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Exhibit
10.21
GOODMAN GLOBAL,
INC.
FORM OF INDEMNIFICATION
AGREEMENT
This Indemnification
Agreement (“ Agreement ”) is effective as of
February 13, 2008 by and between GOODMAN GLOBAL, INC., a
Delaware corporation, as successor by merger to Chill Acquisition,
Inc. (the “ Company ”), and
[ ]
(“ Indemnitee ”).
WHEREAS, the Company desires
to attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Company and its related
entities;
WHEREAS, Indemnitee is a
director and/or an officer of the Company;
WHEREAS, in order to induce
Indemnitee to continue to provide services to the Company, the
Company wishes to provide for the indemnification of, and the
advancement of expenses to, Indemnitee to the maximum extent
permitted by law;
WHEREAS, the Amended and
Restated Certificate of Incorporation of the Company (the “
Charter ”) provides for the indemnification of the
Company’s officers, directors, agents, and employees to the
maximum extent authorized by law;
WHEREAS, the Charter and
Section 145 of the Delaware General Corporation Law (the
“ DGCL ”), by their non-exclusive nature, permit
contracts between the Company and the members of its Board of
Directors, its officers and its employees;
WHEREAS, the Bylaws of the
Company (the “ Bylaws ”) provide certain
indemnification rights to the officers, directors, employees and
agents of the Company, and its officers and directors have relied
on this assurance of indemnification, as provided by the
DGCL;
WHEREAS, the Company and
Indemnitee recognize the continued difficulty in obtaining and
maintaining liability insurance for the Company’s directors,
officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions
in the coverage of such insurance;
WHEREAS, the Company and
Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees,
agents and fiduciaries to expensive litigation risks at the same
time as the availability and coverage of liability insurance has
been severely limited;
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service
to the Company in an effective manner, the continuing difficulty in
obtaining and maintaining liability insurance coverage, and
Indemnitee’s reliance on assurance of indemnification, the
Company wishes to provide in this Agreement for the indemnification
of and the advancing of expenses to Indemnitee to the fullest
extent permitted by the Charter, the Bylaws and the DGCL (whether
partial or complete) and as set forth in this Agreement, and, to
the extent insurance is maintained, for the continued coverage of
Indemnitee under the Company’s directors’ and
officers’ liability insurance policies; and
WHEREAS, in view of the
considerations set forth above and Indemnitee’s continuing to
serve as a director and/or officer of the Company, the Company
desires that Indemnitee shall be indemnified and advanced expenses
by the Company as set forth herein;
NOW, THEREFORE, the Company
and Indemnitee hereby agree as set forth below.
1. Certain Definitions
.
(a) “ Board of
Directors ” shall mean the Board of Directors of the
Company.
(b) “ Change of
Control ” shall have the meaning set forth in the Credit
Agreement, dated as of February 13, 2008, among Chill
Intermediate Holding, Inc., the Company, the lending institutions
party thereto, Barclays Capital (“ Barclays ”)
and General Electric Capital Corporation (“ GECC
”), as Joint Lead Arrangers, Barclays, Calyon New York Branch
and GECC, as joint bookrunners, and GECC as the administrative
agent, as such Credit Agreement may be amended, modified, extended,
refinanced, renewed, or replaced from time to time.
(c) “ Claim
” shall mean, with respect to a Covered Event, any
threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, whether instituted by the
Company or any other party, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to
the institution of any such action, suit, proceeding or alternative
dispute resolution mechanism, whether civil (including intentional
and unintentional tort claims), criminal, administrative,
investigative or other.
(d) “ Covered
Event ” shall mean any event or occurrence related to the
fact that Indemnitee is or was a director, officer, employee,
consultant, agent or fiduciary of the Company, or any parent or
subsidiary of the Company, or is or was serving at the request of
the Company or parent entity as a director, officer, employee,
consultant, trustee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of Indemnitee while serving
in such capacity.
(e) “ Disinterested
Director ” shall mean a director of the Company who is
not and was not a party to the matter in respect of which
indemnification is sought by the Indemnitee.
(f) “ Expenses
” shall mean any and all expenses (including attorneys’
fees and all other reasonable costs, expenses and obligations paid
or incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing
to defend, to be a witness in or to participate in, any action,
suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, fines, penalties and
amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably
withheld or delayed), actually paid or incurred, of any Claim, all
interest, assessments and other charges paid or payable in
connection therewith or in respect thereof, and any federal, state,
local or foreign taxes imposed on the Indemnitee as a result of the
actual or deemed receipt of any payments under this
Agreement.
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(g) “ Expense
Advance ” shall mean, pursuant to Section 3 ,
a payment to Indemnitee of Expenses in advance of the settlement or
final judgment of a Claim.
(h) “ Independent
Legal Counsel ” shall mean a law firm, a member of a law
firm or an independent practitioner that is experienced in matters
of corporate law and shall include any person who, under the
applicable standards of professional conduct then prevailing, would
not have a conflict of interest in representing either the Company
or the Indemnitee in an action to determine the Indemnitee’s
rights under this agreement.
(i) References to “
other enterprises ” shall include employee benefit
plans; references to “ fines ” shall include any
excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and references to “ serving at the request
of the Company ” shall include any service as a director,
officer, employee, agent or fiduciary of the Company which imposes
duties on, or involves services by, such director, officer,
employee, agent or fiduciary with respect to an employee benefit
plan, its participants or its beneficiaries, but, for the avoidance
of doubt, does not include any capacity as a participant or
beneficiary thereunder.
(j) “ Reviewing
Party ” shall mean, subject to the provisions of
Section 2(d) , any person or body appointed by the
Board of Directors in accordance with applicable law to review the
Company’s obligations hereunder and under applicable law,
which may include a member or members of the Board of Directors,
Independent Legal Counsel or any other person or body not a party
to the particular Claim for which Indemnitee is seeking
indemnification.
