MASTER SEPARATION AGREEMENT

Exhibit 2.1

EXECUTION COPY

MASTER SEPARATION AGREEMENT

between

PRIDE INTERNATIONAL, INC.,

and

SEAHAWK DRILLING, INC.

dated as of

August 4, 2009

TABLE OF CONTENTS

 

 

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SCHEDULES

 

 

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MASTER SEPARATION AGREEMENT

This MASTER SEPARATION AGREEMENT (this “Agreement”) is entered into as of August 4, 2009, between Pride International, Inc., a Delaware corporation (“Pride”) and Seahawk Drilling, Inc., a Delaware corporation (“Seahawk”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in Article I hereof.

RECITALS

WHEREAS, Seahawk is a wholly owned Subsidiary of Pride;

WHEREAS, the Board of Directors of Pride has determined that it would be appropriate and desirable for Pride to separate the Seahawk Business from the Pride Business;

WHEREAS, in furtherance thereof, the Board of Directors of Pride has determined that, following the Separation, it would be appropriate and desirable for Pride to distribute (the “Distribution”) on a pro rata basis to the holders of outstanding shares of common stock, par value $.01 per share, of Pride (“Pride Common Stock”) all of the outstanding shares of common stock, par value $.01 per share, of Seahawk (“Seahawk Common Stock”) owned by Pride as of the Distribution Date;

WHEREAS, for U.S. federal income tax purposes, (i) certain transactions to be effected in connection with the Separation are intended to qualify as reorganizations under Sections 355 and/or 368 or as liquidations under Section 332(a) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), respectively, and (ii) the Distribution is intended to qualify as a transaction under Section 355 of the Code; and

WHEREAS, the parties intend in this Agreement, including the Schedules hereto, to set forth the principal arrangements between them regarding the Separation and the Distribution.

NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements set forth below, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

1.1   AAA.    “AAA” has the meaning set forth in Section 5.3(a).

1.2   AAA Rules.    “AAA Rules” has the meaning set forth in Section 5.3(a).

1.3   Acquired Restricted Rigs.    “Acquired Restricted Rigs” has the meaning set forth in Section 6.9(a).

1.4   Action.    “Action” means any demand, claim, action, suit, countersuit, arbitration, litigation, inquiry, proceeding or investigation by or before any Governmental Authority or any arbitration or mediation tribunal or authority.

 

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1.5   Affiliates.    An “Affiliate” of any Person means another Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For this purpose “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the Person controlled, whether through ownership of voting securities, by contract or otherwise.

1.6   Agreement.    “Agreement” has the meaning set forth in the preamble.

1.7   Ancillary Agreements.    “Ancillary Agreements” has the meaning set forth in Section 2.6.

1.8   Applicable Deadline.    “Applicable Deadline” has the meaning set forth in Section 5.3(b).

1.9   Appropriate Member of the Pride Group.    “Appropriate Member of the Pride Group” has the meaning set forth in Section 3.4.

1.10  Appropriate Member of the Seahawk Group.    “Appropriate Member of the Seahawk Group” has the meaning set forth in Section 3.3.

1.11  Arbitration Act.    “Arbitration Act” means the United States Arbitration Act, 9 U.S.C. 1-16, as the same may be amended from time to time.

1.12  Arbitration Demand Notice.    “Arbitration Demand Notice” has the meaning set forth in Section 5.3(a).

1.13  Asset.    “Asset” means all rights, properties or assets, whether real, personal or mixed, tangible or intangible, of any kind, nature and description, whether accrued, contingent or otherwise, and wheresoever situated and whether or not carried or reflected, or required to be carried or reflected, on the books of any Person.

1.14  Business Day.    “Business Day” means a day other than a Saturday, a Sunday or a day on which banking institutions located in the State of Texas are authorized or obligated by law or executive order to close.

1.15  Code.    “Code” has the meaning set forth in the recitals.

1.16  Confidential Information.    “Confidential Information” has the meaning set forth in Section 6.11(a).

1.17  Consent.    “Consent” means any consents, waivers or approvals from, or notification requirements to, any third parties, including any notices or reports to be submitted to, filings to be made with, or consents, registrations, approvals, permits or authorizations to be obtained from, any Governmental Authority.

1.18  Contract.    “Contract” means any contract, agreement, lease, license, sales order, purchase order, instrument or other commitment or arrangement that is binding on any Person or entity or any part of its property under applicable Law.

 

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1.19  Covered Matter.    “Covered Matter” has the meaning set forth in Section 6.12(i).

1.20  Dispute.    “Dispute” has the meaning set forth in Section 5.1.

1.21  Distribution.    “Distribution” has the meaning set forth in the recitals.

1.22  Distribution Agent.    “Distribution Agent” has the meaning set forth in Section 4.1.

1.23  Distribution Date.    “Distribution Date” means the date on which the Distribution Time occurs.

1.24  Distribution Multiple.    “Distribution Multiple” means 1/15, the number determined by the Pride Board of Directors in its sole discretion at the time of its approval of the Distribution as the number of shares of Seahawk Common Stock to be distributed in respect of each share of Pride Common Stock, which number will be multiplied by the number of shares of Pride Common Stock outstanding on the Record Date to determine the number of shares of Seahawk Common Stock to be issued and outstanding immediately before the Distribution Time.

1.25  Distribution Time.    “Distribution Time” means the time at which the Distribution is effective.

1.26  Employee Matters Agreement.    “Employee Matters Agreement” means the Employee Matters Agreement dated the date hereof between Pride and Seahawk.

1.27  Escalation Notice.    “Escalation Notice” has the meaning set forth in Section 5.2(a).

1.28  Exchange Act.    “Exchange Act” means the Securities Exchange Act of 1934, as amended.

1.29  Excluded Assets.    “Excluded Assets” means any Assets that are contemplated by this Agreement or any Ancillary Agreement (or the Schedules hereto or thereto, including Assets described in Schedule 1.29 hereto) as Assets to be retained by Pride or any member of the Pride Group, including as determined pursuant to Schedule 1.92 (which shall include cash and other current assets to the extent provided therein).

1.30  FCPA Limit.    “FCPA Limit” has the meaning set forth in Section 1.87.

1.31  GAAP.    “GAAP” means generally accepted accounting principles in the United States in effect from time to time.

1.32  Good Faith Judgment.    “Good Faith Judgment” shall mean (a) the good faith judgment of the General Counsel of Pride or Seahawk, as the case may be, in office as of the Distribution Date, or (b) the good faith judgment of a successor General Counsel who is appointed by the Chief Executive Officer of Pride or Seahawk in office as of the Distribution Date, as the case may be; provided, however , that if both the individual appointed as General Counsel as of the Distribution Date or his designated successor meeting the requirements of clause (b) is no longer serving in such office, then “Good Faith Judgment” shall mean the good faith judgment of a reasonable person under the same or similar circumstances.

