INDEMNIFICATION AGREEMENT
Exhibit 10.10
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of ___, by and
between LPL Investment Holdings Inc., a Delaware corporation (“Holdings” or the “Company”)
and ___(the “Indemnitee”), an officer and/or director of the Company.
RECITALS
WHEREAS, although the Amended Certificate of Incorporation and the By-Laws of Holdings provide
for advancement and indemnification of the officers and directors of Holdings and the Indemnitee
may also be entitled to advancement and indemnification pursuant to the Delaware General
Corporation Law, the Delaware General Corporation Law expressly contemplates that
contracts may be entered into between Holdings and officers of Holdings and/or members of the Board
of Directors of Holdings with respect to advancement and indemnification of officers and directors;
and
WHEREAS, the Indemnitee’s continued service to the Company substantially benefits the Company;
and
WHEREAS, the Board of Directors of Holdings has determined that it is in the best interest of
the Company to obligate itself contractually to indemnify, and to pay, on a current basis, expenses
in advance of a final disposition of any Proceeding on behalf of the Indemnitee to the fullest
extent permitted by applicable law in order to induce the Indemnitee to serve or continue to serve
the Company free from undue concern that the Indemnitee will not be so indemnified or that any
indemnification obligation will not be met; and
WHEREAS, this Agreement is a supplement to and in furtherance of the certificate and bylaws or
partnership agreement, as the case may be, of Holdings and any Enterprise (as defined below) and
any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of the Indemnitee thereunder; and
WHEREAS, the Indemnitee is willing to serve, continue to serve and to take on additional
service for or on behalf of the Company and certain other Enterprises on the condition that the
Indemnitee is indemnified by the Company;
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the
Company and the Indemnitee do hereby covenant and agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the
meanings hereafter assigned to them:
(a) “Corporate Status” describes the status of a person who is or was a
director, trustee, partner, managing member, officer, employee, agent or fiduciary of the Company
or of any other Enterprise.
(b) A “Disinterested Director” shall mean a director of the applicable
Company who, at the time of a vote referred to in the definition of Reviewing Party is not (i) the
Indemnitee, (ii) a Party to (or a participant in) the Proceeding for which indemnification is
sought or (iii) an individual having a significant familial, financial, professional or employment
relationship with the Indemnitee, which relationship would, in the circumstances, reasonably be
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expected to exert an influence on such director’s judgment when voting on the decision being
made.
(c) “Enterprise” shall mean (i) Holdings; or (ii) any other corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise which is a controlled affiliate or wholly or partially owned direct or indirect
subsidiary, or employee benefit plan, of the Company and of which the Indemnitee is or was serving
as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary; or
(iii) any other corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan or other enterprise, in each case, of which Indemnitee is or was serving at the
request of the Company. “Enterprise” shall specifically include, without limitation, LPL Holdings,
Inc.; LPL Financial Corporation; and UVEST Financial Services Group Inc.
(d) “Expenses” shall mean all reasonable expenses, including, but not
limited to, attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, 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 prosecuting, defending, preparing to prosecute or defend, investigating, being or
preparing to be a witness in, or otherwise participating in, a Proceeding.
Expenses shall include such fees and expenses, and costs incurred in connection with any
appeal resulting from any Proceeding, including without limitation the premium, security for, and
other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.
Expenses, however, shall not include amounts paid in settlement by the Indemnitee or the amount of
judgments or fines against the Indemnitee.
(e) An “Indemnifiable Matter” shall mean any Proceeding in which the
Indemnitee was, is or will be involved as a Party, witness or otherwise by reason of Indemnitee’s
Corporate Status, by reason of any acts or omissions on his part while acting as an officer or
director of such Company, or by reason of the fact that he is or was serving as a director,
trustee, general partner, managing member, officer, employee, agent or fiduciary of any other
Enterprise, in each case whether or not serving in such capacity at the time any Expense, judgment,
fine or amount paid in settlement is incurred for which indemnification, reimbursement, or
advancement of Expenses can be provided under this Agreement.
