FORM OF DEED OF INDEMNITY
Exhibit 10.20
FORM OF DEED OF INDEMNITY
This Deed of Indemnity (this “Deed”) is made as of ______ by and
between Xxxxxx Group Holdings Public Limited Company, an Irish public limited company (the
“Company”), 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 the Company.
B. The Company desires to attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Company and provide for the indemnification of, and advancement of
expenses to, such persons to the maximum extent permitted by law.
C. The articles of association of the Company (the “Articles”) provide that
the indemnification provisions set forth therein shall not be deemed exclusive and thereby
contemplate that agreements may be made with members of the board of directors, secretaries,
officers, executives and other persons with respect to indemnification.
D. Indemnitee has been asked to serve as a director, secretary or executive of the Company
and, as partial consideration for agreeing to do so, the Company has agreed to enter into this Deed
with Indemnitee.
AGREEMENT
In consideration of the premises and the covenants contained herein, of Indemnitee serving the
Company directly or, at 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. 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 Deed to continue Indemnitee
in such position. This Deed shall not be deemed an employment contract between the Company (or any
of its subsidiaries or any Enterprise) and Indemnitee. The foregoing notwithstanding, this Deed
shall continue in force after Indemnitee has ceased to serve in such capacity of the Company,
subject to and in accordance with Section 13.
2. Definitions. As used in this Deed:
(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 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 the Company as a director, secretary, officer,
executive, employee, agent or fiduciary.
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(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 11(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 or Indemnitee in any matter
material to either such party (other than with respect to matters concerning the Indemnitee under
this Deed, 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 or Indemnitee in an action to determine Indemnitee’s rights under
this Deed. The Company 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 Deed 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
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 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 the Company, or
by reason of the fact that he is or was serving at the request of 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 Deed;
provided, however, other than with respect to a Proceeding in connection with, or
arising under, this Deed with respect to the matters contemplated by or arising under Section
11(d), that the term “Proceeding” shall not include any action, suit or arbitration initiated
by Indemnitee to enforce Indemnitee’s rights under this Deed.
3. Indemnity. The Company shall indemnify Indemnitee in accordance with the
provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding. Pursuant to this Section 3, Indemnitee shall be indemnified
against all Expenses, judgments, fines, liabilities, losses, damages and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding
or any claim, issue or matter therein to the fullest extent permitted by law. Indemnitee shall not
enter into any settlement in connection with a Proceeding without 10 days prior notice to the
Company. For purposes of this Deed, the meaning of the phrase “to the fullest extent permitted
by law” shall include, but not be limited to: (i) to the fullest extent permitted by the
provisions of Irish law and/or the Articles that authorize, permit or contemplate indemnification
by agreement, court action or the corresponding provision of any amendment to or replacement of
such provisions; and (ii) to the fullest extent authorized or permitted by any amendments
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to or replacements of Irish law and/or the Articles adopted after the date of this Deed that
increase the extent to which a company may indemnify its directors, secretaries, officers and
executives. The Company agrees to take all reasonable actions to facilitate any application by
Indemnitee under section 391 of the Irish Companies Act 1963 (as amended) (including any successor
provision, “Section 391”), including without limitation the payment of any costs or
expenses incurred by Indemnitee in making such application.
4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Deed, to the extent that Indemnitee is a party to or a
participant in and is successful, on the merits or otherwise, in any Proceeding or in defense of
any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the
Company shall 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.
5. Indemnification For Expenses of a Witness. Notwithstanding any other provision of
this Deed, 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.
6. Exclusions. Notwithstanding any provision in this Deed to the contrary, the
Company shall not be obligated under this Deed to make any payment pursuant to this Deed:
(a) for which payment has actually been made to or on behalf of Indemnitee by or on behalf of
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 equivalent provisions in any applicable jurisdiction; or
(c) for which payment is expressly prohibited by law (including, with respect to any director
or secretary, in respect of any liability expressly prohibited from being indemnified pursuant to
section 200 of the Irish Companies Act 1963 (as amended)) (including any successor provision,
“Section 200”), but (i) in no way limiting any rights under Section 391, and (ii) to the
extent any such limitations or prescriptions are amended or determined by a court of competent
jurisdiction to be void or inapplicable, or relief to the contrary is granted, then the Indemnitee
shall receive the greatest rights then available under law (as further set forth in Section
12).
