FORM OF INDEMNIFICATION AGREEMENT] INDEMNIFICATION AGREEMENT
Exhibit
(k)(3)
[FORM
OF INDEMNIFICATION AGREEMENT]
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”)
is made and entered into this ___ day of __________, 2009, by and between
Xxxxxxx Capital, Inc., a Maryland corporation (the “Company”),
and the undersigned (“Indemnitee”).
WHEREAS, at the request of
the Company, Indemnitee currently serves as an executive officer and/or
director of
the Company and may, therefore, be subjected to claims, suits or proceedings
arising as a result of his service; and
WHEREAS, as an inducement
to Indemnitee to continue to serve as such executive officer and/or director,
the Company has agreed to indemnify and to advance expenses and costs incurred
by Indemnitee in connection with any such claims, suits or proceedings, to the
fullest extent permitted by law, except as otherwise expressly provided for
herein; and
WHEREAS,
the parties by this Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;
NOW,
THEREFORE, in consideration of the premises and the covenants contained
herein, and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the Company
and Indemnitee do hereby covenant and agree as follows:
Section
1. Definitions. For purposes of this Agreement:
(a) “Change
of Control” shall mean the occurrence of any of the following events
after the Effective Date of this Agreement:
(i) the
sale or other disposition of all or substantially all of the Company’s assets;
or
(ii) the
acquisition, whether directly, indirectly, beneficially (within the meaning of
rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934
Act”)) or of record, as a result of a merger, consolidation or otherwise,
of securities of the Company representing fifteen percent (15%) or more of the
aggregate voting power of the Company’s then-outstanding Common Stock by any
“person” (within the meaning of Sections 13(d) and 14(d) of the 1934 Act),
including, but not limited to, any corporation or group of persons acting in
concert, other than (i) the Company or its subsidiaries and/or (ii) any employee
pension benefit plan (within the meaning of Section 3(2) of the Employee
Retirement Income Security Act of 1974) of the Company or its subsidiaries,
including a trust established pursuant to any such plan; or
(iii) the
individuals who were members of the Board of Directors as of the Effective Date
(the “Incumbent
Board”) cease to constitute at least two-thirds (2/3) of the Board; provided,
however, that any director appointed by at least two-thirds (2/3) of the
then Incumbent Board or nominated by at least two-thirds (2/3) of the Corporate
Governance / Nominating Committee of the Board of Directors (a majority of the
members of the Corporate Governance / Nominating Committee shall be members of
the then Incumbent Board or appointees thereof), other than any director
appointed or nominated in connection with, or as a result of, a threatened or
actual proxy or control contest, shall be deemed to constitute a member of the
Incumbent Board.
(b) “Corporate
Status” means the status of a person who is or was a director, trustee,
officer, employee or agent of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise for
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 the date set forth in the first paragraph of this
Agreement.
(e) “Expenses”
shall include all reasonable attorneys’ 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.
(f) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and neither is, nor in the past five years has
been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
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. If a
Change of Control has not occurred, Independent Counsel shall be selected by the
Board of Directors, with the approval of Indemnitee, which approval will not be
unreasonably withheld. If a Change of Control has occurred, Independent Counsel
shall be selected by Indemnitee, with the approval of the Board of Directors,
which approval will not be unreasonably withheld.
(g) “Proceeding”
includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or
any other proceeding, whether civil, criminal, administrative or investigative
(including on appeal), except one (i) initiated by an Indemnitee pursuant to
Section 11 of this Agreement to enforce his rights under this Agreement or (ii)
pending or completed on or before the Effective Date, unless otherwise
specifically agreed in writing by the Company and Indemnitee.
Section
2. Services
by Indemnitee. Indemnitee will serve as an executive officer and/or
director of
the Company. However, this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee’s service to the Company beyond
any period otherwise required by law or by other agreements or commitments of
the parties, if any.
Section
3. Indemnification — General. The Company shall indemnify, and advance
Expenses to, Indemnitee (a) as provided in this Agreement and (b) otherwise to
the fullest extent permitted by Maryland law in effect on the date hereof and as
amended from time to time; provided, however, that no change in Maryland law
shall have the effect of reducing the benefits available to Indemnitee hereunder
based on Maryland law as in effect on the date hereof. The rights of Indemnitee
provided in this Section 3 shall include, without limitation, the rights set
forth in the other sections of this Agreement, including any additional
indemnification permitted by Section 2-418(g) of the Maryland General
Corporation Law (“MGCL”).
