INDEMNIFICATION AGREEMENT (“Agreement”) between FEDERAL HOME LOAN MORTGAGE CORPORATION (“Freddie Mac”) and [Name] (“Indemnitee”)
Exhibit 10.54
INDEMNIFICATION AGREEMENT (“Agreement”)
between
FEDERAL HOME LOAN MORTGAGE CORPORATION (“Xxxxxxx Mac”)
and [Name] (“Indemnitee”)
WHEREAS, the inability to attract and retain qualified persons as directors and officers is
detrimental to the best interests of Xxxxxxx Mac’s stockholders and Xxxxxxx Mac should act to
assure such persons that there will be adequate certainty of protection through insurance and
indemnification against risks of claims and actions against them arising out of their service to
and activities on behalf of Xxxxxxx Mac; and
WHEREAS, Xxxxxxx Mac has adopted provisions in its Bylaws providing for indemnification of its
officers and directors against all liabilities reasonably incurred in connection with proceedings
in which they are involved as a result of their service to Xxxxxxx Mac, except such liabilities as
are incurred because of the indemnitee’s willful misconduct, knowing violation of criminal law or
receipt of an improper personal benefit, and Xxxxxxx Mac wishes to clarify and enhance the rights
and obligations of Xxxxxxx Mac and Indemnitee with respect to indemnification; and
WHEREAS, Xxxxxxx Mac has elected to follow the corporate governance practices and procedures
of the law of the Commonwealth of Virginia, including without limitation the Virginia Stock
Corporation Act, as the same may be amended from time to time; and
WHEREAS, in order to induce and encourage highly experienced and capable persons such as
Indemnitee to serve and continue to serve as directors and officers of Xxxxxxx Mac and in any other
capacity with respect to Xxxxxxx Mac, and to otherwise promote the desirable end that such persons
will resist what they consider unjustified lawsuits and claims made against them in connection with
the performance of their duties to Xxxxxxx Mac, with the knowledge that certain costs, judgments,
penalties, fines, liabilities and expenses incurred by them in their defense of such litigation are
to be borne by Xxxxxxx Mac and they will receive the maximum protection against such risks and
liabilities as may be afforded under Xxxxxxx Mac’s bylaws and applicable law; and
WHEREAS, Xxxxxxx Mac desires to have Indemnitee serve or continue to serve as a director or
officer of Xxxxxxx Mac and in such other capacity with respect to Xxxxxxx Mac as Xxxxxxx Mac may
request, as the case may be, free from undue concern for unpredictable, inappropriate or
unreasonable legal risks and personal liabilities by reason of Indemnitee acting in accordance with
the standards of Xxxxxxx Mac’s bylaws in the performance of Indemnitee’s duties at Xxxxxxx Mac; and
Indemnitee desires so to serve or to continue so to serve Xxxxxxx Mac, provided, and on the express
condition, that he is furnished with the indemnity set forth hereinafter;
WHEREAS, the Federal Housing Finance Agency (“FHFA”) was appointed conservator of Xxxxxxx Mac
on September 6, 2008;
Now, therefore, in consideration of Indemnitee’s service or continued service as a director or
officer of Xxxxxxx Mac, the parties hereto agree as follows:
1. Service by Indemnitee. Indemnitee will serve or continue to serve as a director or
officer of Xxxxxxx Mac in good faith so long as Indemnitee is duly elected or appointed and until
such time as Indemnitee is removed as permitted by law or tenders a resignation in writing.
