Exhibit 10.6
INDEMNIFICATION
AGREEMENT
AGREEMENT, dated as of
August 4, 2009, by and between Fortress Investment Group LLC,
a Delaware limited liability company (the “Company”),
and George W. Wellde, Jr. (the
“Indemnitee”).
WHEREAS, it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS, the Company and the
Indemnitee recognize the increased risks of being a director or
officer in today’s environment, and, in light of such risks,
it is reasonable, prudent and necessary for the Company to
indemnify and advance expenses on behalf of its directors and
officers;
WHEREAS, the Company has requested
that Indemnitee serve or continue to serve as a director and/or
officer of the Company and may have requested, or may in the future
request, that the Indemnitee serve one or more entities (including
affiliates of the Company) as a director or officer or in other
capacities; and
WHEREAS, the Indemnitee is willing
to serve as a director, officer or in a similar capacity on the
condition that the Indemnitee be so indemnified.
NOW, THEREFORE, in consideration of
the premises and of the Indemnitee serving, or continuing to serve,
the Company directly or, on its behalf or at its request, as an
officer, director, manager, member, partner, tax matters partner,
fiduciary, trustee or similar capacity, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Certain Definitions. In addition
to terms defined elsewhere herein, the following terms have the
following meanings when used in this Agreement:
(a) Agreement: means this
Indemnification Agreement, as amended from time to time
hereafter.
(b) Board of Directors: means
the Board of Directors of the Company.
(c) Claim: means any
threatened, asserted, pending or completed civil, criminal,
administrative, investigative or other action, suit or proceeding,
of any kind whatsoever, including any arbitration or other
alternative dispute resolution mechanism, or any appeal of any kind
thereof, or any inquiry or investigation, whether instituted by the
Company, any governmental agency or any other party, that the
Indemnitee in good faith believes might lead to the institution of
any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other, including any arbitration
or other alternative dispute resolution mechanism.
(d) Indemnifiable
Expenses: means (i) all expenses and liabilities,
including judgments, fines, penalties, interest, appeal bonds,
amounts paid in settlement with the approval of the Company, and
counsel fees and disbursements (including, without limitation,
experts’ fees, court costs, retainers, transcript fees,
duplicating, printing and binding costs, as well as
telecommunications, postage and courier charges) paid or incurred
in connection with
investigating, defending, being a witness in or
participating in (including on appeal), or preparing to
investigate, defend, be a witness in or participate in, any Claim
relating to any Indemnifiable Event (as defined below), by reason
of the fact that Indemnitee is, was or has agreed to serve as a
director, officer, employee or agent of the Company, or while
serving as a director or officer of the Company, is or was serving
or has agreed to serve on behalf of or at the request of the
Company as a director, officer, manager, member, partner, tax
partner, fiduciary, trustee or similar capacity of another
corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of
any action alleged to have been taken or omitted in any such
capacity (the Indemnitee’s “Company’s
Status”), whether occurring before, on or after the date of
this Agreement (any such event, an “Indemnifiable
Event”), (ii) any liability pursuant to a loan guaranty
or otherwise, for any indebtedness of the Company or any subsidiary
of the Company, including, without limitation, any indebtedness
which the Company or any subsidiary of the Company has assumed or
taken subject to, and (iii) any liabilities which an
Indemnitee incurs as a result of acting on behalf of the Company
(whether as a fiduciary or otherwise) in connection with the
operation, administration or maintenance of an employee benefit
plan or any related trust or funding mechanism (whether such
liabilities are in the form of excise taxes assessed by the United
States Internal Revenue Service, penalties assessed by the
Department of Labor, restitutions to such a plan or trust or other
funding mechanism or to a participant or beneficiary of such plan,
trust or other funding mechanism, or otherwise).
(e) Loss: means all losses,
Claims, damages, fines, or penalties, including, without
limitation, any legal or other expenses (including, without
limitation, any legal fees, judgments, fines, appeal bonds or
related expenses) incurred in connection with defending,
investigating or settling any Claim, fine, penalty or similar
action.
(f) Person: means any
individual, corporation, firm, partnership, joint venture, limited
liability company, estate, trust, business association,
organization, governmental entity or other entity.
2. Basic Indemnification
Arrangement; Advancement of Expenses.
(a) In the event that the Indemnitee
was, is or becomes subject to, a party to or witness or other
participant in, or is threatened to be made subject to, a party to
or witness or other participant in, a Claim that arises in
connection with or is by reason (in whole or in part) of an
Indemnifiable Event or the Indemnitee’s Company Status, the
Company, on the terms and subject to the conditions of this
Agreement, shall indemnify the Indemnitee, or cause such Indemnitee
to be indemnified, to the fullest extent permitted by Delaware law
in effect on the date hereof and as amended from time to time, and
shall hold the Indemnitee harmless from and against all Losses that
arise in connection with or are by reason (in whole or in part) of
an Indemnifiable Event or the Indemnitee’s Company Status;
provided, however, that no change in Delaware law shall have the
effect of reducing the benefits available to the Indemnitee
hereunder based on Delaware law as in effect on the date hereof or
as such benefits may improve as a result of amendments after the
date hereof. The rights of the Indemnitee provided in this
Section 2 shall include, without limitation, the rights set
forth in the other sections of this Agreement. Payments of
Indemnifiable Expenses shall be made as soon as practicable but in
any event no later than twenty (20) calendar days after
written demand is presented along with supporting documentation to
the Company, against any and all Indemnifiable Expenses.
(b) If so requested by the
Indemnitee, the Company shall advance, or cause to be advanced
(within seven calendar days of such request), any and all
Indemnifiable Expenses incurred by the Indemnitee (an
“Expense Advance”). The Company shall, in accordance
with such request (but without duplication), either (i) pay,
or cause to be paid, such Indemnifiable Expenses on behalf of the
Indemnitee, or (ii) reimburse, or cause the reimbursement of,
the Indemnitee for such Indemnifiable Expenses. Subject to the
conditions set forth below, the Indemnitee’s right to an
Expense Advance is absolute and shall not be subject to any
condition that the Board of Directors shall not have determined
that the Indemnitee is not entitled to be indemnified under
applicable law. However, the obligation of the Company to make an
Expense Advance pursuant to this Section 2(b) shall be subject
to the condition that, if, when and to the extent that a final
judicial determination is made in the Claim (as to which all rights
of appeal therefrom have been exhausted or lapsed) that the
Indemnitee is not entitled to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by the
Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid (it being understood and agreed that
the foregoing agreement by the Indemnitee shall be deemed to
satisfy any requirement that the Indemnitee provide the Company
with an undertaking to repay any Expense Advance if it is
ultimately determined that the Indemnitee is not entitled to
indemnification under applicable law). The Indemnitee’s
undertaking to repay such Expense Advances shall be unsecured and
interest-free.
(c) Notwithstanding anything in this
Agreement to the contrary, the Indemnitee shall not be entitled to
indemnification or advancement of Indemnifiable Expenses pursuant
to this Agreement in connection with any Claim initiated by the
Indemnitee unless (i) the Company has joined in or the Board
of Directors of the Company has authorized or consented to the
initiation of such Claim or (ii) the Claim is one to enforce
the Indemnitee’s rights under this Agreement (including an
action pursued by the Indemnitee to secure a determination that the
Indemnitee should be indemnified under applicable law).
(d) The indemnification obligations
of the Company under this Agreement shall be subject to the
condition that the Board of Directors shall not have determined (by
majority vote of directors who are not parties to the applicable
Claim) that the indemnification of the Indemnitee is not proper in
the circumstances because the Indemnitee is not entitled to be
indemnified under applicable law. If the Board of Directors
determines that the Indemnitee is not entitled to be indemnified in
whole or in part under applicable law, the Indemnitee shall have
the right to commence litigation in any venue in the States of New
York or Delaware (and shall have the obligation to file a Statement
in Support of a Request for Assignment to the Commercial Division
as soon as practicable, provided that the Indemnitee can certify
that the Claim meets the division’s requirements), seeking an
initial determination by the court or challenging any such
determination by the Board of Directors or any aspect thereof,
including the legal or factual bases therefor, and the Company
hereby consents to service of process and to appear in any such
proceeding. If the Indemnitee commences legal proceedings in a
court of competent jurisdiction to secure a determination that the
Indemnitee should be indemnified under applicable law, any
determination made by the Board of Directors that the Indemnitee is
not entitled to be indemnified under applicable law shall not be
binding, the Indemnitee shall continue to be entitled to receive
Expense Advances, and the Indemnitee shall not be required to
reimburse the Company for any Expense Advance, until a final
judicial determination is made (as to which all rights of appeal
therefrom have been exhausted or lapsed) that the Indemnitee is not
entitled to be so indemnified under applicable law. Any
determination by the Board of Directors that the Indemnitee is
entitled to be indemnified under this Agreement shall be conclusive
and binding on the Company and the Indemnitee.
(e) To the extent that the
Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, the Indemnitee shall be
indemnified against all Indemnifiable Expenses actually and
reasonably incurred in connection therewith, notwithstanding an
earlier determination by the Board of Directors that the Indemnitee
is not entitled to indemnification under applicable law.
3. Indemnification for Additional
Expenses. The Com
