Exhibit 10.6.6
DIRECTOR AND OFFICER INDEMNITY
AGREEMENT
This agreement
(the “ Agreement ”) is made and entered into as
of the 9 th day of November, 2007, by and between OSG
America L.P., a Delaware limited partnership (the “
Partnership ”), and James G. Dolphin, (the “
Indemnitee ”).
RECITALS
A.
The Indemnitee is a Director of OSG America LLC, a Delaware limited
liability company and the general partner of the Partnership (the
“ General Partner ”).
B.
Both the Partnership and the Indemnitee recognize the increased
risk of litigation and other claims being asserted against
directors and officers of public entities in today’s
environment.
C.
Section 17-108 of the Delaware Revised Uniform Limited
Partnership Act, 6 Del. C. Section 17-101, et seq .,
(the “ Act ”) expressly recognizes that, subject
to such standards and restrictions as may be set forth in its
partnership agreement, a limited partnership may, and shall have
the power to, indemnify and hold harmless any person from and
against any and all claims and demands whatsoever.
D.
Subject to the limitations set forth therein, Section 7.07 of
the Amended and Restated Agreement of Limited Partnership of the
Partnership (the “ Partnership Agreement ”)
requires the Partnership to indemnify and advance expenses to the
directors and officers of the General Partner to the fullest extent
permitted by law and the Indemnitee has been serving and continues
to serve as a Director of the General Partner in part in reliance
on such provision.
E.
In recognition of the Indemnitee’s need for substantial
protection against any potential personal liability in order to
assure the Indemnitee’s continued service to the Partnership
and General Partner in an effective manner and the
Indemnitee’s reliance on the provisions of the Partnership
Agreement and in part to provide the Indemnitee with specific
contractual assurance that the protection promised by the
Partnership Agreement will be available to the Indemnitee, the
Partnership wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to the Indemnitee
to the fullest extent (whether partial or complete) permitted by
the Partnership Agreement and as set forth in this Agreement, and,
to the extent insurance is maintained, for the continued coverage
of the Indemnitee under the Partnership’s directors’
and officers’ liability insurance policies.
In consideration
of the foregoing and the mutual covenants contained herein, and
other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Certain Definitions .
(a)
“Affiliate” means, with respect to any Person,
any other Person that directly or indirectly through one or more
intermediaries controls, is controlled by or is under
common control
with, such Person. As used herein, the term “control”
means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or
otherwise.
(b)
“Board of Directors” means the Board of
Directors of the General Partner.
(c)
“ Change in Control ” means, and shall be deemed
to have occurred upon one or more of the following events:
(i) any transaction resulting in the Partnership (or its
successor or survivor by way of merger, consolidation, or some
other transaction, or a parent or subsidiary thereof) ceasing to be
an Affiliate of OSG (or its successor or survivor by way of merger,
consolidation, or some other transaction, or a parent or subsidiary
thereof); (ii) the limited partners of the Partnership
approve, in one transaction or a series of transactions, a plan of
complete liquidation of the Partnership; (iii) the sale or
other disposition by either the General Partner or the Partnership
of all or substantially all of its assets, or the sale or other
disposition of all or substantially all of the assets of the
Partnership’s subsidiaries, in one or more transactions to
any Person other than the General Partner or an Affiliate of the
General Partner; or (iv) a transaction resulting in a Person
other than OSG (or its successor or survivor by way of merger,
consolidation, or some other transaction, or a parent or subsidiary
thereof) or an Affiliate thereof being the general partner of the
Partnership (or its successor or survivor by way of merger,
consolidation, or some other transaction, or a parent or subsidiary
thereof).
(d)
“ Expenses ” means all direct and indirect costs
of any type or nature whatsoever (including, without limitation,
all attorneys’ fees and related disbursements and other
out-of- pocket costs) actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense or appeal
of or being a witness in, participating in or preparing to defend a
Proceeding or establishing or enforcing a right to
(i) indemnification or advancement of expenses under this
Agreement, the Partnership Agreement, the Act or otherwise or
(ii) directors’ and officers’ liability insurance
coverage; provided , however , that Expenses shall
not include any judgments, fines or penalties or amounts paid in
settlement of a Proceeding. Should any payments by the
Partnership under this Agreement be determined to be subject to any
federal, state or local income or excise tax,
“Expenses” shall also include such amounts as are
necessary to place the Indemnitee in the same after-tax position
(after giving effect to all applicable taxes) as the Indemnitee
would have been in had no such tax been determined to apply to such
payments.
