FORM OF] DEED OF INDEMNIFICATION
Exhibit 10.4
[FORM OF] DEED OF INDEMNIFICATION
THIS DEED OF INDEMNIFICATION (this “Agreement”), dated as of , 2016, is made by and between Tyco International plc (company number 543654, in the process of changing its name to Xxxxxxx Controls International plc, and hereinafter referred to as “Xxxxxxx Controls”), an Irish public limited company, and [·] (“Indemnitee”).
WHEREAS, it is essential to Xxxxxxx Controls to retain and attract as directors, secretary and officers the most capable persons available;
WHEREAS, Indemnitee is a director, secretary or officer of Xxxxxxx Controls;
WHEREAS, each of Xxxxxxx Controls and Indemnitee recognize the increased risk of litigation and other claims currently being asserted against directors and officers of companies;
WHEREAS, in recognition of Indemnitee’s need for (i) substantial protection against personal liability, (ii) specific contractual assurance that such protection will be available to Indemnitee (regardless of, among other things, any amendment to or revocation of Xxxxxxx Controls’ Articles of Association or any change in the composition of Xxxxxxx Controls’ Board of Directors or acquisition transaction relating to Xxxxxxx Controls), Xxxxxxx Controls wishes to provide in this Agreement for the indemnification by Xxxxxxx Controls of Indemnitee as set forth in this Agreement;
NOW, THEREFORE, in consideration of the above premises and of Indemnitee continuing to serve Xxxxxxx Controls directly or, at its request, with another Enterprise, and intending to be legally bound hereby, the parties agree as follows:
1. Certain Definitions.
(a) Affiliate: any corporation or other person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.
(b) Board: the Board of Directors of Xxxxxxx Controls.
(c) Change in Control: shall be deemed to have occurred if:
(i) any “person,” as such term is used in Sections 3(a)(9) and 13(d) of the Exchange Act, becomes a “beneficial owner,” as such term is used in Rule 13d-3 promulgated under the Exchange Act, of 50% or more of the Voting Shares (as defined below) of Xxxxxxx Controls;
(ii) the majority of the Board consists of individuals other than Incumbent Directors, which term means the members of the Board as of the date hereof, provided that any person becoming a director subsequent to such time whose election or nomination for election was supported by three-quarters of the directors who immediately prior to such election or nomination for election comprised the Incumbent Directors shall be considered to be an Incumbent Director;
(iii) Xxxxxxx Controls adopts any plan of liquidation providing for the distribution of all or substantially all of its assets;
(iv) all or substantially all of the assets or business of Xxxxxxx Controls is disposed of pursuant to a merger, consolidation or other transaction (unless the shareholders of Xxxxxxx Controls immediately prior to such a merger, consolidation or other transaction beneficially own, directly or indirectly, in substantially the same proportion as they owned the Voting Shares of Xxxxxxx Controls, all of the Voting Shares or other ownership interests of the entity or entities, if any, that succeed to the business of Xxxxxxx Controls); or
(v) Xxxxxxx Controls combines with another company and is the surviving entity but, immediately after the combination, the shareholders of Xxxxxxx Controls immediately prior to the combination hold, directly or indirectly, 50% or less of the Voting Shares of the combined company (there being excluded from the number of shares held by such shareholders, but not from the Voting Shares of the combined company, any shares received by Affiliates of such other company in exchange for shares of such other company), provided, however, that any occurrence that would, in the absence of this proviso, otherwise constitute a Change in Control pursuant to any of clause (i), (iii), (iv) or (v) above, shall not constitute a Change in Control if such occurrence is approved by a majority of the directors on the Board who were directors immediately prior to such occurrence,
PROVIDED THAT, in each case a Change in Control does not involve the merger of Jagara Merger Sub LLC, a Wisconsin limited liability company and a wholly owned subsidiary of Xxxxxxx Controls, with and into Xxxxxxx Controls, Inc. pursuant to the Agreement and Plan of Merger dated January 24, 2016 entered into by and among Xxxxxxx Controls, Jagara Merger Sub LLC, and Xxxxxxx Controls, Inc..
(d) Enterprise: Xxxxxxx Controls and any other corporation, body corporate, company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of Xxxxxxx Controls or an Affiliate of Xxxxxxx Controls as a director, officer, secretary, trustee, general partner, managing member, fiduciary, board of directors’ committee member, employee or agent.
(e) Exchange Act: the U.S. Securities Exchange Act of 1934, as amended.
