EXHIBIT 10.26
CIT GROUP INC.
FORM OF INDEMNIFICATION AGREEMENT
THIS Indemnification Agreement ("Agreement") is made as of this day of
, 2002, by and among CIT Group Inc. (Del), a Delaware corporation ("CIT
Delaware"), CIT Group Inc., a Nevada corporation ("CIT Nevada"), and [ ]
("Indemnitee").
WHEREAS, the Company (as defined below) desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to serve as
officers and directors of the Company and to indemnify its officers and
directors so as to provide them with the maximum protection permitted by law;
and
WHEREAS, the Company and Indemnitee recognize the increasing difficulty in
obtaining directors' and officers' liability insurance, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance; and
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting officers and directors
to expensive litigation risks at the same time as the availability and coverage
of liability insurance has been severely limited;
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. GENERAL. CIT Delaware and CIT Nevada shall collectively be referred to
herein as the "Company," and the parties hereto agree that all obligations and
liabilities of the Company hereunder shall be joint and several obligations and
liabilities of each of CIT Delaware and CIT Nevada.
2. INDEMNIFICATION.
(a) THIRD PARTY PROCEEDINGS. Subject to Section 1(c), the Company shall
indemnify Indemnitee if Indemnitee is or was a party to any threatened, pending
or completed action, suit, arbitration or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of CIT
Delaware or CIT Nevada) by reason of the fact that he or she is or was, at any
time on or after April 25, 2002, (1) a director, officer, employee or agent of
CIT Delaware or CIT Nevada, (2) named in a registration statement filed by CIT
Delaware under the Securities Act of 1933, as amended, as a person who is about
to become a director of CIT Delaware, or (3) serving at the request of CIT
Delaware or CIT Nevada as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she 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, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Subject to
Section 1(c), the Company shall indemnify Indemnitee if Indemnitee is or was a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of CIT Delaware or CIT Nevada to
procure a judgment in its favor by reason of the fact that he or she is or was,
at any time on or after April 25, 2002, (1) a director, officer, employee or
agent of CIT Delaware or CIT Nevada, (2) named in a registration statement filed
by CIT Delaware under the Securities Act of 1933, as amended, as a person who is
about to become a director of CIT Delaware, or (3) serving at the request of CIT
Delaware or CIT Nevada as a director, officer, employee or agent of another
corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection with the
defense or settlement of such action or suit if he or she 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; except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to CIT Delaware or CIT Nevada unless and only to the
extent that the Delaware Court of Chancery or the court in which such action or
suit 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 expenses which the Delaware
Court of Chancery or such other court shall deem proper.
(c) AUTHORIZATION. Any indemnification under this Agreement (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the Indemnitee is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in Section 1(a) or (b). Such determination shall be made
(a) by a majority vote of the directors who were not parties to such action,
suit or proceeding, even though less than a quorum, (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, (c) if such a quorum is not obtainable, or, even if obtainable a quorum
of disinterested directors so directs, by independent legal counsel in a written
opinion or (d) by the stockholders. To the extent, however, that Indemnitee has
been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith, without
the necessity of authorization in the specific case.
3. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) ADVANCE OF EXPENSES. Expenses (including attorneys' fees) incurred by
Indemnitee in defending any civil, criminal, administrative or investigative
action, suit or proceeding described in Section 1(a) or (b) hereof shall be paid
by the Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of Indemnitee to repay
such amount if it shall ultimately be determined that he or she is not entitled
to be indemnified by the Company as authorized under this Agreement.
(b) NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall, as a condition
precedent to his or her right to be indemnified under this Agreement, give the
Company notice in writing as soon as reasonably practicable of any claim made
against Indemnitee for which indemnification is or will be sought under this
Agreement. Notice to the Company shall be directed to the Company at the address
shown in Section 11 of this Agreement (or such address as the Company shall
designate in writing to Indemnitee). In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within Indemnitee's power.
