INDEMNIFICATION AGREEMENT
Exhibit 10.50
This Agreement (“Agreement”) is made and entered into as of the day of March,
2010, by and between Trico Marine Services, Inc., a Delaware corporation (the “Company”),
and the undersigned director or officer of the Company (“Indemnitee”).
RECITALS
A. Highly competent and experienced persons have become more reluctant to serve corporations
as directors, executive officers or in other capacities unless they are provided with adequate
protection through insurance and/or indemnification against inordinate risks of claims and actions
against them, arising out of their service to and activities on behalf of the Company. The Board
of Directors of the Company (the “Board”) has determined that in order to attract and
retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole
expense, liability insurance to protect persons serving the Company and its Subsidiaries from
certain liabilities. Although the furnishing of such insurance has been a customary and widespread
practice among United States-based corporations and other business enterprises, the Company
believes that, given current market conditions and trends, such insurance may be available to it in
the future only at higher premiums, and with more exclusions. At the same time, directors,
officers and other persons serving corporations or business enterprises are being increasingly
subjected to expensive and time-consuming litigation relating to, among other things, matters that
traditionally would have been brought only against the Company or business enterprise itself. The
Ninth Amended and Restated Bylaws (as the same may be amended from time to time, the
“Bylaws”) and the Second Amended and Restated Certificate of Incorporation (as the same may
be amended from time to time, the “Charter”) of the Company require indemnification of the
officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant
to applicable provisions of the DGCL (as defined in Article I). The Bylaws, Charter and
the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive,
and thereby contemplate that the Company and members of the board of directors and officers of the
Company may enter into contracts to protect such persons against claims and expenses arising from
their services on behalf of the Company.
B. The uncertainties relating to such insurance and to such indemnification have increased the
difficulty of attracting and retaining such persons. The Board has determined that the increased
difficulty in attracting and retaining such persons is detrimental to the best interests of the
Company and its stockholders, and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future.
C. The Board has also determined that it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify and hold harmless, and to advance expenses on behalf
of, such persons to the fullest extent permitted by applicable law so that they will serve or
continue to serve the Company free from undue concern that they will not be adequately protected.
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D. This Agreement is a supplement to and in furtherance of the Charter and Bylaws of the
Company, and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
E. Indemnitee does not regard the protection available under the Charter, Bylaws and insurance
as adequate in the present circumstances, and may not be willing to serve, continue to serve and
take on additional service for or on behalf of the Company without adequate protection, and the
Company desires Indemnitee to serve, continue to serve and take on additional service for or on
behalf of the Company. Indemnitee is willing to serve, continue to serve and to take on additional
service for or on behalf of the Company on the condition that he be so indemnified.
In consideration of the foregoing and the mutual covenants herein contained, and other good
and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
Certain Definitions
As used herein, the following words and terms shall have the following respective meanings
(whether singular or plural):
1. The terms “Beneficial Owner” and “Beneficial Ownership” shall have the meanings
set forth in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in effect on the
date hereof.
2. “Change in Control” means the occurrence of any of the following events:
(i) Acquisition of Stock by Third Party. The acquisition after the date of this
Agreement by any Person of Beneficial Ownership of 35% or more of either (x) the then outstanding
shares of Common Stock of the Company (the “Outstanding Company Common Stock”), or (y) the
combined voting power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company Voting Securities”);
provided, however, that for purposes of this Subparagraph (i), the following acquisitions shall not
constitute a Change of Control: (A) any acquisition directly from the Company, (B) any acquisition
by the Company, (C) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (D) any acquisition by
any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of paragraph
(iii) below;
(ii) Change in Board of Directors. Members of the Incumbent Board cease to constitute
at least a majority of the members of the Board;
(iii) Corporate Transactions. Consummation of a reorganization, merger,
consolidation, sale or other disposition of all or substantially all of the assets of the Company,
or an acquisition of assets of another entity (a “Business Combination”), in each case,
unless, following such Business Combination, (A) all or substantially all of the Persons who were
the
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Beneficial Owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Business Combination are the Beneficial Owners
of, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common
equity and the combined voting power of the then outstanding Voting Securities, as the case may be,
of the entity resulting from such Business Combination (including, without limitation, an entity
which as a result of such transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more Subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Business Combination of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding any employee benefit plan (or related trust) of the Company or the entity resulting from
such Business Combination) is the Beneficial Owner, directly or indirectly, of 35% or more of,
respectively, the then outstanding shares of common equity of the entity resulting from such
Business Combination or the combined voting power of the then outstanding Voting Securities of such
entity, except to the extent that such ownership results solely from ownership of the Company that
existed prior to the Business Combination, and (C) at least a majority of the members of the board
of directors or other similar governing body of the entity resulting from such Business Combination
were members of the Incumbent Board at the time of the execution of the initial agreement, or of
the action of the Board, providing for such Business Combination;
(iv) Liquidation. The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company, or an agreement or series of agreements for the sale or
disposition by the Company of all or substantially all of the Company’s assets (or, if such
approval is not required, the decision by the Board to proceed with such a liquidation, sale, or
disposition in one transaction or a series of related transactions); or
(v) Other Events. The occurrence of any other event of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response
to any similar item on any similar schedule or form) promulgated under the Exchange Act, whether or
not the Company is then subject to such reporting requirement.
3. “Claim” means an actual or threatened claim or request for relief which was, is or may
be made by reason of anything done or not done by Indemnitee in, or by reason of any event or
occurrence related to, Indemnitee’s Corporate Status.
4. “Common Stock” means the Company’s common stock and such other securities as may be
substituted (or resubstituted) for such Common Stock.
5. References to the “Company,” in connection with any merger or consolidation, shall
include not only the resulting or surviving company, but also any constituent company or
constituent of a constituent company, which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, employees or agents. The intent of
this provision is that a person who is or was a director of such constituent company after the date
hereof or is or was serving at the request of such constituent company as a director, officer,
employee, trustee or agent of another company, partnership, joint venture, trust, employee benefit
plan or other Enterprise after the date hereof, shall stand in the same position under this
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Agreement with respect to the resulting or surviving company, as the person would have under this
Agreement with respect to such constituent company if its separate existence had continued.
