{"id":40805,"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-inc3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-goldman-sachs-group-inc3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-goldman-sachs-group-inc3.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\nentered into as of the 9th day of November 1999, by and between The Goldman\nSachs Group, Inc., a Delaware corporation ('GS Inc.'), and each of the\nIndemnitees listed on the signature pages to this Agreement (each, an\n'Indemnitee', and collectively, the 'Indemnitees') as such signature pages may\nbe amended and supplemented from time to time pursuant to the terms of this\nAgreement.\n\n                                   WITNESSETH\n\n                  WHEREAS, GS Inc. has filed and proposes to file registration\nstatements with the Securities and Exchange Commission under the Securities Act\nof 1933 (the 'Securities Act') for the public offering and sale of securities of\nGS Inc., which securities may include shares of its common stock (including\nshares to be sold by stockholders of GS Inc. or issuable in connection with\nemployee benefit plans), debt securities (including medium-term notes),\nwarrants, preferred stock and\/or any other securities of GS Inc. approved by, or\npursuant to action of, the Board of Directors of GS Inc.;\n\n                  WHEREAS, GS Inc. has in the past requested and will in the\nfuture request certain of the Indemnitees to execute registration statements in\nthe capacity or capacities listed, or to be listed, in registration statements\nand to take actions in connection with registration statements; and\n\n                  WHEREAS, each Indemnitee is one of the following: (i) an\nofficer or director of GS Inc. or (ii) a person requested or authorized by the\nBoard of Directors of GS Inc. or any committee thereof to take actions on behalf\nof GS Inc. in connection with a registration statement.\n\n                  NOW, therefore, in consideration of each Indemnitee's acting\nand agreeing 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 hereby agree as follows:\n\n                  1. General. GS Inc. 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 or otherwise,\ninsofar as such Losses (or actions in respect thereof) arise out of or are based\nupon an untrue statement or alleged untrue statement of a material fact\ncontained in any Registration Statement (as defined below) or any preliminary\nprospectus, prospectus, or prospectus supplement comprising a part thereof or\nrelating thereto, or any amendment or supplement to any of the foregoing\ndocuments (collectively, the 'Offering Documents') or any untrue or alleged\nuntrue oral statement relating to any offering contemplated by any Offering\nDocument, or arise out of or are based upon an omission or alleged omission to\nstate in any Offering Document or such oral statement a material fact required\nto be stated therein or necessary to make the statements in any Offering\nDocument or such oral statement not misleading; provided, however, that GS Inc.\nshall not be liable in any such case to the extent that any such Losses arise\nout of or are based upon an untrue statement or alleged untrue statement or\nomission or alleged omission relating to such Indemnitee made in any Offering\nDocument or such oral statement in reliance upon and in conformity with written\ninformation relating to such Indemnitee furnished to GS Inc. by such Indemnitee\nexpressly for use therein. 'Registration Statement' means any registration\nstatement previously filed or hereafter filed by GS Inc. under the Securities\nAct on any applicable form (including Forms S-8 and S-4) for the registration of\nany securities of GS Inc. under the Securities Act, including, without\nlimitation, debt and equity securities, guarantees, back-up undertakings,\nrights, warrants and options and interests in employee benefit plans, and shall\ninclude any amendment, post-effective or otherwise, thereto and any related\nregistration statement filed pursuant to Rule 462 under the Securities Act.\n\n                  Notwithstanding the foregoing provisions of this Section 1, GS\nInc. and each Indemnitee agree that insofar as indemnification for liabilities\narising under the Securities Act may be permitted under this Agreement to an\nIndemnitee who is a director, officer or controlling person of GS Inc., in the\nevent that a claim for indemnification against such liabilities is made by such\nan Indemnitee (other than the payment by GS Inc. of expenses incurred or paid by\nsuch Indemnitee in the successful defense of any action, suit or proceeding) in\nconnection with a Registration Statement, GS Inc. will, unless in the opinion of\nits counsel the matter has been settled by controlling precedent, submit to a\ncourt of appropriate jurisdiction the question whether such indemnification by\nit is against public policy as expressed in the Securities Act, and GS Inc. and\nsuch Indemnitee will be governed by the final adjudication of such question.