ex10-2.htm


     

    Exhibit
10.2

     

    
      INDEMNITY
AGREEMENT

       

      This
Indemnification Agreement (“Agreement”) is made as of June 24, 2008 by and
between CSX Corporation, a Virginia corporation (the “Company”), and
________________ (“Indemnitee”).

       

      RECITALS

       

      WHEREAS,
highly competent persons have become more reluctant to serve publicly-held
corporations as directors and officers unless they are provided with 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,
the Articles of Incorporation and the Virginia Stock Corporation Act (the
“Virginia Act”) expressly provide that the indemnification provisions set forth
therein are not exclusive, and thereby contemplate that contracts may be entered
into between the Company and members of the board of directors, officers and
other persons with respect to indemnification;

       

      WHEREAS,
a recent court decision in Delaware and the 2008 contested election for
directors of the Company have created concerns as to the reliability of
indemnification of directors, officers and employees as protection against
personal liability;

       

      WHEREAS,
it is reasonable and prudent for the Company contractually to confirm that the
Company is obligated to indemnify, and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that they will
not be protected; and

       

      WHEREAS,
this Agreement is a supplement to and in furtherance of the Articles of
Incorporation of the Company and any resolutions adopted pursuant thereto, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder;

       

      NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:

       

      Section
1.        Services to the
Company.  Indemnitee agrees to serve as an officer of the
Company.  Indemnitee may at any time and for any reason resign from
such position (subject to any other contractual obligation or any obligation
imposed by operation of law), in which event the Company shall have no
obligation under this Agreement to continue Indemnitee in such
position.  This Agreement shall not be deemed an employment contract
between the Company (or any of its subsidiaries or any Enterprise) and
Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s employment
with the Company (or any of its subsidiaries or any Enterprise), if any, is at
will, and the Indemnitee may be discharged at any time for any reason, with or
without cause, except as may be otherwise provided in any written employment
contract between Indemnitee and the Company (or any of its subsidiaries or any
Enterprise), other applicable formal severance policies duly adopted by the
Board of Directors, or by the Company’s Articles of Incorporation, the Company’s
By-laws, and the Virginia Act.  The foregoing notwithstanding, this
Agreement shall continue in force after Indemnitee has ceased to serve as an
officer of the Company.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      Section
2.        Definitions.  As
used in this Agreement:

       

      (a)     A “Change
in Control” shall be deemed to occur upon the earliest to occur after the date
of this Agreement of any of the following events:

       

      (i)      Acquisition
of Stock by Third Party. Any Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities of
the Company representing thirty percent (30%) or more of the combined voting
power of the Company’s then outstanding securities;

       

      (ii)      Change in
Board of Directors. During any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals who
at the beginning of such period constitute the Board, and any new director
(other than a director nominated at the 2008 annual meeting on behalf of someone
other than the Board of Directors or designated by a person who has effected, or
entered into an agreement with the Company to effect, a transaction described in
Sections 2(a)(i), 2(a)(iii) or 2(a)(iv)) whose election by the Board or
nomination for election by the Company’s shareholders was approved by a vote of
at least a majority of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least
a majority of the members of the Board;

       

      (iii)      Corporate
Transactions. The effective date of a merger or consolidation of the Company
with any other entity, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) more than
51% of the combined voting power of the voting securities of the surviving
entity outstanding immediately after such merger or consolidation and with the
power to elect at least a majority of the board of directors or other governing
body of such surviving entity;

       

      (iv)     Dissolution
or Disposition of Assets.  The approval by the shareholders of the
Company of the dissolution of the Company or of an agreement for the sale or
disposition by the Company of all or substantially all of the Company’s assets;
and

       

      (v)      Other
Events. There occurs any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a
response to any similar item on any similar schedule or form) promulgated under
the Exchange Act (as defined below), whether or not the Company is then subject
to such reporting requirement.

       

      
        For
purposes of this Section 2(a), the following terms shall have the following
meanings:

        


      

      (A)     “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.