6. “Corporate Status” means the status of a person who is, becomes or was a director,
officer, trustee, partner, member, employee, agent, fiduciary or similar functionary of the Company
or is, becomes or was serving at the request of the Company as a director, officer, partner,
member, manager, venturer, proprietor, trustee, employee, agent, fiduciary or similar functionary
of another Enterprise. For purposes of this Agreement, the Company agrees that Indemnitee’s
service on behalf of or with respect to any Subsidiary of the Company shall be deemed to be at the
request of the Company.
7. “DGCL” means the Delaware General Corporation Law and any successor statute thereto, as
either of them may from time to time be amended.
8. “Disinterested Director” with respect to any request by Indemnitee for indemnification
hereunder, means a director of the Company who at the time of the vote is not a party to the
Proceeding in respect of which indemnification is sought by Indemnitee.
9. “Enterprise” shall mean the Company and any other corporation, constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger to which the
Company (or any of its wholly-owned Subsidiaries) is a party, limited liability company,
partnership, joint venture, trust, employee benefit plan, or other enterprise of which Indemnitee
is or was serving at the request of the Company as a director, officer, trustee, partner, member,
employee, agent, fiduciary or similar functionary.
10. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
11. “Expenses” means all costs, fees and expenses of any type or nature whatsoever,
including without limitation, attorneys’ fees and disbursements, retainers, accountant’s fees and
disbursements, private investigator fees and disbursements, court costs, transcript costs, fees and
expenses of experts, witness fees and expenses, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other disbursements, costs
or expenses of the types customarily incurred in connection with prosecuting, defending (including
affirmative defenses and counterclaims), preparing to prosecute or defend, investigating, being or
preparing to be a witness in, or participating in or preparing to participate in a settlement or
appeal of, or responding or objecting to a discovery request in, a Proceeding, and all interest or
finance charges attributable to any thereof and including reasonable compensation for time spent
by the Indemnitee preparing for or participating in such Proceeding for which he or she is not
otherwise compensated by the Company or a third party, provided that the rate of compensation and
estimated time involved is approved by the Disinterested Directors in their sole discretion, or in
the case of a Potential Change in Control or Change in Control, by Independent Counsel. Expenses
also shall include expenses incurred in connection with any appeal resulting from any Proceeding
(as defined below), including without limitation the principal, premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.
Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.
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12. “Incumbent Board” means the individuals who, as of the date of this Agreement,
constitute the Board and any other individual who becomes a director of the Company after that date
and whose election or appointment by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the directors then comprising the
Incumbent Board.
13. “Independent Counsel” means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and neither contemporaneously is, nor in the five years theretofore
has been, retained to represent: (a) the Company or Indemnitee in any matter material to either
such party (other than as Independent Counsel under this Agreement or similar agreements), (b) any
other party to the Proceeding giving rise to a claim for indemnification hereunder, or (c) the
Beneficial Owner, directly or indirectly, of securities of the Company representing 5% or more of
the combined voting power of the Company’s then outstanding voting securities (other than, in each
such case, with respect to matters concerning the rights of Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements). 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 Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
14. “Independent Directors” means the directors on the Board that are independent directors
as defined in Rule 5605(a)(2) of the Nasdaq Manual or successor provision, or, if the Company’s
common stock is not then quoted on the NASDAQ, that qualify as independent, disinterested, or a
similar term as defined in the rules of the principal securities exchange or inter-dealer quotation
system on which the Company’s common stock is then listed or quoted.
15. “NASDAQ” means The NASDAQ Stock Market, LLC.
16. “Person” means any individual, entity or group (within the meaning of Sections 13(d)(3)
and 14(d)(2) of the Exchange Act).
17. “Potential Change in Control” shall be deemed to have occurred if (i) any Person shall
have announced publicly an intention to take actions to effect a Change in Control, or commenced
any action (such as the commencement of a tender offer for the Company’s Common Stock or the
solicitation of proxies for the election of any of the Company’s directors) that, if successful,
would reasonably be expected to result in the occurrence of a Change in Control; (ii) the Company
enters into an agreement or arrangement, the consummation of which would result in the occurrence
of a Change in Control; (iii) any Person who is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 5% or more of the combined voting power of
the Company’s then outstanding securities entitled to vote generally in the election of directors
increases his Beneficial Ownership of such securities by 5% or more over the percentage so owned by
such Person on the date hereof unless such acquisition was approved in advance by the Board; or
(iv) any other event occurs that the Board declares to be a Potential Change of Control.
18. “Proceeding” means any threatened, pending or completed action, suit, arbitration,
mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
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or any other actual, threatened or completed proceeding, whether brought in the right of the
Company or otherwise, and whether of a civil (including intentional or unintentional tort claims),
criminal, administrative, arbitrative, legislative or investigative (formal of informal) nature,
including any appeal therefrom in which Indemnitee was, is, will or might be involved as a party,
potential party, non-party witness or otherwise by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, by reason of any action (or failure to act)
taken by him or of any action (or failure to act) on his part while acting as a director, officer,
employee or agent of the Company, or by reason of the fact that he is or was serving at the request
of the Company as a director, officer, partner, member, manager, venturer, proprietor, trustee,
employee, agent,, fiduciary or similar functionary of any other Enterprise, in each case whether or
not serving in such capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be provided under this Agreement.
If Indemnitee believes in good faith that a given situation may lead to or culminate in the
institution of a Proceeding, this situation shall be considered a Proceeding under this paragraph.
19. “Subsidiary” means, with respect to any Person, any corporation or other entity of
which a majority of the voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by that Person.
20. “Voting Securities” means any securities that vote generally in the election of
directors, in the admission of general partners, or in the selection of any other similar governing
body.
ARTICLE II
Services by Indemnitee
Indemnitee will serve or continue to serve as an officer or director of the Company for so
long as Indemnitee is duly elected or appointed or until Indemnitee tenders his resignation or is
terminated by the Company. Indemnitee may from time to time also agree to serve, as the Company
may request from time to time, in another capacity for the Company (including another officer or
director position) or as a director, officer, partner, member, manager, venturer, proprietor,
trustee, employee, agent, fiduciary or similar functionary of another Enterprise. Indemnitee and
the Company each acknowledge that they have entered into this Agreement as a means of inducing
Indemnitee to serve, or continue to serve, the Company in such capacities. Indemnitee may at any
time and for any reason resign from such position or positions (subject to any other contractual
obligation or any obligation imposed by operation of law). Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employment of the Company
or any of its Subsidiaries or affiliated entities.
