INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT is made on July 21, 2009, between
Weatherford International Ltd., a corporation incorporated under
the laws of Switzerland with its registered address at Alpenstrasse
15, in 6304 Zug, Switzerland (the “ Company ”);
and Peter T. Fontana (“ Indemnitee
”).
WHEREAS Indemnitee
is a director and/or an officer of the Company;
WHEREAS highly
skilled and competent persons are becoming more reluctant to serve
public companies as directors or officers unless they are provided
with adequate protection through insurance and indemnification
against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of such
companies;
WHEREAS
uncertainties relating to indemnification increase the difficulty
of attracting and retaining such persons;
WHEREAS the Board
has determined that an inability to attract and retain such persons
is detrimental to the best interests of the Company and that the
Company should act to assure such persons that there will be
increased certainty of such protection in the future;
WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify Indemnitee to the fullest extent
permitted by Swiss law so that Indemnitee will serve or continue to
serve the Company free from undue concern that Indemnitee will not
be so indemnified; and
WHEREAS,
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 Indemnitee be so indemnified.
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
1.1 In this
Agreement unless the context otherwise requires, the following
words and expressions shall have the following meanings:
“
Agreement ” means this Indemnification
Agreement;
“
Board ” means the board of directors of the
Company;
“
Business Day ” means any day on which banks in
Switzerland are open for business;
“
Corporate Status ” means the status of a person who is
or was a director, officer, employee, agent, or fiduciary of the
Company or any other Group Company, or is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary of any other
company,
corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other entity or
enterprise;
“
Disinterested Director ” means a director of the
Company who is not or was not a party to a Proceeding in respect of
which indemnification is sought by Indemnitee;
“ Group
Companies ” means the Company and each subsidiary of the
Company (wherever incorporated or organized);
“
Independent Counsel ” means a law firm or a member of
a law firm that neither is presently nor in the past five years has
been retained to represent: (i) the Company or Indemnitee in
any matter material to either such party, or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder. 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 right to indemnification under this
Agreement;
“
Parties ” means the parties to this Agreement
collectively, and “ Party ” means any one of
them; and
“
Proceeding ” means any action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative and whether formal or
informal;
1.2 In this
Agreement unless the context otherwise requires:
1.2.1
references to statutory provisions shall be construed as references
to those provisions as amended or re-enacted or as their
application is modified by other provisions from time to time and
shall include references to any provisions of which they are
re-enactments (whether with or without modification);
1.2.2
references to clauses and schedules are references to clauses
hereof and schedules hereto; references to sub-clauses or
paragraphs are, unless otherwise stated, references to sub-clauses
of the clause or paragraphs of the schedule in which the reference
appears;
1.2.3
references to the singular shall include the plural and vice versa
and references to the masculine shall include the feminine and/or
neuter and vice versa; and
1.2.4
references to persons shall include companies, partnerships,
associations and bodies of persons, whether incorporated or
unincorporated.
Indemnitee agrees
to serve as a director and/or an officer of the Company. This
Agreement does not create or otherwise establish any right on the
part of Indemnitee to be and continue to be elected or appointed a
director and/or an officer of the Company or any other
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Group Company
and does not create an employment contract between the Company and
Indemnitee.
3. INDEMNITY OF
DIRECTOR/OFFICER
3.1 Subject to
clause 10, the Company shall indemnify Indemnitee if Indemnitee is
a party or is threatened to be made a party to any threatened,
pending or completed Proceeding, including a Proceeding brought by
or in the right of the Company, by reason of the fact that
Indemnitee is or was a director, officer, employee, agent, or
fiduciary of the Company or is or was serving at the request of the
Company as a director, officer, employee, agent, or fiduciary of
any other company, corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other
entity or enterprise or by reason of anything done or not done by
Indemnitee in any such capacity. Subject to clause 10, pursuant to
this sub-clause 3.1 Indemnitee shall be indemnified against
expenses (including attorneys’ fees and disbursements),
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee in connection with such
Proceeding (including, but not limited to, the investigation,
defense, settlement or appeal thereof).
3.2
Notwithstanding any other provision of this Agreement other than
clause 10, Indemnitee shall be indemnified against all expenses
(including attorneys’ fees and disbursements) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in defending any Proceedings referred to in clause 3.1 in which
judgment is given in his favour, in which he is acquitted, or in
respect of which relief is granted to him.
Subject to
clause 10, the Company shall indemnify Indemnitee for such portion
of the expenses (including attorneys’ fees), witness fees,
damages, judgments, fines and amounts paid in settlement and any
other amounts that Indemnitee becomes legally obligated to pay in
connection with any Proceeding referred to in clause 3.1 in respect
of which Indemnitee is entitled to indemnification hereunder, even
if Indemnitee is not entitled to indemnification hereunder for the
total amount thereof.
4.
INDEMNIFICATION FOR EXPENSES OF A WITNESS
Subject to clause
10, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a witness in any proceeding,
Indemnitee shall be indemnified by the Company against all expenses
actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
5.
DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
5.1 Indemnitee
shall request indemnification pursuant to this Agreement by notice
in writing to the secretary of the Company. The secretary shall,
promptly upon receipt of Indemnitee’s request for
indemnification, advise in writing the Board or such other person
or persons empowered to make the determination as provided in
sub-clause 5.2 that Indemnitee has made such request for
indemnification. Subject to clause 10, upon making such request for
indemnification, Indemnitee shall be presumed to be entitled to
indemnification hereunder and
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the Company
shall have the burden of proof in the making of any determination
contrary to such presumption.
5.2 Upon written
request by Indemnitee for indemnification pursuant to sub-clause
3.1, the entitlement of Indemnitee to indemnification pursuant to
the terms of this Agreement shall be determined by the following
person or persons who shall be empowered to make such
determination:
5.2.1
the Board, by a majority vote of the Disinterested Directors;
or
5.2.2
if such vote is not obtainable or, even if obtainable, if such
Disinterested Directors so direct by majority vote, by Independent
Counsel in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee; or
5.2.3
by a majority vote of the shareholders.
5.3 For purposes
of sub-clause 5.2, Independent Counsel shall be selected by the
Board and approved by Indemnitee. Upon failure of the Board to so
select such Independent Counsel or upon failure of Indemnitee to so
approve, either the Board or Indemnitee may request the
International Chamber of Commerce (the “ ICC ”)
to appoint an Independent Counsel in accordance with the provisions
regarding the appointment of experts contained in the ICC’s
Rules for Expertise. Such determination of entitlement to
indemnification shall be made not later than 60 days after
receipt by the Company of a written request for indemnification.
Such request shall include documentation or information which is
necessary for such determination and which is reasonably available
to Indemnitee. Subject to clause 10, any expenses (including
attorneys’ fees) incurred by In
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