2. Indemnification. Xxxxxxx Mac shall indemnify Indemnitee to the fullest extent
permitted by Xxxxxxx Mac’s Bylaws and Virginia law in effect on the date hereof or as the Bylaws or
such law may from time to time be amended (but, in the case of any such amendment, only to the
extent that such amendment permits Xxxxxxx Mac to provide broader indemnification rights than the
Bylaws or said law permitted Xxxxxxx Mac to provide prior to such amendment). Without diminishing
the scope of the indemnification provided by this Section, the rights of indemnification of
Indemnitee provided hereunder shall include but shall not be limited to those rights hereinafter
set forth, except that no indemnification shall be paid to Indemnitee:
(a) to the extent expressly prohibited by Virginia law;
(b) for which payment is actually made to Indemnitee or for Indemnitee’s benefit under a
valid and collectible insurance policy or under a valid and enforceable indemnity clause,
bylaw or agreement of Xxxxxxx Mac or any other entity that Indemnitee serves at the request
of Xxxxxxx Mac, except in respect of any indemnity exceeding the payment under such
insurance, clause, bylaw or agreement;
(c) in connection with a Proceeding (or part thereof) initiated by Indemnitee unless such
Proceeding (or part thereof) was authorized by the Board of Directors.
3. Action or Proceedings Other than an Action by or in the Right of Xxxxxxx Mac.
Except as limited by Section 2 above, Indemnitee shall be entitled to the indemnification rights
provided in this Section if Indemnitee is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the name of Xxxxxxx Mac) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of Xxxxxxx Mac, or is or was serving at
the request of Xxxxxxx Mac as a director, officer, manager, partner, trustee, fiduciary, employee
or agent of another corporation, limited liability company, partnership, joint venture, trust or
other entity, including service with respect to an employee benefit plan. Pursuant to this
Section, Indemnitee shall be indemnified against all Liabilities and Expenses actually and
reasonably incurred by Indemnitee in connection with such Proceeding, except such Liabilities and
Expenses as are incurred because of Indemnitee’s willful misconduct or knowing violation of the
criminal law; provided, however, that Xxxxxxx Mac may not indemnify Indemnitee in connection with
any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in
his official capacity, to the extent Indemnitee was adjudged liable on the basis that personal
benefit was improperly received by Indemnitee.
4. Indemnity in Proceedings by or in the Name of Xxxxxxx Mac. Except as limited by
Section 2 above, Indemnitee shall be entitled to the indemnification rights provided in this
Section if Indemnitee was or is a party or is threatened to be made a party to any Proceeding
brought by or in the name of Xxxxxxx Mac to procure a judgment in its favor by reason of the fact
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that Indemnitee is or was a director, officer, employee or agent of Xxxxxxx Mac. Pursuant to
this Section, Indemnitee shall be indemnified against all Liabilities and Expenses actually and
reasonably incurred by Indemnitee in connection with such Proceeding, except such Liabilities and
Expenses as are incurred because of Indemnitee’s willful misconduct or knowing violation of the
criminal law; provided, however, that Xxxxxxx Mac may not indemnify Indemnitee in connection with
any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in
his official capacity, to the extent Indemnitee was adjudged liable on the basis that personal
benefit was improperly received by Indemnitee.
5. Indemnification for Costs, Charges and Expenses of Successful Party.
Notwithstanding the limitations of Sections 3 and 4 above, Xxxxxxx Mac shall indemnify Indemnitee
who entirely prevails, on the merits or otherwise, in the defense of any Proceeding to which
Indemnitee was a party because he is or was director, officer, employee or agent of Xxxxxxx Mac or
was serving at the request of Xxxxxxx Mac as a director, officer, manager, partner, trustee,
fiduciary, employee or agent of another corporation, limited liability company, partnership, joint
venture, trust or other entity, including service with respect to an employee benefit plan, against
Expenses incurred by Indemnitee in connection with the Proceeding.
6. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by Xxxxxxx Mac for some or a portion of the Liabilities or Expenses
actually and reasonably incurred in connection with any action, suit or proceeding (including an
action, suit or proceeding brought by or on behalf of Xxxxxxx Mac), but not, however, for all of
the total amount thereof, Xxxxxxx Mac shall nevertheless indemnify Indemnitee for the portion of
such Liabilities and Expenses actually and reasonably incurred to which Indemnitee is entitled.
7. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the maximum extent permitted by applicable law, Indemnitee shall be entitled to
indemnification against all Expenses actually and reasonably incurred or suffered by Indemnitee or
on Indemnitee’s behalf if Indemnitee appears as a witness or otherwise incurs legal expenses as a
result of or related to Indemnitee’s service as a director, officer, employee or agent of Xxxxxxx
Mac, in any threatened, pending or completed Proceeding to which Indemnitee neither is, nor is
threatened to be made, a party; provided, however, that no such indemnification will be provided
with respect to Expenses incurred in obtaining legal advice regarding Indemnitee’s willful
misconduct, knowing violation of the criminal law or receipt of improper personal benefits.
8. Determination of Entitlement to Indemnification. Upon written request by
Indemnitee for indemnification pursuant to Sections 3, 4, 5, 6 or 7, the entitlement of Indemnitee
to indemnification, to the extent not provided pursuant to the terms of this Agreement, shall be
determined by the following person or persons who shall be empowered to make such determination:
(i) by the Board of Directors by a majority vote of a quorum consisting of directors not at the
time parties to the proceeding; (ii) by a majority vote of a committee duly designated by the Board
of Directors (in which designation directors who are parties may participate), consisting solely of
two or more directors not at the time parties to the proceeding; (iii) by Special Legal Counsel (as
defined below) (1) selected by the Board of Directors or its committee in a manner prescribed in
subsection (i) or (ii) hereof, or (2) if a quorum of the Board
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of Directors cannot be obtained under subsection (i) hereof and a committee cannot be
designated under subsection (ii) hereof, selected by a majority vote of the full Board of
Directors (in which selection directors who are parties may participate); or (iv) by the
stockholders, provided, however, that shares owned by or voted under the control of directors who
are at the time parties to the proceeding may not be voted on the determination. Upon failure of
the Board of Directors or committee designated by the Board of Directors, as applicable, so to
select such Special Legal Counsel, or upon failure of Indemnitee so to approve, such Special Legal
Counsel shall be selected upon application to a court of competent jurisdiction. Authorization of
indemnification and evaluation as to reasonableness of Expenses shall be made in the same manner as
the determination that indemnification is permissible, as provided in this Section 8, provided
however, that, if the determination is made by Special Legal Counsel, authorization of
indemnification and evaluation as to the reasonableness of Expenses shall be made by those entitled
under subsection (iii) hereof to select such Special Legal Counsel.
Such determination of entitlement to indemnification shall be made not later than 90 calendar
days after receipt by Xxxxxxx Mac of a written request for indemnification. Such request shall
include documentation or information which is necessary for such determination and which is
reasonably available to Indemnitee. Any Expenses incurred by Indemnitee in connection with a
request for indemnification or payment of Expenses hereunder, under any other agreement, any
provision of Xxxxxxx Mac’s Bylaws or any directors’ and officers’ liability insurance, shall be
borne by Xxxxxxx Mac. Xxxxxxx Mac hereby indemnifies Indemnitee for any such Expense and agrees to
hold Indemnitee harmless therefrom irrespective of the outcome of the determination of Indemnitee’s
entitlement to indemnification. If the person making such determination shall determine that
Indemnitee is entitled to indemnification as to part (but not all) of the application for
indemnification, such person shall reasonably prorate such partial indemnification among the
claims, issues or matters at issue at the time of the determination.
9. Presumptions and Effect of Certain Proceedings. The Corporate Secretary of Xxxxxxx
Mac shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the
Board of Directors or such other person or persons empowered to make the determination as provided
in Section 8 that Indemnitee has made such request for indemnification. The Corporate Secretary of
Xxxxxxx Mac shall also promptly notify the Conservator that such a request has been made. Upon
making such request for indemnification, Indemnitee shall be presumed to be entitled to
indemnification hereunder and Xxxxxxx Mac shall have the burden of proof in making any
determination contrary to such presumption. The termination of any Proceeding described in
Sections 3 or 4 by judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself be determinative that the Indemnitee did not meet the relevant
standard of conduct.