Notwithstanding anything to the contrary in this Section 3 or any other section
of this Agreement, for so long as the Company is subject to the Investment
Company Act of 1940 and the regulations promulgated thereunder (the “Investment
Company Act”), the Company shall not indemnify or advance Expenses to
Indemnitee to the extent such indemnification or advance would violate the
Investment Company Act.
Section
4. 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 4 if, by reason of his Corporate Status, he is, or is threatened to be,
made a party to or a witness in any threatened, pending, or completed
Proceeding, other than a Proceeding by or in the right of the Company. Pursuant
to this Section 4, Indemnitee shall be indemnified against all judgments,
penalties, fines and amounts paid in settlement and all Expenses actually and
reasonably incurred by him or on his behalf in connection with a Proceeding by
reason of his Corporate Status unless it is established that (i) the act or
omission of Indemnitee was material to the matter giving rise to the Proceeding
and (a) was committed in bad faith or (b) was the result of active and
deliberate dishonesty, (ii) Indemnitee actually received an improper personal
benefit in money, property or services, or (iii) in the case of any criminal
Proceeding, Indemnitee had reasonable cause to believe that his conduct was
unlawful.
Section
5. Proceedings
by or in the Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 5 if, by reason of his
Corporate Status, he is, or is threatened to be, made a party to or a witness in
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 5,
Indemnitee shall be indemnified against all amounts paid in settlement and all
Expenses actually and reasonably incurred by him or on his behalf in connection
with such Proceeding unless it is established that (i) the act or omission of
Indemnitee was material to the matter giving rise to such a Proceeding and (a)
was committed in bad faith or (b) was the result of active and deliberate
dishonesty or (ii) Indemnitee actually received an improper personal benefit in
money, property or services.
Section
6. Court-Ordered
Indemnification. Notwithstanding any other provision of this Agreement, a
court of appropriate jurisdiction, upon application of Indemnitee and such
notice as the court shall require, may order indemnification in the following
circumstances:
(a) if
it determines Indemnitee is entitled to reimbursement under Section 2-418(d)(1)
of the MGCL, the court shall order indemnification, in which case Indemnitee
shall be entitled to recover the expenses of securing such reimbursement;
or
(b) if
it determines that Indemnitee is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not
Indemnitee (i) has met the standards of conduct set forth in Section 2-418(b) of
the MGCL or (ii) has been adjudged liable for receipt of an improper personal
benefit under Section 2-418(c) of the MGCL, the court may order such
indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right of the Company
or in which liability shall have been adjudged in the circumstances described in
Section 2-418(c) of the MGCL shall be limited to Expenses.
Section
7. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and
without limiting any such provision, to the extent that Indemnitee is, by reason
of his Corporate Status, made a party to and is successful, on the merits or
otherwise, in the defense of any Proceeding, he shall be indemnified for 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 under this Section 7 for all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter, allocated on a reasonable and proportionate
basis. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section
8. Advance
of Expenses. The Company shall advance all reasonable Expenses incurred
by or on behalf of Indemnitee in connection with any Proceeding to which
Indemnitee is, or is threatened to be, made a party or a witness, within ten
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 a written affirmation by Indemnitee of
Indemnitee’s good faith belief that the standard of conduct necessary for
indemnification by the Company as authorized by law and by this Agreement has
been met and a written undertaking by or on behalf of Indemnitee, in
substantially the form attached hereto as Exhibit
A or in such form as may be required under applicable law as in effect at
the time of the execution thereof, to reimburse the portion of any Expenses
advanced to Indemnitee relating to claims, issues or matters in the Proceeding
as to which it shall ultimately be established that the standard of conduct has
not been met and which have not been successfully resolved as described in
Section 7. For so long as the Company is subject to the Investment Company Act,
any advancement of Expenses shall be subject to at least one of the following as
a condition of the advancement: (a) Indemnitee shall provide a security for his
or her undertaking, (b) the Company shall be insured against losses arising by
reason of any lawful advances or (c) a majority of a quorum of the
“disinterested, non-party directors” of the Company, or Independent Counsel in a
written opinion, shall determine, based on a review of readily available facts
(as opposed to a full-trial-type inquiry), that there is reason to believe that
Indemnitee ultimately will be found entitled to indemnification . To
the extent that Expenses advanced to Indemnitee do not relate to a specific
claim, issue or matter in the Proceeding, such Expenses shall be allocated on a
reasonable and proportionate basis. The undertaking required by this
Section 8 shall be an unlimited general obligation by or on behalf of
Indemnitee and shall be accepted without reference to Indemnitee’s financial
ability to repay such advanced Expenses and without any requirement to post
security therefor.