(f) “Indemnitee-Related Entities” means any corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise (other
than the Company, any other Enterprise or the insurer under and pursuant to an insurance policy
issued to or insuring either Company or any Enterprise) from whom the Indemnitee may be entitled to
indemnification, reimbursement, or advancement of Expenses.
(g) An “Indemnitee Statement” shall mean a written demand by the Indemnitee
to the Company for a payment pursuant to Section 2(c) of this Agreement, accompanied by a written
statement from the Indemnitee to the Company in which the Indemnitee (i) affirms, with respect to
the applicable Indemnifiable Matter, the Indemnitee’s good faith belief that the Indemnitee has met
the relevant standard of conduct described in Section 145 of the Delaware General Corporation
Law or that the Proceeding involves conduct for which liability has been eliminated under such
Company’s certificate of incorporation or bylaws and (ii) undertakes to repay any funds paid in
advance of a final disposition of a Proceeding (or funds paid directly by the Company advance of a
final disposition of a Proceeding) if, with respect to
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the applicable Indemnifiable Matter, the Indemnitee is not entitled to indemnification under
applicable law as ultimately determined by a court of competent jurisdiction.
(h) Jointly Indemnifiable Claims” shall be broadly construed and shall
include, without limitation, any Proceeding for which the Indemnitee shall be entitled to
indemnification, reimbursement, or advancement of Expenses from (i) either the Company and/or any
other Enterprise pursuant to the Indemnification Sources, on the one hand, and (ii) any
Indemnitee-Related Entity under any other agreement or arrangement between any Indemnitee-Related
Entity and the Indemnitee pursuant to which the Indemnitee is indemnified or entitled to
advancement of Expenses, the laws of the jurisdiction of incorporation or organization of any
Indemnitee-Related Entity and/or the certificate of incorporation, certificate of organization,
bylaws, partnership agreement, operating agreement, certificate of formation, certificate of
limited partnership or other organizational or governing documents of any Indemnitee-Related
Entity, on the other hand.
(i) A “Liability” shall mean an obligation to pay a loss, liability, cost,
judgment, settlement, penalty, and/or fines (including an excise tax assessed with respect to an
employee benefit plan) in connection with an Indemnifiable Matter and any Expenses incurred in
connection with an Indemnifiable Matter.
(j) A “Party” shall mean an individual who was, is, or is threatened to be
made, a defendant or respondent in a Proceeding, or a subject, target, person of interest, or other
person within the scope of any Proceeding. The Indemnitee shall be considered a “Party” in a
Proceeding in which the Indemnitee seeks a declaratory judgment with respect to matters related to
an Indemnifiable Matter.
In addition, the Indemnitee shall be considered a Party for all aspects of an Indemnifiable
Matter even though the Indemnitee asserts counter-claims or cross-claims.
(k) “Person” means an individual, a corporation, a limited liability
company, an association, a partnership, an estate, a trust and any other entity or organization,
other than the Company or any of its subsidiaries.
(l) A “Proceeding” shall mean any threatened, pending or completed action,
suit, arbitration, mediation, alternate dispute resolution proceeding, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding, whether brought in
the right of the Company or otherwise, whether informal or formal, and whether of a civil,
criminal, administrative or investigative nature, including, without limitation, any such
proceeding pending as of the date of this Agreement.
