INDEMNIFICATION
AGREEMENT
AGREEMENT,
dated as of ___, 2009, by and between ABM Industries Incorporated,
a Delaware corporation (the “ Company ”), and
[___] (the “ Indemnitee ”).
WHEREAS,
it is essential to the Company to retain and attract as directors
and officers the most capable persons available;
WHEREAS,
the Indemnitee is a director and/or officer of the
Company;
WHEREAS,
the Company and the Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and
officers of companies in today’s environment;
WHEREAS,
basic protection against undue risk of personal liability of
directors and officers heretofore has been provided through
insurance coverage providing reasonable protection at reasonable
cost, and the Indemnitee has relied on the availability of such
coverage; but as a result of substantial changes in the marketplace
for such insurance it has become increasingly difficult to obtain
such insurance on terms providing reasonable protection at
reasonable cost;
WHEREAS,
the Company’s By-Laws, as amended (the “ By-Laws
”), require the Company to indemnify and advance expenses to
its directors and officers to the extent provided therein, and the
Indemnitee serves as a director and/or officer of the Company, in
part, in reliance on such provisions in the By-Laws;
WHEREAS,
the current difficulty in obtaining adequate director and officer
liability insurance coverage at a reasonable cost, and
uncertainties as to the availability of indemnification created by
recent court decisions, have increased the risk that the Company
will be unable to retain and attract as directors and officers the
most capable persons available;
WHEREAS,
the Company has determined that its inability to retain and attract
as directors and officers the most capable persons would be
detrimental to the interests of the Company, and that Company
therefore should seek to assure such persons that indemnification
and insurance coverage will be available in the future;
and
WHEREAS,
in recognition of the Indemnitee’s need for substantial
protection against personal liability in order to enhance the
Indemnitee’s continued service to the Company in an effective
manner, the increasing difficulty in obtaining satisfactory
director and officer liability insurance coverage, and the
Indemnitee’s reliance on the By-Laws, and in part to provide
the Indemnitee with specific contractual assurance that the
protection promised by the By-Laws will be available to the
Indemnitee (regardless of, among other things, any amendment to or
revocation of the applicable provisions of the By-Laws or any
change in the composition of the Company’s Board of Directors
or acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to the Indemnitee to the fullest extent
(whether partial or complete) permitted by law and as
set
forth in this
Agreement, and, to the extent insurance is maintained, for the
continued coverage of the Indemnitee under the directors’ and
officers’ liability insurance policy of the
Company.
NOW,
THEREFORE, in consideration of the premises and of the Indemnitee
continuing to serve the Company directly or, at its request, as an
officer, director, manager, member, partner, tax matters partner,
fiduciary or trustee of, or in any other capacity with, another
Person (as defined below) or any employee benefit plan, and
intending to be legally bound hereby, the parties hereto agree as
follows:
1.
Certain Definitions . In addition to terms defined elsewhere
herein, the following terms have the following meanings when used
in this Agreement:
|
|
(a)
|
|
Agreement : shall mean this Indemnification
Agreement, as amended from time to time hereafter.
|
|
|
|
|
|
|
|
(b)
|
|
Board of Directors
: shall mean the Board
of Directors of the Company.
|
|
|
|
|
|
|
|
(c)
|
|
Claim : means any threatened, asserted,
pending or completed civil, criminal, administrative, investigative
or other action, suit or proceeding of any kind whatsoever, or any
appeal of any kind thereof, or any inquiry or investigation,
whether instituted by the Company, any governmental agency or any
other party, that the Indemnitee in good faith believes might lead
to the institution of any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or other, including
any arbitration or other alternative dispute resolution
mechanism.
|
|
|
|
|
|
|
|
(d)
|
|
Indemnifiable Expenses
: means (i) all
expenses and liabilities, including judgments, fines, penalties,
interest, amounts paid in settlement with the approval of the
Company, and counsel fees and disbursements (including, without
limitation, experts’ fees, court costs, retainers, transcript
fees, duplicating, printing and binding costs, as well as
telecommunications, postage and courier charges) paid or incurred
in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to
investigate, defend, be a witness in or participate in, (including
on appeal), any Claim relating to any Indemnifiable Event, and
(ii) any liabilities which an Indemnitee incurs as a result of
acting on behalf of the Company (whether as a fiduciary or
otherwise) in connection with the operation, administration or
maintenance of an employee benefit plan or any related trust or
funding mechanism (whether such liabilities are in the form of
excise taxes assessed by the United States Internal Revenue
Service, penalties assessed by the Department of Labor,
restitutions to such a plan or trust or other funding mechanism or
to a participant or beneficiary of such plan, trust or other
funding mechanism, or otherwise).