ARTICLE III
Indemnification
Section 3.1 General. Subject to the provisions set forth in Article IV, the
Company shall indemnify, and advance Expenses to, Indemnitee to the fullest extent permitted by
applicable law in effect on the date hereof, and to such greater extent as applicable law may
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hereafter from time to time permit. The other provisions set forth in this Agreement are
provided in addition to and as a means of furtherance and implementation of, and not in limitation
of, the obligations expressed in this Article III. No requirement, condition to or
limitation of any right to indemnification or to advancement of Expenses pursuant to this
Article III shall in any way limit the rights of Indemnitee under Article VII.
Section 3.2 Additional Indemnity of the Company. Indemnitee shall be entitled to
indemnification pursuant to this Section 3.2 if, by reason of anything done or not done by
Indemnitee in, or by reason of any event or occurrence related to, Indemnitee’s Corporate Status,
Indemnitee is, was or becomes, or is threatened to be made or is made, a party to, or witness or
other participant in, or is asked to respond to discovery requests in, any Proceeding (including a
Proceeding by or in the right of the Company to procure a judgment in its favor). Pursuant to this
Section 3.2, Indemnitee shall be indemnified against any and all Expenses, judgments,
penalties (including excise and similar taxes), fines and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection with or in respect of any
such Expenses, judgments, penalties, fines and amounts paid in settlement) actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any Claim,
issue or matter therein. Notwithstanding the foregoing, the obligations of the Company under this
Section 3.2 shall be subject to the condition that no determination (which, in any case in
which Independent Counsel is involved, shall be in a form of a written opinion) shall have been
made pursuant to Article IV that Indemnitee would not be permitted to be indemnified under
applicable law. Nothing in this Section 3.2 shall limit the benefits of Section
3.1, Section 3.3, or any other Section in this Article III.
Section 3.3 Advancement of Expenses. The Company shall pay all Expenses reasonably
incurred by, or in the case of retainers to be incurred by, or on behalf of Indemnitee (or, if
applicable, reimburse Indemnitee for any and all Expenses reasonably incurred by Indemnitee and
previously paid by Indemnitee) in connection with any Claim or Proceeding, whether brought by or in
the right of the Company or otherwise, in advance of any determination respecting entitlement to
indemnification pursuant to Article IV hereof (and shall continue to pay such Expenses
after such determination, and until it shall ultimately be determined (in a final adjudication by a
court from which there is no further right of appeal or in a final adjudication of an arbitration
pursuant to Section 5.1 if Indemnitee elects to seek such arbitration) that Indemnitee is
not entitled to be indemnified by the Company against such Expenses) within 10 days after the
receipt by the Company of (a) a written request from Indemnitee requesting such payment or payments
from time to time, whether prior to or after final disposition of such Proceeding, and (b) a
written affirmation from Indemnitee of Indemnitee’s good faith belief that Indemnitee has met the
standard of conduct necessary for Indemnitee to be permitted to be indemnified under applicable
law. Any such payment by the Company is referred to in this Agreement as an “Expense
Advance.” In connection with any request for an Expense Advance, if requested by the Company,
Indemnitee or Indemnitee’s counsel shall also submit an affidavit stating that the Expenses
incurred were, or in the case of retainers to be incurred are, reasonably incurred. Any dispute as
to the reasonableness of the incurrence of any Expense shall not delay an Expense Advance by the
Company, and the Company agrees that any such dispute shall be resolved only upon the disposition
or conclusion of the underlying Claim against Indemnitee. Indemnitee hereby undertakes and agrees
that Indemnitee will reimburse and repay the Company without interest for any Expense Advances to
the extent that it shall ultimately be determined (in
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a final adjudication by a court from which there is no further right of appeal, or in a final
adjudication of an arbitration pursuant to Section 5.1, if Indemnitee elects to seek such
arbitration) that Indemnitee is not entitled to be indemnified by the Company against such Expenses
under the provisions of this Agreement, the Charter, the Bylaws of the Company, applicable law or
otherwise. Indemnitee shall not be required to provide collateral or otherwise secure the
undertaking and agreement described in the prior sentence. The Company will be entitled to
participate in the Claim or Proceeding at its own expense.
Section 3.4 Indemnification for Additional Expenses. It is the intent of the Company
that, to the fullest extent permitted by law, Indemnitee not be required to incur legal fees and
other costs and expenses (of the types described in the definition of Expenses in Article
I) associated with the interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement by litigation, arbitration or otherwise because the cost and expense thereof would
substantially detract from the benefits intended to be extended to Indemnitee hereunder. The
Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee,
shall (within two business days of that request) advance those Expenses to Indemnitee, that are
incurred by Indemnitee in connection with any claim asserted against, or action brought by,
Indemnitee for (i) indemnification or an Expense Advance by the Company under this Agreement or any
other agreement or provision of the Charter or Bylaws of the Company now or hereafter in effect
relating to any Claim or Proceeding, (ii) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, or (iii) enforcement of, or claims for breaches of,
any provision of this Agreement, in each of the foregoing situations, regardless of whether
Indemnitee ultimately is determined to be entitled to that indemnification, Expense Advance,
insurance recovery, enforcement, or damage claim, as the case may be, and regardless of whether the
nature of the proceeding with respect to such matters is judicial, by arbitration, or otherwise;
provided, however, with respect to the foregoing clauses (i), (ii) and (iii), if Indemnitee is not
wholly successful on the underlying claims, then such indemnification and advancement shall be only
to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by law,
whichever is greater. To the extent that it is ultimately determined that Indemnitee is not wholly
successful on the underlying claims, the execution and delivery to the Company of this Agreement
shall constitute an undertaking providing that the Indemnitee undertakes to repay, if required by
law, the amounts advanced (without interest) to the extent the Indemnitee is not successful on such
underlying claims.
