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EXHIBIT 10.23(D)
INDEMNITY AGREEMENT
This Agreement is made as of the 10th day of January, 2000, by and
between Resource Bancshares Mortgage Group, Inc., a Delaware corporation (the
"Corporation"), and Xxxxxxx X. Xxxxxxx (the "Indemnitee"), a Director and/or
Officer of the Corporation.
WHEREAS, it is essential to the Corporation to attract and retain as
Directors and Officers the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation subjects
Directors and Officers to expensive litigation risks; and
WHEREAS, the Corporation does not regard the protection available to
the Indemnitee as adequate in the present circumstances and realizes that the
Indemnitee may not be willing to serve as a Director or Officer without adequate
protection, and the Corporation desires the Indemnitee to serve in such
capacity;
NOW, THEREFORE, in consideration of the Indemnitee's service as a
Director or Officer after the date hereof, the parties agree as follows:
1. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed action, suit or proceeding,
whether brought by or in the right of the Corporation
or otherwise and whether of a civil, criminal,
administrative or investigative nature.
(b) The term "Expenses" shall include, but is not limited
to, all expenses (including attorneys' fees), losses,
damages, liabilities, judgments, fines, amounts paid
in settlement by or on behalf of the Indemnitee and
disbursements and any expenses of establishing a
right to indemnification under this Agreement.
(c) The terms "Director" and "Officer" shall include the
Indemnitee's service at the request of the
Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture,
trust or other enterprise as well as Director,
Officer, employee or agent of the Corporation.
(d) The phrase "other enterprise" shall include employee
benefit plans; the term "fines" shall include any
excise taxes assessed on the Indemnitee with respect
to an employee benefit plan; and the phrase "serving
at the request of the Corporation" shall include any
service as a director, officer, employee or agent
with respect to an employee benefit plan, its
participants or beneficiaries.
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2. Indemnity. Subject only to the limitations set forth in Section 3,
the Corporation will pay on behalf of the Indemnitee all Expenses actually and
reasonably incurred by the Indemnitee because of any claim or claims made
against him in a Proceeding by reason of the fact that he is or was a Director
and/or Officer.
3. Limitations on Indemnity. The Corporation shall not be obligated
under this Agreement to make any payment of Expenses to the Indemnitee:
(a) the payment of which is prohibited by applicable law;
(b) for which and to the extent payment is actually and
unqualifiedly made to the Indemnitee under an
insurance policy or otherwise;
(c) which result from a claim, issue or matter as to
which the Indemnitee is adjudged liable to the
Corporation in a Proceeding by or in the right of the
Corporation, unless it is decided in such Proceeding
that the Indemnitee is entitled to indemnification
hereunder despite such adjudication; or
(d) which result from a claim, issue or matter decided in
a Proceeding adversely to the Indemnitee based upon
or attributable to:
(i) the breach of the Indemnitee's duty of
loyalty to the Corporation or its
stockholders;
(ii) acts or omissions of the Indemnitee not in
good faith or which involve intentional
misconduct or a knowing violation of law;
(iii) Section 174 of the General Corporation Law
of the State of Delaware; or
(iv) a transaction from which the Indemnitee
derived an improper personal benefit.
For purposes of Sections 3 and 4, the phrase "decided in a Proceeding"
shall mean a decision by a court, arbitrator(s), hearing officer or other
judicial agent having the requisite legal authority to make such a decision
which decision has become final and from which no appeal or other review
proceeding is permissible.
4. Advance Payment of Costs. Expenses actually and reasonably incurred
by the Indemnitee in defending a claim against him in a Proceeding, other than a
Proceeding by the Corporation, shall be paid by the Corporation as incurred and
in advance of the final disposition of such Proceeding. As a condition precedent
to his right to receive any such advancement of Expenses, the Indemnitee hereby
agrees and undertakes to repay such amounts advanced if it shall be decided in
such Proceeding that he is not entitled to be indemnified by the Corporation
pursuant to this Agreement or otherwise.
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5. Settlement. The termination of a Proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not of itself create a presumption that the Indemnitee is not entitled to
indemnification under this Agreement.
6. Enforcement. If a claim under this Agreement is not paid by the
Corporation, or on its behalf, within thirty days after a written claim has been
received by the Corporation, the Indemnitee may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and if
successful in whole or in part, the Indemnitee also shall be entitled to be paid
the Expenses of prosecuting such claim.
7. 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 the Indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Corporation effectively to
bring suit to enforce such rights.
8. Notice and Cooperation. The Indemnitee, as a condition precedent to
his right to be indemnified under this Agreement, shall notify the Corporation
in writing promptly upon receipt of notice of any claim made against him for
which indemnity will or could be sought under this Agreement; provided, however,
that failure of the Indemnitee to so notify the Corporation shall relieve the
Corporation of its obligations hereunder only to the extent that such failure
materially prejudices the Corporation. In addition, the Indemnitee shall give
the Corporation such information and cooperation as it may reasonably require.
Notice to the Corporation shall be in writing and shall be deemed to
have been given when personally delivered or sent by telecopy (with confirmation
of receipt) or by prepaid certified mail to the Corporation at the following
address (or such other address as the Corporation shall designate in writing to
the Indemnitee):
Resource Bancshares Mortgage Group, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chairman
Telecopier: (000) 000-0000
9. Severability. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify the Indemnitee to the full extent
permitted by any applicable portion of this Agreement that shall not have been
invalidated or by any other applicable law.
10. Exclusivity. Nothing herein shall be deemed to diminish or
otherwise restrict the Indemnitee's right to indemnification under any provision
of the Certificate of Incorporation or Bylaws of the Corporation or under
Delaware law.
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11. Applicable Law. This agreement shall be governed by and construed
in accordance with Delaware law.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
13. Successors and Assigns. This Agreement shall be binding upon the
Corporation and its successors and assigns.
14. Continuation of Indemnification. The indemnification under this
Agreement shall continue as to the Indemnitee even though he may have ceased to
be a Director and/or Officer and shall inure to the benefit of the heirs and
personal representatives of the Indemnitee.
15. Coverage of Indemnification. The indemnification under this
Agreement shall cover the Indemnitee's service as a Director and/or Officer and
all of his acts in such capacity, whether prior to or on or after the date of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
By: __________________________________
Its: __________________________________
INDEMNITEE
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Xxxxxxx X. Xxxxxxx
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