FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.21
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”) is made as of by
and between Xxxxxx North America Inc., a Delaware corporation (“Xxxxxx US”), and
(“Indemnitee”).
PRELIMINARY STATEMENTS
X. Xxxxxx Group Holdings Limited will effect a scheme of arrangement under Bermuda law (the
“Scheme of Arrangement”) pursuant to which the holders of common shares of Xxxxxx Group
Holdings Limited will become shareholders of Xxxxxx Group Holdings Public Limited Company, an Irish
public limited company (the “Company”).
B. The Company and Xxxxxx US desire to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Xxxxxx group of companies and provide for the
indemnification of, and advancement of expenses to, such persons to the maximum extent permitted by
law.
C. In addition to any rights granted the Indemnitee under the articles of association of the
Company (the “Articles”) or any agreement entered into between Indemnitee and the Company,
the parties desire to enter into this Agreement to provide for the indemnification of, and
advancement of expenses to, Indemnitee to the maximum extent permitted by law.
X. Xxxxxx US has requested that, at or following the Scheme of Arrangement, the Company
guarantee certain debt and take other actions for the benefit of Xxxxxx US. In partial
consideration therefor, Xxxxxx US has agreed to provide, from time to time after the Scheme of
Arrangement, indemnity and other rights to the members of the board of directors, secretaries,
officers and executives of the Company as well as to other persons.
AGREEMENT
In consideration of the premises and the covenants contained herein, of Indemnitee serving the
Company directly or, at Xxxxxx US and/or the Company’s request, with another Enterprise, and for
other good and valuable consideration, receipt of which is hereby acknowledged, and intending to be
legally bound hereby, the parties do hereby agree as follows:
1. Services to the Company. At the request of Xxxxxx US, Indemnitee has agreed to
serve as a director, secretary, officer or executive 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 Xxxxxx US (or any of their subsidiaries or any
Enterprise) and Indemnitee. The foregoing notwithstanding, this Agreement shall continue in force
after Indemnitee has ceased to serve in such capacity of the Company, subject to and in accordance
with Section 16.
2. Definitions. As used in this Agreement:
(a) “Corporate Status” describes the status of a person who is or was a director,
secretary, officer, executive, employee or agent of the Company or of any other Enterprise which
such person is or was serving at the request of Xxxxxx US and/or the Company.
(b) “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 Xxxxxx US and/or the Company as a director,
secretary, officer, executive, employee, agent or fiduciary.
(c) “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
and matters contemplated by or arising under Section 13(d). Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments, fines, liabilities,
losses or damages against Indemnitee.
(d) “Independent Counsel” means a law firm, or a partner (or, if applicable, member)
of such a law firm, that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Company, Xxxxxx US or Indemnitee in
any matter material to either such party (other than with respect to matters concerning the
Indemnitee under this Agreement, or of 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, Xxxxxx US or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. Xxxxxx US agrees to pay the reasonable fees and expenses
of the Independent Counsel referred to above and to fully indemnify such counsel against any and
all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(e) 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
Xxxxxx US and/or the Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, including any appeal therefrom, 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,
secretary, officer or executive of Xxxxxx US and/or the Company, by reason of any action or
inaction taken by him or of any action or inaction on his part while acting as director, secretary,
officer or executive of Xxxxxx US and/or the Company, or by reason of the fact that he is or was
serving at the request of Xxxxxx US and/or the Company as a director, secretary, officer,
executive, employee or agent of another 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; provided, however,
other than with respect to a Proceeding in connection with, or arising under, this Agreement with
respect to the matters contemplated by or arising under Section 13(d), that the term
“Proceeding” shall not include any action, suit or arbitration initiated by Indemnitee to enforce
Indemnitee’s rights under this Agreement.
3. Indemnity in Third-Party Proceedings. Xxxxxx US 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, other than a Proceeding by or in the right of
the Company or Xxxxxx US to procure a judgment in its favor. Pursuant to this Section 3,
Indemnitee shall be indemnified against all Expenses, judgments, fines, liabilities, losses,
damages and amounts paid in settlement actually and
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reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and, in the case of a
criminal proceeding, had no reasonable cause to believe that his conduct was unlawful. Indemnitee
shall not enter into any settlement in connection with a Proceeding without 10 days prior notice to
Xxxxxx US.
