Exhibit
10.1
AMENDED AND
RESTATED INDEMNIFICATION AGREEMENT
This AMENDED
AND RESTATED INDEMNIFICATION AGREEMENT (the
“Agreement”) is made and entered into this
day of
, 2009 between Hornbeck Offshore Services, Inc., a Delaware
corporation (“the Company”) and
(“Indemnitee”).
WITNESSETH
THAT:
WHEREAS, the
Board of Directors of the Company has adopted the Fourth Restated
Bylaws of the Company (the “Bylaws”) providing for the
indemnification of the directors, executive officers and other key
employees of the Company to the maximum extent authorized by
Section 145 of the Delaware General Corporation Law, as
amended (the “DGCL”); and
WHEREAS, the
Bylaws and the DGCL by their nonexclusive nature, permit contracts
between the Company and the directors and officers of the Company
with respect to indemnification of such directors and officers;
and
WHEREAS, the
Board of Directors has determined that for purposes of
indemnification protection afforded by the Company, including as
specifically used in this Agreement, the term
“director” shall refer to members of the Board of
Directors and any advisory director serving by appointment of the
Board; and
WHEREAS, as a
result of recent developments affecting the terms, scope and
availability of indemnification protection afforded under statutory
and bylaw indemnification provisions, there exists general
uncertainty as to the extent of protection afforded Company
directors and officers by such provisions; and
WHEREAS,
Indemnitee performs a valuable service for the Company;
and
WHEREAS,
Indemnitee has previously entered into that certain Indemnification
Agreement dated the
day of
, 200 , as amended (the
“Original Agreement”), with the Company; and
WHEREAS, in
recognition of past services and in order to induce Indemnitee to
continue to serve as a director and/or officer of the Company, the
Company has determined and agreed that it is in the best interests
of the Company to amend and restate the Original
Agreement;
NOW,
THEREFORE, in consideration of Indemnitee’s service as a
director and/or officer after the date hereof, the parties hereto
agree as follows;
1.
INDEMNITY OF INDEMNITEE. The Company hereby agrees to hold harmless
and indemnify Indemnitee to the full extent authorized or permitted
by the provisions of the DGCL, as such may be amended from time to
time, and Section 6.10 of the Bylaws, as such may be amended;
provided that the parties hereto acknowledge that it is their
intent that Indemnitee shall enjoy the greater of (i) the
advancement and indemnification rights permitted under the
certificate of incorporation of the Company and the Bylaws for
directors and officers as of the date hereof or (ii) the
benefits so afforded by such amendments to the DGCL or the Bylaws,
as
the case may
be. In furtherance of the foregoing indemnification, and without
limiting the generality thereof:
(a)
Proceedings Other Than Proceedings by or in the Right of the
Company . Indemnitee shall be entitled to the rights of
indemnification provided in this Section 1(a) if, by reason of
his Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to or participant in any Proceeding
(as hereinafter defined) other than a Proceeding by or in the right
of the Company. Pursuant to this Section 1(a), Indemnitee
shall be indemnified against all Expenses (as hereinafter defined),
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.
(b)
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 1(b) if, by reason of his Corporate Status, he is, or
is threatened to be made, a party to or participant in any
Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 1(b),
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection with such
Proceeding 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; provided, however, that, if applicable law so provides, 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
unless and to the extent that the Court of Chancery of the State of
Delaware, or the court in which such Proceeding shall have been
brought or is pending, shall determine that such indemnification
may be made.
(c)
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified to the
maximum extent permitted by law 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, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or on his behalf
in connection with each successfully resolved claim, issue or
matter. For purposes of this Section 1 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.
2.
ADDITIONAL INDEMNITY.
(a) Subject
only to the exclusions set forth in Section 2(b) hereof, the
Company hereby further agrees to hold harmless and indemnify
Indemnitee against any
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and
all expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee in connection with
any Proceeding (including an action by or on behalf of the Company)
to which Indemnitee is, was or at any time becomes a party, or is
threatened to be made a party, by reason of his Corporate Status;
provided, however, that with respect to actions by or on behalf of
the Company, indemnification of Indemnitee against any judgments
shall be made by the Company only as authorized in the specific
case upon a determination that 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
(b) No
indemnity pursuant to this Section 2 shall be paid by the
Company:
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(i)
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In respect to
remuneration paid to Indemnitee if it shall be determined by a
final judgment or other final adjudication that such remuneration
was in violation of law;
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(ii)
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On account of
any suit in which judgment is rendered against Indemnitee for an
accounting of profits made from the purchase or sale by Indemnitee
of securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or
local statutory law;
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(iii)
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On account of
Indemnitee’s conduct which is finally adjudged to have been
knowingly fraudulent or deliberately dishonest, or to constitute
willful misconduct; or
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(iv)
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If a final
decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
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3.
