INDEMNIFICATION AGREEMENT
Exhibit 10.15
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of ___, 2010
between Roadrunner Transportation Systems, Inc., a Delaware corporation (the “Company”), and
(“Indemnitee”).
RECITALS:
WHEREAS, highly competent persons have become more reluctant to serve publicly held
corporations as directors, officers, or in other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to
attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis,
at its sole expense, liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among U.S.-based corporations and other business enterprises, the
Company believes that, given current market conditions and trends, such insurance may be available
to it in the future only at higher premiums and with more exclusions. At the same time, directors,
officers, and other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to, among other things,
matters that traditionally would have been brought only against the Company or business enterprise
itself. The Bylaws (the “Bylaws”) and Certificate of Incorporation (the “Certificate”) of the
Company require indemnification of the officers and directors of the Company. Indemnitee may also
be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware
(“DGCL”). The Bylaws, the Certificate, and the DGCL expressly provide that the indemnification
provisions set forth therein are not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the Board, officers, and other persons with respect
to indemnification;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining
such persons is detrimental to the best interests of the Company’s stockholders and that the
Company should act to assure such persons that there will be increased certainty of such protection
in the future;
WHEREAS, it is reasonable, prudent, and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws and the
Certificate and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee does not regard the protection available under the Bylaws, the
Certificate, and insurance as adequate in the present circumstances, and may not be willing to
serve as an officer or director without adequate protection, and the Company desires Indemnitee to
serve in such capacity. Indemnitee is willing to serve, continue to serve, and to take on
additional service for or on behalf of the Company on the condition that he be so indemnified;
WHEREAS, in recognition of past services and in order to induce Indemnitee to continue to
serve as an officer or director of the Company, the Company has determined and agreed to enter into
this Agreement with Indemnitee; and
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve and/or continue to serve
as an officer or director after the date hereof, the parties hereto agree as follows:
1. Services to the Company. Indemnitee agrees to serve and/or continue to serve as a
director or officer of the Company. Indemnitee may at any time and for any reason resign from such
position (subject to any other contractual obligation or any obligation imposed by operation of
law). This Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise (as hereinafter defined)) and Indemnitee. Indemnitee specifically
acknowledges that Indemnitee’s employment with the Company (or any of its subsidiaries or any
Enterprise), if any, is at will, and Indemnitee may be discharged at any time for any reason, with
or without cause, except as may be otherwise provided in any written employment contract between
Indemnitee and the Company (or any of its subsidiaries or any Enterprise), other applicable formal
severance policies duly adopted by the Board, or, with respect to service as a director or officer
of the Company, by the Bylaws, the Certificate, and the DGCL. The foregoing notwithstanding, this
Agreement shall continue in force after Indemnitee has ceased to serve as an officer or director of
the Company.
2. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the fullest extent permitted by law, as such may be amended from time to time. In
furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 2 if, by reason
of Indemnitee’s Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be
made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding
by or in the right of the Company. Pursuant to this Section 2(a), Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all Expenses (as hereinafter
defined), judgments, penalties, fines, and amounts paid in settlement actually and reasonably
incurred by Indemnitee, or on Indemnitee’s behalf, in connection with such Proceeding or any claim,
issue, or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, and with respect to any
criminal Proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 2 if, by reason of Indemnitee’s
Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any
Proceeding brought by or in the right of the Company. Pursuant to this Section 2(b),
Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all
Expenses actually and reasonably incurred by Indemnitee, or on Indemnitee’s behalf, in connection
with such Proceeding or any claim, issue, or matter therein if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, if applicable law so provides, no indemnification against such Expenses
shall be made in respect of any claim, issue, or matter in such Proceeding as to which Indemnitee
shall have been finally adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery of the State of Delaware or any court in which such Proceeding was brought shall
determine upon application that such indemnification may be made, despite the adjudication of
liability.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, 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 or in defense of any claim, issue, or matter therein, in whole or in part, Indemnitee
shall be indemnified to the maximum extent permitted by law, as such may be amended from time to
time, against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection
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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 actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved
claim, issue, or matter. For purposes of this Section and without limitation, 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.
(d) Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the fullest extent permitted by applicable law, to the extent that Indemnitee
is, by reason of Indemnitee’s Corporate Status, a witness in any Proceeding to which Indemnitee is
not a party, he shall be indemnified against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection therewith.
3. Additional Indemnity. In addition to, and without regard to any limitations on, the
indemnification provided for in Section 2 of this Agreement, the Company shall and hereby
does indemnify and hold harmless to the fullest extent permitted by applicable law Indemnitee
against all Expenses, judgments, penalties, fines, and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf if, by reason of Indemnitee’s Corporate
Status, Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding
(including a Proceeding by or in the right of the Company), including, without limitation, all
liability arising out of the negligence or active or passive wrongdoing of Indemnitee. The only
limitation that shall exist upon the Company’s obligations pursuant to this Agreement shall be that
the Company shall not be obligated to make any payment to Indemnitee that is finally determined
(under the procedures, and subject to the presumptions, set forth in Sections 6 and
7 hereof) to be unlawful.
