INDEMNIFICATION
AGREEMENT
AMERICAN COMMERCIAL LINES
INC.
INDEMNIFICATION
AGREEMENT
INDEMNIFICATION
AGREEMENT (this “Agreement”), dated as of {DATE}
, by and between American Commercial Lines Inc., a Delaware
corporation (the “Company”), and {NAME} , a
natural person (“Indemnitee”).
WHEREAS ,
highly competent individuals have become more reluctant to serve
publicly-traded corporations as directors, officers or in other
capacities unless they are provided with adequate protection
through insurance or adequate indemnification against risks of
claims and actions against them arising out of their services to
and activities on behalf of such corporations;
WHEREAS ,
directors and officers are increasingly being subjected to
expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only
against the corporation itself;
WHEREAS ,
the Board of Directors of the Company (the “ Board
”) recognizes the limitations on the protection provided by
liability insurance and the uncertainties as to the scope and level
of such coverage that may be available in the future;
WHEREAS ,
the Board recognizes the limitations on the protection provided by
existing indemnification arrangements pursuant to the
Company’s certificate of incorporation (the “
Charter ”) and amended and restated bylaws (the
“ Bylaws ”) and the uncertainties as to its
availability in any particular situation;
WHEREAS ,
the Board believes that, in light of the limitations and
uncertainties in respect of the protection provided by the
Company’s liability insurance and existing indemnification
arrangements and the impact these uncertainties may have on the
Company’s ability to attract and retain qualified individuals
to serve or continue to serve the Company as directors, officers or
in other capacities, the Company should act to assure such
individuals that there will be increased certainty with respect to
such protection in the future;
WHEREAS ,
it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance
expenses on behalf of, such individuals to the fullest extent
permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they may not be
adequately protected;
WHEREAS ,
Indemnitee is concerned that the protection provided under the
Company’s liability insurance and existing indemnification
arrangements may not be adequate and may not be willing to serve or
continue to serve the Company as a director, an officer or in any
other capacity without greater certainty concerning such
protection, and the Company desires
Indemnitee to
serve or continue to serve the Company as a director, an officer or
in another capacity and is willing to provide such greater
certainty; and
WHEREAS ,
this Agreement is a supplement to, and in furtherance of, the
Charter and the Bylaws and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee
thereunder.
NOW,
THEREFORE , in consideration of the premises, covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the Company
and Indemnitee covenant and agree as follows:
1.1 For
purposes of this Agreement:
(a) The term
“ agent ” shall mean any person who is or was a
director, an officer or an employee of the Company or a subsidiary
of the Company or any other person authorized by the Company to act
for or on behalf of the Company, including any person serving in
such capacity as a director, officer, employee, fiduciary or other
official of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise at the request
of, for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company.
(b) “
Agreement ” shall have the meaning ascribed to such
term in the Preamble.
(c) “
Beneficial Owner ” and “ Beneficial
Ownership ” shall have the meanings ascribed to such
terms in Rule 13d-3 promulgated under the Exchange Act as in
effect on the date hereof.
(d) “
Board ” shall have the meaning ascribed to such term
in the Recitals.
(e) “
Bylaws ” shall have the meaning ascribed to such term
in the Recitals.
(f) “
Change in Control ” shall mean the occurrence of any
of the following events, each of which shall be determined
independently of the others:
(i) any Person,
other than a holder of at least 10% of the outstanding voting power
of the Company as of the date hereof, becomes the Beneficial Owner
of a majority of the stock of the Company entitled to vote in the
election of directors of the Company;
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(ii) Continuing
Directors cease to constitute a majority of the members of the
Board;
(iii) the
stockholders of the Company adopt and consummate a plan of complete
or substantial liquidation or an agreement providing for the
distribution of all or substantially all of the assets of the
Company is entered into;
(iv) the Company
is a party to a merger, consolidation, other form of business
combination or a sale of all or substantially all of its assets,
with an unaffiliated third party, unless the business of the
Company following consummation of such merger, consolidation or
other business combination is continued following any such
transaction by a resulting entity (which may be, but need not be,
the Company) and the stockholders of the Company immediately prior
to such transaction hold, directly or indirectly, at least a
majority of the voting power of the resulting entity;
provided , however , that a merger or consolidation
effected to implement a recapitalization or similar transaction of
the Company shall not constitute a Change in Control; or
(v) there is a
Change in Control of the Company of a nature that is reported in
response to item 5.01 of Current Report on Form 8-K or any similar
item, schedule or form under the Exchange Act, as in effect at the
time of such change, whether or not the Company is then subject to
such reporting requirements;
provided , however , that for purposes of this
Agreement a Change in Control shall not be deemed to occur if the
Person or Persons deemed to have acquired control is or are a
holder of at least 10% of the outstanding voting power of the
Company as of the date hereof.
