Exhibit 10.16


 


FORM OF INDEMNIFICATION
AGREEMENT


 


AGREEMENT, dated as of                             
(this “Agreement”), between SeaCube Container Leasing Ltd., an exempted company
incorporated under the laws of Bermuda with its registered office located at
Clarendon House, 2 Church Street, Hamilton 11, Bermuda (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 Company’s Bye-laws, as amended from
time to time (“Bye-laws”), 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 Bye-laws;


 


WHEREAS, uncertainties as to the availability of
indemnification created by recent court decisions may increase the risk that
the Company will be unable to retain and attract as directors and officers the
most capable persons available;


 


WHEREAS, the board of directors of the Company (“Board
of Directors”) 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
assure such persons that indemnification and insurance coverage will be
available in the future;


 


WHEREAS,
the parties intend that any rights the Indemnitee may have from
Indemnitee-Related Entities (as defined herein) shall be secondary to the
primary obligation of the Company to indemnify and hold harmless the Indemnitee
under this Agreement; and


 


WHEREAS, in recognition of Indemnitee’s need for
protection against personal liability, and in part to provide Indemnitee with
specific contractual assurance that the protection promised by the Company’s Bye-laws
will be available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such Bye-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 for the continued
coverage of Indemnitee under the directors’ and officers’ liability insurance
policy of the Company.


 


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:  shall be deemed to have occurred if (i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than Fortress Investment
Group LLC and its affiliates and other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the shareholders of the Company in
substantially the same proportions as their ownership of shares of the Company,
is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Company representing 20% or
more of the total voting power represented by the Company’s then outstanding
Voting Securities, or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors and any new director whose election by the Board of Directors or
nomination for election by the Company’s shareholders was approved by a vote of
at least two-thirds (2/3) 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 a
majority thereof, or (iii) the shareholders of the Company approve an
amalgamation, scheme of arrangement, merger or consolidation of the Company
with any other entity other than an amalgamation, scheme of arrangement, merger
or consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such amalgamation, scheme of arrangement, merger or consolidation,
or the shareholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of (in
one transaction or a series of transactions) all or substantially all the
Company’s assets.


 


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(b)                                 Claim:  means any threatened, asserted, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
investigative or other, including any arbitration or other alternative dispute
resolution mechanism, or any appeal of any kind thereof, or any inquiry or
investigation, whether instituted by (or in the right of) the Company or any
governmental agency or any other person or entity, in which Indemnitee was, is,
may be or will be involved as a party, witness or otherwise.


 


(c)                                  ERISA:  means the Employee Retirement Income Security
Act of 1974, as amended.


 


(d)                                 Expenses:  include attorneys’ fees and all other direct
or indirect costs, expenses and obligations, including judgments, fines,
penalties, interest, appeal bonds, amounts paid in settlement with the approval
of the Company, and counsel fees and disbursements (including, without
limitation, experts’ fees, court costs, retainers, appeal bond premiums, transcript
fees, duplicating, printing and binding costs, as well as telecommunications,
postage and courier charges) paid or incurred in connection with investigating,
prosecuting, defending, being a witness in or participating in (including on
appeal), or preparing to investigate, prosecute, defend, be a witness in or
participate in, any Claim relating to any Indemnifiable Event, and shall
include (without limitation) all attorneys’ fees and all other expenses
incurred by or on behalf of an Indemnitee in connection with preparing and
submitting any requests or statements for indemnification, advancement or any
other right provided by this Agreement (including, without limitation, such
fees or expenses incurred in connection with legal proceedings contemplated by Section 2(d) hereof).


 


(e)                                  Indemnifiable Amounts:  means (i) any and all liabilities, 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 liabilities, Expenses, damages,
judgments, fines, penalties, ERISA excise taxes or amounts paid in settlement)
arising out of or resulting from any Claim relating to an Indemnifiable Event, (ii) any
liability pursuant to a loan guaranty or otherwise, for any indebtedness of the
Company or any subsidiary of the Company, including, without limitation, any
indebtedness which the Company or any subsidiary of the Company has assumed or
taken subject to, and (iii) any liabilities which an Indemnitee incurs as
a result of acting on behalf of the Company (whether as a fiduciary or
otherwise) in connection with the operation, administration or maintenance of
an employee benefit plan or any related trust or funding mechanism (whether
such liabilities are in the form of 


 


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excise taxes assessed by the United
States Internal Revenue Service, penalties assessed by the Department of Labor,
restitutions to such a plan or trust or other funding mechanism or to a
participant or beneficiary of such plan, trust or other funding mechanism, or
otherwise).


