S Corp Indemnification Agreement by bso17301

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									                    RELEASE AND INDEMNIFICATION AGREEMENT

      This RELEASE AND INDEMNIFICATION AGREEMENT is entered into as of ___ by
the The Clearing Corporation, a Delaware corporation (the “Clearing Corporation”) and
________________________, a ____________________(“Clearing Member”).

                                        RECITALS

        WHEREAS, the Board of Trade of the City of Chicago, Inc. (the “CBOT”) has
determined that the clearing and settlement functions currently performed by the Clearing
Corporation in respect of trades executed by Clearing Member on or subject to the rules and
regulations of the CBOT shall be assumed by Chicago Mercantile Exchange, Inc. (the “CME”)
pursuant to a scheduled transition plan beginning in November, 2003 and ending January 2,
2004;

        WHEREAS, in connection with the conduct of its clearing and settlement services in
respect of trades executed by Clearing Member on the CBOT, the Clearing Corporation has
entered into a Services Agreement with Clearing Member and other related agreements
(collectively, the “Clearing Member Agreements”);

        WHEREAS, the Clearing Corporation provides a variety of clearing and settlement
services pursuant to the Clearing Member Agreements and its Bylaws and Rules, in respect of
the trades on or subject to the rules and regulations of the CBOT (“Clearing Services”);

     WHEREAS, the Parties desire to facilitate the assumption of the Clearing Services by the
CME and the CBOT;

        NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and undertakings set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

       1.     Definitions.

        In addition to the terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the following meanings:

               (a)    “CBOT Clearing Business” shall mean all clearing, settlement and
ancillary business conducted by the Clearing Corporation for Clearing Member in respect of
trades made on or subject to the rules and regulations of the CBOT.

                (b)    “Instruction” means any instruction, demand, order, mandate or similar
instrument or issuance, whether oral or written, issued by the Commodity Futures Trading
Commission (the “CFTC”), the CME, the CBOT, or Clearing Member, with the intention to
direct or bind the Clearing Corporation in connection with the Transition.

              (c)     “Parties” means each of the Clearing Corporation and Clearing Member.



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                 (d)    “Proceeding” means any manner of action, complaint, cause of action,
claim, suit, or other proceeding of any kind whatsoever, whether in law or in equity.

               (e)    “Representatives” means, as to a Party, such Party’s governors, directors,
offices, employees, partners, agents and professional advisers.

               (f)     “Transition” means the cessation of Clearing Services by the Clearing
Corporation in respect of futures contracts and/or options on futures contracts executed on or
subject to the rules and regulations of the CBOT and, in connection therewith, the transfer or
liquidation of the same in contemplation of the establishment of equivalent positions on the
books of CBOT or the CME and release/transfer of related original margin/performance bond
collateral pursuant to instructions of Clearing Member and, if applicable, any related back-out
processes and procedures.

       2.      Release and Covenant Not to Sue.

               (a)     Clearing Member does hereby release and forever discharge the Clearing
Corporation and its Representatives from and against all manner of actions, complaints, causes
of action, claims, suits, debts, breaches, sums of money, accounts, reckonings, contracts, torts,
controversies, agreements, promises, damages, executions, claims and demands, whatsoever, in
law or in equity, arising out of, directly or indirectly, any matter, transaction, representation,
event or thing arising out of or in any way related to the Transition, from the first day of time
through and including the Transition, except when there has been a finding of gross negligence,
willful or wanton misconduct on the part of the Clearing Corporation or its Representatives.

        In addition to the foregoing release by Clearing Member, Clearing Member does hereby
further covenant not to sue the Clearing Corporation upon any matter within the stated scope of
said Release; and Clearing Member shall not bring, commence, prosecute, maintain or cause or
permit to be brought, commenced, prosecuted or maintained any suit, claim, action or charge
against the Clearing Corporation upon or related to any cause of action, claim, suit, debt, breach,
sum of money, account, reckoning, or demand whatsoever, arising out of, directly or indirectly,
any matter, transaction, representation, event or thing arising out of or in any way related to the
Transition, from the first day of time through and including the Transition, except in any case
where such action, claim, suit, debt, breach, reckoning, or demand arising out of the gross
negligence, or willful or wanton misconduct of the Clearing Corporation or its Representatives.