Section
9. Procedure
for Determination of Entitlement to
Indemnification. (a) To obtain indemnification
under this Agreement, Indemnitee shall submit to 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 9(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto shall promptly be made in the
specific case: (i) if a Change in Control shall have occurred, by Independent
Counsel in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred,
(A) by the Board of Directors (or a duly authorized committee thereof) by a
majority vote of a quorum consisting of Disinterested Directors (“Disinterested
Directors”), 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) if so directed by a majority of the members of the Board of Directors, by
the stockholders of the Company; and, if it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten 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 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 shall indemnify and hold
Indemnitee harmless therefrom.
Section
10. Presumptions
and Effect of Certain Proceedings. (a) In making a
determination with respect to entitlement to indemnification hereunder, the
person or 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 9(a) of this
Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making of any determination contrary to that
presumption. (b) The termination of any Proceeding by
judgment, order, settlement, conviction, a plea of nolo contendere or its
equivalent, or an entry of an order of probation prior to judgment, does not
create a presumption that Indemnitee did not meet the requisite standard of
conduct described herein for indemnification.
Section
11. Remedies
of Indemnitee. (a) If (i) a determination is made pursuant to
Section 9 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advance of Expenses is not timely made pursuant to
Section 8 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 9(b) of this Agreement
within 30 days after receipt by the Company of the request for indemnification,
(iv) payment of indemnification is not made pursuant to Section 7 of this
Agreement within ten days after receipt by the Company of a written request
therefor, or (v) payment of indemnification is not made within ten days after a
determination has been made that Indemnitee is entitled to indemnification,
Indemnitee shall be entitled to an adjudication in an appropriate court of the
State of Maryland, or in any other court of competent jurisdiction, of his
entitlement to such indemnification or advance of
Expenses. Alternatively, Indemnitee, at his option, may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the commercial
Arbitration 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 11(a); provided,
however, that the foregoing clause shall not apply to a proceeding brought by
Indemnitee to enforce his rights under Section 7 of this
Agreement. (b) In any judicial proceeding or arbitration
commenced pursuant to this Section 11 the Company shall have the burden of
proving that Indemnitee is not entitled to indemnification or advance of
Expenses, as the case may be. (c) If a determination shall have been
made pursuant to Section 9(b) 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 11, absent
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. (d) In the event
that Indemnitee, pursuant to this Section 11, 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 for, any and all Expenses
actually and reasonably incurred by him in such judicial adjudication or
arbitration. If it shall be determined in such judicial adjudication or
arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advance of Expenses sought, the Expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall be
appropriately prorated.
Section
12. Defense
of the Underlying Proceeding. (a) Indemnitee shall notify the
Company promptly upon being served with or receiving any summons, citation,
subpoena, complaint, indictment, information, notice, request or other document
relating to any Proceeding which may result in the right to indemnification or
the advance of Expenses hereunder; provided, however, that the failure to give
any such notice shall not disqualify Indemnitee from the right, or otherwise
affect in any manner any right of Indemnitee, to indemnification or the advance
of Expenses under this Agreement unless the Company’s ability to defend in such
Proceeding or to obtain proceeds under any insurance policy is materially and
adversely prejudiced thereby, and then only to the extent the Company is thereby
actually so prejudiced. (b) Subject to the provisions of the last
sentence of this Section 12(b) and of Section 12(c) below, the Company shall
have the right to defend Indemnitee in any Proceeding which may give rise to
indemnification hereunder; provided, however, that the Company shall notify
Indemnitee of any such decision to defend within 15 calendar days following
receipt of notice of any such Proceeding under Section 12(a)
above. The Company shall not, without the prior written consent of
Indemnitee, which shall not be unreasonably withheld or delayed, consent to the
entry of any judgment against Indemnitee or enter into any settlement or
compromise which (i) includes an admission of fault of Indemnitee or (ii) does
not include, as an unconditional term thereof, the full release of Indemnitee
from all liability in respect of such Proceeding, which release shall be in form
and substance reasonably satisfactory to Indemnitee. This Section
12(b) shall not apply to a Proceeding brought by Indemnitee under Section 11
above or Section 18 below. (c) Notwithstanding the provisions of
Section 12(b) above, if in a Proceeding to which Indemnitee is a party by reason
of Indemnitee’s Corporate Status, (i) Indemnitee reasonably concludes, based
upon an opinion of counsel approved by the Company, which approval shall not be
unreasonably withheld, that he may have separate defenses or counterclaims to
assert with respect to any issue which may not be consistent with other
defendants in such Proceeding, (ii) Indemnitee reasonably concludes, based upon
an opinion of counsel approved by the Company, which approval shall not be
unreasonably withheld, that an actual or apparent conflict of interest or
potential conflict of interest exists between Indemnitee and the Company, or
(iii) if the Company fails to assume the defense of such Proceeding in a timely
manner, Indemnitee shall be entitled to be represented by separate legal counsel
of Indemnitee’s choice, subject to the prior approval of the Company, which
shall not be unreasonably withheld, at the expense of the Company. In
addition, if the Company fails to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes any action
to declare this Agreement void or unenforceable, or institutes any Proceeding to
deny or to recover from Indemnitee the benefits intended to be provided to
Indemnitee hereunder, Indemnitee shall have the right to retain counsel of
Indemnitee’s choice, subject to the prior approval of the Company, which shall
not be unreasonably withheld, at the expense of the Company (subject to Section
11(d)), to represent Indemnitee in connection with any such
matter.
Section
13. Non-Exclusivity;
Survival of Rights; Subrogation; Insurance; Investment Company
Act.
(a) The
rights of indemnification and advance 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 Articles of Incorporation of the
Company (as amended from time to time, the “Charter”)
or the bylaws of the Company (as amended from time to time, the “Bylaws”),
any agreement or a resolution of the stockholders entitled to vote generally in
the election of directors or of the Board of Directors, or
otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal.
(b) 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.
(c) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable or payable or reimbursable as
expenses hereunder if and to the extent that (i) Indemnitee has otherwise
actually received such payment under any insurance policy, contract, agreement
or otherwise, or (ii) for so long as the Company is subject to the Investment
Company Act, indemnification or payment or reimbursement of expenses would not
be permissible under the Investment Company Act.
Section
14. Insurance.
The Company will use its reasonable best efforts to acquire directors and
officers liability insurance, on terms and conditions deemed appropriate by the
Board of Directors of the Company, with the advice of counsel, covering
Indemnitee or any claim made against Indemnitee for service as a director or
officer of the Company and covering the Company for any indemnification or
advance of Expenses made by the Company to Indemnitee for any claims made
against Indemnitee for service as a director or officer of the
Company. Without in any way limiting any other obligation under this
Agreement, the Company shall indemnify Indemnitee for any payment by Indemnitee
arising out of the amount of any deductible or retention and the amount of any
excess of the aggregate of all judgments, penalties, fines, settlements and
reasonable Expenses incurred by Indemnitee in connection with a Proceeding over
the coverage of any insurance referred to in the previous
sentence.
Section
15. 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, whether instituted by the Company or any
other party, and to which Indemnitee is not a party, he shall be advanced all
reasonable Expenses and indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection
therewith.
Section
16. Duration
of Agreement; Binding Effect. (a) This Agreement shall
continue until and terminate ten years after the date that Indemnitee’s
Corporate Status shall have ceased; provided, that the rights of Indemnitee
hereunder shall continue until the final termination of any Proceeding then
pending in respect of which Indemnitee is granted rights of indemnification or
advance of Expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 11 of this Agreement relating thereto. (b) The
indemnification and advance of Expenses provided by, or granted pursuant to,
this Agreement shall be binding upon and be enforceable by the parties hereto
and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), shall continue as
to an Indemnitee who has ceased to be a director, trustee, officer, employee or
agent 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 written request of the Company, and shall inure to the benefit of
Indemnitee and his spouse, assigns, heirs, devisees, executors and
administrators and other legal representatives. (c) The Company shall
require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all or a substantial part, of
the business and/or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken
place.
Section
17. Severability. 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, 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 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
thereby.
