INDEMNIFICATION AGREEMENT
This Indemnification Agreement
(“Agreement”) is made as of April __, 2009 by and between Highbury Financial
Inc., a Delaware corporation (the “Company”), and [_______]
(“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have
become more reluctant to serve corporations as independent directors unless they
are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the
corporation;
WHEREAS, the Company maintains on an
ongoing basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain liabilities, the
Certificate of Incorporation of the Company (the “Certificate”) requires
indemnification of the directors, and Indemnitee may also be entitled to
indemnification pursuant to the Delaware General Corporation Law, as amended
(the “DGCL”);
WHEREAS, the DGCL expressly provides
that the indemnification provisions set forth therein are not exclusive, and
thereby contemplates that contracts may be entered into between the Company and
members of the Board, and other persons with respect to
indemnification;
WHEREAS, the Board of Directors of the
Company (the “Board”) has determined that the increased difficulty in attracting
and retaining independent directors, which is a result of the uncertainties
relating to insurance and statutory indemnification, is detrimental to the best
interests of the Company’s stockholders and that the Company should act to
assure such persons that there will be increased certainty of such protection in
the future;
WHEREAS, it is reasonable, prudent and
necessary for the Company contractually to obligate itself to indemnify, and to
advance expenses on behalf of, the Indemnitee to the fullest extent permitted by
applicable law so that he will serve or continue to serve the Company free from
undue concern that he will not be so indemnified;
WHEREAS, this Agreement is a supplement
to and in furtherance of the Certificate and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee may not be willing
to continue to serve as a director without the protection of a contractual
obligation on the part of the Company to indemnify Indemnitee, and the Company
desires Indemnitee to serve in such capacity. Indemnitee is willing
to serve, continue to serve and to take on additional service for or on behalf
of the Company on the condition that he be indemnified as set forth in this
Agreement; and
NOW, THEREFORE, in consideration of the
premises and the covenants contained herein, the Company and Indemnitee do
hereby covenant and agree as follows:
Section
1. Services to the
Company. Indemnitee agrees to continue to serve as a director
of the Company. Indemnitee may at any time and for any reason resign
from such position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the Company shall have
no obligation under this Agreement to continue Indemnitee in such
position. This Agreement shall not be deemed an employment contract
between the Company (or any of its subsidiaries or any Enterprise (as defined
below)) and Indemnitee. Indemnitee acknowledges that he may be
removed as a director at any time in accordance with the Certificate, the
Company’s By-laws, and the DGCL. The foregoing notwithstanding, this
Agreement shall continue in force after Indemnitee has ceased to serve as a
director of the Company.
Section
2. Definitions. As
used in this Agreement:
|
(a)
|
A
“Change in Control” shall be deemed to occur upon the earliest to occur
after the date of this Agreement of any of the following
events:
|
i. Acquisition of Stock by
Third Party. Any Person (as defined below), is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of the combined voting
power of the Company’s then outstanding securities;
ii. Change in Board of
Directors. During any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals who
at the beginning of such period constitute the Board, and any new director
(other than a director designated by a person who has entered into an agreement
with the Company to effect a transaction described in Sections 2(a)(i),
2(a)(iii) or
2(a)(iv)) whose
nomination for election by the Company’s stockholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least
a majority of the members of the Board;
iii. Corporate
Transactions. The effective date of a merger or consolidation
of the Company with any other entity, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 51% of the combined voting power of the voting
securities of the surviving entity outstanding immediately after such merger or
consolidation and with the power to elect at least a majority of the board of
directors or other governing body of such surviving entity;
iv. Liquidation. The
approval by the stockholders of the Company of a complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets; and
2
v. Other
Events. There occurs any other event of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A (or a response to any similar item on any similar schedule or form)
promulgated under the Exchange Act (as defined below), whether or not the
Company is then subject to such reporting requirement.
For
purposes of this Section 2(a), the following terms shall have the following
meanings:
(A) “Affiliate”
shall have the meaning given to such term pursuant to Rule 12b-2 promulgated
under the Exchange Act (as defined below).
(B) “Beneficial
Owner” shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act; provided, however, that Beneficial Owner shall exclude any Person
otherwise becoming a Beneficial Owner by reason of the stockholders of the
Company approving a merger of the Company with another entity.
(C) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
(D) “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange
Act; provided, however, that Person shall exclude (i) the Company, (ii) any
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, and (iii) any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(b) “Corporate
Status” describes the status of a person who is or was a director, employee or
agent of the Company or of any other corporation, limited liability company,
partnership or joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the Company.
(c) “Disinterested
Director” means a director of the Company who is not and was not a party to, nor
an officer, a director or partner of a party to, the Proceeding in respect of
which indemnification is sought by Indemnitee.
(d) “Enterprise”
shall mean the Company and any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director,
employee, agent or fiduciary.
(e) “Expenses”
shall include all reasonable 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 also shall include (i) Expenses 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, (ii) any federal,
state, local or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, (iii) all interest,
assessments and other charges paid or payable in connection with or in respect
of the Expenses, and (iv) for purposes of Section 12(d) only,
Expenses incurred by Indemnitee in connection with the interpretation,
enforcement or defense of Indemnitee’s rights under this Agreement, by
litigation or otherwise. Expenses, however, shall not include amounts
paid in settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.
3
(f) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: (i) the Company or Indemnitee in any
matter material to either such party (other than with respect to matters
concerning the Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee’s rights under this Agreement. The
Company agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to fully indemnify such counsel against any and
all Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(g) The term
“Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding,
whether brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which Indemnitee was, is or
will be involved as a party or otherwise by reason of the fact that Indemnitee
is or was a director of the Company, by reason of any action taken by him or of
any action on his part while acting as director of the Company, or by reason of
the fact that he is or was serving at the request of the Company as a director,
employee or agent of another corporation, limited liability company,
partnership, joint venture, trust or other enterprise, in each case whether or
not serving in such capacity at the time any liability or expense is incurred
for which indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement; except one initiated by an Indemnitee to enforce
his rights under this Agreement.
(h) References
to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee
benefit plan; references to “serving at the request of the Company” shall
include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
manner “not opposed to the best interests of the Company” as referred to in this
Agreement.
4
Section
3. Indemnity in
Proceedings. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if
Indemnitee is, or is threatened to be made, a party to or a participant in any
Proceeding. Pursuant to this Section 3, Indemnitee
shall be indemnified to the fullest extent permitted by applicable law against
all Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee or on his behalf in connection with such
Proceeding or any claim, issue or matter therein; provided that it is determined
(in accordance with Section 10(a)) in the
specific case that indemnification of such person is permissible under the
circumstances because such person has met the standard of conduct for
indemnification specified in Section 145 of the DGCL.
Section
4. Indemnification for Expenses
of a Party Who is Wholly or Partly Successful. Notwithstanding any other
provisions of this Agreement, to the fullest extent permitted by applicable law
and to the extent that Indemnitee is a party to (or a participant in) and is
successful, on the merits or otherwise, in any Proceeding or in defense of any
claim, issue or matter therein, in whole or in part, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him in
connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved claim, issue
or matter. If the Indemnitee is not wholly successful in such
Proceeding, the Company also shall indemnify Indemnitee against all Expenses
reasonably incurred in connection with a claim, issue or matter 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.
Section
5. Indemnification For Expenses
of a Witness. Notwithstanding any other provision of this
Agreement, to the fullest extent permitted by applicable law and to the extent
that Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section
6. Additional
Indemnification.
5
|
(a)
|
Notwithstanding
any limitation in Section 3 or
Section
4, the Company shall indemnify Indemnitee to the fullest extent
permitted by applicable law if Indemnitee is a party to or threatened to
be made a party to any Proceeding (including a Proceeding by or in the
right of the Company to procure a judgment in its favor) against all
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with the
Proceeding.
|
|
(b)
|
For
purposes of Section 6(a),
the meaning of the phrase “to the fullest extent permitted by applicable
law” shall include, but not be limited
to:
|
i. to the
fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL, and
ii. to the
fullest extent authorized or permitted by any amendments to or replacements of
the DGCL adopted after the date of this Agreement that increase the extent to
which a corporation may indemnify its directors.
Section
7. Exclusions. Notwithstanding
any provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against
Indemnitee:
|
(a)
|
for
which payment has actually been made to or on behalf of Indemnitee under
any insurance policy or other indemnity provision, except with respect to
any excess beyond the amount paid under any insurance policy or other
indemnity provision; or
|
|
(b)
|
for
(i) an accounting of profits made from the purchase and sale (or sale and
purchase) by Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act (as defined in Section 2(a)),
or similar provisions of state statutory law or common law, or (ii) any
reimbursement of the Company by the Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits realized by
the Indemnitee from the sale of securities of the Company, as required in
each case under the Exchange Act;
or
|
|
(c)
|
except
as provided in Section 12(d),
in connection with any Proceeding (or any part of any Proceeding)
initiated by Indemnitee, including any Proceeding (or any part of any
Proceeding) initiated by Indemnitee against the Company or its directors,
employees or other indemnitees, unless (i) the Board of Directors of the
Company authorized the Proceeding (or any part of any Proceeding) prior to
its initiation or (ii) the Company provides the indemnification, in its
sole discretion, pursuant to the powers vested in the Company under
applicable law.
|
Section
8. Advances of
Expenses. Notwithstanding any provision of this Agreement to
the contrary, upon (i) receipt of a written affirmation of Indemnitee’s good
faith belief that he has met the standard of conduct prescribed by the DGCL;
(ii) receipt of an undertaking of Indemnitee to repay the amount paid by the
Company if it is ultimately determined that Indemnitee is not entitled to
indemnification by the Company; and (iii) a determination (made in accordance
with Section
10(a)) that the facts then known to those making the determination would
not preclude indemnification under the DGCL, the Company shall advance, to the
extent not prohibited by law, the expenses incurred by Indemnitee in connection
with any Proceeding, and such advancement shall be made within 30 days after the
receipt by the Company of a statement or statements requesting such advances
from time to time, whether prior to or after final disposition of any
Proceeding. Advances shall be unsecured and interest
free. Advances shall be made without regard to Indemnitee’s ability
to repay the expenses and without regard to Indemnitee’s ultimate entitlement to
indemnification under the other provisions of this
Agreement. Advances shall include any and all reasonable Expenses
incurred pursuing an action to enforce this right of advancement, including
Expenses incurred preparing and forwarding statements to the Company to support
the advances claimed. This Section 8 shall not
apply to any claim made by Indemnitee for which indemnity is excluded pursuant
to Section
7.
6
Section
9. Procedure for Notification
and Defense of Claim.
|
(a)
|
To
obtain indemnification under this Agreement, Indemnitee shall submit to
the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and
is reasonably necessary to determine whether and to what extent Indemnitee
is entitled to indemnification following the final disposition of
such action, suit or proceeding. The delay or omission to
notify the Company will not relieve the Company from any liability which
it may have to Indemnitee otherwise than under this
Agreement. The Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the Board in
writing that Indemnitee has requested
indemnification.
|
|
(b)
|
The
Company will be entitled to participate in the Proceeding at its own
expense.
|
Section
10. Procedure Upon Application
for Indemnification.
|
(a)
|
Upon
written request by Indemnitee for indemnification pursuant to the first
sentence of Section 9(a) or
for advances pursuant to the first sentence of Section 8, a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case: (i) if
a Change in Control shall have occurred, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee; or (ii) if a Change in Control shall not have
occurred, (A) by a majority vote of the Disinterested Directors, provided
that such directors constitute a quorum of the Board, (B) if a quorum of
the Board cannot be obtained under the foregoing clause (A), by a
committee of two or more Disinterested Directors designated by a majority
vote of members of the Board (including directors other than Disinterested
Directors) constituting a quorum of the Board, (C) if there are not at
least two Disinterested Directors or, if such Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board, a copy
of which shall be delivered to Indemnitee or (D) if so directed by the
Board, by the stockholders of the Company (excluding shares owned by or
voted under the control of directors that are at the time parties to the
Proceeding); provided, however, that
if Independent Counsel makes the determination that Indemnitee is entitled
to indemnification under the DGCL, the authorization of indemnification
and the evaluation as to reasonableness of expenses shall be made by the
persons set forth in the foregoing clause (ii)(A) or, if necessary, clause
(ii)(B). If, upon written request made by Indemnitee pursuant
to Section
9(a), it is so determined that Indemnitee is entitled to
indemnification under the DGCL, payment to Indemnitee of all authorized
indemnification amounts, including expenses determined to be reasonable,
shall be made within ten (10) days after such
determination.
|
7
|
(b)
|
Indemnitee
shall cooperate with the person, persons or entity making the
determination with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable
advance request any documentation or information which is not privileged
or otherwise protected from disclosure and which is reasonably available
to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys’ fees
and disbursements) incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement
to indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
|
Section
11. Presumptions and Effect of
Certain Proceedings.
