INDEMNIFICATION AGREEMENT
Exhibit 10.21
This Indemnification Agreement is made as of
___, 2009 (this “Agreement”) by
and between Artio Global Investors Inc., a Delaware corporation (the “Company”), and
(“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve publicly-held
corporations as [directors] [officers] or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against inordinate risks of
claims and actions against them arising out of their service to and activities on behalf of the
corporation;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in
order to attract and retain qualified individuals, the Company shall maintain on an ongoing basis,
at its sole expense, liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities;
WHEREAS, although the furnishing of such insurance has been a customary and widespread
practice among United States-based corporations and other business enterprises, the Company
believes that, given current market conditions and trends, such insurance may be available to it in
the future only at higher premiums and with more exclusions;
WHEREAS, directors, officers and other persons in service to corporations or business
enterprises are being increasingly subjected to expensive and time-consuming litigation relating
to, among other things, matters that traditionally would have been brought only against the Company
or business enterprise itself;
WHEREAS,
the Amended and Restated Certificate of Incorporation of the Company
(as the same may be amended from time to time, the
“Certificate of Incorporation”) requires indemnification of the officers and directors of
the Company;
WHEREAS, Indemnitee may also be entitled to indemnification pursuant to the General
Corporation Law of the State of Delaware (the “DGCL”);
WHEREAS, the Certificate of Incorporation and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between the Company and members of the Board, officers and other
persons with respect to indemnification;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining
such persons is detrimental to the best interests of the Company and its stockholders and that the
Company should act to assure such persons that there will be increased certainty of such protection
in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee does not regard the protection available under the Certificate of
Incorporation and insurance as adequate in the present circumstances, and may not be willing to
serve as an officer or director without adequate protection, and the Company desires Indemnitee to
serve in such capacity; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the Company on the condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the Company. Indemnitee agrees to serve (a) as a [director]
[and officer] of the Company], and (b) at the request of the Company, as [(i) an officer of Artio
Global Holdings LLC, a Delaware limited liability company and direct subsidiary of the Company
(“AGH”), and (ii)] a manager of Artio Global Management LLC, a Delaware limited liability
company and indirect subsidiary of the Company
(“AGM”). Indemnitee also hereafter may serve as an
Agent of another Enterprise at the request of the Company, AGH or AGM.
Indemnitee may at any time and for
any reason resign from any such position (subject to any other contractual obligation or any
obligation imposed by operation of law). This Agreement shall
continue to be in full force and effect after Indemnitee has ceased
to serve in any of the foregoing capacities.
Section 2. Definitions. As used in this Agreement:
(a) References to “Agent” shall mean any person who is or was a director, officer,
trustee, partner, manager, employee, agent or fiduciary of the Company or a subsidiary of the
Company or other person authorized by the Company to act for the Company, including such person
serving in such capacity as a director, officer, trustee, partner, manager, employee, agent or
fiduciary of another corporation, partnership, limited liability company, joint venture, trust or
other Enterprise at the request of, for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company.
(b) A “Change in Control” shall be deemed to occur upon the earliest to occur after
the date of this Agreement of any of the following events:
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i. Any Person (as defined below) is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing 15 percent (15%) or more of the combined voting power of
the Company’s then outstanding securities unless the change in relative Beneficial Ownership of the
Company’s securities by any Person results solely from a reduction in the aggregate number of
outstanding shares of securities entitled to vote generally in the election of directors;
ii. During any period of two consecutive years (not including any period prior to the
execution of this Agreement), individuals who at the beginning of such period constitute the Board,
and any new director (other than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in Sections 2(b)(i),
2(b)(iii) or 2(b)(iv)) whose election by the Board or nomination for election by
the Company’s stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to constitute at least a
majority of the members of the Board;
iii. The effective date of a merger or consolidation of the Company with any other entity,
other than a merger or consolidation that would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving entity) more
than 51% of the combined voting power of the voting securities of the surviving entity outstanding
immediately after such merger or consolidation and with the power to elect at least a majority of
the board of directors or other governing body of such surviving entity;
iv. The approval by the stockholders of the Company of a complete liquidation of the Company
or an agreement for the sale or disposition by the Company of all or substantially all of the
Company’s assets; and
v. There occurs any other event of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar
schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company
is then subject to such reporting requirement.
For purposes of this Section 2(b), the following terms shall have the following meanings:
(A) “Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended from time to time.