4. Indemnity in Proceedings by or in the Right of the Company or Xxxxxx US. Xxxxxx US
shall indemnify Indemnitee in accordance with the provisions of this Section 4 if
Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in
the right of the Company or Xxxxxx US to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification for Expenses shall be made under
this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have
been finally adjudged by a court to be liable to the Company, unless and only to the extent that
the Delaware Court of Chancery (the “Delaware Court”) or any court in which the Proceeding
was brought shall determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification for such Expenses as the Delaware Court or such other court shall deem proper.
5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, 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, Xxxxxx US 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, Xxxxxx
US shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with (a) each successfully resolved claim, issue or matter and (b) any
claim, issue or matter related to any such successfully resolved claim, issue or matter. 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. This provision is in addition to, and not by way of
limitation of, any other rights of Indemnitee hereunder.
6. Indemnification For Expenses of a Witness. Notwithstanding any other provision of
this Agreement, 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.
7. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, Xxxxxx US
shall indemnify Indemnitee to the fullest extent permitted by law if Indemnitee is a party to or is
threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the
Company or Xxxxxx US to procure a judgment in its favor) against all Expenses, judgments, fines,
liabilities, losses, damages and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding.
(b) For purposes of Section 7(a), the meaning of the phrase “to the fullest extent
permitted by law” shall include, but not be limited to:
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(i) to the fullest extent permitted by the provisions of Delaware General Corporation Law (the
“DGCL”) that authorize, permit or contemplate additional indemnification by agreement,
court action or the corresponding provision of any amendment to or replacement of the DGCL or such
provisions thereof;
(ii) to the fullest extent permitted by the provisions of the Articles that authorize, permit
or contemplate additional indemnification by agreement, court action or the corresponding provision
of any amendment to or replacement of the Articles or such provisions thereof;
(iii) to the fullest extent permitted by the provisions of Irish law that authorize, permit or
contemplate additional indemnification by agreement, court action or the corresponding provision of
any amendment to or replacement of Irish law or such provisions thereof; and
(iv) to the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL or Irish law (or such successor law), Articles or agreement or court action adopted, entered
into or that are adjudicated after the date of this Agreement that increase the extent to which a
company may indemnify its directors, secretaries, officers and executives.
8. Exclusions. Notwithstanding any provision in this Agreement to the contrary,
Xxxxxx US shall not be obligated under this Agreement to make any payment pursuant to this
Agreement:
(a) for which payment has actually been made to or on behalf of Indemnitee by or on behalf of
Xxxxxx US or the Company 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;
(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 U.S. Securities
Exchange Act of 1934, as amended, or any successor provision or similar provisions of state
statutory law or common law; or
(c) for which payment is expressly prohibited by Delaware law.
These exclusions shall not limit the right to advancement of Expenses under Section 9 or
otherwise under this Agreement pending the outcome of any Proceeding unless such advancement of
Expenses is expressly prohibited by Delaware law. Notwithstanding the foregoing, this provision
shall not limit Indemnitee’s obligation to repay Expenses as expressly contemplated elsewhere in
this Agreement or as otherwise expressly required by Delaware law.
9. Advances of Expenses. Xxxxxx US shall advance, to the extent not expressly
prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding, and such
advancement shall be made within five days after the receipt by Xxxxxx US of a statement or
statements requesting such advances (which shall include invoices received by Indemnitee in
connection with such Expenses but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditures made that would cause Indemnitee to waive any
privilege accorded by law shall not be included with the invoice) 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 and to enforce Indemnitee’s rights generally under this
Agreement, including Expenses incurred preparing and forwarding statements to Xxxxxx US to support
the advances claimed. The Indemnitee shall qualify for advances upon the execution
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and delivery to Xxxxxx US of this Agreement which shall constitute an undertaking providing
that the Indemnitee undertakes to the extent required by law to repay the advance of Expenses if
and to the extent that it is ultimately determined by a court of competent jurisdiction in a final
judgment, not subject to appeal, or other competent authority or arbitrator that Indemnitee is not
entitled to be indemnified by Xxxxxx US. This Section 9 shall not apply to any claim made
by Indemnitee for which indemnity is excluded pursuant to Section 8 following the ultimate
determination by a court of competent jurisdiction in a final judgment, not subject to appeal, or
other competent authority or arbitrator. The right to advances under this paragraph shall in all
events continue until final disposition of any Proceeding, including any appeal therein. For the
avoidance of doubt, the provisions of Section 11 shall not apply to advancement of Expenses
as contemplated by this Section 9.
