Quarterly Report — Form 10-Q — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-Q Quarterly Report HTML 2.73M
2: EX-10.1 Form of Amended and Restated Director HTML 78K
Indemnification Agreement
3: EX-10.2 Form of Amended and Restated Executive Officer HTML 80K Indemnification Agreement
4: EX-10.3 The Bank of New York Mellon Corporation Form of HTML 75K
Restricted Stock Unit Agreement
5: EX-10.4 The Bank of New York Mellon Corporation Form of HTML 77K
Performance Share Unit Agreement
6: EX-12.1 Computation of Ratio of Earnings to Combined Fixed HTML 62K
Charges and Preferred Stock
7: EX-31.1 Section 302 CEO Certification HTML 42K
8: EX-31.2 Section 302 CFO Certification HTML 42K
9: EX-32.1 Section 906 CEO Certification HTML 37K
10: EX-32.2 Section 906 CFO Certification HTML 37K
17: R1 Document and Entity Information HTML 55K
18: R2 Consolidated Income Statement (Unaudited) HTML 209K
19: R3 Consolidated Income Statement (Unaudited) HTML 38K
(Parenthetical)
20: R4 Consolidated Comprehensive Income Statement HTML 87K
(Unaudited)
21: R5 Consolidated Comprehensive Income Statement HTML 39K
(Unaudited) (Parenthetical)
22: R6 Consolidated Balance Sheet (Unaudited) HTML 175K
23: R7 Consolidated Balance Sheet (Unaudited) HTML 63K
(Parenthetical)
24: R8 Consolidated Statement of Cash Flows (Unaudited) HTML 181K
25: R9 Consolidated Statement of Changes in Equity HTML 83K
(Unaudited)
26: R10 Consolidated Statement of Changes in Equity HTML 41K
(Unaudited) (Parenthetical)
27: R11 Basis of Presentation HTML 41K
28: R12 Acquisitions and Dispositions HTML 43K
29: R13 Securities HTML 557K
30: R14 Loans and asset quality HTML 610K
31: R15 Goodwill and Intangible Assets HTML 175K
32: R16 Other Assets HTML 83K
33: R17 Net Interest Revenue HTML 98K
34: R18 Employee Benefit Plans HTML 102K
35: R19 Restructuring Charges HTML 41K
36: R20 Income Taxes HTML 43K
37: R21 Securitizations and Variable Interest Entities HTML 97K
38: R22 Preferred Stock HTML 84K
39: R23 Other Comprehensive Income (Loss) HTML 181K
40: R24 Fair Value Measurement HTML 838K
41: R25 Fair Value Option HTML 77K
42: R26 Derivative Instruments HTML 528K
43: R27 Commitments and Contingent Liabilities HTML 127K
44: R28 Lines of Businesses HTML 231K
45: R29 Supplemental information to the Consolidated HTML 51K
Statement of Cash Flows
46: R30 Basis of Presentation (Policies) HTML 53K
47: R31 Securities (Tables) HTML 554K
48: R32 Loans and asset quality (Tables) HTML 605K
49: R33 Goodwill and Intangible Assets (Tables) HTML 174K
50: R34 Other Assets (Tables) HTML 77K
51: R35 Net Interest Revenue (Tables) HTML 98K
52: R36 Employee Benefit Plans (Tables) HTML 101K
53: R37 Securitizations and Variable Interest Entities HTML 102K
(Tables)
54: R38 Preferred Stock (Tables) HTML 66K
55: R39 Other Comprehensive Income (Loss) (Tables) HTML 178K
56: R40 Fair Value Measurement (Tables) HTML 850K
57: R41 Fair Value Option (Tables) HTML 76K
58: R42 Derivative Instruments (Tables) HTML 514K
59: R43 Commitments and Contingent Liabilities (Tables) HTML 85K
60: R44 Lines of Businesses (Tables) HTML 208K
61: R45 Supplemental information to the Consolidated HTML 49K
Statement of Cash Flows (Tables)
62: R46 Acquisitions and Dispositions- Additional HTML 75K
Information (Detail)
63: R47 Securities - Amortized Cost, Gross Unrealized HTML 151K
Gains and Losses and Fair Value of Securities
(Detail)
