Exhibit 10.1
UTi WORLDWIDE INC.
INDEMNIFICATION
AGREEMENT
THIS AGREEMENT is entered into,
effective as of , 20[__] by and between UTi Worldwide Inc., a
company organized under the laws of the British Virgin Islands (the
“ Company ”), and (“ Indemnitee
”).
WHEREAS, it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS, Indemnitee is a director
and/or officer of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims currently being asserted against directors and officers of
corporations;
WHEREAS, the Articles of Association
of the Company permit the Company to indemnify and advance expenses
to its directors and officers, and the Indemnitee has been serving
and continues to serve as a director and/or officer of the Company
in part in reliance on the Company’s Articles of Association
and this Agreement; and
WHEREAS, in recognition of
Indemnitee’s need for an inducement to provide effective
services to the Company as a director and/or officer, the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to Indemnitee to the fullest extent
(whether partial or complete) permitted under law as set forth in
this Agreement, and, to the extent insurance is maintained, to
provide for the continued coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies.
NOW, THEREFORE, in consideration of
the above premises and of Indemnitee continuing to serve the
Company directly or, at its request, with another enterprise, and
intending to be legally bound hereby, the parties agree as
follows:
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(a)
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“ Board ” shall mean the
Board of Directors of the Company.
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(b)
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“ Affiliate ” shall mean any
corporation or other person or entity that directly, or indirectly
through one or more intermediaries, controls or is controlled by or
is under common control with, the person specified, including,
without limitation, with respect to the Company, any direct or
indirect subsidiary of the Company.
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(c)
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“ Change in Control ” shall
be deemed to have occurred if:
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(i) a
sale, transfer, or other disposition of all or substantially all of
the Company’s assets and properties is closed or
consummated;
(ii) any
“person”, “entity” or “group”
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act), other than the Company or any majority-owned subsidiary of
the Company, is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the combined voting power of the Company’s
then outstanding securities that have the right to vote in the
election of directors generally, provided, however, that the
following shall not constitute a “Change in Control” of
the Company:
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(a)
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any acquisition directly from the Company or any
subsidiary thereof (excluding any acquisition resulting from the
exercise of a conversion or exchange privilege in respect of
outstanding convertible or exchangeable securities); or
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(b)
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any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity
controlled by the Company.
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(iii) during
any period of two consecutive years during the term of this
Agreement, individuals who at the beginning of such period
constitute the Board cease for any reason to constitute at least a
majority thereof, unless the election of each director who was not
a director at the beginning of such period has been approved in
advance by directors representing at least two-thirds of the
directors then in office who were directors at the beginning of the
period; or
(iv) the
Company is dissolved or liquidated or a merger, reorganization, or
consolidation involving the Company is closed or consummated, other
than a merger, reorganization, or consolidation in which holders of
the combined voting power of the Company’s then outstanding
securities that have the right to vote in the election of directors
generally immediately prior to such transaction own, either
directly or indirectly, fifty percent (50%) or more of the combined
voting power of the securities entitled to vote in the election of
directors generally of the reorganized, merged or consolidated
entity (or its parent company) immediately following such
transaction.
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(d)
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“ Exchange Act ” shall mean
the Securities Exchange Act of 1934, as amended.
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(e)
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“ Expenses ” shall mean any
expense, liability or loss, including attorneys’ fees,
judgments, fines, ERISA excise taxes and penalties, amounts paid or
to be paid in settlement, any interest, assessments or other
charges imposed thereon, any federal, state, local or foreign taxes
imposed as a result of the actual or deemed receipt of any payments
under this Agreement and all other costs and obligations, paid or
incurred in connection with investigating, defending, being a
witness in, participating in (including on appeal) or preparing for
any of the foregoing in, any Proceeding relating to any
Indemnifiable Event.
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(f)
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“ Indemnifiable Event ” shall
mean any event or occurrence that takes place either prior to or
after the execution of this Agreement, related to the fact that
Indemnitee is or was a director or officer of the Company or an
Affiliate of the Company, or while a director or
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officer is or was serving at the
request of the Company or an Affiliate of the Company as a
director, officer, employee, trustee, agent or fiduciary of another
foreign or domestic corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise or was a director,
officer, employee or agent of a foreign or domestic corporation
that was a predecessor corporation of the Company or of another
enterprise at the request of such predecessor corporation, or
related to anything done or not done by Indemnitee in any such
capacity, whether or not the basis of the Proceeding is alleged
action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director,
officer, employee or agent of the Company or an Affiliate of the
Company, as described above.
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(g)
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“ Independent Counsel ” shall
mean the person or body appointed in connection with Section
3.
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(h)
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“ Proceeding ” shall mean any
threatened, pending or completed action, suit or proceeding or any
alternative dispute resolution mechanism (including an action by or
in the right of the Company or an Affiliate of the Company) or any
inquiry, hearing or investigation, whether conducted by the Company
or an Affiliate of the Company or any other party, that Indemnitee
in good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
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(i)
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“ Reviewing Party ” shall
mean the person or body appointed in accordance with Section
3.