 


(f)                                    Indemnifiable Event:  means 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, manager, member, partner, tax matter partner, trustee, agent,
fiduciary or similar capacity, of another company, 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 (in all cases whether or not Indemnitee is
acting or serving in any such capacity or has such status at the time any
Indemnifiable Amount is incurred for which indemnification, advancement or any
other right can be provided by this Agreement). 
The term “Company,” where the context requires when used in this
Agreement, may be construed to include such other company, corporation, limited
liability company, partnership, joint venture, employee benefit plan, trust or
other entity or enterprise.


 


(g)                                 Indemnitee-Related Entities:  means any company, corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other entity or enterprise (other than the Company or any other company, corporation,
limited liability company, partnership, joint venture, trust, employee benefit
plan or other entity or enterprise Indemnitee has agreed, on behalf of the
Company or at the Company’s request, to serve as a director, officer, employee
or agent and which service is covered by the indemnity described in this
Agreement) from whom an Indemnitee may be entitled to indemnification or
advancement of Expenses with respect to which, in whole or in part, the Company
may also have an indemnification or advancement obligation.


 


(h)                                 Independent Legal Counsel:  means an attorney or firm of attorneys
(following a Change in Control, 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).


 


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(i)            Jointly
Indemnifiable Claim:  means any Claim for which the Indemnitee may
be entitled to indemnification from both an Indemnitee-Related Entity and the
Company pursuant to applicable law, any indemnification agreement or the
certificate of incorporation, bye-laws, partnership agreement, operating
agreement, certificate of formation, certificate of limited partnership or
comparable organizational documents of the Company and an Indemnitee-Related
Entity.


 


(j)                                     Reviewing Party:  means any appropriate person or body
consisting of a member or members of the 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.


 


(k)                                  Voting Securities:  means any securities of the Company which
vote generally in the election of directors.


 


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 out
of) an Indemnifiable Event, the Company shall indemnify Indemnitee, or cause
Indemnitee to be indemnified, to the fullest extent permitted by law as soon as
practicable but in any event no later than thirty (30) days after written
demand is presented to the Company, and hold Indemnitee harmless against any
and all Indemnifiable Amounts.


 


(b)                                 If so requested by Indemnitee, the Company shall advance, or
cause to be advanced (within two business days of such 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, or cause to be paid,
such Expenses on behalf of Indemnitee, or (ii) reimburse, or cause the
reimbursement of, Indemnitee for such Expenses. 
Subject to Section 2(d), 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 the Board of Directors has
authorized or consented to the 


 


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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 legal
opinion, in any case in which the Independent Legal Counsel is involved as
required by Section 3 hereof) 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 extent that the Reviewing Party
determines (in a written legal opinion, in any case in which the Independent
Legal Counsel is involved as required by Section 3 hereof) that Indemnitee
would not be permitted to be so indemnified under applicable law, the Company
shall be entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all such amounts theretofore paid (it being
understood and agreed that the foregoing agreement by Indemnitee shall be
deemed to satisfy any requirement that Indemnitee provide the Company with an
undertaking to repay any Expense Advance if it is ultimately determined that
the Indemnitee is not entitled to indemnification under applicable law); provided,
however, that if Indemnitee has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law, any determination made
by the Reviewing Party that Indemnitee would not be permitted to be indemnified
under applicable law shall not be binding and Indemnitee shall not be required
to reimburse the Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). 
Indemnitee’s undertaking to repay such Expense Advances shall be
unsecured and interest-free.  If there
has not been a Change in Control, the Reviewing Party shall be selected by the
Board of Directors, and if there has been such a Change in Control, the
Reviewing Party shall be the Independent Legal Counsel referred to in Section 3
hereof.  If there has been no
determination by the Reviewing Party within thirty (30) days after written
demand is presented to the Company or if the Reviewing Party determines that
Indemnitee would not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation in the
Supreme Court of Bermuda or any court in the State of New York or the State of
Delaware having subject matter jurisdiction thereof and in which venue is
proper seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any 


 


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aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear
in any such proceeding.  Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and Indemnitee.


