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EXHIBIT 10.9
INDEMNIFICATION AGREEMENT
This AGREEMENT is made and entered into this ___ of _____,
2001, by and between Torch Offshore, Inc., a Delaware corporation (the
"Company"), and ___________________ (the "Indemnitee").
WHEREAS, Indemnitee is a director or an executive officer or
both of the Company;
WHEREAS, the Bylaws of the Company provide certain
indemnification rights to directors and executive officers of the Company, and
its directors and executive officers have been otherwise assured
indemnification, as provided by Delaware law;
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's continued
service to the Company in an effective manner and Indemnitee's reliance on past
assurances of indemnification, the Company wishes to provide in this Agreement
for the indemnification of and the advancing of expenses (whether partial or
complete) to Indemnitee to the fullest extent permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and officers' liability
insurance policies;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements contained herein and Indemnitee's continuing to serve
as a director or executive officer of the Company, the parties hereto agree as
follows:
1. Requirement of Indemnity and Advancement of Expenses. The Company
shall indemnify, and advance Expenses (as this and all other capitalized words
are defined in Section 12) 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 thereafter permit. The rights of Indemnitee provided under
the preceding sentence shall include, but not be limited to, the right to be
indemnified to the fullest extent permitted by Section 145(b) of the D.G.C.L. in
Proceedings by or in the right of the Company and to the fullest extent
permitted by Section 145(a) of the D.G.C.L. in all other Proceedings.
2. Expenses as a Witness or Party. If Indemnitee is, by reason of his
Corporate Status, a witness in or a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified 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 any Matter in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf relating to each Matter. The termination of any
Matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such Matter.
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3. Advancement of Expenses. Indemnitee shall be advanced Expenses
within 10 days after requesting them to the fullest extent permitted by Section
145(e) of the D.G.C.L.
4. Written Request. To obtain indemnification, Indemnitee shall submit
to the Company a written request with such information as is reasonably
available to Indemnitee. The Secretary of the Company shall promptly advise the
Board of Directors of such request.
5. Determination of Entitlement Prior to a Change in Control. If there
has been no Change of Control at the time the request for indemnification is
sent, Indemnitee's entitlement to indemnification shall be determined in
accordance with Section 145(d) of the D.G.C.L. If entitlement to indemnification
is to be determined by Independent Counsel, the Company shall furnish notice to
Indemnitee within 10 days after receipt of the request for indemnification,
specifying the identity and address of Independent Counsel. The Indemnitee may,
within 14 days after receipt of such written notice of selection, deliver to the
Company a written objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected does not meet the
requirements of Independent Counsel and the objection shall set forth with
particularity the factual basis of such assertion. If there is an objection to
the selection of Independent Counsel, either the Company or Indemnitee may
petition the Court of Chancery of the State of Delaware or any other court of
competent jurisdiction for a determination that the objection is without a
reasonable basis and/or for the appointment of Independent Counsel selected by
the Court.
6. Determination of Entitlement After a Change in Control. If there has
been a Change of Control at the time the request for indemnification is sent,
Indemnitee's entitlement to indemnification shall be determined in a written
opinion by Independent Counsel selected by Indemnitee. Indemnitee shall give the
Company written notice advising of the identity and address of the Independent
Counsel so selected. The Company may, within 7 days after receipt of such
written notice of selection, deliver to the Indemnitee a written objection to
such selection. Indemnitee may, within 5 days after the receipt of such
objection from the Company, submit the name of another Independent Counsel and
the Company may, within 7 days after receipt of such written notice of
selection, deliver to the Indemnitee a written objection to such selection. Any
objection is subject to the limitations in Section 5. Indemnitee may petition
the Court of Chancery of the State of Delaware or any other Court of competent
jurisdiction for a determination that the Company's objection to the first
and/or second selection of Independent Counsel is without a reasonable basis
and/or for the appointment as Independent Counsel of a person selected by the
Court.
7. Presumption and Deemed Determination. If a Change of Control shall
have occurred before the request for indemnification is sent by Indemnitee,
Indemnitee shall be presumed (except as otherwise expressly provided in this
Agreement) to be entitled to indemnification upon submission of a request for
indemnification in accordance with Section 4 of this Agreement, and thereafter
the Company shall have the burden of proof to overcome the presumption in
reaching a determination contrary to the presumption. The presumption shall be
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used by Independent Counsel 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 the investigation, review
and analysis of Independent Counsel convinces him by clear and convincing
evidence that the presumption should not apply.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or persons
empowered under Section 5 or 6 of this Agreement to determine entitlement to
indemnification shall not have made and furnished to Indemnitee in writing a
determination within 60 days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification unless Indemnitee knowingly misrepresented a material fact in
connection with the request for indemnification or such indemnification is
prohibited by law. The termination of any Proceeding or of any 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
Agreement) 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 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.
8. Fees and Expenses of Counsel. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred acting pursuant to
this Agreement and in any proceeding to which it is a party or witness in
respect of its investigation and written report and shall pay all reasonable
fees and expenses incident to the procedures in which such Independent Counsel
was selected or appointed. No Independent Counsel may serve if a timely
objection has been made to his selection until a Court has determined that such
objection is without a reasonable basis.
