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Exhibit 10.2
FORM OF INDEMNIFICATION
AGREEMENT
This Indemnification Agreement, dated as of
, 2006, is made by and
between Saia, Inc., a Delaware corporation (the "Corporation") and
(the "Indemnitee").
RECITALS
A. The Corporation recognizes that competent and
experienced persons are increasingly reluctant to serve or to
continue to serve as directors or officers of corporations unless
they are protected by comprehensive liability insurance or
indemnification, or both, due to increased exposure to litigation
costs and risks resulting from their service to such corporations,
and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and
officers;
B. The statutes and judicial decisions regarding the duties
of directors and officers are often difficult to apply, ambiguous,
or conflicting, and therefore fail to provide such directors and
officers with adequate, reliable knowledge of legal risks to which
they are exposed or information regarding the proper course of
action to take;
C. The Corporation and Indemnitee recognize that plaintiffs
often seek damages in such large amounts and the costs of
litigation may be so enormous (whether or not the case is
meritorious), that the defense and/or settlement of such litigation
is often beyond the personal resources of directors and
officers;
D. The Corporation believes that it is unfair for its
directors and officers to assume the risk of huge judgments and
other expenses which may occur in cases in which the director or
officer received no personal profit and in cases where the director
or officer was not culpable;
E. The Corporation, after reasonable investigation, has
determined that the liability insurance coverage presently
available to the Corporation may be inadequate in certain
circumstances to cover all possible exposure for which Indemnitee
should be protected. The Corporation believes that the interests of
the Corporation and its stockholders would best be served by a
combination of such insurance and the indemnification by the
Corporation of the directors and officers of the Corporation;
F. The Corporation’s Amended and Restated Certificate
of Incorporation requires the Corporation to indemnify its
directors and officers to the fullest extent permitted by the
Delaware General Corporation Law (the "DGCL"). The Restated
Certificate of Incorporation expressly provides that the
indemnification provisions set forth therein are not exclusive, and
contemplate that contracts may be entered into between the
Corporation and its directors and officers with respect to
indemnification;
G. Section 145 of the DGCL ("Section 145"), under
which the Corporation is organized, empowers the Corporation to
indemnify its officers, directors, employees and agents by
agreement and to indemnify persons who serve, at the request of the
Corporation, as the directors, officers, employees or agents of
other corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not exclusive;
H. The Board of Directors has determined that contractual
indemnification as set forth herein is not only reasonable and
prudent but also promotes the best interests of the Corporation and
its stockholders;
I. The Corporation desires and has requested Indemnitee to
serve or continue to serve as a director or officer of the
Corporation and/or one or more subsidiaries or affiliates of the
Corporation free from undue concern for unwarranted claims for
damages arising out of or related to such services to the
Corporation and/or one or more subsidiaries or affiliates of the
Corporation; and
J. Indemnitee is willing to serve, continue to serve or to
provide additional service for or on behalf of the Corporation on
the condition that he or she is furnished the indemnity provided
for herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. Generally . To the fullest extent
permitted by the laws of the State of Delaware:
(a) The Corporation shall indemnify Indemnitee if
Indemnitee was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason
of the fact that Indemnitee is or was or has agreed to serve at the
request of the Corporation as a director, officer, employee or
agent of the Corporation, or while serving as a director or officer
of the Corporation, is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or
agent (which, for purposes hereof, shall include a trustee, partner
or manager or similar capacity) of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, or by reason of any action alleged to have been taken
or omitted in such capacity.
(b) The indemnification provided by this Section 1
shall be from and against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with such action, suit or proceeding and any appeal
therefrom, but shall only be provided if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with
respect to any criminal action, suit or proceeding, had no
reasonable cause to believe Indemnitee’s conduct was
unlawful.
(c) Notwithstanding the foregoing provisions of this
Section 1, in the case of any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Corporation, or
while serving as a director or officer of the Corporation, is or
was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Corporation unless, and only
to the extent that, the Delaware Court of Chancery or the court in
which such action or suit 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 expenses which the
Delaware Court of Chancery or such other court shall deem
proper.