|
|
|
|
|
|
|
|
(e)
|
|
Indemnifiable Event
: means any act or
omission, whether occurring before, on or after the date of this
Agreement, arising from the
|
2
|
|
|
|
performance of
the Indemnitee’s duties or obligations to the Company or any
of its subsidiaries, including in connection with any civil,
criminal, administrative, investigative or other action, suit or
proceeding to which the Indemnitee may hereafter be made a party by
reason of being or having been an officer, director, manager,
member, partner, tax matters partner, fiduciary or trustee of, or
having served in any other capacity with, another Person or any
employee benefit plan at the request of the Company.
|
|
|
(f)
|
|
Person : means any individual, corporation,
firm, partnership, joint venture, limited liability company,
estate, trust, business association, organization, governmental
entity or other entity.
|
2. Basic
Indemnification Arrangement; Advancement of Expenses
.
(a) In
the event that the Indemnitee was, is or becomes subject to, a
party to or witness or other participant in, or is threatened to be
made subject to, a party to or witness or other participant in, a
Claim by reason of (or arising in part out of) an Indemnifiable
Event, the Company shall indemnify the Indemnitee, or cause such
Indemnitee to be indemnified, to the fullest extent permitted by
Delaware law in effect on the date hereof and as amended from time
to time; provided , however , that no change in
Delaware law shall have the effect of reducing the benefits
available to the Indemnitee hereunder based on Delaware law as in
effect on the date hereof or as such benefits may improve as a
result of amendments after the date hereof. The rights of the
Indemnitee provided in this Section 2 shall include, without
limitation, the rights set forth in the other sections of this
Agreement. Payments of Indemnifiable Expenses shall be made as soon
as practicable but in any event no later than thirty (30) days
after written demand is presented to the Company.
(b) If
so requested by the Indemnitee, the Company shall advance, or cause
to be advanced (within two business days of such request), any and
all Indemnifiable Expenses incurred by the Indemnitee (an “
Expense Advance ”). The Company shall, in accordance
with such request (but without duplication), either (i) pay,
or cause to be paid, such Indemnifiable Expenses on behalf of the
Indemnitee, or (ii) reimburse, or cause the reimbursement of,
the Indemnitee for such Indemnifiable Expenses. The
Indemnitee’s right to an Expense Advance is absolute and
shall not be subject to any condition that the Board of Directors
shall not have determined that the Indemnitee is not entitled to be
indemnified under applicable law. However, the obligation of the
Company to make an Expense Advance pursuant to this Section 2(b)
shall be subject to the condition that, if, when and to the extent
that a final judicial determination is made (as to which all rights
of appeal therefrom have been exhausted or lapsed) that the
Indemnitee is not entitled to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by the
Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid (it being understood and agreed that
the foregoing agreement by the Indemnitee shall be deemed to
satisfy any requirement that the Indemnitee provide the Company
with an undertaking to repay any Expense Advance if it is
ultimately determined that the Indemnitee is not entitled to
indemnification under applicable law). The Indemnitee’s
undertaking to repay such Expense Advances shall be unsecured and
interest-free.
3
(c) Notwithstanding
anything in this Agreement to the contrary, the Indemnitee shall
not be entitled to indemnification or advancement of Indemnifiable
Expenses pursuant to this Agreement in connection with any Claim
initiated by the Indemnitee unless (i) the Company has joined
in or the Board of Directors of the Company has authorized or
consented to the initiation of such Claim or (ii) the Claim is
one to enforce the Indemnitee’s rights under this Agreement
(including an action pursued by the Indemnitee to secure a
determination that the Indemnitee should be indemnified under
applicable law).
(d) The
indemnification obligations of the Company under Section 2(a) shall
be subject to the condition that the Board of Directors shall not
have determined (by majority vote of directors who are not parties
to the applicable Claim) that the indemnification of the Indemnitee
is not proper in the circumstances because the Indemnitee is not
entitled to be indemnified under applicable law. If the Board of
Directors determines that the Indemnitee is not entitled to be
indemnified in whole or in part under applicable law, the
Indemnitee shall have the right to commence litigation in any court
in the State of Delaware having subject matter jurisdiction thereof
and in which venue is proper, seeking an initial determination by
the court or challenging any such determination by the Board of
Directors or any aspect thereof, including the legal or factual
bases therefor, and the Company hereby consents to service of
process and to appear in any such
|