(B) “Person” shall have the meaning as set forth in
Sections 13(d) and 14(d) of the Exchange Act; provided,
however, that Person shall exclude (i) the Company, (ii) any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company, and (iii) any corporation owned,
directly or indirectly,
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by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(C) “Beneficial Owner” shall have the meaning given to
such term in Rule 13d-3 under the Exchange Act; provided,
however, that Beneficial Owner shall exclude any Person
otherwise becoming a Beneficial Owner by reason of the stockholders
of the Company approving a merger of the Company with another
entity.
(c) “Corporate Status” describes the status of a person who is or was an Agent of the
Company or of any other corporation, limited liability company, partnership or joint venture, trust
or other Enterprise that such person is or was serving at the request of the Company.
(d) “Disinterested Director” shall mean a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) “Enterprise” shall mean the Company or any other corporation, limited liability
company, partnership, joint venture, trust or other enterprise of which Indemnitee is or was
serving at the request of the Company as a director, officer or other Agent.
(f) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts and other professionals, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees,
any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, excise taxes and penalties arising under,
relating to or in connection with the Employee Retirement Income Security Act of 1974, as amended,
and all other disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a
witness in, or otherwise participating in, a Proceeding. Expenses also shall include (i) Expenses
incurred in connection with any appeal resulting from any Proceeding, including the premium,
security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or
its equivalent, and (ii) for purposes of Section 14(d) only, Expenses incurred by
Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights
under this Agreement, by litigation or otherwise. The parties agree that for the purposes of any
advancement of Expenses for which Indemnitee has made written demand to the Company in accordance
with this Agreement, all Expenses included in such demand that are certified by affidavit of
Indemnitee’s counsel as being reasonable shall be presumed conclusively to be reasonable.
Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.
(g) “Independent Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the past five years has
been, retained to represent: (i) the Company or Indemnitee in any matter material to
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either such party (other than with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “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 either the Company or Indemnitee in an action to determine Indemnitee’s rights under
this Agreement. The Company agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
(h) The term “Proceeding” shall include any threatened, pending or completed action,
suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or
completed proceeding, whether brought in the right of the Company or otherwise and whether of a
civil, criminal, administrative, legislative, or investigative (formal or informal) nature,
including any appeal therefrom, in which Indemnitee was, is or will be involved as a party,
potential party, non-party witness or otherwise by reason of the fact that Indemnitee is or was a
director or officer of the Company or other Agent, by reason of any action taken by him (or a
failure to take action by him) or of any action (or failure to act) on his part while acting
pursuant to his Corporate Status, in each case whether or not serving in such capacity at the time
any liability or Expense is incurred for which indemnification, reimbursement or advancement of
Expenses can be provided under this Agreement. If the Indemnitee believes in good faith that a
given situation may lead to or culminate in the institution of a Proceeding, this shall be
considered a Proceeding under this paragraph.
(i) References to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Company” shall include any service as a director or officer of
the Company or other Agent that imposes duties on, or involves services by, such director, officer
or other Agent with respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in
manner “not opposed to the best interests of the Company” as referred to in this Agreement.
Section 3. Indemnity in Third-Party Proceedings. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or
in the right of the Company to procure a judgment in its favor. Pursuant to this Section
3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against
all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such Expenses, judgments,
fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on his
behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee
acted in
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good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company and, in the case of a criminal Proceeding had no reasonable cause to
believe that his conduct was unlawful. The parties hereto intend that this Agreement shall provide
to the fullest extent permitted by applicable law for indemnification in excess of that expressly
permitted by statute, including any indemnification provided by the Certificate of Incorporation, the by-laws of the Company, vote of its stockholders or disinterested directors or applicable law.
Section 4. Indemnity in Proceedings by or in the Right of the Company. The Company
shall indemnify Indemnitee in accordance with the provisions of this Section 4 if
Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in
the right of the Company to procure a judgment in its favor. Pursuant to this Section 4,
Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all
Expenses actually and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the Company. No
indemnification for Expenses shall be made under this Section 4 in respect of any claim,
issue or matter as to which Indemnitee shall have been finally adjudged by a court to be liable to
the Company, unless and only to the extent that the Chancery Court or any other Delaware Court in
which the Proceeding was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification.
