FORM OF INDEMNIFICATION AGREEMENT
FORM
OF
This is
an Indemnification Agreement dated as of _________ between XXXXXX & XXXXXX
GROUP, INC., a New York corporation (the "Company"), and ___________. (the
"Indemnitee").
1. Recitals. The
Indemnitee is an officer of the Company. Article 8 of the Company's
Certificate of Incorporation, as currently amended, obligates the Company to
indemnify its directors and officers to the fullest extent permitted by the New
York Business Corporation Law, as amended (the "NYBCL"), subject to the
limitations imposed by the Investment Company Act of 1940 and the Rules and
Regulations adopted thereunder. In accordance with the NYBCL and in
consideration of the Indemnitee's continuing services to the Company, the
Company and the Indemnitee desire to enter into this Agreement.
2. Indemnitee's
Services. The Indemnitee shall diligently administer the
Company's affairs in the position or positions described in paragraph
1. Subject to any obligation imposed by contract or by operation of
law, (a) the Indemnitee may at any time and for any reason resign from such
position or positions, and (b) the Company may at any time and for any reason
(or no reason) terminate the Indemnitee's employment in such position or
positions.
3. Indemnification. The
Company shall indemnify the Indemnitee and hold the Indemnitee harmless against
any loss or liability related to or arising from the Indemnitee's service as a
director, officer, employee, or agent of the Company, or of any subsidiary or
affiliate of the Company (a "Subsidiary") or in any capacity whether
as a director, officer, employee, agent or in any other capacity, for any other
corporation, investee, partnership, joint venture, trust, employee benefit plan
or other enterprise on behalf of the Company or its subsidiaries ("Entity"),
upon the following terms and conditions:
(a) The
Company shall, to the fullest extent permitted by the NYBCL as now in
effect--and to such greater or, with respect to acts or omissions occurring
thereafter, to such lesser extent as the NYBCL (or of any successor codification
of the New York corporation laws) may hereafter from time to time permit -- hold
the Indemnitee harmless from and indemnify the Indemnitee against (1) all
judgments rendered, fines levied, and other assessments (including amounts paid
in settlement of any claims, if approved by the Company), plus (2) all
reasonable costs and expenses (including, without limitation, attorneys fees,
retainers, court costs, transcript costs, experts' fees, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, and delivery service fees), incurred in connection with the defense of
any threatened, pending, or completed action or proceeding, whether civil,
criminal, administrative, or investigative (an "Action"), related to or arising
from (1) any actual or alleged act or omission of the Indemnitee at any time as
a director, officer, employee, or agent of the Company or of any Subsidiary or
Entity, or (2) the Indemnitee's past, present, or future status as a director,
officer, employee, or agent of the Company or of any Subsidiary or
Entity.
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(b) Subject
to a determination by a majority of the disinterested directors or a committee
thereof who are not a party to such Action or by independent legal counsel in a
written opinion that the Indemnitee is likely
to have satisfied the standard for indemnification under the NYBCL and the
Investment Company Act of 1940, upon presentation from time to time of such
invoices, statements for services rendered, or other similar documentation as
the Company may reasonably request, the Company shall advance to or reimburse
the Indemnitee for all reasonable costs and expenses incurred of the types
specified in paragraph 3(a) in the defense of any threatened, pending, or
completed Action, as and when such costs are incurred.
(c) The
Company shall indemnify the Indemnitee under paragraph 3(a) only as authorized
in a specific case upon a determination that indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in the NYBCL or in any other applicable provision
of New York law. Such determination shall be made, as the Indemnitee
chooses, either (1) by a majority vote of a quorum of the Company's
disinterested directors who are not parties to such Action, or (2) by
independent legal counsel in a written opinion. The Company shall pay
the fees and expenses of any independent legal counsel chosen by the Company to
make the determination contemplated by this paragraph 3(c).
(d) The
indemnification provided by this Agreement shall apply only to (1) actual or
alleged acts or omissions that occur during the Indemnitee's service as a
director, officer, employee, or agent of the Company or of any Subsidiary or
Entity, and (2) actual or threatened Actions in which the Indemnitee is joined
or named as a party, but which relate to or arise from alleged acts or omissions
that occurred before the Indemnitee's service as a director, officer, employee,
or agent of the Company or of any Subsidiary or Entity, or which relate to acts
or omissions alleged against any former directors, officers, employees, or
agents of the Company or of any Subsidiary or Entity.
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(e) Nothing
in this Agreement shall be deemed or construed to create any liability of the
Company (1) to former directors, officers, employees, or agents or their
predecessors other than Indemnitee, or to any other person not a party to this
Agreement, or (2) exceeding the liability that the Company may lawfully incur in
accordance with applicable New York law.
4. Conduct of
Litigation.
(a) If
any Action is made, brought, or threatened against the Indemnitee for which the
Indemnitee may be indemnified under this Agreement, the Indemnitee shall, to the
extent not inconsistent with any private insurance coverage obtained by the
Company:
(l) Permit
the Company to conduct the Indemnitee's defense of the Action at the Company's
expense and with the use of counsel selected by the Company; or
(2) Retain
counsel acceptable to the Indemnitee and the Company to defend or counsel the
Indemnitee with respect to the Action, and permit the Company to monitor and
direct the Indemnitee's defense.