(g) “
Charter ” shall have the meaning ascribed to such term
in the Recitals.
(h) “
Company ” shall have the meaning ascribed to such term
in the Preamble.
(i) “
Continuing Directors ” shall mean the members of the
Board on the date hereof, provided , that any individual
becoming a member of the Board subsequent to the date hereof whose
election or nomination for election was supported by at least a
majority of the directors who then comprised the Continuing
Directors shall be considered to be a Continuing
Director.
(j) “
Corporate Status ” describes the status of a person
who is or was a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent of the Company or of
any other Enterprise which such person is or was serving at the
request of the Company.
(k) “
D&O Liability Insurance ” shall have the meaning
ascribed to such term in Section 16.1 .
(l) “
Delaware Court ” shall mean the Court of Chancery of
the State of Delaware.
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(m) “
DGCL ” shall mean the General Corporation Law of the
State of Delaware.
(n) “
Disinterested Director ” shall mean a director of the
Company who is not and was not a party to the Proceeding in respect
of which indemnification or advancement of Expenses is sought by
Indemnitee.
(o) “
Enterprise ” shall mean the Company and any other
corporation, constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger to which the
Company is a party, limited liability company, partnership, joint
venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a
director, officer, trustee, general partner, managing member,
fiduciary, employee or agent.
(p) “
Exchange Act ” shall mean the Securities Exchange Act
of 1934, as amended.
(q) “
Expenses ” means all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage and delivery service fees and all
other disbursements or expenses) incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. For avoidance of doubt, Expenses
shall include expenses incurred in connection with any appeal
resulting from any Proceeding including, without limitation, the
premium, security for and other costs relating to any cost bond,
supersedeas bond or other appeal bond or its equivalent;
provided , however , that Expenses shall not include
amounts paid in settlement by Indemnitee or the amount of judgments
or fines against Indemnitee.
(r) “
Indemnification Arrangements ” shall have the meaning
ascribed to such term in Section 17.2 .
(s) “
Indemnitee ” shall have the meaning ascribed to such
term in the Preamble.
(t) “
Independent Counsel ” shall mean a law firm, or a
member of a law firm, that is experienced in matters of corporate
law and neither currently is, nor in the three years preceding its
selection or appointment hereunder has been, retained to represent
(i) the Company or Indemnitee in any matter material to either
such party ( provided , that acting as an Independent
Counsel under this Agreement or in a similar capacity with respect
to any other indemnification arrangements between the Company and
its present or former directors or officers shall not be deemed a
representation of the Company or Indemnitee) or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
or advancement of expenses 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.
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(u) The “
Nominating and Governance Committee ” shall mean the
Nominating and Governance Committee of the Board.
(v) The term
“ Person ” shall have the meaning ascribed to
such term in Sections 13(d) and 14(d) of the Exchange Act as in
effect on the date hereof; provided , however , that
the term “Person” shall exclude: (i) the Company;
(ii) any Subsidiaries of the Company; (iii) any
employment benefit plan of the Company or of a Subsidiary of the
Company or of any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company; and (iv) any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or of a Subsidiary of the Company or of
a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their
ownership of stock of the Company.
(w) A “
Potential Change in Control ” shall be deemed to have
occurred if: (i) the Company enters into an agreement or
arrangement, the consummation of which would result in the
occurrence of a Change in Control, (ii) any Person or the
Company publicly announces an intention to take or consider taking
actions which, if consummated, would constitute a Change in Control
or (iii) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has
occurred.
