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Exhibit 10.13(b)
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the _____
day of _____________, 19__ by and between Caliber System, Inc., an Ohio
corporation (the "Company"), and ______________________ (the "Indemnitee"), an
officer of the company.
RECITALS
A. The Indemnitee is presently serving as an officer of the Company and
the Company desires the Indemnitee to continue in that capacity. The Indemnitee
is willing, subject to certain conditions, including, without limitation, the
execution and performance of this Agreement by the Company, to continue in that
capacity.
B. In addition to the indemnification to which the Indemnitee is
entitled under the Restated Amended Code of Regulations of the Company, (the
"Regulations"), the Company has obtained, at its sole expense, insurance
protecting the Company and its officers and Directors, including the Indemnitee,
against certain losses arising out of actual or threatened actions, suits or
proceedings to which such persons may be made or threatened to be made parties.
However, as a result of circumstances having no relation to, and beyond the
control of, the Company and the Indemnitee, there can be no assurance of the
continuation or renewal of that insurance.
Accordingly, and in order to induce the Indemnitee to continue to serve
in his present capacity, the Company and the Indemnitee agree as follows:
1. CONTINUED SERVICE. The Indemnitee shall continue to serve, at the
will of the Company as an officer of the Company, so long as he is duly elected
and qualified in accordance with the Regulations or until he resigns in writing
in accordance with applicable law.
2. INITIAL INDEMNITY.
(a) The Company shall indemnify the Indemnitee, if or when he is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company), by
reason of the fact that he is or was an officer of the Company or is or was
serving at the request of the Company as a director, trustee, officer, employee
or agent of another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, or by reason of any
action alleged to have been taken or omitted in any such capacity, against any
and all costs, charges, expenses (including, without limitation, fees and
expenses of attorneys and/or others; all such costs, charges and expenses being
herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in
settlement, actually and reasonably incurred by the Indemnitee in connection
therewith including any appeal of or from any judgment or decision, unless it is
proved by clear and convincing evidence in a court of competent jurisdiction
that the Indemnitee's action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the Company or undertaken
with reckless disregard for the best interests of the Company. In addition, with
respect to any criminal action or proceeding,
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indemnification hereunder shall be made only if the Indemnitee had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement or conviction, or upon a plea of
"nolo contendere" or its equivalent, shall not, of itself, create a presumption
that the Indemnitee did not satisfy the foregoing standard of conduct to the
extent applicable thereto.
(b) The Company shall indemnify the Indemnitee, if or when he is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding by or in the right of the Company to
procure a judgment in its favor, by reason of the fact that the Indemnitee is or
was an officer of the Company or is or was serving at the request of the Company
as a director, trustee, officer, employee or agent of another corporation,
domestic or foreign, nonprofit or for profit, partnership, joint venture, trust,
or other enterprise, against any and all Expenses actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement thereof
or any appeal of or from any judgment or decision, unless it is proved by clear
and convincing evidence in a court of competent jurisdiction that the
Indemnitee's action or failure to act involved an act or omission undertaken
with deliberate intent to cause injury to the Company or undertaken with
reckless disregard for the best interests of the Company, except that no
indemnification shall be made in respect of any action or suit in which the only
liability asserted against Indemnitee is pursuant to Section 1701.95 of the Ohio
Revised Code (the "ORC").
(c) Any indemnification under Section 2(a) or 2(b) (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 has met the applicable standard of conduct set forth in
Section 2(a) or 2(b). Such authorization shall be made ( i ) by the Directors of
the Company (the "Board") by a majority vote of a quorum consisting of Directors
who were not and are not parties to or threatened with such action, suit, or
proceeding, or (ii) if such a quorum of disinterested Directors is not available
or if a majority of such quorum so directs, in a written opinion by independent
legal counsel (designated for such purpose by the Board) which shall not be an
attorney, or a firm having associated with it an attorney, who has been retained
by or who has performed services for the Company, or any person to be
indemnified, within the five years preceding such determination, or (iii) by the
shareholders of the Company (the "Shareholders"), or (iv) by the court in which
such action, suit or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense of any action, suit or proceeding referred to in
Section 2(a) or 2(b), or in defense of any claim, issue or matter therein, he
shall be indemnified against Expenses actually and reasonably incurred by him in
connection therewith. Expenses actually and reasonably incurred by the
Indemnitee in defending any such action, suit or proceeding shall be paid by the
Company as they are incurred in advance of the final disposition of such action,
suit or proceeding under the procedure set forth in Section 4(b) hereof.