Section
18. Exception
to Right of Indemnification or Advance of
Expenses. Notwithstanding any other provision of this
Agreement, Indemnitee shall not be entitled to indemnification or advance of
Expenses under this Agreement with respect to any Proceeding brought by
Indemnitee, unless (a) the Proceeding is brought to enforce indemnification
under this Agreement or otherwise or (b) the Company’s Bylaws, the Charter, a
resolution of the stockholders entitled to vote generally in the election of
directors or of the Board of Directors or an agreement approved by the Board of
Directors to which the Company is a party expressly provide
otherwise. In addition, notwithstanding any other provision of this
Agreement, Indemnitee shall not be entitled to indemnification or advance of
Expenses under this Agreement to the extent such indemnification or advance of
Expenses would conflict with any provision of the Company’s Bylaws or the
Charter, in each case without giving effect to the non-exclusivity provision set
forth in Section 7.8 of the Charter; provided,
that foregoing restriction not apply and shall be of no force or effect if and
to the extent the Company’s common stock is qualified as a “covered security,”
as such term is defined in Section 18 of the Securities Act of 1933, as
amended.
Section
19. 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. One such
counterpart signed by the party against whom enforceability is sought shall be
sufficient to evidence the existence of this
Agreement.
Section
20. 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
21. 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
22. 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
receipted 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
Indemnitee, to: The address set forth on the signature page hereto.
(b) If to
the Company, to:
Xxxxxxx Capital,
Inc.
0000 XXX Xxxx Xxx
0000
Xxxxxxxxx Xxxxxxx, XX
00000
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
23. Governing
Law. The parties agree that this Agreement shall be governed by, and
construed and enforced in accordance with, (i) the laws of the State of Maryland
applicable to contracts formed and to be performed entirely within the State of
Maryland, without regard to its conflicts of laws rules, to the extent such
rules would require or permit the application of the laws of another
jurisdiction, and (ii) the Investment Company Act. To the extent the
applicable laws of the State of Maryland or any applicable provision of this
Agreement shall conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
Section
24. Miscellaneous. Use
of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
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ATTEST:
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XXXXXXX
CAPITAL, INC.
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By:
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(SEAL)
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Name:
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Title:
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WITNESS:
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INDEMNITEE
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Name:
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Title:
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Address:
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EXHIBIT
A
FORM OF
UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board
of Directors of Xxxxxxx Capital, Inc.
Re:
Undertaking to Repay Expenses Advanced
Ladies
and Gentlemen:
This
undertaking is being provided pursuant to that certain Indemnification Agreement
(the “Indemnification
Agreement”) dated the ___day of ___, 200___, by and between Xxxxxxx
Capital, Inc. (the “Company”)
and the undersigned Indemnitee (“Indemnitee”),
pursuant to which I am entitled to advance of expenses in connection with [Description
of Proceeding] (the “Proceeding”).
Terms
used herein and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.
I am
subject to the Proceeding by reason of my Corporate Status or by reason of
alleged actions or omissions by me in such capacity. I hereby affirm that at all
times, insofar as I was involved as [a
director/officer] of the Company, in any of the facts or events giving
rise to the Proceeding, I (1) acted in good faith and honestly, (2) did not
receive any improper personal benefit in money, property or services and (3) in
the case of any criminal proceeding, had no reasonable cause to believe that any
act or omission by me was unlawful.
In
consideration of the advance of Expenses by the Company for reasonable
attorneys’ fees and related expenses incurred by me in connection with the
Proceeding (the “Advanced
Expenses”), I hereby agree that if, in connection with the Proceeding, it
is established that (1) an act or omission by me was material to the matter
giving rise to the Proceeding and (a) was committed in bad faith or (b) was the
result of active and deliberate dishonesty or (2) I actually received an
improper personal benefit in money, property or services or (3) in the case of
any criminal proceeding, I had reasonable cause to believe that the act or
omission was unlawful, then I shall promptly reimburse the portion of the
Advanced Expenses relating to the claims, issues or matters in the Proceeding as
to which the foregoing findings have been established and which have not been
successfully resolved as described in Section 7 of the Indemnification
Agreement. To the extent that Advanced Expenses do not relate to a specific
claim, issue or matter in the Proceeding, I agree that such Expenses shall be
allocated on a reasonable and proportionate basis.
IN
WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this ___day
of _____, 20___.
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WITNESS:
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(SEAL)
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