Section 3.5 Partial Indemnity. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties, and amounts paid in settlement of a Claim or Proceeding but not, however, for all
of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense
of any or all Claims or Proceedings, or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
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ARTICLE IV
Procedure for Determination of Entitlement
to Indemnification
to Indemnification
Section 4.1 Notification and Request by Indemnitee. Indemnitee agrees to notify the
Company promptly in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or Claim that may be subject
to indemnification hold harmless or exoneration rights or Expense Advances hereunder. The written
notification shall include a description of the nature of the Proceeding or Claim and the facts
underlying the Proceeding or Claim. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation which it may have to the Indemnitee under this Agreement, or
otherwise. The Company shall promptly notify Indemnitee in writing as to the pendency of any
Proceeding or Claim that may involve a claim against Indemnitee for which Indemnitee may be
entitled to indemnification hold harmless rights or Expense Advances hereunder. To obtain
indemnification under this Agreement, Indemnitee shall submit to the Company a written request for
the Company to indemnify and hold harmless Indemnitee, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to indemnification following the
final disposition of such Proceeding, in accordance with this Agreement. Such request(s) may be
delivered from time to time and at such time(s) as Indemnitee deems appropriate in his sole
discretion. The Secretary or an Assistant Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in writing that Indemnitee has requested
indemnification. Following such a written request for indemnification by Indemnitee, the
Indemnitee’s entitlement to indemnification shall be determined according to Section 4.2.
Section 4.2 Determination of Request. Upon written request by Indemnitee for
indemnification pursuant to Section 4.1 hereof, a determination, if required by applicable
law, with respect to whether Indemnitee is permitted under applicable law to be indemnified in the
specific case, shall be made in accordance with the terms of Section 4.4, as follows:
(a) If a Potential Change in Control or a Change in Control shall have occurred, by
Independent Counsel (selected in accordance with Section 4.3) in a written opinion
to the Board, a copy of which opinion shall be delivered to Indemnitee, unless Indemnitee
shall request that such determination be made by the Board, or a committee of the Board, in
which case by the person or persons or in the manner provided for in clause (i) or (ii) of
Section 4.2(b) below; or
(b) If a Potential Change in Control or a Change in Control shall not have occurred,
(i) by the Board by a majority vote of the Disinterested Directors even though less than a
quorum of the Board, or (ii) by a majority vote of a committee consisting solely of two (2)
or more Disinterested Directors designated to act in the matter by a majority vote of all
Disinterested Directors, even though less than a quorum of the Board, or (iii) if there are
no Disinterested Directors or, if such Disinterested Directors so direct, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee,
with Independent Counsel being selected by a vote of the Disinterested Directors as set
forth in clauses (i) or (ii) of this Section 4.2(b), or if such
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vote is not obtainable or such a committee of Disinterested Directors cannot be
established, by a majority vote of the Board.
If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment
to Indemnitee shall be made within ten (10) days after such determination. Nothing contained in
this Agreement shall require that any determination be made under this Section 4.2 prior to
the disposition or conclusion of a Claim or Proceeding against Indemnitee; provided, however, that
Expense Advances shall continue to be made by the Company pursuant to, and to the extent required
by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making
such determination with respect to Indemnitee’s entitlement to indemnification, including providing
to such person or persons upon reasonable advance request any documentation or information that is
not privileged or otherwise protected from disclosure and that is reasonably available to
Indemnitee and is reasonably necessary to such determination. Any costs or expenses (including
attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or
persons making such determination shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold
harmless Indemnitee therefrom.
Section 4.3 Independent Counsel. If a Potential Change in Control or a Change in
Control shall not have occurred and the determination of entitlement to indemnification is to be
made by Independent Counsel, the Independent Counsel shall be selected by (a) a majority vote of
the Disinterested Directors, even though less than a quorum of the Board or (b) if there are no
Disinterested Directors, by a majority vote of the Board, and the Company shall give written notice
to Indemnitee, within ten (10) days after receipt by the Company of Indemnitee’s request for
indemnification, specifying the identity and address of the Independent Counsel so selected. If a
Potential Change in Control or a Change in Control shall have occurred and the determination of
entitlement to indemnification is to be made by Independent Counsel, the Independent Counsel shall
be selected by Indemnitee, and Indemnitee shall give written notice to the Company, within ten (10)
days after submission of Indemnitee’s request for indemnification, specifying the identity and
address of the Independent Counsel so selected (unless Indemnitee shall request that such selection
be made by the Disinterested Directors or a committee of the Board, in which event the Company
shall give written notice to Indemnitee within ten (10) days after receipt of Indemnitee’s request
for the Board or a committee of the Disinterested Directors to make such selection, specifying the
identity and address of the Independent Counsel so selected). In either event, (i) such notice to
Indemnitee or the Company, as the case may be, shall be accompanied by a written affirmation of the
Independent Counsel so selected that it satisfies the requirements of the definition of
“Independent Counsel” in Article I and that it agrees to serve in such capacity and
(ii) Indemnitee or the Company, as the case may be, may, within seven (7) days after such written
notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may
be, a written objection to such selection. Any objection to the selection of Independent Counsel
pursuant to this Section 4.3 may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of the definition of “Independent
Counsel” in Article I, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is timely made, the Independent Counsel so
selected may not serve as Independent Counsel unless and until a court of competent jurisdiction
(the “Court”) has determined that such objection is without merit. In the event of a
timely written objection to a choice of Independent Counsel, the party originally
10
selecting the Independent Counsel shall have seven (7) days to make an alternate selection of
Independent Counsel and to give written notice of such selection to the other party, after which
time such other party shall have five (5) days to make a written objection to such alternate
selection. If, within thirty (30) days after submission of Indemnitee’s request for
indemnification pursuant to Section 4.1, no Independent Counsel shall have been selected
and not objected to, either the Company or Indemnitee may petition the Court for resolution of any
objection that shall have been made by the Company or Indemnitee to the other’s selection of
Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the
Court or by such other person as the Court shall designate, and the person with respect to whom an
objection is so resolved or the person so appointed shall act as Independent Counsel under
Section 4.2. The Company shall pay any and all fees and expenses reasonably incurred by
such Independent Counsel in connection with acting pursuant to Section 4.2, and the Company
shall pay all fees and expenses reasonably incurred incident to the procedures of this Section 4.3,
regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section 5.1, 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 4.4 Presumptions and Effect of Certain Proceedings.
(a) Indemnitee shall be presumed to be entitled to indemnification under this Agreement
upon submission of a request for indemnification under Section 4.1, and the Company
shall have the burden of proof to overcome that presumption in reaching a determination
contrary to that presumption. Such presumption shall be used by Independent Counsel (or
other person or persons determining entitlement to indemnification) as a basis for a
determination of entitlement to indemnification unless the Company provides information
sufficient to overcome such presumption by clear and convincing evidence or unless the
investigation, review and analysis by Independent Counsel (or such other person or persons)
convinces Independent Counsel by clear and convincing evidence that the presumption should
not apply. Neither the failure of the Company (including by its directors or Independent
Counsel) to have made a determination prior to the commencement of any action pursuant to
this Agreement that indemnification is proper in the circumstances because Indemnitee has
met the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct.