4. Contribution.
(a) Whether or not the indemnification provided in Sections 2 and 3 hereof is
available in respect of any threatened, pending, or completed Proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay,
in the first instance, the entire amount of any judgment or settlement of such Proceeding without
requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes
any right of contribution it may have against Indemnitee. The Company shall not enter into any
settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if
joined in such Proceeding) unless such settlement provides for a full and final release of all
claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding
subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion
of any judgment or settlement in any threatened, pending, or completed Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company
shall pay to Indemnitee the entire amount of any judgment or settlement of such Proceeding without
requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes
any right of contribution it may have against Indemnitee. Indemnitee shall not enter into any
settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if
joined in such Proceeding) unless such settlement provides for a full and final release of all
claims asserted against the Company.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution which may be brought by officers, directors, or employees of the Company, other
than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu
of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement, and/or
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Expenses, in connection with any claim relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding;
and/or (ii) the relative fault of the Company (and its directors, officers, employees, and agents)
and Indemnitee in connection with such event(s) and/or transaction(s).
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement, the
Company shall advance, to the extent not prohibited by law, all Expenses incurred by or on behalf
of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within
ten (10) days after the receipt by the Company of a statement or statements from Indemnitee
requesting such advance or advances from time to time, whether prior to or after final disposition
of such Proceeding. Such statement or statements shall include or be preceded or accompanied by an
undertaking by or on behalf of Indemnitee to repay any Expenses advanced if, and only to the extent
that, it shall ultimately be determined by a final, non-appealable order of a court of competent
jurisdiction, that Indemnitee is not entitled to be indemnified against such Expenses. Advances
shall include any and all reasonable Expenses incurred pursuing an action to enforce this right of
advancement, including Expenses incurred preparing and forwarding statements to the Company to
support the advances claimed. Any advances and undertakings to repay pursuant to this Section
5 shall be unsecured and interest free. This Section 5 shall not apply to any claim
made by Indemnitee for which indemnity is excluded pursuant to Section 9.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. It
is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as favorable
as may be permitted under the law and public policy of the State of Delaware. Accordingly, the
parties agree that the following procedures and presumptions shall apply in the event of any
question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request for indemnification or advancement of Expenses, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to indemnification, as soon as is
reasonably practicable following the receipt by Indemnitee of written notice thereof. Such written
request to the Company shall include a description of the nature of the Proceeding and the facts
underlying such Proceeding, to the extent known. The omission by Indemnitee to notify the Company
hereunder will not relieve the Company from any liability that it may have to Indemnitee hereunder
or otherwise than under this Agreement, and any delay in so notifying the Company shall not
constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise the Board in writing
that Indemnitee has requested indemnification.
(b) If a claim under this Agreement, under any statute, or under any provision of the
Certificate or Bylaws providing for indemnification is not paid in full by the Company within ten
(10) days after a written request for payment thereof has first been received by the Company,
Indemnitee shall, at any time thereafter, be entitled to an adjudication in an appropriate court of
the State of Delaware, or in any other court of competent jurisdiction, of Indemnitee’s entitlement
to such indemnification. Alternatively, Indemnitee, at his option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. The Company shall not oppose Indemnitee’s right to seek any
such adjudication or award in arbitration. In any such action by Indemnitee to recover the unpaid
amount of the claim, Indemnitee shall also be entitled to be paid for the Expenses of bringing such
action. It shall be a defense to any such action (other than an action brought to enforce a claim
for Expenses incurred in connection with any Proceeding in advance of its final disposition) that
Indemnitee has not met the standards of conduct which make it permissible under applicable law for
the Company to indemnify Indemnitee for the amount claimed, but the burden of proving such defense
shall be on the Company, and Indemnitee shall be entitled to receive interim payments of Expenses
pursuant to Section 5 unless and until such defense
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may be finally adjudicated by court order or judgment from which no further right of appeal
exists. It is the parties’ intention that if the Company contests Indemnitee’s right to
indemnification, the question of Indemnitee’s right to indemnification shall be for the court to
decide, and neither the failure of the Company (including the Board, any committee or subgroup of
the Board, independent legal counsel or the Company’s stockholders) to have made a determination
that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by applicable law, nor an actual determination by the
Company (including the Board, any committee or subgroup of the Board, independent legal counsel or
the Company’s stockholders) that Indemnitee has not met such applicable standard of conduct, shall
create a presumption that Indemnitee has or has not met the applicable standard of conduct.