10. Procedure for Notification and Defense of Claim.
(a) To obtain indemnification under this Agreement or advancement of Expenses or other costs
or expenses, including attorney’s fees and disbursements, contemplated hereby, Indemnitee shall
submit to Xxxxxx US a written request therefor.
(b) Xxxxxx US will be entitled to participate in the Proceeding at its own expense.
11. Procedure Upon Application for Indemnification.
(a) Xxxxxx US shall promptly provide the indemnification rights and undertake related
obligations contemplated by this Agreement. If Xxxxxx US concludes, on written advice of counsel,
that a determination with respect to Indemnitee’s entitlement to indemnification, in the specific
case, is required by law, then Xxxxxx US shall immediately notify Indemnitee in writing. Promptly
thereafter, the board of directors of Xxxxxx US or, if requested by Indemnitee within
10 days after receipt of such written notice, Independent Counsel shall make a determination with
respect to Indemnitee’s entitlement to indemnification. If such determination is made by
Independent Counsel, it shall be in a written statement to the board of directors of Xxxxxx US, a
copy of which shall be delivered to Indemnitee. If it is so determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within five days after such statement is
delivered. Indemnitee shall cooperate with the Independent Counsel making such determination with
respect to Indemnitee’s entitlement to indemnification, including providing to such counsel 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 attorneys’ fees and disbursements) incurred
by Indemnitee in so cooperating with the Independent Counsel shall be borne by Xxxxxx US
(irrespective of the determination as to Indemnitee’s entitlement to indemnification) and Xxxxxx US
hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) The Independent Counsel shall be selected by Indemnitee and notified in writing to Xxxxxx
US. Xxxxxx US may, within three days after written notice of such selection, deliver to the
Indemnitee 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, 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 10 days after the later of submission by Indemnitee of a written request
for indemnification pursuant to Section 10(a), and the final disposition of
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the Proceeding, including any appeal therein, no Independent Counsel shall have been selected
and not objected to, the Indemnitee may petition a court of competent jurisdiction for resolution
of any objection which shall have been made by Xxxxxx US to the 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
11(a). Upon the due commencement of any judicial proceeding or arbitration pursuant to
Section 13(a), Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of professional conduct then
prevailing).
12. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to such entitlement to indemnification hereunder,
the Independent Counsel 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 10(a), and Xxxxxx US shall have the burden of proof to overcome
that presumption in connection with the making by the Independent Counsel of any determination
contrary to that presumption. Neither the failure of Xxxxxx US or of 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 Xxxxxx US or by 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) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of guilty, 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 did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his conduct was unlawful.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action or inaction is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the
Enterprise or the board of directors of Xxxxxx US or counsel selected by any committee of the board
of directors of Xxxxxx US or on information or records given or reports made to the Enterprise by
an independent certified public accountant or by an appraiser, investment banker or other expert
selected with reasonable care by Xxxxxx US or the board of directors of Xxxxxx US or any committee
of the board of directors of Xxxxxx US. The provisions of this Section 12(c) shall not be
deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may
be deemed to have met the applicable standard of conduct set forth in this Agreement.
(d) The knowledge and/or actions, or failure to act, of any director, secretary, officer,
executive, employee or agent of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
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13. Remedies of Indemnitee.
(a) Subject to Section 13(e), in the event that (i) a determination is made pursuant
to Section 11 that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 9, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 11(a) within 60
days after receipt by Xxxxxx US of the request for indemnification, (iv) payment of indemnification
is not made pursuant to Section 5 or 6 or the last sentence of Section
11(a) within 10 days after receipt by Xxxxxx US of a written request therefor, or (v) payment
of indemnification pursuant to Section 3, 4 or 7 is not made within five
days after a determination has been delivered to the Board of Directors of Xxxxxx US that
Indemnitee is entitled to indemnification, Indemnitee shall be entitled to apply to court for an
adjudication 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 180 days
following the date on which Indemnitee first has the right to commence such proceeding pursuant to
this Section 13(a); provided, however, that the foregoing clause shall not
apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section
5. Neither the Company nor Xxxxxx US shall 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 11(a)
that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 13 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 13, Xxxxxx US 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 11(a) that Indemnitee
is entitled to indemnification, Xxxxxx US shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this Section 13, 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) an
express prohibition of such indemnification under law.
