EXHIBIT 10.1
DIRECTOR INDEMNIFICATION AGREEMENT
UNIVERSAL TRUCKLOAD SERVICES, INC.
THIS DIRECTOR INDEMNIFICATION AGREEMENT (the "Agreement") made and entered
into this day of 2004, by and between Universal Truckload Services,
Inc., a Michigan corporation (the "Company"), and (the "Indemnitee").
WHEREAS, it is essential that the Company be able to retain and attract as
directors the most capable persons available;
WHEREAS, the Company's Articles of Incorporation and Bylaws permit it to
enter into indemnification arrangements and agreements;
WHEREAS, the Company desires to provide the Indemnitee with specific
contractual assurances of the Indemnitee's rights to full indemnification
against litigation risks and expenses (regardless, among other things, of any
amendment to or revocation of the Company's Bylaws or any change in the
ownership of the Company or the composition of its Board of Directors) and, to
the extent insurance is available, the coverage of the Indemnitee under the
Company's directors and officers liability insurance policies; and
WHEREAS, the Indemnitee is relying upon the rights afforded under this
Agreement in accepting Indemnitee's position as a director of the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and Indemnitee hereby covenant and agree as
follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is
serving or has served (i) as a director, officer or employee of the Company or
any of its subsidiaries, (ii) in any capacity with respect to any employee
benefit plan of the Company, or (iii) as a director, officer, employee or agent
of any other Entity at the request of the Company.
(b) "Entity" shall mean the (i) Company, its divisions and
subsidiaries; (ii) any constituent corporation absorbed in a consolidation or
merger and the resulting or surviving corporation, if so determined by a
resolution of the Company's board of directors; and (iii) any other foreign or
domestic corporation, partnership, limited liability company, joint venture,
trust or other enterprise, whether for profit or not.
(c) "Expenses" shall mean all reasonable fees, costs and expenses
actually and reasonably incurred in connection with any Proceeding (as defined
below), including, without limitation, attorneys' fees, disbursements and
retainers (including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Section 10 of this Agreement), fees
and disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants), court costs, transcript
costs, fees of experts,
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travel expenses, duplicating, printing and binding costs, telephone and fax
transmission charges, postage, delivery services, secretarial services, and
other disbursements and expenses.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those terms in
Section 3(a) below.
(e) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, fines, excise taxes assessed on Indemnitee with respect to an
employee benefit plan and amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with a Proceeding.
(f) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other proceeding, whether
civil, criminal, administrative or investigative, whether formal or informal,
including a proceeding initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee's rights hereunder.
2. Services of Indemnitee. In consideration of the Company's covenants
and commitments hereunder, Indemnitee agrees to serve as a director of the
Company; provided that this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee's service to the Company beyond
any period otherwise required by law or by other agreements or commitments of
the parties, if any.
3. Agreement to Indemnify.
The Company agrees to indemnify Indemnitee as follows:
(a) Subject to the exceptions contained in Section 4(a) below, if
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company) by reason of
Indemnitee's Corporate Status, Indemnitee shall be indemnified by the Company
against all Expenses and Liabilities incurred or paid by Indemnitee in
connection with such Proceeding (referred to herein as "Indemnifiable Expenses"
and "Indemnifiable Liabilities," respectively, and collectively as
"Indemnifiable Amounts").
(b) Subject to the exceptions contained in Section 4(b) below, if
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding by or in the right of the Company to procure a judgment in its favor
by reason of Indemnitee's Corporate Status, Indemnitee shall be indemnified by
the Company against all Indemnifiable Expenses.
4. Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all circumstances other
than the following:
(a) If indemnification is requested under Section 3(a) and it has
been adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal action or proceeding,
Indemnitee had
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reasonable cause to believe that Indemnitee's conduct was unlawful, Indemnitee
shall not be entitled to payment of Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b) and
(i) it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the Proceeding out of which
the claim for indemnification has arisen, Indemnitee failed to act in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or
(ii) it has been adjudicated finally by a court of competent
jurisdiction that Indemnitee is liable to the Company with respect to any claim,
issue or matter involved in the Proceeding out of which the claim for
indemnification has arisen, including, without limitation, a claim that
Indemnitee received an improper personal benefit or improperly took advantage of
a corporate opportunity, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder with respect to such claim, issue or matter
unless the court in which such 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
indemnity for such Indemnifiable Expenses which such court shall deem proper.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Amounts for
which Indemnitee seeks payment under Section 3 of this Agreement and the basis
for the claim. Subject to Section 4, the Company shall pay such Indemnifiable
Amounts to Indemnitee within twenty (20) calendar days of receipt of the
request. At the request of the Company, Indemnitee shall furnish such
documentation and information as are reasonably available to Indemnitee and
necessary to establish that Indemnitee is entitled to indemnification hereunder.
6. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
7. Effect of Certain Resolutions. Neither the settlement nor
termination of any Proceeding nor the failure of the Company to award
indemnification or to determine that indemnification is payable shall create an
adverse presumption that Indemnitee is not entitled to indemnification
hereunder. In addition, the termination of any proceeding by judgment, order,
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settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not create a presumption that Indemnitee did not act in good faith and in
a manner which Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company or, with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee's action was
unlawful.