 

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1.33  Governmental Authority.    “Governmental Authority” shall mean any U.S. federal, state, local or non-U.S. court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority.

1.34  Group.    “Group” means either of the Pride Group or the Seahawk Group, as the context requires.

1.35  Indebtedness.    “Indebtedness” of any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to Assets purchased by such Person, (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services, (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, or other encumbrance on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all guarantees by such Person of Indebtedness of others, (h) all capital lease obligations of such Person, and (i) all securities or other similar instruments convertible or exchangeable into any of the foregoing, but excluding daily cash overdrafts associated with routine cash operations.

1.36  Indemnifiable Loss.    “Indemnifiable Loss” has the meaning set forth in Section 3.5(a).

1.37  Indemnifying Party.    “Indemnifying Party” has the meaning set forth in Section 3.5(a).

1.38  Indemnitee.    “Indemnitee” has the meaning set forth in Section 3.5(a).

1.39  Indemnity Payment.    “Indemnification Payment” has the meaning set forth in Section 3.5(a).

1.40  Information.    “Information” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.

1.41  Information Statement.    “Information Statement” means the information statement and any related documentation to be distributed to holders of Pride Common Stock in connection with the Distribution, including any amendments or supplements thereto.

 

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1.42  Insurance Proceeds.    “Insurance Proceeds” means those monies:

 

(a)

received by an insured from an insurance carrier;

 

(b)

paid by an insurance carrier on behalf of the insured; or

 

(c)

received from any third party in connection with a Loss;

in any such case net of any out-of-pocket costs or expenses incurred in the collection thereof.

1.43  Intercompany Agreement.    “Intercompany Agreement” means any Contract between any entities included within the Seahawk Group, on the one hand, and any entities within the Pride Group, on the other hand, entered into prior to the Distribution Date, excluding any Contract to which a Person other than Pride, Seahawk or one of their Subsidiaries is a party.

1.44  Law.    “Law” means any law, statute, ordinance, rule, regulation, order, writ, judgment, injunction or decree of any Governmental Authority.

1.45  Liabilities.    “Liabilities” shall mean any and all Indebtedness, liabilities and obligations, whether accrued, fixed or contingent, mature or inchoate, known or unknown, reflected on a balance sheet or otherwise, including those arising under any Law, Action or any judgment of any court of any kind or any award of any arbitrator of any kind, and those arising under any Contract.

1.46  Losses.    “Losses” shall mean any and all damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, interest costs, fines and expenses (including the costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder), but excluding (a) consequential and punitive damages (other than consequential or punitive damages awarded to any third party against an Indemnitee for which indemnity is owed hereunder) and (b) any reduction in the value of the shares of Seahawk Common Stock or Pride Common Stock or other Pride securities.

1.47  NASDAQ.    “NASDAQ” means the Nasdaq Stock Market.

1.48  Omnibus Agreement.    “Omnibus Agreement” means the Omnibus Restructuring Agreement dated the date hereof among Pride, Seahawk and certain of their respective Subsidiaries.

 

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1.49  Opening Balance Sheet.    “Opening Balance Sheet” has the meaning set forth in Schedule 1.92.

1.50  Outstanding Balance.    “Outstanding Balance” has the meaning set forth in Section 6.13(a).

1.51  Person.    “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof.

1.52  Pride.    “Pride” has the meaning set forth in the preamble.

1.53  Pride Assets.    “Pride Assets” means all Assets of Pride, Seahawk and their respective Subsidiaries other than the Seahawk Assets.

1.54  Pride Books and Records.    “Pride Books and Records” means the corporate books and records (whether in hard copy or electronic format and including all minute books, corporate charters and by-laws or comparable constitutive documents, records of share issuances and related corporate records) of the Pride Group and such other books and records, including operating, accounting, engineering, corporate department and any other written record, whether in hard copy or electronic format, to the extent they relate to the Pride Business, the Pride Assets, or the Pride Liabilities, excluding the Seahawk Books and Records. Notwithstanding the foregoing, “Pride Books and Records” shall not include any Tax Returns or other information, documents or materials relating to Taxes. For the avoidance of doubt, no Information meeting the definition of “Pride Books and Records” shall be deemed not to be Pride Books and Records because it is provided by any member of the Pride Group to any member of the Seahawk Group after the Distribution Date in connection with the provision of services by any member of the Seahawk Group pursuant to the Pride Transition Services Agreement, or because it is generated, maintained or held in connection with the provision of services by any member of the Seahawk Group pursuant to the Pride Transition Services Agreement after the Distribution Date. Furthermore, Seahawk and Pride each acknowledge and agree that the Pride Books and Records described in the immediately preceding sentence shall belong solely to Pride and shall not be considered Privileged Information of Seahawk.

1.55  Pride Business.    “Pride Business” means any business of Pride and its Subsidiaries other than the Seahawk Business.

1.56  Pride Change of Control.    “Pride Change of Control” shall mean the occurrence of any of the following after the Distribution Date:

(i)   any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes a beneficial owner, directly or indirectly, of securities of Pride representing 30% or more of the combined voting power of Pride’s then-outstanding securities;

 

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(ii)   during any period of 12 consecutive months, individuals who, as of the Distribution Date, constitute the members of the Pride Board of Directors (the “Incumbent Directors”) cease for any reason other than due to death or disability to constitute at least a majority of the members of the Pride Board of Directors, provided that any director who was nominated for election by, or was elected with the approval of, at least a majority of the members of the Pride Board of Directors who are at the time Incumbent Directors shall be considered an Incumbent Director;

(iii)   the consummation of any transaction (including any merger, amalgamation or consolidation), the result of which is that less than 50% of the total voting power of the surviving entity is held by the stockholders of Pride prior to such transaction; or

(iv)   Pride shall have sold, transferred or exchanged all, or substantially all, of its assets to another Person.

1.57  Pride Common Stock.    “Pride Common Stock” has the meaning set forth in the recitals.

1.58  Pride Credit Facility.    “Pride Credit Facility” means that certain Revolving Credit Agreement, dated as of December 9, 2008 and as amended and restated from time to time, among Pride, the lenders from time to time parties thereto, Citibank, N.A., as administrative agent for the lenders, Natixis, as syndication agent for the lenders, BNP Paribas, Bayerische Hypo-Und Vereinsbank AG and Wells Fargo Bank, N.A., as documentation agents for the lenders, and Citibank, N.A., as issuing bank of the letters of credit thereunder.

