Indemnification Agreement
Exhibit
10.14
AGREEMENT dated as of ___________,
2008, by and between BRINK’S HOME SECURITY HOLDINGS, INC., a Virginia
corporation (the “Corporation”), and ___________________ (the
“Indemnitee”):
WHEREAS, competent and experienced
individuals have become increasingly reluctant to serve publicly held
corporations as directors or in other capacities, unless they are provided with
better protection from the risk of claims and actions against them arising out
of their service to and activities on behalf of such corporations;
and
WHEREAS, the current impracticability
of obtaining adequate insurance coverage and the unsatisfactory scope
of indemnification provisions may increase the difficulty of
attracting and retaining such individuals; and
WHEREAS, the Board of Directors of the
Corporation has determined that it would be detrimental to the best interests of
the Company and its shareholders if the Corporation were unable to attract and
retain such individuals and that such individuals should be assured better
protection; and
WHEREAS, the laws of the Commonwealth
of Virginia authorize Virginia corporations to provide, among other things, for
broader rights on the part of such individuals to obtain indemnification;
and
WHEREAS, it is reasonable and prudent
for the Corporation to obligate itself contractually to indemnify such
individuals to the fullest extent permitted by the laws of said Commonwealth, so
that such individuals will serve or continue to serve the Corporation free from
undue concern that they will not be adequately indemnified; and
WHEREAS, the rights of the Indemnitee
under this Agreement shall be in addition to, and not in limitation of, all
rights to indemnification against liabilities and expenses required or permitted
by applicable provisions of law or the Amended and Restated Articles of
Incorporation of the Corporation, or otherwise;
NOW, THEREFORE, in consideration of the
premises and the covenants contained herein, and in order to induce the
Indemnitee to serve and continue to serve in his Official Capacity and to take
on such additional duties and responsibilities as the Corporation may request,
the Corporation and the Indemnitee do hereby covenant and agree as
follows:
1. Definitions. As used in
this Agreement, the following terms shall have the respective meanings assigned
to them:
(a) “Act”: The
Virginia Stock Corporation Act as in effect at the date of this
Agreement.
(b) “Board”: The
Board of Directors of the Corporation.
(c) “Director”: An
individual who is or was a director of the Corporation or an individual who,
while a director of the Corporation, is or was serving at the Corporation’s
request as a director, officer, partner, trustee, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. A director is considered to be
serving an employee benefit plan at the Corporation’s request if his duties to
the Corporation also impose duties on, or otherwise involve services by, him to
the plan or to participants in or beneficiaries of the plan.
(d) “Expenses”: All
reasonable counsel 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 incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or being or
preparing to be a witness in, a Proceeding.
(e) “Liabilities”: The
obligation to pay a judgment, settlement, penalty, fine, including any excise
tax assessed with respect to an employee benefit plan, or reasonable expenses
incurred with respect to a Proceeding.
(f) “Officer”: An
individual who is or was duly appointed as an officer by the Board or otherwise,
in accordance with the bylaws of the Corporation as from time to time in effect,
or an individual who, while an officer of the Corporation, is or was serving at
the Corporation’s request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise. An officer is
considered to be serving an employee benefit plan at the Corporation’s request
if his duties to the Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the
plan.
(g) “Official
Capacity”: (i) When used with respect to a Director, the office of
director in the Corporation, and (ii) when used with respect to an Officer, the
office or offices in the Corporation held by the Officer. “Official
Capacity” does not include service for any other foreign or domestic corporation
or any partnership, joint venture, trust, employee benefit plan, or other
enterprise.
(h) “Party”: Without
limitation, an individual who was, is or is threatened to be made a named
defendant or respondent in a Proceeding.
(i) “Proceeding”: Any
threatened, pending or completed action, suit or proceeding (including appeals),
whether civil, criminal, administrative or investigative and whether formal or
informal.
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(j) “Special Legal
Counsel”: A law firm, or a member of a law firm, (i) that is
experienced in matters of corporation law and neither presently is, nor in the
past five years has been, engaged to represent (A) the Corporation or the
Indemnitee in any matter or (B) any other party to the Proceeding giving rise to
a claim for indemnification hereunder, and (ii) who under the applicable
standards of professional conduct then prevailing would not have a conflict of
interest in representing either the Corporation or the Indemnitee in an action
to determine the Indemnitee’s rights under this Agreement.