64: R48 Securities - Net Securities Gains (Losses) HTML 44K
(Detail)
65: R49 Securities - Aggregate Fair Value of Investments HTML 171K
with Continuous Unrealized Loss Position (Detail)
66: R50 Securities - Maturity Distribution by Carrying HTML 157K
Amount and Yield (on Tax Equivalent Basis) of
Investment Securities Portfolio (Detail)
67: R51 Securities - Projected Weighted-Average Default HTML 47K
Rates and Loss Severities (Detail)
68: R52 Securities - Pre-Tax Net Securities Gains (Losses) HTML 51K
by Type (Detail)
69: R53 Securities - Debt Securities Credit Losses Roll HTML 47K
Forward Recorded in Earnings (Detail)
70: R54 Securities - Pledged assets (Details) HTML 60K
71: R55 Loans and asset quality - Details of Loan HTML 91K
Distribution and Industry Concentrations of Credit
Risk (Detail)
72: R56 Loans and asset quality - Allowance for Credit HTML 219K
Losses Activity (Detail)
73: R57 Loans and asset quality - Nonperforming Assets HTML 54K
(Detail)
74: R58 Loans and asset quality - Lost Interest (Detail) HTML 40K
75: R59 Loans and asset quality - Information about HTML 105K
Impaired Loans (Detail)
76: R60 Loans and asset quality - Information about Past HTML 75K
Due Loans (Detail)
77: R61 Loans and asset quality- Troubled Debt HTML 50K
Restructurings (Detail)
78: R62 Loans and asset quality - Credit Quality HTML 65K
Indicators - Wealth Management Loans and Mortgages
- Credit Risk Profile by Internally Assigned Grade
(Detail)
79: R63 Loans and asset quality - Additional Information HTML 118K
(Detail)
80: R64 Goodwill and Intangible Assets - Goodwill by HTML 59K
Business Segment (Detail)
81: R65 Goodwill and Intangible Assets - Intangible Assets HTML 57K
by Business Segment (Detail)
82: R66 Goodwill and Intangible Assets - Intangible Assets HTML 75K
by Type (Detail)
83: R67 Goodwill and Intangible Assets - Estimated Annual HTML 47K
Amortization Expense (Detail)
84: R68 Goodwill and Intangible Assets goodwill and HTML 42K
intangible assets - additional information
(Details)
85: R69 Other Assets (Detail) HTML 68K
86: R70 Other Assets - Seed Capital and Private Equity HTML 56K
Investments Valued Using Net Asset Value (Detail)
87: R71 Other Assets - Additional Information (Details) HTML 58K
88: R72 Net Interest Revenue (Detail) HTML 84K
89: R73 Employee Benefit Plans - Net Periodic Benefit HTML 64K
(Credit) Cost (Details)
90: R74 Restructuring Charges - Additional Information HTML 51K
(Detail)
91: R75 Income Taxes (Detail) HTML 53K
92: R76 Securitizations and Variable Interest Entities - HTML 76K
Incremental Assets and Liabilities of Variable
Interest Entities Included in Consolidated
Financial Statements (Detail)
93: R77 Securitizations and Variable Interest Entities - HTML 46K
Non-consolidated Variable Interest Entities
(Detail)
94: R78 Preferred Stock - Additional Information (Detail) HTML 82K
95: R79 Preferred Stock - Stock Summary (Details) HTML 70K
96: R80 Other Comprehensive Income (Loss) - Components of HTML 112K
Other Comprehensive Income (Detail)
97: R81 Fair Value Measurement - Assets and Liabilities HTML 385K
Measured at Fair Value on Recurring Basis (Detail)
98: R82 Fair Value Measurement- Details of Certain Items HTML 222K
Measured at Fair Value on Recurring Basis (Detail)
99: R83 Fair Value Measurement - Significant Unobservable HTML 114K
Inputs (Detail)
100: R84 Fair Value Measurement - Assets Measured at Fair HTML 57K
