DEED OF INDEMNITY
Exhibit 10.13
This Deed of Indemnity (this “Deed”) is made as of December 22, 2009 by and between
Ensco International plc, a public limited company incorporated in England (the “Company”),
and ______________ (“Indemnitee”).
PRELIMINARY STATEMENTS
A. ENSCO International Incorporated, a Delaware corporation (“Ensco Delaware”) and
ENSCO Newcastle LLC, a Delaware limited liability company (“Ensco Mergeco”), have entered
into and adopted an agreement and plan of merger and reorganization (the “Merger
Agreement”) whereby Ensco Mergeco will merge with and into Ensco Delaware (the
“Merger”).
B. Upon completion of the transactions contemplated by the Merger Agreement (the
“Effective Time”), Ensco Delaware will become the wholly-owned subsidiary of the Company,
and as a result, each issued and outstanding share of the common stock of Ensco Delaware will be
converted into the right to receive one American depositary share representing one Class A Ordinary
Share of the Company.
C. The Company and Ensco Delaware desire to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve the Ensco group of companies and provide for
the indemnification of, and advancement of expenses to, such persons to the maximum extent
permitted by law.
D. The articles of association of the Company (the “Articles”) provide for
the provision to its directors and officers and certain other persons of the benefit of an
indemnity in respect of certain matters and in addition to any rights granted to Indemnitee under
any agreement entered into between Indemnitee and the Company, the parties desire to enter into
this Deed to provide for the indemnification of, and advancement of expenses to, Indemnitee to the
maximum extent permitted by law.
E. Indemnitee has been asked to serve as a director, secretary, officer or executive of the
Company and, as partial consideration for agreeing to do so, the Company has agreed to enter into
this Deed with Indemnitee.
AGREEMENT
In consideration of the premises and the covenants contained herein, of Indemnitee serving the
Company or another Enterprise directly or at the request of the Company and/or Ensco Delaware, and
for other good and valuable consideration, receipt of which is hereby acknowledged, and intending
to be legally bound hereby, the parties do hereby agree as follows:
1. Services to the Company. Indemnitee has agreed, at the request of the Company
and/or Ensco Delaware, to serve as a director, secretary, officer or executive of the Company. In
the event that at any time and for any reason Indemnitee resigns from such position (subject to any
other contractual obligation or any obligation imposed by operation of law), the Company shall have
no obligation under this Deed to continue Indemnitee in such position. This Deed is not an
employment contract between the Company or Ensco Delaware (or any of their subsidiaries or any
Enterprise) and Indemnitee. The foregoing notwithstanding, this Deed shall continue in force after
Indemnitee has ceased to serve in such capacity of the Company, subject to and in accordance with
Section 15.
2. Definitions. As used in this Deed:
(a) “Associated Company” shall be construed in accordance with the Companies Xxx 0000
(the “CA 2006”).
(b) “Corporate Status” means in respect of a person who is or was a director,
secretary, officer, executive, trustee, partner, managing member, employee, agent or fiduciary of
the Company or of any other Enterprise which such person is or was serving at the request of the
Company and/or Ensco Delaware, his status as such director, secretary, officer, executive, trustee,
partner, managing member, employee, agent or fiduciary.
(c) “Enterprise” shall mean the Company and any other corporation, 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 and/or Ensco Delaware as a director,
secretary, officer, executive, trustee, partner, managing member, employee, agent or fiduciary.
(d) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts and other professionals, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees
and all other disbursements, obligations or expenses of the types customarily incurred in
connection with, or as a result of, prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a deponent or witness in, or otherwise participating in, a
Proceeding. Expenses also shall include (i) Expenses incurred in connection with any appeal
resulting from any Proceeding, including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, (ii)
Expenses incurred in connection with recovery under any directors’ and officers’ liability
insurance policies maintained by the Company or Ensco Delaware, regardless of whether the
Indemnitee is ultimately determined to be entitled to such indemnification, advancement or Expenses
or insurance recovery, as the case may be, and (iii) Expenses incurred in connection with matters
contemplated by or arising under Section 13(d). The parties agree that for the purposes
of any advancement of Expenses for which Indemnitee has made written demand to the Company in
accordance with this Deed, all Expenses included in such demand that are certified by affidavit of
Indemnitee’s counsel as being reasonable shall be presumed conclusively to be reasonable. Expenses,
however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments,
fines, liabilities, losses or damages against Indemnitee.