(b) The
Company shall at all times have the option to undertake the Indemnitee's defense
of any Action for which the Indemnitee may be indemnified under this
Agreement. If the Company elects to conduct the Indemnitee's defense,
the Indemnitee shall cooperate fully with the Company in the defense of the
Action. If the Company elects to conduct the Indemnitee's defense
after the Indemnitee proceeds under paragraph 4(a)(2), the Company shall advance
or reimburse the Indemnitee for the reasonable costs, including attorneys' fees,
incurred by the Indemnitee in enabling the Company to undertake the Indemnitee's
defense.
5. Reimbursement of
Expenses. As required by the NYBCL, if the Company makes any
payment to the Indemnitee under this Agreement, and if it is ultimately
determined that the Indemnitee was not entitled to be indemnified by the Company
under the NYBCL or the Investment Company Act of 1940, the Indemnitee shall
promptly repay the Company for all amounts paid to the Indemnitee under this
Agreement which exceed the indemnification to which the Indemnitee is lawfully
entitled.
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6. Enforcement of
Agreement. If the Indemnitee makes a claim for indemnification
under this Agreement and the Company refuses to indemnify the Indemnitee, and if
the Indemnitee then prevails in an action or proceeding brought to enforce this
Agreement, the Company shall pay all reasonable costs and expenses (including
attorneys' fees) incurred by the Indemnitee in connection with the action or
proceeding in addition to any other indemnification required under this
Agreement.
7. Notice of
Claims. If the Indemnitee receives a complaint, claim, or
other notice of any loss, claim, damage, or liability giving rise to a claim for
indemnification under this Agreement, the Indemnitee shall promptly notify the
Company of the complaint, claim, or other notice. Any failure to
notify the Company, however, shall not relieve the Company from any liability
under this Agreement unless the Company (a) is materially prejudiced by the
failure (such as, for example, where the failure results in the exclusion or
denial of the Company's otherwise available insurance coverage), and (b) had no
actual knowledge of the complaint, claim, or other notice. In no
event shall the Company be obligated to indemnify the Indemnitee for any
settlement of any Action effected without the Company's prior
consent.
8. Termination.
(a) This
Agreement shall terminate (1) upon termination of the Indemnitee's service as a
director, officer, employee, or agent of the Company or of any Subsidiary or
Entity, or (2) upon the Company's written notice to the Indemnitee that, in the
reasonable opinion of the Company, the Indemnitee has not complied with
paragraph 4 of this Agreement. The Company shall not issue any such
notice merely because it disagrees with a business judgment or judgments of the
Indemnitee.
(b) The
termination of this Agreement shall not:
(l) Terminate
the Company's liability to the Indemnitee for (A) Actions against the Indemnitee
related to or arising from acts or omissions occurring or alleged to have
occurred before termination of this Agreement, or (B) Actions that name or join
the Indemnitee as a party, but relate to or arise from acts or omissions alleged
to have occurred before the Indemnitee's service as a director, officer,
employee, or agent, or acts or omissions alleged against former directors,
officers, employees, or agents.
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(2) Render
the terms and conditions of this Agreement inapplicable to any Actions subject
to paragraph 8(b) (1).
9. Subrogation. If
the Company makes any payment to the Indemnitee under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the
Indemnitee's rights of recovery and the Indemnitee shall execute any documents
and take any actions necessary to secure such rights (including execution of any
documents necessary to enable the Company to bring suit to enforce such
rights).
10. Insurance
Reimbursements. The Company shall not be required to make any
payment of amounts otherwise indemnifiable under this Agreement if and to the
extent that the Indemnitee has otherwise actually received such payment under
any insurance policy, contract, agreement, or otherwise.
11. Notices. Any
notice or other communication required or permitted under this Agreement shall
be deemed given when hand-delivered or sent by registered United States mail,
postage prepaid and return-receipt requested, to the intended recipient at the
address set forth below or at such other address as the recipient shall
hereafter furnish the sender in writing:
If to the
Indemnitee:
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If to the
Company:
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Xxxxxx & Xxxxxx Group,
Inc.
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000
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
The Chairman of the Board
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12. Governing
Law. The laws of New York and to the extent inconsistent
therewith, the Investment Company Act of 1940, shall govern the validity,
interpretation, and construction of this Agreement. Nothing in this Agreement
shall require any unlawful action or inaction by any party.
13. Modification. No
modification of this Agreement shall be binding unless executed in writing by
the Indemnitee and the Company.
14. Headings. All
"paragraph" references in this Agreement refer to numbered paragraphs of this
Agreement. Paragraph headings are not part of this Agreement, but are
solely for convenience of reference and shall not affect the meaning or
interpretation of this Agreement or any provision in it.
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15. Sole
Benefit. Nothing expressed or referred to in this Agreement is
intended or shall be construed to give any person other than the Company, its
successors and assigns, and the Indemnitee and the Indemnitee's personal
representatives, heirs, or devisees, any legal or equitable right, remedy, or
claim under or with respect to this Agreement or any provisions contained
herein. The assumption of obligations and statements of
responsibilities and all conditions and provisions of this Agreement are for the
sole benefit of the Company, its successors and assigns, and the Indemnitee and
the Indemnitee's personal representatives, heirs, or devisees.
16. Effect of Prior
Agreements. This Agreement contains the entire understanding
between the Company and the Indemnitee with respect to the subject matter hereof
and supersedes any prior indemnification agreement between the Company or any
predecessor of the Company and the Indemnitee.
IN
WITNESS WHEREOF, the Indemnitee and the Company have executed several originals
of this Agreement as of ____________ but actually on the dates set forth
below.
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THE
"INDEMNITEE"
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XXXXXX
& XXXXXX GROUP, INC.
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____________________________
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By:____________________________
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Name:______________________
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Title:__________________________
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Date:_______________________
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Date:___________________________
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