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(e) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on the Indemnitee with respect to any employee
benefit plan; 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, the Indemnitee with respect to
an employee benefit plan, its participants or beneficiaries; references to the
masculine shall include the feminine; references to the singular shall include
the plural and VICE VERSA.
3. ADDITIONAL INDEMNIFICATION. Pursuant to Section 1701.13(E)(6) of the
ORC, without limiting any right which the Indemnitee may have pursuant to
Section 2 hereof or any other provision of this Agreement or the Second Amended
Articles of Incorporation of the Company (the "Articles"), the Restated Amended
Code of Regulations (the "Regulations"), the ORC, any policy of insurance, or
otherwise, but subject to any limitation on the maximum permissible indemnity
which may exist under applicable law at the time of any request for indemnity
hereunder and subject to the following provisions of this Section 3, the Company
shall indemnify the Indemnitee against any amount which he is or becomes
obligated to pay relating to or arising out of any claim made against him
because of any act, failure to act or neglect or breach of duty, including any
actual or alleged error, misstatement or misleading statement, which he commits,
suffers, permits or acquiesces in while acting in his capacity as an officer of
the Company. The payments which the Company is obligated to make pursuant to
this Section 3 shall include, without limitation, judgments, fines, and amounts
paid in settlement and any and all Expenses actually and reasonably incurred by
the Indemnitee in connection therewith including any appeal of or from any
judgment or decision; PROVIDED, HOWEVER, that the Company shall not be obligated
under this Section 3 to make any payment in connection with any claim against
the Indemnitee:
(a) to the extent of any fine or similar governmental imposition
which the Company is prohibited by applicable law from paying which results from
a final, nonappealable order; or
(b) to the extent based upon or attributable to the Indemnitee
having actually realized a personal gain or profit to which he was not legally
entitled, including, without limitation, profit from the purchase and sale by
the Indemnitee of equity securities of the Company which are recoverable by the
Company pursuant to Section 16(b) of the Securities Exchange Act of 1934, or
profit arising from transactions in publicly traded securities of the Company
which were effected by the Indemnitee in violation of Section 10(b) of the
Securities Exchange Act of 1934, or Rule 10b-5 promulgated thereunder.
A determination as to whether the Indemnitee shall be entitled to
indemnification under this Section 3 shall be made in accordance with Section
4(a) hereof. Expenses incurred by the Indemnitee in defending any claim to which
this Section 3 applies shall be paid by the Company as they are actually and
reasonably incurred in advance of the final disposition of such claim under the
procedure set forth in Section 4(b) hereof.
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4. CERTAIN PROCEDURES RELATING TO INDEMNIFICATION.
(a) For purposes of pursuing his rights to indemnification under
Section 3 hereof, the Indemnitee shall ( i ) submit to the Board a sworn
statement of request for indemnification substantially in the form of Exhibit 1
attached hereto and made a part hereof (the "Indemnification Statement")
averring that he is entitled to indemnification hereunder; and (ii) present to
the Company reasonable evidence of all amounts for which indemnification is
requested. Submission of an Indemnification Statement to the Board shall create
a presumption that the Indemnitee is entitled to indemnification hereunder, and
the Company shall, within sixty (60) calendar days after submission of the
Indemnification Statement, make the payments requested in the Indemnification
Statement to or for the benefit of the Indemnitee, unless ( i ) within such
60-calendar-day period the Board shall resolve by vote of a majority of the
Directors at a meeting at which a quorum is present that the Indemnitee is not
entitled to indemnification under Section 3 hereof, (ii) such vote shall be
based upon clear and convincing evidence (sufficient to rebut the foregoing
presumption), and (iii) the Indemnitee shall have received within such period
notice in writing of such vote, which notice shall disclose with particularity
the evidence upon which the vote is based. The foregoing notice shall be sworn
to by all persons who participated in the vote and voted to deny
indemnification. The provisions of this Section 4(a) are intended to be
procedural only and shall not affect the right of Indemnitee to indemnification
under Section 3 of this Agreement so long as Indemnitee follows the prescribed
procedure and any determination by the Board that Indemnitee is not entitled to
indemnification and any failure to make the payments requested in the
Indemnification Statement shall be subject to judicial review by any court of
competent jurisdiction.