2. Services by the
Indemnitee. The Indemnitee agrees to continue to serve in his
present Official Capacity and, at the Corporation’s request, as a director,
officer, partner, trustee (including services as a named fiduciary),
employee or agent of certain other foreign or domestic corporations and other
entities. The Indemnitee may at any time and for any reason resign
from any such position (subject to any other contractual obligations or any
obligation imposed by any applicable laws), and in no event shall any such
resignation adversely affect any of the Indemnitee’s rights under this
Agreement.
3. Right to Indemnity. The
Indemnitee shall be entitled to indemnity, including indemnity with respect to a
Proceeding by or in the right of the Corporation, against all Liabilities
(whether arising from a transaction, occurrence or course of conduct prior or
subsequent to the effective date of this Agreement) and Expenses because he was
or is a Director and/or Officer, to the fullest extent required or permitted
under the provisions of the Act, except only an indemnity against Liabilities in
connection with a Proceeding in which a finding shall have been made that the
act or omission for which the Indemnitee was adjudged liable had been proved to
be due to the Indemnitee’s willful misconduct or his knowing violation of the
criminal law. The rights of the Indemnitee under this Section 3 shall
be in addition to, and not in limitation of, any of the Indemnitee’s other
rights under this Agreement or applicable law. The termination of a
Proceeding by judgment, order, settlement or conviction shall not be, of itself,
determinative that the Indemnitee is not entitled to indemnity as provided under
any of the provisions of this Agreement.
4. Payment or Reimbursement of
Expenses. The Corporation shall pay for or reimburse the
reasonable Expenses incurred by the Indemnitee (whether or not made a party) in
connection with any Proceeding related, in whole or in part, to any act or
omission of the Indemnitee as a Director or Officer, in advance of final
disposition of such Proceeding upon receipt by the Corporation from the
Indemnitee of (a) a written statement of good faith belief that he is
entitled to indemnity under this Agreement and (b) a written undertaking,
executed personally or on his behalf, to repay the amount so paid or reimbursed
if after final disposition of any such Proceeding it is determined that the
Indemnitee was not entitled to indemnity under this Agreement. The
Indemnitee shall submit documentation adequately evidencing such
Expenses. The Corporation shall pay or reimburse all such Expenses
within 10 days after receipt of any such documentation. Anything in
this Agreement to the contrary notwithstanding, repayment of Expenses by the
Indemnitee shall be required only if it is ultimately determined hereunder that
he did not meet the applicable standard of conduct as provided in Section
3.
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5. Partial Indemnity or Payment of
Expenses. The Indemnitee shall be entitled to indemnity
against Liabilities and payment or reimbursement of Expenses, as provided in
this Agreement, as to any claim, issue or matter in connection with any
Proceeding as to which the Indemnitee is entitled to such indemnity and payment
or reimbursement, notwithstanding that as to one or more other claims, issues or
matters he shall not be so entitled to such indemnity and payment or
reimbursement.
6. Indemnification for Expenses of a
Witness. Notwithstanding any other provision of this
Agreement, if the Indemnitee shall be a witness in any Proceeding because he is
or was a Director and/or Officer, he shall be indemnified against all Expenses
incurred by him or on his behalf in connection therewith.
7. Procedure for Determination of Entitlement to
Indemnity.
(a) To obtain indemnity
under this Agreement in connection with any Proceeding, the Indemnitee shall
submit to the Corporation a written request, together with such documentation
and information as is reasonably available to the Indemnitee and is reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Corporation shall, promptly upon receipt of any
such request for indemnity, advise the Board in writing that the Indemnitee has
requested indemnity and give a copy of such advice to the
Indemnitee.
(b) Upon written request by
the Indemnitee for indemnity, a determination that such indemnity is appropriate
under this Agreement and applicable law shall be made (i) by the Board, if
so requested by the Indemnitee and permitted by applicable law, or (ii) if
not so requested and permitted, by Special Legal Counsel selected by the Board
and, if a Change in Control (as hereinafter defined) shall have occurred prior
to such selection, approved by the Indemnitee, in a written opinion to the
Board, a copy of which shall be delivered to the Indemnitee. If it is
so determined that the Indemnitee is entitled to indemnification, payment to the
Indemnitee shall be made within 10 days after such determination. The
Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to the Indemnitee’s entitlement to indemnity,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to the Indemnitee
and reasonably necessary to such determination. Any costs or expenses
(including attorneys’ fees and disbursements) incurred by the Indemnitee in so
cooperating with the person, persons or entity making such determination shall
be borne by the Corporation (irrespective of the determination as to the
Indemnitee’s entitlement to indemnification) and the Corporation hereby
indemnifies and agrees to hold the Indemnitee harmless therefrom.
