AGREEMENT, made
and entered into as of
, 20 , between GATX
Corporation , a corporation organized and existing under the
laws of the State of New York, (the “Corporation”), and
(“Indemnitee”).
WHEREAS, it is
essential to the Corporation to retain and attract as Directors of
the Corporation the most capable persons available; and
WHEREAS, the
Corporation has requested that Indemnitee serve as a Director of
the Corporation; and
WHEREAS, both the
Corporation and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors of
companies in today’s environment; and
WHEREAS, the
Corporation’s By-Laws (the “By-Laws”) provide
that the Corporation will indemnify its Directors to the fullest
extent permitted by law and will advance expenses in connection
therewith, and Indemnitee’s willingness to serve as a
Director of the Corporation is based in part on Indemnitee’s
reliance on such provisions; and
WHEREAS, in
recognition of Indemnitee’s need for substantial protection
against personal liability in order to enhance Indemnitee’s
service to the Corporation in an effective manner, and
Indemnitee’s reliance on the aforesaid provisions of the
By-Laws, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such
provisions will be available to Indemnitee regardless of, among
other things, any amendment to or revocation of such provisions or
any change in the composition of the Corporation’s Board of
Directors or any acquisition or business combination transaction
relating to the Corporation, the Corporation wishes to provide in
this Agreement for the indemnification and advancement of expenses
to Indemnitee as set forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements herein set forth, the
parties hereto hereby agree as follows:
(a) To the
fullest extent permitted by law (and regardless of any future
By-Law provision to the contrary), the Corporation shall indemnify
Indemnitee in the event Indemnitee is made, or threatened to be
made, a party or a witness, or is otherwise a participant in or to,
an action, investigation or proceeding, whether civil,
administrative or criminal (including but not limited to an action,
investigation or proceeding by or in the right of the Corporation
or by or in the right of any other corporation or business entity
of any type or kind, domestic or foreign, which any Director of the
Corporation served in any capacity at the request of the
Corporation),
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by reason of
the fact that Indemnitee, or Indemnitee’s testator or
intestate is or was a Director of the Corporation (or served any
other corporation or business entity of any type or kind, domestic
or foreign, in any capacity at the request of the Corporation). The
foregoing indemnification shall be from and against all judgments,
fines, penalties, amounts paid in settlement and reasonable
expenses, including attorneys’ fees, actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection with such action, suit, investigation or proceeding, or
any appeal therein. The Corporation shall pay, in advance of final
disposition of any such action, suit, investigation or proceeding,
expenses (including attorneys’ fees) incurred by Indemnitee
in defending or otherwise responding to such action or proceeding
upon receipt of an undertaking by or on behalf of Indemnitee to
repay such amount consistent with provisions of applicable law,
including but not limited to Section 725(a) of the New York
Business Corporation Law, as amended. For purposes of this
Agreement, references to “serving at the request of the
Corporation” shall include any service as a Director of the
Corporation which imposes duties on, or involves services by, such
Director with respect to an employee benefit plan or its
participants or beneficiaries, including but not limited to service
as a trustee or administrator of any such benefit plan.
(b) Notwithstanding
anything to the contrary in Section 1(a), the Corporation
shall indemnify Indemnitee in any action, suit or proceeding
initiated by Indemnitee only if Indemnitee acted with the
authorization of the Corporation in initiating that action, suit
investigation or proceeding; provided, however, that any
action or proceeding brought under Section 9 shall not be
subject to this Section 1(b), and it is expressly agreed that
the Corporation shall bear any and all fees and expenses incurred
by Indemnitee in seeking to enforce this agreement.
(c) Indemnitee
shall be presumed to be entitled to indemnification for matters
covered in this Agreement. The burden of proof of establishing that
Indemnitee is not entitled to indemnification shall be on the
Corporation.
(d) Neither
the Corporation nor Indemnitee shall unreasonably withhold their
consent to any proposed settlement of an indemnified claim,
provided, however, that no party shall be required to admit
liability in connection with any proposed settlement and Indemnitee
shall not be required to bear any cost or expense in connection
with any proposed settlement of an indemnifiable claim.
2.
Partial Indemnity; Successful Defense.
(a) If
Indemnitee is entitled under any provisions of this Agreement to
indemnification by the Corporation for some or a portion of the
expenses, judgments, fines, taxes, penalties and amounts paid in
settlement but not for the total amount thereof, the Corporation
shall indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
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(b) To the
extent that Indemnitee has been successful on the merits or
otherwise in defense or settlement of any action, suit,
investigation or proceeding or in defense of any issue or matter
therein, including, without limitation, dismissal without
prejudice, Indemnitee shall be indemnified against any and all
expenses (including but not limited to attorneys’ fees),
judgments, fines, taxes, penalties and amounts paid in settlement
with respect to such action, suit or proceeding. Moreover, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all claims relating in whole or in
part to an indemnifiable event or in defense of any issue or matter
therein, including, without limitation, dismissal without
prejudice, Indemnitee shall be indemnified against all costs,
charges and expenses, including, without limitation,
attorneys’ fees and other fees and expenses, incurred in
connection therewith without further action or
determination.
(c) For
purposes of this Agreement, the termination of any action, suit,
investigation or proceeding, by judgment, order, settlement
(whether with or without court approval), or upon a plea of nolo
contendere , or its equivalent, shall not create a presumption
that Indemnitee did not meet any particular standard of conduct or
have any particular belief or that a court has determined that
indemnification is not permitted by applicable law or this
Agreement.
3. Notice
by Indemnitee .
Indemnitee shall
notify the Corporation in writing of any matter with respect to
which Indemnitee intends to seek indemnification hereunder as soon
as reasonably practicable following the receipt by Indemnitee of
written threat thereof; provided, however, that failure to
so notify the Corporation shall not constitute a waiver by
Indemnitee of his rights hereunder.
4.
Advancement of Expenses.
In the event of
any action, suit, investigation or proceeding against Indemnitee
which may give rise to a right of indemnification from the
Corporation pursuant to this Agreement, following written request
to the Corporation by Indemnitee, the Corporation shall advance to
Indemnitee (or to such parties as are conducting the defense of any
indemnified claim) amounts to cover expenses incurred by Indemnitee
in defending or otherwise responding to or participating in any
such action, suit, investigation or proceeding in advance of the
final disposition thereof upon receipt of (a) an Undertaking
by or on behalf of Indemnitee substantially in the form annexed
hereto as Exhibit A to repay the amount advanced in the event
it shall ultimately be determined by a court of competent
jurisdiction from which no appeal can be taken that Indemnitee is
not entitled to be indemnified by the Corporation (the
“Undertaking”), and (b) reasonably satisfactory
evidence as to the amount
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