EXHIBIT 10.1
INDEMNITY AGREEMENT
This Agreement is made as of ________________, 1997, by and
between Omni Energy Services Corp., a Louisiana corporation (the
"Corporation"), and _______________ ("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/officer] 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 mean any expenses or costs (including,
without limitation, attorney's fees, judgments, punitive or exemplary damages,
fines and amounts paid in settlement). If any of the foregoing amounts paid on
behalf of Indemnitee are not deductible by Indemnitee for federal or state
income tax purposes, the Corporation will reimburse Indemnitee for tax liability
with respect thereto by paying to Indemnitee an amount which, after taking into
account taxes on such amount, equals Indemnitee's incremental tax liability.
(b) The term "Claim" shall mean any threatened, pending or completed
claim, action, suit, or proceeding, whether civil, criminal, administrative or
investigative and whether made judicially or extra-judicially, or any separate
issue or matter therein, as the context requires.
(c) The term "Determining Body" shall mean (i) those members of the
Board of Directors who are not named as parties to the Claim for which
indemnification is being sought ("Impartial Directors"), if there are at least
three Impartial Directors, or (ii) a committee of at least three directors
appointed by the Board of Directors (regardless whether the members of the Board
of Directors voting on such appointment are Impartial Directors) and composed of
Impartial Directors or (iii) if there are fewer than three Impartial Directors
or if the Board of Directors or a committee appointed thereby so directs
(regardless whether the members thereof are Impartial Directors), independent
legal counsel, which may be the regular outside counsel of the Corporation.
3. LIMITATION OF LIABILITY.
To the fullest extent permitted by Article VIII of the Articles of
Incorporation of the Corporation in effect on the date hereof and, if and to the
extent such Article VIII is amended to permit further limitations, in effect at
any time prior to the determination of liability that would exist but for the
provisions of this Agreement, Indemnitee shall not be liable for breach of his
fiduciary duty as a director or officer.
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4. MAINTENANCE OF INSURANCE AND SELF-INSURANCE.
(a) The Corporation represents that it presently main-tains in force
and effect the following directors and officers liability insurance ("D&O
Insurance") policies (the "Insurance Policies"):
Insurer Policy No. Coverage
Subject only to the provisions of Section 4(b) hereof, the Corpo-ration hereby
agrees that, so long as Indemnitee shall continue to serve as a [director or
officer] (or shall continue at the request of the Corporation to serve in any
capacity referred to in Section 5(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, provided that the Corporation shall have no
obligation to provide primary coverage in excess of $_____ million or excess
coverage in excess of $_____ million.
(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 judg-ment 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 4(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.
5. 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 4
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 or officer of the Corporation
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(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 (i) the Indemnitee is successful in his
defense of the Claim on the merits or otherwise or (ii) the Indemnitee has been
found by the Determining Body (acting in good faith) to have met the Standard of
Conduct; provided that (a) the amount of Expenses for which the Corporation
shall indemnify Indemnitee may be reduced by the Determining Body to such amount
as it deems proper if it determines in good faith that the Claim involved the
receipt of a personal benefit by Indemnitee and (b) no indemnification shall be
made in respect of any Claim as to which Indemnitee shall have been adjudged by
a court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable for willful or intentional misconduct in the performance of his duty
to the Corporation or to have obtained an improper personal benefit, unless, and
only to the extent that, a court 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; and provided further that, if the Claim involves
Indemnitee by reason of his position with an entity or enterprise described in
clause (ii) or (iii) of this Section 5(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 has
applied to such entity or enterprise for indemnification with respect to the
Claim and (y) to the extent that indemnification to which he would be entitled
hereunder but for this proviso exceeds the indemnification paid by such other
entity or enterprise.
(b) For purposes of this Agreement, the Standard of Conduct is met
when conduct by an Indemnitee with respect to which a Claim is asserted was
conduct that he reasonably believed to be in, or not opposed to, the best
interest of the Corporation, and, in the case of a Claim which is a criminal
action or proceeding, conduct that the Indemnitee had no reasonable cause to
believe was unlawful. The termination of any Claim 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 meet the
Standard of Conduct.
(c) Promptly upon becoming aware of the existence of any Claim,
Indemnitee shall notify the Chief Executive Officer of the existence of the
Claim, who shall promptly advise the members of the Board of Directors and that
establishing the Determining Body will be a matter presented at the next
regularly scheduled meeting of the Board of Directors. After the Determining
Body has been established the Chief Executive Officer shall inform Indemnitee
thereof and Indemnitee shall immediately notify the Determining Body of all
facts relevant to the Claim known to such Indemnitee. Within 60 days of the
receipt of such notice and information, together with such additional
information as the Determining Body may request of Indemnitee, the Determining
Body shall report to Indemnitee of its determination whether Indemnitee has met
the Standard of Conduct. The Determining Body may extend the period of time
for determining whether the Standard of
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Conduct has been met, but in no event shall such period of time be extended
beyond an additional sixty days.
(d) If, after determining that the Standard of Conduct has been met,
the Determining Body obtains facts of which it was not aware at the time it made
such determination, the Determining Body on its own motion, after notifying
Indemnitee and providing him an opportunity to be heard, may, on the basis of
such facts, revoke such determination, provided that, in the absence of actual
fraud by Indemnitee, no such revocation may be made later than thirty days after
final disposition of the Claim.
(e) Indemnitee shall promptly inform the Determining Body upon his
becoming aware of any relevant facts not theretofore provided by him to the
Determining Body, unless the Determining Body has obtained such facts by other
means.
(f) In the case of any Claim not involving a proposed, threatened or
pending criminal proceeding,
(i) if Indemnitee has, in the good faith judgment of the
Determining Body, met the Standard of Conduct, the Corporation may, in its sole
discretion, assume all responsibility for the defense of the Claim, and, in any
event, the Corporation and Indemnitee each shall keep the other informed as to
the progress of the defense of the Claim, including prompt disclosure of any
proposals for settlement; provided that if the Corporation is a party to the
Claim and Indemnitee reasonably determines that there is a conflict between the
positions of the Corporation and Indemnitee with respect to the Claim, then
Indemnitee shall be entitled to conduct his defense with counsel of his choice;
and provided further that Indemnitee shall in any event be entitled at his
expense to employ counsel chosen by him to participate in the defense of the
Claim; and
(ii) the Corporation shall fairly consider any proposals by
Indemnitee for settlement of the Claim. If the Corporation proposes a settlement
of the Claim and such settlement is acceptable to the person asserting the Claim
or the Corporation believes a settlement proposed by the person asserting the
Claim should be accepted, it shall inform Indemnitee of the terms of such
proposed settlement and shall fix a reasonable date by which Indemnitee shall
respond. If Indemnitee agrees to such terms, he shall execute such documents as
shall be necessary to make final the settlement. If Indemnitee does not agree
with such terms, Indemnitee may proceed with the defense of the Claim in any
manner he chooses, provided that if Indemnitee is not successful on the merits
or otherwise, the Corporation's obligation to indemnify such Indemnitee as to
any Expenses incurred following his disagreement shall be limited to the lesser
of (A) the total Expenses incurred by Indemnitee following his decision not to
agree to such proposed settlement or (B) the amount that the Corporation would
have paid pursuant to the terms of the proposed settlement. If, however, the
proposed settlement would impose upon Indemnitee any requirement to act or
refrain from acting that would materially interfere with the conduct of
Indemnitee's affairs, Indemnitee shall be permitted to refuse such settlement
and proceed with the defense of the Claim, if he so desires, at
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the Corporation's expense in accordance with the terms and conditions of this
Agreement without regard to the limitations imposed by the immediately preceding
sentence. In any event, the Corporation shall not be obligated to indemnify
Indemnitee for an amount paid in a settlement that the Corporation has not
approved.
(g) In the case of a Claim involving a proposed, threatened or
pending criminal proceeding, Indemnitee shall be entitled to conduct the defense
of the Claim and to make all decisions with respect thereto, with counsel of his
choice; provided that the Corporation shall not be obligated to indemnify
Indemnitee for an amount paid in settlement that the Corporation has not
approved.
(h) After notification to the Corporation of the ex-istence of a
Claim, Indemnitee may from time to time request of the Chief Executive Officer
or, if the Chief Executive Officer is a party to the Claim as to which
indemnification is being sought, any officer who is not a party to the Claim and
who is designated by the Chief Executive Officer (the "Disbursing Officer"),
which designation shall be made promptly after receipt of the initial request,
that the Corporation advance to Indemnitee the Expenses (other than fines,
penalties, judgments or amounts paid in settlement) that he incurs in pursuing a
defense of the Claim prior to the time that the Determining Body determines
whether the Standard of Conduct has been met. The Disbursing Officer shall pay
to Indemnitee the amount requested (regardless of Indemnitee's apparent ability
to repay the funds) upon receipt of an undertaking by or on behalf of Indemnitee
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation under the circumstances, provided
that if the Disbursing Officer does not believe such amount to be reasonable, he
shall advance the amount deemed by him to be reasonable and Indemnitee may apply
directly to the Determining Body for the remainder of the amount requested.
(i) After a determination that the Standard of Conduct has been met,
for so long as and to the extent that the Corporation is required to indemnify
Indemnitee under this Agreement, the provisions of Paragraph (h) shall continue
to apply with respect to Expenses incurred after such time except that (i) no
undertaking shall be required of Indemnitee and (ii) the Disbursing Officer
shall pay to Indemnitee the amount of any fines, penalties or judgments against
him which have become final for which the Corporation is obligated to indemnify
him or any amount of indemnification ordered to be paid to him by a court.
(j) Any determination by the Corporation with respect to settlement
of a Claim shall be made by the Determining Body.
(k) The Corporation and Indemnitee shall keep confidential to the
extent permitted by law and their fiduciary obligations all facts and
determinations provided pursuant to or arising out of the operation of this
Agreement and the Corporation and Indemnitee shall instruct its or his agents
and employees to do likewise.
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6. ENFORCEMENT.
(a) The rights provided by this Agreement shall be en-
forceable 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 prorated.
(c) In any judicial proceeding described in this Sec-tion 6, the
Corporation shall bear the burden of proving that Indemnitee is not entitled to
Expenses sought with respect to any Claim.
7. SAVING CLAUSE. If any provision of this Agreement is determined by a
court having jurisdiction over the matter to re-quire 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.
8. 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, by-law, authorization of shareholders or directors, agreement
or otherwise.
(b) It is the intent of the Corporation by this Agree-ment to
indemnify and hold harmless Indemnitee to the fullest ex-tent 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.
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9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
10. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana.
11. 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.
12. 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.
13. 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.
OMNI ENERGY SERVICES CORP.
By:
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Name:
Office:
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Name:
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