EXHIBIT 10.12
THE GREENBRIER COMPANIES, INC.
AGREEMENT CONCERNING INDEMNIFICATION AND RELATED MATTERS
(DIRECTORS)
This Agreement is made as of February 28, 2006, by and between THE
GREENBRIER COMPANIES, INC., an Oregon corporation (the "Corporation"), and
___________ (the "Director"), a director of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors of the Corporation the most capable persons available and persons who
have significant experience in business, corporate and financial matters; and
WHEREAS, the Corporation has identified the Director as a person possessing
the background and abilities desired by the Corporation and desires the Director
to serve as a director of the Corporation; and
WHEREAS, the substantial increase in corporate litigation may, from time to
time, subject directors to burdensome litigation, the risks of which frequently
far outweigh the advantages of serving in such capacity; and
WHEREAS, in recent times the cost of liability insurance has increased and
the availability of such insurance is, from time to time, severely limited; and
WHEREAS, the Corporation and the Director recognize that serving as a
director of a corporation at times calls for subjective evaluations and
judgments upon which reasonable persons may differ and that, in that context, it
is anticipated and expected that directors of corporations will and do from time
to time commit actual or alleged errors or omissions in the good faith exercise
of their corporate duties and responsibilities; and
WHEREAS, it is the express policy of the Corporation to indemnify its
directors to the fullest extent permitted by law; and
WHEREAS, the Articles of Incorporation of the Corporation permit, and the
Bylaws of the Corporation require, indemnification of the directors of the
Corporation to the fullest extent permitted by law, including but not limited to
the Oregon Business Corporation Act (the "OBCA"), and the OBCA expressly
provides that the indemnification provisions set forth therein are not
exclusive, and thereby contemplates that contracts may be entered into between
the Corporation and its directors with respect to indemnification; and
WHEREAS, the Corporation and the Director desire to articulate clearly in
contractual form their respective rights and obligations with regard to the
Director's service on behalf of the Corporation as a director and with regard to
claims for loss, liability, expense or damage which, directly or indirectly, may
arise out of or relate to such service; and
WHEREAS, the Corporation and the Director are parties to an indemnification
agreement, dated as of _________ (the "Delaware Indemnification Agreement"),
that is governed by Delaware law and was entered into when the Corporation was
incorporated in Delaware; and
WHEREAS, as the Corporation has reincorporated in Oregon as of this date
(the "Reincorporation"); and
WHEREAS, in recognition of the differences between Oregon and Delaware law
governing the indemnification of directors, the Corporation and the Director
desire to enter into a new indemnification agreement that replaces their prior
agreement as of the effective time of the Reincorporation;
NOW THEREFORE, the Corporation and the Director agree as follows:
1. Agreement to Serve.
The Director shall serve as a director of the Corporation for so long as
the Director is duly elected or until the Director tenders a resignation in
writing. This Agreement creates no obligation on either party to continue the
service of the Director for a particular term or any term.
2. Definitions.
As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the right of
the Corporation or otherwise, and whether of a civil, criminal,
administrative or investigative nature, whether formal or informal, in
which the Director may be or may have been involved as a party,
witness or otherwise, by reason of the fact that the Director is or
was a director of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, partner, trustee, manager,
employee or agent of another corporation, limited liability company,
partnership, joint venture, trust or other enterprise, whether or not
serving in such capacity at the time any liability or expense is
incurred for which exculpation, indemnification or reimbursement can
be provided under this Agreement.
(b) The term "Expenses" includes, without limitation thereto, expenses of
investigations, judicial or administrative proceedings or appeals,
attorney, accountant and other professional fees and disbursements and
any expenses of establishing a right to indemnification under Section
12 of this Agreement, but shall not include amounts paid in settlement
by the Director or the amount of judgments or fines against the
Director.
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(c) References to "other enterprise" include, without limitation, employee
benefit plans; references to "fines" include, without limitation, any
excise taxes assessed on a person with respect to any employee benefit
plan; references to "serving at the request of the Corporation"
include, without limitation, any service as a director, officer,
partner, trustee, manager, employee or agent which imposes duties on,
or involves services by, such director, officer, partner, trustee,
manager, employee or agent with respect to an employee benefit plan,
its participants, or its beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation" as referred to in this Agreement.