|
(a)
|
In
making a determination with respect to entitlement to indemnification
hereunder, the person or persons or entity making such determination shall
presume that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 9(a) of
this Agreement, and the Company shall, to the fullest extent not
prohibited by law, have the burden of proof to overcome that presumption
in connection with the making by any person, persons or entity of any
determination contrary to that presumption. Neither the failure
of the Company (including by its directors or independent legal counsel)
to have made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct, nor an actual determination by the Company (including by its
directors or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create
a presumption that Indemnitee has not met the applicable standard of
conduct.
|
|
(b)
|
Subject
to Section
12(e), if the person, persons or entity empowered or selected under
Section
10(a) to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within sixty (60) days
after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall, to the fullest
extent not prohibited by law, be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary
to make Indemnitee’s statement not materially misleading, in connection
with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such 60-day
period may be extended for a reasonable time, not to exceed an additional
thirty (30) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of
documentation and/or information relating thereto; and provided, further,
that the foregoing provisions of this Section 11(b)
shall not apply (i) if the determination of entitlement to indemnification
is to be made by the stockholders pursuant to Section 10(a)
and if (A) within fifteen (15) days after receipt by the Company of the
request for such determination the Board of Directors has resolved to
submit such determination to the stockholders for their consideration at
an annual meeting thereof to be held within seventy-five (75) days after
such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within fifteen (15) days after such
receipt for the purpose of making such determination, such meeting is held
for such purpose within sixty (60) days after having been so called and
such determination is made thereat, or (ii) if the determination of
entitlement to indemnification is to be made by Independent Counsel
pursuant to Section
10(a).
|
8
|
(c)
|
The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that
his conduct was unlawful.
|
|
(d)
|
Reliance as Safe
Harbor. For purposes of any determination of good faith,
Indemnitee shall be deemed to have acted in good faith if Indemnitee’s
action is based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to Indemnitee
by the officers of the Enterprise in the course of their duties, or on the
advice of legal counsel for the Enterprise or on information or records
given or reports made to the Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with the reasonable
care by the Enterprise. The provisions of this Section 11(d)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this
Agreement.
|
|
(e)
|
Actions of
Others. The knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to
indemnification under this
Agreement.
|
Section
12. Remedies of
Indemnitee.
|
(a)
|
Subject
to Section
12(e), in the event that (i) a determination is made pursuant to
Section
10 that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 8,
(iii) no determination of entitlement to indemnification shall have been
made pursuant to Section 10(a)
within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to
Section 4
or Section
5 or the last sentence of Section 10(a)
of this Agreement within ten (10) days after receipt by the Company of a
written request therefor, (v) payment of indemnification pursuant to Section 3 or
Section 6
is not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification, or (vi) in the event that the
Company or any other person takes or threatens to take any action to
declare this Agreement void or unenforceable, or institutes any litigation
or other action or Proceeding designed to deny, or to recover from, the
Indemnitee the benefits provided or intended to be provided to the
Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a
court of his entitlement to such indemnification or advancement of
Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator pursuant to
the Commercial Arbitration Rules of the American Arbitration
Association. Indemnitee shall commence such proceeding seeking
an adjudication or an award in arbitration within 180 days following
the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 12(a);
provided,
however,
that the foregoing clause shall not apply in respect of a proceeding
brought by Indemnitee to enforce his rights under Section 4. The
Company shall not oppose Indemnitee’s right to seek any such adjudication
or award in arbitration.
|
9
|
(b)
|
In
the event that a determination shall have been made pursuant to Section 10(a)
that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 12
shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by
reason of that adverse determination. In any judicial
proceeding or arbitration commenced pursuant to this Section 12 the
Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may
be.
|
|
(c)
|
If
a determination shall have been made pursuant to Section 10(a)
that Indemnitee is entitled to indemnification, the Company shall be bound
by such determination in any judicial proceeding or arbitration commenced
pursuant to this Section 12,
absent (i) a misstatement by Indemnitee of a material fact, or an omission
of a material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable
law.
|
|
(d)
|
The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 12 that
the procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this
Agreement. It is the intent of the Company that the Indemnitee
not be required to incur legal fees or other Expenses associated with the
interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement by litigation or otherwise because the cost and expense thereof
would substantially detract from the benefits intended to be extended to
the Indemnitee hereunder. The Company shall indemnify
Indemnitee against any and all Expenses and, if requested by Indemnitee,
shall (within ten (10) days after receipt by the Company of a written
request therefore) advance, to the extent not prohibited by law, such
expenses to Indemnitee, which are incurred by Indemnitee in connection
with any action brought by Indemnitee for indemnification or advance of
Expenses from the Company under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advancement of Expenses or insurance recovery, as
the case may be.
