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INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the 31st
day of May, 1996, by and between Global Industries, Ltd., a Louisiana
corporation (the "Company"), and______________________ (the "Indemnitee").
RECITALS
A. The Indemnitee is presently serving as a director and/or an
officer of the Company and/or, at the request of the Company, in an Authorized
Capacity (as defined below) of or for Another Entity (as defined below). The
Company desires the Indemnitee to continue in such capacity. The Company
believes that the Indemnitee's undertaking or continued undertaking of such
responsibilities is important to the Company and that the protection afforded
by this Agreement will enhance the Indemnitee's ability to discharge such
responsibilities under existing circumstances. The Indemnitee is willing,
subject to certain conditions including without limitation the execution and
performance of this Agreement by the Company and the Company's agreement to
provide the Indemnitee at all times the broadest and most favorable (to
Indemnitee) indemnification permitted by applicable law (whether by legislative
action or judicial decision), to continue in that capacity.
B. In addition to the indemnification to which the Indemnitee is
entitled under the Restated Articles of Incorporation of the Company (the
"Articles") and the By-Laws of the Company, as amended (the "By-Laws"), the
Company may obtain insurance protecting its officers and directors and certain
other persons (including the Indemnitee) against certain losses arising out of
actual or threatened actions, suits or proceedings to which such persons may be
made or threatened to be made parties ("D&O Insurance"). The Company, however,
may be unable to obtain such insurance, and, if obtained, there can be no
assurance as to the continuation or renewal thereof, or that any such insurance
will provide coverage for losses to which the Indemnitee may be exposed and for
which he or she may be permitted to be indemnified under the Louisiana Business
Corporation Law (the "LBCL").
Now, therefore, for and in consideration of the premises, the mutual
promises hereinafter set forth, the reliance of the Indemnitee hereon in
continuing to serve the Company or Another Entity in his or her present
capacity and in undertaking to serve the Company or Another Entity in any
additional capacity or capacities, the Company and the Indemnitee agree as
follows:
1. CONTINUED SERVICE. The Indemnitee will serve or continue to
serve as a director or an officer of the Company or in each such Authorized
Capacity of or for Another Entity, in each case so long as he or she is duly
elected and qualified to serve in such capacity or until he or she resigns or
is removed. The Indemnitee may at any time and for any reason resign from such
position (subject to any contractual obligations which Indemnitee shall have
assumed apart from this Agreement) and neither the Company nor any affiliate of
the Company shall have any obligation under this Agreement to continue the
Indemnitee in any such position.
2. INITIAL INDEMNITY. (a) The Company will indemnify the
Indemnitee when he or she was or is involved in any manner (including without
limitation as a party or as a deponent or witness) or is threatened to be made
so involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, formal or informal,
and any appeals therefrom (a "Proceeding") (other than a Proceeding by or in
the right of the Company), by reason of the fact that he or she is or was or
had agreed to become a director, officer, employee or agent of the Company, or
is or was serving or had agreed to serve at the request of the Company as a
director, officer, partner, member, trustee, employee or agent (each an
"Authorized Capacity") of another business, foreign or nonprofit corporation,
partnership, joint venture, trust or other enterprise (each "Another Entity"),
or by reason of any action alleged to have been taken or omitted in such
capacity, against any and all costs, charges and expenses (including attorneys'
and others' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such Proceeding if the
Indemnitee acted in good faith and in a manner that he or she reasonably
believed to be in, or not opposed to, the best interests of the Company, and,
with respect
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to any criminal Proceeding, the Indemnitee had no reasonable cause to believe
his or her conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent will not, of itself, adversely affect the right of the
Indemnitee to indemnification or create a presumption that the Indemnitee did
not meet the foregoing standard of conduct to the extent applicable thereto.