Section 5. Indemnification for Expenses of a Party That is Wholly or Partly
Successful. Notwithstanding any other provisions of this Agreement, to the fullest extent
permitted by applicable law and to the extent that Indemnitee is a party to (or a participant in)
and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue
or matter therein, in whole or in part, the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him or on his behalf in connection with or
related to each successfully resolved claim, issue or matter to the fullest extent permitted by
applicable law. For purposes of this Section 5 and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
Section 6. Indemnification For Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the fullest extent permitted by applicable law and to the extent
that Indemnitee is, by reason of his Corporate Status, a witness or otherwise asked to participate
in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith.
Section 7. Partial Indemnification. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of Expenses, but not,
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however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
Section 8. Additional Indemnification.
(a) Notwithstanding any limitation in Section 3, 4, or 5, the Company
shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is a
party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the
right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and
amounts paid in settlement (including all interest, assessments and other charges paid or payable
in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement)
actually and reasonably incurred by Indemnitee in connection with the Proceeding.
(b) For purposes of this Agreement, the meaning of the phrase “to the fullest extent permitted
by applicable law” shall include:
i. to the fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL, and
ii. to the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.
Section 9. Exclusions. Notwithstanding any provision in this Agreement, the Company
shall not be obligated under this Agreement to make any indemnification payment in connection with
any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond the amount paid under
any insurance policy or other indemnity provision; or
(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or
similar provisions of state statutory law or common law, or (ii) any reimbursement of the Company
by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any
profits realized by the Indemnitee from the sale of securities of the Company, as required in each
case under the Exchange Act (including any such reimbursements that arise from an accounting
restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase
and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act); or
(c) except as provided in Section 14(d), in connection with any Proceeding (or any
part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any
Proceeding) initiated by Indemnitee against the Company or its directors, officers,
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employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of
any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its
sole discretion, pursuant to the powers vested in the Company under applicable law.
Section 10. Advances of Expenses. Notwithstanding any provision of this Agreement to
the contrary (other than Section 14(d)), the Company shall advance, to the fullest extent
not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding (or
any part of any Proceeding) not initiated by Indemnitee, and such advancement shall be made within
30 days after the receipt by the Company of a statement or statements requesting such advances from
time to time, whether prior to or after final disposition of any Proceeding. Advances shall be
unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to
repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under
the other provisions of this Agreement. In accordance with Section 14(d), advances shall
include any and all reasonable Expenses incurred pursuing an action to enforce this right of
advancement, including Expenses incurred preparing and forwarding statements to the Company to
support the advances claimed. The Indemnitee shall qualify for advances upon the execution and
delivery to the Company of this Agreement, which shall constitute an undertaking providing that the
Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is
ultimately determined that Indemnitee is not entitled to be indemnified by the Company. No other
form of undertaking shall be required other than the execution of this Agreement. This Section
10 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to
Section 9.
Section 11. Procedure for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as
reasonably practicable following the receipt by Indemnitee of written notice thereof. The written
notification to the Company shall include a description of the nature of the Proceeding and the
facts underlying the Proceeding. To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company 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 following the final
disposition of such Proceeding. The omission by Indemnitee to notify the Company hereunder will
not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise
than under this Agreement, and any delay in so notifying the Company shall not constitute a waiver
by Indemnitee of any rights under this Agreement. The Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has
requested indemnification.
(b) The Company shall be entitled to participate in the Proceeding at its own expense.
Section 12. Procedure Upon Application for Indemnification.
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(a) Upon written request by Indemnitee for indemnification pursuant to Section 11(a), a
determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested
Directors designated by a majority vote of the Disinterested Directors, even though less than a
quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested
Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee or (D) if so directed by the Board, by the stockholders of the
Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten days after such determination. Indemnitee shall cooperate with
the person, persons or entity making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon reasonable advance
request any documentation or information that is not privileged or otherwise protected from
disclosure and that is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such determination shall be
borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom. The Company promptly will advise Indemnitee in writing with respect to any
determination that Indemnitee is or is not entitled to indemnification, including a description of
any reason or basis for which indemnification has been denied.
(b) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 12(a), the Independent Counsel shall be selected as provided in
this Section 12(b). If a Change in Control shall not have occurred, the Independent
Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee
advising him of the identity of the Independent Counsel so selected. If a Change in Control shall
have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board, in which event the preceding sentence shall
apply), and Indemnitee shall give written notice to the Company advising it of the identity of the
Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be,
may, within ten days after such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, 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, 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 such written
objection is so made and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or
the Chancery Court has
determined that such objection is without merit. If, within 20 days after the later of submission
by Indemnitee of a written request for indemnification pursuant to Section 11(a) and the
final disposition of the Proceeding, no Independent Counsel shall have been selected and not
objected to, either the
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Company or
Indemnitee may petition the Chancery Court for resolution of any objection which
shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel
and/or for the appointment as Independent Counsel of a person selected by such court or by such
other person as such 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 12(a). Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 14(a), Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of professional
conduct then prevailing).
