Exhibit 10.166
EXECUTIVE OFFICER
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 an Executive Officer (as hereinafter defined) of the Company and
may also be serving or may serve in the future in another Position
(as hereinafter defined) at an Affiliated Entity or Unaffiliated
Entity (each 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) “Executive Officer”
shall have the meaning of the term “officer” as such
term is defined in Rule 16a-1(f) of the Securities Exchange Act of
1934, as amended.
(b) “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.
(c) “Position” is
(a) service as a director, officer, partner, trustee,
fiduciary, manager or employee of the Company 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”) or (b) service at the request of the Company at
any time this Agreement is in effect as a director, officer,
partner, trustee, fiduciary, manager or employee of a corporation,
limited liability company, public limited company, partnership,
joint venture, trust, employee benefit plan, fund or other
enterprise which is not an Affiliated Entity (an
“Unaffiliated Entity”), provided ,
however , that such request for service has been approved in
writing in accordance with Code Reports and Permission (CODE RAP)
or a successor process or by the Corporate Governance and
Nominating Committee of the Board of Directors of the
Company.
(d) “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
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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 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 (2) violations of Federal or state insider trading
laws or (3) violations of the Company’s Personal
Securities Trading Policy with respect to Company securities,
unless, in the case of clauses (1), (2) or (3), Indemnitee has
been successful on the merits, received the
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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
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 i