(m) The “Reviewing Party” in connection with an Indemnifiable Matter shall be
selected by the Indemnitee from the following persons:
(i) if there are two or more Disinterested Directors on the Board of Directors of
the applicable Company, such Board of Directors acting by majority vote of all Disinterested
Directors, or by a majority of the members of a committee of the Board of Directors of such Company
consisting of two or more Disinterested Directors; or
(ii) a Special Legal Counsel selected by the Indemnitee and approved by:
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(a) if there are two or more Disinterested Directors on the Board
of Directors of
the applicable Company, the Board of Directors of such Company acting by majority vote of all
Disinterested Directors, or by a majority of the members of a committee of the Board of Directors
of such Company consisting of two or more Disinterested Directors; or
(b) if there are fewer than two Disinterested Directors on the
Board of Directors of
the applicable Company, the full Board of Directors of the Company, with directors who do not
qualify as Disinterested Directors eligible to vote; or
(n) “Special Legal Counsel” shall mean, at any time, any law firm, or a
member of a law firm, that (a) is experienced in matters of corporation law and (b) is not, at such
time, or has not been in the five years prior to such time, retained to represent: (i) any Company
or Enterprise or the Indemnitee in any matter material to either such party (other than as Special
Legal Counsel), or (ii) any other Party to (or participant in) the Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing, the term “Special Legal
Counsel” shall not include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing the Company or any Enterprise or
the Indemnitee in an action to determine the Indemnitee’s rights under this Agreement. The Company
agrees to pay the reasonable fees and expenses of the Special Legal 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 and to be liable
therefor.
2. Indemnification and Advancement in General.
(a) In the event the Indemnitee is a Party, witness or otherwise a participant in an
Indemnifiable Matter, the Company shall be obligated to indemnify the Indemnitee for any associated
Liabilities to the fullest extent permitted by law. Subject to Section 2(d) and in accordance with
the procedures set forth in Section 3, any indemnification pursuant to this Section 2(a) must be
determined by the Reviewing Party to be permissible under the Delaware General Corporation Law in
the specific Proceeding. The Company shall make any such payment to which the Indemnitee is
entitled pursuant to this Section 2(a) as soon as practicable but in no event later than ten (10)
days after a determination by the Reviewing Party that Indemnitee is entitled to indemnification.
(b) The Company shall be liable to indemnify the Indemnitee and pay for or reimburse
Expenses and other amounts incurred by or on behalf of the Indemnitee (i) in taking any action to
enforce any provision of this Agreement, including all Expenses incurred bringing a claim,
counterclaim or cross claim in a legal proceeding, arbitration or otherwise to enforce this
Agreement or any provisions of this Agreement or (ii) for recovery under any directors’ and
officers’ liability insurance policy maintained by the Company.
(c) Notwithstanding anything herein to the contrary, the Company shall, to the
fullest extent permitted by law, be obligated to pay, on a current and as-incurred basis, any and
all Expenses incurred by Indemnitee in an Indemnifiable Matter (an “Expense Advance”)
within ten (10) days after the receipt by the Company of a statement or statements requesting such
advances from time to time, provided that the Indemnitee has delivered to the Company an Indemnitee
Statement. Such Expense Advances shall (i) be unsecured and interest free; (ii) be made without
regard to the Indemnitee’s ability to repay the advances; (iii) be made without regard to the
Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement;
and (iv) include any and all Expenses incurred pursuing an action to enforce any
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rights under this Agreement, including Expenses incurred preparing and forwarding statements
to the Company to support the advances claimed. The Indemnitee shall qualify for advancement of
Expenses solely upon the execution and delivery to the Company of the Indemnitee Statement.
(d) Notwithstanding any other provisions of this Agreement, to the extent that the
Indemnitee is a Party to (or a participant in) and is successful, on the merits or otherwise, in
any Proceeding in connection with an Indemnifiable Matter or in defense of any claim, issue or
matter therein, in whole or in part, the Company shall be obligated to indemnify the Indemnitee
against all Expenses incurred by him in connection therewith. If the 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 be obligated to
indemnify Indemnitee against all Expenses incurred by the Indemnitee or on the Indemnitee’s behalf
in connection with each successfully resolved claim, issue or matter. If the Indemnitee is not
wholly successful in such Proceeding, the Company also shall be liable to indemnify the Indemnitee
against all Expenses incurred in connection with any claim, issue or matter that is related to any
claim, issue, or matter on which the Indemnitee was successful. For purposes of this Section and
without limitation, the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, or settlement of any such claim prior to a final judgment by
a court of competent jurisdiction with respect to such Proceeding, shall be deemed to be a
successful result as to such claim, issue or matter.
