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EXHIBIT 10.12
THE GREENBRIER COMPANIES, INC.
AGREEMENT CONCERNING INDEMNIFICATION AND RELATED MATTERS
(DIRECTORS)
This
Agreement is made as of February 28, 2006, by and between THE
GREENBRIER COMPANIES, INC., an Oregon corporation (the
"Corporation"), and
___________ (the "Director"), a director of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract
as
directors of the Corporation the most capable persons available and
persons who
have significant experience in business, corporate and financial
matters; and
WHEREAS, the Corporation has identified the Director as a person
possessing
the background and abilities desired by the Corporation and desires
the Director
to serve as a director of the Corporation; and
WHEREAS, the substantial increase in corporate litigation may, from
time to
time, subject directors to burdensome litigation, the risks of
which frequently
far outweigh the advantages of serving in such capacity; and
WHEREAS, in recent times the cost of liability insurance has
increased and
the availability of such insurance is, from time to time, severely
limited; and
WHEREAS, the Corporation and the Director recognize that serving as
a
director of a corporation at times calls for subjective evaluations
and
judgments upon which reasonable persons may differ and that, in
that context, it
is anticipated and expected that directors of corporations will and
do from time
to time commit actual or alleged errors or omissions in the good
faith exercise
of their corporate duties and responsibilities; and
WHEREAS, it is the express policy of the Corporation to indemnify
its
directors to the fullest extent permitted by law; and
WHEREAS, the Articles of Incorporation of the Corporation permit,
and the
Bylaws of the Corporation require, indemnification of the directors
of the
Corporation to the fullest extent permitted by law, including but
not limited to
the Oregon Business Corporation Act (the "OBCA"), and the OBCA
expressly
provides that the indemnification provisions set forth therein are
not
exclusive, and thereby contemplates that contracts may be entered
into between
the Corporation and its directors with respect to indemnification;
and
WHEREAS, the Corporation and the Director desire to articulate
clearly in
contractual form their respective rights and obligations with
regard to the
Director's service on behalf of the Corporation as a director and
with regard to
claims for loss, liability, expense or damage which, directly or
indirectly, may
arise out of or relate to such service; and
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WHEREAS, the Corporation and the Director are parties to an
indemnification
agreement, dated as of _________ (the "Delaware Indemnification
Agreement"),
that is governed by Delaware law and was entered into when the
Corporation was
incorporated in Delaware; and
WHEREAS, as the Corporation has reincorporated in Oregon as of this
date
(the "Reincorporation"); and
WHEREAS, in recognition of the differences between Oregon and
Delaware law
governing the indemnification of directors, the Corporation and the
Director
desire to enter into a new indemnification agreement that replaces
their prior
agreement as of the effective time of the Reincorporation;
NOW
THEREFORE, the Corporation and the Director agree as follows:
1. Agreement to
Serve.
The
Director shall serve as a director of the Corporation for so long
as
the Director is duly elected or until the Director tenders a
resignation in
writing. This Agreement creates no obligation on either party to
continue the
service of the Director for a particular term or any term.
2.
Definitions.
As
used in this Agreement:
(a)
The term "Proceeding"
shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the right
of
the Corporation or otherwise, and whether of a civil, criminal,
administrative or investigative nature, whether formal or informal,
in
which the Director may be or may have been involved as a party,
witness or otherwise, by reason of the fact that the Director is
or
was
a director of the Corporation, or is or was serving at the
request
of the Corporation as a director, officer, partner, trustee,
manager,
employee or agent of another corporation, limited liability
company,
partnership, joint venture, trust or other enterprise, whether or
not
serving in such capacity at the time any liability or expense
is
incurred for which exculpation, indemnification or reimbursement
can
be provided under this Agreement.
(b)
The term "Expenses"
includes, without limitation thereto, expenses of
investigations, judicial or administrative proceedings or
appeals,
attorney, accountant and other professional fees and disbursements
and
any expenses of establishing a right to indemnification under
Section
12 of this Agreement, but shall not include amounts paid in
settlement
by the Director or the amount of judgments or fines against the
Director.
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(c)
References to "other
enterprise" include, without limitation, employee
benefit plans; references to "fines" include, without limitation,
any
excise taxes assessed on a person with respect to any employee
benefit
plan; references to "serving at the request of the Corporation"
include, without limitation, any service as a director,
officer,
partner, trustee, manager, employee or agent which imposes duties
on,
or
involves services by, such director, officer, partner, trustee,
manager, employee or agent with respect to an employee benefit
plan,
its participants, or its beneficiaries; and a person who acted in
good
faith and in a manner such person reasonably believed to be in
the
interest of the participants and beneficiaries of an employee
benefit
plan shall be deemed to have acted in a manner "not opposed to
the
best interests of the Corporation" as referred to in this
Agreement.