1.59  Pride Group.    “Pride Group” means Pride and its Subsidiaries, other than the Seahawk Group.

1.60  Pride Guarantees.    “Pride Guarantees” has the meaning set forth in Section 6.8(a).

1.61  Pride Indemnitees.    “Pride Indemnitees” has the meaning set forth in Section 3.3.

1.62  Pride Intellectual Property.    “Pride Intellectual Property” means all industrial and intellectual property rights, including the Pride Marks, patents, copyrights, design rights, rights in know-how, trade secrets and other rights of a similar nature subsisting anywhere in the world, in each case whether registered or unregistered and including all applications for the registration of the same, owned or used by any member of the Pride Group or Seahawk Group on or prior to the Distribution Date, excluding the Seahawk Intellectual Property.

1.63  Pride Liabilities.    “Pride Liabilities” means all Liabilities of Pride, Seahawk and their respective Subsidiaries, whether arising prior to, on or after the Distribution Date, other than the Seahawk Liabilities.

1.64  Pride Marks.    “Pride Marks” means trade names, registered and unregistered trade marks, service marks, domain names and e-mail addresses including the terms “Pride”, “Marine Drilling” or any derivatives thereof or any terms of a confusingly similar nature, and all goodwill embodied in the foregoing, excluding the Seahawk Marks.

 

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1.65  Pride Senior Note Indenture.    “Pride Senior Note Indenture” means that certain Indenture, dated as of July, 1, 2004 and as amended and restated from time to time, by and between Pride and JPMorgan Chase Bank, as Trustee.

1.66  Pride Tennessee and Pride Wisconsin Agreements.    “ Pride Tennessee and Pride Wisconsin Agreements” means those certain agreements addressing management and chartering of each of the Pride Tennessee and the Pride Wisconsin dated as of the date hereof among Pride, Seahawk and certain of their respective Subsidiaries.

1.67  Pride Transition Services Agreement.    “Pride Transition Services Agreement” means the Transition Services Agreement dated the date hereof between Seahawk, as service provider, and Pride, as service recipient.

1.68  Prime Rate.    “Prime Rate” means the fluctuating commercial loan rate announced by Citibank, N.A. from time to time at its New York, NY office as its prime rate or base rate for U.S. Dollar loans in the United States of America in effect on the date of determination.

1.69  Prior Transfer.    “Prior Transfer” means (i) a transfer prior to the date of this Agreement of any Seahawk Asset contained in the Pride Group to the Seahawk Group, (ii) an assumption prior to the date of this Agreement by the Seahawk Group of any of the Seahawk Liabilities, (iii) a transfer prior to the date of this Agreement of any Pride Asset contained in the Seahawk Group to the Pride Group, or (iv) an assumption prior to the date of this Agreement by the Pride Group of any of the Pride Liabilities that are contained in the Seahawk Group.

1.70  Privilege.    “Privilege” has the meaning set forth in Section 6.5(a).

1.71  Privileged Information.    “Privileged Information” has the meaning set forth in Section 6.5(a).

1.72  Property Subleases.    “Property Subleases” means the subleases with respect to the Rosharon and San Felipe headquarters properties dated the date hereof among Pride, Seahawk and the other parties specified therein.

1.73  Record Date.    “Record Date” means the close of business on the date to be determined by the Board of Directors of Pride as the record date for determining stockholders of Pride entitled to receive shares of Seahawk Common Stock on the Distribution Date pursuant to Section 4.2.

1.74  Record Holders.    “Record Holders” has the meaning set forth in Section 4.1.

1.75  Registration Statement.    “Registration Statement” means the registration statement on Form 10 of Seahawk with respect to the registration under the Exchange Act of the Seahawk Common Stock, including any amendments or supplements thereto.

 

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1.76  Restricted Rigs.    “Restricted Rigs” has the meaning set forth in Section 6.9(a).

1.77  Rights Agreement.    “Rights Agreement” means a Rights Agreement to be entered into between Seahawk and a rights agent to be determined, substantially in the form filed as an exhibit to the Registration Statement.

1.78  Seahawk.    “Seahawk” has the meaning set forth in the preamble.

1.79  Seahawk Assets.    “Seahawk Assets” means only the following Assets of Pride, Seahawk and their respective Subsidiaries, in each case not including any Excluded Assets:

(i)   the following mat-supported jackup rigs: the Pride Alabama (IMO # 8751796), Pride Alaska (IMO # 8750778), Pride Arizona (IMO # 8751928), Pride Arkansas (IMO # 8751198), Pride California (IMO # 8755649), Pride Colorado (IMO # 8754334), Pride Florida (IMO # 8751942), Pride Georgia (IMO # 8751930), Pride Kansas (IMO # 8755651), Pride Louisiana (IMO # 8756289), Pride Michigan (IMO # 8751837), Pride Mississippi (IMO # 8751071), Pride Missouri (IMO # 8751954), Pride Nebraska (IMO # 8752465), Pride Nevada (IMO # 8752893), Pride New Mexico (IMO # 8750962), Pride Oklahoma (IMO # 8756227), Pride South Carolina (IMO # 8755223), Pride Texas (IMO # 8756215), and Pride Utah (IMO # 8752831);

(ii)   all of the outstanding equity interests of the members of the Seahawk Group (other than the Seahawk Common Stock);

(iii)   all Assets reflected on the Seahawk Pro Forma Balance Sheet or any subledger thereto that are owned by Pride, Seahawk or any of their respective Subsidiaries as of the Distribution Time;

(iv)   all Assets owned by Pride, Seahawk or any of their respective Subsidiaries as of the Distribution Time that were acquired or created after the date of Seahawk Pro Forma Balance Sheet and that are of a nature or type that would have resulted in them being reflected on a pro forma, as adjusted combined balance sheet of Seahawk and the notes or subledgers thereto as of the Distribution Time (were the balance sheet, notes and subledgers to be prepared as of that time) on a basis consistent with the determination of the Assets reflected on the Seahawk Pro Forma Balance Sheet or any subledger thereto, including Assets allocated to Seahawk pursuant to Schedule 1.92;

(v)   the Seahawk Intellectual Property; and

(vi)   except as otherwise provided in this Agreement (including Schedule 1.92) or one or more Ancillary Agreements, all other Assets held by a member of the Pride Group or the Seahawk Group and used primarily in or that primarily relate to the Seahawk Business on or prior to the Distribution Time.

 

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For the avoidance of doubt, if any Assets described in clauses (i), (iii) or (vi) above are disposed of or lost prior to the Distribution Time, neither such Assets nor the net proceeds therefrom shall constitute Seahawk Assets.

1.80  Seahawk Books and Records.    “Seahawk Books and Records” means the corporate books and records (whether in hard copy or electronic format and including all minute books, corporate charters and by-laws or comparable constitutive documents, records of share issuances and related corporate records) of any member of the Seahawk Group and such other books and records, including operating, accounting, engineering, corporate department and any other written record, whether in hard copy or electronic format, to the extent they primarily relate to the Seahawk Business, the Seahawk Assets or the Seahawk Liabilities, including, without limitation, all such books and records primarily relating to Persons who are employees of the Seahawk Group as of the Distribution Time, the purchase of materials, supplies and services, dealings with customers of the Seahawk Business, and all files relating to any Action the liability with respect to which is a Seahawk Liability, except that no portion of the books and records of the Pride Group containing minutes of meetings of any board of directors of any of them shall be included. Notwithstanding the foregoing, “Seahawk Books and Records” shall not include any Tax Returns or other information, documents or materials relating to Taxes. For the avoidance of doubt, no Information meeting the definition of “Seahawk Books and Records” shall be deemed not to be Seahawk Books and Records because it is provided by any member of the Seahawk Group to any member of the Pride Group after the Distribution Date in connection with the provision of services by any member of the Pride Group pursuant to the Seahawk Transition Services Agreement, or because it is generated, maintained or held in connection with the provision of services by any member of the Pride Group pursuant to the Seahawk Transition Services Agreement after the Distribution Date. Furthermore, Seahawk and Pride each acknowledge and agree that the Seahawk Books and Records described in the immediately preceding sentence shall belong solely to Seahawk and shall not be considered Privileged Information of Pride.

1.81  Seahawk Business.    “Seahawk Business” means the business and operations conducted by the Seahawk Group as of the Distribution Time, as such business and operations are described in the Information Statement.

1.82  Seahawk Common Stock.    “Seahawk Common Stock” has the meaning set forth in the recitals.

1.83  Seahawk Group.    “Seahawk Group” means Seahawk and the Subsidiaries set forth on Schedule 1.83 and each Person that becomes a Subsidiary of Seahawk after the Distribution Date.

1.84  Seahawk Guarantees.    “Seahawk Guarantees” has the meaning set forth in Section 6.8(b).

1.85  Seahawk Indemnitees.    “Seahawk Indemnitees” has the meaning set forth in Section 3.4.

 

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1.86  Seahawk Intellectual Property.    “Seahawk Intellectual Property” means the Seahawk Marks and all industrial and intellectual property rights, including patents, copyrights, design rights, rights in know-how, trade secrets and other rights of a similar nature (excluding the Pride Marks) subsisting anywhere in the world, registered or unregistered, to the extent exclusively related to the Seahawk Business or the Seahawk Assets, in each case to the extent owned or used by the Pride Group or the Seahawk Group as of the Distribution Time.

1.87  Seahawk Liabilities.    “Seahawk Liabilities” shall mean (without duplication):

(i)   all Liabilities to the extent relating to, arising out of or resulting from Pride’s, Seahawk’s and their respective Subsidiaries’ operations in the Gulf of Mexico (including the U.S. and Mexico regions of the Gulf of Mexico) and all Liabilities of the entities comprising the Seahawk Group, whether arising prior to, on or after the Distribution Date; other than, in each case, (A) Liabilities arising out of any operations of the Pride Group, whether in the Gulf of Mexico or elsewhere, conducted after the Distribution Time, (B) Liabilities associated with the Pride Tennessee and Pride Wisconsin to the extent relating to, arising out of or resulting from operations after December 31, 2008, and (C) Liabilities associated with the deepwater drilling services management contracts for the Thunderhorse , Mad Dog and Holstein rigs;

(ii)   all Liabilities reflected on the Seahawk Pro Forma Balance Sheet or any subledger thereto that remain outstanding as of the Distribution Time;

(iii)   all other Liabilities that are incurred or accrued by Pride, Seahawk or any of their respective Subsidiaries after the date of the Seahawk Pro Forma Balance Sheet and that remain outstanding as of the Distribution Time that are of a nature or type that would have resulted in the Liabilities being reflected on a pro forma, as adjusted combined balance sheet of Seahawk and the notes or subledgers thereto as of the Distribution Time (were the balance sheet, notes or subledgers to be prepared as of that time) on a basis consistent with the determination of the Liabilities reflected on the Seahawk Pro Forma Balance Sheet or any subledger thereto;

(iv)   all Liabilities delegated or allocated to, or assumed by, Seahawk or any member of the Seahawk Group under this Agreement or any Ancillary Agreement;

(v)   except as otherwise expressly provided in this Agreement or one or more Ancillary Agreements, all Liabilities arising out of the Seahawk Assets or the operation of the Seahawk Business, whether prior to, on or after the Distribution Date;

(vi)   all Liabilities relating to, arising out of or resulting from Pride’s operations in the Gulf of Mexico conducted after the Distribution Time to the extent such operations are contemplated by the Seahawk Transition Services Agreement (except for any Liabilities for which Pride is expressly responsible pursuant to the terms of the Seahawk Transition Services Agreement); and

 

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(vii)   all Liabilities, costs and expenses attributable to, relating to, arising out of or resulting from Pride’s investigation of potential violations of the U.S. Foreign Corrupt Practices Act, including fines, civil or criminal penalties, equitable remedies (including profit disgorgement) and injunctive relief, in each case to the extent related to Pride’s, Seahawk’s and their respective Subsidiaries’ operations in Mexico (other than (A) operations of the Pride Group, whether in Mexico or elsewhere, conducted after the Distribution Time, (B) operations of the Pride Tennessee and Pride Wisconsin after December 31, 2008, and (C) operations associated with the deepwater drilling services management contracts for the Thunderhorse , Mad Dog and Holstein rigs); provided, however, that the maximum amount of fines, civil or criminal penalties or profit disgorgement (including pre-judgment interest) payable to the United States government or any agency thereof with respect to the above-described investigation for which Seahawk shall be liable shall not exceed $1.0 million (the “FCPA Limit”), and in no event shall Seahawk be liable for fees or expenses of third-party advisors (including attorneys, accountants and investigators) retained by Pride for its benefit in connection with such investigation, whether such fees or expenses are incurred or invoiced prior to or after the Distribution Time; and, provided further, however, that Liabilities, costs and expenses related to the appointment of a compliance monitor or consultant or any similar remedy for the Seahawk Group will not be counted toward or subject to the FCPA Limit and will be a Seahawk Liability regardless of whether such appointment is related or attributable to Pride’s, Seahawk’s and their respective Subsidiaries’ operations in Mexico.