Value on Nonrecurring Basis (Detail)
101: R85 Fair Value Measurement - Quantitative Information HTML 54K
about Level 3 Fair Value Measurements of Assets
(Detail)
102: R86 Fair Value Measurement - Carrying Amount and Fair HTML 87K
Value of Financial Instruments (Detail)
103: R87 Fair Value Measurement- Summary of Carrying Amount HTML 47K
of Hedged Financial Instruments, Related Notional
Amount of Hedge and Estimated Fair Value of
Derivatives (Detail)
104: R88 Fair Value Option - Assets and Liabilities, by HTML 51K
Type, of Consolidated Investment Management Funds
Recorded at Fair Value (Detail)
105: R89 Fair Value Option - Changes in Fair Value of the HTML 45K
Loans and Long-Term Debt and the Location of the
Changes (Detail)
106: R90 Fair Value Option - Additional Information HTML 45K
(Detail)
107: R91 Derivative Instruments - Additional Information HTML 81K
(Detail)
108: R92 Derivative Instruments - Ineffectiveness Related HTML 48K
to Derivatives and Hedging Relationships Recorded
in Income (Detail)
109: R93 Derivative Instruments - Impact of Derivative HTML 98K
Instruments on Balance Sheet (Detail)
110: R94 Derivative Instruments - Impact of Derivative HTML 83K
Instruments on Income Statement (Detail)
111: R95 Derivative Instruments - Revenue from Foreign HTML 45K
Exchange and Other Trading (Detail)
112: R96 Derivative Instruments - Fair Value of Derivative HTML 50K
Contracts Falling under Early Termination
Provisions in Net Liability Position (Detail)
113: R97 Derivative Instruments - Offsetting (Details) HTML 243K
114: R98 Derivative Instruments - Secured borrowings HTML 93K
(Details)
115: R99 Commitments and Contingent Liabilities - HTML 79K
Significant Industry Concentrations Related to
Credit Exposure (Detail)
116: R100 Commitments and Contingent Liabilities - Summary HTML 51K
of Off-Balance Sheet Credit Risks, Net of
Participations (Detail)
117: R101 Commitments and Contingent Liabilities - Standby HTML 43K
Letters of Credits by Investment Grade (Detail)
118: R102 Commitments and Contingent Liabilities - HTML 95K
Additional Information (Detail)
119: R103 Lines of Businesses - Additional Information HTML 36K
(Detail)
120: R104 Lines of Businesses- Contribution of Segments to HTML 103K
Overall Profitability (Detail)
121: R105 Supplemental information to the Consolidated HTML 55K
Statement of Cash Flows- Noncash Investing and
Financing Transactions that are Not Reflected in
Consolidated Statement of Cash Flows (Detail)
123: XML IDEA XML File -- Filing Summary XML 228K
122: EXCEL IDEA Workbook of Financial Reports XLSX 197K
11: EX-101.INS XBRL Instance -- bk-20160630 XML 14.23M
13: EX-101.CAL XBRL Calculations -- bk-20160630_cal XML 460K
14: EX-101.DEF XBRL Definitions -- bk-20160630_def XML 1.59M
15: EX-101.LAB XBRL Labels -- bk-20160630_lab XML 3.30M
16: EX-101.PRE XBRL Presentations -- bk-20160630_pre XML 2.05M
12: EX-101.SCH XBRL Schema -- bk-20160630 XSD 353K
124: ZIP XBRL Zipped Folder -- 0001390777-16-000246-xbrl Zip 740K
‘EX-10.2’ — Form of Amended and Restated Executive Officer Indemnification Agreement
FORM OF AMENDED AND RESTATED EXECUTIVE OFFICER INDEMNIFICATION AGREEMENT
This AMENDED AND RESTATED INDEMNIFICATION AGREEMENT is made this ___ day of [month], [year] (the "Agreement") by and between The Bank of New York Mellon Corporation (the "Company") and [ ] ("Indemnitee").