(d) References to "the Corporation" shall include, in addition to the
resulting entity, any constituent corporation or other entity
(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
directors, officers, partners, trustees, managers, employees or
agents, so that any person who is or was a director, officer, partner,
trustee, manager, employee or agent of such constituent entity, or is
or was serving at the request of such constituent entity as a
director, officer, partner, trustee, manager, employee or agent of
another corporation, limited liability company, partnership, joint
venture, trust or other enterprise, shall stand in the same position
under this Agreement with respect to the resulting or surviving entity
as such person would have with respect to such constituent entity if
its separate existence had continued.
(e) For purposes of this Agreement, the meaning of the phrase "to the
fullest extent permitted by law" shall include, but not be limited to:
(i) to the fullest extent authorized or permitted by any amendments
to or replacements of the OBCA adopted after the date of this
Agreement that increase the extent to which a corporation may
indemnify or exculpate its directors; and
(ii) to the fullest extent permitted by the provision of the OBCA that
authorizes or contemplates additional indemnification by
agreement, or the corresponding provision of any amendment to or
replacement of the OBCA.
3. Limitation of Liability
To the fullest extent permitted by law, the Director shall have no monetary
liability of any kind or nature whatsoever in respect of the Director's errors
or omissions (or alleged errors or omissions) in serving the Corporation or any
of its subsidiaries, their respective shareholders or any other enterprise at
the request of the Corporation, so long as such errors or omissions (or alleged
errors or omissions), if any, are not shown by clear and convincing evidence to
have involved:
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(i) any breach of the Director's duty of loyalty to such entities,
shareholders or enterprises;
(ii) any act or omission not in good faith or which involved
intentional misconduct or a knowing violation of law;
(iii) any transaction from which the Director derived an improper
personal benefit;
(iv) any unlawful distribution (including, without limitation,
dividends, stock repurchases and stock redemptions), as defined
in the OBCA or, as applicable, in the limited liability company
act of the state where the Company's subsidiary is organized; or
(v) profits made from the purchase and sale by the Director of
securities of the Corporation within the meaning of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or similar
provision of any state statutory law or common law.
(b) Without limiting the generality of subparagraph (a) above and to the
fullest extent permitted by law, the Director shall have no personal
liability to the Corporation or any of its subsidiaries, their
respective shareholders or any other person claiming derivatively
through the Corporation, regardless of the theory or principle under
which such liability may be asserted, for:
(i) punitive, exemplary or consequential damages;
(ii) treble or other damages computed based upon any multiple of
damages actually and directly proved to have been sustained;
(iii) fees of attorneys, accountants, expert witnesses or professional
consultants; or
(iv) civil fines or penalties of any kind or nature whatsoever.
4. Indemnity in Third Party Proceedings.
The Corporation shall indemnify the Director in accordance with the
provisions of this Section 4 if the Director was or is a party to, or is
threatened to be made a party to, any Proceeding (other than a Proceeding by or
in the right of the Corporation to procure a judgment in its favor), against all
Expenses, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by the Director in connection with such Proceeding if the
Director acted in good faith and in a manner the Director reasonably believed
was in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, the Director, in addition, had no
reasonable cause to believe that the Director's conduct was unlawful.
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However, the Director shall not be entitled to indemnification under this
Section 4 in connection with any Proceeding charging improper personal benefit
to the Director in which the Director is adjudged liable on the basis that
personal benefit was improperly received by the Director unless and only to the
extent that the court conducting such Proceeding, or any other court of
competent jurisdiction, determines upon application that, despite the
adjudication of liability, the Director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances.
5. Indemnity in Proceedings by or in the Right of the Corporation.
The Corporation shall indemnify the Director in accordance with the
provisions of this Section 5 if the Director was or is a party to, or is
threatened to be made a party to, any Proceeding by or in the right of the
Corporation to procure a judgment in its favor, against all Expenses actually
and reasonably incurred by the Director in connection with the defense or
settlement of such Proceeding if the Director acted in good faith and in a
manner the Director reasonably believed was in or not opposed to the best
interests of the Corporation. However, the Director shall not be entitled to
indemnification under this Section 5 in connection with any Proceeding in which
the Director has been adjudged liable to the Corporation unless and only to the
extent that the court conducting such Proceeding, or any other court of
competent jurisdiction, determines upon application that, despite the
adjudication of liability, the Director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances.