(e) This Agreement shall constitute authorization to provide indemnification, pay
funds, on a current basis, and reimburse expenses under Section 145 of the Delaware General
Corporation Law. Any limitation under any law applicable to any Enterprise concerning
indemnification or advancement shall not limit the indemnification and advancement obligations of
any Enterprise to which such law does not apply.
(f) For purposes of this Section 2, the meaning of the phrase “to the fullest extent
permitted by law” shall include, but not be limited to:
(1) to the fullest extent permitted by the provision of the Delaware General
Corporation Law that permits a corporation to indemnify its officers and directors,
(2) to the fullest extent permitted by the provision of the Delaware General
Corporation Law that authorizes or contemplates additional indemnification by agreement; and
(3) to the fullest extent authorized or permitted by any amendments to or
replacements of the Delaware General Corporation Law adopted after the date of this Agreement that
increase the extent to which a corporation may indemnify its officers and directors.
3. Procedure for Indemnification.
(a) In order to obtain indemnification under this Agreement, the Indemnitee shall,
anytime following Indemnitee’s submission of an Indemnitee Statement to the Company, and consistent
with the time period of this Agreement as set forth in Section 5 of this Agreement, submit to the
Company a written request for indemnification pursuant to this Section 3(a). No determination of
Indemnitee’s entitlement to indemnification shall be made until such written request for a
determination is submitted by Indemnitee to the Company pursuant to this Section 3(a).
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(b) No written request for indemnification or determination of Indemnitee’s entitlement to
indemnification shall be required in order to obtain advancement of Expenses pursuant to Section
2(c).
(c) The failure to submit a written request to the Company will relieve the Company of its
indemnification obligations under this Agreement only to the extent the Company can establish that
such failure to make a written request resulted in actual material prejudice to it, and the failure
to make a written request will not relieve the Company from any liability which it may have to
indemnify the Indemnitee otherwise than under this Agreement.
(d) The Company shall, promptly upon receipt of such a request for indemnification, advise the
Board of Directors of the Company in writing that the Indemnitee has requested indemnification.
(e) The Indemnitee shall cooperate with the Reviewing Party making such
determination with respect to the Indemnitee’s entitlement to indemnification, including providing
to such Reviewing Party upon request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available to the Indemnitee and
reasonably necessary to such determination.
(f) Any costs or expenses (including attorneys’ fees and disbursements) incurred by the
Indemnitee in so cooperating with the Reviewing Party, as the case may be, making such
determination shall be advanced and borne by the Company (where the Indemnitee executes and
delivers to the Company the Indemnitee Statement) irrespective of the determination as to the
Indemnitee’s entitlement to indemnification) and the Company should be obligated to indemnify and
hold the Indemnitee harmless therefrom.
(g) In making a determination with respect to Indemnitee’s entitlement to
indemnification hereunder, the Reviewing Party making such determination shall presume that the
Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted an
Indemnitee Statement, and the Company shall 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 Board of Directors) or of
Special Legal Counsel to have made a determination prior to the commencement of any judicial
proceeding or arbitration pursuant to this Agreement that indemnification is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including by its Board of Directors) or by Special Legal Counsel that
the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(h) If the Reviewing Party shall not have made a determination within sixty (60)
days after receipt by the Company of the Indemnitee’s written request for indemnification pursuant
to Section 3(a) of this Agreement, the requisite determination of entitlement to indemnification
shall be deemed to have been made and the Indemnitee shall be entitled to such indemnification,
absent (i) a failure by the Indemnitee to comply with Section 3(e) hereof, (ii) a misstatement by
the Indemnitee of a material fact, or an omission of a material fact necessary to make the
Indemnitee’s statement not materially misleading, in connection with the request for
indemnification, or (iii) 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
thirty (30) days, if the Special Legal Counsel making the determination with respect to
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entitlement to indemnification in good faith requires such additional time for the obtaining
or evaluating of documentation and/or information relating thereto.