(b) For purposes of obtaining payments of Expenses in advance of
final disposition pursuant to the second sentence of Section 2(d) or the last
sentence of Section 3 hereof, the Indemnitee shall submit to the Company a sworn
request for advancement of Expenses substantially in the form of Exhibit 2
attached hereto and made a part hereof (the "Undertaking"), averring that he has
reasonably incurred actual Expenses in defending an action, suit or proceeding
referred to in Section 2(a) or 2(b) or any claim referred to in Section 3, or
pursuant to Section 7 hereof. Unless at the time of the Indemnitee's act or
omission at issue, the Articles or Regulations of the Company prohibit such
advances by specific reference to ORC Section 1701.13(E)(5)(a) and unless the
only liability asserted against the Indemnitee in the subject action, suit or
proceeding is pursuant to ORC Section 1701.95, the Indemnitee shall be eligible
to execute Part A of the Undertaking by which he undertakes to (a) repay such
amount if it is proved by clear and convincing evidence in a court of competent
jurisdiction that the Indemnitee's action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the Company or
undertaken with reckless disregard for the best interests of the Company and (b)
reasonably cooperate with the Company concerning the action, suit, proceeding or
claim. In all cases, the Indemnitee shall be eligible to execute Part B of the
Undertaking by which he undertakes to repay such amount if it ultimately is
determined that he is not entitled to be indemnified by the Company under this
Agreement or otherwise. In the event that the Indemnitee is eligible to and does
execute both Part A and Part B of the Undertaking, the Expenses which are paid
by the Company pursuant thereto shall be required to be repaid by the Indemnitee
only if he is required to do so under the terms of both Part A and Part B of the
Undertaking. Upon receipt
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of the Undertaking, the Company shall thereafter promptly pay such Expenses of
the Indemnitee as are noticed to the Company in writing and in reasonable detail
arising out of the matter described in the Undertaking. No security shall be
required in connection with any Undertaking.
5. LIMITATION ON INDEMNITY. Notwithstanding anything contained herein
to the contrary, the Company shall not be required hereby to indemnify the
Indemnitee with respect to any action, suit, or proceeding that was initiated by
the Indemnitee unless ( i ) such action, suit, or proceeding was initiated by
the Indemnitee to enforce any rights to indemnification arising hereunder and
such person shall have been formally adjudged to be entitled to indemnity by
reason hereof; (ii) authorized by another agreement to which the Company is a
party whether heretofore or hereafter entered, or (iii) otherwise ordered by the
court in which the suit was brought.
6. SUBROGATION, DUPLICATION OF PAYMENTS.
(a) 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
the Indemnitee, who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
(b) The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against the Indemnitee to the extent
the Indemnitee has actually received payment (under any insurance policy, the
Company's Regulations or otherwise) of the amounts otherwise payable hereunder.
7. FEES AND EXPENSES OF ENFORCEMENT. It is the intent of the Company
that the Indemnitee not be required to incur the expenses associated with the
enforcement of his rights under this Agreement by litigation or other legal
action because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. Accordingly, if it
should appear to the Indemnitee that the Company has failed to comply with any
of its obligations under this Agreement or in the event that the Company or any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any action, suit or proceeding to deny, or to recover from, the
Indemnitee the benefits intended to be provided to the Indemnitee hereunder, the
Company irrevocably authorizes the Indemnitee from time to time to retain
counsel of his choice, at the expense of the Company as hereafter provided, to
represent the Indemnitee in connection with the initiation or defense of any
litigation or other legal action, whether by or against the Company or any
director, officer, shareholder, or other person affiliated with the Company, in
any jurisdiction. Regardless of the outcome thereof, the Company shall pay and
be solely responsible for any and all costs, charges and expenses, including,
without limitation, fees and expenses of attorneys and others, reasonably
incurred by the Indemnitee pursuant to this Section 7.