(d) Xxxxxx US shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 13 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 Xxxxxx US is bound by all the provisions of this Agreement. It is the
intent of Xxxxxx US that the Indemnitee not be required to incur legal fees or other Expenses
associated with the interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement by litigation or otherwise because the cost and expense thereof would substantially
detract from the benefits intended to be extended to the Indemnitee hereunder. Xxxxxx US shall
indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within 10
days after receipt by Xxxxxx US of a written request therefor) advance, to the extent not expressly
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 Xxxxxx US under
this Agreement or under any directors’ and officers’ liability insurance policies maintained by the
Company if, in the case of indemnification, Indemnitee is wholly successful on the underlying
claims and if Indemnitee is not wholly successful on the underlying claims, then such
indemnification shall be only to the extent Indemnitee is successful on such underlying claims or
otherwise as permitted by law, whichever is greater.
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(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, including any appeal therein.
(f) To the extent that Xxxxxx US is unable to pay any amounts for indemnification or
advancement of Expenses hereunder, Indemnitee may pursue any other company in the Xxxxxx group to
receive such indemnification or advancement of Expenses.
14. Assumption of Indemnification Obligations of Xxxxxx Group Holdings Limited. In
addition to all other obligations hereunder and without limiting any rights of Indemnitee
hereunder, Xxxxxx US expressly agrees to, and hereby assumes, all indemnification, advancement of
Expenses and/or similar obligations of Xxxxxx Group Holdings Limited to Indemnitee in existence
immediately prior to the effectiveness of the Scheme of Arrangement pursuant to, and upon the terms
of, the provisions set forth in the bye-laws of Xxxxxx Group Holdings Limited as then in effect and
applicable and without regard to whether such provisions thereafter change or Xxxxxx Group Holdings
Limited is thereafter liquidated, dissolved or otherwise ceases to exist.
15. 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, a substitute for, or to diminish or abrogate, any other
rights to which Indemnitee may at any time be entitled under law, the memorandum of association of
the Company, the Articles, any agreement (including any agreement between Indemnitee and any other
Enterprise), a vote of stockholders or a resolution of directors, or otherwise, and rights of
Indemnitee under this Agreement shall supplement and be in furtherance of any other such rights.
More specifically, the parties intend that Indemnitee shall be entitled to (i) indemnification to
the maximum extent permitted by, and the fullest benefits allowable under, Delaware law in effect
at the date hereof or as the same may be amended to the extent that such indemnification or
benefits are increased thereby, and (ii) such other benefits as are or may be otherwise available
to Indemnitee pursuant to this Agreement, any other agreement or otherwise. The rights of
Indemnitee hereunder shall be a contract right and, as such, shall run to the benefit of
Indemnitee. 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 Delaware law, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would be afforded currently, including
without limitation under the Articles and/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 and
this Agreement shall be automatically amended to provide the Indemnitee with such greater benefits.
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. If Indemnitee is entitled under any provision
of this Agreement to indemnification for some or a portion of Expenses or other costs or expenses,
including attorney’s fees and disbursements, but not, however, for the total amount thereof,
Indemnitee shall nevertheless be indemnified for the portion thereof to which Indemnitee is
entitled.
(b) To the extent that Xxxxxx US or the Company (including any affiliates) maintains an
insurance policy or policies providing liability insurance for directors, secretaries, officers,
executives, employees or agents of the Company or of any other Enterprise, Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the maximum extent of
the coverage available
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for any such director, secretary, officer, executive, employee or agent under such policy or
policies (notwithstanding any limitations regarding indemnification or advancement of Expenses
hereunder and whether or not Xxxxxx US or the Company would have the power to indemnify such person
against such covered liability under this Agreement). If, at the time of the receipt of a notice of
a claim pursuant to the terms hereof, Xxxxxx US or the Company has such liability insurance in
effect, Xxxxxx US shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective policies. Xxxxxx US and 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, including by bringing claims against the insurers.
(c) In the event of any payment under this Agreement, the Company and Xxxxxx US shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute at the request of Xxxxxx US all papers required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable the Company and/or
Xxxxxx US to bring suit to enforce such rights.
(d) Xxxxxx US shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder or for which advancement of Expenses is provided hereunder if and
to the extent that Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise by or on behalf of Xxxxxx US or the Company.