(f) Expenses: any expense, liability, or loss, including attorneys’ fees, judgments, fines, ERISA excise taxes and penalties, amounts paid or to be paid in settlement, any interest, assessments, or other charges imposed thereon, any federal, state, local, or foreign taxes imposed as a result of the actual or deemed receipt of any payments under this Agreement, and all other costs and obligations, paid or incurred in connection with investigating, defending, prosecuting (subject to Section 2(b)), being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding relating to any Indemnifiable Event. 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.
(g) Indemnifiable Event: any event or occurrence that takes place either prior to or after the execution of this Agreement, related to the fact that Indemnitee is or was a director, officer, secretary or employee of Xxxxxxx Controls, or while a director, secretary or officer of Xxxxxxx Controls is or was serving at the request of Xxxxxxx Controls or an Affiliate of Xxxxxxx Controls as a director, officer, secretary, employee, trustee, agent, or fiduciary of another foreign or domestic corporation, partnership, body corporate, company, joint venture, employee benefit plan, trust, or other Enterprise, or related to anything done or not done by Indemnitee in any such capacity, whether or not the basis of the Proceeding is alleged action in an official capacity as a director, officer, secretary, employee, trustee, agent, or fiduciary or in any other capacity while serving as a director, officer, secretary, employee, trustee, agent, or fiduciary.
(h) Independent Counsel: the meaning specified in Section 3.
(i) Proceeding: any threatened, pending, or completed action, suit, or proceeding or any alternative dispute resolution mechanism (including an action by or in the right of Xxxxxxx Controls), or any inquiry, hearing, tribunal or investigation, whether conducted by Xxxxxxx Controls or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit, or proceeding, whether civil, criminal, administrative, investigative, or other, or otherwise might give rise to adverse consequences or findings in respect of the Indemnitee.
(j) Reviewing Party: the meaning specified in Section 3.
(k) Voting Shares: shares of any class or classes having general voting power under ordinary circumstances, in the absence of contingencies, to elect the directors (or similar function) of an Enterprise.
2. Agreement to Indemnify.
(a) General Agreement. In the event Indemnitee was, is, or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, Xxxxxxx Controls shall indemnify Indemnitee from and against any and all Expenses to the fullest extent permitted by law, as the same exists or may hereafter be amended or interpreted (but in the case of any such amendment or interpretation, only to the extent that such amendment or interpretation permits Xxxxxxx Controls to provide broader indemnification rights than were permitted prior thereto). For the purposes of this Agreement, 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 of Association or constitution of Xxxxxxx Controls that authorize, permit or contemplate indemnification by agreement, court action or corresponding provisions of any amendment to or replacement of such provisions; and (ii) to the fullest extent authorized or permitted by any amendments to or replacements of Irish law and/or the Articles of Association or constitution of Xxxxxxx Controls adopted after the date of this Agreement that increase the extent to which a company may indemnify its directors or secretary.
(b) Initiation of Proceeding. Notwithstanding anything in this Agreement to the contrary, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against Xxxxxxx Controls or any of its Affiliates or any director,
officer or employee of Xxxxxxx Controls or any of its Affiliates unless (i) Xxxxxxx Controls has joined in or the Board has consented to the initiation of such Proceeding; (ii) the Proceeding is one to enforce indemnification rights under Section 4; or (iii) the Proceeding is instituted after a Change in Control and Independent Counsel has approved its initiation.
(c) Mandatory Indemnification. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, Indemnitee shall be indemnified by Xxxxxxx Controls hereunder against all Expenses incurred in connection therewith.
(d) Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by Xxxxxxx Controls for some or a portion of Expenses, but not, however, for the total amount thereof, Xxxxxxx Controls shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
(e) Prohibited Indemnification. No indemnification pursuant to this Agreement shall be paid by Xxxxxxx Controls:
(i) on account of any Proceeding in which a final and non-appealable judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of Xxxxxxx Controls pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any federal, state, or local laws;
(ii) if a court of competent jurisdiction by a final and non-appealable judgment, shall determine that such indemnification is not permitted under applicable law;
(iii) on account of any Proceeding relating to an Indemnifiable Event as to which the Indemnitee has been convicted of a crime constituting a felony under the laws of the jurisdiction where the criminal action had been brought (or, where a jurisdiction does not classify any crime as a felony, a crime for which Indemnitee is sentenced to death or imprisonment for a term exceeding one year); or
(iv) on account of any Proceeding brought by Xxxxxxx Controls or any of its subsidiaries against Indemnitee.