(c) If within 20 days after
the Indemnitee shall have requested the Board to select Special Legal Counsel,
such counsel shall not have been selected and, if required, approved by the
Indemnitee, the Corporation or the Indemnitee may, within 15 days after the
lapse of such 20-day period, petition a court of competent jurisdiction in the
Commonwealth of Virginia for the appointment by such court of Special Legal
Counsel, and the person so appointed shall act as Special Legal Counsel under
Section 7(b). The Corporation shall pay all reasonable fees and
expenses of Special Legal Counsel incurred by such Counsel pursuant to this
Agreement, and the Corporation shall pay all reasonable fees and expenses
incident to all procedures under this Section 7(c). Upon the
commencement date of any judicial proceeding or arbitration pursuant to
Section 9(a), Special Legal Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
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(d) If the determination
provided for in Section 7(b) is made by Special Legal Counsel, evaluation
of reasonableness of Expenses shall be made by the Board.
(e) As used in Section 7(b),
a Change in Control shall be deemed to have occurred if (i) any person, or
any two or more persons acting as a group, and all affiliates of such person or
persons, shall own beneficially more than 20% of the total number of shares of
the Corporation having the right to vote generally in the election of its
directors (exclusive of shares held by any corporation of which shares
representing at least 50% of the ordinary voting power are owned, directly or
indirectly, by the Corporation) pursuant to a tender offer, exchange offer
or series of purchases or other acquisitions, or any combination of those
transactions, or (ii) there shall be a change in the composition of the Board at
any time within two years after any tender offer, exchange offer, merger,
consolidation, share exchange, sale of assets or contested election, or any
combination of those transactions (a “Transaction”), so that (A) the
persons who were directors of the Corporation immediately before the first such
Transaction cease to constitute a majority of the board of directors of the
corporation which shall thereafter be in control of the companies or
other entities which were parties to or otherwise involved in the first
such Transaction, or (B) the number of persons who shall be directors of such
corporation shall be fewer than two thirds of the number of directors
of the Corporation immediately prior to such first Transaction. A
Change in Control shall be deemed to take place upon the first to occur of the
events specified in the foregoing clauses (i) and (ii).
8. Presumption.
In making a determination with respect
to entitlement to indemnity under this Agreement, the person, persons or
entity making such determination shall presume that the Indemnitee is entitled
to such indemnity, and the Corporation shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.
9. Remedies of the
Indemnitee.
(a) In the event that (i) a
determination is made pursuant to Section 7(b) that the Indemnitee is not
entitled to indemnity under this Agreement in the full amount sought by the
Indemnitee, (ii) payment or reimbursement of Expenses is not timely made as
provided in Section 4, (iii) payment of indemnity is not made pursuant to
Section 6 within 10 days after receipt by the Corporation of a written request
therefor or (iv) payment of indemnity is not made within 120 days after a
written request for indemnity has been made pursuant to Section 7(a), the
Indemnitee shall be entitled to commence an action in any court of competent
jurisdiction for an adjudication of his entitlement to such indemnity or payment
or reimbursement of Expenses. Alternatively, the Indemnitee, at his
option, may seek an award in arbitration to be conducted in New York, New York
(or such other city as may be mutually agreed and reasonably convenient for the
Indemnitee), pursuant to the rules of the American Arbitration Association
by an individual selected by such Association who would have qualified as
Special Legal Counsel. The Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration
within 180 days following the date on which the Indemnitee first has the
right to commence such proceeding pursuant to this Section 9(a).
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(b) In the event that a
determination shall have been made pursuant to Section 7(b) that the Indemnitee
is not entitled to indemnity under this Agreement in the full amount sought by
the Indemnitee, any judicial proceeding or arbitration commenced pursuant to
Section 9(a) shall be conducted in all respects as a de novo trial or arbitration on the
merits and the Indemnitee shall not be prejudiced by reason of that adverse
determination. In any judicial proceeding or arbitration commenced
pursuant to Section 9(a), the Corporation shall have the burden of proving that
the Indemnitee is not entitled to indemnity or payment or reimbursement of
Expenses, as the case may be.
(c) If a determination shall
have been made pursuant to Section 7(b) that the Indemnitee is entitled to
indemnity, the Corporation shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to Section
9(a).