(x) “
Proceeding ” shall include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed proceeding, whether brought
in the right of the Company or otherwise, and whether of a civil,
criminal, administrative or investigative nature (including any
appeal therefrom), in which Indemnitee was, is or may be involved
as a party or otherwise by reason of the fact of his or her
Corporate Status or by reason of any action (or failure to act)
taken by him or her or of any action (or failure to act) on his or
her part while serving in any Corporate Status (in each case,
regardless of whether serving in such capacity at the time any
liability or expense is incurred for which indemnification,
reimbursement or advancement of expenses can be provided under this
Agreement), or any inquiry or investigation that Indemnitee in good
faith believes might lead to the institution of any such action,
suit or other proceeding.
(y) References to
“ serving at the request of the Company ” shall
include any service as a director, officer, employee, agent or
fiduciary of the Company or any other Enterprise which imposes
duties on, or involves services by, such director, officer,
employee, agent or fiduciary with respect to an employee benefit
plan, its participants or beneficiaries; and if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in
the best interests of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in
a manner “ not opposed to the best interests of the
Company ” as referred to in this Agreement.
(z) The term
“ Subsidiary ”, with respect to any Person,
shall mean any corporation or other entity of which a majority of
the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by such Person.
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(aa) The phrase
“ to the fullest extent permitted by law ” shall
mean (i) to the fullest extent permitted by the DGCL as in
effect on the date of this Agreement and (ii) to the fullest
extent authorized or permitted by any amendments to or replacements
of the DGCL adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its directors and
officers.
(bb) “
Trustee ” shall have the meaning ascribed to such term
in Section 15.1 .
2.1
Indemnitee agrees to serve or continue to serve in his or her
current capacity or capacities as a director, officer, employee,
agent or fiduciary of the Company. Indemnitee may also serve, as
the Company may reasonably request from time to time, as a
director, officer, employee, agent or fiduciary of any other
corporation, partnership, limited liability company, association,
joint venture, trust, employee benefit plan or other Enterprise in
which the Company has an interest. Indemnitee and the Company each
acknowledge that they have entered into this Agreement as a means
of inducing Indemnitee to serve or continue to serve the Company in
such capacities. Indemnitee may at any time and for any reason
resign from such position or positions (subject to any other
contractual obligation or any obligation imposed by operation of
law). The Company shall have no obligation under this Agreement to
continue Indemnitee in any such position for any period of time and
shall not be precluded by the provisions of this Agreement from
removing Indemnitee from any such position at any time.
3.1 The
Company shall indemnify and hold Indemnitee harmless in accordance
with the provisions of this Section 3.1 if Indemnitee
was, is, or is threatened to be made, a party to or a participant
(as a witness or otherwise) in any Proceeding, other than a
Proceeding by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 3.1 , Indemnitee
shall be indemnified against all Expenses, judgments, liabilities,
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 Expenses, judgments, fines,
penalties and amounts paid in settlement) actually and reasonably
incurred by Indemnitee or on his or her behalf in connection with
such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company and, in the case of a criminal action or Proceeding,
had no reasonable cause to believe that his or her conduct was
unlawful.
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INDEMNITY IN PROCEEDINGS BY OR
IN THE RIGHT OF THE COMPANY
4.1 The
Company shall indemnify and hold Indemnitee harmless in accordance
with the provisions of this Section 4.1 if Indemnitee
was, is, or is threatened to be made, a party to or a participant
(as a witness or otherwise) in any Proceeding by or in the right of
the Company to procure a judgment in its favor. Pursuant to this
Section 4.1 , Indemnitee shall be indemnified against
all Expenses actually and reasonably incurred by Indemnitee or on
his or her behalf in connection with such Proceeding or any claim,
issue or matter therein, if Indemnitee acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
best interests of the Company. No indemnification, hold harmless or
exoneration for Expenses shall be made under this
Section 4.1 in respect of any Proceeding, claim, issue
or matter as to which Indemnitee shall have been finally adjudged
by a court to be liable to the Company, unless and only to the
extent that the Delaware Court (or any court hearing appeals
therefrom) 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
indemnification, to be held harmless or to exoneration.
INDEMNIFICATION FOR EXPENSES
OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL
5.1 Any
other provisions of this Agreement notwithstanding, to the extent
that Indemnitee is a party to (or a participant in) and is
successful, on the merits or otherwise, in the defense of any
Proceeding or any claim, issue or matter therein, the Company shall
indemnify and hold Indemnitee harmless against all Expenses
actually and reasonably incurred by him or her or on his or her
behalf in connection therewith. If Indemnitee is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in any Proceeding, the Company shall indemnify
and hold Indemnitee harmless against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in
connection with each successfully resolved claim, issue or matter
and any claim, issue or matter related to each such successfully
resolved claim, issue or matter. For purposes of this
Section 5.1 and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as
to such claim, issue or matter.