(c) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Enterprise, including financial statements, or on
information supplied to Indemnitee by the officers of the Enterprise in the course of their duties,
or on the advice of legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions,
or failure to act, of any director, officer, agent, or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to indemnification under this
Agreement. Whether or not the foregoing provisions of this Section 6(c) are satisfied, it
shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of the Company.
Anyone seeking to overcome this presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence.
(d) The Company acknowledges that a settlement or other disposition of a Proceeding short of
final judgment may be successful if it permits a party to avoid expense, delay, distraction,
disruption, and uncertainty. In the event that any Proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such Proceeding with or without payment of money or other consideration)
it shall be presumed that Indemnitee has been successful on the merits or otherwise in such
Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion by clear and convincing evidence.
(e) The termination of any Proceeding or of any claim, issue, or matter therein, by judgment,
order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or 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 Proceeding, that Indemnitee had reasonable cause to
believe that Indemnitee’s conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that Indemnitee seeks a judicial adjudication of Indemnitee’s rights under,
or to recover damages for breach of, this Agreement, or to recover under any directors’ and
officers’ liability insurance policies maintained by the Company, the Company shall pay on
Indemnitee’s behalf, in advance, any and all expenses (of the types described in the definition of
Expenses in Section 14(c) of this Agreement) actually and reasonably incurred by Indemnitee
in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of expenses, or insurance recovery.
(b) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Agreement that the procedures and presumptions of this Agreement are not valid,
binding, and enforceable and shall stipulate in any such court that the Company is bound by all the
provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses
and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a
written request therefor) advance, to the extent not prohibited by law, such expenses to
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Indemnitee, which are incurred by Indemnitee in connection with any action brought by
Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or
under any directors’ and officers’ liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of Expenses, or insurance recovery, as the case may be.
(c) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled under applicable law, the
Certificate, the Bylaws, any agreement, a vote of stockholders, a resolution of directors, or
otherwise. No amendment, alteration, or repeal of this Agreement or of any provision hereof shall
limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration, or
repeal. To the extent that a change in the DGCL, whether by statute or judicial decision, permits
greater indemnification than would be afforded currently under the Certificate, the Bylaws, and
this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. To the extent that a change in the
DGCL, whether by statute or judicial decision, limits the indemnification rights that would be
afforded currently under the Certificate, the Bylaws, and this Agreement, it is the intent of the
parties hereto that such change, 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. No right or remedy herein conferred is intended to be exclusive of any
other right or remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or remedy. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified capacity even though he may have ceased to serve in such capacity
at the time of any action or other covered Proceeding.
(b) The Company shall at all times maintain a policy or policies of insurance with reputable
insurance companies providing the officers and directors of the Company with coverage (in an amount
not less than $5,000,000) for losses from wrongful acts, or to ensure the Company’s performance of
its indemnification obligations under this Agreement, unless the maintenance of any such policy or
policies becomes prohibitively expensive. In all policies of directors’ and officers’ liability
insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available for any director, officer, employee, agent,
or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company 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 applicable policy(ies). The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of
Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such
policy(ies).
(c) [The Company hereby acknowledges that Indemnitee has certain rights to indemnification,
advancement of expenses and/or insurance provided by and certain of its affiliates
(collectively, the “Fund Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of
first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Fund
Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities
incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of
Expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses, judgments,
penalties, fines and amounts paid in settlement to the extent legally permitted and as required by
the terms of this Agreement and the Certificate and Bylaws of the Company (or any other agreement
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between the Company and Indemnitee), without regard to any rights Indemnitee may have against
the Fund Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Fund
Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or
any other recovery of any kind in respect thereof. The Company further agrees that no advancement
or payment by the Fund Indemnitors on behalf of Indemnitee with respect to any claim for which
Indemnitee has sought indemnification from the Company shall affect the foregoing and the Fund
Indemnitors shall have a right of contribution and/or be subrogated to the extent of such
advancement or payment to all of the rights of recovery of Indemnitee against the Company. The
Company and Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the
terms of this Section 8(c).]
9. Exception to Right of Indemnification. Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance
policy, except with respect to any excess beyond the amount paid under any insurance policy; or
(b) (i) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or similar provisions of state
statutory law or common law, or (ii) any reimbursement of the Company by Indemnitee of any bonus or
other incentive-based or equity-based compensation or of any profits realized from the sale of the
Company’s securities, as required in each case under the Exchange Act (including any such
reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of
the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits
arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the
Xxxxxxxx-Xxxxx Act); or
(c) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the
Company or its directors, officers, employees, or other indemnitees, unless (i) the Board
authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Company
provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company
under applicable law, (iii) the proceeding was initiated to establish or enforce a right to
indemnification under this Agreement, any other agreement or insurance policy, or under the Bylaws
or the Certificate, or (iv) as otherwise required under the laws of the State of Delaware.