(e) “Independent Counsel” means a law firm, or a partner (or, if applicable, member)
of such a law firm, that is experienced in matters of corporation law and neither at the time of
engagement is, nor in the five years prior to such engagement has been, retained to represent: (i)
the Company, Ensco Delaware or Indemnitee in any matter material to either such party (other than
with respect to matters concerning the Indemnitee under this Deed, or of other indemnitees under
similar indemnification agreements); or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel”
shall not include any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company, Ensco Delaware or
Indemnitee in an action to determine Indemnitee’s rights under this Deed.
(f) The term “Proceeding” shall mean any proceeding including any threatened, pending
or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of the Company or otherwise and
whether of a civil, criminal, administrative, regulatory, legislative or investigative (formal or
informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved
as a party, potential party, non-party witness or otherwise by reason of the fact that Indemnitee
is or was a director,
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secretary, officer or executive of the Company, by reason of any action or inaction taken by
him or of any action or inaction on his part while acting as director, secretary, officer or
executive of the Company, or by reason of the fact that he is or was serving as a director,
secretary, officer, executive, employee or agent of the Company or another 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 Deed;
provided, however, other than with respect to a Proceeding in connection with or
arising under this Deed with respect to the matters contemplated by or arising under Section
13(d), that the term “Proceeding” shall not include any action, suit or arbitration initiated
by Indemnitee to enforce Indemnitee’s rights under this Deed.
3. Indemnity. The Company shall, to the extent not prohibited by law and subject to
Section 8, indemnify Indemnitee in accordance with the provisions of this Section 3
if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding,
against all Expenses, demands, actions, payments, judgments, fines, liabilities, losses, damages
and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, arising out of or in
connection with:
(a) his appointment or service as a director of the Company or to any other Corporate Status;
(b) an act done, concurred in or omitted to be done (including any inaction) by the Indemnitee
in connection with the Indemnitee’s performance of his functions, or service, as a director of the
Company or as a holder of any other Corporate Status; or
(c) an investigation, examination or other Proceeding ordered or commissioned in connection
with the affairs of the Company, or of any other Enterprise including the same reasonably incurred
as a result of defending or settling any Proceeding.
4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Deed but subject to Section 8, to the fullest
extent permitted by applicable laws and to the extent that Indemnitee is a party to or a
participant in and is successful, on the merits or otherwise, in any Proceeding or in defence of
any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection with (a) each successfully resolved claim, issue or
matter and (b) any claim, issue or matter related to any such successfully resolved claim, issue or
matter to the fullest extent permitted by applicable law. For purposes of this Section 4
and without limitation, the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,
issue or matter. This provision is in addition to, and not by way of limitation of, any other
rights of Indemnitee hereunder.
5. Indemnification For Expenses of a Witness. Notwithstanding any other provision of
this Deed but subject to Section 8, to the fullest extent permitted by applicable law and
to the extent that Indemnitee is, by reason of his Corporate Status, a witness or otherwise asked
to participate in any aspect of a Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
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6. Partial Indemnification. If Indemnitee is entitled under any provision of this
Deed to indemnification by the Company for some or a portion of Expenses or other costs or
expenses, including attorney’s fees and disbursements, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
7. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3 but subject to Section 8, the
Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee
is a party to or participant in or is threatened to be made a party to any Proceeding (including a
Proceeding by or in the right of the Company or Ensco Delaware to procure a judgment in its favor)
against all Expenses, demands, actions, payments, judgments, fines, liabilities, losses, damages
and amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in
connection with the Proceeding.
