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EXHIBIT 10.26
BAYARD DRILLING TECHNOLOGIES, INC.
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into as of August __, 1997
("Agreement"), between Bayard Drilling Technologies, Inc., a Delaware
corporation (the "Company"), and _______________________________ ("Indemnitee").
BACKGROUND STATEMENT AND RECITALS
Highly competent and experienced persons are becoming more
reluctant to serve corporations as directors or in other capacities unless they
are provided with adequate protection through insurance and adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the corporation.
The Board of Directors of the Company (the "Board") has
determined that the inability to attract and retain such persons would be
detrimental to the best interests of the Company and its stockholders and that
the Company should act to assure such persons that there will be increased
certainty of such protection in the future.
The Board has also determined that it is reasonable, prudent
and necessary for the Company, in addition to purchasing and maintaining
directors' and officers' liability insurance (or otherwise providing for
adequate arrangements of self-insurance), contractually to obligate itself to
indemnify such persons to the fullest extent permitted by applicable law so
that they will serve or continue to serve the Company free from undue concern
that they will not be so indemnified.
Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that he
be so indemnified.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, and other good and valuable consideration,
the sufficiency and receipt of which are hereby acknowledged, the parties
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used herein, the following words and terms shall have the
following respective meanings:
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"Change of Control" means a change of control of the Company
occurring after the Public Status Date of a nature that would be 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) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or
not the Company is then subject to such reporting requirement; provided,
however, that, without limiting the generality of the foregoing, a Change of
Control shall be deemed to have occurred (irrespective of the applicability of
the initial clause of this definition) if at any time after the Public Status
Date (a) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding (i) any employee benefit plan of the Company or of
any subsidiary of the Company, and (ii) any entity organized, appointed or
established by the Company pursuant to the terms of any such plan) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 20% or
more of the combined voting power of the Company's then outstanding securities
without the prior approval of at least two-thirds of the members of the whole
Board in office immediately prior to such person attaining such percentage
interest; (b) the Company is a party to a merger, consolidation, share
exchange, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the whole Board
thereafter; or (c) during any period of two consecutive years, individuals who
at the beginning of such period constituted members of the Board (including for
this purpose any new member whose election or nomination for election by the
Company's stockholders was approved by at least two-thirds of the members of
the whole Board then still in office who were members of the Board at the
beginning of such period) cease for any reason to constitute a majority of the
whole Board.
"Claim" means an actual or threatened claim or request for
relief.
"Corporate Status" means the status of a person who is or was
a director, nominee for director, officer, employee, agent or fiduciary of the
Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person is or was serving
at the request of the Company.
"Disinterested Director," with respect to any request by
Indemnitee for indemnification hereunder, means a director of the Company who
neither is nor was a party to the Proceeding or subject to a Claim, issue or
matter in respect of which indemnification is sought by Indemnitee.
"DGCL" means the Delaware General Corporation Law and any
successor statute thereto as either of them may be amended from time to time.
"Expenses" means all 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,
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investigating, being or preparing to be a witness in, or participating in
(including on appeal), a Proceeding.
"Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
contemporaneously is, nor in the five years theretofore has been, retained to
represent (a) the Company or Indemnitee in any matter material to either such
party, (b) any other party to the Proceeding giving rise to a claim for
indemnification hereunder or (c) the beneficial owner, directly or indirectly,
of securities of the Company representing 20% or more of the combined voting
power of the Company's then outstanding voting securities (other than, in each
such case, with respect to matters concerning the rights of Indemnitee under
this Agreement, or of other indemnitees under similar indemnification
agreements). 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 or Indemnitee in an action to determine
Indemnitee's rights under this Agreement.
"person" shall have the meaning ascribed to such term in
Sections 13(d) and 14(d) of the Exchange Act.