8. Agreement to Advance Interim Expenses. The Company shall pay to
Indemnitee all Indemnifiable Expenses incurred by Indemnitee in connection with
any Proceeding, including a Proceeding by or in the right of the Company, in
advance of the final disposition of such Proceeding, if Indemnitee furnishes the
Company with a written undertaking to repay the amount of such Indemnifiable
Expenses advanced to Indemnitee if it is finally determined by a court of
competent jurisdiction that Indemnitee is not entitled under this Agreement to
indemnification with respect to such Indemnifiable Expenses. The undertaking
shall be by unlimited general obligation of the Indemnitee, but need not be
secured.
9. Procedure for Payment of Interim Expenses. Indemnitee shall submit
to the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 8 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 8 shall be made no
later than twenty (20) calendar days after the Company's receipt of such request
and the undertaking required by Section 8.
10. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a
request for payment of Indemnifiable Amounts under Sections 3 and 5 above or a
request for an advancement of Indemnifiable Expenses under Sections 8 and 9
above and the Company fails to make such payment or advancement in a timely
manner pursuant to the terms of this Agreement, Indemnitee may petition the
appropriate judicial authority to enforce the Company's obligations under this
Agreement.
(b) Burden of Proof. In any judicial proceeding brought under
Section 10(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for
any Expenses incurred by Indemnitee in connection with investigating, preparing
for, litigating, defending or settling any action brought by Indemnitee under
Section 10(a) above, or in connection with any claim or counterclaim brought by
the Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded from
asserting in any Proceeding, including, without limitation, an action under
Section 10(a) above, that the provisions of this Agreement are not valid,
binding and enforceable or that there is insufficient consideration for this
Agreement and shall stipulate in court that the Company is bound by all the
provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company
(including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) to
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make a determination concerning the permissibility of the payment of
Indemnifiable Amounts or the advancement of Indemnifiable Expenses under this
Agreement shall not be a defense in any action brought under Section 10(a)
above, and shall not create a presumption that such payment or advancement is
not permissible.
11. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:
(a) Authority . The Company has all necessary corporate power and
authority to enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated by this
Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by
the Company in accordance with the provisions hereof, shall be a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting the enforcement of creditors' rights generally or general equitable
principles, and to the extent limited by applicable federal or state securities
laws.
12. Insurance. The Company will use commercially reasonable efforts to
obtain and maintain a policy or policies of insurance, on commercially
reasonable terms, with reputable insurance companies providing the members of
the Board of Directors with coverage for losses from wrongful acts, and to
ensure the Company's performance of its indemnification obligations under this
Agreement. In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee at least the same rights and benefits as are accorded to the most
favorably insured of the Company's officers and directors. Notwithstanding the
foregoing, if the Company, after employing commercially reasonable efforts as
provided in this Section, determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, or if the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit, the Company shall use its commercially reasonable efforts to obtain and
maintain a policy or policies of insurance with coverage having features as
similar as practicable to those described above.
13. Fees and Expense. During the term of the Indemnitee's service as a
director, the Company shall promptly reimburse the Indemnitee for all expenses
incurred by Indemnitee in connection with service as a director or member of any
board committee or otherwise in connection with the Company's business.
14. Contract Rights Not Exclusive. The rights to payment of
Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, the Company's Bylaws, the
Company's Amended and Restated Articles of Incorporation, or any other
agreement, vote of stockholders or directors, or otherwise, both as to action in
Indemnitee's official capacity and as to action in any other capacity as a
result of Indemnitees's serving as a director of the Company.
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15. Successors. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.
16. Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.
17. Change in Law. To the extent that a change in applicable law
(whether by statute or judicial decision) shall permit broader indemnification
than is provided under the terms of the Amended and Restated Articles of
Incorporation or Bylaws of the Company, and this Agreement, Indemnitee shall be
entitled to such broader indemnification and this Agreement shall be deemed to
be amended to such extent.
18. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
19. Indemnitee as Plaintiff. Except as provided in Section 10 of this
Agreement and in the next sentence, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any director or officer thereof, or any third party, unless the
Company has consented to the initiation of such Proceeding. This Section shall
not apply to affirmative defenses asserted by Indemnitee in an action brought
against Indemnitee.
20. Modifications and Waiver. Except as provided in Section 17 above
with respect to changes in applicable law which broaden the right of Indemnitee
to be indemnified by the Company, no supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by each of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions of this Agreement
(whether or not similar), nor shall such waiver constitute a continuing waiver.
21. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified
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or registered mail with postage prepaid, on the third business day after the
date on which it is so mailed:
(i) If to Indemnitee, to:
(ii) If to the Company, to: Universal Truckload Services, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X.Xxxxxx, Chief Financial Officer
Fax: 000-000-0000
or to such other address as may have been furnished in the same manner by any
party to the others.
22. Governing Law. This Agreement shall be governed by and construed and
enforced under the laws of The State of Michigan without giving effect to the
provisions thereof relating to conflicts of law.
23. Agreement Governs. This Agreement is to be deemed consistent
wherever possible with relevant provisions of the Company's Bylaws and Amended
and Restated Articles of Incorporation; however, in the event of a conflict
between this Agreement and such provisions, the provisions of this Agreement
shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Director
Indemnification Agreement as of the day and year first above written.
UNIVERSAL TRUCKLOAD SERVICES, INC.
By: _________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
DIRECTOR:
By: _________________________________________
Name:
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