(b) For purposes of Section 7(a), the meaning of the phrase “to the fullest extent
permitted by applicable law” shall include, but not be limited to:
(i) to the fullest extent permitted by the provisions of the Articles that authorize, permit
or contemplate additional indemnification by agreement, court action or the corresponding provision
of any amendment to or replacement of the Articles or such provisions thereof;
(ii) to the fullest extent permitted by the provisions of English law that authorize, permit
or contemplate additional indemnification by agreement, court action or the corresponding provision
of any amendment to or replacement of English law or such provisions thereof; and
(iii) to the fullest extent authorized or permitted by any amendments to or replacements of
English law (or such successor law), the Articles or the agreement or court action adopted, entered
into or that are adjudicated after the date of this Deed that increase the extent to which a
company may indemnify its directors, secretaries, officers and executives.
8. Exclusions. Notwithstanding any provision in this Deed to the contrary, the
Company does not under this Deed make any indemnity in respect of:
(a)
any claim brought against the Indemnitee by the Company or an Associated Company for negligence,
default, breach of duty or breach of trust;
| (b) | any liability of the Indemnitee to pay: |
| (i) | a fine imposed in criminal proceedings; or | ||
| (ii) | a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising); |
| (c) | any liability incurred by the Indemnitee: |
| (i) | in defending any criminal proceedings in which he is convicted; |
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| (ii) | in defending any civil proceedings brought by the Company or an Associated Company in which judgment is given against him; or | ||
| (iii) | in connection with any application under Section 661(3) or (4) CA 2006 or Section 1157 CA 2006 in which the court refuses to grant the Director relief; |
and references to a conviction, judgment or refusal of relief are to the final decision in the
proceedings which shall be determined in accordance with Section 234(5) CA2006;
(d) any claim for which payment has actually been made to or on behalf of Indemnitee under any
insurance policy or other provision, except with respect to any excess beyond the amount paid under
any insurance policy or other indemnity provision;
(e) (i) an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the U.S. Securities
Exchange Act of 1934, as amended, or any successor provision or similar provisions of state
statutory or common law, or (ii) any reimbursement of the Company by the Indemnitee of any bonus or
other incentive-based or equity-based compensation or of any profits realized by the 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 due to the material
noncompliance of the Company, as a result of the misconduct of Indemnitee, with any financial
reporting requirement under the securities laws pursuant to Section 304 of the Xxxxxxxx-Xxxxx 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);
(f) any claim for which payment is expressly prohibited by law; or
(g) except as provided in Section 13(d) of this Deed, 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 Ensco Delaware or its directors, officers, employees
or other indemnitees, unless (i) the board of directors of the Company authorized the Proceeding
(or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection
with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by
Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in Ensco Delaware under
applicable law.
These exclusions shall not limit the right to advancement of Expenses under Section 9 or
otherwise under this Deed pending the outcome of any Proceeding unless such advancement of Expenses
is expressly prohibited by law. Notwithstanding the foregoing, this provision shall not limit
Indemnitee’s obligation to repay Expenses as expressly contemplated elsewhere in this Deed or as
otherwise expressly required by law.
9. Advances of Expenses. The Company shall advance, to the extent not prohibited by
law, the Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding (or any
part of any Proceeding), and such advancement shall be made within 20 days after the receipt by the
Company of a statement or statements requesting such advances (which shall include invoices
received by Indemnitee in connection with such Expenses but, in the case of invoices in connection
with legal services, any references to legal work performed or to expenditures made that would
cause Indemnitee to waive any privilege accorded by law shall not be included with the invoice)
from time to time, whether prior to or
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after final disposition of any Proceeding. Advances shall be unsecured and interest free.