WHEREAS, the Company and the Indemnitee previously entered into an Indemnification Agreement (the “Prior Agreement”);
WHEREAS,
pursuant to the Prior Agreement, the Company and the Indemnitee wish to amend and restate the Prior Agreement to read as set forth herein;
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) “Change of Control” means, and shall be deemed to have occurred if, on or after the date of this Agreement, (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than (A) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its subsidiaries acting in such capacity, or (B) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under such Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the
Company’s then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the board of directors of the Company and any new director whose election by the board of directors of the Company or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, (iii) the stockholders
of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of related transactions) all or substantially all of its assets, or (v) the Company shall file or have filed against it, and such filing shall not be dismissed, any bankruptcy, insolvency or dissolution proceedings, or a trustee, administrator or creditors committee shall be appointed to manage or supervise the affairs of the Company.
(b) "Executive
Officer" shall have the meaning of the term "officer" as such term is defined in Rule 16a-l(f) of the Securities Exchange Act of 1934, as amended.
(c) "Expenses" shall include all 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 the fees and costs incurred in seeking to enforce, interpret or construe an indemnification, reimbursement or payment right under this Agreement, the Company’s
or any subsidiary’s certificate of incorporation or bylaws, the Company’s Indemnification Policy, any other agreement to which Indemnitee and the Company or any of its subsidiaries are party, any vote of stockholders or directors of the Company or any of its subsidiaries, the Delaware General Corporation Law (the “DGCL”), any other applicable law
or any liability insurance policy or in connection with a determination contemplated by Section 5 of this Agreement.
(d) “FDIC Regulations” means regulations of the Federal Deposit Insurance Corporation (or any successor provisions).
(e) “Position” means (a) service as a director, officer, partner, trustee, fiduciary, manager or employee 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”) 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.
(f) "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.
(g) “Undertaking” shall mean an undertaking by Indemnitee to repay Expenses if (1) to the extent such Expenses are not covered by payments from insurance or bonds purchased pursuant to Section 359.1(1)(2) of the FDIC Regulations, the advanced Expenses subsequently are determined to be, by a court of competent jurisdiction from which no appeal can be taken, “prohibited indemnification payments”, as defined under the FDIC Regulations, or (2) it shall ultimately be determined by a court of competent jurisdiction from which no appeal can be taken that Indemnitee is
not entitled to be indemnified by the Company.
(h) “Voting Securities” means any securities of the Company that vote generally in the election of directors.
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 in effect on the date hereof
or as amended to increase the scope of permitted indemnification, 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,
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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 in effect on the date hereof or as amended to increase the
scope of permitted indemnification, indemnify, reimburse and pay Indemnitee for Expenses incurred in seeking to enforce, interpret or construe an indemnification, reimbursement or payment right under the Company’s or any subsidiary’s certificate of incorporation or bylaws, the Company’s Indemnification Policy, any other agreement to which Indemnitee and the Company or any of its subsidiaries are party, any vote of stockholders or directors of the
Company or any of its subsidiaries, the DGCL, any other applicable law or any liability insurance policy.
Section 3. Expenses. Upon receipt by the Company of an Undertaking by Indemnitee, the Company shall pay or reimburse Expenses incurred by Indemnitee in connection with a Proceeding, any action or proceeding contemplated by the last sentence of Section 2 of this Agreement and any determination contemplated by Section 5 of this Agreement, in each case in advance of its final disposition. The Company shall not impose other
conditions to advancement and shall not seek or agree to any order that would prohibit Indemnitee from enforcing such right to advancement. 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 (1) if such indemnification or payment would constitute a "prohibited indemnification payment" under the FDIC Regulations or any other applicable laws, rules or regulations, (2) for an accounting of profits arising from the purchase and sale by the Indemnitee of securities under Section 16(b) of the Securities Exchange Act of 1934, as amended or (3) for violations of Federal or state insider trading laws, unless, in each such case, Indemnitee has been successful on the merits, received the Company's written consent prior to incurring an Expense or, after receiving the Company’s written consent to incurring the cost of settlement, settled the Proceeding. This Section 4 shall not limit the
Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
Section 5. Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been 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 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 that is
more favorable to Indemnitee) 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 (1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote
of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent
legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses
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incurred in connection with such determination. 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. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court
in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.