(d)
References to "the
Corporation" shall include, in addition to the
resulting entity, any constituent corporation or other entity
(including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, partners, trustees, managers, employees or
agents, so that any person who is or was a director, officer,
partner,
trustee, manager, employee or agent of such constituent entity, or
is
or was serving at the request of such constituent entity as a
director, officer, partner, trustee, manager, employee or agent
of
another corporation, limited liability company, partnership,
joint
venture, trust or other enterprise, shall stand in the same
position
under this Agreement with respect to the resulting or surviving
entity
as such person would
have with respect to such constituent entity if
its separate existence had continued.
(e)
For purposes of this
Agreement, the meaning of the phrase "to the
fullest extent permitted by law" shall include, but not be limited
to:
(i) to the fullest
extent authorized or permitted by any amendments
to or replacements of the OBCA adopted after the date of this
Agreement that increase the extent to which a corporation may
indemnify or exculpate its directors; and
(ii) to the fullest extent permitted by the provision of the OBCA
that
authorizes or contemplates additional indemnification by
agreement, or the corresponding provision of any amendment to
or
replacement of the OBCA.
3. Limitation of
Liability
To
the fullest extent permitted by law, the Director shall have no
monetary
liability of any kind or nature whatsoever in respect of the
Director's errors
or omissions (or alleged errors or omissions) in serving the
Corporation or any
of its subsidiaries, their respective shareholders or any other
enterprise at
the request of the Corporation, so long as such errors or omissions
(or alleged
errors or omissions), if any, are not shown by clear and convincing
evidence to
have involved:
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(i) any breach of the
Director's duty of loyalty to such entities,
shareholders or enterprises;
(ii) any act or omission not in good faith or which involved
intentional misconduct or a knowing violation of law;
(iii) any transaction from which the Director derived an
improper
personal benefit;
(iv) any unlawful distribution (including, without limitation,
dividends, stock repurchases and stock redemptions), as defined
in the OBCA or, as applicable, in the limited liability company
act of the state where the Company's subsidiary is organized;
or
(v) profits made from
the purchase and sale by the Director of
securities of the Corporation within the meaning of Section
16(b)
of the Securities Exchange Act of 1934, as amended, or similar
provision of any state statutory law or common law.
(b)
Without limiting the
generality of subparagraph (a) above and to the
fullest extent permitted by law, the Director shall have no
personal
liability to the Corporation or any of its subsidiaries, their
respective shareholders or any other person claiming
derivatively
through the Corporation, regardless of the theory or principle
under
which such liability may be asserted, for:
(i) punitive,
exemplary or consequential damages;
(ii) treble or other damages computed based upon any multiple
of
damages actually and directly proved to have been sustained;
(iii) fees of attorneys, accountants, expert witnesses or
professional
consultants; or
(iv) civil fines or penalties of any kind or nature whatsoever.
4. Indemnity in
Third Party Proceedings.
The
Corporation shall indemnify the Director in accordance with the
provisions of this Section 4 if the Director was or is a party to,
or is
threatened to be made a party to, any Proceeding (other than a
Proceeding by or
in the right of the Corporation to procure a judgment in its
favor), against all
Expenses, judgments, fines and amounts paid in settlement, actually
and
reasonably incurred by the Director in connection with such
Proceeding if the
Director acted in good faith and in a manner the Director
reasonably believed
was in or not opposed to the best interests of the Corporation,
and, with
respect to any criminal action or proceeding, the Director, in
addition, had no
reasonable cause to believe that the Director's conduct was
unlawful.
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However, the Director shall not be entitled to indemnification
under this
Section 4 in connection with any Proceeding charging improper
personal benefit
to the Director in which the Director is adjudged liable on the
basis that
personal benefit was improperly received by the Director unless and
only to the
extent that the court conducting such Proceeding, or any other
court of
competent jurisdiction, determines upon application that, despite
the
adjudication of liability, the Director is fairly and reasonably
entitled to
indemnification in view of all the relevant circumstances.
5. Indemnity in
Proceedings by or in the Right of the Corporation.
The
Corporation shall indemnify the Director in accordance with the
provisions of this Section 5 if the Director was or is a party to,
or is
threatened to be made a party to, any Proceeding by or in the right
of the
Corporation to procure a judgment in its favor, against all
Expenses actually
and reasonably incurred by the Director in connection with the
defense or
settlement of such Proceeding if the Director acted in good faith
and in a
manner the Director reasonably believed was in or not opposed to
the best
interests of the Corporation. However, the Director shall not be
entitled to
indemnification under this Section 5 in connection with any
Proceeding in which
the Director has been adjudged liable to the Corporation unless and
only to the
extent that the court conducting such Proceeding, or any other
court of
competent jurisdiction, de