(d) The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
Section 2. Successful Defense; Partial
Indemnification . To the extent that Indemnitee has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Section 1 hereof or in
defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred in connection therewith. For
purposes of this Agreement and without limiting the foregoing, if
any action, suit or 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 Corporation,
(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 Corporation, 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.
If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Corporation for some or a portion of the
expenses (including attorneys’ fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with any
action, suit, proceeding or investigation, or in defense of any
claim, issue or matter therein, and any appeal therefrom but not,
however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such expenses
(including attorneys’ fees), judgments, fines or amounts paid
in settlement to which Indemnitee is entitled.
Section 3. Determination That Indemnification Is
Proper . Any indemnification hereunder shall (unless otherwise
ordered by a court) be made by the Corporation unless a
determination is made that indemnification of such person is not
proper in the circumstances because he or she has not met the
applicable standard of conduct set forth in Section 1(b) hereof.
Any such determination shall be made (i) by a majority vote of
the directors who are not parties to the action, suit or proceeding
in question ("disinterested directors"), even if less than a
quorum, (ii) by a majority vote of a committee of
disinterested directors designated by majority vote of
disinterested directors, even if less than a quorum, (iii) by
a majority vote of a quorum of the outstanding shares of stock of
all classes entitled to vote on the matter, voting as a single
class, which quorum shall consist of stockholders who are not at
that time parties to the action, suit or proceeding in question,
(iv) by independent legal counsel, or (v) by a court of
competent jurisdiction.
Section 4. Advance Payment of Expenses; Notification and
Defense of Claim .
(a) Expenses (including attorneys’ fees) incurred by
Indemnitee in defending a threatened or pending civil, criminal,
administrative or investigative action, suit or proceeding, or in
connection with an enforcement action pursuant to
Section 5(b), shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding within
thirty (30) days after receipt by the Corporation of
(i) a statement or statements from Indemnitee requesting such
advance or advances from time to time, and (ii) an undertaking
by or on behalf of Indemnitee to repay such amount or amounts, only
if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Corporation as
authorized by this Agreement or otherwise. Such undertaking shall
be accepted without reference to the financial ability of
Indemnitee to make such repayment. Advances shall be unsecured and
interest-free.
(b) Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee shall,
if a claim thereof is to be made against the Corporation hereunder,
notify the Corporation of the commencement thereof. The failure to
promptly notify the Corporation of the commencement of the action,
suit or proceeding, or Indemnitee’s request for
indemnification, will not relieve the Corporation from any
liability that it may have to Indemnitee hereunder, except to the
extent the Corporation is prejudiced in its defense of such action,
suit or proceeding as a result of such failure.
(c) In the event the Corporation shall be obligated to pay
the expenses of Indemnitee with respect to an action, suit or
proceeding, as provided in this Agreement, the Corporation, if
appropriate, shall be entitled to assume the defense of such
action, suit or proceeding, with counsel reasonably acceptable to
Indemnitee, upon the delivery to Indemnitee of written notice of
its election to do so. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the
Corporation, the Corporation will not be liable to Indemnitee under
this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same action, suit or proceeding,
provided that (1) Indemnitee shall have the right to employ
Indemnitee’s own counsel in such action, suit or proceeding
at Indemnitee’s expense and (2) if (i) the employment of
counsel by Indemnitee has been previously authorized in writing by
the Corporation, (ii) counsel to the Corporation shall have
reasonably concluded that there may be a conflict of interest or
position, or reasonably believes that a conflict is likely to
arise, on any significant issue between the Corporation and
Indemnitee in the conduct of any such defense or (iii) the
Corporation shall not, in fact, have employed counsel to assume the
defense of such action, suit or proceeding, then the fees and
expenses of Indemnitee’s counsel shall be at the expense of
the Corporation, except as otherwise expressly provided by this
Agreement. The Corporation shall not be entitled, without the
consent of Indemnitee, to assume the defense of any claim brought
by or in the right of the Corporation or as to which counsel for
the Corporation shall have reasonably made the conclusion provided
for in clause (ii) above.
(d) Notwithstanding any other provision of this Agreement
to the contrary, to the extent that Indemnitee is, by reason of
Indemnitee’s corporate status with respect to the Corporation
or any corporation, partnership, joint venture, trust, employee
benefit
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