 


3.             Change
in Control.  The Company agrees that
if there is a Change in Control then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments and Expense
Advances under this Agreement or any provision of the Company’s Memorandum of
Association or the Bye-laws now or hereafter in effect, the Company shall seek
legal advice only from Independent Legal Counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably delayed,
conditioned or withheld).  Such counsel,
among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted
to be indemnified under applicable law. 
The Company agrees to pay the reasonable fees of the Independent Legal
Counsel and to indemnify fully such counsel against any and all expenses (including
attorneys’ fees), claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.


 


4.             Indemnification
for Additional Expenses.  The Company
shall indemnify, or cause the indemnification of, Indemnitee against any and
all Expenses and, if requested by Indemnitee, shall advance such Expenses to
Indemnitee subject to and in accordance with Section 2(b), which are
incurred by Indemnitee in connection with any action brought by Indemnitee for (i) indemnification
or an Expense Advance by the Company under this Agreement or any provision of
the Company’s Memorandum of Association or the Bye-laws now or hereafter in
effect and/or (ii) recovery 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, Expense
Advance or insurance recovery, as the case may be; provided that Indemnitee
shall be required to reimburse such Expenses in the event that a final judicial
determination is made (as to which all rights of appeal therefrom have been
exhausted or lapsed) that such action brought by Indemnitee, or the defense by
Indemnitee of an action brought by the Company or any other person, as
applicable, was frivolous or in bad faith.


 


5.             Partial
Indemnity, Etc.  If Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of the Expenses or other Indemnifiable Amounts in
respect of a Claim but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.  Moreover,
notwithstanding any other provision of this Agreement, 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 dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith.


 


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6.             Burden
of Proof, Etc.  In connection with
any determination by the Reviewing Party or otherwise as to whether Indemnitee
is entitled to be indemnified hereunder the Reviewing Party, court, any finder
of fact or other relevant person shall presume that the Indemnitee has
satisfied the applicable standard of conduct and is entitled to
indemnification, and the burden of proof shall be on the Company (or any other
person or entity disputing such conclusions) to establish, by clear and
convincing evidence, that Indemnitee is not so entitled.


 


7.             Reliance
as Safe Harbor.  For purposes of this
Agreement, Indemnitee shall be deemed to have acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Company if Indemnitee’s actions or omissions to act are taken
in good faith reliance upon the records of the Company, including its financial
statements, or upon information, opinions, reports or statements furnished to
Indemnitee by the officers or employees of the Company in the course of their
duties, or by committees of the Board of Directors, or by any other person
(including legal counsel, accountants and financial advisors) as to matters Indemnitee
reasonably believes are within such other person’s professional or expert
competence and who has been selected with reasonable care by or on behalf of
the Company.  In addition, the knowledge
and/or actions, or failures to act, of any director, officer, agent or employee
of the Company shall not be imputed to Indemnitee for purposes of determining
the right to indemnity hereunder.


 


8.             No
Other Presumptions.  For purposes of
this Agreement, the termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, 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.  In addition, neither the
failure of the Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by the Reviewing Party that Indemnitee has
not met such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified under applicable law shall
be a defense to Indemnitee’s claim or create a presumption that Indemnitee has
not met any particular standard of conduct or did not have any particular
belief.


 


9.             Nonexclusivity,
Etc.  The rights of the Indemnitee
hereunder shall be in addition to any other rights Indemnitee may have under
the Company’s Memorandum of Association, the Bye-laws or the Companies Act 1981
of Bermuda or otherwise.  To the extent
that a change in applicable law (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded currently
under the Company’s Memorandum of Association, the Bye-laws or 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.  To the extent that there is a conflict or
inconsistency between the terms of this Agreement, the Company’s Memorandum of
Association and the Bye-laws, it is the intent of the parties hereto that the
Indemnitee shall enjoy the greater benefits regardless of whether contained
herein or in the Company’s Memorandum of 


 


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Association
or the Bye-laws.  No amendment or
alteration of the Company’s Memorandum of Association or the Bye-laws or any
other agreement shall adversely affect the rights provided to Indemnitee under
this Agreement.


