FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.12
This Indemnification Agreement (this “Agreement”) is made as of December 22, 2009 by
and between ENSCO International Incorporated, a Delaware corporation (“Ensco Delaware”),
and (“Indemnitee”).
PRELIMINARY STATEMENTS
A. Ensco Delaware has entered into and adopted an agreement and plan of merger and
reorganization (the “Merger Agreement”) by and between Ensco Delaware and ENSCO Newcastle
LLC, a Delaware limited liability company (“Ensco Mergeco”), 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 Ensco plc, an
English public limited company (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. In addition to any rights granted Indemnitee under the articles of association of the
Company (the “Articles”) or any agreement entered into between Indemnitee and the Company,
the parties desire to enter into this Agreement to provide for the indemnification of, and
advancement of expenses to, Indemnitee to the maximum extent permitted by law.
E. Ensco Delaware has requested that, at or following the Effective Time, the Company
guarantee certain debt and take other actions for the benefit of Ensco Delaware. In partial
consideration therefor, Ensco Delaware has agreed to provide, from time to time after the Effective
Time, indemnity and other rights to the members of the board of directors, secretaries, officers
and executives of the Company as well as to other persons.
AGREEMENT
In consideration of the premises and the covenants contained herein, of Indemnitee serving the
Company or another Enterprise at the request of Ensco Delaware and/or the Company, 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 Ensco Delaware
and/or the Company, 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 Agreement to continue Indemnitee in such position. This Agreement 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 Agreement shall continue in force
after Indemnitee has ceased to serve in such capacity of the Company, subject to and in accordance
with Section 16.
2. Definitions. As used in this Agreement:
(a) “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 Ensco
Delaware and/or the Company, his status as such director, secretary, officer, executive, trustee,
partner, managing member, employee, agent or fiduciary.
(b) “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 Ensco Delaware and/or the Company as a director,
secretary, officer, executive, trustee, partner, managing member, employee, agent or fiduciary.
(c) “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 14(d). The parties agree that for the purposes
of any advancement of Expenses for which Indemnitee has made written demand to Ensco Delaware in
accordance with this Agreement, 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.
(d) “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 Agreement, 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 Agreement.
(e) 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, secretary, officer or executive of the Company, by reason of any action or
inaction taken by him or of any
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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 at the request of Ensco Delaware
and/or the Company 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 Agreement; provided, however, other than with
respect to a Proceeding in connection with or arising under this Agreement with respect to the
matters contemplated by or arising under Section 14(d), that the term “Proceeding” shall
not include any action, suit or arbitration initiated by Indemnitee to enforce Indemnitee’s rights
under this Agreement.
3. Indemnity in Third-Party Proceedings. Ensco Delaware shall 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, other than a Proceeding by or in the right of
the Company or Ensco Delaware to procure a judgment in its favor. Pursuant to this Section
3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law 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, if Indemnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company and, in the case of a criminal proceeding, had no reasonable cause to believe that his
conduct was unlawful. Indemnitee shall not enter into any settlement in connection with a
Proceeding without 10 days prior notice to Ensco Delaware.
4. Indemnity in Proceedings by or in the Right of the Company or Ensco Delaware.
Ensco Delaware shall indemnify Indemnitee in accordance with the provisions of this Section
4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding
by or in the right of the Company or Ensco Delaware to procure a judgment in its favor. Pursuant
to this Section 4, Indemnitee shall be indemnified to the fullest extent permitted by
applicable law against all Expenses actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company. If applicable law so provides, no indemnification for Expenses shall be made under this
Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court to be liable to the Company, unless and only to the extent that the
Delaware Court of Chancery (the “Delaware Court”) or any court in which the 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 indemnification
for such Expenses as the Delaware Court or such other court shall deem proper.
5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, 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 defense of any claim, issue or
matter therein, in whole or in part, Ensco Delaware 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, Ensco Delaware 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 5 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.
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6. Indemnification For Expenses of a Witness. Notwithstanding any other provision of
this Agreement, 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.
7. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by Ensco Delaware 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, Ensco Delaware shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
8. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, Ensco
Delaware 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 8(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 General Corporation Law of the
State of Delaware (the “DGCL”) that authorize, permit or contemplate additional
indemnification by agreement, court action or the corresponding provision of any amendment to or
replacement of the DGCL or such provisions thereof;
(ii) 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;
(iii) 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
(iv) to the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL or 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 Agreement that increase the extent to
which a company may indemnify its directors, secretaries, officers and executives.
