Exhibit 10.1
------------
FORM OF OFFICER INDEMNIFICATION AGREEMENT
-----------------------------------------
THIS AGREEMENT is made and effective as of this day of ,
----- --------------
, between Kansas City Southern Industries, Inc., a Delaware corporation
-----
("Corporation") and ("Officer").
-------------
WHEREAS, Officer is an officer of Corporation and in such capacity may be
exposed to risks of undue personal liability; and
WHEREAS, the By-Laws of the Corporation, which require the Corporation to
indemnify and advance expenses to Officer to the fullest extent permitted by the
Delaware General Corporation Law, is subject to change by amendment; and
WHEREAS, the directors' and officers' liability insurance obtained by the
Corporation may not provide complete protection to Officer against all risks of
undue personal liability; and
WHEREAS, Officer is serving the Corporation in part in reliance upon the
continued availability of effective protection against undue personal liability
arising out of or in connection with Officer's service to the Corporation; and
WHEREAS, to supplement the Corporation's directors' and officers' liability
insurance and to provide Officer with specific contractual assurance that the
protection provided by the Corporation's By-Laws will continue to be available
to Officer regardless of, among other things, an amendment of the By-Laws or a
change in management or control of the Corporation, the Corporation has agreed
to enter into this Agreement;
NOW, THEREFORE, in consideration of the above premises and of Officer's
continued service to the Corporation, the parties hereto agree as follows:
1. Indemnity of Officer. In the event Officer was or is made a party or is
--------------------
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she is or was a director,
officer, employee, agent, trustee, committee member or representative of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, agent, trustee, committee member or representative
of another corporation or other entity, including, without limitation, any
subsidiary, partnership, joint venture, limited liability company, limited
liability partnership, unincorporated organization or similar company, trust or
other enterprise, including service with respect to any employee benefit plan,
whether the basis of such Proceeding is alleged action in an official capacity
or in any other capacity while serving as a director, officer, employee, agent,
trustee, committee member or representative (an "Indemnifiable Event"), Officer
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by reason of Officer acting in any
such
capacity; provided, however, that with respect to Proceedings to enforce rights
-------- -------
to indemnification, the Corporation shall indemnify Officer in connection with a
Proceeding (or part thereof) initiated by Officer only if such Proceeding (or
part thereof) is conducted as provided in Section 3 below or if such Proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
2. Advancement of Expenses. The right to indemnification conferred in
-----------------------
Section 1 hereof shall include the right to have the Corporation pay the
expenses incurred in defending any Proceeding in advance of its final
disposition (an "Advancement of Expenses"); provided, however, that, if the
Delaware General Corporation Law so requires, an Advancement of Expenses
incurred by Officer shall be made only upon delivery to the Corporation of an
undertaking (an "Undertaking"), by or on behalf of Officer, to repay all amounts
so advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "Final Adjudication"), that Officer
is not entitled to be indemnified for such expenses under this Section or
otherwise.
3. Enforcement. If a claim under Section 1 hereof is not paid in full by
-----------
the Corporation within sixty (60) days after a written claim has been received
by the Corporation, or a claim under Section 2 hereof for an Advancement of
Expenses is not paid in full by the Corporation within twenty (20) days after a
written claim has been received by the Corporation, Officer may at any time
thereafter bring suit against the Corporation 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 Corporation to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, Officer 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 Corporation to recover an Advancement of Expenses pursuant to
the terms of an Undertaking, the Corporation shall be entitled to recover such
expenses upon a Final Adjudication that Officer has not met any applicable
standard for indemnification set forth in the Delaware General Corporation Law
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than such law permitted the Corporation
to provide prior to such amendment). Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of Officer is proper in the circumstances because
Officer has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that Officer has not met such applicable standard of conduct,
shall create a presumption that Officer has not met the applicable standard of
conduct or, in the case of such a suit brought by Officer, be a defense to such
suit. In any suit brought by Officer to enforce a right to indemnification or to
an Advancement of Expenses hereunder, or by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the burden of
proving that Officer is not entitled to be indemnified, or to such Advancement
of Expenses, under this Article or otherwise shall be on the Corporation.