For the avoidance of doubt, Seahawk and Pride acknowledge and agree that Seahawk Liabilities shall include any Liabilities related to, or arising from or in connection with, the loss of the Pride Wyoming mat-supported jackup rig in 2008 to the extent not covered by Pride’s insurance policies (including any deductibles, premium payments for removal of wreckage claims or retention amounts). Also for the avoidance of doubt, Liabilities that are Seahawk Liabilities pursuant to the definition set forth in 1.87(i)-(vii) above shall not be excluded from the definition of Seahawk Liabilities simply because such Seahawk Liabilities are attributable to, relate to, arose out of or resulted from operations or Assets no longer owned by Pride, Seahawk or their respective Subsidiaries as of the Distribution Time (e.g., previously sold, disposed or lost operations or Assets).

1.88  Seahawk Marks.    “Seahawk Marks” means trade names, registered and unregistered trade marks, service marks, domain names and e-mail addresses including the term “Seahawk” or any derivatives thereof or any terms of a confusingly similar nature, and all goodwill embodied in the foregoing, excluding the Pride Marks.

1.89  Seahawk Pro Forma Balance Sheet.    “Seahawk Pro Forma Balance Sheet” means the unaudited combined pro forma, as adjusted balance sheet of the Seahawk Group as of March 31, 2009 included in the Information Statement.

 

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1.90  Seahawk Transition Services Agreement.    “Seahawk Transition Services Agreement” means the Transition Services Agreement dated the date hereof between Pride, as service provider, and Seahawk, as service recipient.

1.91  Securities Act.    “Securities Act” means the Securities Act of 1933, as amended.

1.92  Separation.    “Separation” means:

(i)   the transfer to the Seahawk Group of all of the Pride Group’s right, title and interest in any Seahawk Assets that are contained in the Pride Group and the assumption by the Seahawk Group of any Seahawk Liabilities that are contained in the Pride Group;

(ii)   the transfer to the Pride Group of all of the Seahawk Group’s right, title and interest in any Pride Assets that are contained in the Seahawk Group and the assumption by the Pride Group of any Pride Liabilities that are contained in the Seahawk Group;

(iii)   the issuance by Seahawk to Pride of a number of shares of Seahawk Common Stock such that the number of shares of Seahawk Common Stock issued and outstanding immediately before the Distribution Time will equal the product of (i) the Distribution Multiple and (ii) the number of shares of Pride Common Stock outstanding as of the Record Date, which Seahawk Common Stock owned by Pride will constitute all of the issued and outstanding common stock of Seahawk; and

(iv)   the settling of intercompany accounts and related Liabilities and other matters between Pride or any other member of the Pride Group, on the one hand, and Seahawk or any other member of the Seahawk Group, on the other hand, as set forth on Schedule 1.92.

The transactions contemplated by the Separation will be accomplished in part as provided herein and in the Omnibus Agreement.

1.93  Subsidiary.    A “Subsidiary” of any Person means any corporation or other organization whether incorporated or unincorporated of which at least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries.

1.94  Surety Instruments.    “Surety Instruments” has the meaning set forth in Section 6.7.

1.95  Taxes.    “Taxes” has the meaning set forth in the Tax Sharing Agreement.

1.96  Tax Returns.    “Tax Returns” has the meaning set forth in the Tax Sharing Agreement.

 

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1.97  Tax Sharing Agreement.    “Tax Sharing Agreement” means the Tax Sharing Agreement dated the date hereof between Pride and Seahawk.

1.98  Tax Support Agreement.    “Tax Support Agreement” means the Tax Support Agreement dated the date hereof between Pride and Seahawk.

1.99  Third Party Claim.    “Third Party Claim” has the meaning set forth in Section 3.7(a).

1.100 Wyoming Claim.    “Wyoming Claim” means any Third Party Claim relating to the loss or wreckage of the Pride Wyoming that is, or is reasonably expected to be, covered solely by Pride’s (and not Seahawk’s) insurance policies.

1.101 Wyoming Removal Project.    “Wyoming Removal Project” has the meaning set forth in Section 6.13(a).

ARTICLE II

SEPARATION AND RELATED TRANSACTIONS

2.1   The Separation.    Each of Pride and Seahawk will use commercially reasonable efforts to take, or cause to be taken, any actions, including the transfer of Assets and the assumption of Liabilities, necessary to effect the Separation on or prior to the Distribution Date. Seahawk and its Subsidiaries shall faithfully perform and fulfill all of the Seahawk Liabilities in accordance with their respective terms. As of and after the Distribution Time, Seahawk and its Subsidiaries shall be responsible for all Seahawk Liabilities, regardless of when or where such Seahawk Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the date hereof, regardless of where or against whom such Seahawk Liabilities are asserted or determined or whether asserted or determined prior to, at or after the date hereof, and regardless of whether arising from or alleged to arise from negligence, recklessness, violation of statute or Law, fraud or misrepresentation, breach of contract or other theory, by any member of the Pride Group or the Seahawk Group or any of their respective directors, officers, employees, agents, Subsidiaries or Affiliates (it being understood that nothing in this sentence is intended to or shall be deemed to expand the definition of Seahawk Liabilities). Subject to Section 3.8(e), each of Pride and Seahawk agrees on behalf of itself and its Subsidiaries that the provisions of the Tax Sharing Agreement shall exclusively govern the allocation of Assets and Liabilities related to Taxes.

2.2   Rights Plan, Charter and Bylaws.    Immediately prior to the Distribution Time, Seahawk shall enter into the Rights Agreement. Effective as of the Distribution Time, the Restated Certificate of Incorporation and Bylaws of Seahawk shall be substantially in the forms of Schedule 2.2(a) and Schedule 2.2(b), respectively, with such changes therein as may be agreed to in writing by Pride.

 

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2.3   Intellectual Property.

(a)   Seahawk, for itself and as representative of all other members of the Seahawk Group, hereby assigns to Pride all right, title and interest, held by Seahawk or any member of the Seahawk Group, in and to any Pride Intellectual Property, including any and all Pride Marks. Pride, for itself and as representative of all other members of the Pride Group, hereby assigns to Seahawk all right, title and interest, held by Pride or any member of the Pride Group, in and to any Seahawk Intellectual Property, including any and all Seahawk Marks.

