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Exhibit 10.15
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made as of September
28, 2006 by and between Interpool, Inc., a Delaware corporation
(the "Company"), and Michael S. Mathews ("Indemnitee").
RECITALS
WHEREAS, highly competent persons have become more reluctant to
serve as directors or in other capacities unless they are provided
with adequate protection through insurance and adequate
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the corporation.
WHEREAS, Article VI of the Amended and Restated By-laws of the
Company and Article XII of the Amended and Restated Certificate of
Incorporation of the Company provide for indemnification of the
officers and directors of the Company. Officers and directors may
also be entitled to indemnification pursuant to applicable
provisions of the Delaware General Corporation Law ("DGCL"). The
indemnification provisions set forth therein are not exclusive, and
contracts may be entered into between the Company and members of
the board of directors, officers and other persons with respect to
indemnification.
WHEREAS, pursuant to resolutions of the Company’s Board of
Directors adopted on August 31, 2006 Indemnitee was appointed as a
member of a Special Committee of the Board of Directors of the
Company (the "Special Committee") for the purpose of considering,
negotiating the terms of and making recommendations to the
Company’s Board of Directors with respect to potential
proposals to be made to acquire the Company (the
"Transaction");
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance
expenses on behalf of, Indemnitee to the fullest extent permitted
by applicable law, as a supplement to and in furtherance of Article
VI of the Amended and Restated By-laws of the Company and the
Amended and Restated Certificate of Incorporation of the Company,
so that Indemnitee will serve or continue to serve as a member of
the Special Committee free from undue concern that Indemnitee will
not be so indemnified.
WHEREAS, in order to induce Indemnitee to serve as a member of the
Special Committee and to accept the additional duties,
responsibilities and burdens of such service, the Company wishes to
provide Indemnitee with the compensation and indemnification
arrangements set forth herein; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to
take on additional service for or on behalf of the Company on the
condition that Indemnitee be so indemnified hereunder.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and
agree as follows:
1. Service on the Special
Committee. Indemnitee hereby agrees to serve as a
member of the Special Committee so long as such appointment by the
Board shall remain in effect. Indemnitee may, however, resign from
such position at any time and for any reason or for no reason. The
Company’s obligation to indemnify Indemnitee as set forth in
this Agreement shall continue in full force and effect
notwithstanding any such termination of appointment or
resignation.
2. Definitions. As
used in this Agreement:
(a) With the exception of Section 21
of this Agreement, references to "agent" shall mean any person who
is or was a director, officer, or employee of the Company or a
Subsidiary of the Company or other person authorized by the Company
to act for the Company, to include such 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 business operation at the
request of, for the convenience of, or to represent the interests
of the Company or a Subsidiary of the Company.
(b) "Delaware Court" shall mean the
Court of Chancery of the State of Delaware.
(c) "Disinterested Director" shall
mean a director of the Company who is not and was not a party to
the Proceeding (as defined below) in respect of which
indemnification is sought by Indemnitee.
(d) "Expenses" shall include
attorneys’ fees and costs, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other reasonable disbursements or
expenses 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. Expenses
also 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. Expenses,
however, shall not include amounts paid in settlement by Indemnitee
or the amount of judgments or fines against Indemnitee.
(e) "Independent Counsel" shall mean
a law firm or a member of a law firm 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 the 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.
(f) The term "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 (including intentional or
unintentional tort claims), criminal, administrative or
investigative nature, in which Indemnitee was, is or will be
involved as a party or otherwise by reason of the fact that
Indemnitee is or was a member of the Special Committee or is or was
a director or agent of the Company or by reason of any action (or
failure to act) taken by Indemnitee or of any action (or failure to
act) on Indemnitee’s part while acting as a member of the
Special Committee or as a director or agent of the Company, in each
case whether or not 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.
(g) The term "Subsidiary," with
respect to any person, shall mean any corporation or other entity
of which a majority of the voting power or the voting equity
securities or equity interest is owned, directly or indirectly, by
that person.
3. Indemnity in Third-Party
Proceedings. The Company shall indemnify and hold
harmless Indemnitee in accordance with the provisions of this
Section 3 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, 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
Indemnitee’s behalf in connection with such Proceeding or any
claim, issue or matter therein, 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 Company and, in the case of a
criminal Proceeding, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
4. Indemnity in Proceedings by or
in the Right of the Company. The Company shall
indemnify and hold harmless Indemnitee in accordance with the
provisions of this Section 4 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,
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with such Proceeding or any claim, issue or matter
therein, 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 Company. No indemnification for Expenses shall be
made under this Section 4 in respect of any 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 any
court in which the Proceeding was brought or the Delaware Court
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.
5. Indemnification for Expenses of
a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement,
to the extent that Indemnitee is a party to (or a participant in)
and is successful, on the merits or otherwise, in any Proceeding or
in defense of any claim, issue or matter therein, in whole or in
part, the Company shall indemnify and hold harmless Indemnitee
against all Expenses actually and reasonably incurred by Indemnitee
in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify and hold harmless
Indemnitee against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with each
successfully resolved claim, issue or matter. If the Indemnitee is
not wholly successful in such Proceeding, the Company also shall
indemnify and hold harmless Indemnitee against all Expenses
reasonably incurred in connection with a claim, issue or matter
related to any claim, issue, or matter on which the Indemnitee was
successful. For purposes of this Section 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.