Section 13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall, to the fullest extent not prohibited
by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 11(a), and the
Company shall, to the fullest extent not prohibited by applicable law, 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. Neither the failure of the Company (including by its
directors or Independent Counsel) to have made a determination prior to the commencement of any
action pursuant to this Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has
not met the applicable standard of conduct.
(b) Subject to Section 14(e), if the person, persons or entity empowered or selected
under Section 12 to determine whether Indemnitee is entitled to indemnification shall not
have made a determination within 60 days after receipt by the Company of the request therefor, the
requisite determination of entitlement to indemnification shall, to the fullest extent not
prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s statement not materially misleading, in connection
with the request for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be extended for a
reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith requires such additional
time for the obtaining or evaluating of documentation and/or information relating thereto;
provided, further, that the foregoing provisions of this Section 13(b)
shall not apply (i) if the determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 12(a) and if (A) within 15 days after receipt by the
Company of the request for such determination the Board has resolved to submit such determination
to the stockholders for their consideration at an annual meeting thereof to be held within 75 days
after such receipt and such determination is made thereat, or (B) a special meeting of stockholders
is called within 15 days after such receipt for the purpose of making such determination, such
meeting is held for such
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purpose within 60 days after having been so called and such determination is made thereat, or
(ii) if the determination of entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 12(a).
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to Indemnitee by the directors or
officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the
Enterprise or on information or records given or reports made to the Enterprise by an independent
certified public accountant or by an appraiser or other expert selected with the reasonable care by
the Enterprise. The provisions of this Section 13(d) shall not be deemed to be exclusive
or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met
the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any director or officer of the Company
or other Agent shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
Section 14. Remedies of Indemnitee.
(a) Subject to Section 14(e), if (i) a determination is made pursuant to Section
12 that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 10, (iii) no determination of entitlement
to indemnification shall have been made pursuant to Section 12(a) within 90 days after
receipt by the Company of the request for indemnification, (iv) payment of indemnification is not
made pursuant to Section 5, 6 or 7 or the last sentence of Section
12(a) within ten days after receipt by the Company of a written request therefor, (v) payment
of indemnification pursuant to Section 3, 4 or 8 is not made within ten
days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) if
the Company or any other person takes or threatens to take any action to declare this Agreement
void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny,
or to recover from, the Indemnitee the benefits provided or intended to be provided to the
Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a court of his entitlement
to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his 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. Indemnitee shall commence such
proceeding seeking an adjudication or an award
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in arbitration within 180 days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 14(a); provided, however,
that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to
enforce his rights under Section 5. The Company shall not oppose Indemnitee’s right to
seek any such adjudication or award in arbitration.
(b) If a determination shall have been made pursuant to Section 12(a)that Indemnitee
is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 14 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
14, the Company shall have the burden of proving Indemnitee is not entitled to indemnification
or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 12(a) that Indemnitee
is entitled to indemnification, the Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) The Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14
that the procedures and presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court or before any such arbitrator that the Company is bound by all
the provisions of this Agreement. It is the intent of the Company that, to the fullest extent
permitted by applicable law, the Indemnitee not be required to incur legal fees or other Expenses
associated with the interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement by litigation or otherwise because the cost and expense thereof would substantially
detract from the benefits intended to be extended to the Indemnitee hereunder. The Company shall,
to the fullest extent permitted by applicable law, indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within ten days after receipt by the Company of a
written request therefor) advance, to the extent not prohibited by law, such Expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee
for indemnification or advancement of Expenses from the Company under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company if, in the case of
indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not
wholly successful on the underlying claims, then such indemnification shall be only to the extent
Indemnitee is successful on such underlying claims or otherwise as permitted by applicable law,
whichever is greater.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement of Indemnitee to indemnification under this Agreement shall be required to be made
prior to the final disposition of the Proceeding.
-12-
Section 15. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Certificate of Incorporation, the Company’s Amended and Restated
By-laws (as the same may be amended from time to time, the
“By-Laws”), any agreement, a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or
restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. To the
extent that a change in Delaware law, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently under the Certificate
of Incorporation and this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein
conferred is intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any
other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers or other Agents of the Enterprise, 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 or other Agent under such policy or policies.