(i) 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 the Indemnitee to indemnification or create a presumption that the Indemnitee did not meet
any particular standard of conduct required pursuant to this Agreement.
(j) For purposes of any determination of good faith, the Indemnitee shall be deemed
to have acted in good faith if the Indemnitee’s action or failure to act is based on the records or
books of account of the Enterprise, including financial statements, or on information supplied to
the Indemnitee by the officers, employees or committees of the board of directors 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 by the Enterprise. The provisions of this
Section 3(j) shall not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed or found to have met the applicable standard of conduct set
forth in this Agreement.
(k) The knowledge and/or actions, or failure to act, of any other director, partner,
managing member, officer, agent, employee or trustee of the Enterprise shall not be imputed to the
Indemnitee for purposes of determining his right to indemnification under this Agreement.
4. Remedies.
(a) In the event that (i) a determination is made pursuant to Section 2(a) of this
Agreement that the Indemnitee is not entitled to indemnification under this Agreement, (ii) payment
of Expenses is not timely made pursuant to Section 2(c) or Section 3(f) of this Agreement within
ten (10) days after receipt by the Company of a written request therefor, (where the Indemnitee has
executed and delivered to the applicable Company the Indemnitee Statement), (iii) payment of
indemnification is not made within ten (10) days after a determination has been made by the
Reviewing Party that the Indemnitee is entitled to indemnification pursuant to Section 2(a) of this
Agreement, (iv) an Enterprise 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, or (v) there is any breach of this Agreement, the Indemnitee
shall be entitled to seek an adjudication by a court of competent jurisdiction as to his
entitlement to such indemnification or payment of Expenses, on a current basis, or may seek an
award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. The Company shall not oppose the Indemnitee’s right
to seek any such adjudication or award in arbitration.
(b) If the Indemnitee has commenced adjudication or arbitration to secure a determination,
with respect to an Indemnifiable Matter, that the Indemnitee is entitled to indemnification under
this Agreement, any determination made by the Reviewing Party that indemnification of the
Indemnitee is not permissible under the Delaware General Corporation Law with respect to
such Indemnifiable Matter shall not be binding, and (where the Indemnitee has executed and
delivered to the applicable Company the Indemnitee Statement) the Indemnitee shall not be required
to reimburse the Company for any Expense Advance until a final judicial
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determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that
indemnification is not legally permissible is made with respect to such matter.
(c) In the event that a determination shall have been made pursuant to Section 2(a)
of this Agreement that the Indemnitee is not entitled to indemnification, any judicial proceeding
or arbitration, commenced pursuant to this Section 4, shall be conducted in all respects as a de
novo trial, or arbitration, on the merits, and the Indemnitee shall not be prejudiced by reason of
that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 4, the Company shall have the burden of proving the Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(d) If a determination shall have been made pursuant to Section 2(a) of this
Agreement that the Indemnitee is entitled to indemnification, the Company shall be bound by, and
shall have no right to challenge, such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 4, absent a misstatement by the Indemnitee of a material fact,
or an omission of a material fact necessary to make the Indemnitee’s statement not materially
misleading, in connection with Indemnitee’s request for indemnification.
(e) In the event that the Indemnitee is a Party to (or a witness or otherwise a
participant in) a judicial proceeding or arbitration pursuant to this Section 4 concerning the
Indemnitee’s rights under, or to recover damages for breach of, this Agreement, the Indemnitee
shall be entitled to recover from the Company, and shall be indemnified by the Company against, any
and all Expenses incurred by the Indemnitee (where, with respect to an Indemnifiable Matter, the
Indemnitee has executed and delivered to the Company the Indemnitee Statement) in such judicial
adjudication or arbitration.