(b) If the person or persons empowered or selected pursuant to Article IV to
determine whether Indemnitee is entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by the Company of the request by
Indemnitee therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made, and Indemnitee, to the fullest extent not prohibited by applicable
law, shall be entitled to such indemnification, absent a final judicial determination that
any or all such indemnification is expressly prohibited under applicable law; provided,
however, that such sixty (60) day period may be extended for a reasonable time, not to
exceed an additional thirty (30) days, if the person or persons
11
making the determination with respect to entitlement to indemnification in good faith
require such additional time to obtain or evaluate documentation and/or information relating
to such determination; and provided, further, that the sixty (60) day limitation set forth
in this Section 4.4(b) shall not apply, and such period shall be extended as
necessary. If the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 4.2(a), in which case the applicable period
shall be as set forth in Section 5.1(c).
(c) The termination of any Proceeding, Claim, issue or matter, by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided in this
Agreement) by itself adversely affect the rights of Indemnitee to indemnification or create
a presumption that (i) Indemnitee failed to meet any particular standard of conduct, (ii)
Indemnitee had any particular belief, or (iii) a court has determined that indemnification
is not permitted by applicable law. Indemnitee shall be deemed to have been found liable in
respect of any Claim, issue or matter only after Indemnitee shall have been so adjudged by
the Court after exhaustion of all appeals therefrom.
ARTICLE V
Certain Remedies of Indemnitee
Section 5.1 Indemnitee Entitled to Adjudication in an Appropriate Court. If (a) a
determination is made pursuant to Article IV that Indemnitee is not entitled to indemnification
under this Agreement; (b) there has been any failure by the Company to make timely payment or
advancement of any amounts due hereunder (including, without limitation, any Expense Advances); or
(c) the determination of entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 4.2 and such determination shall not have been made and delivered in a
written opinion within ninety (90) days after the latest of (i) such Independent Counsel’s being
appointed, (ii) the overruling by the Court of objections to such counsel’s selection, or (iii)
expiration of all periods for the Company or Indemnitee to object to such counsel’s selection,
Indemnitee shall be entitled to commence an action seeking an adjudication in the Court of
Indemnitee’s entitlement to such indemnification or advancements due hereunder, including, without
limitation, Expense Advances. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. Indemnitee shall commence such action seeking an
adjudication or an award in arbitration within 180 days following the date on which Indemnitee
first has the right to commence such action pursuant to this Section 5.1, or such right
shall expire. In any judicial proceeding or arbitration commenced pursuant to this Section 5.1,
Indemnitee shall be presumed to be entitled to be indemnified, held harmless, exonerated to receive
advances of Expenses under this Agreement and the Company shall have the burden of proving
Indemnitee is not entitled to be indemnified, held harmless, exonerated and to receive advances of
Expenses, as the case may be, and the Company may not refer to or introduce into evidence any
determination pursuant to Section 4 of this Agreement adverse to Indemnitee for any purpose. The
Company agrees not to oppose Indemnitee’s right to seek any such adjudication or award in
arbitration and it shall continue to pay Expense Advances pursuant to Section 3.3 until it
shall ultimately be determined (in a final adjudication by a court
12
from which there is no further right of appeal or in a final adjudication of an arbitration
pursuant to this Section 5.1 if Indemnitee elects to seek such arbitration) that Indemnitee
is not entitled to be indemnified by the Company against such Expenses. Except as set forth
herein, the provisions of Delaware law (without regard to its conflict of laws rules) shall apply
to any such arbitration. If Indemnitee commences a judicial proceeding or arbitration pursuant to
this Section 5.1, Indemnitee shall not be required to reimburse the Company for any
advances pursuant to Section 3.3, until a final determination is made with respect to
Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted
or lapsed).
Section 5.2 Adverse Determination Not to Affect any Judicial Proceeding. If a
determination shall have been made pursuant to Article IV that Indemnitee is not entitled
to indemnification under this Agreement, any judicial proceeding or arbitration commenced pursuant
to this Agreement shall be conducted in all respects as a de novo trial or arbitration on the
merits, and Indemnitee shall not be prejudiced by reason of such initial adverse determination. In
any judicial proceeding or arbitration commenced pursuant to this Agreement, Indemnitee shall be
presumed to be entitled to indemnification or advancement of Expenses, as the case may be, under
this Agreement and the Company shall have the burden of proof to overcome such presumption and to
show by clear and convincing evidence that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
Section 5.3 Company Bound by Determination Favorable to Indemnitee in any Judicial
Proceeding or Arbitration. If a determination shall have been made or deemed to have been made
pursuant to Article IV that Indemnitee is entitled to indemnification, the Company (a)
shall be irrevocably bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Article V and (b) shall be precluded from asserting that such
determination has not been made or that the procedure by which such determination was made is not
valid, binding and enforceable; provided, however, that the foregoing clauses (a) and (b) and shall
not be applicable in the event of (i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact by Indemnitee necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification or (ii) a prohibition of such
indemnification under applicable law.
Section 5.4 Company Bound by the Agreement. The Company, to the fullest extent not
prohibited by applicable law, shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Article V 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 the provisions of this Agreement.
ARTICLE VI
Contribution
Section 6.1 Contribution Payment. To the extent that the indemnification provided for
under any provision of this Agreement is determined (in the manner hereinabove provided) not to be
permitted under applicable law, then in the event Indemnitee was, is, or becomes a party to or
witness or other participant in, or is threatened to be made a party to or witness or other
participant in, a Proceeding by reason of (or arising in part out of) Indemnitee’s Corporate
13
Status, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount of any
and all Expenses, judgments, fines, or penalties assessed against or incurred or paid by Indemnitee
on account of such Proceeding and to any and all amounts paid in settlement of that Proceeding
(including all interest, assessments, and other charges paid or payable in connection with or in
respect of such Expenses, judgments, fines, penalties, or amounts paid in settlement) for which
such indemnification is not permitted (“Contribution Amounts”), in such proportion as is
appropriate to reflect the relative fault with respect to the subject matter of the Proceeding
giving rise to the Contribution Amounts of Indemnitee, on the one hand, and of the Company and any
and all other parties (including officers and directors of the Company other than Indemnitee) who
may be at fault with respect to such matter (collectively, including the Company, the “Third
Parties”), on the other hand.