       3.      Release/Transfer of Collateral.

        The Clearing Corporation shall not release/transfer any original margin/performance
bond collateral in connection with the Transition unless and until it receives release form
instructions in a form accepted by the Clearing Corporation duly signed by the individual who
has been specifically authorized by Clearing Member to take such actions on behalf of Clearing
Member and whose signature is on file with the Clearing Corporation.




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       4.      Rights of the Clearing Corporation.

       In connection with the Transition, to the extent that there is any inconsistency, between or
among Instructions, as determined by the Clearing Corporation in its reasonable discretion, the
Clearing Corporation shall be entitled to rely on such Instruction or Instructions as it shall
determine in its sole and absolute discretion.

       5.      Clearing Member Agreements.

     The Parties agree that the indemnification and fee payment provisions of the Clearing
Member Agreements will survive the Transition.

       6.      Indemnification.

               (a)             Except when there has been a finding of gross negligence, willful
or wanton misconduct on the part of the Clearing Corporation or its Representatives, Clearing
Member shall, at its sole expense, defend, indemnify and hold harmless the Clearing Corporation
and its Representatives, on an after-tax basis, from and against all actual losses, liabilities,
claims, actual damages, reasonable settlements, judgments, awards, actions, suits and reasonable
costs whatsoever, including reasonable attorneys’ fees and disbursements and the reasonable
costs of enforcing this indemnity (collectively, “Losses”) based upon, arising out of, or relating
to any Proceeding, or threatened Proceeding (including, without limitation, any Proceeding
commenced by any person that has used Clearing Member to clear trades made on or subject to
the rules and regulations of the CBOT), that arises out of, or relates to, the (y) cessation by the
Clearing Corporation of its provision to Clearing Member of Clearing Services with respect to
any trades made on or subject to the rules and regulations of the CBOT on behalf of Clearing
Member or any person or entity for whom or which Clearing Member is or would be liable to the
Clearing Corporation in respect of such trades and cleared or to be cleared in the account of
Clearing Member and are the subject of the Proceeding, or (z) provision to Clearing Member by
the CBOT or the CME (or any entity acting on behalf of any of them) of clearing and settlement
services and services ancillary thereto.

                 (b)    If any Proceeding is commenced against a person entitled to
indemnification under paragraph (a) hereof (the “Indemnified Party”), notice thereof shall be
given to the Party that is obliged to give the indemnification (the “Indemnifying Party”) as soon
as reasonably possible. If, after such notice, the Indemnifying Party acknowledges that this
Agreement applies with respect to such claim, the Indemnifying Party shall be entitled, if it so
elects, in a notice promptly delivered to the Indemnified Party, but in no event less than ten days
prior to the date on which a response to such claim is due, to immediately take control of the
defense and investigation of such claim. The Indemnified Party shall cooperate, at the
Indemnifying Party’s cost, in all reasonable respects with the Indemnifying Party and its
attorneys in the investigation, trial and defense of such claim and any appeal arising therefrom;
provided, however, that the Indemnified Party may, at its own cost and expense, participate,
through its attorneys or otherwise, in such investigation, trial and defense of such claim and any
appeal arising therefrom. The Indemnifying Party shall not be liable for any settlement of any
Proceeding affected without its written consent (which consent shall not be unreasonably
withheld), but if settled with such consent or if there shall be a final judgment for the plaintiff,

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the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened Proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been sought hereunder
by such Indemnified Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability arising from such Proceeding. If, after investigation of the
facts known at the time, the Indemnifying Party disputes its obligation to indemnify the
Indemnified Party: (i) the Indemnifying Party and the Indemnified Party shall cooperate to
ensure that timely and adequate defense of the claim is provided; (ii) all defense costs shall
initially be shared equally; and (iii) the dispute regarding the Indemnifying Party’s obligation to
indemnify shall be resolved in accordance with the provisions of Section 13; provided that, if
such dispute between the Indemnifying Party and the Indemnified Party is finally resolved in
favor of the Indemnifying Party, all such defense costs shall be borne by the Indemnified Party,
and if the matter is finally resolved in favor of the Indemnified Party, all such defense costs shall
be borne by the Indemnifying Party.

