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Exhibit 10(j)
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement" )
is made as of the • day of •, 200•, by and between
Tim Hortons Inc., a Delaware corporation (the "Tim
Hortons" ), and •, an individual (
"Indemnitee" ).
RECITALS
A. The bylaws (the "Bylaws" ) of Tim Hortons
provide for the indemnification of the officers and directors of
Tim Hortons and/or its subsidiaries ("Subsidiaries") and affiliates
(Tim Hortons and its subsidiaries and affiliates being collectively
referred to herein as the " Company ") to the
greatest extent permitted by Delaware law, including the Delaware
General Corporation Law, as amended (the "DGCL"
).
B. The Bylaws and the DGCL permit contracts between Tim Hortons
and the officers, directors or other employees of the Company with
respect to indemnification of such officers, directors or other
employees.
C. Tim Hortons recognizes that capable and qualified individuals
are becoming increasingly reluctant to serve as officers or
directors of or in certain other employee capacities at public
corporations as a result of the recent and ongoing enactment of
statutes and regulations pertaining to officers’,
directors’ and other employees’ responsibilities and
the increasing risk of lawsuits against officers, directors and
other employees in the current corporate climate, unless such
individuals are provided with more certain and secure protection
against exposure to unreasonable personal risk arising from their
service and activities on behalf of a corporation.
D. Tim Hortons is aware that individuals recruited to serve as
officers or directors of or in certain other employee capacities at
public corporations generally are more likely to agree to provide
services to corporations that provide for separate indemnification
agreements because, unlike indemnification provisions contained in
the certificate of incorporation or the bylaws of a company or
state statutory provisions, the indemnification provisions
contained in a separate agreement generally may not be amended or
rescinded without the consent of the individual who is a party to
the agreement.
E. Tim Hortons recognizes that, in furtherance of its objectives
and in order to enhance its investments in its Subsidiaries and
affiliates, it is in the best interests of Tim Hortons and its
shareholders to attract and retain capable and qualified
individuals to serve as officers, directors and in certain other
employment positions with Tim Hortons and with the Subsidiaries and
affiliates of Tim Hortons and to enable such officers, directors
and other employees to exercise their judgment in the best
interests of the Company without being affected by the threat of
exposure to unreasonable personal risk.
F. To induce Indemnitee to serve and/or continue to serve as an
officer of Tim Hortons, and, if applicable, as an officer, director
or other employee of a Subsidiary
or affiliate of Tim Hortons, Tim Hortons desires
Indemnitee to be indemnified and advanced expenses as set forth
herein. This Agreement shall be supplemental to any indemnity
provided to the Indemnitee under applicable law or any rights of
indemnity to which the Indemnitee is entitled under a separate
agreement; provided that Indemnitee shall not be required to first
proceed against any other entity before enforcing the
Indemnitee’s rights under this Agreement.
AGREEMENT
In consideration of Indemnitee’s service as an officer of
Tim Hortons and/or as an officer, director or employee of a
Subsidiary or affiliate of Tim Hortons after the date hereof, Tim
Hortons and Indemnitee hereby agree as follows:
1. Certain Definitions. Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings set
forth below:
"Corporate Status" means the fact that a person is or was
(i) an officer of Tim Hortons, (ii) an officer, director
or employee of a Subsidiary or affiliate of Tim Hortons,
(iii) serving at the request of the Company on the board of
directors or other governing body of a Subsidiary or affiliate of
Tim Hortons or as an officer, employee, partner or in a similar
function with a Subsidiary or affiliate of Tim Hortons, or
(iv) serving at the request of Tim Hortons as an officer,
employee or director of an association or non-profit organization
affiliated with Tim Hortons. A Proceeding shall be deemed to have
been brought by reason of a person’s "Corporate Status" if it
is brought because of the status described in the preceding
sentence or because of any action or inaction on the part of such
person in connection with such status.
"Disinterested Director" means a director of Tim
Hortons who is not and was not a party to or threatened with a
Proceeding in respect of which indemnification is sought by
Indemnitee.