(c) PROCEDURE. If a claim under Section 1 hereof is not paid in full by
the Company within ninety (90) days after a written claim has been received by
the Company, or a claim under Section 2(a) hereof for an advancement of expenses
is not paid in full by the Company within thirty (30) days after a written claim
has been received by the Company, Indemnitee may at any time thereafter bring
suit against the Company to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Company to recover an advancement of expenses pursuant to Section 2(a),
Indemnitee shall also be entitled to be paid the expense of prosecuting or
defending such suit, including any reasonable attorneys' fees. In any suit by
the Company to recover an advancement of expenses pursuant to Section 2(a), the
Company shall be entitled to recover such expenses, upon a final judicial
decision from which there is no further right to appeal that Indemnitee has not
met the standards of conduct which makes it permissible under applicable law for
the Company to indemnify
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Indemnitee for the amounts claimed. Neither the failure of CIT Delaware or CIT
Nevada (including their respective board of directors, independent legal counsel
or stockholders) to have made a determination prior to the commencement of such
suit that indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the standards of conduct which makes it permissible under
applicable law for CIT Delaware or CIT Nevada, as applicable, to indemnify
Indemnitee for the amounts claimed, nor an actual determination by CIT Delaware
or CIT Nevada (including their respective board of directors, independent legal
counsel, or stockholders) that Indemnitee has not met such applicable standard
of conduct, shall create a presumption that Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by
Indemnitee, be a defense to such suit. In any suit brought by Indemnitee to
enforce a right to indemnification or to an advancement of expenses pursuant to
Section 2(a) hereunder, or by the Company to recover an advancement of expenses
pursuant to Section 2(a), the burden of proving that Indemnitee is not entitled
to be indemnified, or to such advancement of expenses, under this Agreement or
otherwise shall be on the Company.
(d) NOTICE TO INSURERS. If, at the time of the receipt of a notice of a
claim pursuant to Section 2(b) hereof, CIT Delaware or CIT Nevada has director
and officer liability insurance in effect, the Company shall give prompt notice
of the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) SELECTION OF COUNSEL. In the event the Company shall be obligated
under Section 1 hereof to pay the expenses of any proceeding against Indemnitee,
the Company, if appropriate, shall be entitled to assume the defense of such
proceeding, with counsel approved by Indemnitee, which approval shall not be
unreasonably withheld or delayed, upon the delivery to Indemnitee of written
notice of its election so to do. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same proceeding,
provided that (i) Indemnitee shall have the right to employ his or her counsel
in any such proceeding at Indemnitee's expense; and (ii) if (A) the employment
of counsel by Indemnitee has been previously authorized by the Company, or
(B) the Company shall not, in fact, have employed counsel to assume the defense
of such proceeding, then the fees and expenses of Indemnitee's counsel shall be
at the expense of the Company.
4. ADDITIONAL INDEMNIFICATION RIGHTS: NONEXCLUSIVITY.
(a) SCOPE. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify the Indemnitee to the fullest extent
permitted from time to time by the Delaware General Corporation Law as the same
presently exists or may hereafter be amended (but, if permitted by applicable
law, in the case of any amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights than permitted
prior to such amendment) or any other applicable law as presently or hereafter
in effect. In the event of any change in any applicable law, statute or rule
which narrows the right of a Delaware corporation to indemnify a member of its
board of directors, an officer or other corporate agent, such changes, to the
extent not otherwise required by such law, statute or rule to be applied to this
Agreement shall have no effect on this Agreement or the parties' rights and
obligations hereunder.
(b) NONEXCLUSIVITY. The indemnification and advancement of expenses
provided by or granted pursuant to this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may be entitled under any Certificate of
Incorporation, Bylaws, any other agreement or contract, any vote of stockholders
or disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office.
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5. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of the
expenses, judgments, fines or penalties actually or reasonably incurred by him
or her in the investigation, defense, appeal or settlement of any civil or
criminal action or proceeding, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion of such
expenses, judgments, fines or penalties to which Indemnitee is entitled.
6. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge that in
certain instances, Federal law or applicable public policy may prohibit the
Company from indemnifying its directors and officers under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee. Nothing in this Agreement is intended to require
or shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement.