(e)
“ Indemnifiable Event ” is any event or
occurrence related to the fact that the Indemnitee is or was a
director or officer of the General Partner, or is or was serving at
the request of the General Partner as a director, officer,
employee, trustee or agent of another corporation, partnership,
joint venture, trust, nonprofit entity or other entity (including
service with respect to employee benefit plans), or by reason of
anything done or not done by the Indemnitee in any such
capacity.
(f)
“ Indemnification Period ” shall be such period
as the Indemnitee shall continue to serve as a director or officer
of the General Partner, or shall continue at the request of the
General Partner to serve as a director, officer, employee, trustee
or agent of another corporation, partnership, joint venture, trust,
nonprofit entity or other entity, and thereafter so
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long as the
Indemnitee shall be subject to any possible Proceeding arising out
of the Indemnitee’s tenure in the foregoing
positions.
(g)
“ Losses ” are any judgments, fines, penalties
and amounts paid in settlement (including all interest assessments
and other charges paid or payable in connection with or in respect
of such judgments, fines, penalties or amounts paid in settlement)
of any Proceeding.
(h)
“OSG” means Overseas Shipholding
Group, Inc., a Delaware corporation.
(i)
“Person” means an individual or a corporation,
firm, limited liability company, partnership, joint venture, trust,
unincorporated organization, association, government agency or
political subdivision thereof or other entity.
(j)
“ Proceeding ” shall mean any completed, actual,
pending or threatened action, suit, claim, inquiry or proceeding,
whether civil, criminal, administrative or investigative (including
an action by or in the right of the Partnership) and whether formal
or informal.
(k)
“ Reviewing Party ” shall mean (i) the
Board of Directors (provided that a majority of directors are not
parties to the Proceeding), (ii) a person or body selected by
the Board of Directors or (iii) if there has been a Change in
Control, the special independent counsel referred to in
Section 5.
2.
Indemnification and Advancement of Expenses . Subject
to the limitations set forth in Section 4:
(a)
Indemnification . The Partnership shall indemnify and
hold harmless the Indemnitee, to the fullest extent permitted by
the Partnership Agreement, as soon as practicable after written
demand is presented to the Partnership, in the event the Indemnitee
was or is made or is threatened to be made a party to or witness in
or is otherwise involved in a Proceeding by reason, in whole or in
part, of an Indemnifiable Event against all Expenses and Losses
incurred by the Indemnitee in connection with such
Proceeding. In the event of any change, after the date of
this Agreement, in any applicable law, statute or
rule regarding the right of a Delaware limited partnership to
indemnify any director or officer of its general partner, such
change, to the extent it would expand the Indemnitee’s rights
under this Agreement, shall be included within the
Indemnitee’s rights and the Partnership’s obligations
under this Agreement, and, to the extent it would narrow the
Indemnitee’s rights or the Partnership’s obligations
under this Agreement, shall be excluded from this Agreement;
provided , however , that any change required by
applicable laws, statutes or rules to be applied to this
Agreement shall be so applied regardless of whether the effect of
such change is to narrow the Indemnitee’s rights or the
Partnership’s obligations under this Agreement.
(b)
Advancement of Expenses . The Partnership shall, to
the fullest extent permitted by the Partnership Agreement, pay the
Expenses incurred by the Indemnitee as soon as practicable after
written demand is presented to the Partnership in the event the
Indemnitee was or is made or is threatened to be made a party to or
witness in or is otherwise involved in a Proceeding by reason, in
whole or in part, of an Indemnifiable Event in advance of its final
disposition; provided , however , that, to the extent
required by law, such payment of expenses in
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advance of the
final disposition of the Proceeding shall be made only upon receipt
of an undertaking by the Indemnitee to repay all amounts advanced
if it should be ultimately determined that the Indemnitee is not
entitled to be indemnified under this Agreement, the Act or
otherwise.
(c)
Partial Indemnity . If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Partnership for some or a portion of the Losses or Expenses, but
not, however, for all of the total amount thereof, the Partnership
shall indemnify the Indemnitee for the portion thereof to which the
Indemnitee is entitled. Notwithstanding any other provision
of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any issue or
matter therein, including dismissal without prejudice, the
Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
(d)
Contributi
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