"Proceeding" means any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative and whether or not based upon events occurring,
or actions taken, before the date hereof (except any of the foregoing initiated
by Indemnitee pursuant to Article VI or Section 7.8 to enforce his rights under
this Agreement), and any inquiry or investigation that could lead to, and any
appeal in or related to, any such action, suit, arbitration, alternative
dispute resolution mechanism, hearing or proceeding.
"Public Status Date" means the first date on which the Company
has outstanding a class of equity securities registered under the Exchange Act.
ARTICLE II
SERVICES BY INDEMNITEE
Section 2.1 Services. Indemnitee agrees to serve, or
continue to serve, as an officer or director of the Company and, as the Company
has requested or may request from time to time, as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. Indemnitee and the
Company each acknowledge that they have entered into this Agreement as a means
of inducing Indemnitee to serve, or continue to serve, the Company in such
capacities. Indemnitee may at any time and for any reason resign from such
position or positions (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 any such position or positions.
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ARTICLE III
INDEMNIFICATION
Section 3.1 General. The Company shall indemnify, and
advance Expenses 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 from time to time permit. The rights of Indemnitee provided
under the preceding sentence shall include, but shall not be limited to, the
right to be indemnified and to have Expenses advanced in all Proceedings to the
fullest extent permitted by Section 145 of the DGCL. The provisions set forth
in this Agreement are provided in addition to and as a means of furtherance and
implementation of, and not in limitation of, the obligations expressed in this
Article III.
Section 3.2 Proceedings Other Than by or in Right of the
Company. Indemnitee shall be entitled to indemnification pursuant to this
Section 3.2 if, by reason of his Corporate Status, he was, is or is threatened
to be made, a party to any Proceeding, other than a Proceeding by or in the
right of the Company. Pursuant to this Section 3.2, the Company shall
indemnify Indemnitee against Expenses, judgments, penalties, fines and amounts
paid in settlement (including all interest, assessments and other charges paid
or payable in connection with any such Expenses, judgments, penalties, fines
and amounts paid in settlement) actually and reasonably incurred by him or on
his behalf in connection with such Proceeding or any Claim, issue or matter
therein, if he 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 with respect to any
criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful. Nothing in this Section 3.2 shall limit the benefits of Section 3.1
or any other Section hereunder.
Section 3.3 Proceedings by or in Right of the Company.
Indemnitee shall be entitled to indemnification pursuant to this Section 3.3
if, by reason of his Corporate Status, he was, is or is threatened to be made,
a party to any Proceeding brought by or in the right of the Company to procure
a judgment in its favor. Pursuant to this Section 3.3, the Company shall
indemnify Indemnitee against Expenses actually and reasonably incurred by him
or on his behalf in connection with such Proceeding or any Claim, issue or
matter therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company.
Notwithstanding the foregoing, no indemnification against such Expenses shall
be made in respect of any Claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company if applicable
law prohibits such indemnification; provided, however, that, if applicable law
so permits, indemnification against such Expenses shall nevertheless be made by
the Company in such event if and only to the extent that the Court of Chancery
of the State of Delaware or other court of competent jurisdiction (the
"Court"), or the court in which such Proceeding shall have been brought or is
pending, shall so determine. Nothing in this Section 3.3 shall limit the
benefits of Section 3.1 or any other Section hereunder.
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ARTICLE IV
EXPENSES
Section 4.1 Expenses of a Party Who Is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement to the
contrary (except as set forth in Section 7.2(c) or 7.6), and without a
requirement for any determination described in Section 5.2, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with any Proceeding to which Indemnitee was
or is a party by reason of his Corporate Status and in which Indemnitee is
successful, on the merits or otherwise. If Indemnitee is not wholly
successful, on the merits or otherwise, in a Proceeding but is successful, on
the merits or otherwise, as to any Claim, issue or 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 successfully
resolved Claim, issue or matter. For purposes of this Section 4.1 and without
limitation, the termination of a Claim, issue or matter in a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result
as to such Claim, issue or matter.
Section 4.2 Expenses of a Witness or Non-Party.
