FORM OF INDEMNIFICATION AGREEMENT
This is an Indemnification Agreement dated as of ____, 2004
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.
(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.
(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.
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.
(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:
If to the Company: Xxxxxx & Xxxxxx Group, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: The Chairman of the Board
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.
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 _______, 2004 but actually on the
dates set forth below.
THE "INDEMNITEE" XXXXXX & XXXXXX GROUP, INC.
____________________________ By:_____________________________
Name:_______________________ Title:__________________________
Date:_______________________ Date:___________________________
