INDEMNITY AGREEMENT
EXHIBIT 10.1
THIS
INDEMNITY AGREEMENT (this “Agreement”), made and entered into as of this ___ day of
___, 2009, by and between NOBLE CORPORATION, a Swiss corporation (the “Company”), and
(“Indemnitee”), who is currently serving or will serve the Company in the capacity
of a director and/or officer thereof;
WHEREAS, Noble Corporation, a Cayman Islands company and wholly owned subsidiary of the
Company (“Noble-Cayman”), and Indemnitee have previously entered into an Indemnity Agreement dated
as of (the “Original Indemnity Agreement”); and
WHEREAS, the parties desire to enter into this Agreement in order to provide Indemnitee the
same protections and indemnification provided to Indemnitee under the Original Indemnity Agreement,
to the extent permitted by law; and
(a) The term “Proceeding” shall mean any action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such an action, suit or proceeding, and
any inquiry or investigation that could lead to such an action, suit or proceeding, except one
initiated by Indemnitee to enforce his rights under this Agreement.
(b) The term “Expenses” includes, without limitation, all reasonable attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees
and all other disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to
be a witness in a Proceeding.
(c) References to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any (i) excise taxes assessed with respect to any employee benefit plan and
(ii) penalties; references to “serving at the request of the Company” shall include any service as
a director, officer, employee or agent of the Company which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an
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employee benefit plan, its participants or beneficiaries; and a person who acts in good faith
and in a manner he reasonably believes to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best
interests of the Company” as referred to in this Agreement.
4. Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is a party to or is
threatened to be made a party to or otherwise involved in any threatened, pending or completed
Proceeding by or in the right of the Company to procure a judgment in its favor by reason of the
fact that Indemnitee is or was a director and/or officer of the Company, or is or was serving at
the request of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all Expenses actually and reasonably
incurred by Indemnitee in connection with the defense, settlement or other disposition of such
Proceeding, but only if he acted in good faith and in a manner that he reasonably believed to be in
or not opposed to the best interests of the Company, except that no indemnification shall be made
under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged to be liable to the Company unless and only to the extent that the court in which
such Proceeding was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses as such court shall deem proper.
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7. Right of Indemnitee to Indemnification or Advancement of Expenses Upon Application;
Procedure upon Application.
(a) Any indemnification under Sections 3 and/or 4 of this Agreement shall be made no later
than 45 days after receipt by the Company of the written request of Indemnitee, unless a
determination is made within said 45-day period by (i) a majority vote of the directors of the
Company who are not parties to the involved Proceeding, even though less than a quorum, or (ii)
independent legal counsel in a written opinion (which counsel shall be appointed if there are no
such directors or if such directors so direct), that Indemnitee has not met the applicable
standards for indemnification set forth in Section 3 or 4, as the case may be.
(b) Any advancement of Expenses under Section 6 of this Agreement shall be made no later than
10 days after receipt by the Company of Indemnitee’s Undertaking.
(c) In any action to establish or enforce the right of indemnification or to receive
advancement of Expenses as provided in this Agreement, the burden of proving that indemnification
or advancement of Expenses is not appropriate shall be on the Company. Neither the failure of the
Company (including its board of directors or independent legal counsel) to have made a
determination prior to the commencement of such action that indemnification or advancement of
Expenses is proper in the circumstances because Indemnitee has met the applicable standard of
conduct, nor an actual determination by the Company (including its board of directors or
independent legal 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. Expenses incurred by Indemnitee in connection with successfully establishing
or enforcing his right of indemnification or to receive advancement of Expenses, in whole or in
part, under this Agreement shall also be indemnified by the Company.
8. Indemnification and Advancement of Expenses under this Agreement Not Exclusive. The rights
of indemnification and to receive advancement of Expenses as provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may be entitled under the Articles of
Association of the Company, any other agreement, any vote of shareholders of the Company, Swiss
corporate law, or otherwise, both as to action in his official capacity and as to action in another
capacity while holding such office.
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any Proceeding, but not, however, for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
11. No Construction as an Employment Agreement or Any Other Commitment. Nothing contained in
this Agreement shall be construed as giving Indemnitee any right to be retained in the employ of
the Company or any of its subsidiaries, if Indemnitee currently serves as an officer of the
Company, or to be renominated as a director of the Company, if Indemnitee currently serves as a
director of the Company.