10. Remedies of Indemnitee in Cases where Claim is not Paid in Full in a Timely
Manner. If a claim under this Agreement is not paid in full by Xxxxxxx Mac within 90 days
after a written claim has been received by Xxxxxxx Mac, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be 20 days, Indemnitee may at
any time thereafter apply to either the United States District Court for the district within which
Xxxxxxx Mac’s principal office is located or to the court where the Proceeding is pending, if any,
for an order directing Xxxxxxx Mac to make an advancement of expenses or to provide
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indemnification. The court shall order Xxxxxxx Mac to make an advancement of expenses or to
provide indemnification, as the case may be, if it determines that Indemnitee is entitled under
this Agreement to such an advancement of expenses or indemnification, and in such event shall order
Xxxxxxx Mac to pay Indemnitee’s reasonable expenses (including attorneys’ fees) to obtain the
order. Neither the failure of Xxxxxxx Mac (including its Board of Directors, committee, Special
Legal Counsel or its stockholders) to have made a determination, as provided in Section 8, prior to
the commencement of such action permitted by this Section, that Indemnitee is entitled to receive
an advancement of expenses or indemnification, nor the determination by Xxxxxxx Mac (including its
Board of Directors, committee, Special Legal Counsel or its stockholders) that Indemnitee is not
entitled to an advancement of expenses or indemnification, shall create a presumption to that
effect or otherwise itself be a defense to Indemnitee’s application for an advancement of expenses
or indemnification.
11. Remedies of Indemnitee in Cases of Determination not to Indemnify or to Pay
Expenses. In the event that a determination is made that Indemnitee is not entitled to
indemnification hereunder or if payment has not been timely made following a determination of
entitlement to indemnification pursuant to Sections 8 and 9, or if Expenses are not paid pursuant
to Section 17, Indemnitee shall be entitled to final adjudication in a court of competent
jurisdiction of entitlement to such indemnification or payment from Xxxxxxx Mac. Alternatively,
Indemnitee at Indemnitee’s option may seek an award in an arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association, such award to be made
within 60 days following the filing of the demand for arbitration. Xxxxxxx Mac shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration or any other claim. The
determination in any such judicial proceeding or arbitration shall be made de novo and Indemnitee
shall not be prejudiced by reason of a determination (if so made) pursuant to Sections 8 or 9 that
Indemnitee is not entitled to indemnification. If a determination is made or deemed to have been
made pursuant to the terms of Section 8 or 9 that Indemnitee is entitled to indemnification,
Xxxxxxx Mac shall be bound by such determination and is precluded from asserting that such
determination has not been made or that the procedure by which such determination was made is not
valid, binding and enforceable. Xxxxxxx Mac further agrees to stipulate in any such court or
before any such arbitrator that Xxxxxxx Mac is bound by all the provisions of this Agreement and is
precluded from making any assertions to the contrary. If the court or arbitrator shall determine
that Indemnitee is entitled to any indemnification or payment of Expenses hereunder, Xxxxxxx Mac
shall pay all Expenses actually and reasonably incurred by Indemnitee in connection with such
adjudication or award in arbitration (including, but not limited to, any appellate Proceedings).
12. Other Rights to Indemnification. The rights to indemnification and to the
advancement of expenses conferred in this Agreement shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute (including Xxxxxxx Mac’s enabling
legislation), or any agreement, vote of stockholders or disinterested directors or otherwise.
13. Expenses to Enforce Agreement. In the event that Indemnitee is subject to or
intervenes in any Proceeding in which the validity or enforceability of this Agreement is at issue
or seeks an adjudication or award in arbitration to enforce Indemnitee’s rights under, or to
recover damages for breach of, this Agreement, Indemnitee, if Indemnitee prevails in whole or in
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part in such action, shall be entitled to recover from Xxxxxxx Mac and shall be indemnified by
Xxxxxxx Mac against any actual Expenses incurred by Indemnitee.