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 that Indemnitee is not entitled to coverage under the Company’s directors and officers liability insurance policy, then in respect of any such actual or threatened Proceeding in which the Company or an Affiliated Entity is jointly liable with Indemnitee (or would be if joined in such Proceeding), as determined
(a) if no Change of Control has occurred,
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, or
(b) if a Change of Control has occurred, by independent legal counsel in a written opinion to the Company and Indemnitee (such independent legal counsel to be selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld or delayed)),
the Company shall contribute to the amount of loss, liability or Expenses incurred by Indemnitee in such proportion as appropriate to reflect (i) the relative benefits received by the Company and any Affiliated Entity on the one hand and Indemnitee on the other hand from the transaction from which such Proceeding arose and (ii) the relative fault of the Company, any Affiliated Entity or Unaffiliated Entity, including other persons indemnified by the Company on the one hand, and Indemnitee on the other hand in
connection with the events which resulted in such Proceeding, as well as any other relevant equitable considerations. The relative fault of the Company, any Affiliated Entity or Unaffiliated Entity, including other persons indemnified by the Company, on the one hand, and of Indemnitee on the other hand shall be determined by reference to, among other things, the parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Proceeding. The Company acknowledges that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or any other method of allocation which does not take into account
the foregoing equitable considerations.
Section 7. Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the
Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee's participation in the defense of such Proceeding, unless (i) otherwise notified by the Company, (ii) Indemnitee's counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company
or any Affiliated Entity and
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Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the
Company by its stockholders or as to which Indemnitee's counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7.
Section 8. Settlement. The Company will not, without the prior written consent of the Indemnitee, which may be provided or withheld in Indemnitee’s sole discretion, effect any settlement of any Proceeding against Indemnitee unless such settlement solely involves the payment of money by persons other than Indemnitee and includes an unconditional release of Indemnitee from all liability arising from or relating to any matters that are the subject of such Proceeding. The Company shall not be obligated to indemnify Indemnitee against amounts paid
in settlement of a Proceeding against Indemnitee if such settlement is effected by Indemnitee without the Company’s prior written consent, which shall not be unreasonably withheld.
Section 9. Duration of Agreement. This Agreement will be considered to be in effect on the first day of the Indemnitee’s Position or Positions, even if such date occurs prior to the date of this Agreement, and will continue for so long as Indemnitee may be subject to any possible Proceeding by reason of the fact of Indemnitee's Position or Positions, whether or not Indemnitee ceases to hold such Position or Positions.
Section 10. Confidentiality. Except as permitted by applicable laws pertaining to the initiation of communications
to, and cooperation with, the Securities and Exchange Commission, the Financial Industry Regulatory Authority and other governmental or regulatory bodies or officials, or as otherwise becomes public (other than in violation of this Agreement) or as communicated to Indemnitee's counsel or to Indemnitee’s or the Company’s insurer, in seeking indemnification or reimbursement or payment of Expenses hereunder, Indemnitee agrees to keep confidential any information that arises in connection with this Agreement, including but not limited to, claims for indemnification or payment or reimbursement of Expenses, amounts paid or payable under this Agreement and any communications between the Indemnitee and the Company.
Section 11. Applicability
to Other Indemnification Provisions. This Agreement is entered into pursuant to Section 145(f) of the DGCL and to the fullest extent permitted by law shall be in addition to indemnification and reimbursement or payment of Expenses provided by the DGCL. To the fullest extent permitted by law, the Company shall apply this Agreement, which is substantially consistent with the Company's Indemnification Policy as in effect on the date hereof, in considering requests for indemnification or reimbursement or payment of Expenses under its Indemnification Policy, certificate of incorporation, by-laws, or
any other agreement or undertaking of the Company or similar constituent documents of an Affiliated Entity that provides rights to indemnification or reimbursement or payment of Expenses ("Alternate Indemnification Provisions"). For the avoidance of doubt, should there be any differences between the Company’s Indemnification Policy and this Agreement, this Agreement will govern.