       

       

      
        
          
          

        

        
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      (B)     “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange
Act; provided, however, that Person shall exclude (i) the Company, (ii) any
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, and (iii) any corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company.

       

      (C)     “Beneficial
Owner” shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act; provided, however, that Beneficial Owner shall exclude any Person
otherwise becoming a Beneficial Owner by reason of the shareholders of the
Company approving a merger of the Company with another entity.

       

      (b)     “Corporate
Status” describes the status of a person who is or was a director, officer,
employee or agent of the Company or of any other corporation, limited liability
company, partnership or joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of the
Company.

       

      (c)      “Disinterested
Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by
Indemnitee.

       

      (d)     “Enterprise”
shall mean the Company and any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary.

       

      (e)      “Expenses”
shall include all reasonable attorneys’ fees, 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 disbursements or expenses of the types customarily incurred 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.

       

      (f)      “Independent
Counsel” means 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 three 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 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.  The
Company agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to indemnify such counsel fully against any and
all Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.

       

       

      
        
          
          

        

        
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      (g)    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,
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 director or officer of the Company, by reason of any action taken by
him or of any action on his part while acting as director or officer of the
Company, or by reason of the fact that he is or was serving at the request of
the Company as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust or other
enterprise, 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; except one
initiated by a Indemnitee to enforce his rights under this
Agreement.

       

      (h)     Reference to “other enterprise” shall include employee benefit
plans; references to “fines” shall include any excise tax assessed with respect
to any employee benefit plan; references to “serving at the request of the
Company” shall include any service as a director, officer, employee or agent of
the Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the best interests of the participants
and beneficiaries of an employee benefit plan shall be deemed not to have
engaged in willful misconduct or a knowing violation of criminal
law.

       

      Section
3.        (a)      Indemnity in Third-Party
Proceedings.  The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding, including
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 to the
fullest extent permitted by applicable law against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on his behalf in connection with such Proceeding or any claim,
issue or matter therein, except for indemnification of the Indemnitee for his
willful misconduct or his knowing violation of the criminal law.

       

      (b)     Settlement.

       

      (i)           Notwithstanding
any other provisions of this Agreement, the Company shall have no obligation to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any Proceeding Indemnitee effected without the Company’s prior written consent,
not to be unreasonably withheld.

       

      (ii)           The
Company shall not, without the prior written consent of Indemnitee (not to be
unreasonably withheld), consent to the entry of any judgment against Indemnitee
or enter into any settlement or compromise which (A) includes an admission of
fault or Indemnitee, any non-monetary remedy affecting or obligation of
Indemnitee, or monetary obligation for which Indemnitee is not indemnified
hereunder or (B) with respect to any Proceeding with respect to which Indemnitee
is likely to be or is made a party, witness or participant or otherwise entitled
to seek indemnification hereunder, does not include, as an unconditional term
thereof, the full release of Indemnitee from all liability in respect of such
Proceeding, which release shall be in form and substance reasonably satisfactory
to Indemnitee.

       

       

      
        
          
          

        

        
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      Section
4.        Indemnification for Expenses
of a Party Who is Wholly or Partly Successful.  Notwithstanding
any other provisions of this Agreement (other than Section 6(a) and (c) of this
Agreement), to the fullest extent permitted by applicable law and 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 Indemnitee
against all Expenses actually and reasonably incurred by him 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, subject to
Section 3(b)(i) and Sections 6(a) and (c) of this Agreement, indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his 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, subject to Section 3(b)(i) and Sections 6(a) and (c) of this Agreement,
indemnify 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.

       

      Section
5.        Indemnification For Expenses
of a Witness.  Notwithstanding any other provision of this
Agreement, (other than Section 6(a) and (c) of this Agreement), to the fullest
extent permitted by applicable law and to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, he shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection
therewith.

       

      Section
6.        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 made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond
the amount paid under any insurance policy or other indemnity provision;
or

       

       

      
        
          
          

        

        
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      (b)     for an
accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of
the Securities Exchange Act of 1934, as amended; or

       

      (c)      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 prior to a Change of Control against the Company or its directors,
officers, employees or other indemnitees, unless (i) the Board of Directors of
the Company authorized the Proceeding (or any part of any Proceeding) prior to
its initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable
law.

       

      Section
7.        Advances of
Expenses.

       

      (a)      In
accordance with the pre-existing requirement of Section 7.3 of the Articles of
Incorporation of the Company, and notwithstanding any provision of this
Agreement to the contrary but subject to Section 7(c) of this Agreement, the
Company shall advance, to the extent not prohibited by law, the expenses
reasonably incurred by Indemnitee in connection with any Proceeding, and such
advancement shall be made within 30 days after the receipt by the Company of a
statement or statements requesting such advances (supported by statements in
reasonable detail of Expenses incurred or to be incurred within the next 30
days) 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 an action 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 upon the execution and delivery to the Company of this Agreement which
shall constitute 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.  

       

      (b)     In the
event the Company is obligated under this Section 7 hereof to pay, and pays the
Expenses of any Proceeding against Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such Proceeding, with counsel
approved by Indemnitee, which approval shall not be unreasonably withheld, upon
the delivery to Indemnitee of written notice of its election so to
do.  After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same Proceeding,
provided that (i) Indemnitee shall have the right to employ his counsel in any
such Proceeding at Indemnitee’s expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such defense
or (C) the Company shall not, in fact, have employed counsel approved by
Indemnitee to assume the defense of such Proceeding, then the fees and expenses
of Indemnitee’s counsel shall be at the expense of the Company.

       

       

      
        
          
          

        

        
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      (c)      This
Section 7 shall not apply to any claim made by Indemnitee for which indemnity is
excluded pursuant to Section 6(a) or (c) of this Agreement.

       

      Section
8.        Procedure for Notification
and Defense of Claim.  To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification following the final
disposition of such action, suit or proceeding.  The omission to
notify the Company will not relieve the Company from any liability which it may
have to Indemnitee otherwise than under this Agreement. The Secretary of the
Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee has requested
indemnification.

       

      Section
9.        Procedure Upon Application
for Indemnification.

       

      (a)      Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 8, a determination, if required by applicable law, with respect
to Indemnitee’s entitlement thereto shall be made in the specific case in
accordance with Section 13.1-701(B) of the Virginia Act and Section 7.3 of the
Company’s Articles of Incorporation.  Indemnitee shall cooperate with
the person, persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination.  Any costs or expenses  (including reasonable
attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.

       

      (b)     In the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(a) hereof, the Independent
Counsel shall be selected as provided in this Section 9(b). If a Change in
Control shall not have occurred, the Independent Counsel shall be selected by
the Board of Directors, and the Company shall give written notice to Indemnitee
advising him of the identity of the Independent Counsel so
selected.  If a Change in Control shall have occurred, the Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall request that
such selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so
selected.  In either event, Indemnitee or the Company, as the case may
be, may, within 10 days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case may be, a written
objection to such selection; provided, however,
that such objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of “Independent Counsel” as
defined in Section 2 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion.  Absent a
proper and timely objection, the person so selected shall act as Independent
Counsel.  If such written objection is so made and substantiated, the
Independent Counsel so selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that such objection
is without merit. If, within twenty (20) days after the later of submission by
Indemnitee of a written request for indemnification pursuant to Section 8
hereof and the final disposition of the Proceeding, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may
petition the Virginia Court (as defined in Section 20 of this Agreement) for
resolution of any objection which shall have been made by the Company or
Indemnitee to the other’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the Court or by such
other person as the Court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 9(a) hereof. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 11(a) of this
Agreement, Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).

       

       

      
        
          
          

        

        
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      Section
10.       Presumptions and Effect of
Certain Proceedings.

       

      (a)      In making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section 8 of
this Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of
any determination contrary to that presumption.  Neither the failure
of the Company (including by its directors or Independent Counsel) to have made
a determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because Indemnitee
has met the applicable standard of conduct, nor an actual determination by the
Company (including by its directors or Independent Counsel) that Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has not met the applicable standard of
conduct.