(k) “ Section
” refers to a section of this Agreement unless otherwise
indicated.
2. Indemnification
.
(a) Indemnification of
Expenses . Subject to the provisions of
Section 2(b) , the Company shall indemnify Indemnitee
for Expenses to the fullest extent permitted by law if Indemnitee
was or 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, any Claim by reason of (or arising in part out of)
a Covered Event, including all interest, assessments and other
charges paid or payable in connection with or in respect of such
Expenses.
(b) Review of
Indemnification Obligations . Notwithstanding the foregoing,
(i) the obligations of the Company under Section 2(a)
shall be subject to the condition that the Reviewing Party shall
not have determined (in a written opinion, in any case in which the
Independent Legal Counsel referred to in Section 2(d) is
involved) that Indemnitee would not be permitted to be indemnified
under applicable law, and (ii) the obligation of the Company
to make an Expense Advance pursuant to Section 3(a) shall be
subject to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted
to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all Expenses theretofore paid in
indemnifying Indemnitee; provided , however , that if
Indemnitee has commenced or thereafter commences legal proceedings
in a court of competent jurisdiction to secure a determination that
Indemnitee is entitled to be indemnified hereunder under applicable
law, any determination made by any Reviewing Party that Indemnitee
is not entitled to be
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indemnified hereunder under applicable
law shall not be binding and Indemnitee shall not be required to
reimburse the Company for any Expenses theretofore paid in
indemnifying Indemnitee until a final judicial determination is
made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). Indemnitee’s
obligation to reimburse the Company for any Expenses shall be
unsecured and no interest shall be charged thereon.
(c) Indemnitee Rights on
Unfavorable Determination, Binding Effect . If any Reviewing
Party determines that Indemnitee substantively is not entitled to
be indemnified hereunder in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation seeking an
initial determination by the court or challenging any such
determination by such Reviewing Party or any aspect thereof,
including the legal or factual bases therefor, and, subject to the
provisions of Section 17 , the Company hereby consents
to service of process and to appear in any such proceeding. Absent
such litigation, any determination by any Reviewing Party shall be
conclusive and binding on the Company and Indemnitee.
(d) Selection of Reviewing
Party; Change of Control . If requested by Indemnitee,
Independent Legal Counsel shall be the Reviewing Party with respect
to all matters thereafter arising concerning the rights of
Indemnitee to indemnification of Expenses under this Agreement or
any other agreement or under the Charter or the Bylaws, as now or
hereafter in effect, or under any other applicable law. If no such
request is made by Indemnitee, any Reviewing Party shall be
selected by (i) the Board of Directors, by a majority vote of
a quorum consisting of Disinterested Directors, or (ii) if a
quorum of the Board of Directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Legal Counsel in
writing to the Board of Directors, a copy of which shall be
delivered to the Indemnitee. In the event the Reviewing Party shall
be Independent Legal Counsel at the request of the Indemnitee, the
Independent Legal Counsel shall be selected by the Board of
Directors unless a Change of Control shall have occurred prior to
the date of the commencement of the action, suit or proceeding for
which indemnification is claimed, in which case the Independent
Legal Counsel shall be selected by the Indemnitee and approved by
the Company (which approval shall not be unreasonably withheld or
delayed) unless the claimant shall request that such selection be
made by the Board of Directors. Such counsel, among other things,
shall render its written opinion to the Company and Indemnitee as
to whether and to what extent Indemnitee would be entitled to be
indemnified hereunder under applicable law and the Company agrees
to abide by such opinion. The Company agrees to pay the reasonable
fees of the Independent Legal Counsel referred to above and to
indemnify fully such counsel against any and all expenses
(including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto. Notwithstanding any other provision of this
Agreement, the Company shall not be required to pay Expenses of
more than one Independent Legal Counsel in connection with all
matters concerning a single Indemnitee.
(e) Mandatory Payment of
Expenses . Notwithstanding any other provision of this
Agreement other than Section 10 , to the extent that
Indemnitee has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any Claim, Indemnitee shall be indemnified
against all Expenses incurred by Indemnitee in connection
therewith.
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(f) Additional
Expenses . Notwithstanding any other provision of this
Agreement other than Section 10 and
Section 15 , the Indemnitee shall be indemnified
against all Expenses and, if requested by the Indemnitee, advance
payment of such Expenses, which are incurred by the Indemnitee in
connection with any action brought by the Indemnitee for
(a) indemnification or advance payment of Expenses by the
Company under this Agreement or any other agreement of the Company
now or hereafter in effect relating to Claims for Covered Events or
(b) recovery under any directors’ and officers’
liability insurance policies maintained by the Company, regardless
of whether the Indemnitee ultimately is determined to be entitled
to such indemnification, advance expense payment or insurance
recovery, as the case may be.
3. Expense Advances
.
(a) Obligation to Make
Expense Advances . Upon receipt of a written undertaking by or
on behalf of the Indemnitee to repay such amounts if it shall
ultimately be determined that the Indemnitee is not entitled to be
indemnified therefor by the Company, the Company shall make Expense
Advances to Indemnitee.
(b) Form of
Undertaking . Any written undertaking by the Indemnitee to
repay any Expense Advances hereunder shall be unsecured, shall not
require any guarantee from any other Person and no interest shall
be charged thereon.
4. Procedures for
Indemnification and Expense Advances .
(a) Timing of Payment
. All payments of Expenses (including, without limitation, Expense
Advances) by the Company to the Indemnitee pursuant to this
Agreement shall be made to the fullest extent permitted by law as
soon as practicable after written demand by Indemnitee therefor is
presented to the Company, but in no event later tha
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