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to the person to whom such notice or communication is directed at the address of such person
on the records of the Company, and such notice or communication shall be deemed given or made at
the time when the same shall be so deposited in the United States mail. Any such notice or
communication to the Company shall be addressed to the Secretary of the Company.
(a) This Agreement may be executed in any number of counterparts, each of which shall
constitute one and the same instrument, and either party hereto may execute this Agreement by
signing any such counterpart.
(b) No provision of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Indemnitee and an appropriate
officer of the Company. No waiver by any party at any time of any breach by any other party of, or
compliance with, any condition or provision of this Agreement to be performed by any other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same time or at
any prior or subsequent time.
(c) Section headings are not to be considered part of this Agreement, are solely for
convenience of reference, and shall not affect the meaning or interpretation of this Agreement or
any provision set forth herein.
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(d) Pronouns in masculine, feminine and neuter genders shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural and vice versa,
unless the context otherwise requires.
22. Exclusive Jurisdiction; Governing Law. The Company and Indemnitee agree that all disputes
in any way relating to or arising under this Agreement, including, without limitation, any action
for advancement of Expenses or indemnification, shall be litigated, if at all, exclusively in the
courts of Texas, and, if necessary, the corresponding appellate courts. This Agreement shall be
governed by and construed and enforced in accordance with the laws of Texas applicable to contracts
made and to be performed in such jurisdiction without giving effect to the principles of conflicts
of laws. The Company and Indemnitee expressly submit themselves to the personal jurisdiction of
Texas for the purposes of resolving any dispute relating to or arising under this Agreement.
(a) This Agreement shall terminate upon the mutual agreement of the parties that this
Agreement shall terminate or upon the death of Indemnitee or the resignation, retirement, removal
or replacement of Indemnitee from all of his positions as a director and/or officer of the Company
and any of its subsidiaries.
(b) The termination of this Agreement shall not terminate:
(i) the Company’s liability for claims or actions against Indemnitee arising out of or
related to acts, omissions, occurrences, facts or circumstances occurring or alleged to have
occurred prior to such termination; or
(ii) the applicability of the terms and conditions of this Agreement to such claims or
actions.
[Balance of page left intentionally blank; signature page follows.]
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NOBLE CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
INDEMNITEE | ||||
Name: | ||||
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EXHIBIT A
INDEMNITEE’S UNDERTAKING
, 20__
Noble Corporation
00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxx 00000
00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxx 00000
Gentlemen:
Reference is made to the Indemnity Agreement dated as of March 27, 2009 by and between Noble
Corporation, a Swiss Corporation (the “Company”), and the undersigned Indemnitee, and particularly
to Section 6 thereof relating to advance payment by the Company of certain Expenses incurred by the
undersigned Indemnitee. Capitalized terms used and not otherwise defined in this Indemnitee’s
Undertaking shall have the respective meanings ascribed to such terms in the Agreement.
The undersigned Indemnitee has incurred Expenses pursuant to Section 3 and/or 4 of the
Agreement in connection with a Proceeding. The types and amounts of Expenses are itemized on
Attachment I to this Indemnitee’s Undertaking. The undersigned Indemnitee hereby requests that the
total amount of these Expenses (the “Advanced Amount”) be paid by the Company in advance of the
final disposition of such Proceeding in accordance with the Agreement.
The undersigned Indemnitee hereby agrees to repay the Advanced Amount to the Company to the
extent that it is ultimately determined that the undersigned Indemnitee is not entitled to be
indemnified by the Company. This agreement of Indemnitee to repay shall be unsecured.
Very truly yours, | ||||||
Signature | ||||||
Name of Indemnitee (Type or Print) |
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ATTACHMENT I TO
INDEMNITEE’S UNDERTAKING
INDEMNITEE’S UNDERTAKING
ITEMIZATION OF
TYPES AND AMOUNTS OF EXPENSES
TYPES AND AMOUNTS OF EXPENSES
Attached hereto are receipts, statements or invoices for the following qualifying Expenses
which Indemnitee represents have been incurred by Indemnitee in connection with a Proceeding:
TYPE | AMOUNT | |||
$ | ||||
Total Advanced Amount: |
$ |
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