CONTRIBUTION. If the indemnification provided in Sections 1
and 2 is unavailable and may not be paid to Indemnitee for any
reason other than those set forth in paragraphs (i), (ii),
(iii) and (iv) of Section 2(b), then in respect to
any Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the Company
shall contribute to the amount of Expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred and
paid or payable by Indemnitee in such proportion as is appropriate
to reflect (i) the relative benefits received by the Company
on the one hand and by the Indemnitee on the other hand from the
transaction from which such Proceeding arose, and (ii) the
relative fault of the Company on the one hand and of the Indemnitee
on the other hand in connection with the events which resulted in
such Expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the Indemnitee on the other hand
shall be determined by reference to, among other things, the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent the circumstances resulting
in such Expenses, judgments, fines or settlement amounts. The
Company agrees that it would not be just and equitable if
contribution pursuant to this Section 3 were determined by pro
rata allocation or
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any other
method of allocation which does not take account of the foregoing
equitable considerations.
4.
INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee
is, by reason of his Corporate Status, a witness in any 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.
5.
ADVANCEMENT OF EXPENSES. The Company shall advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding by reason of Indemnitee’s Corporate Status
within ten (10) days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or
advances 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 and shall
include or be preceded or accompanied by an undertaking by or on
behalf of Indemnitee to repay any Expenses advanced if it shall
ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and undertakings to
repay pursuant to this Section 5 shall be unsecured and
interest free. Notwithstanding the foregoing, the obligation of the
Company to advance Expenses pursuant to this Section 5 shall
be subject to the condition that, if, when and to the extent that
the Company determines that Indemnitee would not be permitted to be
indemnified under applicable law, the Company shall be entitled to
be reimbursed, within 30 days of such determination, by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made
by the Company that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any
advance of Expenses until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom
have been exhausted or lapsed). Notwithstanding the foregoing, in
no event shall Indemnitee be entitled to the advancement of
expenses under this Agreement if a determination has been made by a
judicial authority or governmental entity or agency or, absent such
determination, any such authority, entity or agency has taken a
position or issued any guidance stating, that such advancement of
expenses to Indemnitee constitutes a personal loan in contravention
of Section 402 of the Sarbanes-Oxley Act of 2002 or any
similar law or regulation.
6.
PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(a) To obtain
indemnification (including, but not limited to, the advancement of
Expenses and contribution by the Company) 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 of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested
indemnification.
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(b) Upon
written request by Indemnitee for indemnification pursuant to the
first sentence of Section 6(a) hereof, a determination, if
required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case: (i) if
a Change in Control (as hereinafter defined) shall have occurred,
by Independent Counsel (as hereinafter defined) in a written
opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee (unless Indemnitee shall request that such
determination be made by the Board of Directors or the
stockholders, in which case the determination shall be made in the
manner provided in Clause (ii) below), or (ii) if a
Change in Control shall not have occurred, (A) by the Board of
Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (B) if a
quorum of the Board of Directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, said
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, or (C) if so directed by said
Disinterested Directors, by the stockholders of the Company; and,
if it is determined that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within 10 days after such
determination. Indemnitee shall cooperate with the person, persons
or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including
providing to such person, persons or entity 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 Independent Counsel, member of the Board of
Directors, or stockholder of the Company shall act reasonably and
in good faith in making a determination under the Agreement of the
Indemnitee’s entitlement to indemnification. Any costs or
expenses (including attorneys’ fees and disbursements)
incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold Indemnitee harmless therefrom.
(c) If the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 6(b) hereof, the
Independent Counsel shall be selected as provided in this
Section 6(c). If a Change in Control shall not have occurred,
the Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to Indemnitee
advising him of the identity of the Independent Counsel so
selected. If a Change in Control shall have occurred, the
Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board
of Directors, in which event the preceding sentence shall apply),
and Indemnitee shall give written notice to the Company advising it
of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within
10 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; 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 14(f)
of this Agreement, 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 a written objection is made and
substantiated, the Independent Counsel
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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 submission by Indemnitee of a
written request for indemnification pursuant to Section 6(a)
hereof, no Independent Counsel shall have been selected, or
Independent Counsel has been selected and objected to, and such
objection has not been resolved, either the Company or Indemnitee
may petition the Court of Chancery of the State of Delaware or
other court of competent jurisdiction for resolution of any
objection which 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 all objections are so resolved or the
person so appointed shall act as Independent Counsel under
Section 6(b) hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to
Section 6(b) hereof, and the Company shall pay all reasonable
fees and expenses incident to the procedures of this
Section 6(c), regardless of the manner in