       

      (b)      Subject
to Section 11(e), if the person, persons or entity empowered or selected
under Section 9 of this Agreement to determine whether Indemnitee is
entitled to indemnification shall not have made a determination within sixty
(60) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such 60-day period
may be extended for a reasonable time, not to exceed an additional thirty (30)
days, if the person, persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such additional time for
the obtaining or evaluating of documentation and/or information relating
thereto; and provided, further, that the foregoing provisions of this
Section 10(b) shall not apply if the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 9(a) of this Agreement.

       

      (c)      The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee was guilty of willful misconduct or a
knowing violation of criminal law.

       

       

      
        
          
          

        

        
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      (d)      Actions of Others.
The knowledge and/or actions, or failure to act, of any director, officer, agent
or employee of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.

       

      Section
11.       Remedies of
Indemnitee.

       

      (a)      Subject
to Section 11(e), in the event that (i) a determination is made pursuant to
Section 9 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 7 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to
Section 9(a) of this Agreement within 90 days after receipt by the Company
of the request for indemnification, (iv) payment of indemnification is not made
pursuant to Section 4 or 5 or the last sentence of Section 9(a) of
this Agreement within ten (10) days after receipt by the Company of a written
request therefor, or (v) payment of indemnification pursuant to Section 3
of this Agreement is not made within ten (10) days after a determination has
been made that Indemnitee is entitled to indemnification, Indemnitee shall be
entitled to an adjudication by a court of his entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. Indemnitee shall commence such proceeding seeking an adjudication
or an award in arbitration within one hundred eighty (180) days following the
date on which Indemnitee first has the right to commence such proceeding
pursuant to this Section 11(a); provided, however,
that the foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce his rights under Section 4 of this
Agreement.  The Company shall not oppose Indemnitee’s right to seek
any such adjudication or award in arbitration.

       

      (b)      In the
event that a determination shall have been made pursuant to Section 9(a) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 11 shall be
conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination.  In any judicial proceeding or arbitration
commenced pursuant to this Section 11 the Company shall have the burden of
proving Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.

       

      (c)      If a
determination shall have been made pursuant to Section 9(a) of this
Agreement that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination in any judicial proceeding or arbitration commenced
pursuant to this Section 11, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable
law.

       

       

      
        
          
          

        

        
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      (d)      The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 11 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement.  The Company shall
indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (within ten (10) days after receipt by the Company of a
written request therefor) advance, to the extent not prohibited by law, such
expenses to Indemnitee, which are incurred by Indemnitee in connection with any
action brought by Indemnitee for indemnification or advance of Expenses from the
Company under this Agreement or under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advancement of
Expenses or insurance recovery, as the case may be.

       

      (e)      Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior to
the final disposition of the Proceeding.

       

      Section
12.       Non-exclusivity; Survival of
Rights; Insurance; Subrogation.

       

      (a)      The
rights of indemnification and to receive advancement of Expenses as provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Company’s
Articles of Incorporation, any agreement, a vote of shareholders or a resolution
of directors, or otherwise.  No amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in Virginia law, whether by statute or
judicial decision, permits greater indemnification or advancement of Expenses
than would be afforded currently under the Company’s Articles of Incorporation
and this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such
change.  No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or
remedy.

       

      (b)      To the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees or agents of the Company
or of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person serves at the request of the Company,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any such
director, officer, employee or agent under such policy or
policies.  If, at the time of the receipt of a notice of a claim
eligible for indemnification pursuant to the terms hereof, the Company has
director and officer liability insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective
policies.  The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of
such policies.

       

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

       

      (c)      In the
event of any payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.

       

      (d)      The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (or for which advancement is provided
hereunder) if and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or
otherwise.

       

      (e)      The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee
with respect to service at the request of the Company as a director, officer,
employee or agent of any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise
shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of expenses from such other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise with respect to such service.