 


10.           Liability
Insurance.  To the extent the Company
maintains an insurance policy or policies providing directors’ and officers’
liability insurance, the 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 the Company’s directors and officers.  If the Company has such insurance in effect
at the time the Company receives from Indemnitee any notice of the commencement
of an action, suit or proceeding, the Company shall give prompt notice of the
commencement of such action, suit or proceeding to the insurers in accordance
with the procedures set forth in the policy. 
The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such proceeding in accordance with the terms of such policy.


 


11.           Period
of Limitations.  No legal action
shall be brought and no cause of action shall be asserted by or in the right of
the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or
personal or legal representatives after the expiration of two years from the date
of accrual of such cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless asserted by the timely
filing of a legal action within such two-year period; provided, however, that
if any shorter period of limitations is otherwise applicable to any such cause
of action such shorter period shall govern.


 


12.           Amendments,
Etc.  No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto.  No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.


 


13.           Subrogation.  Subject to Section 14 hereof, in the
event of 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 reasonably required and shall do everything that may
be reasonably necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.  The Company shall pay or
reimburse all Expenses actually and reasonably incurred by Indemnitee in
connection with such subrogation.


 


14.           Jointly
Indemnifiable Claims.  Given that
certain Jointly Indemnifiable Claims may arise due to the relationship between
the Indemnitee-Related Entities and the Company and the service of the
Indemnitee as a director and/or officer of the Company at the request of the
Indemnitee-Related Entities, the Company acknowledges and agrees that the
Company shall be fully and primarily responsible for the payment to the
Indemnitee in respect of indemnification and advancement of expenses in
connection with any such Jointly Indemnifiable Claim, pursuant to and in
accordance with the terms of this Agreement, irrespective of any right of
recovery the Indemnitee may have from 


 


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the
Indemnitee-Related Entities.  Under no
circumstance shall the Company be entitled to any right of subrogation or
contribution by the Indemnitee-Related Entities and no right of recovery the
Indemnitee may have from the Indemnitee-Related Entities shall reduce or
otherwise alter the rights of the Indemnitee or the obligations of the Company
hereunder.  In the event that any of the
Indemnitee-Related Entities shall make any payment to the Indemnitee in respect
of indemnification or advancement of Expenses with respect to any Jointly
Indemnifiable Claim, the Company agrees that such payment or advancement shall
not extinguish or affect in any way the rights of the Indemnitee under this
Agreement and further agrees that the Indemnitee-Related Entity making such
payment shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee against the Company.  Each of the Indemnitee-Related Entities shall
be third-party beneficiaries with respect to this Section 14, entitled to enforce
this Section 14 against the Company as though each such Indemnitee-Related
Entity were a party to this Agreement.


 


15.           No
Duplication of Payments.  Subject to Section 14
hereof, the Company shall not be liable under this Agreement to make any payment
in connection with any Claim made against Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance policy, or any
provision of the Company’s Memorandum of Association or the Bye-laws or
otherwise) of the amounts otherwise indemnifiable hereunder.


 


16.           Defense
of Claims.  The Company shall be
entitled to participate in the defense of any Claim relating to an
Indemnifiable Event or to assume the defense thereof, with counsel reasonably
satisfactory to the Indemnitee; provided that if Indemnitee believes,
after consultation with counsel selected by Indemnitee, that (i) the use
of counsel chosen by the Company to represent Indemnitee would present such
counsel with an actual or potential conflict of interest, (ii) the named
parties in any such Claim (including any impleaded parties) include both the
Company, or any subsidiary of the Company, and Indemnitee and Indemnitee
concludes that there may be one or more legal defenses available to him or her
that are different from or in addition to those available to the Company or any
subsidiary of the Company, or (iii) any such representation by such
counsel would be precluded under the applicable standards of professional
conduct then prevailing, then Indemnitee shall be entitled to retain separate
counsel (but not more than one law firm plus, if applicable, local counsel in
respect of any particular Claim) at the Company’s expense.  The Company shall not be liable to Indemnitee
under this Agreement for any amounts paid in settlement of any Claim relating
to an Indemnifiable Event effected without the Company’s prior written
consent.  The Company shall not, without
the prior written consent of the Indemnitee, effect any settlement of any Claim
relating to an Indemnifiable Event which the Indemnitee is or could have been a
party unless such settlement solely involves the payment of money and includes
a complete and unconditional release of Indemnitee from all liability on all
claims that are the subject matter of such Claim.  Neither the Company nor Indemnitee shall
unreasonably withhold, condition or delay its or his or her consent to any
proposed settlement; provided that Indemnitee may withhold consent to
any settlement that does not provide a complete and unconditional release of
Indemnitee.  In no event shall Indemnitee
be required to waive, 