If it shall be determined in said judicial adjudication or arbitration that the Indemnitee is
entitled to receive part but not all of the indemnification or advancement of Expenses sought, the
Indemnitee shall be entitled to recover from the Company (who shall be liable therefor), and shall
be indemnified by the Company against, any and all Expenses incurred by the Indemnitee in
connection with such judicial adjudication or arbitration.
(f) The Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 4 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.
(g) Notwithstanding anything in this Agreement to the contrary, no determination as to
Indemnitee’s entitlement to indemnification under this Agreement shall be required to be made prior
to the final disposition of the Proceeding.
5. Duration of the Agreement. This Agreement shall continue until and terminate
upon the later of: (a) 10 years after the date that the Indemnitee shall have ceased to serve as a
director of the Company or as a director, partner, managing member, officer, employee, agent or
trustee of any other Enterprise; or (b) 1 year after the final termination (i) of any Proceeding
(including any rights of appeal) then pending in respect of which the Indemnitee requests
indemnification or advancement of Expenses hereunder and (ii) of any judicial proceeding or
arbitration pursuant to Section 4 of this Agreement (including any rights of appeal) involving the
Indemnitee. This Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of the Indemnitee and his heirs, executors and administrators.
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6. Non-exclusivity, Etc. The rights of indemnification and to receive payment of
Expenses, on a current basis, as provided by this Agreement shall not be deemed exclusive of any
other rights to which the Indemnitee may at any time be entitled under applicable law, the
Company’s or any other Enterprise’s certificate of incorporation, the Company’s or any other
Enterprise’s Bylaws, 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 the Indemnitee under this Agreement in respect to any action taken or omitted
by such Indemnitee 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
Company’s or any other Enterprise’s Bylaws and this Agreement, it is the intent of the parties
hereto that the 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.
7. Liability Insurance. To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, partners, managing members,
officers, employees, agents or trustees of the Company or of any other Enterprise, the 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, partner, managing member, officer,
employee, agent or trustee under such policy or policies.
If, at the time of the receipt of a notice of a claim pursuant to Section 2 hereof, the
Company has director and officer liability insurance in effect, the Company shall give prompt
notice of the commencement of such Proceeding 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. The Company shall maintain an
insurance policy or policies for directors, partners, managing members, officers, employees, agents
or trustees of the Company and of all Enterprises in an amount reasonably acceptable to the Chief
Executive Officer of the Company.
8. Amendments, Etc. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
9. Subrogation. Subject to Section 11(b) of this Agreement, in the event of
payment under this Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Indemnitee, who shall execute all such papers and do all such
things as may be necessary or desirable to secure such rights.
10. No Duplication of Payments. Subject to Section 11(b) of this Agreement, the
Company shall not be liable under this Agreement to make any payment in connection with any
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Proceeding involving the Indemnitee to the extent the Indemnitee has otherwise received
payment (under any insurance policy, the Company’s certificate of incorporation or by-laws or
otherwise) of the amounts otherwise indemnifiable hereunder.
11. Contribution; Jointly Indemnifiable Claims.
(a) To the fullest extent permissible under applicable law, if the indemnification
provided for in this Agreement is unavailable to the Indemnitee for any reason whatsoever, the
Company, in lieu of indemnifying the Indemnitee, shall contribute to the amount incurred by the
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 Matter
under this Agreement, in such proportion in order to reflect (i) the relative benefits received by
the Company and the Indemnitee as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officer,
employees and agents) and the Indemnitee in connection with such event(s) and/or transaction(s).