10. Duration of Agreement. All agreements and obligations of the Company contained herein
shall continue during the period Indemnitee is an officer or director of the Company (or is or was
serving at the request of the Company as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other Enterprise) and shall continue thereafter
so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under this
Agreement) by reason of Indemnitee’s Corporate Status, whether or not he is acting or serving in
any such capacity at the time any liability or expense is incurred for which indemnification can be
provided under this Agreement.
11. Period of Limitations. No legal action shall be brought and no cause of action shall
be asserted by or in the right of the Company against Indemnitee, Indemnitee’s estate, spouse,
heirs, executors, or personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, such shorter period shall govern.
12. Security. To the extent requested by Indemnitee and approved by the Board, the
Company may at any time and from time to time provide security to Indemnitee for the Company’s
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obligations hereunder through an irrevocable bank line of credit, funded trust, or other
collateral. Any such security, once provided to Indemnitee, may not be revoked or released without
the prior written consent of Indemnitee.
13. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumes the obligations imposed on it hereby in order to induce Indemnitee to serve, or continue to
serve, as an officer or director of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as an officer or director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided, however,
that this Agreement is a supplement to and in furtherance of the Certificate, the Bylaws, and any
applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder.
14. Definitions. For purposes of this Agreement:
(a) “Corporate Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise that such person is or was serving at the
request of the Company, including on or prior to the date of this Agreement.
(b) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the request
of the Company as a director, officer, employee, agent or fiduciary.
(c) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating or being or preparing to be a witness in a
Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting
from any Proceeding, including without limitation the premium, security for and other costs
relating to any cost bond, supersede as bond or other appeal bond or its equivalent. Expenses,
however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.
(d) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is
or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an
officer or director of the Company, by reason of any action taken by Indemnitee or of any inaction
on Indemnitee’s part while acting as an officer or director of the Company, or by reason of the
fact that Indemnitee is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other
Enterprise; in each case whether or not he is acting or serving in any such capacity at the time
any liability or expense is incurred for which indemnification can be provided under this
Agreement; including one pending on or before the date of this Agreement.
15. Severability. If any provision or provisions of this Agreement shall be held by a
court of competent jurisdiction to be invalid, void, illegal or otherwise unenforceable for any
reason whatsoever: (a) the validity, legality, and enforceability of the remaining provisions of
this Agreement (including without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal, or unenforceable that is not itself
invalid, illegal, or unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by
8
law; (b) such provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the parties hereto; and
(c) to the fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such provision held to be
invalid, illegal, or unenforceable that is not itself invalid, illegal, or unenforceable) shall be
construed so as to give effect to the intent manifested thereby. Without limiting the generality
of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to
the fullest extent permitted by applicable laws. In the event any provision hereof conflicts with
any applicable law, such provision shall be deemed modified, consistent with the aforementioned
intent, to the extent necessary to resolve such conflict.
16. Attorneys’ 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 expenses (of the types described in the definition of Expenses in Section 14(c) of
this Agreement) incurred by Indemnitee with respect to such action. 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
the terms of this Agreement, Indemnitee shall be entitled to be paid all expenses (of the types
described in the definition of Expenses in Section 14(c) of this Agreement) in defense of
such action (including with respect to Indemnitee’s counterclaims and cross claims made in such
action).
17. Modification and Waiver. No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto [and the
Fund Indemnitors]. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
18. Assignment. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company), assigns, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of
the business and/or assets of the Company, by written agreement in form and substance satisfactory
to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such succession had taken
place. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve
as a director, officer, employee, or agent of the Company or of any other enterprise at the
Company’s request.
19. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing
upon being served with or otherwise receiving any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter which may be subject
to indemnification covered hereunder. The failure to so notify the Company shall not relieve the
Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless
and only to the extent that such failure or delay materially prejudices the Company.
20. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c)
five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent:
(a) To Indemnitee at the address set forth below Indemnitee’s signature hereto.
9
| (b) | To the Company at: | ||
| 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxx 00000 Attention: Chief Executive Officer |
or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.
21. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. Headings. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
23. Governing Law and Consent to Jurisdiction. This Agreement and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of law rules. The Company and Indemnitee
hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware
(the “Delaware Court”), and not in any other state or federal court in the United States of America
or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in connection with this
Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the
Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such action
or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
[SIGNATURE
PAGE FOLLOWS]
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
| ROADRUNNER TRANSPORTATION SYSTEMS, INC. | ||||||
| By: | ||||||
| Name: Xxxx X. XxXxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
| INDEMNITEE | ||||||
| Name: | ||||||
| Address: | ||||||
11
Schedule to Exhibit 10.15
The form of Indemnification Agreement was or will be executed by the following persons:
Xxxx X. XxXxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx X. van Helden
Xxxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx X. van Helden
Xxxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxxx
