INDEMNIFICATION AGREEMENT
Exhibit
10.11
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of , by and
between each of LPL Investment Holdings Inc., a Delaware corporation (“Holdings”), LPL
Holdings, Inc., a Massachusetts corporation (“LPL”, and together with Holdings, each a
“Company”), and (the “Indemnitee”), an officer and/or director of a
Company.
RECITALS
WHEREAS, although the Restated Articles of Organization and the By-laws of LPL provide for
indemnification of the officers and directors of LPL and the Indemnitee may also be entitled to
indemnification pursuant to the Massachusetts Business Corporation Act, the Massachusetts Business
Corporation Act expressly contemplates that contracts may be entered into between LPL and officers
of LPL and/or members of the Board of Directors of LPL with respect to indemnification of officers
and directors; and
WHEREAS, the Indemnitee’s continued service to each Company substantially benefits the
Companies; and
WHEREAS, each of the Boards of Directors of LPL and Holdings has determined that it is in the
best interest of the Companies and that it is reasonably prudent and necessary for each Company
contractually to obligate itself 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
Companies 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 (a) the Restated Articles of
Organization and Bylaws of LPL, and (b) 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 Companies and certain other Enterprises on the condition that the
Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, each
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, general partner, managing member, officer, employee, agent or fiduciary of a
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
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or (iii) an individual having a familial, financial, professional or employment relationship
with the Indemnitee, which relationship would, in the circumstances, reasonably be expected to
exert an influence on such director’s judgment when voting on the decision being made.
(c) “Enterprise” shall mean (i) the Companies and (ii) any other
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise which is an Affiliate or wholly or partially owned subsidiary of the Companies and
of which the Indemnitee is or was serving as a director, trustee, general partner, managing member,
officer, employee, agent or fiduciary; and (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 a Company. For purposes of this Agreement,
a director or officer will be considered to be serving on an employee benefit plan at a Company’s
request if the individual’s duties to such Company also impose duties on, or otherwise involve
services by, the individual to the plan.
(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) “Fines” shall mean any excise tax assessed with respect to any employee
benefit plan; references to “serving at the request of a Company” shall include any service as a
director, trustee, general partner, managing member, officer, employee, agent or fiduciary of a
Company or an Enterprise which imposes duties on, or involves services by, such director, trustee,
general partner, managing member, officer, employee, agent or fiduciary 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 a manner “not opposed to the best
interests of the Companies” as referred to in this Agreement.
(f) An “Indemnifiable Event” shall mean any Proceeding in which the
Indemnitee was, is or will be involved as a Party or otherwise by reason of the fact that the
Indemnitee is or was an officer or director of any of the Companies or the Enterprises, 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.
(g) “Indemnitee-Related Entities” means any corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise (other
than the Companies, any other Enterprise or the insurer under and pursuant to an insurance policy
of either Company or any Enterprise) from whom the Indemnitee may be entitled to
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indemnification,
reimbursement, or advancement of Expenses with respect to which, in whole or in part, either
Company or any other Enterprise may also have an indemnification, reimbursement, or advancement of
Expenses obligation.
(h) An “Indemnitee Statement” shall mean a written demand by the Indemnitee
to a Company for a payment pursuant to Section 2(b) of this Agreement, accompanied by a written
statement, dated the date of such statement, from the Indemnitee to a Company in which the
Indemnitee (i) affirms, with respect to the applicable Indemnifiable Event, the Indemnitee’s good
faith belief that the Indemnitee has met the relevant standard of conduct described in Subdivision
E of Part 8 of the Massachusetts Business Corporation Act or that the Proceeding involves conduct
for which liability has been eliminated under such Company’s articles of organization or bylaws and
(ii) undertakes to repay any funds paid in advance of a final disposition of a Proceeding (or funds
paid directly by a Company advance of a final disposition of a Proceeding) if, with respect to the
applicable Indemnifiable Event, the Indemnitee is not entitled to indemnification under applicable
law as ultimately determined by a court of competent jurisdiction or by the Reviewing Party that
the Indemnitee has not met the relevant standard of conduct described in Subdivision E of Part 8 of
the Massachusetts Business Corporation Act.
(i) An “IPO” shall mean an underwritten initial public offering or public
offering of shares of BD Investment Holdings Inc. pursuant to a registration statement under the
Securities Act of 1933, as amended, or any successor federal statute thereto, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
(j) 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 Company and/or any other
Enterprise pursuant to the Indemnification Sources, on the one hand, and (ii) any
Indemnitee-Related Entity pursuant to any other agreement between any Indemnitee-Related Entity and
the Indemnitee pursuant to which the Indemnitee is indemnified, 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.
(k) A “Liability” shall mean an obligation to pay a judgment, settlement,
penalty, and/or Fine (including an excise tax assessed with respect to an employee benefit plan) in
connection with an Indemnifiable Event and any Expenses incurred in connection with an
Indemnifiable Event.
(l) A “Party” shall mean an individual who was, is, or is threatened to be
made, a defendant or respondent in a 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 Event. In addition, the Indemnitee shall be considered a Party for all aspects of
an Indemnifiable Event even though the Indemnitee asserts counter-claims or cross-claims.
(m) “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 a Company or any of its subsidiaries.
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(n) A “Proceeding” shall mean any threatened, pending or completed action,
suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding, whether brought in
the right of a 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.
(o) The “Reviewing Party” in connection with an Indemnifiable Event shall be,
as selected by the Indemnitee in his or her sole discretion:
(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 nominated by the Indemnitee and selected by
(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
(iii) prior to an IPO, the shareholders of the applicable Company acting by the vote
required for ordinary corporate actions, except that shares owned by or voted under the control of
(A) a director of such Company who at the time does not qualify as a Disinterested Director or (B)
the Indemnitee may not be voted on the determination.
(p) “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 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 either of the Companies or the Indemnitee in an
action to determine the Indemnitee’s rights under this Agreement. Each 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 jointly and severally liable
therefor.
2. Basic Arrangement.
(a) In the event the Indemnitee is a Party in an Indemnifiable Event, subject only
to limitations expressly imposed by the terms of this Agreement, each Company shall indemnify the
Indemnitee for any associated Liabilities to the fullest extent permitted by
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law. Subject to
Section 2(f) 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
Massachusetts Business Corporation Act in the specific Proceeding. Each 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 five (5) days after determination by the Reviewing Party.
(b) Notwithstanding anything to the contrary, before the final disposition of an
Indemnifiable Event in which the Indemnitee is a Party, each Company shall be obligated to pay, on
a current basis, any and all funds to pay for or reimburse the Indemnitee’s Expenses (an
“Expense Advance”) within ten (10) days after the receipt by a Company of a statement or
statements requesting such advances from time to time, provided that the Indemnitee delivers an
Indemnitee Statement. Such advances (i) shall be unsecured and interest free; (ii) shall be made
without regard to the Indemnitee’s ability to repay the advances and without regard to the
Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement;
and (iii) shall include any and all Expenses incurred pursuing an action to enforce this right of
payments, on a current basis, including Expenses incurred preparing and forwarding statements to a
Company to support the advances claimed. The Indemnitee shall qualify for advancement of Expenses
solely upon the execution and delivery to a Company of the Indemnitee Statement.
(c) Pursuant to Section 8.58(a) of the Massachusetts Business Corporation Act, this
Agreement shall constitute authorization to provide indemnification, pay funds, on a current basis,
and reimburse expenses under Subdivision E of Part 8 of the Massachusetts Business Corporation Act.
(d) Each Company shall be liable to indemnify the Indemnitee and pay for or
reimburse the Indemnitee’s Liabilities in connection with an Indemnifiable Event or other any other
Proceeding involving the Companies or Enterprises, in either case, in which the Indemnitee is a
witness but not a Party. If the Companies do not pay directly for any Expenses incurred in
connection therewith, each Company shall be obligated to pay, on a current basis, any and all funds
to pay for or reimburse the Indemnitee’s Expense for which the Indemnitee is entitled pursuant to
this Section 2(d) within ten (10) days after receipt by a Company of a written demand for
reimbursement signed by the Indemnitee. Such advances (i) shall be unsecured and interest free;
(ii) shall be made without regard to the Indemnitee’s ability to repay the advances and without
regard to the Indemnitee’s ultimate entitlement to indemnification under the other provisions of
this Agreement; and (iii) shall include any and all Expenses incurred pursuing an action to enforce
this right of payments, on a current basis, including Expenses incurred preparing and forwarding
statements to a Company to support the advances claimed. The Indemnitee shall qualify for
advancement of Expenses solely upon the execution and delivery to a Company of the Indemnitee
Statement.
(e) Each Company shall be liable to indemnify the Indemnitee and pay for or reimburse the
Indemnitee’s Liabilities 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 Companies. If the Companies do not pay
directly for any Expenses incurred in connection therewith, each Company shall be obligated to pay,
on a current basis, any and all funds to pay for or reimburse the Indemnitee’s Expense for which
the Indemnitee is entitled pursuant to this Section 2(e) within ten (10) days after receipt by
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a
Company of a written demand for reimbursement signed by the Indemnitee. Such advances (i) shall be
unsecured and interest free; (ii) shall be made without regard to the Indemnitee’s ability to repay
the advances and without regard to the Indemnitee’s ultimate entitlement to indemnification under
the other provisions of this Agreement; and (iii) shall include any and all Expenses incurred
pursuing an action to enforce this right of payments, on a current basis, including Expenses
incurred preparing and forwarding statements to a Company to support the advances claimed. The
Indemnitee shall qualify for advancement of Expenses solely upon the execution and delivery to a
Company of the Indemnitee Statement.
(f) 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 Event or in defense of any claim, issue or
matter therein, in whole or in part, each Company shall be liable to indemnify the Indemnitee
against all Liabilities 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, each Company shall be liable to
indemnify Indemnitee against all Liabilities 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, each Company also shall be liable to indemnify the
Indemnitee against all Expenses reasonably 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, shall be deemed to be a successful result as to
such claim, issue or matter.
(g) 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 Massachusetts Business
Corporation Act that permits a corporation to indemnify its officers and directors, including,
without limitation, the indemnification permitted by Section 8.56 for officers;
(2) to the fullest extent permitted by the provision of the Massachusetts Business
Corporation Act that authorizes or contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the Massachusetts Business
Corporation Act; and
(3) to the fullest extent authorized or permitted by any amendments to or
replacements of the Massachusetts Business Corporation Act adopted after the date of this Agreement
that increase the extent to which a corporation may indemnify its officers and directors.
3. Procedure Upon Application for Indemnification.
(a) In order to obtain indemnification under this Agreement, the Indemnitee shall,
anytime following Indemnitee’s submission of an Indemnitee Statement to a Company, and consistent
with the time period of this Agreement as set forth in Section 5 of this
Agreement, submit to a 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 to a Company pursuant to this Section 3(a). The
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failure to submit a written request to a Company will relieve the Companies of their
indemnification obligations under this Agreement only to the extent the Companies can establish
that such failure to make a written request resulted in actual prejudice to it, and the failure to
make a written request will not relieve the Companies from any liability which it may have to
indemnify the Indemnitee otherwise than under this Agreement. The Companies shall, promptly upon
receipt of such a request for indemnification, advise the Boards of Directors of the Companies in
writing that the Indemnitee has requested indemnification.
(b) 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. 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 Companies (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 Companies are liable
to indemnify and hold the Indemnitee harmless therefrom.
(c) In making a determination with respect to 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 each 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 any of the Companies (including by their Boards 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 any of the Companies (including by their Boards 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.
(d) If the Reviewing Party shall not have made a determination within sixty (60)
days after receipt by a 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(b) 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 (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 thirty (30) days, if the
Special Legal Counsel 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.
(e) 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 contendero or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
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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.
(f) 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 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(f) 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.
(g) 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, on a current basis, is not timely made pursuant to Section 2 of this Agreement, (iii)
payment of Expenses is not made pursuant to Section 2 or the last sentence of Section 3(b) of this
Agreement within ten (10) days after receipt by a Company of a written request therefor, (where the
Indemnitee has executed and delivered to the applicable Company the Indemnitee Statement) (iv)
payment of indemnification pursuant to Section 2 of this Agreement is not made within ten (10) days
after a determination has been made that the Indemnitee is entitled to indemnification, 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. Alternatively, under the circumstances in clauses (i) through (v),
the 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.
The Companies shall not oppose the Indemnitee’s right to seek any such adjudication or award in
arbitration. If the Indemnitee has commenced adjudication or arbitration to secure a determination,
with respect to an Indemnifiable Event, 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 Massachusetts Business Corporation Act with respect to such
Indemnifiable Event 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 Companies for any Expense Advance until a final judicial 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.
(b) 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
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pursuant to this Section 4, each Company shall have the burden of proving the 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 2(a) of this
Agreement that the Indemnitee is entitled to indemnification, the Companies shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to this Section 4,
absent (i) 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 (ii) a prohibition of such indemnification under applicable law.
(d) In the event that the Indemnitee is a Party to (or 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 Companies, and shall be indemnified by each Company against, any and all Expenses incurred by
the Indemnitee (where, with respect to an Indemnifiable Event, 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 each Company (who shall be liable therefor), and shall
be indemnified by each Company against, any and all Expenses incurred by the Indemnitee in
connection with such judicial adjudication or arbitration.
(e) The Companies 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 Companies are bound by all the provisions of this Agreement.
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 any of the Companies 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 each Company and its successors and assigns
and shall inure to the benefit of the Indemnitee and his heirs, executors and administrators.
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
Companies’ or any other Enterprise’s Articles of Organization, the Companies’ 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 in the Indemnitee’s Corporate Status prior to such amendment,
alteration or repeal. To the extent that a change in Massachusetts law, whether by statute or
judicial decision, permits greater indemnification or advancement of Expenses than would be
afforded currently under the Companies’ or any other Enterprise’s Bylaws and this Agreement, it
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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 Companies maintain an insurance
policy or policies providing liability insurance for directors, partners, managing members,
officers, employees, agents or trustees of the Companies 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 Companies have director and officer liability
insurance in effect, the Companies shall give prompt notice of the commencement of such Proceeding
to the insurers in accordance with the procedures set forth in the respective policies. Each
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 Companies shall maintain an insurance policy or policies for directors,
partners, managing members, officers, employees, agents or trustees of the Companies and of all
Enterprises in an amount reasonably acceptable to the Chief Executive Officer of LPL.
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 Companies 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
Companies shall not be liable under this Agreement to make any payment in connection with any
Proceeding involving the Indemnitee to the extent the Indemnitee has otherwise received payment
(under any insurance policy, the Companies’ articles of organization 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, each
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 Event
under this Agreement, in such proportion in order to reflect (i) the relative benefits received by
the Companies 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).
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(b) Given that certain Jointly Indemnifiable Claims may arise due to the Corporate
Status of the Indemnitee, the Companies acknowledge and agree that the Companies shall, and to the
extent applicable shall cause the other Enterprises to, 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, pursuant to and in accordance with (as applicable) the
terms of (i) the Delaware General Corporation Law, (ii) the Massachusetts Business Corporation Act,
(iii) the Restated Articles of Organization and the By-laws of LPL, (iv) the Amended Certificate of
Incorporation and the By-Laws of Holdings, (v) this Agreement, (vi) any other agreement between
either Company or any other Enterprise and the Indemnitee pursuant to which the Indemnitee is
indemnified, (vii) the laws of the jurisdiction of incorporation or organization of any other
Enterprise and/or (viii) 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
(viii) collectively, the “Indemnification Sources”), irrespective of 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 by the
Indemnitee-Related Entities and no right of advancement or 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. 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 Companies shall, and to the extent applicable shall cause the other Enterprises to,
reimburse the 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 Companies 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 Companies
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 the execution of such documents as may be necessary to enable the Indemnitee-Related
Entities effectively to bring suit to enforce such rights. The Companies 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 Companies 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. 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 Companies, any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Companies,
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 Companies or of any other Enterprise.
13. 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;
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(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.
14. 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 any of the Companies 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).
15. Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all prior communications, agreements and understandings, written or oral,
with respect to indemnification of the Indemnitee by the Companies for Indemnitee’s service to the
Companies, provided, however, that this Agreement shall in no way diminish rights of the Indemnitee
that accrued prior to the date of this Agreement.
16. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of The Commonwealth of Massachusetts applicable to contracts made and to
be performed in such state without giving effect to the principles of conflicts of law.
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 HOLDINGS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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: | ||||
