |
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