Notwithstanding any other provision of this Agreement to the contrary, to the
extent that Indemnitee is, by reason of his Corporate Status, a witness or
otherwise participates in any Proceeding at a time when he is not a party in
the Proceeding, the Company shall indemnify him against all Expenses actually
and reasonably incurred by him or on his behalf in connection therewith.
Section 4.3 Advancement of Expenses. The Company shall
pay all reasonable Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding, whether brought by or in the right of the
Company or otherwise, in advance of any determination with respect to
entitlement to indemnification pursuant to Article V within 15 days after the
receipt by the Company of a written request from Indemnitee requesting such
payment or payments from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee. Indemnitee hereby undertakes and
agrees that he will reimburse and repay the Company for any Expenses so
advanced to the extent that it shall ultimately be determined (in a final
adjudication by a court from which there is no further right of appeal or in a
final adjudication of an arbitration pursuant to Section 6.1 if Indemnitee
elects to seek such arbitration) that Indemnitee is not entitled to be
indemnified by the Company against such Expenses.
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ARTICLE V
PROCEDURE FOR DETERMINATION OF ENTITLEMENT
TO INDEMNIFICATION
Section 5.1 Request by Indemnitee. To obtain
indemnification under this Agreement, Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary or an Assistant Secretary of the Company shall,
promptly upon receipt of such a request for indemnification, advise the members
of the Board in writing that Indemnitee has requested indemnification.
Section 5.2 Determination of Request. Upon written
request by Indemnitee for indemnification pursuant to Section 5.1, a
determination, if required by applicable law, with respect to Indemnitee's
entitlement thereto shall be made in the specific case as follows:
(a) If a Change of Control shall have occurred, by
Independent Counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee unless Indemnitee shall request that
such determination be made by the Disinterested Directors, in which
case in the manner provided for in clause (i) of paragraph (b) below;
(b) If a Change of Control shall not have occurred,
(i) by a majority vote of the Disinterested Directors, even though
less than a quorum of the Board, or (ii) if there are no Disinterested
Directors, or if such Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board, a copy of which
shall be delivered to the Indemnitee, or (iii) if Indemnitee and the
Company mutually agree, by the stockholders of the Company; or
(c) As provided in Section 5.4(b).
If it is so determined that Indemnitee is entitled to indemnification
hereunder, payment to Indemnitee shall be made within 15 days after such
determination. Indemnitee shall cooperate with the person or persons making
such determination with respect to Indemnitee's entitlement to indemnification,
including providing to such person upon reasonable advance request any
documentation or information that is not privileged or otherwise protected from
disclosure and that is reasonably available to Indemnitee and reasonably
necessary for such determination. Any costs or expenses (including attorneys'
fees and disbursements) incurred by Indemnitee in so cooperating with the
person or persons making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee's entitlement to
indemnification), and the Company shall indemnify and hold harmless Indemnitee
therefrom.