Section 12. No Duplication of Payments. The Company shall indemnify and pay or reimburse Expenses of the Indemnitee in accordance with the provisions of this Agreement, provided, however,
that the Company shall not be liable under this Agreement to make any payment to Indemnitee under this Agreement to the extent that Indemnitee (i) is otherwise entitled to receive reimbursement or payment of amounts otherwise payable hereunder from an Unaffiliated Entity (including insurance maintained by an Unaffiliated Entity) as a result of lndemnitee's Position or Positions at or with respect to an Unaffiliated Entity, (ii) receives payment or reimbursement under an insurance policy maintained by the Company or by or out of a fund created by the Company and under the control of a trustee or otherwise, or (iii) receives payment from other sources provided by the
Company. If lndemnitee has a right of recovery from an Unaffiliated Entity (including insurance maintained by the Unaffiliated Entity), Indemnitee shall take all actions reasonably necessary to recover payment (or insurance) from the Unaffiliated Entity before seeking payment from the Company under this Agreement, including initiating a civil, criminal, administrative or investigative action, suit, proceeding or procedure; provided, however, that to the extent recovery
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of such payment requires meeting a prior deductible or other financial
outlay, such payment or financial outlay shall be deemed to be an Expense hereunder.
Section 13. Insurance. To the extent the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with and subject to its or their terms, to the maximum extent of the coverage available for any member of the Board.
Section 14. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee under
any insurance policy or otherwise. Indemnitee shall execute all documents reasonably required and shall do everything reasonably necessary to secure such rights, including the execution of such documents necessary to enable the Company to effectively bring suit to enforce such rights.
Section 15. Notice by Indemnitee. Indemnitee shall promptly notify the Company in writing in accordance with Section 21 of this Agreement upon the earlier of (a) becoming aware of a Proceeding where indemnity or reimbursement or payment of Expenses may be sought or (b) receiving or being served with any summons, citation, subpoena, complaint, indictment, information, inquiry or other document relating to any Proceeding which
may be subject to indemnification or reimbursement or payment of Expenses covered hereunder. As a condition to indemnification or reimbursement or payment of Expenses, any demand for payment by Indemnitee hereunder shall be in writing.
Section 16. Severability. If any provision of this Agreement shall be held to be invalid, inoperative or unenforceable as applied to any particular Proceeding or in any particular jurisdiction, for any reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other distinguishable Proceeding or jurisdiction, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity, inoperability or unenforceability of any one or more phrases, sentences, clauses or sections contained in this Agreement
shall not affect any other remaining part of this Agreement.
Section 17. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, Indemnitee and Indemnitee's heirs, personal representatives, executors and administrators and upon the Company and its successors and assigns.
Section 18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement.
Section 19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
Section 20. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 21. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand, on the date delivered, (ii) mailed by certified or registered mail, with postage prepaid, on the third business day after the date on which
it is mailed or (iii) sent by guaranteed overnight courier service, with postage prepaid, on the business day after the date on which it is sent:
(a)
If to Indemnitee, to the address set forth on the signature page of this Agreement;
The Bank of New York Mellon Corporation 225 Liberty Street New York, NY10286 Attention: General Counsel
with copies to:
The Bank of New York Mellon Corporation 225 Liberty Street New York, NY10286 Attention: Corporate Secretary
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
Section 22. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with, the laws
of the State of Delaware.
Section 23. Venue. Any Proceeding relating to or arising from this Agreement, including without limitation, any Proceeding regarding indemnification or reimbursement or payment of Expenses arising out of this Agreement, shall only be brought and heard in the Chancery Court in and for the State of Delaware, and may not be brought in any other judicial forum.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