If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company
has director and officer liability insurance in effect, the Company shall give prompt notice of
such claim or of the commencement of a Proceeding, as the case may be, to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Company 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 take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable (or for which advancement is provided hereunder) hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as an Agent of any other
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Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification
or advancement of Expenses from such other Enterprise.
Section 16.
Duration of Agreement. This Agreement shall continue until and terminate
upon the later of: (a) ten years after the last date on which
Indemnitee shall have served as a director, officer, or other Agent,
of the Company or of any other Enterprise and (b) one year after the final termination of any
Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or
advancement of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 14 relating thereto. The rights to indemnification and advancement of expenses
rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable
by the parties hereto and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or substantially all of the
business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a
director, officer or other Agent of the Company or of any other Enterprise, and shall inure to the
benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators
and other legal representatives.
Section 17. 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 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 shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Agreement (including 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 thereby.
Section 18. Enforcement.
(a) The Company expressly acknowledges and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director
or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director or officer of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided,
however, that this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation, the By-Laws and applicable law, and shall not be deemed a substitute therefor, nor
to diminish or abrogate any rights of Indemnitee thereunder.
-14-
Section 19. Amendment and Waiver. No provision of this Agreement may be amended
unless such amendment is approved in writing by each of the parties hereto. No provision of this
Agreement may be waived unless such waiver is in writing and signed by the party against whom the
waiver is to be effective. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 20. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company 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 indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have to the Indemnitee under this
Agreement or otherwise.
Section 21. Notices. All notices, requests, consents and other communications
hereunder (each, a “Notice”) to any party shall be in writing and shall be delivered in
person or sent by facsimile (provided a copy is thereafter promptly delivered as provided in this
Section 21) or nationally recognized overnight courier, addressed to such party at the
address or facsimile number set forth below or such other address or facsimile number as may
hereafter be designated in writing by such party to the other parties:
| (a) | If to Indemnitee: | ||
| [ ] | |||
| (b) | If to the Company to: | ||
| Artio Global Investors Inc. 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Xxxx X. Xxxxxx |
with a copy (which shall not constitute notice to the Company) to:
Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
or at such other location for a party as shall be specified to the other party by like Notice. All
such Notices shall only be duly given and effective upon receipt (or refusal of receipt).
-15-
Section 22. Contribution. To the fullest extent permitted under applicable law, if
the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to
be paid in settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect (a) the relative benefits
received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (b) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
Section 23. Governing Law; Consent to Jurisdiction. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of Delaware, without regard to
the conflicts of law rules of such state. Except with respect to any arbitration commenced by
Indemnitee pursuant to Section 14(a), the parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be brought only in
the Chancery Court of the State of Delaware (the “Chancery Court”), and not in any other
state or federal court in the United States of America or any court in any other country, and each
of the parties hereby irrevocably consents to the jurisdiction of the
Chancery Court and of the
appropriate appellate courts therefrom (the “Delaware Courts”) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any
Delaware Court or that any such
suit, action or proceeding brought in any Delaware Court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any Delaware Court.
Section 24. Counterparts. This Agreement may be executed (including by facsimile
transmission with counterpart pages) in separate counterparts, each of which shall be deemed an
original and all of which shall, taken together, be considered one and the same agreement, it being
understood that both parties need not sign the same counterpart.
Section 25. Miscellaneous. For the purposes of this Agreement, the words “it”, “he,”
“his” or “himself” shall be interpreted to include the masculine, feminine and corporate or other
entity form. The words “hereof”, “herein” and “hereunder” and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement. The captions herein are included for convenience of reference only and shall be ignored
in the construction or interpretation hereof. Any singular term in this Agreement shall be deemed
to include the plural, and any plural term the singular. Whenever the words “include”, “includes”
or “including” are used in this Agreement, they shall be deemed to be followed by the words
“without limitation”, whether or not they are in fact followed by those words or words of like
import. “Writing”, “written” and comparable terms refer to printing, typing and other means of
reproducing words (including electronic media) in a visible form. References to any agreement or
contract are to that agreement or contract as amended, modified or supplemented from time to time
in accordance with the terms thereof. References to any
-16-
Person include the successors and assigns of that Person. References from or through any date
mean, unless otherwise specified, from and including or through and including, respectively.
-17-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first above written.
| ARTIO GLOBAL INVESTORS INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