|
10
|
(e)
|
Notwithstanding
anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to
be made prior to the final disposition of the
Proceeding.
|
Section
13. Non-exclusivity; Survival of
Rights; Insurance; Subrogation.
|
(a)
|
The
rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other
rights to which Indemnitee may at any time be entitled under applicable
law, the Certificate, the Company’s By-laws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in
his Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in Delaware law, whether by
statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the
Company’s By-laws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits
so afforded by such change. No right or remedy herein conferred
is intended to be exclusive of any other right or remedy, and every other
right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or
remedy.
|
|
(b)
|
To
the extent that the Company maintains an insurance policy or policies
providing liability insurance for directors, officers, employees, or
agents of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, Indemnitee shall be covered
by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies. If, at the
time of the receipt of a notice of a claim pursuant to the terms hereof,
the Company has director and officer liability insurance in effect, the
Company shall give prompt notice of 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.
|
11
|
(c)
|
In
the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all papers required and take all action
necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such
rights.
|
|
(d)
|
The
Company shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable (or for which advancement is provided
hereunder) hereunder if and to the extent that Indemnitee has otherwise
actually received such payment under any insurance policy, contract,
agreement or otherwise.
|
|
(e)
|
The
Company’s obligation to indemnify or advance Expenses hereunder to
Indemnitee who is or was serving at the request of the Company as a
director, officer, employee or agent of any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit
plan or other enterprise shall be reduced by any amount Indemnitee has
actually received as indemnification or advancement of expenses from such
other corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other
enterprise.
|
Section
14. Duration of
Agreement. This Agreement shall continue until and terminate
upon the later of: (a) 10 years after the date that Indemnitee shall have ceased
to serve as a director of the Company or (b) 1 year after the final termination
of any Proceeding then pending in respect of which Indemnitee is granted rights
of indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 12
relating thereto. This Agreement shall be binding upon the Company
and its successors and assigns and shall inure to the benefit of Indemnitee and
his heirs, executors and administrators.
Section
15. 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.
Section
16. Enforcement.
|
(a)
|
The
Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to serve as a director of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in serving as
a director of the Company.
|
12
|
(b)
|
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral, written and implied, between the parties hereto
with respect to the subject matter hereof; provided, however, that this
Agreement is a supplement to and in furtherance of the Certificate, the
By-laws of the Company and applicable law, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder.
|
Section
17. Modification and
Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties
thereto. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provisions of this Agreement
nor shall any waiver constitute a continuing waiver.
Section
18. Notice by
Indemnitee. Indemnitee agrees promptly to notify the Company
in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter
which may be subject to indemnification or advancement of Expenses covered
hereunder. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation which it may have to the Indemnitee
under this Agreement or otherwise.
Section
19. Notices. All notices, requests,
demands and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given if (a) delivered by hand and receipted
for by the party to whom said notice or other communication shall have been
directed, (b) mailed by certified or registered mail with postage prepaid, on
the third business day after the date on which it is so mailed, (c) mailed by
reputable overnight courier and receipted for by the party to whom said notice
or other communication shall have been directed or (d) sent by facsimile
transmission, with receipt of oral confirmation that such transmission has been
received:
|
(a)
|
If
to Indemnitee, at the address indicated on the signature page of this
Agreement, or such other address as Indemnitee shall provide to the
Company.
|
|
(b)
|
If
to the Company to:
Highbury
Financial, Inc.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Facsimile
No.: (000) 000-0000
Attention:
Chief Executive Officer
|
or to any
other address as may have been furnished to Indemnitee by the
Company.
13
Section
20. Contribution. To
the fullest extent permissible under applicable law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to
the amount incurred by Indemnitee, whether for judgments, fines, penalties,
excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in
connection with any claim relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all
of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative
fault of the Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or transaction(s).
Section
21. Applicable
Law. This Agreement and the legal relations among the parties
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of laws
rules.
Section
22. Identical
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
Section
23. Miscellaneous. Use
of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate. The headings of the paragraphs of
this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction
thereof.
14
IN WITNESS WHEREOF, the parties have
caused this Indemnification Agreement to be signed as of the day and year first
above written.