Section 6.2 Relative Fault. The relative fault of the Third Parties and Indemnitee
shall be determined (i) by reference to the relative fault of Indemnitee as determined by the court
or other governmental agency assessing the Contribution Amounts or (ii) to the extent such court or
other governmental agency does not apportion relative fault, by the Independent Counsel (or such
other party which makes a determination pursuant to Article IV) after giving effect to,
among other things, the relative intent, knowledge, access to information, and opportunity to
prevent or correct the subject matter of the Proceedings and other relevant equitable
considerations of each party. The Company and Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 6.2 were determined by pro rata
allocation or any other method of allocation that does not take account of the equitable
considerations referred to in this Section 6.2.
ARTICLE VII
Miscellaneous
Section 7.1 Non-Exclusivity. The rights of Indemnitee to receive indemnification and
advancement of Expenses under this Agreement shall be in addition to, and shall not be deemed
exclusive of, any other rights Indemnitee may have under the DGCL or other applicable law, the
Charter and/or Bylaws of the Company, any other agreement, vote of stockholders or a resolution of
directors, or otherwise. No amendment, alteration or repeal of the Charter and/or Bylaws of the
Company or any provision thereof shall adversely affect Indemnitee’s rights hereunder, and such
rights shall be in addition to any rights Indemnitee may have under the Charter and/or Bylaws and
the DGCL or other applicable law. To the extent that there is a change in the DGCL or other
applicable law (whether by statute or judicial decision) that allows greater indemnification by
agreement than would be afforded currently under the Company’s Charter and/or Bylaws and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by virtue of this
Agreement the greater benefit so afforded by such change. Any amendment, alteration or repeal of
the DGCL that adversely affects any right of Indemnitee shall be prospective only and shall not
limit or eliminate any such right with respect to any Proceeding involving any occurrence or
alleged occurrence of any action or omission to act that took place before such amendment or
repeal.
Section 7.2 Insurance and Subrogation.
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(a) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, agents, fiduciaries or similar
functionaries of the Company or for individuals serving at the request of the Company as
directors, officers, partners, members, venturers, proprietors, trustees, employees, agents,
fiduciaries or similar functionaries of another foreign or domestic corporation,
partnership, limited liability company, joint venture, sole proprietorship, trust, employee
benefit plan or other Enterprise, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage available for any
such director, officer, employee, agent, fiduciary or similar functionary under such policy
or policies.
(b) In the event of any payment by the Company under this Agreement for which
reimbursement is available under any insurance policy or policies obtained by the Company,
the Company shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee under such insurance policy or policies, 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,
provided that all Expenses relating to such action shall be borne by the Company.
(c) If Indemnitee is a director of the Company, the Company will advise the Board of
any proposed material reduction in the coverage for Indemnitee to be provided by the
Company’s directors’ and officers’ liability insurance policy and will not effect such a
reduction with respect to Indemnitee without the prior approval of at least 80% of the
Independent Directors of the Company.
(d) If Indemnitee is a director of the Company during the term of this Agreement and
Indemnitee ceases to be a director of the Company for any reason, the Company shall procure
a run-off directors’ and officers’ liability insurance policy with respect to claims arising
from facts or events that occurred before the time Indemnitee ceased to be a director of the
Company and covering Indemnitee, which policy, without any lapse in coverage, will provide
coverage for a period of six years after the time Indemnitee ceased to be a director of the
Company and will provide coverage (including amount and type of coverage and size of
deductibles) that are substantially comparable to the Company’s directors’ and officers’
liability insurance policy that was most protective of Indemnitee in the 12 months preceding
the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following
the time Indemnitee ceases to be a director of the Company if and only so long as
the Company has a directors’ and officers’ liability insurance policy in effect
covering Indemnitee for such claims that, if it were a run-off policy, would meet or
exceed the foregoing standards, but in any event this suspension period shall end
when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding
clause (i) (whether because of failure to have a policy meeting the
15
foregoing standards or because a Change in Control occurs), the Company shall
procure a run-off directors’ and officers’ liability insurance policy meeting the
foregoing standards and lasting for the remainder of the six-year period.
(e) Notwithstanding the preceding clause (d) including the suspension provisions
therein, if Indemnitee ceases to be an officer or a director of the Company in connection
with a Change in Control or at or during the one-year period following the occurrence of a
Change in Control, the Company shall procure a run-off directors’ and officers’ liability
insurance policy covering Indemnitee that meets the foregoing standards in clause (d) and
lasts for a six-year period upon Indemnitee’s ceasing to be an officer or a director of the
Company in such circumstances.
Section 7.3 Self Insurance of the Company; Other Arrangements. The parties hereto
recognize that the Company may, but except as provided in Sections 7.2(c), 7.2(d)
and 7.2(e) is not required to, procure or maintain insurance or other similar arrangements,
at its expense, to protect itself and any person, including Indemnitee, who is or was a director,
officer, employee, agent, fiduciary or similar functionary of the Company or who is or was serving
at the request of the Company as a director, officer, partner, member, manager, venturer,
proprietor, trustee, employee, agent, fiduciary or similar functionary of another foreign or
domestic corporation, partnership, limited liability company, joint venture, sole proprietorship,
trust, employee benefit plan or other Enterprise against any expense, liability or loss asserted
against or incurred by such person, in such a capacity or arising out of such person’s Corporate
Status, whether or not the Company would have the power to indemnify such person against such
expense or liability or loss.
Except as provided in Sections 7.2(c), 7.2(d) and 7.2(e) in
considering the cost and availability of such insurance, the Company (through the exercise of the
business judgment of its directors and officers) may, from time to time, purchase insurance which
provides for certain (i) deductibles, (ii) limits on payments required to be made by the insurer,
or (iii) coverage which may not be as comprehensive as that previously included in insurance
purchased by the Company or its predecessors. The purchase of insurance with deductibles, limits
on payments and coverage exclusions, even if in the best interest of the Company, may not be in the
best interest of Indemnitee. As to the Company, purchasing insurance with deductibles, limits on
payments and coverage exclusions is similar to the Company’s practice of self-insurance in other
areas. In order to protect Indemnitee who would otherwise be more fully or entirely covered under
such policies, the Company shall, to the maximum extent permitted by applicable law, indemnify and
hold Indemnitee harmless to the extent (i) of such deductibles, (ii) of amounts exceeding payments
required to be made by an insurer, or (iii) of amounts that prior policies of directors’ and
officers’ liability insurance held by the Company or its predecessors have provided for payment to
Indemnitee, if by reason of Indemnitee’s Corporate Status Indemnitee is or is threatened to be made
a party to any Proceeding. The obligation of the Company in the preceding sentence shall be
without regard to whether the Company would otherwise be required to indemnify such officer or
director under the other provisions of this Agreement, or under any law, agreement, vote of
stockholders or directors or other arrangement. Without limiting the generality of any provision
of this Agreement, the procedures in Article IV hereof shall, to the extent applicable, be
used for determining entitlement to indemnification under this Section 7.3.