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2.
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Agreement to Indemnify .
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(a)
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General Agreement . In the event Indemnitee was, is or becomes a
party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, a Proceeding by
reason of an Indemnifiable Event, the Company shall indemnify
Indemnitee from and against any and all Expenses to the fullest
extent permitted by law, as the same exists or may hereafter be
amended or interpreted (but in the case of any such amendment or
interpretation, only to the extent that such amendment or
interpretation permits the Company to provide broader
indemnification rights than were permitted prior thereto). The
parties hereto intend that this Agreement shall provide for
indemnification in excess of that expressly permitted by statute,
including, without limitation, any indemnification provided by the
Company’s Memorandum and Articles of Association, vote of its
members or disinterested directors or applicable law.
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(b)
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Initiation of Proceeding . Notwithstanding anything in this Agreement to
the contrary, Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with any Proceeding
initiated by Indemnitee against the Company or any director or
officer of the Company unless (i) the Company has joined in or
the Board has consented to the initiation of such Proceeding,
(ii) the Proceeding is one to enforce indemnification rights
under Section 5 or (iii) the Proceeding is instituted after a
Change in Control (other than a Change in Control approved by a
majority of the directors on the Board who were directors
immediately prior to such Change in Control) and Independent
Counsel has approved its initiation.
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(c)
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Expense Advances . If so requested by Indemnitee, the Company
shall advance (within thirty (30) days of such request) any
and all Expenses to Indemnitee (an “Expense Advance”).
The Indemnitee shall qualify for such Expense Advances upon the
execution and delivery to the Company of this Agreement which shall
constitute an undertaking providing that the Indemnitee undertakes
to repay such Expense Advances if and to the extent that it is
ultimately determined by a court of competent jurisdiction in a
final judgment, not subject to appeal, that Indemnitee is not
entitled to be indemnified by the Company. Indemnitee’s
obligation to reimburse the Company for Expense Advances shall be
unsecured and no interest shall be charged thereon. This Section
2(c) shall not apply to any claim made by Indemnitee for which
indemnity is excluded pursuant to Section 2(b) or
2(f).
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(d)
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Mandatory Indemnification
. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding
relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith,
except with respect to any portion of the proceeding relating to a
non-Indemnifiable Event. For purposes of this Agreement and without
limiting the foregoing, if any Proceeding is disposed of, on the
merits or otherwise (including a disposition without prejudice),
without (i) the disposition being adverse to Indemnitee, (ii) an
adjudication that Indemnitee was liable to the Company, (iii) a
plea of guilty or nolo contendere by Indemnitee, (iv) an
adjudication that Indemnitee did not act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, and (v) with respect to any
criminal proceeding, an adjudication that Indemnitee had reasonable
cause to believe Indemnitee’s conduct was unlawful,
Indemnitee shall be considered for the purposes hereof to have been
wholly successful with respect thereto.
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(e)
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Partial Indemnification . If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with any Proceeding,
or in defense of any claim, issue or matter therein, and any appeal
therefrom but not, however, for the total amount thereof, the
Company shall indemnify Indemnitee for the portion of such Expenses
to which Indemnitee is entitled.
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(f)
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Prohibited Indemnification
. No indemnification pursuant to
this Agreement shall be paid by the Company on account of any
Proceeding in which a final judgment is rendered against Indemnitee
or Indemnitee enters into a settlement, in each case (i) for
an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Exchange Act or similar provisions of
any federal, state or local laws; (ii) for which payment has
actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect
to any excess beyond the amount paid under any insurance policy or
other indemnity provision; (iii) for any Expenses incurred by
Indemnitee in connection with any Proceeding to enforce
indemnification rights or insurance recovery under Section 5
where it has been ultimately determined that Indemnitee is not
entitled to such indemnification or insurance recovery;
(iv) for any Expenses incurred by
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Indemnitee in connection with any
Proceeding to enforce against Indemnitee non-compete or
non-disclosure agreements or the non-compete or non-disclosure
provisions of any employment, consulting or other similar agreement
the Indemnitee may be a party to with the Company or any of its
Affiliates; or (v) for which payment is prohibited by law.
Notwithstanding anything to the contrary stated or implied in this
Section 2(f), indemnification pursuant to this Agreement relating
to any Proceeding against Indemnitee for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the
Exchange Act or similar provisions of any federal, state or local
laws shall not be prohibited if Indemnitee ultimately establishes
in any Proceeding that no recovery of such profits from Indemnitee
is permitted under Section 16(b) of the Exchange Act or
similar provisions of any federal, state or local laws.
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3.
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Reviewing Party . Prior to any Change in Control, the Reviewing
Party shall be any appropriate person or body consisting of a
member or members of the Board or any other person or body
appointed by the Board who is not a party to the particular
Proceeding with respect to which Indemnitee is seeking i
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