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EXHIBIT 10.1
INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This Indemnification and Contribution Agreement (the "Agreement") is
made as of October 26, 2000, by and between R&B Falcon Corporation, a Delaware
Corporation ("R&B Falcon"), and Transocean Sedco Forex Inc., a Cayman Islands
company ("Transocean") (R&B and Transocean are together referred to as the
"Parties").
W I T N E S S E T H:
WHEREAS, R&B Falcon, Transocean, Transocean Holdings Inc. and TSF
Delaware Inc. entered into an Agreement and Plan of Merger on August 19, 2000
(the "Merger Agreement");
WHEREAS, Transocean filed a Registration Statement on Form S-4 under
the Securities Act of 1933, as amended (the "Act") with the Securities and
Exchange Commission (the "Commission") on September 22, 2000, Registration
Number 333-46374, and filed amendment number 1 thereto on October 26, 2000 (such
registration statement, as it may be amended from time to time, including all
exhibits thereto and documents or filings incorporated therein by reference, is
referred to herein as "Transocean's S-4") in connection with the merger under
the Merger Agreement;
WHEREAS, pursuant to the general instructions of Form S-4, the proxy
statement of R&B Falcon included in Transocean's S-4 is deemed to be filed by
R&B Falcon under Section 14 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
WHEREAS, R&B Falcon intends to offer and sell shares of its common
stock under a Registration Statement on Form S-3 filed with the Commission on
June 16, 2000, Registration Number 333-39500, by means of a prospectus dated
June 27, 2000 and a prospectus supplement dated the date hereof (such prospectus
and prospectus supplement, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
prospectus or prospectus supplement, as the case may be, are referred to herein
collectively as the "Prospectus," and any reference to any amendment or
supplement to the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Prospectus under the Exchange Act, and
incorporated by reference in such Prospectus), in order to fund a tender offer
for and redemption of shares of R&B Falcon's 137/8% Cumulative Redeemable
Preferred Stock (the "Preferred Stock");
WHEREAS, the Prospectus incorporates by reference filings made by R&B
Falcon under Section 14 of the Exchange Act after June 27, 2000, including R&B
Falcon's proxy statement included as a part of Transocean's S-4;
WHEREAS, the Merger Agreement contains covenants prohibiting R&B Falcon
from issuing shares of its common stock and from repurchasing or redeeming
shares of its capital stock, including the Preferred Stock, without the consent
of Transocean;
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WHEREAS, Transocean has consented to R&B Falcon's offer and sale of its
common stock and tender offer for and redemption of its Preferred Stock pursuant
to the terms of a consent dated October 26, 2000;
WHEREAS, R&B Falcon will be required to make certain representations
and warranties to the underwriters in the Underwriting Agreement entered into in
connection with the offer and sale of its common stock, including
representations and warranties regarding Transocean, and will rely on the
representations and warranties of Transocean herein in making such
representations and warranties; and
WHEREAS, the Parties desire to provide for certain indemnification and
contribution arrangements for claims arising in connection with the offer and
sale of R&B Falcon's common stock under the Prospectus;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the Parties agree as follows:
1. Definition of Transocean Information. As used herein, the term
"Transocean Information" means (i) all statements, facts or other information
incorporated by reference into the Prospectus or any supplement or amendment
thereto that is contained in or required to be contained in (A) any report that
is included in the bullet points following "For Transocean Sedco Forex" under
the heading "Where You Can Find More Information" in the Transocean S-4 and any
report filed by Transocean with the Commission after the date hereof that is
incorporated by reference into Transocean's S-4; (B) Transocean's S-4 (but
specifically excluding any material incorporated by reference in the Transocean
S-4) to the extent such information relates solely to Transocean or any
affiliate or controlling person of Transocean, except to the extent such
statement, facts or other information is based on facts or information relating
to R&B Falcon or is based upon the omission or alleged omission of facts or
information relating to R&B Falcon required to be stated therein or necessary to
make the statements therein not misleading; and (ii) the information contained
in Transocean's S-4 under the headings "Unaudited Pro Forma Combined Summary
Financial Information," "Unaudited Comparative Historical and Unaudited Pro
Forma Per Share Data," "Unaudited Pro Forma Financial Information," "Transocean
Sedco Forex Unaudited Condensed Pro Forma Combined Balance Sheet," "Transocean
Sedco Forex Unaudited Condensed Pro Forma Combined Statement Of Operations For
The Six Months Ended June 30, 2000," "Transocean Sedco Forex Unaudited Condensed
Pro Forma Combined Statement Of Operations For The Year Ended December 31,
1999," and "Notes To Unaudited Condensed Pro Forma Combined Financial
Statements," except to the extent such information is based on facts or
information relating to R&B Falcon or is based upon the omission or alleged
omission of facts or information relating to R&B Falcon required to be stated
therein or necessary to make the statements therein not misleading.
2. Representations and Warranties of Transocean. Transocean represents
and warrants to R&B Falcon that Ernst & Young LLP and PricewaterhouseCoopers
LLP, who have certified certain financial statements of Transocean and its
subsidiaries incorporated by reference in the Prospectus, are independent public
accountants as required by the Act.
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3. Indemnification and Contribution.