16
Section 7.4 Certain Settlement Provisions. The Company shall have no obligation to
indemnify Indemnitee under this Agreement for amounts paid in settlement of a Proceeding or Claim
without the Company’s prior written consent. The Company shall not settle any Proceeding or Claim
in any manner that would impose any fine or other obligation on Indemnitee without Indemnitee’s
prior written consent. Neither the Company nor Indemnitee shall unreasonably withhold their
consent to any proposed settlement.
Section 7.5 Duration of Agreement. This Agreement shall continue for so long as
Indemnitee serves as a director, officer, employee, agent, fiduciary or similar functionary of the
Company or, at the request of the Company, as a director, officer, partner, member, manager,
venturer, proprietor, trustee, employee, agent, fiduciary or similar functionary of another foreign
or domestic corporation, partnership, limited liability company, joint venture, sole
proprietorship, trust, employee benefit plan or other Enterprise, and thereafter shall survive
until and terminate upon the later to occur of: (a) the expiration of ten (10) years after the
latest date that Indemnitee shall have ceased to serve in any such capacity; (b) the final
termination of all pending Proceedings in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Article IV relating thereto; or (c) the expiration of all statutes of
limitation applicable to possible Claims arising out of Indemnitee’s Corporate Status.
Section 7.6 Amendment. This Agreement may not be modified or amended except by a
written instrument executed by or on behalf of each of the parties hereto.
Section 7.7 Waivers. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or prospectively) by the
party entitled to enforce such term only by a writing signed by the party against which such waiver
is to be asserted. Unless otherwise expressly provided herein, no delay on the part of any party
hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder.
Section 7.8 Entire Agreement. This Agreement and the documents expressly referred to
herein (including the Charter and Bylaws of the Company) constitute the entire agreement between
the parties hereto with respect to the matters covered hereby, and any other prior oral or written
understandings or agreements with respect to the matters covered hereby, including without
limitation any prior indemnification agreements, are expressly superseded by this Agreement.
Section 7.9 Severability. If any provision of this Agreement (including any provision
within a single section, paragraph or sentence) or the application of such provision to any Person
or circumstance, shall be judicially declared to be invalid, unenforceable or void, such decision
will not have the effect of invalidating or voiding the remainder of this Agreement or affect the
application of such provision to other Persons or circumstances, it being the intent and agreement
of the parties that this Agreement shall be deemed amended by modifying such provision to the
extent necessary to render it valid, legal and enforceable while preserving its intent, or if such
17
modification is not possible, by substituting therefor another provision that is valid, legal
and unenforceable and that achieves the same objective. Any such finding of invalidity or
unenforceability shall not prevent the enforcement of such provision in any other jurisdiction to
the maximum extent permitted by applicable law.
Section 7.10 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter’s confirmation of a receipt of a facsimile
transmission if during normal business hours of the recipient, otherwise on the next business day,
(b) confirmed delivery of a standard overnight courier, or when delivered by hand or (c) the
expiration of five business days after the date mailed by certified or registered mail (return
receipt requested), postage prepaid, to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice):
If to the Company, to it at:
Trico Marine Services, Inc.
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile: 000-000-0000
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile: 000-000-0000
If to Indemnitee, to Indemnitee at:
[Indemnitee address]
or to such other address, or to such other individuals as any party shall have last designated by
notice to the other parties. All notices and other communications given to any party in accordance
with the provisions of this Agreement shall be deemed to have been given when delivered or sent to
the intended recipient thereof in accordance with and as provided in the provisions of this
Section 7.10.
Section 7.11 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of
laws rules. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement shall be brought only in
the Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other
state or federal court in the United States of America or any court in any other country, (ii)
consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (iv) waive, and agree
not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum.
Section 7.12 Certain Construction Rules.
18
(a) The article and section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this
Agreement. As used in this Agreement, unless otherwise provided to the contrary, (1) all
references to days shall be deemed references to calendar days, and (2) any reference to a
“Section” or “Article” shall be deemed to refer to a section or article of this Agreement.
The words “hereof,” “herein” and “hereunder” and words of similar import referring to this
Agreement refer to this Agreement as a whole and not to any particular provision of this
Agreement. Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.” Unless
otherwise specifically provided for herein, the term “or” shall not be deemed to be
exclusive. Whenever the context may require, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.
(b) For purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes assessed on a
person with respect to any employee benefit plan; references to “serving at the request of
the Company” shall include any service as a director, officer, employee, agent, fiduciary or
similar functionary of the Company which imposes duties on, or involves services by, such
director, nominee, officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a manner the
person reasonably believed to be in the interests of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best
interest of the Company” for purposes of this Agreement and the DGCL.
Section 7.13 Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in two or more counterparts, each of which shall be deemed to be an
original and all of which together shall be deemed to be one and the same instrument,
notwithstanding that both parties are not signatories to the original or same counterpart.