6. Indemnification For Expenses of
a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of the
fact that Indemnitee is or was a member of the Special Committee, a
witness in any Proceeding to which Indemnitee is not a party,
Indemnitee shall be indemnified and held harmless against all
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
7. Additional Indemnification.
(a) Notwithstanding any limitation in
Sections 3, 4, or 5, the Company shall indemnify Indemnitee to the
fullest extent permitted by applicable law if Indemnitee is a party
to or threatened to be made a party to 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 and amounts
paid in settlement actually and reasonably incurred by Indemnitee
in connection with the Proceeding.
(b) For purposes of Section 7(a), the
meaning of the phrase "to the fullest extent permitted by
applicable law" shall include, but not be limited to:
i. to the fullest extent permitted by
the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL, 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 officers and
directors.
8. Contribution in the Event of
Joint Liability.
(a) 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 harmless Indemnitee, shall pay, in the
first instance, the entire amount incurred by Indemnitee, whether
for judgments, liabilities, fines, penalties, amounts paid or to be
paid in settlement or for Expenses, in connection with any
Proceeding without requiring Indemnitee to contribute to such
payment, and the Company hereby waives and relinquishes any right
of contribution it may have at any time against Indemnitee.
(b) The Company shall not enter into
any settlement of any Proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such Proceeding)
unless such settlement provides for a full and final release of all
claims asserted against Indemnitee.
(c) The Company hereby agrees to
fully indemnify and hold harmless Indemnitee from any claims for
contribution which may be brought by officers, directors or
employees of the Company who may be jointly liable with
Indemnitee.
9. Exclusions.
Notwithstanding any provision in this Agreement, the
Company shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually
been received by or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any
excess beyond the amount actually received under any insurance
policy, contract, agreement, other indemnity provision or
otherwise;
(b) except as otherwise provided in
Section 14(e) hereof, in connection with any Proceeding (or any
part of any Proceeding) initiated by Indemnitee, including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee
against the Company or its directors, officers, employees or other
indemnitees, unless the Board authorized the Proceeding (or any
part of any Proceeding) prior to its initiation;
(c) if such indemnification is not
lawful;
(d) if Indemnitee’s conduct
giving rise to the claim with respect to which indemnification is
requested was knowingly fraudulent, a knowing violation of law,
deliberately dishonest or in bad faith or constituted willful
misconduct;
(e) in respect of any claim based
upon or attributable to Indemnitee gaining in fact any personal
profit or advantage to which Indemnitee was not legally
entitled.
10. Advances of
Expenses; Defense of Claim.
(a) Notwithstanding any provision of
this Agreement to the contrary, and to the fullest extent not
prohibited by applicable law, the Company shall advance the
Expenses reasonably incurred by Indemnitee (or reasonably expected
by Indemnitee to be incurred by Indemnitee within three months) in
connection with any Proceeding within ten (10) days after the
receipt by the Company of a statement or statements requesting such
advances from time to time, whether prior to or after final
disposition of any Proceeding. Advances shall be unsecured and
interest free. Advances shall be made without regard to
Indemnitee’s ability to repay the Expenses and without regard
to Indemnitee’s ultimate entitlement to indemnification under
the other provisions of this Agreement. Advances shall include any
and all reasonable Expenses incurred pursuing a Proceeding to
enforce this right of advancement, including Expenses incurred
preparing and forwarding statements to the Company to support the
advances claimed. The Indemnitee shall qualify for advances, to the
fullest extent permitted by applicable law, solely upon the
execution and delivery to the Company of an undertaking providing
that the Indemnitee undertakes to repay the advance to the extent
that it is ultimately determined that Indemnitee is not entitled to
be indemnified by the Company under the provisions of this
Agreement, the Amended and Restated Certificate of Incorporation of
the Company, the Amended and Restated By-laws of the Company,
applicable law or otherwise. This Section 10(a) shall not apply to
any claim made by Indemnitee for which indemnity is excluded
pursuant to Section 9.
(b) The Company will be entitled to
participate in the Proceeding at its own expense.
(c) The Company shall not settle any
action, claim or Proceeding (in whole or in part) that would impose
any Expense, judgment, fine, penalty or limitation on the
Indemnitee without the Indemnitee’s prior written
consent.
11. Procedure for Notification and
Application for Indemnification.
(a) Indemnitee shall notify the
Company in writing promptly upon being served with any summons,
citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter that may be subject
to indemnification or advancement of Expenses covered hereunder.
The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation that it may have to the
Indemnitee under this Agreement, or otherwise.
(b) Indemnitee may deliver to the
Company a written application to indemnify and hold harmless
Indemnitee in accordance with this Agreement. Such application(s)
may be delivered from time to time and at such time(s) as
Indemnitee deems appropr
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