Exhibit 10.167
DIRECTOR
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT is
made this
day of
(the “Agreement”) by and between The Bank of New York
Mellon Corporation (the “Company”) and
(“Indemnitee”).
WHEREAS, Indemnitee is a Director of
the Company and may also be serving or may serve in the future in
another Position (as hereinafter defined) at an Affiliated Entity
(as hereinafter defined);
WHEREAS, in consideration of the
Indemnitee acting in the Position or Positions and assuming the
responsibilities attendant to the Position or Positions, the
Company desires to provide Indemnitee the rights to indemnification
and payment or reimbursement of expenses described
below;
NOW, THEREFORE, in consideration of
the premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions . For
purposes of this Agreement:
(a) “Expenses” shall
include all reasonable out of pocket fees, costs and expenses,
including, without limitation, attorneys’ fees, retainers,
court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs,
postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred if Indemnitee is
involved in any manner (including, without limitation, as a party
or a witness) in any Proceeding (as hereinafter defined) and, to
the extent not prohibited by law, the fees and costs incurred in
enforcing Indemnitee’s right to indemnification and
reimbursement or payment of Expenses under this
Agreement.
(b) “Position” is
(a) service as a director of the Company or Company advisory
board or of any other corporation, limited liability company,
public limited company, partnership, joint venture, trust,
employee
benefit plan, fund or other
enterprise as to which the Company beneficially owns, directly or
indirectly, at least a majority of the voting power of equity or
membership interests, or in the case of employee benefit plans, is
sponsored or maintained by the Company or one of the foregoing (any
of the foregoing, an “Affiliated Entity”).
(c) “Proceeding” shall
mean any civil, criminal, administrative or investigative action,
suit, proceeding or procedure in which the Indemnitee is involved
in any manner including, without limitation, as a party or a
witness by reason of the fact of the Indemnitee’s Position or
Positions.
Section 2. Indemnification
— General . The Company shall indemnify, subject to the
terms of this Agreement, Indemnitee against all judgments, awards,
fines, ERISA excise taxes, penalties, amounts paid in settlement,
liabilities and losses and shall pay or reimburse all Expenses
incurred by Indemnitee, subject to the terms of this Agreement, to
the fullest extent permitted by Delaware law if Indemnitee is
involved in any manner (including, without limitation, as a party
or a witness) in any Proceeding by reason of the fact of
Indemnitee’s Position or Positions, including, without
limitation, any Proceeding by or in the right of the Company to
procure a judgment in its favor, but excluding any
Proceeding initiated by Indemnitee other than (i) Proceedings
initiated by Indemnitee which are consented to in advance in
writing by the Company and (ii) counterclaims made by
Indemnitee in a Proceeding which directly respond to and negate the
affirmative claim made against Indemnitee in such Proceeding. In
the event Indemnitee incurs Expenses or settles a Proceeding under
circumstances in which the Company would have an obligation to
indemnify Indemnitee for the Expenses or settlement amount, the
Company may discharge its indemnification obligation by making
payments on behalf of Indemnitee directly to the parties to whom
such Expenses or settlement amounts are owed by Indemnitee.
Notwithstanding the foregoing, the Company will also, to the
fullest extent permitted by Delaware law and subject to
Section 3 below, indemnify, reimburse and pay Indemnitee for
Expenses incurred in enforcing an indemnification, reimbursement or
payment right under this Agreement.
Section 3. Expenses . Subject
to the terms of this Agreement, upon receipt by the Company of an
undertaking by Indemnitee to repay Expenses if it shall ultimately
be
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determined pursuant to this Agreement that
Indemnitee is not entitled to be indemnified by the Company, the
Company shall pay or reimburse, to the fullest extent permitted by
Delaware law, Expenses actually and reasonably incurred by
Indemnitee in connection with a Proceeding in advance of its final
disposition. Such payment shall be made within thirty
(30) days after the receipt by the Company of a written
request from Indemnitee requesting reimbursement or payment of such
Expenses. Such request shall reasonably evidence the Expenses
incurred by Indemnitee. The burden of proving that the Company is
not liable for reimbursement or payment of Expenses shall be on the
Company.
Section 4. Limitations . The
Company shall not indemnify Indemnitee or pay or reimburse
Indemnitee’s Expenses if such indemnification or payment
would constitute a “prohibited indemnification payment”
under the regulations of the Federal Deposit Insurance Corporation
(or any successor provisions) or any other applicable laws, rules
or regulations or if the Proceeding alleges (1) claims under
Section 16(b) of the Securities Exchange Act of 1934, as
amended or (2) violations of Federal or state insider trading
laws, unless, in the case of clauses (1) or (2), Indemnitee
has been successful on the merits, received the Company’s
written consent prior to incurring the Expense or, after receiving
the Company’s written consent to incurring the cost of
settlement, settled the Proceeding.
Section 5. Standard of
Conduct . No claim for indemnification shall be paid by the
Company unless the Company has determined that Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful, which is the
standard of conduct set forth in Section 145 of the Delaware
General Corporation Law (the “DGCL”) (as such, the
“Standard of Conduct”, with such Standard of Conduct to
be automatically revised to conform to any successor provision of
the DGCL) except that no indemnification shall be made with respect
to any Proceeding by or in right of the Company as to which the
Indemnitee shall have been adjudged to be liable to the Company,
except as determined by the court or other tribunal adjudicating
the Proceeding. Unless ordered by a court or other tribunal, such
determinations of whether the Standard of Conduct has
been
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satisfied shall be made by (1) a majority
vote of the directors of the Company who are not parties to the
Proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by a majority vote of such
directors, even though less than a quorum, or (3) if there are
no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (4) by stockholders of
the Company. Indemnitee shall be deemed to have met the Standard of
Conduct if the determination is not made by the Company within
sixty days of receipt by the General Counsel of a written request
by Indemnitee for indemnity.
Section 6. Contribution . If
the full indemnification and payment or reimbursement of Expenses
provided by this Agreement may not be paid to Indemnitee because it
has been finally adjudicated that such indemnification or payment
or reimbursement of Expenses incurred by Indemnitee is prohibited
by Delaware or other law, or if it has been determined as provided
above that the Standard of Conduct has not been met, and if, and to
the extent the Indemnitee is not ent