\n\n                  2. Losses. As used in this Agreement, the term 'Losses' shall\ninclude, without limitation, damages, losses, claims, judgments, liabilities,\nfines, penalties, excise taxes, settlements, and costs, attorneys' fees,\naccountants' fees, and disbursements and costs of attachment or similar bonds,\ninvestigation costs, defense preparation costs, costs of preparing for and\npresenting evidence or testimony, and any expenses of establishing a right to\nindemnification under this Agreement. The term 'Losses' shall not include taxes\nexcept to the extent taxes are imposed in respect of payments otherwise made\npursuant to this Agreement, in which case such Indemnitee's Losses shall include\nan amount not greater than the net taxes payable (taking into account any\ndeductions, credits or other tax benefits available to such Indemnitee as a\nresult of the Losses in respect of which such payment is made and the payment of\nthe taxes imposed in respect of such payment).\n\n\n\n                                       -2-\n                  3. Enforcement. Subject to the provisions of the second\nparagraph of Section 1 hereof, if a claim or request by an Indemnitee under this\nAgreement is not paid by GS Inc. or on its behalf, within thirty (30) days after\na written claim or request has been received by GS Inc. and, if applicable, the\nwritten undertaking in Section 5 hereof has been received by GS Inc., such\nIndemnitee may at any time thereafter commence an arbitration proceeding in\naccordance with Section 9 hereof against GS Inc. to recover the unpaid amount of\nthe claim or request and, if successful in whole or in part, such Indemnitee\nshall be entitled to be paid also the expenses of prosecuting such proceeding.\n\n                  4. Partial Indemnification; Contribution. If an Indemnitee is\nentitled under any provision of this Agreement to indemnification by GS Inc. for\nsome or a portion of any Losses, but not for the total amount thereof, GS Inc.\nshall nevertheless indemnify such Indemnitee for the portion of such Losses to\nwhich such Indemnitee is entitled. If the indemnification provided for in this\nAgreement is insufficient or unavailable for any reason, GS Inc. shall\ncontribute to relevant Losses to the maximum extent permitted by law.\n\n                  5. Expenses. Expenses incurred by an Indemnitee in connection\nwith any proceeding shall be paid by GS Inc. upon request of such Indemnitee\nthat GS Inc. pay such expenses, but only upon receipt by GS Inc. of (i) a\nwritten undertaking by or on behalf of such Indemnitee to reimburse GS Inc. for\nexpenses if and to the extent that it is ultimately determined that such\nindemnification is not permitted by the Securities Act (and that contribution is\nunavailable with respect to such payments) and (ii) satisfactory evidence of the\namount of such expenses.\n\n                  6. Notice of Claim. Each Indemnitee shall promptly notify GS\nInc. in writing of any claim against such Indemnitee for which indemnification\nwill or could be sought under this Agreement. In addition, each Indemnitee shall\ngive GS Inc. such information and cooperation as it may reasonably require and\nas shall be within such Indemnitee's power and at such times and places as are\nnot unduly burdensome for such Indemnitee.\n\n                  7. Defense of Claim. With respect to any proceeding as to\nwhich an Indemnitee notifies GS Inc. of the commencement thereof:\n\n\n                  (a) GS Inc. will be entitled to participate at its own\n         expense;\n\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\n\n\n                                       -3-\n         more than one separate law firm (in addition to a single firm of local\n         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         suit or proceeding effected without GS Inc.'s written consent. GS Inc.\n         shall not settle any action, suit or proceeding in any manner which\n         would impose any cost or limitation on an Indemnitee or would admit\n         fault by an Indemnitee without such Indemnitee's written consent. No\n         Indemnitee shall settle any action, suit, or proceeding without the\n         prior written consent of GS Inc. Neither GS Inc. nor an Indemnitee will\n         unreasonably withhold or delay its consent to any proposed settlement.