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Section 5.3 Independent Counsel. If a Change of Control
shall not have occurred and the determination of entitlement to indemnification
is to be made by Independent Counsel, the Independent Counsel shall be selected
by (a) a majority vote of the Disinterested Directors, even though less than a
quorum of the Board or (b) if there are no Disinterested Directors, by a
majority vote of the Board, and the Company shall give written notice to
Indemnitee, within 10 days after receipt by the Company of Indemnitee's request
for indemnification, specifying the identity and address of the Independent
Counsel so selected. If a Change of Control shall have occurred and the
determination of entitlement to indemnification is to be made by Independent
Counsel, the Independent Counsel shall be selected by Indemnitee, and
Indemnitee shall give written notice to the Company, within 10 days after
submission of Indemnitee's request for indemnification, specifying the identity
and address of the Independent Counsel so selected (unless Indemnitee shall
request that such selection be made by the Disinterested Directors, in which
event the Company shall give written notice to Indemnitee, within 10 days after
receipt of Indemnitee's request for the Disinterested Directors to make such
selection, specifying the identity and address of the Independent Counsel so
selected). In either event, (i) such notice to Indemnitee or the Company, as
the case may be, shall be accompanied by a written affirmation of the
Independent Counsel so selected that it satisfies the requirements of the
definition of "Independent Counsel" in Article I and that it agrees to serve in
such capacity and (ii) Indemnitee or the Company, as the case may be, may,
within seven days after such written notice of selection shall have been given,
deliver to the Company or to Indemnitee, as the case may be, a written
objection to such selection. Any objection to selection of Independent Counsel
pursuant to this Section 5.3 may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of the
definition of "Independent Counsel" in Article I, and the objection shall set
forth with particularity the factual basis of such assertion. If such written
objection is timely made, the Independent Counsel so selected may not serve as
Independent Counsel unless and until the Court has determined that such
objection is without merit. In the event of a timely written objection to a
choice of Independent Counsel, the party originally selecting the Independent 8
Counsel shall have seven days to make an alternate selection of Independent
Counsel and to give written notice of such selection to the other party, after
which time such other party shall have five days to make a written objection to
such alternate selection. If, within 30 days after submission of Indemnitee's
request for indemnification pursuant to Section 5.1, no Independent Counsel
shall have been selected and not objected to, either the Company or Indemnitee
may petition the Court for resolution of any objection that shall have been
made by the Company or Indemnitee to the other's 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 an objection is so resolved or the person so
appointed shall act as Independent Counsel under Section 5.2. The Company
shall pay any and all reasonable fees and expenses incurred by such Independent
Counsel in connection with acting pursuant to Section 5.2, and the Company
shall pay all reasonable fees and expenses incident to the procedures of this
Section 5.3, regardless of the manner in which such Independent Counsel was
selected or appointed. Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 6.1, Independent Counsel shall be discharged
and relieved of any further
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responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
Section 5.4 Presumptions and Effect of Certain
Proceedings.
(a) Indemnitee shall be presumed to be entitled
to indemnification under this Agreement upon submission of a request
for indemnification pursuant to Section 5.1, and the Company shall
have the burden of proof in overcoming that presumption in reaching a
determination contrary to that presumption. Such presumption shall be
used by Independent Counsel (or other person or persons determining
entitlement to indemnification) 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.
(b) If the person or persons empowered or
selected under this Article V to determine whether Indemnitee is
entitled to indemnification shall not have made a determination within
60 days after receipt by the Company of Indemnitee's request for
indemnification, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall
be entitled to such indemnification, absent (i) a knowing misstatement
by Indemnitee of a material fact, or knowing omission of a material
fact necessary to make Indemnitee's statement not materially
misleading, in connection with Indemnitee's request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be
extended for a reasonable time, not to exceed an additional 30 days,
if the person making the determination with respect to entitlement to
indemnification in good faith requires such additional time for the
obtaining or evaluating of documentation and/or information relating
to such determination; provided further, that the 60-day limitation
set forth in this Section 5.4(b) shall not apply and such period shall
be extended as necessary (i) if within 30 days after receipt by the
Company of Indemnitee's request for indemnification under Section 5.1
Indemnitee and the Company have agreed, and the Board has resolved, to
submit such determination to the stockholders of the Company pursuant
to Section 5.2(b) for their consideration at an annual meeting of
stockholders to be held within 90 days after such agreement and such
determination is made thereat, or a special meeting of stockholders
for the purpose of making such determination to be held within 60 days
after such agreement and such determination is made thereat, or (ii)
if the determination of entitlement to indemnification is to be made
by Independent Counsel, in which case the applicable period shall be
as set forth in clause (c) of Section 6.1.