14. Effective Date and Continuation of Indemnity. This Agreement shall be
[retroactive to and] effective as of [date]. All agreements and obligations of Xxxxxxx Mac
contained herein (“Xxxxxxx Mac’s Obligations”) shall commence on such effective date and continue
during the period Indemnitee is an officer or employee of Xxxxxxx Mac who reports directly to the
Chief Executive Officer of Xxxxxxx Mac (a “CEO Direct Report”). Xxxxxxx Mac’s Obligations shall
terminate as of the date, if any, as of which Indemnitee is no longer a CEO Direct Report (the
“Termination Date”) with respect to any possible claims relating entirely to any period beginning
on or after the Termination Date; provided, however, that Xxxxxxx Mac’s Obligations shall continue
after the Termination Date with respect to any possible claims that are based in whole or in part
on the fact that prior to the Termination Date, Indemnitee was a director, officer, employee or
agent of Xxxxxxx Mac or was serving at the request of Xxxxxxx Mac as a director, officer, manager,
partner, trustee, fiduciary, employee or agent of another corporation, limited liability company,
partnership, joint venture, trust or other entity, including service with respect to an employee
benefit plan. This Agreement shall be binding upon all successors and assigns of Xxxxxxx Mac
(including any transferee of all or substantially all of its assets and any successor by merger or
operation of law) and shall inure to the benefit of the heirs, personal representatives and estate
of Indemnitee. The termination of Xxxxxxx Mac’s Obligations at the Termination Date
notwithstanding, Indemnitee shall continue to have such indemnification, advancement and related
rights as may be provided to Indemnitee at that time or thereafter under Xxxxxxx Mac’s Bylaws,
Virginia law, Xxxxxxx Mac’s enabling legislation, any other agreement, vote of stockholders or
disinterested directors or otherwise.
15. Notification and Defense of Claim. Promptly after receipt by Indemnitee of notice
of any Proceeding, Indemnitee will, if a claim in respect thereof is to be made against Xxxxxxx Mac
under this Agreement, notify the Corporate Secretary of Xxxxxxx Mac in writing of the commencement
thereof; but the omission so to notify Xxxxxxx Mac will not relieve it from any liability that it
may have to Indemnitee. Notwithstanding any other provision of this Agreement, with respect to any
such Proceeding of which Indemnitee notifies Xxxxxxx Mac:
(a) Xxxxxxx Mac shall be entitled to participate therein at its own expense; and
(b) Except as otherwise provided in this Section 15(b), to the extent that it may wish,
Xxxxxxx Mac, jointly with any other indemnifying party similarly notified, shall be entitled
to assume the defense thereof, with counsel satisfactory to Indemnitee. After notice from
Xxxxxxx Mac to Indemnitee of its election so to assume the defense thereof, Xxxxxxx Mac
shall not be liable to Indemnitee under this Agreement for any expenses of counsel
subsequently incurred by Indemnitee in connection with the defense thereof except as
otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own
counsel in such Proceeding, but the fees and expenses of such counsel incurred after notice
from Xxxxxxx Mac of its assumption of the defense thereof shall be at the expense of
Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by Xxxxxxx
Mac, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of
interest between Xxxxxxx Mac and Indemnitee in the conduct of the defense of such action or
(iii) Xxxxxxx Mac shall not within 60 calendar days of receipt of
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notice from Indemnitee in fact have employed counsel to assume the defense of the action, in
each of which cases the fees and expenses of Indemnitee’s counsel shall be at the expense of
Xxxxxxx Mac. Xxxxxxx Mac shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of Xxxxxxx Mac or as to which Indemnitee shall have made the
conclusion provided for in (ii) above; and
(c) If Xxxxxxx Mac has assumed the defense of a Proceeding, Xxxxxxx Mac shall not be liable
to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any
Proceeding effected without Xxxxxxx Mac’s written consent. Xxxxxxx Mac shall not settle any
Proceeding in any manner that would impose any penalty or limitation on or disclosure
obligation with respect to Indemnitee without Indemnitee’s written consent. Neither Xxxxxxx
Mac nor Indemnitee will unreasonably withhold its consent to any proposed settlement.
16. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c)
five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier,
specifying next-day delivery, with written verification of receipt. All communications shall be
sent:
(a) To Indemnitee at:
[Name]
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
(b) To Xxxxxxx Mac at:
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: 000-000-0000
Fax: 000-000-0000
or to such other address as may have been furnished by a party hereto to the other party hereto, by like notice
17. Advancement of Expenses. Indemnitee shall have the right to have the Expenses
reasonably incurred or suffered in defending any Proceeding in advance of its final disposition or
in the circumstances described in Section 7 paid by Xxxxxxx Mac (hereinafter, an “advancement of
expenses”); provided, however, that an advancement of expenses shall be made (i) only upon delivery
to Xxxxxxx Mac of a written statement by Indemnitee of Indemnitee’s good faith belief
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that he has met the standard of conduct set forth in the applicable Section of this Agreement,
and (ii) only if Indemnitee furnishes to Xxxxxxx Mac a written undertaking, executed by or on
behalf of Indemnitee, to repay any funds advanced if Indemnitee is not entitled to mandatory
indemnification under Section 5 and it is ultimately determined that Indemnitee did not meet the
standard of conduct set forth in the applicable Section of this Agreement. The undertaking
required above shall be an unlimited general obligation of Indemnitee but need not be secured and
shall be accepted without reference to the financial ability of Indemnitee to make repayment.
18. Severability; Prior Indemnification Agreements. If any provision or provisions of
this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including
without limitation, all portions of any paragraphs of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that are not by themselves 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, all portions of any
paragraph of this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent of the parties that Xxxxxxx Mac provide protection to Indemnitee to
the fullest enforceable extent. This Agreement shall supersede and replace any prior
indemnification agreements entered into by and between Xxxxxxx Mac and Indemnitee and any such
prior agreements shall be terminated upon execution of this Agreement.
19. Headings; References; Pronouns. The headings of the sections 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 References herein to section numbers are to sections of this
Agreement. All pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as appropriate.
20. Definitions. For purposes of this Agreement:
(a) “Expenses” includes, without limitation, expenses incurred in connection with the
defense or settlement of any and all investigations, judicial or administrative proceedings
or appeals, attorneys’ fees, witness fees and expenses, fees and expenses of accountants and
other advisors, retainers and disbursements and advances thereon, the premium, security for,
and other costs relating to any bond (including cost bonds, appraisal bonds or their
equivalents), and any expenses of establishing a right to indemnification under Sections 8,
11 and 13 above but shall not include the amount of judgments, fines or penalties actually
levied against Indemnitee and shall include only amounts reasonably and actually incurred by
Indemnitee.
(b) “Liabilities” means the obligation to pay a judgment, settlement, penalty, fine,
including any excise tax assessed with respect to an employee benefit plan, or reasonable
expenses incurred with respect to a Proceeding.
(c) “Special Legal Counsel” means a law firm or a member of a law firm that neither is
presently nor in the past five years has been retained to represent: (i) Xxxxxxx Mac or
Indemnitee in any matter material to either such party, provided, however, that it shall be
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permissible for Special Legal Counsel to have been previously engaged by Xxxxxxx Mac, its
Board of Directors or committee thereof to make determinations with respect to
indemnification or advancement of expenses, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Special Legal 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 Xxxxxxx Mac or Indemnitee in an action to determine Indemnitee’s right to
indemnification under this Agreement.
