INDEMNIFICATION AGREEMENT
EXHIBIT
10.18
This
Agreement, made and entered into as of this 7th
day of
January, 2008 (“Agreement”), among and between Maiden Holdings, Ltd., a Bermuda
company (the “Company”), and the individual listed on the signature page hereof
(the “Indemnitee”);
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify such persons to the fullest extent permitted by
applicable law so that he will serve or continue to serve the Company free
from
undue concern that he will not be so indemnified; and
WHEREAS,
Indemnitee is willing to serve, for or on behalf of the Company, on the
condition that he be so indemnified;
NOW
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
SECTION
1. Service
by Indemnitee.
Indemnitee agrees to continue to serve as a director and/or officer of the
Company. Indemnitee may at any time and for any reason resign from such position
(subject to any other contractual obligation or any obligation imposed by
operation of law).
SECTION
2. Indemnification
- General.
The
Company shall indemnify, and advance Expenses (as hereinafter defined) to
Indemnitee as provided by applicable law in effect on the date hereof and to
such greater extent as applicable law may thereafter from time to time permit.
The rights of Indemnitee provided under the preceding sentence shall include,
but shall not be limited to, the rights set forth in the other Sections of
this
Agreement.
The
indemnification provided under this Agreement is in addition to and not in
lieu
of any other indemnification provided to Indemnitee by any other agreement
or by
operation of law.
SECTION
3. Proceedings
Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 3 if, by reason of his Corporate Status (as hereinafter defined), he
is,
or is threatened to be made, a party to any threatened, pending, or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right
of the Company. Pursuant to this Section 3, Indemnitee shall be indemnified
against Expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with
such
Proceeding or any claim, issue or matter therein, if he acted in good faith
and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful.
SECTION
4. Proceedings
by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he is, or is threatened to
be
made, party to any threatened, pending or completed Proceeding brought by or
in
the right of the Company to procure a judgment in its favor. Pursuant to this
Section, Indemnitee shall be indemnified against Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not
opposed to the best interests of the Company. Notwithstanding the foregoing,
no
indemnification against such expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Company
in
such event if and only to the extent that the Court in which such Proceeding
shall have been brought or is pending, shall determine.
SECTION
5. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his 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 actually and reasonably incurred by him or
on
his behalf in connection with each successfully resolved claim, issue or matter.
For the purposes of this Section and without limitation, the termination of
any
claim, issue or matter in such a Proceeding by settlement or dismissal, with
or
without prejudice, shall be deemed to be a successful result as to such claim,
issue or matter.
SECTION
6. Indemnification
for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding,
he shall be indemnified against all Expenses actually and reasonably incurred
by
him or on his behalf in connection therewith.
SECTION
7. Advancement
of Expenses.
The
Company shall advance all reasonable Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding within twenty (20) days after
the
receipt by the Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or be preceded
or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses.
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SECTION
8. Procedure
for Determination of Entitlement to Indemnification.
(a) To
obtain
indemnification under this Agreement, Indemnitee shall submit to the Secretary
of the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and
is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors
in
writing that Indemnitee has requested indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 8(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto shall be made in the specific case:
(i) if a Change in Control (as hereinafter defined) shall have occurred, by
Independent Counsel (as hereinafter defined) unless Indemnitee shall request
that such determination be made by the Board of Directors or the stockholders,
in which case by the person or persons or in the manner provided for in clauses
(ii) or (iii) of this Section 8(b) in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; (ii) if a Change
of
Control shall not have occurred, (A) by the Board of Directors by a majority
vote of a quorum consisting of Disinterested Directors (as hereinafter defined),
or (B) if a quorum of the Board of Directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, such quorum of Disinterested
Directors so directs, by Independent Counsel in a written opinion to the Board
of Directors, a copy of which shall be delivered to Indemnitee or (C) by the
stockholders of the Company; or (iii) as provided in Section 9(b) of this
Agreement; and, if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten (10) days after
such determination.
Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or expenses (including attorney’s
fees and disbursements) incurred by Indemnitee in so cooperating with the
person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
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(c) In
the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8(b) hereof, the Independent Counsel
shall be selected as provided in this Section 8(c). If a Change of Control
shall
not have occurred, the Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to the Indemnitee advising
him of the identity of the Independent Counsel so selected. If a Change of
Control shall have occurred, the Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by
the
Board of Directors, in which event the preceding sentence shall apply), and
Indemnitee shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either event, Indemnitee or the
Company, as the case may be, may within seven (7) days after such written notice
of selection shall have been given, deliver to the Company or the Indemnitee,
as
the case may be, a written objection to such selection. Such objection may
be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of “Independent Counsel” as defined in Section 17 of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is made, the Independent
Counsel so selected may not serve as Independent Counsel unless and until a
court has determined that such objection is without merit. If, within twenty
(20) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 8(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may
petition the Supreme Court of the State of New York in New York County or other
court of competent jurisdiction for resolution of any objection which shall
have
been made by the Company or Indemnitee to the other’s selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the Court or by such other person as the court shall designate, and the
person with respect to whom an objection is so resolved or the person so
appointed shall act as Independent Counsel under Section 8(b) hereof. The
Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant
to Section 8(b) hereof, and the Company shall pay all reasonable fees and
expenses incident to the procedures of this Section 8(c), regardless of the
manner in which such Independent Counsel was selected or appointed. Upon the
due
commencement of any judicial proceeding or arbitration pursuant to Section
19(a)(iii) of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
SECTION
9. Presumptions
and Effect of Certain Proceedings.
(a) If
a
Change of Control shall have occurred, in making a determination 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 has submitted a request for indemnification
in accordance with Section 8(a) of this Agreement, and the Company shall have
the burden of proof to overcome that presumption in connection with the making
by any person or entity or any determination contrary to that presumption.
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(b) If
the
person or entity empowered or selected under Section 8 of this Agreement to
determine whether Indemnitee is entitled to indemnification shall not have
made
a determination within sixty (60) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) misstatement by Indemnitee of a material fact,
or an
omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification,
or
(ii) a prohibition of such indemnification under applicable law; provided,
however, that such sixty (60) day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the person or entity making
the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto; and provided further, that the foregoing
provisions or this Section 9(b) shall not apply (i) if the determination of
entitlement to indemnification is to be made by the stockholders pursuant to
Section 8(b) of this Agreement and (A) within fifteen (15) days after receipt
by
the Company of the request for such determination the Board of Directors has
resolved to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy (70) days
after such receipt and such determination is made thereat, or (B) a special
meeting of stockholders (i) is called within fifteen (15) days after such
receipt for the purposes of making such determination, such meeting is held
for
such purpose within sixty (60) days after having been so called and such
determination is made thereat, or (ii) if the determination of entitlement
to
indemnification is to made by the Independent Counsel pursuant to Section 8(b)
of this Agreement.
(c) The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendre
or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely effect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any Criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
SECTION
10. Remedies
of Indemnitee
(a) In
the
event that (i) a determination is made pursuant to Section 8 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 7 of this
Agreement, (iii) the determination of entitlement of indemnification is to
be
made by Independent Counsel pursuant to Section 8(b) of this Agreement and
such
determination shall not have been made and delivered in a written opinion within
ninety (90) days after receipt by the Company of the request for
indemnification, or (iv) payment of indemnification is not made pursuant to
Section 6 of this Agreement within ten (10) days after receipt by the Company
of
a written request therefore, or (v) payment of indemnification is not made
within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification or such determination is deemed to have been made
pursuant to Section 8 or 9 of this Agreement, Indemnitee shall be entitled
to an
adjudication in an appropriate court of the State of New York, or in any other
court of competent jurisdiction, of his entitlement to such indemnification
or
advancement of Expenses. Alternatively, Indemnitee, at his option, may seek
an
award in arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association. Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within 180 days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 10(a). The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration.
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(b)
In
the
event that a determination shall have been made pursuant to Section 8 of this
Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration, commenced pursuant to this Section 10 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits
and
Indemnitee shall not be prejudiced by reason of that adverse determination.
If a
Change of Control shall have occurred, in any judicial proceeding or arbitration
commenced pursuant to this Section 10 the Company shall have the burden of
proving that Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.
(c) If
a
determination shall have been made or deemed to have been made pursuant to
Section 8 or 9 of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding
or
arbitration commenced pursuant to this Section 10, absent (i) a misstatement
by
Indemnitee of a material fact, or an omission of a material fact necessary
to
make Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under
applicable law.
(d) The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 10 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before such arbitrator that the Company is bound
by all the provisions of this Agreement.