(c) The termination of any Proceeding or of any
Claim, issue or matter by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, shall not by itself adversely affect the
rights of Indemnitee to indemnification or create a presumption that
Indemnitee did not act in good faith or in a manner that he reasonably
believed to be in or not opposed to the best
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interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was
unlawful. Indemnitee shall be deemed to have been found liable in
respect of any Claim, issue or matter only after he shall have been so
adjudged by the Court after exhaustion of all appeals therefrom.
ARTICLE VI
CERTAIN REMEDIES OF INDEMNITEE
Section 6.1 Indemnitee Entitled to Adjudication in an
Appropriate Court. If (a) a determination is made pursuant to Article V that
Indemnitee is not entitled to indemnification under this Agreement, (b) there
has been any failure by the Company to make timely payment or advancement of
any amounts due hereunder, or (c) the determination of entitlement to
indemnification is to be made by Independent Counsel and such determination
shall not have been made and delivered in a written opinion within 90 days
after the latest of (i) such Independent Counsel's being appointed, (ii) the
overruling by the Court of objections to such counsel's selection or (iii)
expiration of all periods for the Company or Indemnitee to object to such
counsel's selection, Indemnitee shall be entitled to commence an action seeking
an adjudication in the Court 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 action seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has
the right to commence such action pursuant to this Section 6.1, or such right
shall expire. The Company shall not oppose Indemnitee's right to seek any such
adjudication or award in arbitration.
Section 6.2 Adverse Determination Not to Affect any
Judicial Proceeding. If a determination shall have been made pursuant to
Article V that Indemnitee is not entitled to indemnification under this
Agreement, any judicial proceeding or arbitration commenced pursuant to this
Article VI 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 such initial
adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Article VI, Indemnitee shall be presumed to be entitled to
indemnification or advancement of Expenses, as the case may be, under this
Agreement and the Company shall have the burden of proof in overcoming such
presumption and to show by clear and convincing evidence that Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may be.
Section 6.3 Company Bound by Determination Favorable to
Indemnitee in any Judicial Proceeding or Arbitration. If a determination shall
have been made or deemed to have been made pursuant to Article V that
Indemnitee is entitled to indemnification, the Company shall be irrevocably
bound by such determination in any judicial proceeding or arbitration commenced
pursuant to this Article VI and shall be precluded from asserting that such
determination has not been made or that the procedure by which such
determination was made is not valid, binding and
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enforceable, in each such case absent (a) a knowing misstatement by Indemnitee
of a material fact, or a knowing omission of a material fact necessary to make
a statement by Indemnitee not materially misleading, in connection with
Indemnitee's request for indemnification or (b) a prohibition of such
indemnification under applicable law.
Section 6.4 Company Bound by the Agreement. The Company
shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Article VI 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 the Company is bound by all
the provisions of this Agreement.
Section 6.5 Indemnitee Entitled to Expenses of Judicial
Proceeding. If Indemnitee seeks a judicial adjudication of or an award in
arbitration to enforce his rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from the Company, and
the Company shall indemnify Indemnitee against, any and all expenses (of the
types described in the definition of Expenses in Article I) actually and
reasonably incurred by him in such judicial adjudication or arbitration but
only if Indemnitee prevails therein. If it shall be determined in such
judicial adjudication or arbitration that Indemnitee is entitled to receive
part but not all of the indemnification or advancement of expenses or other
benefit sought, the expenses incurred by Indemnitee in connection with such
judicial adjudication or arbitration shall be equitably allocated between the
Company and Indemnitee. Notwithstanding the foregoing, if a Change of Control
shall have occurred, Indemnitee shall be entitled to indemnification under this
Section 6.5 regardless of whether Indemnitee ultimately prevails in such
judicial adjudication or arbitration.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Non-Exclusivity.