-2-
4. Defense. The Corporation shall have the right to participate at its own
-------
expense in any action, suit, proceeding, inquiry or investigation against
Officer with respect to an Indemnifiable Event and to assume the defense thereof
with counsel satisfactory to Officer. Officer shall have the right to employ
separate counsel in any such action, suit, proceeding, inquiry or investigation
and the fees and expenses of such separate counsel shall be borne by Officer;
provided that, all fees and expenses of such separate counsel shall be borne by
the Corporation if: (i) the Corporation shall have authorized the engagement of
such separate counsel, (ii) the Corporation shall have failed to employ any
counsel to represent Officer in such matter, or (iii) such separate counsel
shall have reasonably advised Officer that there may be a conflict of interest
between Officer and Corporation in the defense or investigation of such matter.
5. Additional Indemnity. The Corporation shall indemnify Officer to the
--------------------
fullest extent permitted by law against any and all expenses (including
attorneys' fees) and, if requested by Officer , shall (within twenty business
days of such request) advance such expenses to Officer, which are incurred in
connection with any claim asserted or action brought by Officer for (i)
indemnification or advance payment of expenses by the Corporation under this
Agreement, the Corporation's Certificate of Incorporation or any other bylaw or
agreement hereafter in effect relating to claims for Indemnifiable Events and/or
(ii) recovery under any directors' and officers' liability insurance policies
maintained by the Corporation; provided that, if Officer ultimately is
determined in the manner provided for herein not to be entitled to such
indemnification, advance payment of expenses or insurance recovery, Officer
shall, and Officer hereby undertakes to, reimburse the Corporation for all such
amounts received by Officer promptly after receipt of a written demand therefor
from the Corporation.
6. Additional Rights. The rights of Officer hereunder shall be in addition
-----------------
to any other rights Officer may have under the By-Laws of the Corporation as in
effect on the date of this Agreement or the Delaware General Corporation Law or
otherwise. To the extent a change in the Delaware General Corporation Law
(whether by statute or judicial decision) or in the Certificate permits greater
indemnification by agreement than would be afforded currently, it is the intent
of the parties hereto that Officer shall enjoy by this Agreement the greater
benefits afforded by such change.
7. Insurance Coverage. To the extent the Corporation maintains an insurance
------------------
policy or policies providing directors' and officers' liability insurance,
Officer shall be covered by such policy or policies, in accordance with the
terms thereof, to the maximum extent of the coverage available for any director
or officer of the Corporation.
8. Modification of Agreement. No supplement, modification or amendment of
-------------------------
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof nor shall
such waiver constitute a continuing waiver.
-3-
9. Subrogation. In the event of payment under this Agreement, the
-----------
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Officer. Officer shall do everything reasonably necessary
to enable the Corporation to secure and enforce such rights, provided any costs
incurred by Officer in connection therewith shall be advanced or promptly
reimbursed by the Corporation.
10. Limits of Corporation's Liability. The Corporation shall not be liable
---------------------------------
under this Agreement to make any payment in connection with any claim made
against Officer to the extent Officer has otherwise actually received payment
(under any insurance policy, bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
11. Binding Effect. This Agreement shall be binding upon Officer and upon
--------------
the Corporation, its successors and assigns, and shall inure to the benefit of
Officer, such Officer's heirs, personal representatives and assigns and to the
benefit of Corporation, its successors and assigns. This Agreement shall
continue in effect regardless of whether Officer continues to serve the
Corporation or any other enterprise at the Corporation's request.
12. Severability. Each of the provisions of this Agreement is a separate
------------
and distinct agreement and independent of the others, and if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
13. Governing Law. This Agreement shall be interpreted and enforced in
-------------
accordance with the laws of the State of Delaware, without regard to conflicts
of law rules or principles which might refer such interpretation or enforcement
to the laws of another state or country.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
[COMPANY NAME]
By
--------------------------------
----------------------------------
Officer