"Expenses" shall include all reasonable
attorneys’ fees, disbursements and retainers, court costs,
transcript costs, fees of experts, witness fees, travel and
deposition costs, 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 (a) prosecuting, defending, preparing to
prosecute or defend, investigating, settling or appealing a
Proceeding (including the cost of any appeal bond or its
equivalent), (b) for purposes of Section 2.1 only,
being prepared to be a witness or otherwise participating in a
Proceeding or (c) enforcing a right under this Agreement
(including any right to indemnification or advancement of expenses
under this Agreement).
"Independent Counsel" means an attorney, or a firm
having associated with it an attorney, who neither currently is nor
in the past five years has been retained by or performed services
for the Company or any person to be indemnified by the Company.
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"Proceeding" includes 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 civil, criminal, administrative or
investigative, in which Indemnitee was, is or would be involved as
a party or otherwise (including as a witness) by reason of the
Indemnitee’s Corporate Status, including one pending on or
before the date of this Agreement; but excluding one initiated by
an Indemnitee pursuant to Section 7 of this Agreement
to enforce Indemnitee’s rights under this Agreement. For
purposes of this definition, the term "threatened" shall be deemed
to include, but not be limited to, Indemnitee’s good faith
belief that a claim or other assertion may lead to initiation of a
Proceeding.
"Reviewing Party" means the person, persons or
entity selected to make the determination of the entitlement to
indemnification pursuant to Section 5.3 hereof.
2. Indemnification.
2.1 Proceedings not by or in Right of the Company. Tim Hortons
hereby agrees to hold harmless and indemnify Indemnitee to the
greatest extent permitted by Delaware law, including the provisions
of the DGCL, and by the Bylaws, as such may be amended from time to
time, if Indemnitee was or is a party, witness, or other
participant, or is threatened to be made a party, witness, or other
participant, to any Proceeding, other than a Proceeding by or in
the right of the Company, by reason of Indemnitee’s Corporate
Status, against all Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding, if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company and, with respect to any criminal Proceeding, had no
reasonable cause to believe that his or her conduct was unlawful.
The termination of any Proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee did not
satisfy the foregoing standard of conduct to the extent applicable
thereto.
2.2 Proceedings by or in Right of the Company. Tim
Hortons hereby agrees to hold harmless and indemnify Indemnitee to
the greatest extent permitted by Delaware law, including the
provisions of the DGCL, and by the Bylaws, as such may be amended
from time to time, if Indemnitee was or is a party or is threatened
to be made a party to any Proceeding by or in the right of the
Company, by reason of Indemnitee’s Corporate Status, against
all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with the defense or
settlement of such Proceeding, if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company; provided ,
however , that, if applicable law so provides, no
indemnification against such Expenses shall be paid in respect of
any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company
unless, and only to the extent that, the Court of Chancery of the
State of Delaware (the "Court") determines, upon application, that,
despite the adjudication of liability but in view of all of the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses as such Court shall deem
proper.
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2.3 Indemnification for Expenses of an
Indemnitee Who is Wholly or Partly Successful. To the extent
that Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding referred to in Section 2.1 or
2.2 of this Agreement, or in defense of any claim, issue or
matter in such Proceeding, Indemnitee shall be indemnified against
Expenses actually and reasonably incurred by the Indemnitee or on
Indemnitee’s behalf in connection with such
Proceeding.
3. Advancement of Expenses.
3.1 Advancement Obligation. Tim Hortons shall advance all
Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding prior to the final disposition of such Proceeding
upon receipt of an undertaking by or on behalf of Indemnitee to
repay such amount if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by Tim Hortons. Any
advances and undertakings to repay pursuant to this
Section 3.1 shall not be secured, shall not bear
interest and shall provide that, if Indemnitee has commenced or
thereafter commences legal proceedings in the Court to secure a
determination that Indemnitee should be indemnified under
applicable law with respect to such Proceeding, Indemnitee shall
not be required to reimburse Tim Hortons for any advancement of
Expenses in respect of such Proceeding until a final judicial
determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or lapsed).
3.2 Timing and Contents. Any advancement of Expenses
pursuant to Section 3.1 hereof shall be made within ten
days after the receipt by Tim Hortons of a written statement from
Indemnitee requesting such advancement from time to time and
accompanied by or preceded by the undertaking referred to in
Section 3.1 above. Each statement requesting
advancement shall reasonably evidence the Expenses incurred by or
on behalf of the Indemnitee in connection with such Proceeding for
which advancement is being sought.
