JOINT INDEMNIFICATION AGREEMENT
Exhibit 4.16
JOINT INDEMNIFICATION AGREEMENT
JOINT INDEMNIFICATION AGREEMENT (this “Agreement”) dated and effective as of May 11, 2018 (“Effective Date”), by and among Textainer Group Holdings Limited, a Bermudan corporation with company registration number 18896, ("Company"), Halco Holdings Inc., a British Virgin Islands company with company registration number 1506006, (“Halco”) and Trencor Limited, a company incorporated in the Republic of South Africa having company registration number 1955/002869/06, (“Trencor”), and COMPUTERSHARE TRUST COMPANY, N.A., transfer agent for Company, and COMPUTERSHARE INC. (collectively, "Agent").
WHEREAS, Halco has notified the Company and Agent that the following certificates representing common shares, par value $0.01 per share (“common shares”) of Halco are missing, lost, mislaid, stolen or destroyed: certificate number 292 issued September 19, 2012 representing 2,100,000 common shares; certificate number 294 issued September 19, 2012 representing 1,701,778 common shares, and certificate number 295 issued September 19, 2012 representing 1,701,778 common shares (collectively, "Original Certificate");
WHEREAS, Halco has requested that the Company and Agent issue replacement shares in substitution for the Original Certificate ("Replacement Shares") without obtaining an open penalty bond of indemnity;
WHEREAS, following the issue of the Replacement Shares Halco intends to transfer the Replacement Shares (“Relevant Shares”) to Trencor on the basis that with effect from the time that Trencor is registered as the holder of the Relevant Shares by way such transfer of the Relevant Shares to Trencor by Halco, Trencor will be an Indemnifying Party in place of and to the exclusion of Halco; and
WHEREAS, Agent wishes to issue the Replacement Shares on the terms and conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
In this Agreement, “Shareholder” means (a) Halco (to the exclusion of Trencor) until (but excluding) such time as Trencor is registered as the holder of the Relevant Shares by way of a transfer of the Relevant Shares to Trencor by Halco; and (b) Trencor (to the exclusion of Halco) from and including the time that Trencor is registered as the holder of the Relevant Shares by way of a transfer of the Relevant Shares to Trencor by Halco.
In consideration of Agent issuing the Replacement Shares, Company and Shareholder (collectively, “Indemnifying Parties”) hereby agree to jointly and severally indemnify and hold harmless Agent and its parents, affiliates, officers, employees, agents, successors or assigns from and against any and all costs, damages, losses, fees, penalties, judgments, taxes or expenses including, but not limited to, reasonable attorneys' fees and expenses of counsel to Agent reasonably acceptable to Company (collectively, "Damages") which Agent may incur in connection with or arising from the Original Certificate, issuance of the Replacement Shares and the Relevant Shares and any matters related thereto.
Shareholder and Company agree that the issuance of the Replacement Shares shall be made at the risk and expense of Shareholder, unless expressly provided herein. In the event the Original Certificate is presented to Agent, Company hereby authorizes and directs Agent, at Company's expense, (i) to refuse to recognize any person as the owner of, and to refuse to make any payment, transfer, registration, delivery or exchange called for by the Original Certificate to any person or to refuse to take any other action in connection with the Original Certificate pursuant to the request or demand of any person other than
Company, (ii) to refuse to issue new or duplicate or definitive securities or other instruments in substitution for the Original Certificate, and/ or (iii) to refuse to make any payment, transfer, registration, delivery or exchange called for by the Original Certificate. Shareholder shall make or shall cause to be made a diligent search for the Original Certificate and, in the event Shareholder should find or recover the Original Certificate, Shareholder will immediately surrender the same to Agent for cancellation.
Agent agrees to give the Indemnifying Parties written notice ("Notice") of any claim made or proceeding threatened or commenced (“Third Party Claim”) against Agent which is indemnified against hereunder. Notice shall be sent to each of the Indemnifying Parties at the address set forth below, or such other address as Company shall supply to Agent in writing from time to time. Upon receipt of Notice, Shareholder will have the right to assume the defense of such Third Party Claim and, if Shareholder does not elect to exercise its right to assume the defense of such Third Party Claim, Company shall assume the defense of such Third Party Claim. Company or Shareholder, as applicable, shall select counsel reasonably acceptable to Agent to conduct such defense at its/their sole cost and expense and shall timely take all steps necessary in the defense or settlement thereof. Upon notice to Shareholder, if Shareholder assumed the defense, Company and Agent shall have the right to fully participate in any such defense with its own counsel at its own expense. Upon notice to Company, if Company assumed the defense, Agent shall have the right to fully participate in any such defense with its own counsel at its sole cost and expense. In the event the Indemnifying Parties fail to defend any such Third Party Claim, Agent may defend such Third Party Claim, in its sole discretion, and at the sole cost of the Indemnifying Parties, in any manner it deems appropriate including, but not limited to, settling any such Third Party Claim and the Indemnifying Parties shall not seek to question the manner in which Agent defended such Third Party Claim or the amount or nature of the settlement thereof. Upon written request by Agent for indemnification pursuant to this Agreement or the payment of any other fees or expenses, one or both of the Indemnifying Parties shall make payment for any and all amounts requested, or take any other action requested by Agent, within ten (10) days of the date of such request.