(d) The Corporation shall be
precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to Section 9(a) that the procedures and presumptions of
this Agreement are not valid, binding or enforceable and shall stipulate in
any such court or before any such arbitrator that the Corporation is bound by
all the provisions of this Agreement.
(e) In the event that
pursuant to this Section 9 the Indemnitee seeks a judicial adjudication of, or
an award in arbitration to enforce, his rights under, or to recover damages for
breach of, this Agreement, the Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and all
reasonable expenses (of the kinds described in the definition of Expenses)
incurred by him in such judicial adjudication (including any appeals) or
arbitration, regardless of the outcome thereof (unless it shall be determined by
the court or arbitrator, as the case may be, that the Indemnitee’s claims were
frivolous).
10. Settlement of Claims. The
Corporation shall not be liable to indemnify the Indemnitee under this Agreement
for any amounts paid in settlement of any action or claim effected without the
Corporation’s written consent. The Corporation shall not settle any
action or claim in any manner which would impose any penalty or liability on the
Indemnitee without the Indemnitee’s written consent. Neither the
Corporation nor the Indemnitee shall unreasonably withhold its consent to any
proposed settlement. The Corporation shall not be liable to indemnify
the Indemnitee under this Agreement with regard to any judicial award if the
Corporation was not given a reasonable and timely opportunity, at its expense,
to participate in the defense of such action.
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11. Non-Exclusivity; Survival of Rights;
Insurance; Subrogation.
(a) The rights provided by
this Agreement shall be in addition to, and not in limitation of, any other
rights to which the Indemnitee may at any time be entitled under applicable law,
the Articles of Incorporation or bylaws of the Corporation or
otherwise. No amendment, alteration or repeal of this Agreement or
any provision hereof shall be effective as to the Indemnitee with respect to any
action taken or omitted by him prior to such amendment, alteration or
repeal.
(b) To the extent that the
Corporation maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, agents or fiduciaries of the
Corporation or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person serves at the
request of the Corporation, the Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the
coverage available for any such director, officer, employee, agent or fiduciary
under such policy or policies.
(c) In the event of any
payment under this Agreement, the Corporation 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 take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Corporation
to bring suit to enforce such rights.
(d) The Corporation shall
not be liable under this Agreement to make any payment of amounts otherwise
indemnifiable or payable to him hereunder if and to the extent that the
Indemnitee has otherwise actually received such indemnity or payment under any
insurance policy, contract, agreement or otherwise.
12. Term of Agreement. This
Agreement shall remain in effect until the later of (a) 10 years after the
date on which the Indemnitee shall have last ceased to serve as a Director
and/or Officer or (b) the final termination of all pending Proceedings in
respect of which the Indemnitee is or may be granted rights of indemnity or
payment or reimbursement of Expenses hereunder and of any proceeding commenced
by the Indemnitee pursuant to Section 9. This Agreement shall be
binding upon the Corporation and its successors (including any corporation which
shall be a surviving corporation in any merger, consolidation or share exchange
in which the Corporation is a party or otherwise involved) and assigns and shall
inure to the benefit of the Indemnitee and his heirs, executors, administrators
and legal representatives.
13. 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 (b) to the fullest extent possible, the 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 be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
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14. 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. References in this Agreement to Sections are to Sections of
this Agreement, and words in the masculine gender shall include the feminine as
appropriate.
15. Modification and Waiver. No
supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed to constitute a waiver of any
other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver.
16. Notice by the
Indemnitee. The Indemnitee agrees promptly to notify the
Corporation 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 indemnity against Liabilities or payment or
reimbursement of Expenses covered hereunder.
17. Notices. All notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if (i) delivered by hand and
receipted for by the party to whom such notice or other communication shall have
been directed or (ii) mailed by certified or registered mail with postage
prepaid, return receipt requested, in which case it shall be deemed to have been
received on the third business day after the date on which it is so
mailed:
(a) If to the Indemnitee,
to:
______________________
______________________
______________________
(b) If to the Corporation,
to:
0000 Xxxxxx Xxxxxxxxx
Xxxxxx,
Xxxxx 00000
Attention of the General
Counsel
or to
such other address as may have been furnished to the Indemnitee by the
Corporation or to the Corporation by the Indemnitee, as the case may
be.
18. Governing Law. This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the Commonwealth of Virginia.
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IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year first above
written.
BRINK’S HOME SECURITY HOLDINGS, INC. | |||
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By
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Name: | |||
Title: | |||
INDEMNITEE | |||
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[Name] | |||