Advances shall be made without regard to Indemnitee’s ability to repay the expenses and without
regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this
Deed. In accordance with Section 13(d), advances shall include any and all reasonable
Expenses incurred pursuing an action to enforce this right of advancement and to enforce
Indemnitee’s rights generally under this Deed (including rights to indemnity generally), including
Expenses incurred preparing and forwarding statements to the Company to support the advances
claimed. The Indemnitee shall qualify for advances upon the execution and delivery to the Company
of this Deed which shall constitute an undertaking providing that the Indemnitee undertakes to
repay the advance of Expenses in the circumstances and at the time set out in s205 CA 2006 and
otherwise to the extent required by law if and to the extent that it is ultimately determined by a
court of competent jurisdiction in a final judgment, not subject to appeal, or other competent
authority or arbitrator, that Indemnitee is not entitled to be indemnified by the Company. This
Section 9 shall not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to Section 8 following the ultimate determination by a court of competent
jurisdiction in a final judgment, not subject to appeal, or other competent authority or
arbitrator. The right to advances under this paragraph shall in all events continue until final
disposition of any Proceeding, including any appeal therein. For the avoidance of doubt, the
provisions of Section 11 shall not apply to advancement of Expenses as contemplated by this
Section 9.
10. Procedure for Notification and Defence of Claim.
(a) To obtain indemnification under this Deed or advancement of Expenses or other costs or
expenses, including attorney’s fees and disbursements, contemplated hereby, Indemnitee shall submit
to the Company a written request therefor.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any Proceeding (in whole or in part) if such settlement would
impose any Expenses, demands, actions, payments, judgments, fines, liabilities, losses, damages and
amounts paid in settlement on Indemnitee for which Indemnitee is not entitled to be indemnified
hereunder without the Indemnitee’s prior written consent.
11. Procedure Upon Application for Indemnification.
(a) The Company shall promptly provide the indemnification rights and undertake related
obligations contemplated by this Deed. If Indemnitee submits a request for indemnification
pursuant to Section 10(a), the Company shall advise Indemnitee in writing within 30 days
from the date of such request whether it agrees to provide indemnification or that it objects to
such request for indemnification. Within 10 days of receipt of such objection, Indemnitee may
submit a request in writing to the Company, at Indemnitee’s election, that the board of directors
of the Company or Independent Counsel shall make a determination with respect to Indemnitee’s
entitlement to indemnification. If such determination is made by Independent Counsel, it shall be
in a written statement to the board of directors of the Company, a copy of which shall be delivered
to Indemnitee and, if it is so determined that Indemnitee is entitled to indemnification, payment
to Indemnitee shall be made within 10 days after such determination. Indemnitee shall cooperate
with the Independent Counsel making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such counsel upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys’ fees and disbursements) incurred by or on behalf of
Indemnitee in so cooperating with the Independent Counsel shall be borne by the Company
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(irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) The Independent Counsel shall be selected by Indemnitee and notified in writing to the
Company. The Company may, within 10 days after written notice of such selection, deliver to the
Indemnitee a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet
the requirements of “Independent Counsel” as defined in Section 2, and the objection shall
set forth with particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If such written objection is
so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel
unless and until such objection is withdrawn or a court has determined that such objection is
without merit. If, within 20 days after the later of submission by Indemnitee of a written request
for indemnification pursuant to Section 10(a), and the final disposition of the Proceeding,
including any appeal therein, no Independent Counsel shall have been selected and not objected to,
the Indemnitee may petition a court of competent jurisdiction for resolution of any objection which
shall have been made by the Company to the 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 all objections are so resolved or the
person so appointed shall act as Independent Counsel under Section 11(a). Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section 13(a),
Independent Counsel shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).
(c) If the Company disputes a portion of the amounts for which indemnification is requested,
the undisputed portion shall be paid and only the disputed portion withheld pending resolution of
any such dispute.
(d) The Company shall pay the reasonable fees and expenses of the Independent Counsel referred
to above and fully indemnify such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Deed or its engagement pursuant hereto.
12. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall, to the fullest extent not prohibited
by law, presume that Indemnitee is entitled to indemnification under this Deed if Indemnitee has
submitted a request for indemnification in accordance with Section 10(a), and the Company
shall have the burden of proof to overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that presumption. Neither the failure of
the Company (or its directors) or of Independent Counsel to have made a determination prior to the
commencement of any action pursuant to this Deed that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (or its directors) or by 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) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Deed) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and
in a manner which
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he reasonably believed to be in or not opposed to the best interests of the Company or, with
respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his
conduct was unlawful.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action or inaction is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to Indemnitee by the
directors or officers of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or the board of directors of the Company or counsel selected by any
committee of the board of directors of the Company or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser, investment
banker or other expert selected with reasonable care by the Company or the board of directors of
the Company or any committee of the board of directors of the Company. The provisions of this
Section 12(c) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct
set forth in this Deed.