       

      Section
13.       Duration of
Agreement.  This Agreement shall continue until and terminate
upon the later of: (a) 10 years after the date that Indemnitee shall have ceased
to serve as an officer of the Company or (b) 1 year after the final termination
of any Proceeding then pending in respect of which Indemnitee is granted rights
of indemnifi­cation or advancement of Expenses hereunder and of any
proceeding commenced by Indemnitee pursuant to Section 11 of this Agreement
relating thereto. This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Indemnitee and his
heirs, executors and administrators.

       

      Section
14.       Severability.  If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including
without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; (b)
such provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.

       

      Section
15.       Enforcement.

       

       

      
        
          
          

        

        
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      (a)      The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to continue to serve as an officer of the Company and/or to confirm to
Indemnitee that, after he ceases to be an officer he will continue to be
entitled to indemnification and advancement of expenses by the Company, and the
Company acknowledges that Indemnitee is relying upon this Agreement in
continuing to serve as an officer of the Company and has provided other good and
valuable consideration in connection with this Agreement, the sufficiency and
receipt of which are hereby acknowledged.

       

      (b)      This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof; provided, however, that this Agreement is a
supplement to and in furtherance of, the Articles of Incorporation of the
Company and applicable law, and shall not be deemed a substitute therefor, nor
to diminish or abrogate any rights of Indemnitee thereunder.

       

      Section
16.       Modification and
Waiver.  No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties thereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions of this Agreement nor shall any
waiver constitute a continuing waiver.

       

      Section
17.       Notice by
Indemnitee.  Indemnitee agrees promptly to notify the Company
in writing 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; provided, however, that a delay
in giving such notice shall not deprive Indemnitee of any right to be
indemnified under this Agreement unless, and then only to the extent that, such
delay is materially prejudicial to the defense of such claim.

       

      Section
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 if (a) delivered by
hand and receipted for by the party to whom said notice or other communication
shall have been directed, (b) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed, (c) mailed by reputable overnight courier and receipted for by the party
to whom said notice or other communication shall have been directed or (d) sent
by facsimile transmission, with receipt of oral confirmation that such
transmission has been received:

       

      (i)           if to
Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide to the Company; and

       

      (ii)           if to the
Company to Corporate Secretary, CSX Corporation, 500 Water Street, Jacksonville,
FL 32202.

       

      
        or to any
other address as may have been furnished to Indemnitee by the Company or vice
versa.

         

         

        
          
            
            

          

          
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      Section
19.       Contribution. To the
fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever,
the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, in connection with
any claim relating to an indemnifiable event under this Agreement, in such
proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding
in order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s)
and/or
transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault
of the Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or transaction(s).

       

      Section
20.       Applicable Law and Consent
to Jurisdiction. This Agreement and the legal relations among the parties
shall be governed by, and construed and enforced in accordance with, the laws of
the Commonwealth of Virginia, without regard to its conflict of laws rules.
Except with respect to any arbitration commenced by Indemnitee pursuant to
Section 11(a) of this Agreement, the Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Circuit
Court for Henrico County, Commonwealth of Virginia (the “Virginia Court”), and
not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Virginia Court for purposes of any action or proceeding arising out of or
in connection with this Agreement, (iii) waive any objection to the laying of
venue of any such action or proceeding in the Virginia Court, and (iv) waive,
and agree not to plead or to make, any claim that any such action or proceeding
brought in the Virginia Court has been brought in an improper or inconvenient
forum.

       

      Section
21.       Identical
Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.

       

       

      
        
          
          

        

        
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      Section
22.       Miscellaneous.  Use
of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.

       

      IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the
day and year first above written.

       

       

      
        
          
            	CSX
      CORPORATION	 	 	IMDEMNITEE
	 	 	 	 	 	 
	
                    By: 

                  	
                     

                  	 	 	
                    Name: 

                  	 	 
	
                    Name:

                  	
                     

                  	 	 	
                    Address:

                  	 	 
	
                    Office: 
      

                  	
                     

                  	 	 	
                     

                  	 	 


          

        

         

         

         

         

         

         

         

         

         

         

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