These exclusions shall not limit the right to advancement of Expenses under Section 7 or
otherwise under this Deed pending the outcome of any Proceeding unless such advancement of Expenses
is expressly prohibited by law. Notwithstanding the foregoing, this provision shall not limit
Indemnitee’s obligation to repay Expenses as expressly contemplated elsewhere in this Deed or as
otherwise expressly required by law.
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7. Advances of Expenses. The Company 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 the Company 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
Deed. Advances shall include any and all reasonable Expenses incurred pursuing an action to enforce
this right of advancement, an action to enforce Indemnitee’s rights generally under this Deed and
any application under Section 391, including Expenses incurred preparing and forwarding statements
to the Company to support the advances claimed. The Indemnitee shall qualify for advances upon the
execution and delivery to the Company of this Deed 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 the Company. Indemnitee further undertakes to repay any amounts paid
by the Company for indemnification hereunder 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 the Company. This
Section 7 shall not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to Section 6 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 9 shall not apply to advancement of Expenses as contemplated
by this Section 7.
8. Procedure for Notification and Defense of Claim.
(a) To obtain indemnification under this Deed (including, without limitation, with respect to
advancement of Expenses or other costs or expenses, including attorney’s fees and disbursements,
for which indemnity is permitted hereby), Indemnitee shall submit to the Company a written request
therefor.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
9. Procedure Upon Application for Indemnification.
(a) The Company shall promptly provide the indemnification rights and undertake related
obligations contemplated by this Deed. If the Company 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 the Company shall immediately notify Indemnitee in writing. Promptly
thereafter, the board of directors of the Company 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 the Company, 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,
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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 the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(b) The Independent Counsel shall be selected by Indemnitee and notified in writing to the
Company. The Company 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 8(a), and the final disposition of 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 the Company 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 9(a). Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section 11(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).
10. 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 Deed if Indemnitee has submitted a request for indemnification in
accordance with Section 8(a), and the Company 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 the Company or of Independent Counsel to have
made a determination prior to the commencement of any action pursuant to this Deed that
indemnification is proper in the circumstances because Indemnitee has met any applicable standard
of conduct, nor an actual determination by the Company 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 Deed) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act honestly and
reasonably and that Indemnitee ought fairly to be excused for the negligence, default, breach of
duty or breach of trust.
(c) For purposes of any determination of honesty and reasonableness, Indemnitee shall be
deemed to have acted honestly and reasonably 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
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counsel for the Enterprise or the board of directors of the Company or counsel selected by any
committee of the board of directors of the Company 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 the Company or the board of directors of
the Company or any committee of the board of directors of the Company. The provisions of this
Section 10(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 Deed.
(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 Deed.
11. Remedies of Indemnitee.
(a) Subject to Section 11(e), in the event that (i) a determination is made pursuant
to Section 9 that Indemnitee is not entitled to indemnification under this Deed, (ii)
advancement of Expenses is not timely made pursuant to Section 7, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 9(a) within 60 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 5 or 6 or the last sentence of Section 9(a)
within 10 days after receipt by the Company of a written request therefor, or (v) payment of
indemnification pursuant to Section 3 or 7 is not made within five days after a
determination has been delivered to the Board of Directors of the Company 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 11(a); provided, however, that the foregoing clause shall not apply
in respect of a proceeding brought by Indemnitee to enforce his rights under Section 4.
The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in
arbitration.
(b) In the event that a determination shall have been made pursuant to Section 9(a)
that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 11 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 11, the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 9(a) that Indemnitee
is entitled to indemnification, the Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this Section 11, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) an
express prohibition of such indemnification under law.
(d) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 11 that the procedures and presumptions of this Deed are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Deed. It is the intent of the
Company that the Indemnitee not be required to incur legal fees or other Expenses associated with
the interpretation,
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enforcement or defense of Indemnitee’s rights under this Deed by litigation or otherwise
because the cost and expense thereof would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder. The Company shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within 10 days after receipt by the Company 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 the Company under this Deed 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.
(e) Notwithstanding anything in this Deed to the contrary, no determination as to entitlement
to indemnification under this Deed shall be required to be made prior to the final disposition of
the Proceeding, including any appeal therein.
12. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Deed 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 Deed 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, Irish 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 Deed, 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 Deed or of any provision hereof shall limit or restrict any right of Indemnitee
under this Deed 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 Irish 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 Deed,
it is the intent of the parties hereto that Indemnitee shall enjoy by this Deed the greater
benefits so afforded by such change and this Deed 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 Deed 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 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 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 the
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Company would have the power to indemnify such person against such covered liability under
this Deed). If, at the time of the receipt of a notice of a claim pursuant to the terms hereof,
the Company has such liability insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies, including by bringing claims against the
insurers.