(d) The knowledge and/or actions, or failure to act, of any director, secretary, officer,
executive, trustee, partner, managing member, employee, agent or fiduciary of the Enterprise (not
being Indemnitee) shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Deed.
13. Remedies of Indemnitee.
(a) Subject to Section 13(e), in the event that (i) a determination is made pursuant
to Section 12 that Indemnitee is not entitled to indemnification under this Deed, (ii)
advancement of Expenses is not timely made pursuant to Section 9, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 11(a) within 90
days after receipt by the Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 4 or 5 or the last sentence of
Section 11(a) within 10 days after receipt by the Company of a written request therefor, or
(v) payment of indemnification pursuant to Section 3 or 8 is not made within 10
days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee
shall be entitled to apply to court for an adjudication of his entitlement to such indemnification
or advancement of Expenses. Alternatively, Indemnitee, at his 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 proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section 13(a);
provided, however, that the foregoing clause shall not apply in respect of a
proceeding brought by Indemnitee to enforce his rights under Section 4. Neither the
Company nor Ensco Delaware shall oppose Indemnitee’s right to seek any such adjudication or award
in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 11(a)
that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 13 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 that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 13, the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 11(a) that Indemnitee
is entitled to indemnification, the Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this Section 13, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement
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not materially misleading, in connection with the request for indemnification, or (ii) an
express prohibition of such indemnification under applicable law.
(d) The Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Section 13
that the procedures and presumptions of this Deed 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 Deed. It is the intent of the Company that, to the fullest extent permitted by
law, the Indemnitee not be required to incur legal fees or other Expenses associated with the
interpretation, enforcement or defense of Indemnitee’s rights under this Deed by litigation or
otherwise because the cost and expense thereof would substantially detract from the benefits
intended to be extended to the Indemnitee hereunder. The Company shall, to the fullest extent
permitted by law, indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (within 10 days after receipt by the Company of a written request therefor)
advance, to the extent not prohibited by law, such Expenses to Indemnitee, which are incurred by or
on behalf of Indemnitee in connection with any action brought by Indemnitee for indemnification or
advancement of Expenses from the Company under this Deed or under any directors’ and officers’
liability insurance policies maintained by the Company, if, in the case of indemnification,
Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on
the underlying claims, then such indemnification shall be only to the extent Indemnitee is
successful on such underlying claims or otherwise as permitted by law, whichever is greater.
(e) Notwithstanding anything in this Deed to the contrary, no determination as to entitlement
to indemnification under this Deed shall be required to be made prior to the final disposition of
the Proceeding, including any appeal therein.
(f) To the extent that the Company is unable to pay any amounts for indemnification or
advancement of Expenses hereunder, Indemnitee may pursue any other company in the Ensco group to
receive such indemnification or advancement of Expenses.
14. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Deed shall not be exclusive of, a substitute for, or to diminish or abrogate, any other rights to
which Indemnitee may at any time be entitled under applicable law, the Articles, any agreement
(including any agreement between Indemnitee and any other Enterprise), a vote of stockholders or a
resolution of directors, or otherwise, and rights of Indemnitee under this Deed shall supplement
and be in furtherance of any other such rights. More specifically, the parties intend that
Indemnitee shall be entitled to (i) indemnification to the maximum extent permitted by, and the
fullest benefits allowable under, English law in effect at the date hereof or as the same may be
amended to the extent that such indemnification or benefits are increased thereby, and (ii) such
other benefits as are or may be otherwise available to Indemnitee pursuant to this Deed, any other
agreement or otherwise. The rights of Indemnitee hereunder shall be a contract right and, as such,
shall run to the benefit of Indemnitee. No amendment, alteration or repeal of this Deed or of any
provision hereof shall limit or restrict any right of Indemnitee under this Deed in respect of any
action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment,
alteration or repeal. To the extent that a change in English law, whether by statute or judicial
decision, permits greater indemnification or advancement of Expenses than would be afforded
currently, including without limitation under the Articles and/or this Deed, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Deed the greater benefits so afforded by
such change and this Deed shall be automatically amended to provide the Indemnitee with such
greater benefits. No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in addition to every
other right and remedy given hereunder or
9
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment
of any other right or remedy.