9. Exclusions. Notwithstanding any provision in this Agreement to the contrary, and
unless otherwise permitted by applicable law, Ensco Delaware shall not be obligated under this
Agreement to make any payment pursuant to this Agreement:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond the amount paid under
any insurance policy or other indemnity provision;
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(b) for (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);
(c) for which payment is expressly prohibited by law; or
(d) except as provided in Section 14(d) of this Agreement, in connection with any
Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or
any part of any Proceeding) initiated by Indemnitee against Ensco Delaware or the Company or its
directors, officers, employees or other indemnitees, unless (i) the board of directors of Ensco
Delaware 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)
Ensco Delaware 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 10 or
otherwise under this Agreement 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
Agreement or as otherwise expressly required by law.
10. Advances of Expenses. Ensco Delaware 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 30 days after the receipt by
Ensco Delaware 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 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 Agreement. In accordance with Section 14(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 Agreement (including rights to
indemnity generally), including Expenses incurred preparing and forwarding statements to Ensco
Delaware to support the advances claimed. The Indemnitee shall qualify for advances upon the
execution and delivery to Ensco Delaware of this Agreement which shall constitute an undertaking
providing that the Indemnitee undertakes to repay the advance of Expenses 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 Ensco Delaware. This Section 10 shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to Section 9 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
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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 12 shall not apply to advancement of Expenses as contemplated by this Section
10.
11. Procedure for Notification and Defense of Claim.
(a) To obtain indemnification under this Agreement or advancement of Expenses or other costs
or expenses, including attorney’s fees and disbursements, contemplated hereby, Indemnitee shall
submit to Ensco Delaware a written request therefor.
(b) Ensco Delaware will be entitled to participate in the Proceeding at its own expense.
(c) Ensco Delaware shall not settle any Proceeding (in whole or in part) if such settlement
would impose any Expense, judgment, liability, fine, penalty or limitation on Indemnitee which
Indemnitee is not entitled to be indemnified hereunder without the Indemnitee’s prior written
consent.
12. Procedure Upon Application for Indemnification.
(a) Ensco Delaware shall promptly provide the indemnification rights and undertake related
obligations contemplated by this Agreement. If Indemnitee submits a request for indemnification
pursuant to Section 11(a), Ensco Delaware 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 Ensco Delaware, at Indemnitee’s election, that the board of
directors of Ensco Delaware 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 Ensco Delaware, 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 Ensco
Delaware (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and
Ensco Delaware hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) The Independent Counsel shall be selected by Indemnitee and notified in writing to Ensco
Delaware. Ensco Delaware 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 11(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
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which shall have been made by Ensco Delaware 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 12(a).
Upon the due commencement of any judicial proceeding or arbitration pursuant to Section
14(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 Ensco Delaware 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) Ensco Delaware 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 Agreement or its engagement pursuant
hereto.
13. 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 Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 11(a), and Ensco
Delaware 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 Ensco Delaware (or its directors) or of Independent Counsel to have made a determination
prior to the commencement of any action pursuant to this Agreement that indemnification is proper
in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual
determination by Ensco Delaware (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 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.
(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 Ensco Delaware or counsel selected by any
committee of the board of directors of Ensco Delaware 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 Ensco Delaware or the board of directors of
Ensco Delaware or any committee of the board of directors of Ensco Delaware. The provisions of
this Section 13(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 Agreement.
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(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 Agreement.
14. Remedies of Indemnitee.
(a) Subject to Section 14(e), in the event that (i) a determination is made pursuant
to Section 12 that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 10, (iii) no determination
of entitlement to indemnification shall have been made pursuant to Section 12(a) within 90
days after receipt by Ensco Delaware of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 5 or 6 or the last sentence of
Section 12(a) within 10 days after receipt by Ensco Delaware of a written request therefor,
or (v) payment of indemnification pursuant to Section 3, 4 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 14(a);
provided, however, that the foregoing clause shall not apply in respect of a
proceeding brought by Indemnitee to enforce his rights under Section 5. 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 12(a)
that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 14 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 14, Ensco Delaware 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 12(a) that Indemnitee
is entitled to indemnification, Ensco Delaware shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) an
express prohibition of such indemnification under applicable law.