6. Indemnification of Expenses of Successful Party.
Notwithstanding any other provisions of this Agreement other than Section
8, to the extent that the Director has been successful, on the merits or
otherwise, in defense of any Proceeding or in defense of any claim, issue or
matter therein, including the dismissal of an action without prejudice, the
Corporation shall indemnify the Director against all Expenses actually and
reasonably incurred in connection therewith.
7. Additional Indemnification.
Notwithstanding any limitation in Sections 4, 5 or 6, the Corporation shall
indemnify the Director to the fullest extent permitted by law with respect to
any Proceeding (including a Proceeding by or in the right of the Corporation to
procure a judgment in its favor), against all Expenses, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by the Director in
connection with such Proceeding.
8. Exclusions.
Notwithstanding any provision in this Agreement, the Corporation shall not
be obligated under this Agreement to make any indemnification in connection with
any claim made against the Director:
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(a) for which payment is required to be made to or on behalf of the
Director under any insurance policy, except with respect to any excess
amount to which the Director is entitled under this Agreement beyond
the amount of payment under such insurance policy;
(b) if a court having jurisdiction in the matter finally determines that
such indemnification is not lawful under any applicable statute or
public policy;
(c) in connection with any Proceeding (or part of any Proceeding)
initiated by the Director, or any Proceeding by the Director against
the Corporation or its directors, officers, employees or other persons
entitled to be indemnified by the Corporation, unless:
(i) the Corporation is expressly required by law to make the
indemnification;
(ii) the Proceeding was authorized by the Board of Directors of the
Corporation; or
(iii) the Director initiated the Proceeding pursuant to Section 12 of
this Agreement and the Director is successful in whole or in part
in such Proceeding; or
(d) for an accounting of profits made from the purchase and sale by the
Director of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provision of any state statutory law or common law.
9. Advances of Expenses.
The Corporation shall pay the Expenses incurred by the Director in any
Proceeding (other than a Proceeding brought for an accounting of profits made
from the purchase and sale by the Director of securities of the Corporation
within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provision of any state statutory law or common law) in
advance of the final disposition of the Proceeding at the written request of the
Director, if the Director:
(a) furnishes the Corporation a written affirmation of the Director's good
faith belief that the Director is entitled to be indemnified under
this Agreement; and
(b) furnishes the Corporation a written undertaking to repay the advance
to the extent that it is ultimately determined that the Director is
not entitled to be indemnified by the Corporation. Such undertaking
shall be an unlimited general obligation of the Director but need not
be secured.
Advances pursuant to this Section 9 shall be made no later than 10 days
after receipt by the Corporation of the affirmation and undertaking described in
Sections 9(a) and 9(b) above,
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and shall be made without regard to the Director's ability to repay the amount
advanced and without regard to the Director's ultimate entitlement to
indemnification under this Agreement. The Corporation may establish a trust,
escrow account or other secured funding source for the payment of advances made
and to be made pursuant to this Section 9 or of other liability incurred by the
Director in connection with any Proceeding.
10. Nonexclusivity and Continuity of Rights.
The indemnification, advancement of Expenses, and exculpation from
liability provided by this Agreement shall not be deemed exclusive of any other
rights to which the Director may be entitled under any other agreement, any
articles of incorporation, bylaws, or vote of shareholders or directors, the
OBCA, or otherwise, both as to action in the Director's official capacity and as
to action in another capacity while holding such office or occupying such
position. The indemnification under this Agreement shall continue as to the
Director even though the Director may have ceased to be a director of the
Corporation or a director, officer, partner, trustee, manager, employee or agent
of an enterprise related to the Corporation and shall inure to the benefit of
the heirs, executors, administrators and personal representatives of the
Director.