3. Reviewing Party; Exhaustion of Remedies.
(a) Prior to any Change in Control, the reviewing party (the “Reviewing Party”) shall be any appropriate person or body consisting of a member or members of the Board or any other person or body appointed by the Board who is not a party to the particular Proceeding with respect to which Indemnitee is seeking indemnification; after a Change in Control, the Independent Counsel referred to below shall become the Reviewing Party. With respect to all matters arising after a Change in Control concerning the rights of Indemnitee to indemnity payments and Expense advances under this Agreement, the Indemnification Agreement, dated as of the date hereof, between Tyco Fire & Security (US) Management, Inc., (“Tyco Management”), and Indemnitee (the “Tyco Management Indemnification Agreement”) or any other agreement to which Xxxxxxx Controls or any of its Affiliates is a party or under applicable law, Xxxxxxx Controls’ Articles of
Association, constitution or the certificate of incorporation or bylaws of Tyco Management (the “Tyco Management Organizational Documents”) now or hereafter in effect relating to indemnification for Indemnifiable Events, Xxxxxxx Controls and Tyco Management shall seek legal advice only from independent counsel (“Independent Counsel”) selected by Indemnitee and approved by Xxxxxxx Controls (which approval shall not be unreasonably withheld), and who has not otherwise performed services for Xxxxxxx Controls, Tyco Management or the Indemnitee (other than in connection with indemnification matters) within the last five years. The 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 Xxxxxxx Controls, Tyco Management or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. Such counsel, among other things, shall render its written opinion to Xxxxxxx Controls, Tyco Management and Indemnitee as to whether and to what extent the Indemnitee should be permitted to be indemnified under applicable law. In doing so, the Independent Counsel may consult with (and rely upon) counsel in any appropriate jurisdiction who would qualify as Independent Counsel (“Local Counsel”). To the fullest extent permitted by law, Xxxxxxx Controls agrees to pay the reasonable fees of the Independent Counsel and the Local Counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities, loss, and damages arising out of or relating to this Agreement or the engagement of Independent Counsel or the Local Counsel pursuant hereto.
(b) The Tyco Management Indemnification Agreement provides that, prior to making written demand on Tyco Management for indemnification pursuant to Section 4(a) of the Tyco Management Indemnification Agreement or making a request for Expense Advance (as defined in the Tyco Management Indemnification Agreement) pursuant to Section 2(c) of the Tyco Management Indemnification Agreement, Indemnitee shall (i) seek such indemnification or Expense Advance, as applicable, under any applicable insurance policy and (ii) request that Xxxxxxx Controls consider in its discretion whether to make such indemnification or Expense Advance, as applicable. Upon any such request by Indemnitee of Xxxxxxx Controls, Xxxxxxx Controls shall consider whether to make such indemnification or Expense Advance, as applicable, based on the facts and circumstances related to the request. Xxxxxxx Controls may require, as a condition to making any indemnification or Expense Advance, as applicable, that Indemnitee enter into an agreement providing for such indemnification or Expense Advance, as applicable, to be made subject to substantially the same terms and conditions applicable to an indemnification or Expense Advance, as applicable, by Tyco Management under the Tyco Management Indemnification Agreement (including, without limitation, conditioning any Expense Advance upon delivery to Xxxxxxx Controls of an undertaking of the type described in clause (i) of the proviso to Section 2(c) of the Tyco Management Indemnification Agreement).
4. Indemnification Process and Appeal.
(a) Indemnification Payment. Indemnitee shall be entitled to indemnification of Expenses, and shall receive payment thereof, from Xxxxxxx Controls in accordance with this Agreement as soon as practicable after Indemnitee has made written demand on Xxxxxxx Controls for indemnification, unless the Reviewing Party has given a written opinion to Xxxxxxx Controls that Indemnitee is not entitled to indemnification under applicable law.
(b) Adjudication or Arbitration. (i) Regardless of any action by the Reviewing Party, if Indemnitee has not received full indemnification within thirty days after making a demand or request in accordance with Section 4(a) (a “Nonpayment”), Indemnitee shall have the right to enforce its indemnification rights under this Agreement by commencing litigation in any court located in the country of Ireland (an “Irish Court”) having subject matter jurisdiction thereof seeking an initial determination by the court or by challenging any determination by the Reviewing Party or any aspect thereof. Any determination by the Reviewing Party not challenged by Indemnitee in any such litigation shall be binding on Xxxxxxx Controls, Tyco Management and Indemnitee. The remedy provided for in this Section 4 shall be in addition to any other remedies available to Indemnitee at law or in equity. Xxxxxxx Controls, Tyco Management and Indemnitee hereby irrevocably and unconditionally (A) consent to submit to the non-exclusive jurisdiction of the Irish Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (B) waive any objection to the laying of venue of any such action or proceeding in the Irish Court, and (C) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Irish Court has been brought in an improper or inconvenient forum. For the avoidance of doubt, nothing in this Agreement shall limit any right Indemnitee may have under applicable law to bring any action or proceeding in any other court.