(a) The rights of Indemnitee to receive
indemnification and advancement of Expenses under 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 or Bylaws of the Company, any other agreement, vote of
stockholders or a resolution of directors, or otherwise. No amendment
or alteration of the Certificate of Incorporation or Bylaws of the
Company or any provision thereof shall adversely affect Indemnitee's
rights hereunder and such rights shall be in addition to any rights
Indemnitee may have under the Company's Certificate of Incorporation,
Bylaws and the DGCL or otherwise. To the extent that there is a
change in the DGCL or other applicable law (whether by statute or
judicial decision) that allows greater indemnification by agreement
than would be afforded currently under the Company's Certificate of
Incorporation or
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Bylaws and this Agreement, it is the intent of the parties hereto that
the Indemnitee shall enjoy by virtue of this Agreement the greater
benefit so afforded by such change.
(b) The Company shall not amend the Bylaws of the
Company in a manner that adversely affects Indemnittee's rights to
indemnification thereunder existing as of the date hereof until the
six-year anniversary of the Public Status Date.
Section 7.2 Insurance and Subrogation.
(a) To the extent the Company maintains an
insurance policy or policies providing liability insurance for
directors, officers, employees, agents or fiduciaries of the Company
or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise that such person serves at
the request of the Company, 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, officer,
employee, agent or fiduciary under such policy or policies.
(b) In the event of any payment by the Company
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 take all action necessary to secure
such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(c) The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under the Company's Certificate of Incorporation
or Bylaws or any insurance policy, contract, agreement or otherwise.
Section 7.3 Certain Settlement Provisions. The Company
shall have no obligation to indemnify Indemnitee under this Agreement for
amounts paid in settlement of a Proceeding or Claim without the Company's prior
written consent. The Company shall not settle any Proceeding or Claim in any
manner that would impose any fine or other obligation on 12 Indemnitee without
Indemnitee's prior written consent. Neither the Company nor Indemnitee shall
unreasonably withhold their consent to any proposed settlement.
Section 7.4 Duration of Agreement. This Agreement shall
continue for so long as Indemnitee serves as a director, nominee for director,
officer, employee, agent or fiduciary of the Company or, at the request of the
Company, as a director, nominee for director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, and thereafter shall survive until and
terminate upon the latest to occur of (a) the expiration of 10 years after the
latest date that Indemnitee shall have ceased to serve in any such capacity;
(b) the final termination of all pending Proceedings in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any
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proceeding commenced by Indemnitee pursuant to Article VI relating thereto; or
(c) the expiration of all statutes of limitation applicable to possible Claims
arising out of Indemnitee's Corporate Status.
Section 7.5 Notice by Each Party. Indemnitee shall
promptly notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document or
communication relating to any Proceeding or Claim for which Indemnitee may be
entitled to indemnification or advancement of Expenses hereunder; provided,
however, that any failure of Indemnitee to so notify the Company shall not
adversely affect Indemnitee's rights under this Agreement except to the extent
the Company shall have been materially prejudiced as a direct result of such
failure. The Company shall notify promptly Indemnitee in writing, as to the
pendency of any Proceeding or Claim that may involve a claim against the
Indemnitee for which Indemnitee may be entitled to indemnification or
advancement of Expenses hereunder.
Section 7.6 Certain Persons Not Entitled to
Indemnification. Notwithstanding any other provision of this Agreement to the
contrary, Indemnitee shall not be entitled to indemnification or advancement of
Expenses hereunder with respect to any Proceeding or any Claim, issue or matter
therein, brought or made by Indemnitee against the Company or any affiliate of
the Company, except as specifically provided in Article V or Article VI.
Section 7.7 Indemnification for Negligence, Gross
Negligence, etc. Without limiting the generality of any other provision
hereunder, it is the express intent of this Agreement that Indemnitee be
indemnified and Expenses be advanced regardless of Indemnitee's acts of
negligence, gross negligence or intentional or willful misconduct to the extent
that indemnification and advancement of Expenses is allowed pursuant to the
terms of this Agreement and under applicable law.