11. Procedure Upon Application for Indemnification.
Any indemnification under Sections 4, 5, 6 or 7 shall be made no later than
45 days after receipt of the written request of the Director, unless a
determination that the Director is not entitled to indemnification under this
Agreement is made within such 45 day period:
(a) by the Board of Directors by a majority vote of a quorum consisting of
directors who are not parties to the applicable Proceeding;
(b) if a quorum cannot be obtained under paragraph (a) of this Section 11,
then by a majority vote of a committee of the Board of Directors that
is (i) duly designated by the Board of Directors, with the
participation of directors who are parties to the applicable
Proceeding and (ii) consists solely of two or more directors not
parties to the applicable Proceeding;
(c) by independent legal counsel in a written opinion, which counsel shall
be appointed (i) by a majority vote of the Board of Directors or its
committee in the manner prescribed by paragraph (a) or paragraph (b)
of this Section 11, or (ii) if a quorum of the Board of Directors
cannot be obtained under paragraph (a) of this Section 11 or a
committee cannot be designated under paragraph (b) of this Section 11,
then by a majority vote of the full Board of Directors, including
directors who are parties to the applicable Proceeding; or
(d) by the shareholders of the Corporation.
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12. Enforcement.
The Director may enforce any right to indemnification, advances or
exculpation provided by this Agreement in any court of competent jurisdiction
if:
(a) the Corporation denies the claim for indemnification, advances or
exculpation, in whole or in part; or
(b) the Corporation does not dispose of such claim within the time period
required by this Agreement.
It shall be a defense to any such enforcement action (other than an action
brought to enforce a claim for advancement of Expenses pursuant to, and in
compliance with, Section 9 of this Agreement) that the Director is not entitled
to indemnification or exculpation under this Agreement. However, except as
provided in Section 13 of this Agreement, the Corporation shall not assert any
defense to an action brought to enforce a claim for advancement of Expenses
pursuant to Section 9 of this Agreement if the Director has tendered to the
Corporation the affirmation and undertaking required thereunder. The burden of
proving by clear and convincing evidence that indemnification or exculpation is
not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, a committee thereof, or
independent legal counsel) to have made a determination prior to the
commencement of such action that indemnification or exculpation is proper in the
circumstances because the Director has met the applicable standard of conduct
nor an actual determination by the Corporation (including its Board of
Directors, a committee thereof, or independent legal counsel) that
indemnification or exculpation is improper because the Director has not met such
applicable standard of conduct, shall be asserted as a defense to the action or
create a presumption that the Director is not entitled to indemnification or
exculpation under this Agreement or otherwise. The Director's expenses incurred
in connection with successfully establishing the Director's right to
indemnification, advances or exculpation, in whole or in part, in any Proceeding
shall also be paid or reimbursed by the Corporation.
The termination of any Proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that:
(i) the Director is not entitled to indemnification under Sections 4,
5 or 7 of this Agreement because the Director did not act in good
faith and in a manner which the Director reasonably believed to
be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the Director's conduct was
unlawful; or
(ii) the Director is not entitled to exculpation under Section 3 of
this Agreement.
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13. Notification and Defense of Claim.
As a condition precedent to indemnification under this Agreement, not later
than 30 days after receipt by the Director of notice of the commencement of any
Proceeding the Director shall, if a claim in respect of the Proceeding is to be
made against the Corporation under this Agreement, notify the Corporation in
writing of the commencement of the Proceeding. The failure to properly notify
the Corporation shall not relieve the Corporation from any liability which it
may have to the Director otherwise than under this Agreement. With respect to
any Proceeding as to which the Director so notifies the Corporation of the
commencement:
(a) The Corporation shall be entitled to participate in the Proceeding at
its own expense.
(b) Except as otherwise provided in this Section 13, the Corporation may,
at its option and jointly with any other indemnifying party similarly
notified and electing to assume such defense, assume the defense of
the Proceeding, with legal counsel reasonably satisfactory to the
Director. The Director shall have the right to use separate legal
counsel in the Proceeding, but the Corporation shall not be liable to
the Director under this Agreement, including Section 9 above, for the
fees and expenses of separate legal counsel incurred after notice from
the Corporation of its assumption of the defense, unless (i) the
Director reasonably concludes that there may be a conflict of interest
between the Corporation and the Director in the conduct of the defense
of the Proceeding, or (ii) the Corporation does not use legal counsel
to assume the defense of such Proceeding. The Corporation shall not be
entitled to assume the defense of any Proceeding brought by or on
behalf of the Corporation or as to which the Director has made the
conclusion provided for in (i) above.