(b)   Seahawk, for itself and as representative of all other members of the Seahawk Group, hereby grants to Pride a non-exclusive, royalty-free, worldwide license to use the Seahawk Intellectual Property previously used in connection with the Pride Business; provided, however , the foregoing license shall not extend to Seahawk Intellectual Property licensed by Seahawk or any member of the Seahawk Group from a third party if and to the extent the licensing of same to Pride would constitute a breach of agreement with such third party or result in any expense to Seahawk or any member of the Seahawk Group. Pride, for itself and as representative of all other members of the Pride Group, hereby grants to Seahawk a non-exclusive, royalty-free, worldwide license to use the Pride Intellectual Property previously used in connection with the Seahawk Business; provided, however , the foregoing license shall not extend to Pride Intellectual Property licensed by Pride or any member of the Pride Group from a third party if and to the extent the licensing of same to Seahawk would constitute a breach of agreement with such third party or result in any expense to Pride or any member of the Pride Group. The foregoing licenses shall be assignable only to the extent the licensee transfers to a third party all of the assets to which such Seahawk Intellectual Property or Pride Intellectual Property, as applicable, relates. The foregoing licenses shall be sublicenseable to the extent the licensee transfers to a third party only a portion of the assets to which such Seahawk Intellectual Property or Pride Intellectual Property, as applicable, relates. Any such sublicenses shall grant the right to use the Seahawk Intellectual Property or Pride Intellectual Property, as applicable, only in connection with the acquired assets.

(c)   Seahawk agrees and acknowledges that (i) as of the date of this Agreement, as between the Pride Group and Seahawk Group, all right, title and interest in and to any and all Pride Marks shall be the sole and exclusive property of the Pride Group and (ii) except as otherwise provided in Section 2.3(d), the Seahawk Group shall cease and discontinue all use of the Pride Marks as of the date of this Agreement. Pride agrees and acknowledges that (x) as of the date of this Agreement, as between the Pride Group and Seahawk Group, all right, title and interest in and to any and all Seahawk Marks shall be the sole and exclusive property of the Seahawk Group and (y) the Pride Group shall cease and discontinue all use of the Seahawk Marks as of the date of this Agreement.

(d)   Seahawk shall have the right to use the Pride Marks in connection with the operation of the Seahawk Business for a limited period of 180 days following the Distribution Date. After such 180-day period, Seahawk shall discontinue all use of the Pride Marks, including any use on stationery or letterhead and any use on other Seahawk Assets (including the rigs specified in clause (i) of the definition thereof). All of Seahawk’s use of the Pride Marks shall inure to the benefit of Pride. Seahawk agrees to use the Pride Marks in accordance with such quality standards established by Pride and communicated to Seahawk, it being understood that the products and services used in association with the Pride Marks immediately before the Distribution Date are of a quality that is acceptable to Pride and justifies the license granted herein. Except as set forth in this Section 2.3(d), it is expressly agreed that Seahawk is not obtaining any right, title or interest in the Pride Marks. Seahawk will not contest the ownership,

 

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validity or enforceability of the Pride Marks, and nothing in this Section 2.3(d) shall be construed to limit Pride’s ability to use the Pride Marks following the Distribution Date. Pride will not contest the ownership, validity or enforceability of the Seahawk Marks.

(e)   Nothing contained in this Section 2.3 shall be construed as (i) a warranty or representation by the Pride Group as to the validity or scope of the Seahawk Intellectual Property; (ii) a warranty or representation that the Seahawk Business will not infringe the intellectual property rights of a third party; (iii) a warranty or representation that the Seahawk Intellectual Property constitutes all intellectual property the Seahawk Group may need for the conduct of the Seahawk Business; (iv) an agreement to defend any member of the Seahawk Group against actions or suits of any nature brought by any third parties regarding the Seahawk Intellectual Property or the intellectual property rights of such third party; (v) a warranty or representation by the Seahawk Group as to the validity or scope of the Pride Intellectual Property; (vi) a warranty or representation that the Pride Business will not infringe the intellectual property rights of a third party; (vii) a warranty or representation that the Pride Intellectual Property constitutes all intellectual property the Pride Group may need for the conduct of the Pride Business; or (viii) an agreement to defend any member of the Pride Group against actions or suits of any nature brought by any third parties regarding the Pride Intellectual Property or the intellectual property rights of such third party.

2.4   Instruments of Transfer and Assumption.    Pride and Seahawk agree that (a) transfers of Assets required to be transferred by this Agreement shall be effected by delivery by the transferring entity to the transferee of (i) with respect to those Assets that constitute stock, certificates endorsed in blank or evidenced or accompanied by stock powers or other instruments of transfer endorsed in blank, against receipt, (ii) with respect to any real property interest or any improvements thereon, a general warranty deed with general warranty of limited application limiting recourse and remedies to title insurance and warranties by predecessors in title and (iii) with respect to all other Assets, such good and sufficient instruments of contribution, conveyance, assignment and transfer, in form and substance reasonably satisfactory to Pride and Seahawk, as shall be necessary to vest in the designated transferee all of the title and ownership interest of the transferor in and to any such Asset, and (b) to the extent necessary, the assumption of the Liabilities contemplated pursuant to Section 2.1 shall be effected by delivery by the transferee to the transferor of such good and sufficient instruments of assumption, in form and substance reasonably satisfactory to Pride and Seahawk, as shall be necessary for the assumption by the transferee of such Liabilities. Pride and Seahawk agree that, to the extent that the documents described in clause (a)(i), (ii) and (iii) and clause (b) have not previously been delivered in connection with any Prior Transfers, the documents relating to such Prior Transfers shall be delivered by the appropriate party or Subsidiary thereof. Each party hereto also agrees to deliver to the other party hereto such other documents, instruments and writings as may be reasonably requested by the other party in connection with the transactions contemplated hereby or by Prior Transfers. Notwithstanding any other provisions of this Agreement to the contrary, (x) THE TRANSFERS AND ASSUMPTIONS REFERRED TO IN THIS ARTICLE II (INCLUDING PRIOR TRANSFERS) HAVE BEEN, OR WILL BE, MADE WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY NATURE (A) AS TO THE VALUE OR FREEDOM FROM ENCUMBRANCE OF, ANY ASSETS, (B) AS TO ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OR (C) AS TO THE LEGAL

 

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SUFFICIENCY TO CONVEY TITLE TO ANY ASSETS, and (y) the instruments of transfer or assumption referred to in this Section 2.4 shall not include any representations and warranties other than as specifically provided herein. Pride and Seahawk hereby acknowledge and agree that ALL ASSETS TRANSFERRED PURSUANT TO THIS ARTICLE II AND ALL ASSETS INCLUDED IN PRIOR TRANSFERS ARE BEING OR WERE TRANSFERRED “AS IS, WHERE IS.” To the extent that the instruments of transfer and assumption with respect to any Prior Transfers are inconsistent with this Section 2.4, the Seahawk Group and the Pride Group agree that the inconsistent provisions of such instruments are hereby amended and superseded by the provisions of this Section 2.4. To the extent reasonably requested by a member of either Group, each party will, or will cause its Subsidiaries to, execute any documents necessary to evidence such amendment.

