{"id":40804,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-goldman-sachs-group-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-goldman-sachs-group-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-goldman-sachs-group-inc.html","title":{"rendered":"Indemnification Agreement &#8211; Goldman Sachs Group Inc."},"content":{"rendered":"<pre>\n                        INDEMNIFICATION AGREEMENT\n\n         THIS INDEMNIFICATION AGREEMENT (this 'Agreement') is made and entered\ninto as of the 7th day of May, 1999, by and between The Goldman Sachs Group,\nInc., a Delaware corporation ('GS Inc.') and each of the Indemnitees listed on\nthe signature pages to this agreement (each, an 'Indemnitee', and collectively,\nthe 'Indemnitees') as such signature pages may be amended and supplemented from\ntime to time.\n\n                                   WITNESSETH\n\n         WHEREAS, GS Inc. has become party to a plan for the incorporation of\nthe business of The Goldman Sachs Group, L.P. ('GS Group') and the related\nreorganization of the business of GS Group, which plan was approved by The\nGoldman Sachs Corporation ('GS Corp.') in its capacity as general partner of GS\nGroup and by the Schedule II Limited Partners of GS Group in March 1999 (such\nplan of incorporation together with all exhibits thereto as it or they may be\namended from time to time, the 'Plan of Incorporation');\n\n         WHEREAS, as part of the Plan of Incorporation, GS Inc. has filed and\nproposes to file registration statements (the 'Registration Statements') with\nthe Securities and Exchange Commission for the public offering and sale of\nshares of its common stock (including shares issuable in connection with\nemployee benefit plans) and debt securities (including medium-term notes);\n\n\n         WHEREAS, GS Inc. has requested and will request certain of the\nIndemnitees to execute the Registration Statements in the capacity or capacities\nlisted and to be listed in such Registration Statements; and\n\n         WHEREAS, each Indemnitee is or was one or more of the following: (i) an\nofficer or director of GS Inc., (ii) an officer or director of GS Corp., (iii) a\nperson requested or authorized by the board of directors or a person authorized\nby the board of directors of GS Inc. or GS Corp. to take actions on behalf of GS\nGroup, GS Inc. or GS Corp. in connection with the Registration Statements or the\nPlan of Incorporation or (iv) a member of the Management Committee or\nPartnership Committee of GS Inc. or the former Executive Committee of GS Group.\n\n         NOW, therefore, in consideration of each Indemnitee's acting and\nagreeing to act in the capacities referred to above, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties do hereby agree as follows:\n\n         1. General. GS Inc. (A) will indemnify and hold harmless each\nIndemnitee against any Losses (as hereinafter defined), joint or several, to\nwhich such Indemnitee may become subject, under the Securities Act of 1933, as\namended (the 'Act') or otherwise, insofar as such Losses (or actions in respect\nthereof) arise out of or are based upon an untrue statement or alleged untrue\nstatement of a material fact contained in the Registration Statements or any\nrelated Rule 462(b) Registration Statements or any preliminary prospectus or\nprospectus comprising a part thereof, or any\n\n\n                                       -2-\namendment or supplement thereto, or arise out of or are based upon the omission\nor alleged omission to state therein a material fact required to be stated\ntherein or necessary to make the statements therein not misleading; provided,\nhowever, that GS Inc. shall not be liable in any such case to the extent that\nany such Losses arise out of or are based upon an untrue statement or alleged\nuntrue statement or omission or alleged omission relating to such Indemnitee\nmade in any preliminary prospectus, any registration statement or any prospectus\nor any amendment or supplement in reliance upon and in conformity with written\ninformation relating to such Indemnitee furnished to GS Inc. by such Indemnitee\nexpressly for use therein; and (B) will indemnify and hold harmless each\nIndemnitee against any Losses (or actions in respect thereof) which otherwise\narise out of or are based upon or asserted against such Indemnitee in connection\nwith such Indemnitee's acting in the capacities referred to above in connection\nwith the transactions contemplated by the Plan of Incorporation, except to the\nextent any such Losses referred to in this clause (B) arise out of or are based\nupon the type of conduct for which (x) a director would not be exempt from\nliability or (y) the indemnification of a director would be limited in respect\nof such Losses, in the case of (x) and (y), within the meaning of Article\nTwelfth of the Amended and Restated Certificate of Incorporation of GS Inc. or\nSection 102(b)(7) of the Delaware General Corporation Law (whether or not such\nIndemnitee is a director).