Company agrees to give Shareholder Notice of any Third Party Claim against Company which is indemnified against hereunder. Notice shall be sent to Shareholder at the address set forth below, or such other address as Shareholder shall supply to Company in writing from time to time. Upon receipt of Notice, Shareholder will assume the defense of such Third Party Claim. Shareholder shall select counsel reasonably acceptable to Company to conduct such defense at Shareholder’s sole cost and expense and shall timely take all steps necessary in the defense or settlement thereof. Upon notice to Shareholder, Company shall have the right to fully participate in any such defense with its own counsel at Company’s sole cost and expense. In the event Shareholder fail to defend any such Third Party Claim, Company may defend such Third Party Claim, in its sole discretion, and at the sole cost of Shareholder, in any manner it deems appropriate including, but not limited to, settling any such Third Party Claim and Shareholder shall not seek to question the manner in which Company defended such Third Party Claim or the amount or nature of the settlement thereof. Upon written request by Company for indemnification pursuant to this Agreement or the payment of any other fees or expenses, Shareholder shall make payment for any and all amounts requested, or take any other action requested by Company, within ten (10) days of the date of such request.
This Agreement shall be governed by and construed in accordance with the laws of New York, without giving effect to conflicts of law principles, and shall be binding upon and enforceable against each of Company, Halco and Trencor and their respective successors and assigns. Any action to enforce this Agreement shall be brought only in the State of New York, United States of America. Company, Halco and Trencor hereby irrevocably submit to the non-exclusive jurisdiction of any New York state court or the United States District Court for the Southern District of New York and any appellate court from any thereof and hereby irrevocably agree that all claims in respect of such action may be heard and determined in such New York state court or in such United States Federal court. Company, Halco and Trencor hereby irrevocably waive, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or a defense based on the grounds of jurisdiction with respect thereto.
Company, Halco and Trencor agree that, to the fullest extent permitted by applicable laws, a final judgment in any such action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Each of Company, Halco and Trencor represent and warrant that it has full corporate power, authority and legal right to execute, deliver and perform this Agreement and that the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action and constitutes a legal, valid and binding obligation of it enforceable against it in accordance with its terms. Each of Company, Halco and Trencor also hereby represents that this Agreement has been executed on its behalf by a duly authorized officer. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute one and the same instrument. A signature to this Agreement executed and/or transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
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IN WITNESS WHEREOF, Company, Halco, Trencor and Agent have executed this Agreement as of the Effective Date.
Textainer Group Holdings Limited
By:__/s/ Xxxx Hopkin_________
Name:_____Adam Hopkin__________________
Title:___Secretary____________________
Notice Address:
Xxxxxxx Xxxxx
00 Xxx-Xx-Xxxxx Xxxx
Xxxxxxxx, XX 00
Xxxxxxx
Xxxxxxxxx: Xxxx Xxxxxx, Company Secretary
IN WITNESS WHEREOF, Company, Halco, Trencor and Agent have executed this Agreement as of the Effective Date.
Halco Holdings Inc.
By:__/s/ Xxxxxxx Xxxxxx Gray_____________________
Name:____Stephan Xxxxxxx Gray___________________
Title:___Director____________________
Notice Address:
Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxx xx Xxx, XX0 0XX
Attention: Xxxxxxx Xxxx
Trencor Limited
By:___/s/ R.A. Sieni____________________
Name:______R.A. Sieni_________________
Title:___Financial Director____________________
Notice Address:
13th Floor, The Towers South, Xxxxxxxxxxxx
Xxxx Xxxx, 0000
Xxxxx Xxxxxx
Attention: Messrs. H.R. van der Merwe and X.X. Xxxxx.
IN WITNESS WHEREOF, Company, Halco, Trencor and Agent have executed this Agreement as of the Effective Date.
COMPUTERSHARE TRUST COMPANY, N.A. and
COMPUTERSHARE INC.
By:___/s/ Xxxxx Adamson____________________
Name:______David Adamson_________________
Title:___Senior Vice President____________________
Notice Address:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
