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EXHIBIT 10.1
DIRECTOR/OFFICER INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made as of the ______ day of
_________________, 1997, by and between TRAILER BRIDGE, INC., a Delaware
corporation (the "Corporation"), and ___________________ ("Director").
Background
The Corporation desires that Director serve as a member of the Board
of Directors. Director has indicated that he will be willing to serve in that
capacity set forth above, on the condition that he be indemnified as provided
in this Agreement. The Corporation also desires that Director serve as an
executive officer of the Corporation, and such service shall also be on the
condition that Director be indemnified as provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and as an inducement
to Director to accept the positions described above as well as any other or
additional positions as may be mutually agreed upon by the Corporation and
Director, the Corporation hereby covenants and agrees with Director, as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Delaware Act" means the Delaware General Corporation
Law, as amended.
(b) "Expenses" include all expenses actually and
reasonably incurred with respect to a Proceeding, including, without
limitation, fees, expenses and disbursements of attorneys, accountants,
financial consultants and other professionals.
(c) "Liabilities" includes obligations to pay a judgment,
settlement, penalty, fine or tax (including, without limitation, any
withholding or employment tax and any excise tax assessed with respect to the
Corporation, any Subsidiary, any employee benefit plan or any other enterprise
as to which Director is or was serving in an Official Capacity), together with
any obligation to pay interest thereon.
(d) "Proceeding" includes any threatened, asserted,
pending or completed claim, action, suit or other type of proceeding, whether
civil, criminal, administrative or investigative, whether formal or informal,
including, without limitation, any arbitration proceeding or other proceeding
for the resolution of any claim or dispute and any privately conducted
negotiations, and including, without limitation, any settlement, hearing, trial
or appeal of any of the foregoing.
(e) "Serving in an Official Capacity" includes (i)
serving as a director, officer or agent of the Corporation or any Subsidiary,
or (ii) serving at the request of the Corporation or any Subsidiary as a
director, officer or agent of another corporation, partnership, joint venture,
trust or other enterprise, including any employee benefit plan.
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(f) "Subsidiary" means any corporation or other entity
directly or indirectly controlled by the Corporation which now exists or may
hereafter be formed.
2. Statutory Indemnification. The Corporation hereby agrees to
indemnify and hold harmless Director to the fullest extent permitted or
required by the provisions of Section 145 of the Delaware Act or the laws of
the state of incorporation of any successor to the Company and to cause any
Subsidiary to indemnify and hold harmless Director to the fullest extent
permitted or required by the provisions of the laws of its jurisdiction of
incorporation against any Liability or Expense incurred by Director by reason
of the fact that Director is or was Serving in an Official Capacity. The
Corporation agrees that such obligation shall be to the fullest extent required
or permitted by any subsequent amendment to any of such provisions of the
Delaware Act or by any other applicable statutory provisions permitting or
requiring such indemnification which are adopted after the date of this
Agreement (but in the case of any amendment or subsequent statutory provisions,
only to the extent that such amendment or provisions permit or require broader
or more extensive indemnification rights than prior thereto).
3. Additional Indemnification. Subject only to the exclusions
set forth in this Section 3, the Corporation further agrees to indemnify and
hold harmless and to cause any Subsidiary to indemnify and hold harmless
Director against any and all Liabilities and Expenses incurred by Director in
connection with any Proceeding to which Director is or was a party or is
threatened to be made a party or in which Director is called to testify as a
witness or deponent by reason of the fact that Director is or was Serving in an
Official Capacity. Director shall not be entitled to any indemnification
pursuant to this Section 3 if a judgment or other final adjudication
establishes that any act or omission of Director was material to the cause of
action so adjudicated and that such act or omission constituted:
(a) A criminal violation, unless Director had reasonable
cause to believe this Director's conduct was lawful or had no reasonable cause
to believe that such conduct was unlawful;
(b) A transaction from which Director derived an improper
personal benefit;
(c) An act or omission giving rise to liability for an
unlawful distribution under the Delaware Act; or
(d) Willful misconduct or a conscious disregard for the
best interests of the Corporation (or any Subsidiary or any other enterprise as
to which Director is or was Serving in an Official Capacity).
4. Advance of Expenses. The Corporation shall advance or cause
any Subsidiary to advance Expenses incurred by Director in defending any
Proceeding for which Director may be entitled to indemnification hereunder,
provided that the Corporation or any Subsidiary shall not be required to
advance any sums for such Expenses if the Board of Directors of the Corporation
or the Board of Directors of any Subsidiary, as the case may be, makes a
preliminary good faith determination that Director ultimately will not be
entitled to
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indemnification hereunder (but no such preliminary determination by the Board
of Directors of any Subsidiary alone shall have any effect upon the obligations
of the Corporation under this Agreement). Director hereby agrees to repay any
such advances of Expenses made hereunder with respect to a matter if Director
is ultimately found not to be entitled to indemnification hereunder with
respect to such matter.
