EXHIBIT 99.12
FORM OF
INDEMNIFICATION AGREEMENT
Indemnification Agreement entered into by way of deed on [date] between
ADT Limited, a Bermuda company limited by shares (the "Company"), and
__________, a __________ of the Company (the "Indemnitee").
WITNESSETH:
WHEREAS, the Indemnitee is currently serving as a ___________ of the
Company;
WHEREAS, Section 98(1) of the Companies Act 1981 of Bermuda (as amended
from time to time, the "Act") permits the Company, in its Bye-Laws or in any
contract or arrangement with any officer of the Company, subject to certain
exemptions, to indemnify such officer in respect of certain losses and
liabilities incurred by such officer in his capacity as an officer of the
Company and Section 98A of the Act permits the Company to purchase and
maintain insurance for the benefit of such officer in respect of such losses
and liabilities;
WHEREAS, Bye-Law 102 of the Company's Bye-Laws contains an indemnity by
the Company in favor of every director, secretary and other officer of the
Company, and the Indemnitee has been serving and continues to serve as a
director of the Company in part in reliance on his being indemnified by the
Company; and
WHEREAS, in recognition of the Indemnitee's need for substantial
protection against personal liability in connection with the Indemnitee's
continued service to the Company in an effective manner and the Indemnitee's
reliance on his being indemnified by the Company, the Company desires to
provide the Indemnitee with specific contractual assurance that the Indemnitee
is indemnified by the Company to the full extent permitted by applicable law.
NOW, THEREFORE, the parties hereto agree as follows:
1. Indemnification. (a) The Company hereby agrees to pay all costs,
losses and expenses (including without limitation, attorneys' and others fees
and expenses, judgments, fines, penalties and amounts paid in settlement)
(collectively, "Expenses") which the Indemnitee may incur or become liable for
in connection with any threatened, pending or completed action, suit,
proceeding or inquiry (whether civil, criminal, administrative or
investigative) (collectively, "Actions") by reason of the fact that the
Indemnitee is or was a ___________ of the Company, or is or was serving or had
agreed to serve at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, including without limitation any subsidiary of the Company.
(b) The Company hereby agrees to pay all Expenses incurred by the
Indemnitee in participating in or preparing to participate in any Action in
advance of the final disposition of such Action upon request by the Indemnitee
that the Company pay such Expenses. The Indemnitee hereby agrees to repay to
the Company any such Expenses paid by the Company if and to the extent that it
is ultimately determined that the Indemnitee is not entitled under applicable
law to be indemnified as provided hereby.
(c) If the Indemnitee is entitled under this Agreement to
indemnification by the Company for some, but not the total amount, of any
Expenses, the Company shall nevertheless indemnify the Indemnitee for the
portion of such Expenses to which the Indemnitee is entitled to
indemnification.
(d) In the event that any Action is instituted by the Indemnitee to
enforce or interpret the Indemnitee's right to indemnification hereunder, the
Indemnitee shall be entitled to be paid all Expenses incurred by the
Indemnitee with respect to such Action, unless as a part of such Action, the
court of competent jurisdiction determines that the material assertions made
by the Indemnitee as a basis for such Action were not made in good faith or
were frivolous.
2. Procedures. (a) The Indemnitee shall promptly notify the Company
in writing of any Action brought, threatened, commenced or asserted against
the Indemnitee in respect of which indemnification may or could be sought
under this Agreement.
(b) The Company shall have the right to assume the defense of any such
Action, including the employment of counsel reasonably satisfactory to the
Indemnitee and the payment of all Expenses. The Indemnitee shall have the
right to employ separate counsel in any such Action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the Indemnitee unless (i) the Company agrees to pay such fees and
expenses, (ii) the Company shall have failed promptly to assume the defense of
such Action or (iii) the Indemnitee shall have reasonably concluded, upon the
advice of counsel, that there is a conflict of interest between the Indemnitee
and the Company. If the Indemnitee has made the conclusion referred to in
clause (iii), the Company shall not have the right to assume the defense of
such Action on behalf of the Indemnitee.
(c) Neither the Company nor the Indemnitee may settle or compromise
any Action covered by the indemnification set forth herein without the prior
written consent of the other, which such consent shall not to be unreasonably
withheld or delayed.
(d) The Company shall make payment of any amount due by it under this
Agreement against delivery to the Company of appropriate invoices or receipts
or such other evidence of Expenses as the Company reasonably requires.
3. Insurance. The Company hereby agrees to obtain and maintain in
effect a policy or policies of insurance with reputable insurance companies
providing for customary directors and officers liability insurance in
appropriate amounts; provided that the Company shall not be required obtain
and maintain such insurance if the Company determines in good faith that (i)
such insurance is not reasonably available, (ii) the premium costs for such
insurance are disproportionate to the amount of coverage provided or (iii) the
coverage provided is so limited by exclusions as to provide an insufficient
benefit.
4. Non-Exclusivity; No Duplication. The rights of the Indemnitee
under this Agreement shall not be exclusive of any other rights the Indemnitee
may have under the Company's Bye-Laws, the Act, any insurance or otherwise;
provided that the Company shall not be liable under this Agreement to make any
payment in connection with any claim to the extent the Indemnitee has
otherwise received payment (under the Bye-Laws, the Act, any insurance policy
or otherwise) of Expenses otherwise indemnifiable hereunder; and provided
further that the Indemnitee shall reimburse the Company for amounts paid to
the Indemnitee pursuant to such other rights to the extent such payments
duplicate any payments received pursuant to this Agreement.
5. Subrogation. In the event of payment of any Expenses, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
6. Notices. All notices or other communications that are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by certified or registered mail, overnight delivery or by facsimile
transmission. Notice to the Company shall be given at ADT Limited, Xxxxx
Xxxxx, 00 Xxxxx Xxxxxx, Xxxxxxxx XX 00, Xxxxxxx and shall be directed to the
General Counsel (or such other address or person as the Company subsequently
shall designate in writing to the Indemnitee). Notice to the Indemnitee shall
be given at the address set forth on the signature page hereof (or such other
address as the Indemnitee subsequently shall designate in writing to the
Company).
7. Binding Effect; Successors and Assigns. 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 by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), permitted
assigns, heirs and legal representatives; provided that this Agreement and the
rights and obligations hereunder may not be assigned (in whole or in part) by
any party hereto without the prior written consent of the other party hereto.
8. Severability. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement
and the application of such provision to other persons or circumstances shall
not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be modified to the extent (but only to the extent)
necessary to make it enforceable, valid and legal.
9. Amendment. No supplement, modification or amendment of this
Agreement shall be valid or binding unless executed in writing by both of the
parties hereto.
10. Applicable Law. (a) The provisions of this Agreement shall apply
subject to, but to the full extent permitted by, the Act and any other
applicable law.
(b) This Agreement shall be governed by the laws of Bermuda, without
regard to the principles of conflicts of laws thereof.
IN WITNESS WHEREOF, this Agreement has been executed as a deed and has
been delivered on the date first above written.
The Common Seal of ADT Limited was )
affixed to this deed in the presence of: )
____________________________
Director
____________________________
Director/Secretary
Signed, sealed and delivered as a deed by )
[Indemnitee] in the presence of: )
L.S.
____________________________
Name:
Address:
Address of [Indemnitee] for Notices:
