INDEMNIFICATION AGREEMENT
Exhibit
10.5
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”)
is made and entered into this ___ day of __________, 2008, 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;
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; 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,
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 Charter or Bylaws of the Company, 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, as amended, 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.
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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