INDEMNIFICATION AGREEMENT
EXHIBIT 10.11
THIS AGREEMENT is made and entered into this 17 day of July, 2007 by and between TITANIUM
ASSET MANAGEMENT CORP., a Delaware corporation (the
“Corporation”), and Xxxxx Xxxxxxxxxx (“Agent”).
RECITALS
WHEREAS, Agent performs a valuable service to the Corporation in his capacity as a director
of the Corporation;
WHEREAS, the Corporation has adopted provisions in its Certificate of Incorporation (the
“Charter”) and bylaws (the “Bylaws”) providing for the indemnification of the directors, officers,
employees and other agents of the Corporation, including persons serving at the request of the
Corporation in such capacities with other corporations or enterprises, as authorized by the
Delaware General Corporation Law, as amended (the “Code”);
WHEREAS, the Charter, the Bylaws and the Code, by their non-exclusive nature, permit
contracts between the Corporation and its agents, officers, employees and other agents with
respect to indemnification of such persons; and
WHEREAS, in order to induce Agent to serve as a director of the Corporation, the Corporation
has determined and agreed to enter into this Agreement with Agent.
NOW, THEREFORE, in consideration of Agent’s service as a director of the Corporation after
the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Services to the Corporation. Agent will serve, at the will of the Corporation or
under separate contract, if any such contract exists, as a director of the Corporation or as a
director, officer or other fiduciary of an affiliate of the Corporation (including any
employee benefit plan of the Corporation) faithfully and to the best of his ability so long as he is
duly elected and qualified in accordance with the provisions of the Bylaws or other applicable
charter documents of the Corporation or such affiliate; provided, however, that Agent
may at any time and for any reason resign from such position (subject to any contractual obligation that Agent
may have assumed apart from this Agreement) and that the Corporation or any affiliate shall
have no obligation under this Agreement to continue Agent in any such position.
2. Indemnity of Agent. The Corporation hereby agrees to hold harmless and
indemnify Agent to the fullest extent authorized or permitted by the provisions of the
Charter,
the Bylaws and the Code, as the same may be amended from time to time (but, only to the extent
that such amendment permits the Corporation to provide broader indemnification rights than the
Charter, the Bylaws or the Code permitted prior to adoption of such amendment).
3. Additional Indemnity. In addition to and not in limitation of the indemnification
otherwise provided for herein, and subject only to the exclusions set forth in Section 4
hereof, the
Corporation hereby further agrees to hold harmless and indemnify Agent:
(a) against any and all expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that Agent becomes legally
obligated to pay because of any claim or claims made against or by him in connection with any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
arbitrational, administrative or investigative (including an action by or in the right of the
Corporation) to which Agent is, was or at any time becomes a party or a witness, or is threatened
to be made a party or a witness, by reason of the fact that Agent is, was or at any time becomes a
director, officer, employee or other agent of Corporation, or is or was serving or at any time
serves at the request of the Corporation as a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to Agent by the Corporation under the
non-exclusivity provisions of the Code, the Charter and the Bylaws.
4. Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof
shall be paid by the Corporation:
(a) on account of any claim against Agent for an accounting of profits made
from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions
of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as
knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as
constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any
personal
profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible
insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except
in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation
and Agent have been advised that the Securities and Exchange Commission believes that
indemnification for liabilities arising under the federal securities laws is against public
policy
and is, therefore, unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or
any proceeding by Agent against the Corporation or its directors, officers, employees or other
agents, unless (i) such indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board of Directors of the Corporation, (iii) such
indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers
vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to
Section 9
hereof.
2
5. Continuation of Indemnity. All agreements and obligations of the Corporation
contained herein shall continue during the period Agent is a director, officer, employee or
other
agent of the Corporation (or is or was serving at the request of the Corporation as a
director,
officer, employee or other agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise) and shall continue thereafter so long as Agent
shall be
subject to any possible claim or threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitrational, administrative or investigative, by reason of the fact
that
Agent was serving in the capacity referred to herein.
6. Partial Indemnification. Agent shall be entitled under this Agreement to
indemnification by the Corporation for a portion of the expenses (including attorneys’ fees),
witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts
that Agent becomes legally obligated to pay in connection with any action, suit or proceeding
referred to in Section 3 hereof even if not entitled hereunder to indemnification for the
total
amount thereof, and the Corporation shall indemnify Agent for the portion thereof to which
Agent is entitled.