(e) Xxxxxx US’ obligation to indemnify or advance Expenses hereunder to Indemnitee who is or
was serving at the request of the Company as a director, secretary, officer, executive, employee or
agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of Expenses from such other Enterprise.
16. 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 at the request of
Xxxxxx US and/or the Company as a director, secretary, officer or executive of the Company or other
Enterprise or (b) one year after the final termination of any Proceeding, including any appeal,
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 13
relating thereto.
17. Successors and Assigns. This Agreement shall be binding upon Xxxxxx US and its
successors and assigns and shall inure to the benefit of Indemnitee and his heirs, executors and
administrators. Xxxxxx US and the Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a
substantial part, of the business and/or assets of Xxxxxx US or the Company, by written agreement
in form and substance satisfactory to the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that Xxxxxx US would be required to perform if
no such succession had taken place. Failure to comply with the foregoing shall be a breach of this
Agreement.
18. 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
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(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.
19. Enforcement.
(a) Xxxxxx US 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 serve as a director,
secretary, officer or executive of the Company, and Xxxxxx US acknowledges that Indemnitee is
relying upon this Agreement in serving as a director, secretary, officer or executive of the
Company.
(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 any obligations of
Xxxxxx Group Holdings Limited, the Articles, applicable law, agreements or deeds with the Company
or any other Enterprise and any applicable insurance maintained for the benefit of Indemnitee, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder. In the event of a conflict between this Agreement and any agreement or deed between
the Company and Indemnitee, the agreement or deed (or provision thereof), as applicable, granting
Indemnitee the greatest legally enforceable rights shall prevail.
20. Modification and Waiver. No supplement, modification or amendment, or wavier of
any provision, 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.
21. Notice by Indemnitee. Indemnitee agrees promptly to notify Xxxxxx US in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so notify Xxxxxx US shall
not relieve Xxxxxx US of any obligation which it may have to the Indemnitee under this Agreement or
otherwise.
22. 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 e-mail
or facsimile transmission, with receipt of confirmation that such transmission has been received:
| (a) | If to Indemnitee, at such addresses as Indemnitee shall provide to Xxxxxx US. | ||
| (b) | If to Xxxxxx US, to: | ||
| Xxxxxx North America, Inc. 00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx 00000 Attention: E-mail: |
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or to any other addresses as may have been furnished to Indemnitee by Xxxxxx US.
23. Contribution. To the fullest extent permissible under law, if the indemnification
and/or advancement of Expenses provided for in this Agreement is unavailable to Indemnitee for any
reason whatsoever, Xxxxxx US, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for Expenses, judgments, fines, liabilities, losses, damages,
excise taxes and/or amounts paid or to be paid in settlement, 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: (a) the relative
benefits received by Xxxxxx US or the Company and Indemnitee as a result of the event(s) and/or
transaction(s) giving cause to such Proceeding; and/or (b) the relative fault of Xxxxxx US or the
Company (and its directors, secretaries, officers, executives, employees and agents) and Indemnitee
in connection with such event(s) and/or transaction(s).
24. 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 State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 13(a), Xxxxxx US and
Indemnitee hereby irrevocably and unconditionally (a) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Delaware Court, and not in
any other state or federal court in the United States of America or any court in any other country,
(b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any
action or proceeding arising out of or in connection with this Agreement, (c) appoint, to the
extent such party is not otherwise subject to service of process in the State of Delaware, The
Corporation Trust Company, Wilmington, Delaware as its agent in the State of Delaware as such
party’s agent for acceptance of legal process in connection with any such action or proceeding
against such party with the same legal force and validity as if served upon such party personally
within the State of Delaware, (d) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (e) waive, and agree not to plead or to make, any claim that
any such action or proceeding brought in the Delaware Court has been brought in an improper or
inconvenient forum.
25. Third Party Beneficiaries. Nothing in this Agreement shall be construed for any
shareholder or creditor of the Company to be a third party beneficiary or to confer any such
persons beneficiary rights or status.
26. Counterparts. This Agreement may be executed in one or more counterparts
(including by facsimile or .pdf), 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.
27. Headings. The headings of the sections 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.
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The parties have caused this Agreement to be signed as of the day and year first above written.
XXXXXX NORTH AMERICA INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE |
||||
| By: | ||||
| Name: | ||||
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