(c) In the event of any payment under this Deed, the Company 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
the Company all papers required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
(d) The Company shall not be liable under this Deed 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 the Company.
(e) The Company’s 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.
13. Duration of Deed. This Deed shall continue until and terminate upon the later of
(a) 10 years after the date that Indemnitee shall have ceased to serve 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 11 relating thereto.
14. Successors and Assigns. This Deed shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Indemnitee and his heirs, executors and
administrators. 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 the Company, by written agreement in form and substance satisfactory
to the Indemnitee, expressly to assume and agree to perform this Deed in the same manner and to the
same extent that the Company would be required to perform if no such succession had taken place.
Failure to comply with the foregoing shall be a breach of this Deed.
15. Severability. The parties intend that the rights granted under this Deed and the
obligations of the Company hereunder comply in all respects with the applicable Irish law,
including any limitations on indemnity or the ability for Indemnitee to request be excused for
negligence, default, breach of duty or breach of trust (however such limitations or rights may
exist from time to time under Irish law). If any provision or provisions of this Deed 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 Deed (including without limitation, each
portion of any Section of this Deed 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 Deed (including, without limitation, each portion
of any
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Section of this Deed 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.
16. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Deed 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 the Company acknowledges that Indemnitee is
relying upon this Deed in serving as a director, secretary, officer or executive of the Company.
(b) This Deed 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 Deed is a supplement to and in furtherance of the Articles, applicable
law 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.
17. Modification and Waiver. No supplement, modification or amendment, or wavier of
any provision, of this Deed shall be binding unless executed in writing by the parties thereto. No
waiver of any of the provisions of this Deed shall be deemed or shall constitute a waiver of any
other provisions of this Deed nor shall any waiver constitute a continuing waiver.
18. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation which it may have to the Indemnitee under this Deed or
otherwise.
19. Notices. All notices, requests, demands and other communications under this Deed
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
facsimile transmission, with receipt of confirmation that such transmission has been received:
(a) If to Indemnitee, at such addresses as Indemnitee shall provide to the Company.
(b) If to the Company, to:
Xxxxxx Group Holdings Public Limited Company
c/x Xxxxxx of New York, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Group General Counsel
E-mail:
c/x Xxxxxx of New York, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Group General Counsel
E-mail:
or to any other addresses as may have been furnished to Indemnitee by the Company.
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20. Contribution. To the fullest extent permissible under law, if the indemnification
and/or advancement of Expenses provided for in this Deed is unavailable to Indemnitee for any
reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for 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 Deed, 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 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 the Company (and its directors,
secretaries, officers, executives, employees and agents) and Indemnitee in connection with such
event(s) and/or transaction(s).
21. Representation and Warranty of the Company. The Company represents and warrants
to Indemnitee that it has the absolute and unrestricted right, power and authority to execute and
deliver this Deed and to perform its obligations under this Deed.
22. Applicable Law and Consent to Jurisdiction. This Deed and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with, the laws of
Ireland, without regard to its conflict of laws rules. Except with respect to any arbitration
commenced by Indemnitee pursuant to Section 11(a), the Company and Indemnitee hereby
irrevocably and unconditionally that any action or proceeding arising out of or in connection with
this Deed may be brought in any court in Ireland, the United States of America or the country of
residence of the Indemnitee or in any other court in which jurisdiction may be properly asserted.
The parties waive any objection to the laying of venue in Ireland, the United States of America or
the country of residence of the Indemnitee and waive, and agree not to plead or make, any claim
that any such action or proceeding brought in such places has been brought in an improper or
inconvenient forum.
23. Third Party Beneficiaries. Nothing in this Deed 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.
24. Counterparts. This Deed 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 Deed. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Deed.
25. Headings. The headings of the sections of this Deed are inserted for convenience
only and shall not be deemed to constitute part of this Deed or to affect the construction thereof.
(Remainder of page intentionally left blank)
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The parties have caused this Deed to be signed as of the day and year first above written.
| INDEMNITEE | ||||
| By: | ||||
| Name: | ||||
PRESENT when the COMMON SEAL of
XXXXXX GROUP HOLDINGS PUBLIC LIMITED COMPANY
was affixed hereto:
XXXXXX GROUP HOLDINGS PUBLIC LIMITED COMPANY
was affixed hereto:
| By: | ||||
| Name: | ||||
| Director/Member of Sealing Committee | ||||
| By: | ||||
| Name: | ||||
| Director/Secretary/Member of Sealing Committee | ||||
11
