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EXHIBIT
10.93
Indemnification
Agreement
Indemnification Agreement,
dated as of
, 2007 (this “ Agreement ”), between Navistar
International Corporation, a Delaware corporation (the “
Company ”), and
(“ Indemnitee ”).
WHEREAS, it is essential to
the Company to retain and attract as directors and officers the
most capable persons available;
WHEREAS, Indemnitee is a
director and/or officer of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public
companies in today’s environment;
WHEREAS, the Restated
Certificate of Incorporation (the “ Certificate of
Incorporation ”) and the Amended and Restated By-Laws
(the “ By-Laws ”) of the Company require the
Company to indemnify and advance expenses to its directors and
officers to the fullest extent permitted by law and the Indemnitee
has been serving and continues to serve as a director and/or
officer of the Company in part in reliance on such Certificate of
Incorporation and By-Laws;
WHEREAS, the Board of
Directors of the Company has determined that the inability of the
Company to retain and attract as directors and officers the most
capable persons would be detrimental to the interests of the
Company and that the Company therefore should seek to further
assure such persons that indemnification will be available in the
future;
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service
to the Company, and Indemnitee’s reliance on the
Company’s Certificate of Incorporation and By-Laws, and in
part to provide Indemnitee with specific contractual assurance that
the protection promised by such Certificate of Incorporation and
By-Laws will be available to Indemnitee (regardless of, among other
things, any amendment to or revocation of such Certificate of
Incorporation or By-Laws or any change in the composition of the
Company’s Board of Directors or acquisition transaction
relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses
to Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained, for the continued coverage of
Indemnitee under the Company’s directors’ and
officers’ liability insurance policies;
NOW, THEREFORE, in
consideration of the premises and of Indemnitee continuing to serve
the Company directly or, at its request, another enterprise, and
intending to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Definitions
. In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this
Agreement:
(a) Change in Control
: a “Change in Control” shall be deemed to have
occurred if (1) any “person” or
“group” (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, including the
regulations and other applicable authorities thereunder (the
“Exchange Act”)), other than employee or retiree
benefit plans or trusts sponsored or established by Navistar, Inc.,
is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty five percent
(25%) or more of the combined voting power of the
Company’s then-outstanding securities, (2) the following
individuals cease for any reason to constitute more than
three-fourths (3/4) of the number of directors then-serving on
the Board of Directors of the Company (the “Board”):
individuals who constitute the Board as of the date hereof and any
new director (other than a
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director whose initial
assumption of office is in connection with an actual or threatened
election contest, including, but not limited to, a consent
solicitation, relating to the election of directors of the Company)
whose appointment or election by the Board or nomination for
election by the Company’s stockholders was approved by the
vote of at least two-thirds (2/3) of the directors then still
in office or whose appointment, election, or nomination was
previously so approved; (3) any complete dissolution or
liquidation of the Company or Navistar, Inc. or any sale or
disposition of all or substantially all (more than fifty percent
(50%)) of the assets of the Company (determined without regard
to the sale or disposition of any or all of the assets of Navistar
Financial Corporation, or any successor thereto) or of Navistar,
Inc. occurs; or (4) as the result of, or in connection with,
any cash tender offer, exchange offer, merger or other business
combination, sale of assets, proxy or consent solicitation,
contested election or substantial stock accumulation (a
“Control Transaction”), the members of the Board
immediately before the first public announcement relating to such
Control Transaction shall immediately thereafter, or within two
(2) years thereof, cease to constitute a majority of the
Board. For the avoidance of doubt, the sale or disposition of any
or all of the assets or stock of any subsidiary or affiliate of the
Company (other than the sale or disposition of all or substantially
all of the assets of Navistar, Inc., as described above) shall not
be deemed a Change in Control.
(b) Claim : any
threatened, asserted, pending or completed action, suit or
proceeding, or appeal thereof, or any inquiry or investigation,
whether instituted by the Company or any governmental agency or any
other party, that Indemnitee in good faith believes might lead to
the institution of any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or other, including
any arbitration or other alternative dispute resolution
mechanism.
(c) Expenses : include
reasonable attorneys’ fees and all other reasonable costs,
expenses and obligations (including, without limitation,
experts’ fees, court costs, retainers, transcript fees,
duplicating, printing and binding costs, as well as
telecommunications, postage and courier charges) paid or incurred
in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to
investigate, defend, be a witness in or participate in, any Claim
relating to any Indemnifiable Event.
(d) Indemnifiable
Amounts : any and all Expenses, damages, judgments, fines,
penalties, ERISA excise taxes 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, excise taxes or amounts paid in
settlement) arising out of or resulting from any Claim relating to
an Indemnifiable Event.
(e) Indemnifiable
Event : any event or occurrence, whether occurring before, on
or after the date of this Agreement, related to the fact that
Indemnitee is or was a director and/or officer or fiduciary of the
Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another
corporation, limited liability company, partnership, joint venture,
employee benefit plan, trust or other entity or enterprise, or by
reason of anything done or not done by Indemnitee in any such
capacity.
(f) Independent Legal
Counsel : an attorney or firm of attorneys, selected in
accordance with the provisions of Section 3 hereof, who is
experienced in matters of corporate law and who shall not have
otherwise performed services for the Company or Indemnitee within
the last five years (other than with respect to matters concerning
the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
(g) Reviewing Party :
any appropriate person or body consisting of a member or members of
the Company’s Board of Directors or any other person or body
appointed by the Board of Directors who is not a party to the
particular Claim for which Indemnitee is seeking indemnification,
or Independent Legal Counsel.
2. Basic Indemnification
Arrangement; Advancement of Expenses .
(a) In the event Indemnitee
was, is or becomes a party to or witness or other participant in,
or is threatened to be made a party to or witness or other
participant in, a Claim by reason of (or arising in part
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out of) an Indemnifiable
Event, the Company shall indemnify Indemnitee to the fullest extent
permitted by law as soon as practicable but in any event no later
than thirty days after written demand is presented to the Company,
against any and all Indemnifiable Amounts.
(b) If so requested by
Indemnitee, the Company shall advance (within three business days
of the Company’s receipt of the Indemnitee’s written
request) any and all Expenses incurred by Indemnitee (an “
Expense Advance ”). The Company shall, in accordance
with such request (but without duplication), either (i) pay
such Expenses on behalf of Indemnitee, or (ii) reimburse
Indemnitee for such Expenses. Indemnitee’s right to an
Expense Advance is absolute and shall not be subject to any prior
determination by the Reviewing Party that the Indemnitee has
satisfied any applicable standard of conduct for
indemnification.
(c) Notwithstanding anything
in this Agreement to the contrary, Indemnitee shall not be entitled
to indemnification or advancement of Expenses pursuant to this
Agreement in connection with any Claim initiated by Indemnitee
unless (i) the Company has joined in or Company’s Board
of Directors has authorized or consented to the initiation of such
Claim or (ii) the Claim is one to enforce Indemnitee’s
rights under this Agreement.
(d) Notwithstanding the
foregoing, (i) the indemnification obligations of the Company
under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion, in
any case in which the Independent Legal Counsel referred to in
Section 3 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law, and (ii) the
obligation of the Company to make an Expense Advance pursuant to
Section 2(b) shall be subject to the condition that, if, when
and to the ex
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