7. Notification and Defense of Claim. Not later than thirty (30) days after Agent
becomes aware, by written or other overt communication, of any pending or threatened
litigation,
claim or assessment, Agent will, if a claim in respect thereof is to be made against the
Corporation under this Agreement, notify the Corporation of such pending or threatened
litigation, claim or assessment; but the omission so to notify the Corporation will not
relieve it
from any liability which it may have to Agent otherwise than under this Agreement. With
respect
to any such pending or threatened litigation, claim or assessment as to which Agent notifies
the
Corporation of the commencement thereof:
(a) the Corporation will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, the Corporation may, at its option
and jointly with any other indemnifying party similarly notified and electing to assume such
defense, assume the defense thereof, with counsel reasonably satisfactory to Agent. After
notice
from the Corporation to Agent of its election to assume the defense thereof, the Corporation
will
not be liable to Agent under this Agreement for any legal or other expenses subsequently
incurred by Agent in connection with the defense thereof except for reasonable costs of
investigation or otherwise as provided below. Agent shall have the right to employ separate
counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred
after notice from the Corporation of its assumption of the defense thereof shall be at the
expense
of Agent unless (i) the employment of counsel by Agent has been authorized by the Corporation,
(ii) Agent shall have reasonably concluded, and so notified the Corporation, that there is an
actual conflict of interest between the Corporation and Agent in the conduct of the defense of
such action or (iii) the Corporation shall not in fact have employed counsel to assume the
defense
of such action, in each of which cases the fees and expenses of Agent’s separate counsel shall
be
at the expense of the Corporation. The Corporation shall not be entitled to assume the defense
of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Agent
shall have made the conclusion provided for in clause (ii) above; and
3
(c) the Corporation shall not be liable to indemnify Agent under this Agreement for any
amounts paid in settlement of any action or claim effected without its written consent, which shall
not be unreasonably withheld. The Corporation shall be permitted to settle any action or claim
except that it shall not settle any action or claim in any manner which would impose any penalty or
limitation on Agent without Agent’s written consent, which may be given or withheld in Agent’s sole
discretion.
8. Expenses. The Corporation shall advance, prior to the final disposition of any
proceeding, promptly following request therefor, all expenses incurred by Agent in connection
with such proceeding upon receipt of an undertaking by or on behalf of Agent to repay said
amounts if it shall be determined ultimately that Agent is not entitled to be indemnified
under the
provisions of this Agreement, the Charter, the Bylaws, the Code or otherwise.
9. Enforcement. Any right to indemnification or advances granted by this
Agreement to Agent shall be enforceable by or on behalf of Agent in any court of competent
jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part,
or (ii)
no disposition of such claim is made within ninety (90) days of request therefor. Agent, in
such
enforcement action, if successful in whole or in part, shall be entitled to be paid also the
expense
of prosecuting his claim. It shall be a defense to any action for which a claim for
indemnification
is made under Section 3 hereof (other than an action brought to enforce a claim for expenses
pursuant to Section 8 hereof, provided that the required undertaking has been tendered
to the
Corporation) that Agent is not entitled to indemnification because of the limitations set
forth in
Section 4 hereof. Neither the failure of the Corporation (including its Board of Directors or
its
stockholders) to have made a determination prior to the commencement of such enforcement
action that indemnification of Agent is proper in the circumstances, nor an actual
determination
by the Corporation (including its Board of Directors or its stockholders) that
such
indemnification is improper shall be a defense to the action or create a presumption that
Agent is
not entitled to indemnification under this Agreement or otherwise.
10. Subrogation. In the event of payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of recovery of Agent,
who
shall execute all documents required and shall do all acts that may be necessary to secure
such
rights and to enable the Corporation effectively to bring suit to enforce such rights.
11. Non-Exclusivity of Rights. The rights conferred on Agent by this Agreement
shall not be exclusive of any other right which Agent may have or hereafter acquire under any
statute, provision of the Corporation’s Certificate of Incorporation or Bylaws, agreement,
vote of
stockholders or directors, or otherwise, both as to action in his official capacity and as to
action
in another capacity while holding office.
12. Survival of Rights.
(a) The rights conferred on Agent by this Agreement shall continue after Agent has ceased to
be a director, officer, employee or other agent of the Corporation or to serve at the request of
the Corporation as a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, and shall inure to
the benefit of Agent’s heirs, executors and administrators.
4
(b) The Corporation shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business or assets of the
Corporation, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent that the Corporation would be required to perform if no such succession had taken
place.
13. Separability. Each of the provisions of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision hereof shall be held to be
invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect
the
validity or enforceability of the other provisions hereof. Furthermore, if this Agreement
shall be
invalidated in its entirety on any ground, then the Corporation shall nevertheless indemnify
Agent to the fullest extent provided by the Charter, the Bylaws, the Code or any other
applicable
law.
14. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
15. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by both parties
hereto.
16. 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 but one and the same Agreement. Only one such counterpart need be
produced to evidence the existence of this Agreement.
17. Headings. 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 hereof.
18. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (i) upon delivery if delivered
by
hand to the party to whom such communication was directed or (ii) upon the third business day
after the date on which such communication was mailed if mailed by certified or registered
mail
with postage prepaid:
| (a) | If to Agent, at the address indicated on the signature page hereof. | ||
| (b) | If to the Corporation, to: | ||
| Titanium Asset Management Corp. ComCenter at Lakewood Ranch 000 Xxxx Xxxxxx Xxxxx # 000, Xxxxxxxxx, Xxxxxxx 00000, XXX Attention: Chief Executive Officer |
or to such other address as may have been furnished to Agent by the Corporation.
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
| TITANIUM ASSET MANAGEMENT CORP. |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
| AGENT |
||||
| /s/ Xxxxx Xxxxxxxxxx | ||||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Address: HOME ADDRESS APPEARS IN ORIGINAL | ||||
6