(b) The Company will indemnify the Indemnitee when he or she was
or is involved in any manner (including without limitation as a party, deponent
or witness) or is threatened to be made so involved in any Proceeding by or in
the right of the Company to procure a judgment in its favor by reason of the
fact that he or she is or was or had agreed to become a director, officer,
employee or agent of the Company, or is or was serving or had agreed to serve
at the request of the Company in an Authorized Capacity of or for Another
Entity, against any and all costs, charges and expenses (including attorneys'
and others' fees), and amounts paid in settlement not exceeding, in the
judgment of the Board of Directors, the estimated expense of litigating the
Proceeding to conclusion, actually and reasonably incurred by him or her in
connection with the defense or settlement of such Proceeding if the Indemnitee
acted in good faith and in a manner that he or she reasonably believed to be in
or not opposed to the best interests of the Company, except that no
indemnification will be made in respect of any claim, issue or matter as to
which the Indemnitee shall have been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefor, to be liable for
willful or intentional misconduct in the performance of his or her duty to the
Company unless, and only to the extent, that the court in which the Proceeding
was brought determines upon application that, despite the adjudication of
liability but in view of all circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such costs, charges and
expenses which the court deems proper.
(c) To the extent that the Indemnitee has been successful on the
merits or otherwise, including without limitation the dismissal of a Proceeding
without prejudice, in the defense of any Proceeding referred to in Section 2(a)
or Section 2(b) or in the defense of any claim, issue or matter in any such
Proceeding, the Company will indemnify him or her against any and all costs,
charges and expenses, including without limitation attorneys' and others' fees,
actually and reasonably incurred by him or her in connection therewith.
(d) Any indemnification under Section 2(a), Section 2(b) or
Section 2(c) (unless ordered by a court) will be made by the Company only as
authorized in the specific case upon a determination, in accordance with
Section 4, that such indemnification is proper in the circumstances because he
or she has met the applicable standards of conduct set forth in Section 2(a)
and Section 2(b) (the "Indemnification Standards"). Such determination will be
made in the manner set forth in Section 4(b).
(e) Any and all costs, charges and expenses, including without
limitation attorneys' and others' fees, actually and reasonably incurred by the
Indemnitee in defending any Proceeding will be paid by the Company as incurred
and in advance of the final disposition of such Proceeding in accordance with
the procedure set forth in Section 4(e).
(f) Notwithstanding anything in this Agreement to the contrary,
the Indemnitee will not be entitled to indemnification or advancement of
expenses pursuant hereto in connection with any Proceeding initiated by the
Indemnitee against the Company (except for any Proceeding initiated by the
Indemnitee pursuant to Section 6) unless the Company has joined in or consented
to the initiation of such Proceeding.
3. ADDITIONAL INDEMNIFICATION. (a) Pursuant to Section 12:83E of
the LBCL, without limiting any right which the Indemnitee may have under
Section 2, the Articles, the By-Laws, the LBCL, any policy of insurance or
otherwise, but subject to the limitations set forth in Section 2(f) and to any
maximum permissible indemnity that may exist under applicable law at the time
of any request for indemnity hereunder as contemplated by this Section 3(a),
the Company will indemnify the Indemnitee against any amount which he or she is
or becomes legally obligated to pay relating to or arising out of any claim
made against him or her because of any act, failure to act or neglect or breach
of duty, including any actual or alleged error, omission, misstatement or
misleading statement, which he or she commits, suffers, permits or acquiesces
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in while acting in his or her capacity as a director or officer of the Company,
or, at the request of the Company, in an Authorized Capacity of or for Another
Entity. The payments which the Company is obligated to make pursuant to this
Section 3 will include without limitation damages, judgments, amounts paid in
settlement, fines and reasonable charges, costs, expenses, including attorneys'
fees, expenses of investigation, preparation, defense and settlement of
Proceedings, and expenses of appeal, attachment or similar bonds; provided,
however, that the Company will not be obligated under this Section 3(a) to make
any payment in connection with any claim against the Indemnitee:
(i) to the extent of any fine or similar governmental
imposition which the Company is prohibited by applicable law from
paying and which results from a final, nonappealable order; or
(ii) to the extent based upon or attributable to the
Indemnitee gaining in fact a personal profit to which he or she was
not legally entitled, including without limitation profits made from
the purchase and sale of equity securities of the Company which are
recoverable by the Company pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and profits
arising from transactions in securities which were effected in
violation of Section 10(b) or Section 14(e) of the Exchange Act,
including Rule 10b-5 or Rule 14e-3 promulgated thereunder; or
(iii) to the extent such claim is the result of the
Indemnitees's willful or intentional misconduct.
The determination of whether the Indemnitee is entitled to indemnification
under this Section 3(a) shall be made in accordance with Section 4(b).