                (c)    The indemnification provided by this Section 6 shall not be deemed
exclusive of any other rights to which those seeking indemnification may be entitled under any
constituent document, agreement, or otherwise, and shall inure to the benefit of the successors,
assigns, heirs, executors and administrators of such a person.

       7.      Notices.

        All notices and other communications hereunder shall be in writing (which shall include
facsimile communication but shall exclude electronic mail or other electronic communication)
and be sent or delivered to the other Party at its address set forth under its name on the signature
pages hereof or at such other address as shall be designated by such party in a written notice to
the other party hereto.

       8.      Severability.

        If any portion of this Agreement is held invalid, illegal or unenforceable, the Parties agree
that such invalidity, illegality or unenforceability shall not affect the remaining portions of this
Agreement, and the Parties further agree to substitute for the invalid, illegal or unenforceable
provision, a valid, legal or enforceable provision that most closely approximates the economic
effect and intent of the invalid, illegal or unenforceable provision.
       9.      Assignment.

        This Agreement may not be assigned by either Party without the prior written consent of
the other Party (which consent maybe granted or withheld in such other Party’s sole discretion),
and shall be binding upon each Party and its successors and permitted assigns in accordance with
its terms.




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       10.     Representations and Warranties.

        Each Party represents and warrants that the individual signing this Agreement on its
behalf has the power and authority to enter into this Agreement and that this Agreement
constitutes the valid and binding obligation of such Party.
       11.     Waiver.

       Failure or delay on the part of any Party to exercise any right, power, privilege or remedy
hereunder shall not constitute a waiver thereof. A waiver of any provision shall not operate as a
waiver of any other provision, or of the waived provision on a future occasion.

       12.     Counterparts.

        This Agreement may be executed in any number of counterparts, including by facsimile,
each of which when so executed shall be deemed to be an original and all of which together shall
constitute one and the same instrument.

       13.     Remedies Cumulative.

       All rights, powers and remedies provided under this Agreement or otherwise available in
respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or
beginning of the exercise of any thereof by any Party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such Party.

       14.     APPLICABLE LAW; DISPUTE RESOLUTION.

          (a)  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES THEREOF. WITH RESPECT TO ANY SUIT,
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, EACH PARTY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL
AND STATE COURTS LOCATED IN COUNTY OF COOK AND IN THE CITY OF
CHICAGO AND STATE OF ILLINOIS.

           (b)  EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW HAVE OR
HEREAFTER ACQUIRE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY SUCH CLAIM IT MAY
NOW HAVE OR HEREAFTER ACQUIRE THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN ANY
INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY ACCEPTS AND
SUBMITS ITSELF TO THE JURISDICTION OF THE AFORESAID COURTS IN ANY
SUCH SUIT, ACTION OR PROCEEDING AND AGREES THAT FINAL JUDGMENT IN
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT SHALL
BE CONCLUSIVE AND BINDING UPON SUCH PARTY AND MAY BE ENFORCED IN

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ANY COMPETENT COURT BY A SUIT UPON JUDGMENT. EACH PARTY HEREBY
IRREVOCABLY WAIVES FOR THE BENEFIT OF THE OTHER PARTY ANY RIGHT OF
IMMUNITY SUCH PARTY NOW HAS OR MAY HEREAFTER ACQUIRE FROM
SERVICE OF PROCESS OR THE JURISDICTION OF ANY COURT REFERRED TO
ABOVE IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO SUCH PARTY’S OBLIGATIONS UNDER THIS AGREEMENT, OR
FROM EXECUTION OF JUDGMENT RESULTING THEREFROM.

          (c)  EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS AGREEMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT A JURY.

              15.            Further Assurances.

       The Parties agree to do such further acts and things and to execute and deliver such
additional agreements and instruments as may be reasonably necessary to give effect to the
purposes of this Agreement and the Parties agreements herein.

        IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first written above.

                                                                  THE CLEARING CORPORATION
Address:                                                          By:
141 W. Jackson Blvd., Ste. 1460                                   Name:
Chicago, Illinois 60604                                           Title:




                                                                           (Name of Clearing Member)
Address:                                                          By:
                                                                  Name:
                                                                  Title:

ATTYS/Kevin/CBOT/Clearing Member Release – FIA Comments 100903




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