Exhibit
10.10
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (“ Agreement ”)
is made as of
, 2009 by and between Seahawk Drilling, Inc., a Delaware
corporation (the “ Company ”), and
(“ Indemnitee ”).
W I T N E S S
E T H :
WHEREAS, highly competent persons have become more reluctant to
serve publicly-held corporations as directors, officers or in other
capacities unless they are provided with adequate protection
through insurance and/or adequate indemnification against
inordinate risks of claims and actions against them arising out of
their service to and activities on behalf of a corporation;
WHEREAS, the uncertainties relating to such insurance and
indemnification have increased the difficulty of attracting and
retaining such persons;
WHEREAS, the Board of Directors of the Company (the “
Board ”) has determined that the increased difficulty
in attracting and retaining such persons is detrimental to the best
interests of the Company’s stockholders and that the Company
should act to assure such persons that there will be increased
certainty of such protection in the future;
WHEREAS, although Indemnitee may be entitled to indemnification
pursuant to the Company’s bylaws and the Delaware General
Corporation Law (“ DGCL ”), the DGCL expressly
provides that the indemnification provisions set forth therein are
not exclusive, and thereby contemplates that contracts may be
entered into between the Company and members of the Board, officers
and other persons with respect to indemnification;
WHEREAS, it is reasonable, prudent and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses
on behalf of, 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;
WHEREAS, this Agreement is a supplement to and in furtherance of
the bylaws of the Company and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee believes that this Agreement is desirable to
augment the protection available under the Company’s bylaws
and insurance, and may not be willing to serve as a director or
officer or in other capacities without the additional protection
provided for under this Agreement, and the Company desires
Indemnitee to serve in such capacity and Indemnitee is willing to
serve and continue to serve on the condition that he or she 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. Services to the Company .
Indemnitee will serve or continue to serve, at the will of the
Company in accordance with the Company’s bylaws or under
separate contract, if any such contract exists, as a director or
officer of one or more Entities for so long as Indemnitee is duly
elected, appointed or requested or until Indemnitee tenders his or
her resignation from all Entities.
2. Definitions . As used in this
Agreement:
(a) A “ Change in Control
” shall be deemed to occur upon the earliest to occur after
the date of this Agreement of any of the following events:
(i) there shall have occurred an event that is or would be
required to be reported with respect to the Company in response to
Item 6(e) of Schedule 14A of Regulation 14A (or in response to
any similar item on any similar schedule or form) promulgated under
the Exchange Act, if the Company is or were subject to such
reporting requirement; (ii) any “person” (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) shall
have become the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 40% or more of the combined
voting power of the Company’s then outstanding voting
securities without prior approval of at least two-thirds of the
members of the Board in office immediately prior to such
person’s attaining such percentage interest; (iii) the
Company is a party to a merger, consolidation, sale of assets or
other reorganization, or a proxy contest, as a consequence of which
members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the Board
thereafter; or (iv) during any period of two consecutive
years, individuals who at the beginning of such period constituted
the Board (including, for this purpose, any new director whose
election or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of such period) cease for any reason to constitute at least a
majority of the Board.
(b) “ Corporate Status ”
describes the status of an individual as a director, officer or
other designated legal representative of the Company or of any
predecessor of the Company, or as a director, officer or other
designated legal representative of any other corporation,
partnership, limited liability company, association, joint venture,
trust, employee benefit plan or other entity or enterprise for
which an individual is or was serving as a director, officer or
other designated legal representative at the request of the
Company.
(c) “ Court ” means the
Court of Chancery of the State of Delaware or any other court of
competent jurisdiction.
(d) “ Entity ” shall
mean the Company and any other corporation, partnership, limited
liability company, association, joint venture, trust, employee
benefit plan or other entity or enterprise for which Indemnitee is
or was serving at the request of the Company as a director, officer
or other designated legal representative.
(e) “ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as amended.
(f) “ Expenses ” shall
include all reasonable attorneys’ fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, or being or preparing to be a witness in a
Proceeding.
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(g) “ Independent Counsel
” means a law firm, or a member of a law firm, that is
experienced in matters of corporate law and neither presently is,
nor in the five years previous to his or her selection or
appointment has been, retained to represent: (i) the Company,
any Entity 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.
(h) “ Matter ” shall
mean a claim, a material issue or a substantial request for
relief.
(i) “ Proceeding ” means
any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other threatened, pending, or
completed proceeding, whether civil, criminal, administrative or
investigative, except one initiated by Indemnitee to enforce his or
her rights under this Agreement; provided that, “
Proceeding ” shall not include any threatened, pending
or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any
other actual, threatened or completed proceeding, whether civil,
criminal, administrative or investigative, by Indemnitee against
the Company, including, without limitation, proceedings initiated
by Indemnitee or involving a counterclaim by Indemnitee.
