DIRECTOR INDEMNIFICATION
AGREEMENT
THIS AGREEMENT (this “ Agreement
”) is made as of [__________], 2009, by and between Wabash
National Corporation, a Delaware corporation (the “
Company ”, which term shall include, where
appropriate, any Entity (as hereinafter defined) controlled
directly or indirectly by the Company), and [______________]
(“ Indemnitee ”).
WHEREAS, it is essential to the Company that it
be able to retain and attract as directors the most capable persons
available;
WHEREAS, increased corporate litigation has
subjected directors to litigation risks and expenses, and the
limitations on the availability of directors and officers liability
insurance have made it increasingly difficult for companies to
attract and retain such persons;
WHEREAS, the Company desires to provide
Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to the Company’s certificate of incorporation
or revocation of any provision of the Company’s by-laws or
any change in the ownership of the Company or the composition of
its Board of Directors); and
WHEREAS, Indemnitee is relying upon the rights
afforded under this Agreement in accepting Indemnitee’s
position as a director of the Company.
NOW, THEREFORE, in consideration of the promises
and the covenants contained herein, the Company and Indemnitee do
hereby covenant and agree as follows:
(a) “
Corporate Status ” describes the status of a person
who is serving or has served (i) as a director of the Company,
including as a member of any committee thereof, (ii) in any
capacity with respect to any employee benefit plan of the Company,
or (iii) as a director, partner, trustee, officer, employee, or
agent of any other Entity at the request of the
Company. For purposes of subsection (iii) of this
Section 1(a), an officer or director of the Company who is
serving or has served as a director, partner, trustee, officer,
employee or agent of a Subsidiary (as defined below) shall be
deemed to be serving at the request of the Company.
(b) “
Determination ” has the meaning ascribed to it in
Section 5(b) .
(c) “
Entity ” shall mean any corporation, partnership,
limited liability company, joint venture, trust, foundation,
association, organization or other legal entity.
(d) “
Expenses ” shall mean all reasonable fees, costs and
expenses actually incurred in connection with any Proceeding (as
defined below), including, without limitation, reasonable
attorneys’ fees, disbursements and retainers (including,
without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Section 8 (unless required
to be returned as provided by Section 8) and Section 10(c) of this
Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without
limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services and other
disbursements and expenses of the types customarily incurred in any
Proceeding.
(e) “
Indemnifiable Amounts ” shall have the meaning
ascribed to it in Section 3(a) below.
(f) “
Indemnifiable Expenses ” shall have the meaning
ascribed to it in Section 3(a) below.
(g) “
Indemnifiable Liabilities ” shall have the meaning
ascribed to it in Section 3(a) below.
(h) “
Independent Counsel ” means a law firm of national
standing that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained
to represent: (i) the Company or Indemnitee in any
matter material to either such party (other than with respect to
matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any
other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not
include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this
Agreement.
(i) “
Liabilities ” shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
reasonably paid in settlement; provided, that any amount paid in
settlement with the consent of the Company shall be deemed
reasonable.
(j) “Negative
Determination” has the meaning ascribed to it in Section
5(b) .
(k) “
Proceeding ” shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute
resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative,
arbitrative or investigative, whether formal or informal, including
a proceeding initiated by Indemnitee pursuant to Section 10 of
this Agreement to enforce Indemnitee’s rights
hereunder.
(l) “
Subsidiary ” shall mean any corporation, partnership,
limited liability company, joint venture, trust or other Entity of
which the Company owns (either directly or through or together with
another Subsidiary of the Company) either (i) a general partner,
managing member or other similar interest or (ii)(A) 50% or more of
the voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture
or other Entity, or (B) 50% or more of the outstanding voting
capital stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity.
2.
Services of Indemnitee . In consideration of the
Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director of the
Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
3.
Agreement to Indemnify . The Company agrees to
indemnify Indemnitee as follows:
(a) Subject to the
exceptions contained in Section 4(a) below, if Indemnitee was
or is a party or is threatened to be made a party to any Proceeding
(other than an action by or in the right of the Company) by reason
of Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as “ Indemnifiable Expenses
” and “ Indemnifiable Liabilities ,”
respectively, and collectively as “ Indemnifiable
Amounts ”).
(b) Subject to the
exceptions contained in Section 4(b) below, if Indemnitee was
or is a party or is threatened to be made a party to any Proceeding
by or in the right of the Company to procure a judgment in its
favor by reason of Indemnitee’s Corporate Status, Indemnitee
shall be indemnified by the Company against all Indemnifiable
Expenses.
4.
Exceptions to Indemnification . Indemnitee shall
be entitled to indemnification under Sections 3(a) and 3(b)
above in all circumstances other than the following:
(a) If
indemnification is requested under Section 3(a) and it has
been adjudicated finally by a court of competent jurisdiction that,
in connection with the subject of the Proceeding out of which the
claim for indemnification has arisen, Indemnitee failed to act
(i) in good faith and (ii) in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, Indemnitee shall not be entitled to payment of any
Indemnifiable Amounts.
(b) If indemnification is
requested under Section 3(b) and
(i) it
has been adjudicated finally by a court of competent jurisdiction
that, in connection with the subject of the Proceeding out of which
the claim for indemnification has arisen, Indemnitee failed to act
(A) in good faith and (B) in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or
(ii) it
has been adjudicated finally by a court of competent jurisdiction
that Indemnitee is liable to the Company with respect to any claim,
issue or matter involved in the Proceeding out of which the claim
for indemnification has arisen, including, without limitation, a
claim that Indemnitee received an improper personal benefit, no
Indemnifiable Expenses shall be paid with respect to such claim,
issue or matter unless the court of law or another court in which
such Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Indemnifiable Expenses which such
court shall deem proper.
5.
Procedure for Payment of Indemnifiable Amounts .
(a) Indemnitee
shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably
available to Indemnitee with respect to a claim for payment of an
Indemnifiable Amount. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnitee has
requested indemnification. Notwithstanding the
foregoing, any failure of Indemnitee to provide such a request to
the Company, or to provide such a request in a timely fashion,
shall not relieve the Company of any liability that it may have to
Indemnitee unless, and to the extent that, such failure actually
and materially prejudices the interests of the Company.
(b) Upon written request
by Indemnitee for indemnification pursuant to the first sentence of
Section 5(a) hereof, the Company shall pay such
Indemnifiable Amount within 30 days of receipt of such request
unless a Negative Determination (as defined below) has been made in
good faith by the Company. As used herein a “
Determination ” means a good faith determination made
by the Company whether or not a request for indemnification
pursuant to the first sentence of Section 5(a) hereof is
being made by reason of Indemnitee’s Corporate Status, and a
“ Negative Determination ” means any such
Determination that such request is not being made by reason of
Indemnitee’s Corporate Status. A Determination
shall be promptly made (but in any event within 30 days of the
written request) in the specific case by one of the following three
methods, which shall be at the election of the Board of
Directors: (1) by a majority vote of the disinterested
Directors, even though less than a quorum, (2) by a committee of
disinterested Directors designated by a majority vote of the
Disinterested directors, even though less than a quorum, or (3) if
there are no disinterested Directors or if the disinterested
Directors so direct, by Independent Counsel in a written opinion to
the Board of Directors, a copy of which shall be delivered to the
Indemnitee. For purposes hereof, disinterested Directors
are those members of the Board of Directors of the Company who are
not parties to the action, suit or proceeding in respect of which
indemnification is sought by Indemnitee.
(c) If a
Determination is to be made by Independent Counsel pursuant to
Section 5(b) hereof, t
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