Exhibit 99.6
INDEMNIFICATION
AGREEMENT
This Agreement made and entered into
this 18 th day of August, 2008 (the
“Agreement”), by and between The First Marblehead
Corporation, a Delaware corporation (the “Company,”
which term shall include, where appropriate, any Entity (as
hereinafter defined) controlled directly or indirectly by the
Company) and Daniel Maxwell Meyers (the
“Indemnitee”):
WHEREAS, it is essential to the
Company that it be able to retain and attract as officers and
directors the most capable persons available;
WHEREAS, increased corporate
litigation has subjected officers and directors to litigation risks
and expenses, and the limitations on the availability of directors
and officers liability insurance have made it increasingly
difficult for the Company to attract and retain such
persons;
WHEREAS, the Company’s
Restated Certificate of Incorporation (as amended, the
“Restated Certificate”) requires it to indemnify its
officers and directors and permits it to make other indemnification
arrangements and agreements;
WHEREAS, the Company desires to
provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to or revocation of the Restated Certificate or any
change in the ownership of the Company or the composition of its
Board of Directors);
WHEREAS, the Company intends that
this Agreement provide Indemnitee with greater protection than that
which is provided by the Company’s Restated Certificate;
and
WHEREAS, Indemnitee is relying upon
the rights afforded under this Agreement in becoming an officer or
director of the Company.
NOW, THEREFORE, in consideration of
the promises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1.
Definitions
.
(a)
“Corporate
Status” describes the status of a person who is serving or
has served (i) as a director or officer of the Company,
(ii) as a
director, officer, agent or fiduciary or any similar capacity with
respect to any employee benefit plan of the Company, or
(iii) as a director, partner, trustee, officer, employee, or
agent of any other Entity at the request of the Company. For
purposes of subsection (iii) of this Section 1(a), if
Indemnitee is serving or has served as
a director, partner, trustee, officer, employee or agent of a
Subsidiary, Indemnitee shall be deemed to be serving at the request
of the Company.
(b)
“Entity” shall
mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other
legal entity.
(c)
“Expenses” shall
mean all reasonable fees, costs and expenses incurred by Indemnitee
in connection with any Proceeding (as defined below), including,
without limitation, attorneys’ fees, disbursements and
retainers (including, without limitation, any such fees,
disbursements and retainers incurred by Indemnitee pursuant to
Sections 10 and 11(c) of this Agreement), fees and
disbursements of expert witnesses, private investigators and
professional advisors (including, without limitation, accountants
and investment bankers), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery services,
secretarial services, and other disbursements and expenses, but
shall not include any Liabilities (as defined below) in connection
with any such Proceeding.
(d)
“Indemnifiable
Expenses,” “Indemnifiable Liabilities” and
“Indemnifiable Amounts” shall have the meanings
ascribed to those terms in
Section 3(a) below.
(e)
“Liabilities”
shall mean judgments, damages, liabilities, losses, penalties,
excise taxes, fines and amounts paid in settlement.
(f)
“Proceeding”
shall mean any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution process, investigation,
administrative hearing, appeal, or any other proceeding, whether
civil, criminal, administrative, arbitrative or investigative,
whether formal or informal, including a proceeding initiated by
Indemnitee pursuant to Section 10 of this Agreement to enforce
Indemnitee’s rights hereunder.
(g)
“Subsidiary”
shall mean any corporation, partnership, limited liability company,
joint venture, trust or other Entity of which the Company owns
(either directly or through or together with another Subsidiary of
the Company) either (i) a general partner, managing member or
other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture
or other Entity, or (B) 50% or more of the outstanding voting
capital stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity.
2.
Services of Indemnitee
. In consideration of the
Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as an officer or a director of
the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
3.
Agreement to Indemnify
. The Company agrees to
indemnify Indemnitee as follows:
(a)
Proceedings Other
Than By or In the Right of the Company. Subject to the
exceptions contained in Section 4(a) below, if Indemnitee
was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company)
by reason of Indemnitee’s Corporate Status, Indemnitee shall
be indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such
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Proceeding (referred to
herein as “Indemnifiable Expenses” and
“Indemnifiable Liabilities,” respectively, and
collectively as “Indemnifiable Amounts”).
(b)
Proceedings By or
In the Right of the Company. Subject to the exceptions
contained in Section 4(b) below, if Indemnitee was or is
a party or is threatened to be made a party to any Proceeding by or
in the right of the Company by reason of Indemnitee’s
Corporate Status, Indemnitee shall be indemnified by the Company
against all Indemnifiable Expenses.
(c)
Conclusive
Presumption Regarding Standard of Care . In making any
determination required to be made under Delaware law with respect
to entitlement to indemnification hereunder, the person, persons or
entity making such determination shall presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee
submitted a request therefor in accordance with Section 5 of
this Agreement, and the Company shall 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.
4.
Exceptions to
Indemnification .
Indemnitee shall be entitled to indemnification under
Sections 3(a) and 3(b) above in all circumstances
other than with respect to any specific claim, issue or matter
involved in the Proceeding out of which Indemnitee’s claim
for indemnification has arisen, as follows:
(a)
Proceedings Other
Than By or In the Right of the Company. If indemnification is
requested under Section 3(a) and it has been finally
adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee
failed to act (i) in good faith and (ii) in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal
Proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder.
(b)
Proceedings By or
In the Right of the Company. If indemnification is requested
under Section 3(b) and
(i)
it has been
finally adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee
failed to act (A) in good faith and (B) in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, Indemnitee shall not be entitled to
payment of Indemnifiable Expenses hereunder; or
(ii)
it has been
finally adjudicated by a court of competent jurisdiction that
Indemnitee is liable to the Company with respect to such specific
claim, Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder with respect to such claim, issue or matter
unless the Court of Chancery or another court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Indemnifiable Expenses which
such court shall deem proper; or
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(iii)
it has been
finally adjudicated by a court of competent jurisdiction that
Indemnitee is liable to the Company for an accounting of profits
made from the purchase or sale by the Indemnitee of securities of
the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934, the
rules and regulations promulgated thereunder and amendments
thereto or similar provisions of any federal, state or local
statutory law, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder.
(c)
Insurance
Proceeds . To the extent payment
is actually made to the Indemnitee under a valid and collectible
insurance policy in respect of Indemnifiable Amounts in connection
with such specific claim, issue or matter, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder except in
respect of any excess beyond the amount of payment under such
insurance.
In addition, notwithstanding
anything to the contrary in this Agreement, except as set forth in
Section 10(c), the Company shall not indemnify the Indemnitee
in connection with a Proceeding (or part thereof) initiated by the
Indemnitee unless the initiation thereof was approved by the Board
of Directors of the Company.
5.
Procedure for Payment of
Indemnifiable Amounts . Subject to Section 11 herein,
Indemnitee shall submit to the Company a written request specifying
the Indemnifiable Amounts for which Indemnitee seeks payment under
Section 3 of this Agreement and the basis for the claim.
The Company shall pay such Indemnifiable Amounts to Indemnitee
promptly upon receipt of its request, unless the Indemnitee has not
met the applicable standard of conduct. At the request of the
Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and
reasonably necessary to establish that Indemnitee is entitled to
indemnification hereunder.
6.
Indemnification for Expenses of a
Party Who is Wholly or Partly Successful . Notwithstanding any other provision of
this Agreement, and without limiting any such provision, to the
extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified
against all Expenses reasonably incurred by Indemnitee or on
Indemnitee’s behalf 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 reasonably incurred
by Indemnitee or on Indemnitee’s beha
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