(d) “Proceeding” includes any threatened, pending or completed investigation (other than
internal investigations of the conduct of Xxxxxxx Mac employees), action, suit or other
proceeding, whether brought in the name of Xxxxxxx Mac or otherwise, against Indemnitee, for
which indemnification is not prohibited under Section 2 above and whether of a civil,
criminal, administrative, arbitrative or investigative and whether formal or informal,
including, but not limited to, actions, suits or proceedings in which Indemnitee may be or
may have been involved as a party or otherwise, by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of Xxxxxxx Mac, or is or was serving, at the
request of Xxxxxxx Mac, as a director, officer, manager, partner, trustee, fiduciary,
employee or agent of another corporation, limited liability company, partnership, joint
venture, trust or other entity, including service with respect to an employee benefit plan,
whether or not Indemnitee is serving in such capacity at the time any Liability or Expense
is incurred for which indemnification or reimbursement can be provided under this Agreement.
21. Other Provisions.
(a) This Agreement shall be interpreted and enforced in accordance with the laws of
Virginia, without regard to its conflict of laws rules.
(b) 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 as evidence of the existence of this Agreement.
(c) This Agreement shall not be deemed an employment contract between Xxxxxxx Mac and
Indemnitee, and Indemnitee specifically acknowledges that Indemnitee may be discharged at
any time for any reason, with or without cause, and with or without severance compensation,
except as may be otherwise provided in a separate written contract between Indemnitee and
Xxxxxxx Mac.
(d) Upon a payment to Indemnitee under this Agreement, Xxxxxxx Mac shall be subrogated to
the extent of such payment to all of the rights of Indemnitee to recover against any person
for such liability, and Indemnitee shall execute all documents and instruments required and
shall take such other actions as may be necessary to secure such rights, including the
execution of such documents as may be necessary for Xxxxxxx Mac to bring suit to enforce
such rights.
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(e) No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both 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. Any
subsequent supplement, modification or amendment of this Agreement shall not diminish
Indemnitee’s rights under this Agreement with respect to any act or omission occurring
before such supplement, modification or amendment.
(f) Nothing in this Agreement shall be construed to permit indemnification expressly
prohibited by 12 U.S.C. 4636.
(g) Notwithstanding any provision to the contrary in this Agreement, indemnification for
actions instituted by FHFA will be governed by the standards set forth in FHFA’s Notice of
Proposed Rulemaking, transmitted to the Federal Register on November 6, 2008, implementing
12 U.S.C. 4518.
(h) Nothing in this Agreement is intended to, or shall be construed to, create in any way
any liability or obligation on the part of the United States or any department or agency
thereof under or in any provision of this Agreement, it being the intention of Xxxxxxx Mac
and Indemnitee that the obligations undertaken by Xxxxxxx Mac hereunder are the sole and
exclusive responsibility of Xxxxxxx Mac.
(i) In the event conservatorship is terminated, this Agreement shall remain in full force
and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date set
forth in Section 14.
| FEDERAL HOME LOAN MORTGAGE CORPORATION | ||||
| By: | ||||
| Xxxxxxx X. Xxxxxxxx, Xx., Chief Executive Officer | ||||
| Date: | ||||
| [Name], Indemnitee | ||||
| Date: | ||||
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EXHIBIT 1
UNDERTAKING TO REPAY INDEMNIFICATION EXPENSES
I, _________________________________, agree to reimburse Federal Home Loan Mortgage Corporation
(“Xxxxxxx Mac”) for all expenses paid to me by Xxxxxxx Mac pursuant to Section 17 of the
Indemnification Agreement effective as of [date] for my defense in any civil or criminal action,
suit, or proceeding, in the event, and to the extent that it shall ultimately be determined that I
am not entitled to retain such amounts. I believe in good faith that I have met the standard
of conduct set forth in the Indemnification Agreement effective as of [date].
Signature ___________________
Typed Name _________________
Office ______________________
DISTRICT OF COLUMBIA) ss:
Before me ______________________, on this day personally appeared ______________________, known to me
to be the person whose name is subscribed to the foregoing instrument, and who, after being duly
sworn, stated that the contents of said instrument is to the best of his knowledge and belief true
and correct and who acknowledged that he executed the same for the purpose and consideration
therein expressed.
GIVEN
under my hand and official seal at Washington, D.C., this ___day of 201___
Notary Public
My commission expires:
12