(ii) Alternatively, in the case of a Nonpayment, Indemnitee, at his or her 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.
(iii) In the event that a determination shall have been made pursuant to Section 4(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 4(b) 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 4(b) Xxxxxxx Controls shall have the burden of proving Indemnitee is not entitled to indemnification.
(iv) In the event that Indemnitee, pursuant to this Section 4(b), seeks a judicial adjudication of or an award in arbitration to enforce his or her rights under, or to recover damages for breach of, this Agreement, and it is determined in said judicial adjudication or arbitration that Indemnitee is entitled to receive all of the indemnification sought, Indemnitee shall be entitled to recover from Xxxxxxx Controls, and shall be indemnified by Xxxxxxx Controls against, any and all Expenses actually and reasonably incurred by him in such judicial adjudication or arbitration. If it shall be determined in said judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification sought, the Indemnitee shall be entitled to recover from Xxxxxxx Controls, and shall be indemnified by Xxxxxxx Controls against, any and all Expenses reasonably incurred by Indemnitee in connection with such judicial adjudication or arbitration.
(c) Defense to Indemnification, Burden of Proof, and Presumptions. (i) It shall be a defense to any action brought by Indemnitee against Xxxxxxx Controls to enforce this Agreement that it is not permissible under applicable law for Xxxxxxx Controls to indemnify Indemnitee for the amount claimed.
(ii) In connection with any action or any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proving such a defense or determination shall be on Xxxxxxx Controls.
(iii) Neither the failure of the Reviewing Party to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the Indemnitee is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party that the Indemnitee had not met such applicable standard of conduct, shall, of itself, be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(iv) For purposes of this Agreement, to the fullest extent permitted by law, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
(v) For purposes of any determination of good faith, to the fullest extent permitted by law, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the management of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 4(c)(v) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in applicable law.
(vi) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall, to the fullest extent permitted by law, not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(vii) To the fullest extent permitted by law, Xxxxxxx Controls shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Agreement that the procedures or presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any court or before any arbitrator that Xxxxxxx Controls is bound by all the provisions of this Agreement.
5. Indemnification for Expenses Incurred in Enforcing Rights. In addition to Indemnitee’s rights under Section 4(b)(iv), Xxxxxxx Controls shall indemnify Indemnitee to the fullest extent permitted by law against any and all Expenses that are incurred by Indemnitee in connection with any action brought by Indemnitee:
(a) for indemnification or advance payment of Expenses under any agreement to which Xxxxxxx Controls or any of its Affiliates is a party (other than this Agreement) or under applicable law, Xxxxxxx Controls’ Articles of Association, constitution or the Tyco Management Organizational
Documents now or hereafter in effect relating to indemnification or advance payment of Expenses for Indemnifiable Events (it being specified, for the avoidance of doubt, that this clause (a) shall not be deemed to provide Indemnitee with a right to the indemnification or advance payment of Expenses being sought in such action), and/or
(b) for recovery under directors’ and officers’ liability insurance policies maintained by Xxxxxxx Controls,
but, in either case, only in the event that Indemnitee ultimately is determined to be entitled to such indemnification or expense advance or insurance recovery, as the case may be.
6. Notification and Defense of Proceeding.
(a) Notice. Promptly after receipt by Indemnitee of notice of the commencement of any Proceeding, Indemnitee shall, if a claim in respect thereof is to be made against Xxxxxxx Controls under this Agreement, notify Xxxxxxx Controls and Tyco Management of the commencement thereof; but the omission so to notify Xxxxxxx Controls and Tyco Management will not relieve Xxxxxxx Controls from any liability that it may have to Indemnitee, except as provided in Section 6(c).