(c) If two or more persons who may be entitled to indemnification from the
Corporation, including the Director, are parties to any Proceeding,
the Corporation may require the Director to use the same legal counsel
as the other parties. The Director shall have the right to use
separate legal counsel in the Proceeding, but the Corporation shall
not be liable to the Director under this Agreement, including Section
9 above, for the fees and expenses of separate legal counsel incurred
after notice from the Corporation of the requirement to use the same
legal counsel as the other parties, unless the Director reasonably
concludes that there may be a conflict of interest between the
Director and any of the other parties required by the Corporation to
be represented by the same legal counsel.
(d) The Corporation shall not be liable to indemnify the Director under
this Agreement for any amounts paid in settlement of any Proceeding
effected without its written consent, which shall not be unreasonably
withheld. The Director shall permit the Corporation to settle any
Proceeding that the Corporation assumes the defense of, except that
the Corporation shall not settle any action or claim in any manner
that would impose any penalty or limitation on the Director without
the Director's written consent.
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14. Partial Indemnification.
If the Director is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the Expenses,
judgments, fines or amounts paid in settlement, actually and reasonably incurred
by the Director in connection with such Proceeding, but not, however, for the
total amount thereof, the Corporation shall nevertheless indemnify the Director
for the portion of such Expenses, judgments, fines or amounts paid in settlement
to which the Director is entitled.
15. Interpretation and Scope of Agreement.
Nothing in this Agreement shall be interpreted to constitute a contract of
service for any particular period or pursuant to any particular terms or
conditions. The Corporation retains the right, in its discretion, to terminate
the service relationship of the Director, with or without cause, or to alter the
terms and conditions of the Director's service all without prejudice to any
rights of the Director which may have accrued or vested prior to such action by
the Corporation.
16. Severability.
If this Agreement or any portion thereof shall be invalidated on any ground
by any court of competent jurisdiction, the remainder of this Agreement shall
continue to be valid and the Corporation shall nevertheless indemnify the
Director as to Expenses, judgments, fines and amounts paid in settlement with
respect to any Proceeding to the fullest extent permitted by any applicable
portion of this Agreement that shall not have been invalidated.
17. Subrogation.
In the event of payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Director. The Director shall execute all documents required and shall do all
acts that may be necessary to secure such rights and to enable the Corporation
effectively to bring suit to enforce such rights.
18. Notices.
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given upon
delivery by hand to the party to whom the notice or other communication shall
have been directed, or on the third business day after the date on which it is
mailed by United States mail with first-class postage prepaid, addressed as
follows:
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(a) If to the Director, to the address indicated on the signature page of
this Agreement.
(b) If to the Corporation, to
The Greenbrier Companies, Inc.
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Attention: President
With a copy to:
General Counsel
The Greenbrier Companies, Inc.
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or to any other address as either party may designate to the other in writing.
19. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall constitute the original.
20. Applicable Law.
This Agreement shall be governed by and construed in accordance with the
internal laws of the state of Oregon without regard to the principles of
conflict of laws.
21. Successors and Assigns.
This Agreement shall be binding upon the Corporation and its successors and
assigns.
22. Attorney Fees.
If any suit or action (including, without limitation, any bankruptcy
proceeding) is instituted to enforce or interpret any provision of this
Agreement, the prevailing party shall be entitled to recover from the party not
prevailing, in addition to other relief that may be provided by law, an amount
determined reasonable as attorney fees at trial and on any appeal of such suit
or action.
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23. Jurisdiction and Venue.
Each party hereto expressly and irrevocably consents and submits to the
jurisdiction and venue of any state or federal court sitting in Multnomah
County, Oregon, in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding may
be heard and determined in such court and to the appellate courts in connection
with any appeal. The parties expressly waive all defenses of lack of personal
jurisdiction, improper venue and forum non-conveniens with respect to such
federal and state courts sitting within Multnomah County, Oregon. The parties
expressly consent to (i) service of process being effected upon them by
certified mail sent to the addresses set forth in this Agreement and (ii) any
final judgment rendered against a party in any action or proceeding being
enforceable in other jurisdictions in any manner provided by law.
24. Delaware Indemnification Agreement.
This Agreement supersedes and replaces the Delaware Indemnification Agreement as
of the effective time of the Reincorporation. However, the Delaware
Indemnification Agreement shall continue to govern any claim for or right to
indemnification arising prior to the effective time of the Reincorporation.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
CORPORATION:
THE GREENBRIER COMPANIES, INC. DIRECTOR:
By:
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Title: [Director]
------------------------------ [Address]
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