(b) Given that certain Jointly Indemnifiable Claims may arise, the Company
acknowledges and agrees that the Company shall be fully and primarily responsible for the payment
to the Indemnitee in respect of indemnification or advancement of Expenses in connection with any
such Jointly Indemnifiable Claim, whether Indemnitee’s right to indemnification or advancement
arises, pursuant to and in accordance with (as applicable) the terms of (i) the Delaware General
Corporation Law, (ii) the Amended and Restated Certificate of Incorporation and the By-Laws of the
Company, (iii) this Agreement, (iv) any other agreement between either Company or any other
Enterprise and the Indemnitee pursuant to which the Indemnitee is indemnified, (v) the laws of the
jurisdiction of incorporation or organization of any other Enterprise and/or (vi) the certificate
of incorporation, certificate of organization, bylaws, partnership agreement, operating agreement,
certificate of formation, certificate of limited partnership or other organizational or governing
documents of any other Enterprise ((i) through (vi) collectively, the “Indemnification
Sources”), without regard to any right of recovery the Indemnitee may have from the
Indemnitee-Related Entities. Under no circumstance shall either Company or any other Enterprise be
entitled to any right of subrogation or contribution from the Indemnitee-Related Entities pursuant
to any right of indemnification Indemnitee has under a contract between Indemnitee and any
Indemnitee-Related Entities, and no right of indemnification or advancement of Expenses or any
other right of recovery the Indemnitee may have from the Indemnitee-Related Entities shall reduce
or otherwise alter the rights of the Indemnitee or the obligations of either Company or any other
Enterprise under the Indemnification Sources.
(c) In the event that any of the Indemnitee-Related Entities shall make any payment to the
Indemnitee in respect of indemnification or advancement of Expenses with respect to any Jointly
Indemnifiable Claim, (i) the Company shall, and to the extent applicable shall cause the other
Enterprises to, reimburse, indemnify and hold harmless each Indemnitee-Related Entity making such
payment to the extent of such payment promptly upon written demand from such Indemnitee-Related
Entity, (ii) to the extent not previously and fully reimbursed by the Company and/or any other
Enterprise pursuant to clause (i), the Indemnitee-Related Entity making such payment shall be
subrogated to the extent of the outstanding balance of such payment to all of the rights of
recovery of the Indemnitee against the Company and/or any other Enterprise, as applicable, and
(iii) Indemnitee shall execute all papers reasonably required and shall do all things that may be
reasonably necessary to secure such rights, including
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the execution of such documents as may be necessary to enable the Indemnitee-Related Entities
effectively to bring suit to enforce such rights.
(d) The Company and Indemnitee agree that each of the Indemnitee-Related Entities shall be
third-party beneficiaries with respect to this Agreement entitled to enforce this Agreement as
though each such Indemnitee-Related Entity were a party to this Agreement. The Company shall cause
each of the other Enterprises to perform the terms and obligations of this Agreement as though each
such Enterprise was a party to this Agreement.
12. Joint and Several Liability. To the extent that both the Company and one or
more Enterprises are obligated to indemnify the Indemnitee, the Company shall be jointly and
severally obligated with such Enterprise(s) to indemnify the Indemnitee pursuant to the terms of
this Agreement.
13. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors, assigns, including, with
respect to the Company, any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business or assets of the Company, and including, with
respect to the Indemnitee, the Indemnitee’s estate, heirs and personal representatives. This
Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as an
officer or director of the Company or of any other Enterprise.
14. 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, without limitation, 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, without limitation, 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.
15. Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (a) if delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed,
or (b) mailed by certified or registered mail with postage prepaid, on the third business day after
the date on which it is so mailed:
(a) If to the Indemnitee, at the address indicated on the signature page of this
Agreement, or such other address as the Indemnitee shall provide in writing to the Company.
(b) If to the Company to: LPL Holdings, Inc., Xxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
XX 00000, Attn: Secretary (or, if the Indemnitee is at such time the Secretary, to the President of
the Company).
16. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made and to be performed
in such state without giving effect to the principles of conflicts of law.
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17. References. References to statutes, regulations and documents shall be deemed to
mean such statutes, regulations and documents as amended from time to time and any successor
statutes, regulations and documents.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| INDEMNITEE | ||||
By:
|
||||
| Address: | ||||
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| LPL INVESTMENT HOLDINGS INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