\n\n         Notwithstanding the foregoing provisions of this Section 1, GS Inc. and\neach Indemnitee agree that insofar as indemnification for liabilities arising\nunder the Act\n\n\n                                       -3-\nmay be permitted under this Agreement to an Indemnitee who is a director,\nofficer or controlling person of GS Inc., in the event that a claim for\nindemnification against such liabilities is made by such an Indemnitee (other\nthan the payment by GS Inc. of expenses incurred or paid by such Indemnitee in\nthe successful defense of any action, suit or proceeding) in connection with a\nRegistration Statement, GS Inc. will, unless in the opinion of its counsel the\nmatter has been settled by controlling precedent, submit to a court of\nappropriate jurisdiction the question whether such indemnification by it is\nagainst public policy as expressed in the Act, and GS Inc. and such Indemnitee\nwill be governed by the final adjudication of such question.\n\n         2. Losses. As used in this Agreement, the term 'Losses' shall include,\nwithout limitation, damages, losses, claims, judgments, liabilities, fines,\npenalties, excise taxes, settlements, and costs, attorneys' fees, accountants'\nfees, and disbursements and costs of attachment or similar bonds, investigation\ncosts, defense preparation costs, costs of preparing for and presenting evidence\nor testimony, and any expenses of establishing a right to indemnification under\nthis Agreement. The term 'Losses' shall not include taxes except to the extent\ntaxes are imposed in respect of payments otherwise made pursuant to this\nAgreement, in which case such Indemnitee's Losses shall include an amount not\ngreater than the net taxes payable (taking into account any deductions or other\ntax benefits available to such Indemnitee as a result of the Losses in respect\nof which such payment is made).\n\n\n                                       -4-\n         3. Enforcement. Subject to the provisions of the second paragraph of\nSection 1 hereof, if a claim or request by an Indemnitee under this Agreement is\nnot paid by GS Inc. or on its behalf, within thirty (30) days after a written\nclaim or request has been received by GS Inc. and, if applicable, the\naffirmation in Section 5 hereof has been received by GS Inc., such Indemnitee\nmay at any time thereafter commence an arbitration proceeding in accordance with\nSection 9 hereof against GS Inc. to recover the unpaid amount of the claim or\nrequest and, if successful in whole or in part, such Indemnitee shall be\nentitled to be paid also the expenses of prosecuting such proceeding. It shall\nbe a defense to any such proceeding (other than a proceeding commenced to\nenforce a claim for expenses incurred in defending any actual or threatened\nproceeding in advance of its final disposition where the required affirmation\nand undertaking, if any is required, have been tendered to GS Inc.) that such\nIndemnitee has not met the standards of conduct for GS Inc. to indemnify such\nIndemnitee herein for the amount claimed, but the burden of proving such defense\nshall be on GS Inc. Neither the failure of GS Inc. (including its Board of\nDirectors, legal counsel or shareholders) to have made a determination prior to\nthe commencement of such proceeding that indemnification of such Indemnitee is\nproper in the circumstances because such Indemnitee has met the applicable\nstandard of conduct set forth herein, nor an actual determination by GS Inc.\n(including its Board of Directors, legal counsel or shareholders) that such\nIndemnitee has not met such applicable standard of conduct, shall be a defense\nto the proceeding or create a presumption that such Indemnitee has not met the\napplicable standard of conduct.\n\n\n                                       -5-\n         4. Partial Indemnification. If an Indemnitee is entitled under any\nprovision of this Agreement to indemnification by GS Inc. for some or a portion\nof any Losses, but not for the total amount thereof, GS Inc. shall nevertheless\nindemnify such Indemnitee for the portion of such Losses to which such\nIndemnitee is entitled.\n\n         5. Expenses. Expenses incurred by an Indemnitee in connection with any\nproceeding shall be paid by GS Inc. upon request of such Indemnitee that GS Inc.\npay such expenses, but only upon receipt by GS Inc. of (i) a written affirmation\nof such Indemnitee's good faith belief that the applicable standard of conduct\nnecessary for indemnification by GS Inc. has been met, (ii) a written\nundertaking by or on behalf of such Indemnitee to reimburse GS Inc. for expenses\nif and to the extent that it is ultimately determined that the applicable\nstandard of conduct has not been met and (iii) satisfactory evidence of the\namount of such expenses.\n\n         6. Notice of Claim. Each Indemnitee shall promptly notify GS Inc. in\nwriting of any claim against such Indemnitee for which indemnification will or\ncould be sought under this Agreement. In addition, each Indemnitee shall give GS\nInc. such information and cooperation as it may reasonably require and as shall\nbe within such Indemnitee's power and at such times and places as are not unduly\nburdensome for such Indemnitee.\n\n         7. Defense of Claim. With respect to any proceeding as to which an\nIndemnitee notifies GS Inc. of the commencement thereof:\n\n                  (a) GS Inc. will be entitled to participate at its own\n         expense;\n\n\n                                       -6-\n                  (b) subject to Section 7(c) hereof, GS Inc. shall not, in\n         connection with any proceeding or related proceedings in the same\n         jurisdiction against any Indemnitee and any other Indemnitees, be\n         liable to such Indemnitee and such other Indemnitees for the fees and\n         expenses of more than one separate law firm (in addition to a single\n         firm of local counsel);\n\n                  (c) except as otherwise provided below, to the extent that it\n         may wish, GS Inc. will be entitled to assume the defense thereof, with\n         counsel reasonably satisfactory to such Indemnitee, which in GS Inc.'s\n         sole discretion may be regular counsel to GS Inc. and may be counsel to\n         other Indemnitees. The Indemnitees also shall have the right to employ\n         one separate counsel for such Indemnitees in such action, suit or\n         proceeding if such Indemnitees reasonably conclude that if they did not\n         there would be a conflict of interest between GS Inc. and such\n         Indemnitees, and under such circumstances the fees and expenses of such\n         counsel shall be paid by GS Inc.; and\n\n                  (d) GS Inc. shall not be liable to indemnify an Indemnitee\n         under this Agreement for any amounts paid in settlement of any action\n         or claim effected without GS Inc.'s written consent. GS Inc. shall not\n         settle any action or claim in any manner which would impose any cost or\n         limitation on an Indemnitee without such Indemnitee's written consent.\n\n\n                                                  -7-\n         Neither GS Inc. nor an Indemnitee will unreasonably withhold or delay\n         its consent to any proposed settlement.\n\n         8. Non-exclusivity. The right to indemnification and the payment of\nexpenses incurred in defending a proceeding in advance of its final disposition\nconferred in this Agreement shall not be exclusive of or affected in any way by\nany other right which an Indemnitee may have or hereafter may acquire under any\nstatute, certificate of incorporation, by-laws, agreement, arrangement,\nresolution or instrument providing indemnification or expense payment, except\nthat any payments otherwise required to be made by GS Inc. hereunder shall be\noffset by any and all amounts received by an Indemnitee from any other\nindemnitor or under one or more liability insurance policies maintained by an\nindemnitor or otherwise and shall not be duplicative of any other payments\nreceived by an Indemnitee from GS Inc. in respect of the matter giving rise to\nthe indemnity hereunder. When an Indemnitee is entitled to indemnification,\nexpense advancement or reimbursement under this Instrument and any other\nagreement, arrangement, resolution or instrument of GS Inc. or The Goldman Sachs\nGroup, L.P., the Indemnitee may choose to pursue its rights under one or more,\nbut less than all, of such applicable agreements, arrangements, resolutions or\ninstruments, in which case such Indemnitee need only comply with the standards\nand procedures of the agreements, arrangements, resolutions or instruments under\nwhich it chooses to pursue its rights. Without limiting the foregoing, the\nrights of any indemnified person under the resolution of the Executive Committee\nof GS Group, adopted on May 12, 1997 (the 'Resolution')\n\n\n                                       -8-\nshall remain in full force and effect insofar as an indemnified person has any\nrights thereunder with respect to the acts, omissions and status of such person\nthrough the date of this Agreement. The execution and delivery of this\nInstrument shall constitute notice, effective as of the date of this Instrument,\nthat the Resolution is rescinded insofar as it relates to the acts, omissions\nand status of such person after the date of this Instrument.