(d) Ensco Delaware shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14
that the procedures and presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court or before any such arbitrator that Ensco Delaware is bound by all
the provisions of this Agreement. It is the intent of Ensco Delaware 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 Agreement by
litigation or otherwise because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. Ensco Delaware 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 Ensco Delaware 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
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indemnification or advancement of Expenses from Ensco Delaware under this Agreement 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 Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding, including any appeal therein.
(f) To the extent that Ensco Delaware 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.
15. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed 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
Agreement 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, Delaware 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 Agreement, 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 Agreement or of any provision hereof shall limit or restrict any right of Indemnitee
under this Agreement 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 Delaware 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
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change and this Agreement 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 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 Ensco Delaware or the Company (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 Ensco Delaware or the Company would have the
power to indemnify such person against such covered liability under this Agreement). If, at the
time of the receipt of a notice of a claim pursuant to the terms hereof, Ensco Delaware or the
Company has such liability insurance in effect, Ensco Delaware shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the procedures set forth in the
respective policies. Ensco Delaware and the Company
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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 Agreement, 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 Ensco Delaware 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) Ensco Delaware shall not be liable under this Agreement 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 Indemnitee) such payment under any insurance policy, contract, agreement or otherwise.
(e) Ensco Delaware’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.
16. Duration of Agreement. This Agreement 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
Ensco Delaware and/or the Company 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 14 relating thereto.
17. Successors and Assigns. The indemnification and advancement of expenses rights
provided by or granted pursuant to this Agreement 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 Ensco Delaware or the Company), 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. Ensco Delaware and the Company shall require
and shall cause any successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of Ensco Delaware or the Company
to, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that Ensco Delaware would
be required to perform if no such succession had taken place. Failure to comply with the foregoing
shall be a breach of this Agreement.
18. Severability. If any provision or provisions of this Agreement 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 Agreement (including without limitation, each
portion of any Section of this Agreement 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 Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such
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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.
19. Enforcement.
(a) Ensco Delaware expressly confirms and agrees that it has entered into this Agreement 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 Ensco Delaware acknowledges that Indemnitee is
relying upon this Agreement in serving as a director, secretary, officer or executive of the
Company.
(b) This Agreement 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 Ensco Delaware (or any of its subsidiaries or any Enterprise), it being
the intention of Ensco Delaware and the Company 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 Agreement 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.
20. Modification and Waiver. No supplement, modification or amendment, or wavier of
any provision, of this Agreement shall be binding unless executed in writing by the parties
thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing
waiver.
21. Notice by Indemnitee. Indemnitee agrees promptly to notify Ensco Delaware 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 Ensco Delaware
shall not relieve Ensco Delaware of any obligation which it may have to the Indemnitee under this
Agreement or otherwise.
22. Notices. All notices, requests, demands and other communications under this
Agreement 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 Ensco Delaware.
(b) if to Ensco Delaware, to:
ENSCO International Incorporated
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention:
E-mail:
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention:
E-mail:
or to any other addresses as may have been furnished to Indemnitee by Ensco Delaware.
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23. Contribution. To the fullest extent permissible under applicable law, if the
indemnification and/or advancement of Expenses provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, Ensco Delaware, 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 Agreement, 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 Ensco Delaware 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 Ensco Delaware (and its directors, secretaries, officers, executives, employees
and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
24. Applicable Law and Consent to Jurisdiction. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 14(a), Ensco
Delaware and Indemnitee hereby irrevocably and unconditionally (a) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought only in the
Delaware Court, and not in any other state or federal court in the United States of America or any
court in any other country, (b) consent to submit to the exclusive jurisdiction of the Delaware
Court for purposes of any action or proceeding arising out of or in connection with this Agreement,
(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 as such party’s agent 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 the State of Delaware, (d) waive any objection to the laying of venue of
any such action or proceeding in the Delaware Court, and (e) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought in the Delaware Court has been brought
in an improper or inconvenient forum.
25. Third Party Beneficiaries. Nothing in this Agreement 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.
26. Counterparts. This Agreement 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 Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this Agreement.
27. Headings. The headings of the sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
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The parties have caused this Agreement to be signed as of the day and year first above
written.
| ENSCO INTERNATIONAL INCORPORATED |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| INDEMNITEE |
|||||
| By: | |||||
| Name: | |||||
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