9. Judicial Determination. In the event that (i) a determination is
made pursuant to Section 5 or 6 that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 3 of this Agreement, (iii) Independent Counsel has not
made and delivered a written opinion determining the request for indemnification
(a) within 90 days after being appointed by the Court, or (b) within 90 days
after objections to his selection have been overruled by the Court, or (c)
within 90 days after the time for the Company or Indemnitee to object to his
selection, or (iv) payment of indemnification is not made within 5 days after a
determination of entitlement to indemnification has been made or deemed to have
been made pursuant to Section 5, 6 or 7 of this Agreement, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of Delaware, or
in any other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. In the event that a determination
shall have been made that Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section shall be
conducted in all respects as a de novo trial on the merits and Indemnitee shall
not be prejudiced by reason of that adverse determination. If a Change of
Control shall have occurred, in any judicial proceeding commenced pursuant to
this Section, the Company shall have the
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burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be. If a determination shall have been
made or deemed to have been made that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding
commenced pursuant to this Section 9, or otherwise, unless Indemnitee knowingly
misrepresented a material fact in connection with the request for
indemnification, or such indemnification is prohibited by law.
The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 9 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Company is bound by all provisions of this
Agreement. In the event that Indemnitee, pursuant to this Section 9, seeks a
judicial adjudication to enforce his rights under, or to recover damages for
breach of, this Agreement, Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses
actually and reasonably incurred by him in such judicial adjudication, but only
if he prevails therein. If it shall be determined in such judicial adjudication
that Indemnitee is entitled to receive part but not all of the indemnification
or advancement of Expenses sought, the Expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be appropriately
prorated.
10. Non-Exclusivity. 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 at any time be entitled
under applicable law, the Certificate of Incorporation, the By-laws, any
agreement, a vote of stockholders or a resolution of directors, or otherwise;
provided, that this Agreement shall supersede any prior agreements, both written
and oral, between Indemnitee and the Company, with respect to the subject matter
hereof. No amendment, alteration or repeal of this Agreement or any provision
hereof shall be effective as to any Indemnitee for acts, events and
circumstances that occurred, in whole or in part, before such amendment,
alteration or repeal. The provisions of this Agreement shall continue as to an
Indemnitee whose Corporate Status has ceased.
11. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Agreement shall be construed so as to give effect and
understandings to the intent manifested by the provision held invalid, illegal
or unenforceable.
12. Definitions. For purposes of this Agreement:
"Change of Control" means a change in control of the Company
after the date hereof in any one of the following circumstances (1) there shall
have occurred an event 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 Securities Exchange Act of
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1934 (the "Act"), whether or not the Company is then subject to such reporting
requirement; (2) any "person" (as such term is used in Section 13(d) and 14(d)
of the Act) shall have become the "beneficial owner" (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing 40% or more of the combined voting power of the Company's then
outstanding voting securities without prior approval of at least two-thirds of
the members of the Board of Directors in office immediately prior to such person
attaining such percentage interest; (3) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; (4) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
"Corporate Status" describes the status of a person who (a) is
or was a director, officer or employee of the Company, or is or was serving at
the request of the Company as a director, officer or employee of another
Company, partnership, joint venture, trust or other enterprise, in each case
which is controlled by the Company, or (b) is or was serving, at the written
request of the Company or pursuant to an agreement in writing with the Company
which request or agreement provides for indemnification, as a director, officer
or employee of another Company, partnership, joint venture, trust or other
enterprise not controlled by the Company, provided that if such written request
or agreement referred to in this clause (b) provides for a lesser degree of
indemnification by the Company than that provided pursuant to this Agreement,
the provisions contained in or made pursuant to such written request or
agreement shall govern. References above to "other enterprises" shall include
employee benefit plans and references to "serving at the request of the Company"
shall include any service as a director, officer or employee which imposes
duties on, or involves services by, such director, officer or employee with
respect to an employee benefit plan or its participants or beneficiaries.
"D.G.C.L." means the Delaware General Corporation Law.
"Disinterested Director" means a director of the Company who
is not and was not a party to the Proceeding in respect of which indemnification
is sought by indemnitee.
"Expenses" shall include 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.
"Indemnitee" includes any person who is, or is threatened to
be made, a witness in or a party to any Proceeding as described in Section 1 or
2 of this Agreement by reason of his Corporate Status.
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"Independent Counsel" means a law firm, or member of a law
firm, that is experienced in matters of Company law and neither presently is,
nor in the five years previous to his selection or appointment has been,
retained to represent: (i) the Company or Indemnitee in any matter material to
either such party, or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder.
"Matter" is a claim, a material issue, or a substantial
request for relief.
"Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 9 of this Agreement to enforce
his rights under this Agreement.
13. Notices. Any communication required or permitted to the Company
under this Agreement shall be addressed to the Secretary of the Company and any
such communication to Indemnitee shall be addressed to his home address unless
he specifies otherwise and shall be personally delivered or delivered by
overnight mail delivery.
14. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, 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
Company director or officer.
15. Waiver. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
16. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights; provided however, that the Company shall not enforce any of
such rights in any manner or at any time as would prevent or delay payment to
Indemnitee of all amounts owing to him.
17. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors (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), assigns, spouses, heirs, executors, administrators and personal
and legal representatives.
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18. Effective Date. This Agreement shall be effective as of the date
hereof and shall apply to any claim for indemnification by the Indemnitee on or
after such date.
19. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws thereof.
20. Captions; Headings. The captions and headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.
TORCH OFFSHORE, INC.
By:
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Name:
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Title:
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[Name]
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