(b) To the extent that the Company or Ensco Delaware (including any affiliates) maintains an
insurance policy or policies providing liability insurance for directors, secretaries, officers,
executives, employees or agents of the Company or of any 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, secretary, officer, executive, employee or agent
under such policy or policies (notwithstanding any limitations regarding indemnification or
advancement of Expenses hereunder and whether or not the Company or Ensco Delaware would have the
power to indemnify such person against such covered liability under this Deed). If, at the time of
the receipt of a notice of a claim pursuant to the terms hereof, the Company or Ensco Delaware has
such liability insurance in effect, the Company shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures set forth in the respective
policies. The Company and Ensco Delaware shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies, including by bringing claims against the
insurers.
(c) In the event of any payment under this Deed, the Company and Ensco Delaware shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute at the request of the Company all papers required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable the Company and/or
Ensco Delaware to bring suit to enforce such rights.
(d) The Company shall not be liable under this Deed to make any payment of amounts otherwise
indemnifiable hereunder or for which advancement of Expenses is provided hereunder if and to the
extent that Indemnitee has otherwise actually received (by way of payment to or to the order of the
Indemnitee) such payment under any insurance policy, contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, secretary, officer, executive, trustee,
partner, managing member, employee, agent or fiduciary of any other Enterprise shall be reduced by
any amount Indemnitee has actually received as indemnification or advancement of Expenses from such
other Enterprise.
15. Duration of Deed. This Deed shall continue until and terminate upon the later of
(a) 10 years after the date that Indemnitee shall have ceased to serve at the request of the
Company and/or Ensco Delaware as a director, secretary, officer or executive of the Company or
other Enterprise or (b) one year after the final termination of any Proceeding, including any
appeal, then pending in respect of which Indemnitee is granted rights of indemnification or
advancement of Expenses hereunder and of any proceeding (including any appeal) commenced by
Indemnitee pursuant to Section 13 relating thereto.
16. Successors and Assigns. This Deed shall be binding upon and be enforceable by the
parties hereto and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or substantially all of the
business or assets of the Company or Ensco Delaware), shall continue as to an Indemnitee who has
ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and
shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors
and administrators and other legal representatives. The Company and Ensco Delaware shall require
and shall cause any successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all or substantially all of the
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business or assets of the Company or Ensco Delaware to, by written agreement in form and
substance satisfactory to the Indemnitee, expressly to assume and agree to perform this Deed in the
same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. Failure to comply with the foregoing shall be a breach of this Deed.
17. Severability. The parties intend that the rights granted under this Deed and the
obligations of the Company hereunder comply in all respects with the applicable English law,
including any limitations on indemnity or the ability for Indemnitee to request be excused for
negligence, default, breach of duty or breach of trust (however such limitations or rights may
exist from time to time under English law). If any provision or provisions of this Deed shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Deed (including without limitation, each
portion of any Section of this Deed containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Deed (including, without limitation, each portion
of any Section of this Deed containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.
18. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Deed and assumed
the obligations imposed on it hereby in order to induce Indemnitee to serve as a director,
secretary, officer or executive of the Company, and the Company acknowledges that Indemnitee is
relying upon Deed in serving as a director, secretary, officer or executive of the Company.