(b) Defense. With respect to any Proceeding as to which Indemnitee notifies Xxxxxxx Controls and Tyco Management of the commencement thereof, Xxxxxxx Controls will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent Xxxxxxx Controls so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from Xxxxxxx Controls to Indemnitee of its election to assume the defense of any Proceeding, Xxxxxxx Controls shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ legal counsel in such Proceeding, but all Expenses related thereto incurred after notice from Xxxxxxx Controls of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Xxxxxxx Controls, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Xxxxxxx Controls in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) Xxxxxxx Controls shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Xxxxxxx Controls to the fullest extent permitted by law. Xxxxxxx Controls shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Tyco Management or Xxxxxxx Controls, (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Xxxxxxx Controls may assume defense of any such proceeding described in this sentence with Indemnitee’s consent, provided that any such consent shall not affect the rights of Indemnitee under the foregoing provisions of this Section 6(b)).
(c) Settlement of Claims. Xxxxxxx Controls shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without Xxxxxxx Controls’ written consent, such consent not to be unreasonably withheld; provided,
however, that if a Change in Control has occurred, Xxxxxxx Controls shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. Xxxxxxx Controls shall not settle any Proceeding in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Xxxxxxx Controls shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if Xxxxxxx Controls was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; Xxxxxxx Controls’ liability hereunder shall not be excused if assumption of the defense of the Proceeding by Xxxxxxx Controls was barred by this Agreement.
7. Establishment of Trust. In the event of a Change in Control Xxxxxxx Controls shall, upon written request by Indemnitee, create a trust for the benefit of the Indemnitee (the “Trust”) and from time to time upon written request of Indemnitee shall fund the Trust in an amount sufficient to satisfy any and all Expenses reasonably anticipated at the time of each such request (a) to be incurred in connection with investigating, preparing for, participating in, and/or defending any Proceeding relating to an Indemnifiable Event and (b) to be indemnifiable pursuant to this Agreement. The amount or amounts to be deposited in the Trust pursuant to the foregoing funding obligation shall be determined by the Independent Counsel. The terms of the Trust shall provide that (i) the Trust shall not be revoked or the principal thereof invaded without the written consent of the Indemnitee, (ii) the Trust shall continue to be funded by Xxxxxxx Controls in accordance with the funding obligation set forth above, (iii) the Trustee shall promptly pay to the Indemnitee all amounts for which the Indemnitee shall be entitled to indemnification pursuant to this Agreement, and (iv) all unexpended funds in the Trust shall revert to Xxxxxxx Controls upon a final determination by the Independent Counsel or a court of competent jurisdiction, as the case may be, that the Indemnitee has been fully indemnified under the terms of this Agreement. The trustee of the Trust (the “Trustee”) shall be chosen by the Indemnitee. Nothing in this Section 7 shall relieve Xxxxxxx Controls of any of its obligations under this Agreement. All income earned on the assets held in the Trust shall be reported as income by Xxxxxxx Controls for federal, state, local, and foreign tax purposes. Xxxxxxx Controls shall pay all costs of establishing and maintaining the Trust and shall indemnify the Trustee against any and all expenses (including attorney’s fees), claims, liabilities, loss, and damages arising out of or relating to this Agreement or the establishment and maintenance of the Trust.
8. Non-Exclusivity. The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under Xxxxxxx Controls’ Articles of Association, constitution, the Tyco Management Organizational Documents, the Tyco Management Indemnification Agreement, applicable law, or otherwise. To the extent that a change in applicable law (whether by statute or judicial decision) permits greater indemnification than would be afforded currently under Xxxxxxx Controls’ Articles of Association, constitution, the Tyco Management Organizational Documents, the Tyco Management Indemnification Agreement, applicable law or this Agreement, it is the intent of the parties that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change.
9. Exclusions. In addition to and notwithstanding any other provision of this Agreement to the contrary, Xxxxxxx Controls shall not be obligated under this Agreement to make any payment pursuant to this Agreement for which payment is expressly prohibited by law (including, with respect to any director or secretary of Xxxxxxx Controls, in respect of any liability expressly
prohibited from being indemnified pursuant to section 235 of the Irish Companies Act 2014 (as amended from time to time and including any successor provisions), but (i) in no way limiting any rights under section 233 or section 234 of the Irish Companies Act 2014 (each as amended from time to time and including any successor provisions), and (ii) to the extent any such limitations or prescriptions are amended or determined by a court of a 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.
10. Continuation of Contractual Indemnity or Period of Limitations. All agreements and obligations of Xxxxxxx Controls contained herein shall continue for so long as Indemnitee shall be subject to, or involved in, any proceeding for which indemnification is provided pursuant to this Agreement. Notwithstanding the foregoing, no legal action shall be brought and no cause of action shall be asserted by or on behalf of Xxxxxxx Controls or any Affiliate of Xxxxxxx Controls against Indemnitee, Indemnitee’s spouse, heirs, executors, or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, or such longer period as may be required by the laws of Ireland under the circumstances. Any claim or cause of action of Xxxxxxx Controls or its Affiliate shall be extinguished and deemed released unless asserted by the timely filing and notice of a legal action within such period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action, the shorter period shall govern.
