INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (“ Agreement ”) is
made as of this
day of
, 200_, by and between General Finance Corporation, a Delaware
corporation (the “ Company ”), and
(“ Indemnitee ”), with reference to the
following facts:
A. Indemnitee
is a director and/or officer of the Company.
B. The
Company recognizes that the vagaries of public policy and the
interpretation of ambiguous statutes, regulations and court
opinions are too uncertain to provide the Company’s officers
and directors with adequate or reliable advance knowledge or
guidance with respect to the legal risks and potential liabilities
to which they may become personally exposed as a result of
performing their duties in good faith as an Agent (as defined
below) for the Company Group (as defined below).
C. The
Company recognizes that the cost to a director or officer of
defending against lawsuits resulting from the performance of his or
her duties in good faith for the Company Group, whether or not
meritorious, is typically beyond the financial resources of most
officers and directors of the Company.
D. The
Company recognizes that the legal risks and potential liabilities,
and the very threat thereof, associated with lawsuits filed against
the officers and directors of the Company Group, and the resultant
substantial time, expense, harassment and anxiety spent and endured
in defending against such lawsuits, bears no reasonable or logical
relationship to the amount of compensation received by such
officers and directors, and thus poses a significant deterrent to
and results in increased reluctance on the part of experienced and
capable individuals to serve as an Agent of the Company
Group.
E. In order
to induce and encourage highly experienced and capable persons such
as Indemnitee to serve as an Agent of the Company Group, secure in
the knowledge that certain expenses, costs and liabilities incurred
by them in their defense of such litigation will be borne by the
Company and that they will receive the maximum protection against
such risks and liabilities as may be afforded by law, the Board (as
defined below) has determined that entering into this Agreement
with Indemnitee is not only reasonable and prudent but necessary to
promote and ensure the best interests of the Company and the
Company’s shareholders.
F. The
Company and Indemnitee desire that the indemnification rights
provided by this Agreement shall be supplemental to, and shall not
supersede or replace, any indemnification rights which may be
provided by other sources, including without limitation any
indemnification which may be provided by the Company pursuant to
its bylaws, by contract or by applicable law.
NOW, THEREFORE,
with reference to the foregoing facts, the Company and Indemnitee
hereby agree as follows:
1.
Agreement to Serve. Indemnitee agrees to serve and/or
continue to serve as a director and/or officer of one or more
members of the Company Group in the same capacity or capacities in
which Indemnitee is serving on the date hereof for at least
30 days from the date
- 1 -
hereof;
provided , however , that nothing contained in this
Agreement is intended to or shall create any obligation of any
member of the Company Group to continue to retain Indemnitee as an
Agent or to maintain Indemnitee as a director during such
period.
The following
terms shall have the meanings set forth below:
“
Action ” shall mean any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative.
“
Agent ” shall mean, with respect to Indemnitee,
Indemnitee in his or her capacity as an officer, director, employee
or agent of the Company Group and in his or her capacity as an
officer, director, employee or agent of any other Entity for which
he or she is serving in such capacity or capacities as the request
of the Company. For purposes of this Agreement, if Indemnitee
provides service as an officer, director, employee or agent of any
Entity controlled by the Company or any employee benefit plan of
the Company, then Indemnitee shall be deemed to serve at the
request of the Company.
“
Board ” shall mean the Board of Directors of the
Company.
“ Company
Group ” shall mean the Company, each subsidiary and
parent of the Company, and any successor, resulting or surviving
corporation of the Company or any subsidiary or parent of such
successor, resulting or surviving corporation.
For purposes of
this Agreement, references to the “ Company Group
” shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its Agents, so that if Indemnitee is or was
an Agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as an Agent of another
corporation, partnership, joint venture, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had
continued.
“
Entity ” shall mean any corporation, limited liability
company, partnership, joint venture, trust or other enterprise, and
employee benefit plan.
“
Expenses ” shall include costs and expenses, including
without limitation attorneys’ fees.
“
Fines ” shall include, in addition to fines, any
excise taxes assessed on Indemnitee with respect to an employee
benefit plan.
For purposes of
this Agreement, if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner “in the
best interests of the Company” as referred to in this
Agreement.
- 2 -
3.1
Third Party Proceedings . The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be
made a party to any Action (other than an Action by or in the right
of the Company) by reason of the fact that Indemnitee is or was an
Agent against Expenses, judgments, Fines, settlements and other
amounts actually and reasonably incurred by Indemnitee in
connection with such Action if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in the best
interests of the Company and its shareholders and, with respect to
any criminal Action, had no reasonable cause to believe
Indemnitee’s conduct was unlawful. The termination of any
Action 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
the best interest of the Company, or with respect to any criminal
Action, had reasonable cause to believe that Indemnitee’s
conduct was unlawful.
3.2
Proceedings By or in the Right of the Company . The Company
shall indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any Action by or in the right of
the Company to procure a judgment in its favor by reason of the
fact that Indemnitee is or was an Agent against Expenses,
judgments, Fines, settlements and other amounts actually and
reasonably incurred by Indemnitee in connection with the Action if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the Company and
its shareholders.
3.3
Mandatory Payment of Expenses . To the extent that
Indemnitee has been successful on the merits or otherwise in
defense of any Action referred to in Section 3.1 or 3.2 or the
defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against Expenses actually and reasonably incurred by
Indemnitee in connection therewith.
3.4
Approval for Settlements . The Company shall not be
obligated to indemnify Indemnitee for any settlements entered into
by Indemnitee with respect to any Action unless the Company
approves such settlement or the Company unreasonably withholds such
approval following not less than 10 days prior written notice
of the proposed settlement.
4.
Expenses; Indemnification Procedure.
4.1
Advancement of Expenses . The Company shall advance all
Expenses actually and reasonably incurred by Indemnitee in
connection with the investigation, defense, or appeal of any Action
referenced in Section 3 hereof. Indemnitee hereby undertakes
to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that Ind
|