5. Obligations of Corporation and Subsidiary; Separate
Obligations. It is the intention of the parties that Director be entitled to
indemnification to the broadest possible extent allowed by law. Accordingly,
any ambiguity in this Agreement shall be construed in favor of indemnification.
Furthermore, in the event that a Liability or Expense would be indemnifiable
under the laws of more than one jurisdiction but the law of one would permit or
require broader indemnification than the other, Director shall be indemnified
pursuant to the law that will provide maximum indemnification. The obligations
of the Corporation under this Agreement are separate, independent and primary
obligations of the Corporation, and may be enforced directly against the
Corporation without any necessity for joining any Subsidiary or any other
enterprise as to which Director is or was Serving in an Official Capacity, for
recovering or seeking to enforce any judgment against any Subsidiary or such
other enterprise, or for otherwise seeking to recover from or out of the assets
of any Subsidiary or any such other enterprise, whether or not any Subsidiary
or any such other enterprise has assets sufficient for such recovery.
6. Notification of Defense of Claim. Promptly after receipt by
Director of the notice of the commencement of any Proceeding (including any
threat thereof) as to which Director may be entitled to indemnification
hereunder, Director shall notify the Corporation in writing of the commencement
thereof. Failure to so notify the Corporation shall not relieve the
Corporation from any obligation hereunder except to the extent that it may
suffer material prejudice by reason of such failure. With respect to any such
Proceeding as to which Director notifies the Corporation of the commencement
thereof:
(a) The Corporation shall be entitled to participate
therein at its own expense.
(b) Except as otherwise provided below, the Corporation
shall be entitled to assume the defense thereof on behalf of Director, with
counsel satisfactory to Director. Director shall have the right to employ
separate counsel in such Proceeding, and the fees, expenses and disbursements
of Director's own separate counsel incurred after written notice from the
Corporation to Director of its assumption of the defense thereof and after the
full assumption of such defense by counsel engaged by the Corporation and
satisfactory to Director, shall be the expense of Director except (i) if the
employment of counsel by Director has been authorized by the Corporation, or
(ii) if Director shall have reasonably concluded that there may be a conflict
of interest between Director and the Corporation with respect to the defense of
such action, or (iii) if any fees, expenses and disbursements of Director's
own separate counsel are incurred in connection with familiarizing or providing
assistance to counsel employed by the Corporation, in which case the fees,
expenses and disbursements of Director's own separate counsel shall be paid by
the Corporation. The Corporation shall not be entitled to assume the defense
of any
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Proceeding brought by or on behalf of the Corporation or as to which Director
shall have made the conclusion provided for in 6(b)(ii) above.
(c) The Corporation shall not be obligated to indemnify
Director under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent. The Corporation shall not
settle any action or claim in any manner which would impose any penalty,
limitation, Liability or Expense on Director for which Director is not entitled
to indemnification hereunder, without Director's written consent.
7. Insurance. Nothing in this Agreement shall be deemed to
require indemnification of Director to the extent that insurance proceeds under
any policy or policies of insurance carried by the Corporation, any Subsidiary
or any affiliate of the Corporation are available to satisfy any Liability or
Expense incurred by Director by reason of the fact that Director is or was
Serving in an Official Capacity.
8. No Third Party Beneficiaries. This Agreement is not intended
for the benefit of and shall not create any rights in favor of any third
parties, it being the intent of the parties that this Agreement be solely for
the benefit of Director, Director's heirs and personal representatives, in the
event that Director incurs any Liability or Expense for which Director is
entitled to indemnification hereunder.
9. Miscellaneous. This Agreement shall continue in force during
the period that Director is Serving in an Official Capacity and shall continue
thereafter so long as Director shall be subject to any possible claim or
Proceeding by reason of the fact that Director was Serving in an Official
Capacity. Director shall be entitled to reimbursement from the Corporation for
the fees, expenses and disbursements of counsel reasonably incurred by Director
in enforcing Director's rights under this Agreement. In the event that any
provision of this Agreement is held to be void or unenforceable, the remaining
provisions shall not be affected thereby. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives and successors. This Agreement is not assignable by
either party. No amendment or modification to this Agreement shall be
effective unless made in a writing signed by the party against whom enforcement
is sought.
IN WITNESS WHEREOF, this parties hereto have executed this Agreement
as of the day and year first above written.
TRAILER BRIDGE, INC.
By:
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Its:
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