11. Amendment of this Agreement. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by each of the parties hereto. No waiver of any of the provisions of this Agreement shall be binding unless in the form of a writing signed by the party against whom enforcement of the waiver is sought, and no such waiver shall operate as a continuing waiver. Except as specifically provided herein, no failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof.
12. Subrogation. In the event of payment under this Agreement, Xxxxxxx Controls shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable Xxxxxxx Controls effectively to bring suit to enforce such rights.
13. No Duplication of Payments. Xxxxxxx Controls shall not be liable under this Agreement to make any payment in connection with any claim made by Indemnitee to the extent Indemnitee has otherwise received payment (under any insurance policy, Xxxxxxx Controls’ Articles of Association, constitution, the Tyco Management Organizational Documents, the Tyco Management Indemnification Agreement or otherwise) of the amounts otherwise indemnifiable hereunder.
14. Obligations of Xxxxxxx Controls. In the event a Proceeding results in a judgment in Indemnitee’s favor or otherwise is disposed of in a manner that allows Xxxxxxx Controls to indemnify Indemnitee in connection with such Proceeding under the Articles of Association of Xxxxxxx Controls as then in effect, Xxxxxxx Controls will provide such indemnification to Indemnitee and will reimburse Tyco Management for any indemnification or Expense Advance previously made by Tyco Management in connection with such Proceeding.
15. Binding Effect. 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 and/or assets of Xxxxxxx Controls), assigns, spouses, heirs, and personal and legal representatives; provided, however, that Tyco Management shall be a beneficiary of, and have the right to enforce, Section 14 hereof. Xxxxxxx Controls shall require and cause any successor thereof (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 Xxxxxxx Controls, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that Xxxxxxx Controls would be required to perform if no such succession had taken place. The indemnification provided under this Agreement shall continue as to Indemnitee for any action taken or not taken while serving in an indemnified capacity pertaining to an Indemnifiable Event even though he may have ceased to serve in such capacity at the time of any Proceeding or is deceased and shall inure to the benefit of the heirs, executors, administrators, legatees and assigns of such a person.
16. Severability. If any provision (or portion thereof) of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of this Agreement containing any provision held to be invalid, void, or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, void or unenforceable.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of Ireland applicable to contracts made and to be performed in such State without giving effects to its principles of conflicts of laws.
18. Notices. All notices, demands, and other communications required or permitted hereunder shall be made in writing and shall be deemed to have been duly given if delivered by hand, against receipt, or mailed, postage prepaid, certified or registered mail, return receipt requested, and addressed to Xxxxxxx Controls at:
Xxxxxxx Controls International plc
Xxxx 0000 Xxxxxxxx 0000
Xxxx Xxxx
Xxxxx
Xxxx
Xxxxxxx
Attn: The General Counsel
and
Tyco Fire & Security (US) Management, Inc
0 Xxxxxx Xxxx
Xxxxxxxxx
Xxx Xxxxxx 00000
United States
Attn: The General Counsel
And to Indemnitee at:
Xxxxxxx Controls, Inc.
0000 X. Xxxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Notice of change of address shall be effective only when given in accordance with this Section. All notices complying with this Section shall be deemed to have been received on the date of hand delivery or on the third business day after mailing.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have executed this Deed of Indemnification as a deed with the intention that it be delivered on the date first written above.
|
GIVEN under the common seal of |
|
|
|
TYCO INTERNATIONAL |
|
|
|
PUBLIC LIMITED COMPANY |
|
|
|
(IN THE PROCESS OF |
|
|
|
CHANGING ITS NAME TO |
|
|
|
XXXXXXX CONTROLS |
|
|
|
INTERNATIONAL PUBLIC |
|
|
|
LIMITED COMPANY) |
|
|
|
and DELIVERED as a DEED |
|
|
|
|
|
Duly Authorised Signatory |
|
SIGNED AND DELIVERED as a |
|
|
|
deed |
|
|
|
by [·] |
|
|
|
in the presence of: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Indemnitee |
|
Witness |
|
|
|
|
|
|
|
Name of Witness: |
|
|
|
|
|
|
|
Address of Witness: |
|
|
|
|
|
|
|
Occupation of Witness: |
|
|