(j) References to “ fines
” shall include any excise tax assessed with respect to any
employee benefit plan; references to “ serving at the
request of the Company ” shall include any service as a
director, officer, employee or agent of the Company which imposes
duties on, or involves services by, such director, 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 or she reasonably believed to be in the best
interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in manner “ not
opposed to the best interests of the Company ” as
referred to in this Agreement.
3. Indemnity in Third-Party
Proceedings . The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee
is, or is threatened to be made, by reason of his or her Corporate
Status a party to or a participant in any Proceeding, other than a
Proceeding by or in the right of the Company 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, judgments, fines, penalties and amounts paid
in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties and amounts paid in
settlement) incurred by Indemnitee or on his or her behalf in
connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best
interests of the Company and, in the case of a criminal proceeding,
he or she had no reasonable cause to believe that his or her
conduct was unlawful.
4. Indemnity in Proceedings by or in the
Right of the Company . The Company shall indemnify Indemnitee
in accordance with the provisions of this Section 4 if
Indemnitee is, or is threatened to be made, by reason of his or her
Corporate Status a party to or a participant in any Proceeding by
or in the right of the Company (direct or derivative Proceeding) 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 (including all interest,
assessments and other
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charges paid or payable
in connection with or in respect of such Expenses) incurred by
Indemnitee or on his or her behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company. 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 then only to the extent that, the
Delaware Court of Chancery 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.
5. Indemnification for Expenses of a
Party Who is Wholly or Partly Successful . 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 or her Corporate Status, a party to and is successful, on
the merits or otherwise, in any Proceeding, he or she shall be
indemnified against all Expenses actually and reasonably incurred
by him or her or on his or her behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to any Matter in such
Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or her or on his
or her behalf relating to such Matter. The termination of any
Matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
Matter.
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 or her Corporate
Status, a witness in any Proceeding to which Indemnitee is not a
party, he or she shall be indemnified against all Expenses actually
and reasonably incurred by him or her or on his or her behalf in
connection therewith.
7. Additional Indemnification .
(a) Notwithstanding any limitation in
Sections 3, 4 or 5, the Company shall indemnify Indemnitee to
the fullest extent permitted by applicable law if Indemnitee is a
party to or threatened to be made a party, by reason of his or her
Corporate Status, to any Proceeding (including a Proceeding by or
in the right of the Company to procure a judgment in its favor)
against all Expenses, judgments, fines, penalties and amounts paid
in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect to such
Expenses, judgments, fines, penalties and amounts paid in
settlement) incurred by Indemnitee in connection with the
Proceeding; provided, however, that the Company shall have
the right to consent to any settlement, which consent shall not be
unreasonably withheld. No indemnity shall be made under this
Section 7(a) on account of Indemnitee’s conduct which is
finally adjudged in any Proceeding to have been knowingly
fraudulent, deliberately dishonest or an act or omission not in
good faith or involving willful misconduct.
(b) For purposes of Section 7(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 provision of the
DGCL that authorizes or contemplates additional indemnification by
agreement, or the corresponding provision of any amendment to or
replacement of the DGCL; and (ii) to the
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fullest extent
authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the
extent to which a corporation may indemnify its officers and
directors and persons serving in certain other capacities at the
request of a corporation.
8. Exclusions . Notwithstanding any
other provision in this Agreement, the Company shall not be
obligated under this Agreement to make any indemnity in connection
with any claim made against Indemnitee:
(a) for which payment has actually been
made to or on behalf of Indemnitee under any insurance policy or
under another valid and enforceable indemnity provision, including
any employment agreement or other contract with the Company, except
with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provision; or
(b) for 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 Exchange Act or similar provisions of other federal or state
statutory law or common law or for any other payments required to
be disgorged by Indemnitee under applicable law; or
(c) except as otherwise provided in
Section 13(d), 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 the Company’s directors, officers, employees or other
indemnitees, unless (i) such indemnification is expressly
required to be made by applicable law, (ii) the Board
authorized the Proceeding (or any part of the Proceeding) prior to
its initiation or (iii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers
vested in the Company to the fullest extent permitted by applicable
law.
9. Advances of Expenses .
Notwithstanding any provision of this Agreement to the contrary, in
the event of any threatened or pending Proceeding in which
Indemnitee is a party or is involved and that may give rise to a
right of indemnification under this Agreement, following written
request to the Company by Indemnitee, the Company shall, to the
fullest extent permitted by applicable law, promptly pay to
Indemnitee amounts to cover Expenses reasonably incurred by
Indemnitee in such Proceeding in advance of its final disposition
upon the receipt by the Company of (i) a written undertaking
executed by or on behalf of Indemnitee providing that Indemnitee
will repay the advance if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Company and
(ii) satisfactory evidence as to the amount of such Expenses.
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. Advances shall include any and all reasonable Expenses
incurred pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding statements to
the Company to support the advances claimed. This Section 9
shall not apply to any claim made by Indemnitee for which indemnity
is excluded pursuant to Section 8.
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10. Procedure for Notification and
Defense of Claim .
(a) Within thirty (30) days after
service of process on Indemnitee relating to notice of the comm