(b) Any and all costs, charges and expenses, including without
limitation attorneys' and others' fees, actually and reasonably incurred by the
Indemnitee in connection with any claim for which the Indemnitee may be
entitled to indemnification pursuant to Section 3(a) will be paid by the
Company as incurred and in advance of the final disposition thereof in
accordance with the procedure set forth in Section 4(e).
4. CERTAIN PROCEDURES RELATING TO INDEMNIFICATION AND ADVANCEMENT
OF EXPENSES. (a) Except as otherwise permitted or required by the LBCL, for
purposes of pursuing his or her rights to indemnification under Section 2(a),
Section 2(b), Section 2(c) or Section 3(a), as the case may be, the Indemnitee
shall submit to the Company (to the attention of the Secretary) a statement of
request for indemnification substantially in the form of Exhibit 1 attached
hereto (the "Indemnification Statement") stating that he or she believes that
he or she is entitled to indemnification pursuant to this Agreement, together
with such documents supporting the request as are reasonably available to the
Indemnitee and are reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification hereunder (the "Supporting
Documentation"). Upon receipt of any Indemnification Statement the Company
will promptly advise the Board of Directors of the Company (the "Board") in
writing that the Indemnitee has requested indemnification.
(b) The Indemnitee's entitlement to indemnification under Section
2(a), Section 2(b), Section 2(c) or Section 3(a), as the case may be, will be
determined promptly following a claim by the Indemnitee for indemnification
thereunder, and in any event not more than 30 calendar days after receipt by
the Company of such Indemnification Statement and Supporting Documentation.
The Indemnitee's entitlement to indemnification under 2(a) or Section 2(b)
will, subject to the next sentence, be made in one of the following ways: (i)
by the Board by a majority vote of a quorum consisting of directors who are or
were not parties to such Proceeding or claim ("Disinterested Directors"), or
(ii) by written opinion of independent legal counsel selected by a majority of
the Disinterested Directors (or, if there are no Disinterested Directors or a
majority vote thereof is not obtainable, by a majority of the entire Board) and
to which the Indemnitee does not reasonably object, if a quorum of the Board
consisting of Disinterested Directors is not obtainable and the Board so
directs or, even if obtainable, the quorum of Disinterested Directors so
directs, or (iii) by the stockholders of the Company (but only if a majority of
Disinterested Directors, if they constitute a quorum of the Board, presents the
issue of entitlement to indemnification to the stockholders of the Company
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for their determination), or (iv) as deemed to have been determined in
accordance with Section 4(c). The Indemnitee's entitlement to indemnification
under Section 2(c), Section 3(a) or, in the event of a Change of Control (as
hereinafter defined), under Section 2(a) or Section 2(b) will be determined by
written opinion of independent legal counsel selected by the Indemnitee.
Independent legal counsel selected as described above will be a law firm or
member of a law firm (x) that neither at the time in question nor in the five
years immediately preceding such time has been retained to represent (A) the
Company (or any of its affiliates) or the Indemnitee in any matter material to
either such party or (B) any other party to the Proceeding or claim giving rise
to a claim for indemnification under this Agreement, (y) that, under the
applicable standards of professional conduct then prevailing under the law of
the State of Louisiana, would not be precluded from representing either the
Company or the Indemnitee in an action to determine the Indemnitee's rights
under this Agreement and (z) to which the Indemnitee or the Company, acting
therein through a majority of the Disinterested Directors or, if there are no
Disinterested Directors, by a majority of the entire Board, does not reasonably
object. If the Company or the Indemnitee reasonably objects to such
independent legal counsel the Company, acting therein as hereinbefore provided,
or the Indemnitee shall select another independent legal counsel subject to
similar reasonable objection until there is no further such objection to such
independent legal counsel. The Company will pay the fees and expenses of such
independent legal counsel.