\n\n         9. Arbitration. (a)Subject to the provisions of the second paragraph of\nSection 1 and Section 9(b) hereof, any dispute, controversy or claim between an\nIndemnitee and GS Inc. arising out of or relating to or concerning the\nprovisions of this Agreement shall be finally settled by arbitration in New York\nCity before, and in accordance with the rules then obtaining of, the New York\nStock Exchange, Inc. ('NYSE') or, if the NYSE declines to arbitrate the matter,\nthe American Arbitration Association (the 'AAA') in accordance with the\ncommercial arbitration rules of the AAA.\n\n         (b) Notwithstanding the provision of Section 9(a) and in addition to\nits right to submit any dispute or controversy to arbitration, GS Inc. may bring\nan action or special proceeding in a state or federal court of competent\njurisdiction sitting in the State of Delaware, whether or not an arbitration\nproceeding has theretofore been or is ever initiated, for the purpose of\ntemporarily, preliminarily or permanently enforcing the provisions of this\nAgreement or to enforce an arbitration award, and, for the purposes of this\nSection 9(b), each Indemnitee (i) expressly consents to the application of\nSection 9(c) hereof to any such action or proceeding, (ii) agrees that proof\nshall not be required that\n\n\n                                       -9-\nmonetary damages for breach of the provisions of this Agreement would be\ndifficult to calculate and that remedies at law would be inadequate and (iii)\nirrevocably appoints each General Counsel of GS Inc., c\/o The Corporation Trust\nCompany, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware\n19801 as such Indemnitee's agent for service of process in connection with any\nsuch action or proceeding, who shall promptly advise such Indemnitee of any such\nservice of process.\n\n                  (c) (i) EACH INDEMNITEE HEREBY IRREVOCABLY SUBMITS TO THE\n         EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE\n         STATE OF DELAWARE OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR\n         RELATING TO OR CONCERNING THIS AGREEMENT THAT IS NOT OTHERWISE\n         ARBITRATED ACCORDING TO THE PROVISIONS OF SECTION 9(a) HEREOF. This\n         includes any suit, action or proceeding to compel arbitration or to\n         enforce an arbitration award. The parties acknowledge that the forum\n         designated by this Section 9(c) has a reasonable relation to this\n         Agreement, and to the parties' relationship with one another.\n         Notwithstanding the foregoing, nothing herein shall preclude GS Inc.\n         from bringing any action or proceeding in any other court for the\n         purpose of enforcing the provisions of this Section 9.\n\n                  (ii) The agreement of an Indemnitee as to forum is independent\n         of the law that may be applied in the action, and each Indemnitee\n         agrees to this forum even if the forum may under applicable law choose\n         to apply non-forum law. Each Indemnitee hereby waives, to the fullest\n         extent permitted by applicable law, any\n\n\n                                      -10-\n         objection which such Indemnitee now or hereafter may have to personal\n         jurisdiction or to the laying of venue of any such suit, action or\n         proceeding in any court referred to in Section 9(c)(i). The parties\n         undertake not to commence any action arising out of or relating to this\n         Agreement in any forum other than the forum described in this Section\n         9(c). The parties agree that, to the fullest extent permitted by\n         applicable law, a final and non-appealable judgment in any such suit,\n         action or proceeding in any such court shall be conclusive and binding\n         upon the parties.\n\n         10. Binding Effect. This Agreement shall be binding upon and inure to\nthe benefit of and be enforceable by the parties hereto and their respective\nsuccessors, assigns (including any direct or indirect successor by merger or\nconsolidation), heirs, executors and administrators.\n\n         11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN\nACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES\nOF CONFLICTS OF LAWS.\n\n         12. Amendment. Each party understands that from time to time certain\nother persons may become Indemnitees and certain Indemnitees will cease to be\nIndemnitees to the extent provided in this Section 12. Accordingly, this\nAgreement may be amended by action of GS Inc. from time to time to add\nadditional Indemnitees, without the approval of any other person other than such\nproposed Indemnitees, each of whom shall execute a counterpart of the signature\npage of this Agreement. This\n\n\n                                      -11-\nAgreement may also be amended by action of GS Inc. and without the approval of\nany other person to remove an Indemnitee; provided that such amendment shall not\nbe effective unless GS Inc. has provided 30 days prior written notice to the\nIndemnitee and, in any event, such amendment shall not affect any rights of such\nIndemnitee to be indemnified in respect of Losses associated with the acts,\nomissions or status of such Indemnitee through the effective date of such\ntermination (including the right to subsequent indemnification and expense\nadvancement and reimbursement relating to such acts, omissions or status).