8. MERGER OF CONSOLIDATION. In the event that the Company shall be a
constituent corporation in a consolidation, merger, or other reorganization, the
Company, if it shall not be the
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surviving, resulting, or acquiring corporation therein, shall require as a
condition thereto that the surviving, resulting or acquiring corporation agree
to assume all of the obligations of the Company hereunder and to indemnify the
Indemnitee to the full extent provided herein. Regardless of whether the Company
is the resulting, surviving or acquiring corporation in any such transaction,
the Indemnitee shall also stand in the same position under this Agreement with
respect to the resulting, surviving or acquiring corporation as he would have
with respect to the Company if its separate existence had continued.
9. NONEXCLUSIVITY AND SEVERABILITY.
(a) The rights to indemnification provided by this Agreement shall
not be exclusive of any other rights of indemnification to which the Indemnitee
may be entitled under the Articles, the Regulations, the ORC or any other
statute, any insurance policy, agreement, or vote of shareholders or directors
or otherwise, as to any actions or failures to act by the Indemnitee, and shall
continue after he has ceased to be a director, officer, employee or agent of the
Company or other entity for which his service gives rise to a right hereunder,
and shall inure to the benefit of his heirs, executors and administrators. In
the event of any payment under this Agreement, the Company shall be subrogated
to the extent thereof to all rights of recovery previously vested in the
Indemnitee, who shall execute all instruments and take all other actions as
shall be reasonably necessary for the Company to enforce such right.
(b) If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid, unenforceable,
or otherwise illegal, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without giving effect to the
principles of conflict of laws thereof.
11. MODIFICATION. This Agreement and the rights and duties of the
Indemnitee and the Company hereunder may be modified only by an instrument in
writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
CALIBER SYSTEM, INC.
By:
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Chairman, President and Chief Executive Officer/Indemnitee
Officer
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EXHIBIT 1
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INDEMNIFICATION STATEMENT
STATE OF ___________________)
)SS
COUNTY OF___________________)
I, ___________________________, being first duly sworn, do depose and
say as follows:
1. This Indemnification Statement is submitted pursuant to the
Indemnification Agreement, dated ___________________, between Caliber System,
Inc. (the "Company"), an Ohio corporation, and the undersigned.
2. I am requesting indemnification against costs, charges, expenses
(which may include fees and expenses of attorneys and/or others), judgments,
fines, and amounts paid in settlement (collectively, "Liabilities"), which have
been actually and reasonably incurred by me in connection with a claim referred
to in Section 3 of the aforesaid Indemnification Agreement.
3. With respect to all matters related to any such claim, I am entitled
to be indemnified as herein contemplated pursuant to the aforesaid
Indemnification Agreement.
4. Without limiting any other rights which I have or may have, I am
requesting indemnification against Liabilities which have or may arise out of
_______________________________________________.
-----------------------------------
[Signature of Indemnitee]
Subscribed and sworn to before me, a Notary Public, in and for said
County and State, this _________ day of _____________________, 19____.
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[Seal]
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EXHIBIT 2
---------
UNDERTAKING
STATE OF ______________________)
) SS
COUNTY OF______________________)
I, ____________________________, being first duly sworn do depose and
say as follows:
1. This Undertaking is submitted pursuant to the Indemnification
Agreement, dated ____________________, between Caliber System, Inc. (the
"Company"), an Ohio corporation, and the undersigned.
2. I am requesting payment of costs, charges, and expenses which I have
reasonably incurred or will reasonably incur in defending an action, suit or
proceeding, referred to in Section 2(a) or 2(b) or any claim referred to in
Section 3, or pursuant to Section 7, of the aforesaid Indemnification Agreement.
3. The costs, charges, and expenses for which payment is requested are,
in general, all expenses related to ___________________________________________
_______________________________________________________________________________.
I hereby undertake to (a) repay all amounts paid pursuant hereto if it
is proved by clear and convincing evidence in a court of competent jurisdiction
that my action or failure to act which is the subject of the matter described
herein involved an act or omission undertaken with deliberate intent to cause
injury to the Company or undertaken with reckless disregard for the best
interests of the Company and (b) reasonably cooperate with the Company
concerning the action, suit, proceeding or claim.
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[Signature of Indemnitee]
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4. PART B
------
I hereby undertake to repay all amounts paid pursuant hereto if it
ultimately is determined that I am not entitled to be indemnified by the Company
under the aforesaid Indemnification Agreement or otherwise.
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[Signature of Indemnitee]
Subscribed and sworn to before me, a Notary Public in and for said
County and State, this ________ day of _____________________, 19______.
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[Seal]