(c) Submission of an Indemnification Statement and Supporting
Documentation to the Company pursuant to Section 4(b) will create a presumption
that the Indemnitee is entitled to indemnification under Section 2(a), Section
2(b), Section 2(c) or Section 3(a), as the case may be, and thereafter the
Company will have the burden of proof to overcome that presumption in reaching
a contrary determination. In any event, the Indemnitee will be deemed to be
entitled to indemnification under Section 2(a), Section 2(b), Section 2(c) or
Section 3(a) herein unless, within the 30-calendar day period following receipt
by the Company of such Indemnification Statement and Supporting Documentation,
the person or persons empowered under Section 4(b) to determine the
Indemnitee's entitlement to indemnification have been appointed and have made a
determination, based upon clear and convincing evidence (sufficient to rebut
the foregoing presumption), that the Indemnitee is not entitled to such
indemnification and the Indemnitee has received notice within such period in
writing of such determination. The foregoing notice shall (i) disclose with
particularity the evidence in support of such determination and (ii) be sworn
to by all persons who participated in the determination and voted to deny
indemnification or, if such determination was made by independent legal
counsel, include a signed copy of the related written opinion of such counsel.
The provisions of this Section 4(c) are intended to be procedural only; any
determination pursuant to this Section 4(c) that the Indemnitee is not entitled
to indemnification and any related failure to make the payments requested in
the Indemnification Statement will be subject to review as provided in Section
6.
(d) If a determination is made or deemed to have been made
pursuant to this Section 4 that the Indemnitee is entitled to indemnification,
the Company will pay to the Indemnitee the amounts to which the Indemnitee is
entitled within five business days after such determination of entitlement to
indemnification has been made or deemed to have been made.
(e) In order to obtain advancement of expenses pursuant to Section
2(e), the Indemnitee will submit to the Company a written undertaking
substantially in the form of Exhibit 2 attached hereto, executed personally or
on his or her behalf (the "Undertaking"), stating that (i) he or she has
incurred or will incur actual expenses in defending a Proceeding and (ii) if
and to the extent required by law at the time of such advance, he or she
undertakes to repay such amounts advanced as to which it may ultimately be
determined that the Indemnitee is not entitled. In order to obtain advancement
of expenses pursuant to Section 3(b), the Indemnitee may submit an Undertaking
or, if the Indemnitee chooses not to submit an Undertaking, shall submit such
other form of request as he or she determines to be appropriate (an "Expense
Request"). Upon receipt of an Undertaking or Expense Request, as the case may
be, the Company will within 5 calendar days make payment of the costs, charges
and expenses stated in the Undertaking or Expense Request. No security will be
required in connection with any Undertaking or Expense Request and any
Undertaking or Expense Request will be accepted, and all such payments shall be
made, without reference to the Indemnitee's ability to make repayment.
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5. DUPLICATION OF PAYMENTS. The Company will not be liable under
this Agreement to make any payment in connection with any claim made against
the Indemnitee to the extent the Indemnitee has actually received payment
(under any insurance policy, the Articles, the By-Laws, the LBCL or otherwise)
of the amount otherwise payable hereunder.
6. ENFORCEMENT. (a) If a claim for indemnification or
advancement of expenses made to the Company pursuant to Section 4 is not timely
paid in full by the Company as required by Section 4, the Indemnitee will be
entitled to seek judicial enforcement of the Company's obligations to make such
payments. If a determination is made pursuant to Section 4 that the Indemnitee
is not entitled to indemnification or advancement of expenses hereunder, (i)
the Indemnitee may at any time thereafter seek an adjudication of his or her
entitlement to such indemnification or advancement either, at the Indemnitee's
sole option, in (A) an appropriate court of the State of Louisiana or any other
court of competent jurisdiction or (B) an arbitration to be conducted by a
single arbitrator pursuant to the rules of the American Arbitration
Association, (ii) any such judicial proceeding or arbitration will be de novo
and the Indemnitee will not be prejudiced by reason of such prior adverse
determination, and (iii) in any such judicial proceeding or arbitration the
Company will have the burden of proving that the Indemnitee is not entitled to
indemnification or advancement of expenses under this Agreement.
(b) The Company will be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to the provisions of Section 6(a)
that the procedures and presumptions of this Agreement are not valid, binding
and enforceable and will stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
(c) In any action brought under Section 6(a), it will be a defense
to a claim for indemnification pursuant to Section 2(a) or Section 2(b) (but
not an action brought to enforce a claim for costs, charges and expenses
incurred in defending any Proceeding in advance of its final disposition where
the Undertaking, if any is required, has been tendered to the Company) that the
Indemnitee has not met the standards of conduct which make it permissible under
the LBCL for the Company to indemnify the Indemnitee for the amount claimed,
but the burden of proving such defense will be on the Company. Neither the
failure of the Company (including any person or persons empowered under Section
4(b) to determine the Indemnitee's entitlement to indemnification) to have made
a determination as to the propriety of indemnification of the Indemnitee
hereunder prior to commencement of such action nor an actual determination by
the Company (including any person or persons empowered under Section 4(b) to
determine the Indemnitee's entitlement to indemnification) that the Indemnitee
has not met the applicable standard of conduct hereunder will be a defense to
the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct.
(d) It is the intent of the Company that the Indemnitee shall not
be required to incur the expenses associated with the enforcement of his or her
rights under this Agreement by litigation or other legal action because the
cost and expense thereof would substantially detract from the benefits intended
to be extended to the Indemnitee hereunder. Accordingly, if it should appear
to the Indemnitee that the Company has failed to comply with any of its
obligations under this Agreement, or if the Company or any other person takes
any action to declare this Agreement void or unenforceable or institutes any
action, suit or proceeding designed (or having the effect of being designed) to
deny, or to recover from, the Indemnitee the benefits intended to be provided
to the Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee
from time to time to retain counsel of his or her choice, at the expense of the
Company as hereafter provided, to represent the Indemnitee in connection with
the initiation or defense of any litigation or other legal action, whether by
or against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any existing
or prior attorney-client relationship between the Company and such counsel, the
Company irrevocably consents to the Indemnitee's entering into an
attorney-client relationship with such counsel, and in that connection the
Company and the Indemnitee acknowledge that a confidential relationship will
exist between the Indemnitee and such counsel. Regardless of the outcome
thereof, the Company will pay and be solely responsible for any and all costs,
charges and expenses, including without limitation attorneys' and others' fees,
incurred by the Indemnitee (i) as a result of the Company's failure to perform
this Agreement or any provision hereof or (ii) as a result of the Company or
any person contesting the validity or enforceability of this Agreement or any
provision hereof as aforesaid.
7. LIABILITY INSURANCE AND FUNDING. If the Company obtains D&O
Insurance, the Company
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will use its best efforts, subject to commercial reasonability, to maintain
such insurance in force at the Company's sole expense. To the extent that the
Company obtains or maintains D&O Insurance, the Indemnitee will be covered by
such policy or policies, in accordance with its or their terms, to the maximum
extent of the coverage available for a director or officer of the Company or a
person serving at the request of the Company in an Authorized Capacity of or
for Another Entity, as the case may be. The Company may, but shall not be
required to, create a trust fund, grant a security interest or use other means
(including without limitation a letter of credit) to ensure the payment of such
amounts as may be necessary to satisfy its obligations to indemnify and advance
expenses pursuant to this Agreement.
8. FUNDAMENTAL CHANGE OR CHANGE OF CONTROL. (a) If the Company
sells or otherwise disposes of all or substantially all of its assets or is a
constituent corporation in a consolidation, merger or other business
combination transaction or if there is a Change of Control (as defined below)
of the Company, (i) the Company will require (if it is not the surviving,
resulting or acquiring corporation therein) the surviving, resulting or
acquiring corporation expressly to assume the Company's obligations under this
Agreement and to agree to indemnify the Indemnitee to the full extent provided
herein and (ii), whether or not the Company is the resulting, surviving or
acquiring corporation in any such transaction (or Change of Control), the
Indemnitee will also stand in the same position under this Agreement with
respect to the resulting, surviving or acquiring corporation as he or she would
have with respect to the Company if the transaction (or Change of Control) had
not occurred.
(b) The Company agrees that, if there is a Change of Control of the
Company (other than a Change of Control which has been approved by a majority
of the Company's Board who were directors immediately prior to such Change of
Control), then with respect to all matters thereafter arising concerning the
rights of the Indemnitee to indemnity payments and advancement of expenses
under this Agreement or any other agreement or Articles or Bylaw provision now
or hereafter in effect, the Company shall seek legal advice only from
independent legal counsel selected as provided in Section 4(b). Such counsel,
among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted
to be indemnified under applicable law. The Company agrees to pay the
reasonable fees of such independent legal counsel and to indemnify such counsel
fully against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(c) For purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) together with its affiliates, other than
Xxxxxxx X. Xxxx, together with his affiliates, or a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing [20%] or more of the total voting power represented by the
Company's then outstanding Voting Securities, or (ii) the individuals who
constitute the Board on the date of this Agreement (the "Incumbent Board")
cease for any reason to constitute at least a majority thereof (provided that
any person who becomes a director subsequent to the date of this Agreement
whose election or nomination for election by the Company's stockholders was
approved by a vote of at least 80% of the directors comprising the Incumbent
Board shall be considered as though such person were a member of the Incumbent
Board, (iii) or the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or (v) an
agreement for the sale or disposition by the Company of (in one transaction or
a series of transactions) all or substantially all the Company's assets.
9. PARTIAL INDEMNITY. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the costs, charges, expenses, judgments, fines and amounts paid in
settlement of a Proceeding but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for the portion thereof to
which the Indemnitee is entitled.
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10. NONEXCLUSIVITY AND SEVERABILITY. (a) The right to
indemnification and advancement of expenses provided by this Agreement is not
exclusive of any other right to which the Indemnitee may be entitled under the
Articles, the By-Laws, the LBCL, any other statute, insurance policy,
agreement, vote of stockholders or of directors or otherwise, both as to
actions in his or her official capacity and as to actions in another capacity
while holding such office, and will continue after the Indemnitee has ceased to
serve as a director or officer of the Company or in an Authorized Capacity in
or for Another Entity and will inure to the benefit of his or her heirs,
executors and administrators; provided, however, that to the extent the
Indemnitee otherwise would have any greater right to indemnification or
advancement of expenses under any provision of the Articles or By-Laws as in
effect on the date hereof, the Indemnitee will be deemed to have such greater
right pursuant to this Agreement; and, provided further, that inasmuch as it is
the intention of the Company to provide the Indemnitee with the broadest and
most favorable (to the Indemnitee) indemnity permitted by applicable law
(whether by legislative action or judicial decision), to the extent that the
LBCL currently permits or in the future permits (whether by legislative action
or judicial decision) any greater right to indemnification or advancement of
expenses than that provided under this Agreement as of the date hereof, the
Indemnitee will automatically, without the necessity of any further action by
the Company or the Indemnitee, be deemed to have such greater right pursuant to
this Agreement. Similarly, the Indemnitee shall have the benefit of any future
changes to the Articles or the By-Laws which grant or permit any greater right
to indemnification or advancement of expenses.
(b) The Company will not adopt any amendment to the Articles or
By-Laws the effect of which would be to deny, diminish or encumber the
Indemnitee's rights to indemnity pursuant to the Articles of Incorporation of
the Company, By-Laws, the LBCL or any other applicable law as applied to any
act or failure to act occurring in whole or in part prior to the date upon
which any such amendment was approved by the Board or the stockholders, as the
case may be. Notwithstanding the foregoing, in the event that the Company
adopts any amendment to the Articles or By-Laws the purported effect of which
is to so deny, diminish or encumber the Indemnitee's rights to such indemnity,
such amendment will apply only to acts or failures to act occurring entirely
after the effective date thereof.
(c) If any provision or provisions of this Agreement are held to
be invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation all portions of any paragraph of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) will
not in any way be affected or impaired thereby and (ii) to the fullest extent
possible, the provisions of this Agreement (including without limitation all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) will be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable. No claim
or right to indemnity or advancement of expenses pursuant to Section 3 hereof
shall in any way affect or limit any right which the Indemnitee may have under
Section 2 hereof, the Articles, the By-Laws, the LBCL, any policy of insurance
or otherwise.
11. GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Louisiana, without giving
effect to the principles of conflict of laws thereof.
12. MODIFICATION; SURVIVAL. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof; provided,
however, that this provision shall not be construed to affect the Company's
obligations to the Indemnitee under the Articles or the By-Laws. This
Agreement may be modified only by an instrument in writing signed by both
parties hereto. The provisions of this Agreement will survive the death,
disability, or incapacity of the Indemnitee or the termination of the
Indemnitee's service as a director or an officer of the Company or in an
Authorized Capacity of or for Another Entity and will inure to the benefit of
the Indemnitee's heirs, executors and administrators.
13. CERTAIN TERMS. For purposes of this Agreement, references to
a person's capacity as a "director" shall include without limitation such
person's capacity as a member of any committee appointed by the board of which
such person is a director; references to "Another Entity" will include employee
benefit plans; references to "fines" will include any excise taxes assessed on
the Indemnitee with respect to any employee benefit plan; and references to
"serving at the request of the Company" will include any service in any
capacity which imposes duties on, or involves services by, the Indemnitee with
respect to an employee benefit plan, its participants or beneficiaries;
references to Sections or Exhibits are to Sections or Exhibits
8
of or to this Agreement; references to the singular will include the plural and
vice versa; and if the Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan he or she will be deemed to have acted in a "manner
not opposed to the best interests of the Company" as referred to herein;
references to "Voting Securities" shall mean any securities of the Company
which vote generally in the election of directors.
14. JOINT DEFENSE. Notwithstanding anything to the contrary
contained herein, if (a) the Indemnitee elects to retain counsel in connection
with any Proceeding or claim in respect of which indemnification may be sought
by the Indemnitee against the Company pursuant to this Agreement and (b) any
other director or officer of the Company or person serving at the request of
the Company in an Authorized Capacity of or for Another Entity may also be
subject to liability arising out of such Proceeding or claim and in connection
with such Proceeding or claim seeks indemnification against the Company
pursuant to an agreement similar to this Agreement, the Indemnitee, together
with such other persons, will employ counsel to represent jointly the
Indemnitee and such other persons unless the Indemnitee determines that such
joint representation would be precluded under the applicable standards of
professional conduct then prevailing under the law of the State of Louisiana,
in which case the Indemnitee will notify the Company (to the attention of the
Secretary) thereof and will be entitled to be represented by separate counsel.
15. EXPRESS NEGLIGENCE ACKNOWLEDGMENT. WITHOUT LIMITING OR
ENLARGING THE SCOPE OF THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS
AGREEMENT, THE INDEMNITEE WILL BE ENTITLED TO INDEMNIFICATION HEREUNDER IN
ACCORDANCE WITH THE TERMS HEREOF, REGARDLESS OF WHETHER THE CLAIM GIVING RISE
TO SUCH INDEMNIFICATION OBLIGATION IS THE RESULT OF THE SOLE, CONCURRENT OR
COMPARATIVE NEGLIGENCE, OR STRICT LIABILITY, OF THE INDEMNITEE.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
GLOBAL INDUSTRIES, LTD.
By:
--------------------------------
INDEMNITEE
Name:
-------------------------------
9
EXHIBIT 1
INDEMNIFICATION STATEMENT
1. This Indemnification Statement is submitted pursuant to the
Indemnification Agreement, dated as of _____________, 199___ (the
"Indemnification Agreement"), between Global Industries, Ltd., a Louisiana
corporation (the Company"), and the undersigned.
2. I am requesting indemnification in connection with a
Proceeding (as defined in the Indemnification Agreement) or claim in which I
was or am involved or am threatened to be made involved.
3. With respect to all matters related to any such Proceeding or
claim, I believe that I am entitled to be indemnified pursuant to the
provisions of the Indemnification Agreement.
4. Without limiting any other rights which I have or may have, I
am requesting indemnification against liabilities which have or may arise out
of ____________________________________________________________________________
_____________.
5. I have attached such documents supporting this request as are
reasonably available to me and are reasonably necessary to determine whether
and to what extent I am entitled to indemnification under the Indemnification
Agreement.
Name:
------------------------------
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EXHIBIT 2
UNDERTAKING
1. This Undertaking is submitted pursuant to the Indemnification
Agreement, dated as of ______________, 199__ (the "Indemnification
Agreement"), between Global Industries, Ltd., a Louisiana corporation (the
"Company"), and the undersigned.
2. I am requesting advancement of certain costs, charges and
expenses (including attorneys' and others' fees) which I have incurred or will
incur in defending a Proceeding (as defined in the Indemnification Agreement)
or in connection with a claim for which I may be entitled to indemnification
pursuant to the Indemnification Agreement.
3. I hereby undertake to repay this advancement of expenses if it
is ultimately determined that I am not entitled to be indemnified by the
Company under the Indemnification Agreement.
4. The costs, charges and expenses for which advancement is
requested are, in general, all expenses related to ____________________________
____________________.
Name:
-------------------------------