(e) In
the
event that Indemnitee, pursuant to this Section 10, seeks a judicial
adjudication of or an award in arbitration to enforce his rights under, or
to
recover damages for breach of, this Agreement, Indemnitee shall be entitled
to
recover from the Company, and shall be indemnified by the Company against,
any
and all expense (of the types described in the definition of Expense in Section
17 of this Agreement) actually and reasonably incurred by him, but only if
he
prevails therein. If it shall be determined in said judicial adjudication or
arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall
be
appropriately prorated.
SECTION
11. Non-Exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The
rights of indemnification and to receive advancement of Expenses as provided
by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the certificate
of
Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution
of directors, or otherwise. No amendment, alteration or termination of this
Agreement or any provision hereof shall be effective as to any Indemnitee with
respect to any action taken or omitted by such Indemnitee in his Corporate
Status prior to such amendment, alteration or termination.
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(b) To
the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, agents or fiduciaries
of
the Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person serves at the
request of the Company, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy
or
policies.
(c) In
the
event of any payment under this Agreement, the Company shall be subrogated
to
the extent of such payment to all of the rights of recovery of Indemnitee,
who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
SECTION
12. Duration
of Agreement.
This
Agreement shall continue until and terminate upon the later of: (a) 10 years
after the date that Indemnitee shall have ceased to serve as a director and/or
officer, or (b) the final termination of all pending Proceedings in respect
of
which Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to Section
10
of this Agreement relating thereto. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and his heirs, executors and administrators.
SECTION
13. Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reasons whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including without
limitation, each portion of any Section of this Agreement containing any such
provisions held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
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SECTION
14. Exception
to Right of Indemnification or Advancement of Expenses.
Notwithstanding any other provision of this Agreement, Indemnitee shall not
be
entitled to indemnification or advancement of Expenses under this Agreement
with
respect to any Proceeding, or any claim therein, brought or made by him against
the Company.
SECTION
15. Identical
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. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced to evidence
the
existence of this Agreement.
SECTION
16. Heading.
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
17. Definitions.
For
purposes of this Agreement:
(a)
“Change
in Control” means a change in control of the Company shall be deemed
to
have occurred if after the Effective Date (i) any “person” other than principal
shareholders or an affiliate thereof as of the Effective Date is or becomes
the
“beneficial owner” directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company’s then
outstanding securities; or (ii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, as a consequence
of which
members of the Board of Directors in office immediately prior to such a
transaction or event constitute less than a majority of the Board of Directors
thereafter.
Company
in this Section 17(a) shall mean AmTrust Financial Services, Inc. and any
related or affiliated company in which the Indemnitee is an officer, director
or
employee.
(b)
“Corporate
Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the
Company.
(c)
“Disinterested
Director” means a director of the Company who is not and was not
a
party to the Proceeding in respect of which indemnification is sought by
Indemnitee.
(d)
“Effective
Date” means January 7, 2008.
(e)
“Expenses” shall include all reasonable attorney’s fees, retainers, court
costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in a
Proceeding.
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(f)
“Independent
Counsel” means a law firm, or member of a law firm, which is experienced
in matters of corporation law and neither currently is, nor in the past
five
years has been retained to represent: (i) the Company in any material matter,
or
(ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the forgoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest
in
representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
(g)
“Proceeding”
includes any action, suit, arbitration, alternate dispute resolution
mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, except one initiated by an Indemnitee
pursuant to Section 10 of this Agreement to enforce his rights under this
Agreement.
SECTION
18. 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
19. Notice
by Indemnitee.
Indemnitee agrees as promptly as practicable to notify the Company in writing
upon being served with any summons, citation , subpoena, complaint, indictment,
information or other document relating to any Proceeding or matter which may
be
subject to indemnification or advancement of Expenses covered
hereunder.
SECTION
20. 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
and
receipt for by the party to whom said notice or other communication shall have
been directed, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so
mailed:
(a)
If
to the
Indemnitee, to:
The
address of the respective Indemnitee located on the signature page at the
end
of
this Agreement.
(b)
If
the
Company, to:
00
Xxx-xx-Xxxxx Xx, Xxxxx 0000
Xxxxxxxx
XX00, Xxxxxxx
Attn:
General Counsel
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SECTION
21. 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 New York.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day
and year first above written.
| ATTEST | Maiden Holdings, Ltd.. | |||
| By: | By: | |||
|
Secretary
|
President
and CEO
|
|||
| INDEMNITEE | ||||
|
Address:
|
||||
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