4. Contribution in the Event of Joint Liability. Whether
or not the indemnification provided in this Agreement is available,
in respect of any Proceeding in which the Company is jointly liable
with Indemnitee (or would be if joined in such Proceeding), Tim
Hortons shall contribute to the amount of Expenses, judgments,
fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company, on the one hand, and
Indemnitee, on the other hand, from the transaction from which such
Proceeding arose; provided , however , that the
proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Company, on the one hand,
and Indemnitee, on the other hand, in connection with the events
that resulted in such Expenses, judgments, fines or settlement
amounts, as well as any other equitable considerations that
applicable law may require to be considered. The relative fault of
the Company, on the one hand, and Indemnitee, on the other hand,
shall be determined by reference to, among other things,
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the degree to which their actions were motivated
by intent to gain personal profit or advantage, the degree to which
their liability is primary or secondary, and the degree to which
their conduct is active or passive.
5. Procedures and Presumptions for Determination of
Entitlement to Indemnification.
5.1 Timing of Payments. All payments of Expenses, judgments,
fines, amounts paid in settlement and other amounts by Tim Hortons
to Indemnitee pursuant to this Agreement shall be made as soon as
practicable after written demand therefor by Indemnitee is
presented to Tim Hortons, but in no event later than (a) 30
days after such demand is presented or (b) such later date as
may be permitted for the determination of entitlement to
indemnification pursuant to Section 5.7 hereof, if
applicable; provided , however , that advances of
Expenses shall be made within the time period provided in
Section 3.2 hereof.
5.2 Request for Indemnification. Whenever Indemnitee
believes that he or she is entitled to indemnification pursuant to
this Agreement, Indemnitee shall submit to Tim Hortons a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. Indemnitee shall submit
such claim for Indemnification within a reasonable time, not to
exceed five years, after any judgment, order, settlement,
dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere (or its equivalent) or other full or partial final
determination or disposition of the Proceeding (with the latest
date of the occurrence of any such event to be considered the
commencement of the five-year period). The Secretary of Tim Hortons
shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors of Tim Hortons (the
"Board" ) in writing that Indemnitee has requested
indemnification.
5.3 Reviewing Party. Upon written request by Indemnitee
for indemnification pursuant to the first sentence of
Section 5.2 hereof, to the extent that the
Indemnitee’s entitlement to such indemnification is governed
by Section 2.1 or 2.2 of this Agreement, a
determination with respect to Indemnitee’s entitlement
thereto shall be made in the specific case by one of the following
methods: (a) so long as there are Disinterested Directors with
respect to such Proceeding, a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, (b) so
long as there are Disinterested Directors with respect to such
Proceeding, a committee of such Disinterested Directors designated
by a majority vote of such Disinterested Directors, even though
less than a quorum, or (c) if there are no Disinterested
Directors or if a majority of Disinterested Directors so direct,
Independent Counsel (designated for such purpose by the Board) in a
written opinion delivered to the Board, a copy of which shall also
be delivered to Indemnitee. The person, persons or entity chosen to
make a determination under this Agreement of the Indemnitee’s
entitlement to indemnification shall act reasonably and in good
faith in making such determination.
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5.4 Selection of Independent Counsel.
If the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 5.3
hereof, the Independent Counsel shall be selected as provided in
this Section 5.4 . The Independent Counsel shall be
selected by the Board, and Tim Hortons shall promptly give written
notice to Indemnitee advising him or her of the identity of the
Independent Counsel so selected. Indemnitee may, within ten days
after such written notice of selection shall have been given,
deliver to Tim Hortons 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 this Agreement, 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 a written objection is made and
substantiated, the Independent Counsel selected may not serve as
Independent Counsel unless and until such objection is withdrawn or
the Court has ruled against such objection. If, within 30 days
after submission by Indemnitee of a written request for
indemnification pursuant to Section 5.2 hereof, no
Independent Counsel shall have been selected or an Independent
Counsel shall have been selected but an objection thereto shall
have been properly made and remained unresolved, either Tim Hortons
or Indemnitee may petition the Court for resolution of any
objection that shall have been made by the Indemnitee 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 5.3 hereof. Tim Hortons shall pay any and all
reasonable
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