 


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prejudice
or limit attorney-client privilege or work-product protection or other applicable
privilege or protection.


 


17.           No
Adverse Settlement.  The Company
shall not seek, nor shall it agree to, consent to, support, or agree not to
contest any settlement or other resolution of any Claim(s), or settlement or
other resolution of any other claim, action, proceeding, demand, investigation
or other matter that has the actual or purported effect of extinguishing,
limiting or impairing Indemnitee’s rights hereunder, including without
limitation the entry of any bar order or other order, decree or stipulation,
pursuant to 15 U.S.C. § 78u-4 (the Private Securities Litigation Reform Act),
or any similar foreign, federal or state statute, regulation, rule or law.


 


18.           Binding
Effect, Etc.  This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, (including any direct or indirect
successor or continuing company by amalgamation, scheme of arrangement, purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company), assigns, spouses, heirs, executors and personal
and legal representatives.  The Company
shall require and cause any successor (whether direct or indirect by
amalgamation, scheme of arrangement, purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to Indemnitee
and his or her counsel, expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place. 
This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as an officer and/or director of the Company or of any other
entity or enterprise at the Company’s request.


 


19.           Security.  To the extent requested by Indemnitee and
approved by the Board of Directors, the Company may at any time and from time
to time provide security to Indemnitee for the obligations of the Company
hereunder through an irrevocable bank line of credit, funded trust or other
collateral or by other means.  Any such
security, once provided to Indemnitee, may not be revoked or released without
the prior written consent of such Indemnitee.


 


20.           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, all portions of
any paragraph of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and (b) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable and to give effect to the terms of this
Agreement.


 


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21.           Specific
Performance, Etc.  The parties
recognize that if any provision of this Agreement is violated by the Company,
Indemnitee may be without an adequate remedy at law.  Accordingly, in the event of any such
violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute
proceedings, either in law or at equity, to obtain damages, to enforce specific
performance, to enjoin such violation, or to obtain any relief or any
combination of the foregoing as Indemnitee may elect to pursue.


 


22.           Notices.  All
notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written document delivered
in person or sent by facsimile, nationally recognized overnight courier or
personal delivery, addressed to such party at the address set forth below or
such other address as may hereafter be designated on the signature pages of
this Agreement or in writing by such party to the other parties:


 


(a)           If to the
Company, to:


 


SeaCube
Container Leasing Ltd.

1 Maynard Drive

Park Ridge, New Jersey 07656

Fax:

Attn:  Lisa D. Leach, Esq.


 


with
a copy (which shall not constitute notice) to:


 


Skadden,
Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036-6522

Fax:  (212) 735-2000

Attn:  Joseph A. Coco, Esq.


 


(b)           If to the
Indemnitee, to the address set forth on Annex A hereto.


 


All
such notices, requests, consents and other communications shall be deemed to
have been given or made if and when received (including by overnight courier)
by the parties at the above addresses or sent by electronic transmission, with
confirmation received, to the facsimile numbers specified above (or at such
other address or facsimile number for a party as shall be specified by like
notice).  Any notice delivered by any
party hereto to any other party hereto shall also be delivered to each other
party hereto simultaneously with delivery to the first party receiving such
notice.


 


23.           Counterparts.  This Agreement may be executed in
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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24.           Headings.  The headings of the sections and 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 or
interpretation thereof.


 


25.           Governing
Law.  This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware applicable to contracts made and to be performed in such state
without giving effect to the principles of conflicts of laws.


 


[Signature page follows]


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.


 


 


	
   

  	
  SEACUBE
  CONTAINER LEASING LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Indemnitee]

  



 


[SIGNATURE
PAGE TO INDEMNIFICATION AGREEMENT]