Section 7.14 Certain Exclusions from Indemnification. The Company shall not be
obligated pursuant to the terms of this Agreement:
(a) To indemnify Indemnitee if (and to the extent that) a final decision by a court or
arbitration body having jurisdiction in the matter shall determine that such indemnification
is not lawful;
(b) To indemnify Indemnitee for the payment to the Company of profits pursuant to
Section 16(b) of the Exchange Act, or Expenses incurred by Indemnitee for Proceedings in
connection with such payment under Section 16(b) of the Exchange Act;
(c) To indemnify Indemnitee for any reimbursement of the Company by Indemnitee of any
bonus or other incentive-based or equity-based compensation, or of any profits realized by
Indemnitee from the sale of securities of the Company, as required in each case under the
Exchange Act (including any such reimbursements that arise from an accounting restatement of
the Company pursuant to Section 304 of the Sarbanes-
19
Oxley Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of
profits arising from the purchase and sale by Indemnitee of securities in violation of
Section 306 of the Xxxxxxxx-Xxxxx Act);
(d) To indemnify Indemnitee, except as otherwise provided in Section 3.4 and
3.5 hereof, prior to a Change in Control, in connection with any Proceeding (or any
part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of
any Proceeding) initiated by Indemnitee against the Company or its directors, officers,
employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part
of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any
counterclaim that the Company or its directors, officers, employees or other indemnitees
assert against Indemnitee or any affirmative defense that the Company or its directors,
officers, employees or other indemnitees raise, which, by any doctrine of issue or claim
preclusion, could result in liability to Indemnitee, or (iii) the Company provides the
indemnification or hold harmless payment, in its sole discretion, pursuant to the powers
vested in the Company under applicable law; or
(e) To make any payment to Indemnitee of amounts otherwise indemnifiable hereunder, if
and to the extent that Indemnitee has otherwise actually received such payment under the
Charter and/or Bylaws of the Company, or any insurance policy, contract, agreement or
otherwise. Notwithstanding the foregoing or any other provision of this Agreement to the
contrary, (i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or
apportion any indemnification, hold harmless, exoneration, advancement, contribution or
insurance coverage among multiple parties possessing such duties to Indemnitee prior to the
Company’s satisfaction and performance of all its obligations under this Agreement, and (ii)
the Company shall perform fully its obligations under this Agreement without regard to
whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold
harmless, exoneration, contribution or insurance coverage rights against any person or
entity other than the Company.
Section 7.15 Indemnification for Negligence, Gross Negligence, etc. Without limiting
the generality of any other provision hereunder, it is the express intent of this Agreement that
Indemnitee be indemnified and Expenses be advanced regardless of Indemnitee’s acts of negligence,
gross negligence, intentional or willful misconduct to the extent that indemnification and
advancement of Expenses is allowed pursuant to the terms of this Agreement and under applicable
law.
Section 7.16 Mutual Acknowledgments. Both the Company and Indemnitee acknowledge that
in certain instances, applicable law (including applicable federal law that may preempt or override
applicable state law) or public policy may prohibit the Company from indemnifying the directors,
officers, employees, agents, fiduciaries or similar functionaries of the Company under this
Agreement or otherwise. For example, the Company and Indemnitee acknowledge that the U.S.
Securities and Exchange Commission has taken the position that indemnification of directors,
officers and controlling Persons of the Company for liabilities arising under federal securities
laws is against public policy and, therefore, unenforceable. Indemnitee understands and
acknowledges that the Company has undertaken or may be required
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in the future to undertake with the Securities and Exchange Commission to submit the question
of indemnification to a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify Indemnitee. In addition, the Company and Indemnitee acknowledge
that federal law prohibits indemnification for certain violations of the Employee Retirement Income
Security Act of 1974, as amended. Notwithstanding, unless a final determination of a court of
competent jurisdiction is made which prohibits indemnification hereunder, the terms of this
Agreement shall govern as between the parties.
Section 7.17 Enforcement. The Company agrees that its execution of this Agreement
shall constitute a stipulation by which it shall be irrevocably bound in any court or arbitration
in which a proceeding by Indemnitee for enforcement of Indemnitee’s rights hereunder shall have
been commenced, continued or appealed, that its obligations set forth in this Agreement are unique
and special, and that failure of the Company to comply with the provisions of this Agreement will
cause irreparable and irremediable injury to Indemnitee, for which a remedy at law will be
inadequate. As a result, in addition to any other right or remedy Indemnitee may have at law or in
equity with respect to breach of this Agreement, Indemnitee shall be entitled to injunctive or
mandatory relief directing specific performance by the Company of its obligations under this
Agreement. The Company agrees not to seek, and agrees to waive any requirement for the securing or
posting of, a bond in connection with Indemnitee’s seeking or obtaining such relief.
Section 7.18 Successors and Assigns.
(a) All of the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the parties hereto and their respective
successors, permitted assigns, heirs, executors, administrators, legal representatives.
(b) The Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all or a substantial
part, of the business and/or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place.
Section 7.19 Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of the Company or any affiliate of the Company against
Indemnitee or Indemnitee’s spouse, heirs, executors, or personal or legal representatives after the
expiration of one year from the date of accrual of that cause of action, and any claim or cause of
action of the Company or its affiliate shall be extinguished and deemed released unless asserted by
the timely filing of a legal action within that one-year period; provided, however, that for any
claim based on Indemnitee’s breach of fiduciary duties to the Company or its stockholders, the
period set forth in the preceding sentence shall be three years instead of one year; and provided,
further, that, if any shorter period of limitations is otherwise applicable to any such cause of
action, the shorter period shall govern.
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Section 7.20 Effect on Other Agreements and Rights. THIS AGREEMENT REPLACES AND
SUPERCEDES IN ITS ENTIRETY ANY INDEMNIFICATION OR CONTRIBUTION AGREEMENT (WHETHER WRITTEN OR ORAL)
ENTERED INTO BETWEEN THE COMPANY AND INDEMNITEE PRIOR TO THE DATE HEREOF (A “PRIOR AGREEMENT”),
WHICH PRIOR AGREEMENT SHALL TERMINATE UPON THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
COMPANY AND INDEMNITEE WITHOUT ANY FURTHER LIABILITY OF ANY PARTY THEREUNDER; PROVIDED THAT THIS
AGREEMENT SHALL NOT AFFECT ANY RIGHTS THAT INDEMNITEE MAY HAVE OR BE DEEMED TO HAVE UNDER THE
CHARTER OR BYLAWS OF THE COMPANY AS IN EFFECT ON THE DATE HEREOF OR AS HEREAFTER AMENDED.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to be effective as of
the date first above written.
| TRICO MARINE SERVICES, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE: |
||||
| [Name] | ||||
[SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT]
Schedule 1 to the Indemnification Agreement
Trico Marine Services, Inc. (the “Company”) has entered into indemnification agreements with the
following individuals (all directors or section 16 officers of the Company):
Directors
Xxxxxx X. Xxxxxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Per Xxxxxx
Xxxx Xxxxxxxx
Xxxxxx Xxxxxxxxx
Xxx Xxxxx
Officers
Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx Xxxxxxx
Xxx Xxxxxx