2.5   No Representations or Warranties.    Except as expressly set forth in this Agreement or in an Ancillary Agreement, Seahawk and Pride understand and agree that no member of the Pride Group is representing or warranting to Seahawk or any member of the Seahawk Group in any way as to the Seahawk Business, the Seahawk Assets or the Seahawk Liabilities; and, no member of the Seahawk Group is representing or warranting to Pride or any member of the Pride Group in any way as to the Pride Business, the Pride Assets or the Pride Liabilities.

2.6   Agreements.    Prior to the Distribution Time, Pride and Seahawk shall execute and deliver (or shall cause their appropriate Subsidiaries to execute and deliver, as applicable) the agreements between them designated as follows:

(i)   the Pride Transition Services Agreement,

(ii)   the Seahawk Transition Services Agreement,

(iii)   the Employee Matters Agreement,

(iv)   the Tax Sharing Agreement,

(v)   the Omnibus Agreement,

(vi)   the Property Subleases,

(vii)   the Pride Tennessee and Pride Wisconsin Agreements,

(viii)   the Tax Support Agreement, and

(ix)   such other written agreements, documents or instruments as the parties may agree are necessary or desirable and which specifically state that they are Ancillary Agreements within the meaning of this Agreement

(collectively, the “Ancillary Agreements”).

 

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2.7   Transfers Not Effected Prior to the Distribution Date.    To the extent that any transfers contemplated by this Article II shall not have been consummated as of the Distribution, the parties shall cooperate to effect such transfers as promptly following the Distribution as shall be practicable. Nothing herein shall be deemed to require the transfer of any Assets or the assumption of any Liabilities that by their terms or operation of law cannot be transferred or assumed; provided , that the Seahawk Group and the Pride Group shall cooperate and use their respective commercially reasonable efforts to obtain any necessary consents or approvals for the transfer of all Assets and the assumption of all Liabilities contemplated to be transferred or assumed pursuant to this Article II and shall, even in the absence of necessary consents or approvals, transfer the equitable ownership of Assets when such a transfer is permitted. In the event that any such transfer of Assets or assumption of Liabilities has not been consummated effective as of the time of the Distribution, the party retaining such Asset or Liability shall thereafter hold such Asset in trust for the use and benefit of the party entitled thereto (at the expense of the party entitled thereto) and retain such Liability for the account of the party by whom such Liability is to be assumed pursuant hereto, and take such other action as may be reasonably requested by the party to which such Asset is to be transferred, or by whom such Liability is to be assumed, as the case may be, in order to place such party, insofar as reasonably possible, in the same position as would have existed had such Asset or Liability been transferred or assumed as contemplated hereby. Without limiting any other duty of a party holding any Asset in trust for the use and benefit of the party entitled thereto, such party shall take all reasonable actions that it deems necessary to preserve the value of that Asset. As and when any such Asset becomes transferable or such Liability can be assumed, such transfer or assumption shall be effected forthwith. Subject to the foregoing, the parties agree that, as of the Distribution Time (or such earlier time as any such Asset may have been acquired or Liability assumed), each party hereto shall be deemed to have acquired complete and sole beneficial ownership over all of the Assets, together with all rights, powers and privileges incident thereto, and shall be deemed to have assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibilities incident thereto, which such party is entitled to acquire or required to assume pursuant to the terms of this Agreement.

ARTICLE III

MUTUAL RELEASES; INDEMNIFICATION

3.1   Release of Pre-Closing Claims.

(a)   Except as provided in Section 3.1(c), effective as of the Distribution Date, Seahawk does hereby, for itself and each other member of the Seahawk Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Distribution Date have been stockholders, directors, officers, agents or employees of any member of the Seahawk Group (in each case, in their respective capacities as such), remise, release and forever discharge Pride, each member of the Pride Group and their respective Affiliates, successors and assigns, and all stockholders, directors, officers, agents or employees of any member of the Pride Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever to Seahawk and each other member of the Seahawk Group, whether at law or in equity (including any right of contribution), whether arising under any Contract, by operation of law or otherwise, existing or

 

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arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution Date, including in connection with the transactions and all other activities to implement any Prior Transfers, the Separation and the Distribution.

(b)   Except as provided in Section 3.1(c), effective as of the Distribution Date, Pride does hereby, for itself and each other member of the Pride Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Distribution Date have been stockholders, directors, officers, agents or employees of any member of the Pride Group (in each case, in their respective capacities as such), remise, release and forever discharge Seahawk, each member of the Seahawk Group and their respective Affiliates, successors and assigns, and all stockholders, directors, officers, agents or employees of any member of the Seahawk Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever to Pride and each other member of the Pride Group, whether at law or in equity (including any right of contribution), whether arising under any Contract, by operation of law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution Date, including in connection with the transactions and all other activities to implement Prior Transfers, the Separation and the Distribution.

(c)   Nothing contained in Section 3.1(a) or (b) shall impair any right of any Person to enforce this Agreement, any Ancillary Agreement or any agreements, arrangements, commitments or understandings that are specified in, or contemplated to continue pursuant to, this Agreement or any Ancillary Agreement. Nothing contained in Section 3.1(a) or (b) shall release any Person from:

(i)   any Liability, contingent or otherwise, assumed, transferred, assigned or allocated to the Group of which such Person is a member in accordance with, or any other Liability of any member of either Group under, this Agreement, any Ancillary Agreement or any other Contract among any members of the Pride Group and the Seahawk Group;

(ii)   any Liability that the parties may have with respect to indemnification or contribution pursuant to this Agreement for claims brought against the parties by third Persons, which Liability shall be governed by the provisions of this Article III and, if applicable, the appropriate provisions of the Ancillary Agreements; or

(iii)   any Liability the release of which would result in the release of any Person other than an Indemnitee; provided that the parties agree not to bring suit or permit any of their Subsidiaries to bring suit against any Indemnitee with respect to such Liability.

(d)   Seahawk shall not make, and shall not permit any member of the Seahawk Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or indemnification, against Pride or any member of the Pride

 

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Group, or any other Person released pursuant to Section 3.1(a), with respect to any Liabilities released pursuant to Section 3.1(a). Pride shall not make, and shall not permit any member of the Pride Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Seahawk or any member of the Seahawk Group, or any other Person released pursuant to Section 3.1(b), with respect to any Liabilities released pursuant to Section 3.1(b).

(e)   It is the intent of each of Pride and Seahawk by virtue of the provisions of this Section 3.1 to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Distribution Date, between or among Seahawk or any member of the Seahawk Group, on the one hand, and Pride or any member of the Pride Group, on the other hand (including any contractual agreements or arrangements existing or alleged to exist between or among any such members on or before the Distribution Date), except as expressly set forth in Section 3.1(c). At any time, at the request of any other party, each party shall cause each member of its respective Group to execute and deliver releases reflecting the provisions hereof.