7. EXCEPTIONS. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement;
(a) EXCLUDED ACTS. To indemnify Indemnitee for any acts or omissions or
transactions from which a director may not be relieved of liability under the
Delaware General Corporation Law; or
(b) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance expenses to
Indemnitee with respect to a proceeding (or part thereof) initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to a
proceeding (or part thereof) brought to enforce a right to indemnification under
this Agreement and except with respect to a proceeding (or part thereof)
authorized or consented to by the board of directors of CIT Delaware or CIT
Nevada; or
(c) LACK OF GOOD FAITH. To indemnify Indemnitee for any expenses incurred
by the Indemnitee with respect to any proceeding instituted by Indemnitee to
enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous; or
(d) INSURED CLAIMS. To indemnify Indemnitee for expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) to the extent paid
directly to or on behalf of Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance; or
(e) CLAIMS UNDER SECTION 16(B). To indemnify Indemnitee for expenses and
the payment of profits arising from the purchase and sale by Indemnitee of
securities that is deemed, pursuant to a final judicial decision from which
there is no further right to appeal, in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor statute.
8. CERTAIN DEFINITIONS. For purposes of this Agreement, references to "the
Company" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under this Agreement with respect to the resulting or
surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this
Agreement, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan;
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and 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 interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
9. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original.
10. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon CIT Delaware and CIT Nevada and their respective successors and assigns
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of CIT
Delaware or CIT Nevada, respectively), and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representative and assigns.
Each of CIT Delaware and CIT Nevada shall require and cause any successor
(whether direct or indirect, and whether by purchase, merger, consolidation or
otherwise) to all or substantially all of such entity's business or assets
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that such entity would be required to perform if no such
succession had taken place.
11. ATTORNEY'S FEES. In the event that any action is instituted by Indemnitee
under this Agreement to enforce or interpret any of the terms hereof, Indemnitee
shall be entitled to be paid all costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee with respect to such action, unless as a
part of such action, the court of competent jurisdiction determines that each of
the material assertions made by Indemnitee as a basis for such action were not
made in good faith or were frivolous. In the event of an action instituted by or
in the name of the Company under this agreement or to enforce or interpret any
of terms of this Agreement, Indemnitee shall be entitled to be paid all costs
and expenses, including reasonable attorneys' fees, incurred by Indemnitee in
defense of such action (including with respect to Indemnitee's counterclaims and
cross-claims made in such action), unless as a part of such action the court
determines that each of Indemnitee's material defenses to such action were made
in bad faith or were frivolous.
12. NOTICE. All notices, requests, demands and other communications under this
Agreement shall be in writing, shall be deemed received three business days
after the date postmarked if sent by domestic certified or registered mail,
properly addressed, or if sent otherwise, when such notice shall actually be
received, and shall be delivered by Federal Express or a similar courier,
personal delivery, certified or registered air mail, or by facsimile
transmission. Addresses for notice to either party are as follows (or at such
other addresses for a party as shall be specified by like notice):
if to the Company: CIT Group Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
if to Indemnitee:
13. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or
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proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be brought only in the state courts
of the State of Delaware.
14. CHOICE OF LAW. This Agreement shall be governed by and its provisions
construed in accordance with the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.
15. SEVERABILITY. The provisions of this Agreement shall be severable in the
event that any of the provisions hereof (including any provision within a single
section, paragraph or sentence) are held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law. Furthermore, to the
fullest extent possible, the provision of this Agreement (including, without
limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
16. SUBROGATION. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
17. CONTINUATION OF INDEMNIFICATION. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Agreement shall, unless
otherwise provided when authorized or ratified, continue as to Indemnitee after
Indemnitee has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors, administrators and personal
representatives of Indemnitee.
18. AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
19. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
20. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company or any of its subsidiaries or affiliated entities.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CIT GROUP INC. (DEL)
By:
-----------------------------------------
Xxxxxx X. Xxxxxx, EVP
Date:
CIT GROUP INC.
By:
-----------------------------------------
Xxxxxx X. Xxxxxx, EVP
Date:
[INDEMNITEE]
-----------------------------------------
Date:
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