\n\n                  8. Non-exclusivity. The right to indemnification and the\npayment of expenses incurred in defending a proceeding in advance of its final\ndisposition conferred in this Agreement shall not be exclusive of or affected in\nany way by any other right which an Indemnitee may have or hereafter may acquire\nunder any statute, certificate of incorporation, by-laws, agreement,\narrangement, resolution or instrument providing indemnification or expense\npayment, except that any payments otherwise required to be made by GS Inc.\nhereunder shall be offset by any and all amounts received by an Indemnitee from\nany other indemnitor or under one or more liability insurance policies\nmaintained by an indemnitor or otherwise and shall not be duplicative of any\nother payments received by an Indemnitee from GS Inc. in respect of the matter\ngiving rise to the indemnity hereunder. When an Indemnitee is entitled to\nindemnification, expense advancement or reimbursement under this Instrument and\nany other agreement, arrangement, resolution or instrument of GS Inc., the\nIndemnitee may choose to pursue its rights under one or more, but less than all,\nof such applicable agreements, arrangements, resolutions or instruments, in\nwhich case such Indemnitee need only comply with the standards and procedures of\nthe agreements, arrangements, resolutions or instruments under which it chooses\nto pursue its rights.\n\n\n\n                                       -4-\n                  9. Arbitration.\n\n                  (a) Subject to the provisions of the second paragraph of\n         Section 1 and Section 9(b) hereof, any dispute, controversy or claim\n         between an Indemnitee and GS Inc. arising out of or relating to or\n         concerning the provisions of this Agreement shall be finally settled by\n         arbitration in New York City before, and in accordance with the rules\n         then applying of, the New York Stock Exchange, Inc. ('NYSE') or, if the\n         NYSE declines to arbitrate the matter or the matter is not otherwise\n         arbitrable before it, the American Arbitration Association (the 'AAA')\n         in accordance with the commercial arbitration rules of the AAA.\n\n                  (b) Notwithstanding the provision of Section 9(a) and in\n         addition to its right to submit any dispute or controversy to\n         arbitration, GS Inc. may bring an action or special proceeding in a\n         state or federal court of competent jurisdiction sitting in the State\n         of Delaware, whether or not an arbitration proceeding has theretofore\n         been or is ever initiated, for the purpose of temporarily,\n         preliminarily or permanently enforcing the provisions of this Agreement\n         or to enforce an arbitration award, and, for the purposes of this\n         Section 9(b), each Indemnitee (i) expressly consents to the application\n         of Section 9(c) hereof to any such action or proceeding, (ii) agrees\n         that proof shall not be required that monetary damages for breach of\n         the provisions of this Agreement would be difficult to calculate and\n         that remedies at law would be inadequate and (iii) irrevocably appoints\n         each General Counsel of GS Inc., c\/o The Corporation Trust Company,\n         Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware\n         19801 as such Indemnitee's agent for service of process in connection\n         with any such action or proceeding, who shall promptly advise such\n         Indemnitee of any such service 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\n                                       -5-\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 objection which such Indemnitee\n         now or hereafter may have to personal jurisdiction or to the laying of\n         venue of any such suit, action or proceeding in any court referred to\n         in Section 9(c)(i). The parties undertake not to commence any action\n         arising out of or relating to this Agreement in any forum other than\n         the forum described in this Section 9(c). The parties agree that, to\n         the fullest extent permitted by applicable law, a final and\n         non-appealable judgment in any such suit, action or proceeding in any\n         such court shall be conclusive and binding upon the parties.\n\n                  10. Binding Effect. This Agreement shall be binding upon and\ninure to the benefit of and be enforceable by the parties hereto and their\nrespective successors, assigns (including any direct or indirect successor by\nmerger or consolidation), heirs, executors and administrators.\n\n                  11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND\nCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD\nTO PRINCIPLES OF CONFLICTS OF LAWS.