3.2   Termination of Intercompany Agreements.    Without limiting the generality of Section 3.1(e) and subject to the terms of Section 3.1 and Schedule 1.92, each of the parties hereto agrees that, except for this Agreement and the Ancillary Agreements (including any amounts owed with respect to such agreements), all Intercompany Agreements and all other intercompany arrangements and course of dealings whether or not in writing and whether or not binding or in effect immediately prior to the Distribution Time shall terminate immediately prior to the Distribution Time unless the parties thereto otherwise agree in writing after the date of this Agreement.

3.3   Indemnification by Seahawk.    Except as provided in Sections 3.5 and 3.6, Seahawk shall, and in the case of clauses (a), (b) and (c) below shall in addition cause the Appropriate Member of the Seahawk Group to, indemnify, defend and hold harmless Pride, each member of the Pride Group and their respective Affiliates, successors and assigns, and all stockholders, directors, officers, agents or employees of any member of the Pride Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns (collectively, the “Pride Indemnitees”) from and against any and all Losses of the Pride Indemnitees relating to, arising out of or resulting from any of the following (without duplication):

(a)   the failure of Seahawk or any other member of the Seahawk Group or any other Person to pay, perform or otherwise promptly discharge any Seahawk Liabilities in accordance with their respective terms, whether prior to or after the Distribution Date;

(b)   any Seahawk Liability;

(c)   any breach by Seahawk or any member of the Seahawk Group of this Agreement or any of the Ancillary Agreements; and

 

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(d)   any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all Information contained in the Registration Statement or the Information Statement (other than Information regarding Pride provided by Pride in writing to Seahawk for inclusion in the Registration Statement or the Information Statement).

As used in this Section 3.3, “Appropriate Member of the Seahawk Group” means the member or members of the Seahawk Group, if any, whose acts, conduct or omissions or failures to act caused, gave rise to or resulted in the Loss from and against which indemnity is provided.

3.4   Indemnification by Pride.    Except as provided in Sections 3.5 and 3.6, Pride shall, and in case of clauses (a), (b) and (c) below shall in addition cause the Appropriate Member of the Pride Group to, indemnify, defend and hold harmless Seahawk, each member of the Seahawk Group and their respective Affiliates, successors and assigns, and all stockholders, directors, officers, agents or employees of any member of the Seahawk Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns (collectively, the “Seahawk Indemnitees”) from and against any and all Losses of the Seahawk Indemnitees relating to, arising out of or resulting from any of the following (without duplication):

(a)   the failure of Pride or any other member of the Pride Group or any other Person to pay, perform or otherwise promptly discharge any Pride Liabilities in accordance with their respective terms, whether prior to or after the Distribution Date or the date hereof;

(b)   any Pride Liability;

(c)   any breach by Pride or any member of the Pride Group of this Agreement or any of the Ancillary Agreements; and

(d)   any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to information regarding Pride provided by Pride in writing to Seahawk for inclusion in the Registration Statement or the Information Statement.

As used in this Section 3.4, “Appropriate Member of the Pride Group” means the member or members of the Pride Group, if any, whose acts, conduct or omissions or failures to act caused, gave rise to or resulted in the Loss from and against which indemnity is provided.

3.5   Indemnification Obligations Net of Insurance Proceeds.

(a)   The parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article III (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which any party (an “Indemnifying Party”) is required to pay to any Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a

 

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payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any proceeds of insurance policies to which the Indemnitee is entitled with respect to any Indemnifiable Loss if such Indemnifiable Loss is attributable to events that occurred prior to the Distribution Date. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article III and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against an assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel all employees, books and records, communications, documents, items or matters within its knowledge, possession or control that are necessary, appropriate or reasonably deemed relevant by the Indemnifying Party with respect to the recovery of such Insurance Proceeds; provided, however, that subject to Section 6.5 hereof, nothing in this sentence shall be deemed to require a party to make available books and records, communications, documents or items which (i) in such party’s Good Faith Judgment could result in a waiver of any Privilege with respect to a third party even if Seahawk and Pride cooperated to protect such Privilege as contemplated by this Agreement, or (ii) such party is not permitted to make available because of any Law or any confidentiality obligation to a third party, in which case such party shall use commercially reasonable efforts to seek a waiver of or other relief from such confidentiality restriction. Unless the Indemnifying Party has made payment in full of any Indemnifiable Loss, such Indemnifying Party shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

(b)   An insurer who would otherwise be obligated to pay any claims shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other third party shall be entitled to a “windfall” (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof.

3.6   Indemnification Obligations Net of Taxes.    The parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article III will be net of Taxes. Accordingly, the amount which an Indemnifying Party is required to pay to an Indemnitee will be adjusted to reflect any tax benefit to the Indemnitee from the underlying Loss and to reflect any Taxes imposed upon the Indemnitee as a result of the receipt of such payment. Such an adjustment will first be made at the time that the indemnity payment is made and will further be

 

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made, as appropriate, to take into account any change in the liability of the Indemnitee for Taxes that occurs in connection with the final resolution of an audit by a taxing authority. For purposes of this Section 3.6, the value of such tax benefit shall be an amount equal to the product of (x) the amount of any present or future deduction allowable to the Indemnitee by the Code, or other applicable Law, as a result of the underlying Loss and (y) the highest statutory rate applicable under Section 11 of the Code, or other applicable Law. To the extent permitted by Law, the parties will treat any indemnity payment as a capital contribution made by Pride to Seahawk or as a distribution made by Seahawk to Pride, as the case may be, on the date recited above on which the parties entered into the Agreement.

3.7   Procedures for Indemnification of Third Party Claims.

(a)   If an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) who is not a member of the Pride Group or the Seahawk Group of any claims or of the commencement by any such Person of any Action (collectively, a “Third Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnitee pursuant to Section 3.3 or 3.4, or any other Section of this Agreement or any Ancillary Agreement, such Indemnitee shall promptly give such Indemnifying Party written notice thereof. Any such notice shall describe the Third Party Claim in reasonable detail. Notwithstanding the foregoing, the failure of any Indemnitee or other Person to give notice as provided in this Section 3.7(a) shall not relieve the related Indemnifying Party of its obligations under this Article III, except to the extent that such Indemnifying Party is actually prejudiced by such failure to give notice.

(b)   An Indemnifying Party may elect to defend (and, unless the Indemnifying Party has specified any reservations or exceptions, to seek to settle or compromise), at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any Third Party Claim. Within 30