ARTICLE VI
INDEMNIFICATION FOR EXPENSES OF A WITNESS
6.1 Any
other provision of this Agreement notwithstanding, to the extent
that Indemnitee is, by reason of his or her Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, he or
she shall be indemnified and held harmless against all Expenses
actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.
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ADDITIONAL INDEMNIFICATION,
HOLD HARMLESS AND EXONERATION RIGHTS
7.1 In
addition to, and without regard to any limitations on, the
indemnification provided for in Sections 3.1 ,
4.1 or 5.1 , the Company shall indemnify and hold
Indemnitee harmless if Indemnitee is, or is threatened to be made,
a party to or participant in any Proceeding (including a Proceeding
by or in the right of the Company to procure a judgment in its
favor) against all Expenses, 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 Expenses, judgments, fines, penalties and amounts paid in
settlement) actually and reasonably incurred by Indemnitee or on
his or her behalf in connection with such Proceeding. The only
limitation that shall exist upon the Company’s obligations
pursuant to this Agreement shall be that the Company shall not be
obligated to make any payment to Indemnitee that is finally
determined (under the procedures, and subject to the presumptions,
set forth in Articles XII and XIII ) to be
unlawful.
CONTRIBUTION IN THE EVENT OF
JOINT LIABILITY
8.1
Whether or not the indemnification provided in
Sections 3.1 , 4.1 , 5.1 and 7.1
hereof is available, if, for any reason, Indemnitee shall be
required to pay, in connection with any Proceeding in which the
Company is jointly liable with Indemnitee, all or any portion of
any judgments, liabilities, fines, penalties, amounts to be paid in
settlement and/or for Expenses, the Company shall contribute to the
amount actually and reasonably incurred and paid or payable by
Indemnitee, whether for judgments, liabilities, fines, penalties,
amounts paid or to be paid in settlement and/or for Expenses in
proportion to the relative benefits received by the Company and all
agents of the Company, other than Indemnitee, who are jointly
liable with Indemnitee, on the one hand, and Indemnitee, on the
other hand, from the transaction or transactions from which such
Proceeding arose; provided , however , that the
proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Company and all agents of
the Company other than Indemnitee who are jointly liable with
Indemnitee, on the one hand, and Indemnitee, on the other hand, in
connection with the events that resulted in such judgments,
liabilities, fines, penalties, amounts paid or to be paid in
settlement and/or for Expenses, as well as any other equitable
considerations which applicable law may require to be considered.
The relative fault of the Company and all agents of the Company,
other than Indemnitee, who are jointly liable with Indemnitee, on
the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which
their actions were motivated by intent to gain personal profit or
advantage, the degree to which their liability is primary or
secondary and the degree to which their conduct is active or
passive. The Company shall not enter into any settlement in respect
of any Proceeding in which the Company is jointly liable with
Indemnitee unless such settlement provides for a full and final
release of all claims asserted against Indemnitee.
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8.2 The
Company shall indemnify and hold Indemnitee harmless from any
claims of contribution which may be brought by agents of the
Company, other than Indemnitee, who may be jointly liable with
Indemnitee in respect of any Proceeding.
8.3 To the
fullest extent permissible under applicable law, if the
indemnification and hold harmless rights provided for in this
Agreement are unavailable to Indemnitee in whole or in part for any
reason whatsoever, the Company, in lieu of indemnifying and holding
Indemnitee harmless, shall contribute to the amount incurred by
Indemnitee, whether for judgments, liabilities, fines, penalties,
amounts paid or to be paid in settlement and/or for Expenses, in
connection with any Proceeding, claim, matter or issue relating to
an indemnifiable event under this Agreement, in such proportion as
is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding;
and/or (ii) the relative fault of the Company (and its agents,
other than Indemnitee) and Indemnitee in connection with such
event(s) and/or transaction(s).
9.1
Notwithstanding any provision in this Agreement, the Company shall
not be obligated under this Agreement to make any indemnification,
cont
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