(b) This Deed is a supplement to and in furtherance of any obligations of the Articles,
applicable law, agreements or deeds with the Company or any other Enterprise and any applicable
insurance maintained for the benefit of Indemnitee, and shall not supersede, nor diminish or
abrogate any rights of Indemnitee under, any indemnification or other agreements previously entered
into between Indemnitee and the Company and/or Ensco Delaware (or any of its subsidiaries or any
Enterprise), it being the intention of the Company and Ensco Delaware that Indemnitee shall be
entitled to the indemnification provided under any or all agreements to the fullest extent
permitted by law. In the event of a conflict between this Deed and any agreement or deed between
the Company (or any of its subsidiaries or any Enterprise) and Indemnitee, the agreement or deed
(or provision thereof), as applicable, granting Indemnitee the greatest legally enforceable rights
shall prevail.
19. Modification and Waiver. No supplement, modification or amendment, or wavier of
any provision, of this Deed shall be binding unless executed in writing by the parties thereto. No
waiver of any of the provisions of this Deed shall be deemed or shall constitute a waiver of any
other provisions of this Deed nor shall any waiver constitute a continuing waiver.
20. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. 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 Deed or
otherwise.
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21. Notices. All notices, requests, demands and other communications under this Deed
shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and
receipted for by the party to whom said notice or other communication shall have been directed, (b)
mailed by certified or registered mail with postage prepaid, on the third business day after the
date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the
party to whom said notice or other communication shall have been directed or (d) sent by e-mail or
facsimile transmission, with receipt of confirmation that such transmission has been received:
| (a) | if to Indemnitee, at such addresses as Indemnitee shall provide to the Company; |
or
| (b) | if to the Company, to: |
Ensco International Limited
Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx
XX00 0XX
Scotland
Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx
XX00 0XX
Scotland
or to any other addresses as may have been furnished to Indemnitee by the Company.
22. Contribution. To the fullest extent permissible under applicable law, if the
indemnification and/or advancement of Expenses provided for in this Deed is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall
contribute to the amount incurred by Indemnitee, whether for Expenses, judgments, fines,
liabilities, losses, damages, excise taxes and/or amounts paid or to be paid in settlement, in
connection with any claim relating to an indemnifiable event under this Deed, in such proportion as
is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to
reflect: (a) the relative benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding; and/or (b) the relative fault of
the Company (and its directors, secretaries, officers, executives, employees and agents) and
Indemnitee in connection with such event(s) and/or transaction(s).
23. Applicable Law and Consent to Jurisdiction. This Deed and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with, the laws of
England, without regard to its conflict of laws rules. Except with respect to any arbitration
commenced by Indemnitee pursuant to Section 13(a), the Company and Indemnitee hereby
irrevocably and unconditionally (a) agree that any action or proceeding arising out of or in
connection with this Deed may only be brought in English courts or the Delaware Court and not in
any other state or federal court in the United States of America, (b) consent to submit to the
exclusive jurisdiction of English courts or the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Deed, (c) appoint, to the extent such party is
not otherwise subject to service of process in the State of Delaware, The Corporation Trust
Company, Wilmington, Delaware as its agent in the State of Delaware, or to the extent such party is
not otherwise subject to service of process in England, Xxxxx & XxXxxxxx LLP, London, England, for
the attention of the Head of Dispute Resolution, as its agent in England, for acceptance of legal
process in connection with any such action or proceeding against such party with the same legal
force and validity as if served upon such party personally within such jurisdiction, and (d) waive
any objection to the laying of venue in England or the Delaware Court and waive, and agree not to
plead or make, any claim that any such action or proceeding brought in such places has been brought
in an improper or inconvenient forum.
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24. Third Party Beneficiaries. Nothing in this Deed shall be construed for any
shareholder or creditor of the Company to be a third party beneficiary or to confer any such
persons beneficiary rights or status.
25. Counterparts. This Deed may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of which together shall constitute
one and the same Deed. Only one such counterpart signed by the party against whom enforceability
is sought needs to be produced to evidence the existence of this Deed.
26. Headings. The headings of the sections of this Deed are inserted for convenience
only and shall not be deemed to constitute part of this Deed or to affect the construction thereof.
(Remainder of page intentionally left blank)
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The parties have caused this Deed to be signed as of the day and year first above written.
EXECUTED as a deed by Ensco International plc |
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SIGNED as a deed
|
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By in the presence of: |
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Address of witness: |
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