(a) Transocean will indemnify and hold harmless R&B Falcon
against any losses, claims, damages or liabilities, joint or several, to which
R&B Falcon may become subject, under the Act or otherwise, in connection with
the offer and sale of its common stock under the Prospectus insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) to the
extent, but only to the extent, that the same directly arise out of or are
directly based upon an untrue statement or alleged untrue statement of a
material fact in any Transocean Information, or arise directly out of or are
directly based upon the omission or alleged omission to state a material fact or
necessary to make the statements in such Transocean Information in light of the
circumstances under which they were made not misleading, and will reimburse R&B
Falcon for any reasonable legal or other expenses reasonably incurred by R&B
Falcon in connection with investigating or defending any such action or claim as
such expenses are incurred. Notwithstanding anything to the contrary contained
herein, in no event will Transocean be required to provide any indemnification
or contribution hereunder to the extent of any loss, claim, damage, liability or
action in respect thereof that arises out of or is based upon any untrue
statement or alleged untrue statements of a material fact or that arises out of
or are based upon the omission or alleged omission to state a material fact
that, in either case, relates to (i) any failure of the Merger and related
transactions to be consummated or its conditions to be satisfied; (ii)
allegations that for any reason such Merger could not, would not or was unlikely
to be consummated or similar allegations relating to the Merger or (iii) any
delay related to the Merger.
(b) R&B Falcon will indemnify and hold harmless Transocean
against any losses, claims, damages or liabilities, joint or several, to which
Transocean may become subject, under the Act or otherwise, in connection with
R&B Falcon's offer and sale of its common stock under the Prospectus, to the
extent that such losses, claims, damages or liabilities (or actions in respect
thereof) neither arise out of nor are based upon an untrue statement or alleged
untrue statement of a material fact in any Transocean Information, nor arise out
of nor are based upon the omission or alleged omission to state a material fact
required to be stated in such Transocean Information or necessary to make the
statements in such Transocean Information not misleading in light of the
circumstances under which they were made, and will reimburse Transocean for any
reasonable legal or other expenses reasonably incurred by Transocean in
connection with investigating or defending any such action or claim as such
expenses are incurred. The parties hereto agree and acknowledge that R&B Falcon
is the issuer of securities under the Prospectus and nothing herein is intended
to acknowledge or imply that Transocean has any statutory, common law,
contractual or other liability with respect to the Prospectus to any person
except under the provisions of this Agreement, which are for the sole benefit of
R&B Falcon.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
the indemnified party otherwise than under such subsection. In case any such
action shall be brought against the
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indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Without limiting the generality of any provision hereof,
no indemnifying party shall have liability for any judgment, settlement or
compromise entered into without the consent of the indemnifying party (which
consent may not be unreasonably withheld). No indemnified party shall be
entitled to indemnification or contribution hereunder to the extent such party
encourages a claim to be made or fails to mitigate the losses, claims, damages,
liabilities or actions for which indemnification or contribution is sought
hereunder.
(d) If the indemnification provided for in paragraphs (a) and
(b) is unavailable to or insufficient to hold harmless a party, then each party
shall contribute to such amount paid or payable by such party in proportion as
is appropriate to reflect the relative fault of each party in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Parties agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by a party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such party in connection with investigating or defending any such action or
claim. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(e) The indemnification and contribution provided for in this
Agreement shall apply only to offers and sales by R&B Falcon of its common stock
under the Prospectus and any amendment or supplement thereto that are (i) made
after the date of the Merger Agreement and before the earlier of any termination
of the Merger Agreement or the effective time of the merger thereunder and (ii)
made with the consent of Transocean.
(f) The respective obligations of the Parties under this
Section 3 shall be the exclusive method of indemnification, contribution or
damages as between the two parties with respect to untrue statements,
misstatements or omissions relating to the offers and sales described in Section
3(e) and all other claims or remedies relating thereto are hereby irrevocably
waived as to the other party.
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4. Notices. Any notice, demand or request required or permitted to be
given under this Agreement shall be in writing and shall be deemed sufficient
when delivered personally or sent by facsimile or forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such party's address as
set forth below or as subsequently modified by written notice:
If to R&B Falcon: R&B Falcon Corporation
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Fax No.: (000) 000-0000
If to Transocean: Transocean Sedco Forex, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Fax No.: (000) 000-0000
5. Severability. If any provision of this Agreement is held to be void,
illegal or unenforceable under present or future laws, such provision shall be
fully severable and this Agreement shall be construed and enforced as if such
void, illegal or unenforceable provision never comprised a part hereof, and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected in any way by the void, illegal or unenforceable provision
or by its severance. Furthermore, in lieu of such severed provision, there shall
be added automatically as part of this Agreement a provision as similar in its
terms to such severed provision as may be possible and be valid, legal and
enforceable.
6. Governing Law. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Texas,
without giving effect to principles of conflict of law.
7. Entire Agreement; Enforcement of Rights. This Agreement sets forth
the entire agreement and understanding of the parties relating to the subject
matter herein and merges all prior discussions between them. No modification of
or amendment to this Agreement, nor any waiver of any rights under this
Agreement, shall be effective unless in writing signed by the parties to this
Agreement. The failure by either party to enforce any rights under this
Agreement shall not be construed as a waiver of any rights of such party.
8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
9. Successors And Assigns; No Third Party Beneficiaries. This Agreement
shall be binding upon the Parties and their successors and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their
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respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement. This Agreement and the rights
and obligations hereunder may not be assigned by a party without the written
consent of the other party.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
R&B FALCON CORPORATION
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Executive Vice President
TRANSOCEAN SEDCO FOREX, INC.
By: /s/ Xxx X. Xxxx
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Name: Xxx X. Xxxx
Title: Executive Vice President & CFO
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