\n\n         13. Waiver of Breach. The failure or delay of a party at any time to\nrequire performance by any other party of any provision of this Agreement, even\nif known, shall not affect the right of such party to require performance of\nthat provision or to exercise any right, power, or remedy hereunder, and any\nwaiver by any party of any breach of any provision of this Agreement shall not\nbe construed as a waiver of any continuing or succeeding breach of such\nprovision, a waiver of the provision itself, or a waiver of any right, power, or\nremedy under this Agreement. No notice to or demand on any party in any case\nshall, of itself, entitle such party to other or further notice or demand in\nsimilar or other circumstances.\n\n         14. Severability. GS Inc. and each Indemnitee agree that the agreements\nand provisions contained in this Agreement are severable and divisible, that\neach such agreement and provision does not depend upon any other provision or\nagreement for its enforceability, and that each such agreement and provision set\nforth\n\n\n                                      -12-\nherein constitutes an enforceable obligation between GS Inc. and such\nIndemnitee. Consequently, GS Inc. and each Indemnitee hereto agrees that neither\nthe invalidity nor the unenforceability of any provision of this Agreement shall\naffect the other provisions hereof, and this Agreement shall remain in full\nforce and effect and be construed in all respects as if such invalid or\nunenforceable provision were omitted.\n\n         15. No Presumption. The termination of any action, suit or proceeding\nby judgment, order, settlement, conviction, or upon a plea of nolo contendere or\nits equivalent, shall not, of itself, create a presumption that an Indemnitee\ndid not meet the applicable standard of conduct for indemnification under this\nAgreement.\n\n         16. Notices. Any communication, demand or notice to be given hereunder\nwill be duly given when delivered in writing by hand or first class mail to GS\nInc. at its principal executive office or to an Indemnitee at its last address\nappearing in the business records of GS Inc. (or to such other addresses as a\nparty may designate by written notice to GS Inc.).\n\n         17. No Assignments. No Indemnitee may assign its rights or obligations\nunder this Agreement without the prior written consent of GS Inc.\n\n         18. No Third Party Rights. Nothing expressed or referred to in this\nAgreement will be construed to give any person other than the parties to this\nAgreement any legal or equitable right, remedy or claim under or with respect to\nthis Agreement or any provision of this Agreement. This Agreement and all of its\nprovisions are for the sole\n\n\n                                      -13-\nand exclusive benefit of the parties to this Agreement and their successors and\npermitted assigns.\n\n         19. Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all such\ncounterparts shall together constitute but one and the same instrument.\n\n\n                                      -14-\n         IN WITNESS WHEREOF, the parties hereto have entered into this Agreement\nas of the date first written above.\n\n                                     THE GOLDMAN SACHS GROUP, INC.\n\n\n                                     By:______________________________\n                                     Name:\n                                     Title:\n\n\n                                      -15-\n                                  INDEMNITEES:\n\n\n\n                                      -16-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7660],"corporate_contracts_industries":[9418],"corporate_contracts_types":[9553,9557],"class_list":["post-40804","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-goldman-sachs-group-inc","corporate_contracts_industries-financial__securities","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40804","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40804"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40804"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40804"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40804"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}