\n\n                  12. Amendment. Each party understands that from time to time\ncertain other persons may become Indemnitees and certain Indemnitees will cease\nto be Indemnitees 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 additional Indemnitees, each of whom shall execute a counterpart of the\nsignature page of this Agreement. This Agreement may also be amended by action\nof GS Inc. and without the approval of any other person to remove an Indemnitee;\nprovided that such amendment shall not be effective unless GS Inc. has provided\n30 days prior written notice to the Indemnitee and, in any event, such amendment\nshall not affect any rights of such Indemnitee to be indemnified in respect of\nLosses associated with the acts, omissions or status of such Indemnitee through\nthe effective date of such termination (including the right to subsequent\nindemnification and expense advancement and reimbursement relating to such acts,\nomissions or status).\n\n                  13. Waiver of Breach. The failure or delay of a party at any\ntime to require performance by any other party of any provision of this\nAgreement, even if known, shall not affect the right of such party to require\nperformance of that provision or to exercise any right, power, or remedy\nhereunder, and any waiver by any party of any breach of any provision of this\nAgreement shall not be construed as a waiver of any\n\n\n                                       -6-\ncontinuing or succeeding breach of such provision, a waiver of the provision\nitself, or a waiver of any right, power, or remedy under this Agreement. No\nnotice to or demand on any party in any case shall, of itself, entitle such\nparty to other or further notice or demand in similar or other circumstances.\n\n                  14. Severability. GS Inc. and each Indemnitee agree that the\nagreements and provisions contained in this Agreement are severable and\ndivisible, that each such agreement and provision does not depend upon any other\nprovision or agreement for its enforceability, and that each such agreement and\nprovision set forth herein constitutes an enforceable obligation between GS Inc.\nand such Indemnitee. Consequently, GS Inc. and each Indemnitee hereto agrees\nthat neither the invalidity nor the unenforceability of any provision of this\nAgreement shall affect the other provisions hereof, and this Agreement shall\nremain in full force and effect and be construed in all respects as if such\ninvalid or unenforceable provision were omitted.\n\n                  15. Notices. Any communication, demand or notice to be given\nhereunder will be duly given when delivered in writing by hand or first class\nmail to GS Inc. at its principal executive office or to an Indemnitee at its\nlast address appearing in the business records of GS Inc. (or to such other\naddresses as a party may designate by written notice to GS Inc.).\n\n                  16. No Assignments. No Indemnitee may assign its rights or\ndelegate obligations under this Agreement without the prior written consent of\nGS Inc. Any assignment or delegation in violation of this Section 16 shall be\nnull and void.\n\n                  17. No Third Party Rights. Nothing expressed or referred to in\nthis Agreement will be construed to give any person other than the parties to\nthis Agreement any legal or equitable right, remedy or claim under or with\nrespect to this Agreement or any provision of this Agreement. This Agreement and\nall of its provisions are for the sole and exclusive benefit of the parties to\nthis Agreement and their successors and permitted assigns.\n\n                  18. Counterparts. This Agreement may be executed in any number\nof counterparts, each of which shall be deemed an original, but all such\ncounterparts shall together constitute but one and the same instrument.\n\n\n\n                                       -7-\n                  IN WITNESS WHEREOF, the parties hereto have entered into this\nAgreement as of the date first written above.\n\n                                    THE GOLDMAN SACHS GROUP, INC.\n\n\n                                    By: \/s\/ Gregory K. Palm\n                                       --------------------------\n                                    Name: Gregory K. Palm\n                                    Title: Authorized Person\n\n\n\n\n\n\n                       [Signatures Continued on Next Page]\nINDEMNITEES:\n\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-40805","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\/40805","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=40805"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40805"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40805"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40805"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}