Section 7.8 Enforcement. The Company agrees that its
execution of this Agreement shall constitute a stipulation by which it shall be
irrevocably bound in any court or arbitration in which a proceeding by
Indemnitee for enforcement of his rights hereunder shall have been commenced,
continued or appealed, that its obligations set forth in this Agreement are
unique and special, and that failure of the Company to comply with the
provisions of this Agreement will cause irreparable and irremediable injury to
Indemnitee, for which a remedy at law will be inadequate. As a result, in
addition to any other right or remedy he may have at law or in equity with
respect to breach of this Agreement, Indemnitee shall be entitled to injunctive
or mandatory relief directing specific performance by the Company of its
obligations under this Agreement.
Section 7.9 Successors and Assigns. All of the terms and
provisions of this Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and their respective
successors, assigns, heirs, executors, administrators, legal representatives.
The Company shall require and cause any direct or indirect successor (whether
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by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company, by written agreement in form and
substance reasonably satisfactory to Indemnitee, expressly to assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
Section 7.10 Amendment. This Agreement may not be
modified or amended except by a written instrument executed by or on behalf of
each of the parties hereto.
Section 7.11 Waivers. The observance of any term of this
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) by the party entitled to enforce such
term only by a writing signed by the party against which such waiver is to be
asserted. Unless otherwise expressly provided herein, no delay on the part of
any party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party
hereto of any right, power or privilege hereunder operate as a waiver of any
other right, power or privilege hereunder nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
Section 7.12 Entire Agreement. This Agreement and the
documents expressly referred to herein constitute the entire agreement between
the parties hereto with respect to the matters covered hereby, and any other
prior or contemporaneous oral or written understandings or agreements with
respect to the matters covered hereby are expressly superseded by this
Agreement.
Section 7.13 Severability. If any provision of this
Agreement (including any provision within a single section, paragraph or
sentence) or the application of such provision to any person or circumstance,
shall be judicially declared to be invalid, unenforceable or void, such
decision will not have the effect of invalidating or voiding the remainder of
this Agreement or affect the application of such provision to other persons or
circumstances, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the extent
necessary to render it valid, legal and enforceable while preserving its
intent, or if such modification is not possible, by substituting therefor
another provision that is valid, legal and unenforceable and that achieves the
same objective. Any such finding of invalidity or unenforceability shall not
prevent the enforcement of such provision in any other jurisdiction to the
maximum extent permitted by applicable law.
Section 7.14 Notices. All notices and other
communications hereunder shall be in writing and shall be deemed given upon (a)
transmitter's confirmation of a receipt of a facsimile transmission, (b)
confirmed delivery of a standard overnight courier or when delivered by hand or
(c) the expiration of five business days after the date mailed by certified or
registered mail (return receipt requested), postage prepaid, to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice):
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If to the Company, to:
Bayard Drilling Technologies, Inc.
0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxx 000X
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
If to Indemnitee, to:
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--------------------------------------
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Facsimile:
----------------------------
Section 7.15 Certain Construction Rules.
(a) The article and section headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. As used in
this Agreement, unless otherwise provided to the contrary, (i) all
references to days shall be deemed references to calendar days and
(ii) any reference to a "Section" or "Article" shall be deemed to
refer to a section or article of this Agreement. The words "hereof,"
"herein" and "hereunder" and words of similar import referring to this
Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." Unless otherwise
specifically provided for herein, the term "or" shall not be deemed to
be exclusive. Whenever the context may require, any pronoun used in
this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall
include the plural and vice versa.
(b) For purposes of this Agreement, references to
"other enterprises" shall include employee benefit plans; references
to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; references to "serving at the
request of the Company" shall include any service as a director,
nominee for director, officer, employee or agent of the Company which
imposes duties on, or involves services by, such director, nominee,
officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed 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.
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Section 7.16 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to the conflicts of laws principles thereof.
Section 7.17 Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument,
notwithstanding that both parties are not signatories to the original or same
counterpart.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered to be effective as of the date first above written.
BAYARD DRILLING TECHNOLOGIES, INC.
By:
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President
INDEMNITEE
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Name:
