EXHIBIT 10.9
INDEMNIFICATION AGREEMENT
AGREEMENT, made as of the __ day of __________, _______ between LASER Mortgage
Management, Inc., a Delaware corporation having its offices at 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation"), and the person signing
this agreement as "DESIGNEE" (the "Designee"), with an address as set forth
opposite his name.
WITNESSETH
WHEREAS, the Corporation has asked the Designee to serve as an officer,
director, agent or employee of the Corporation or of one or more other companies
or entities;
WHEREAS, the Designee is willing to serve or to continue to serve in such
capacity or in similar or additional capacities for the Corporation on condition
that the Corporation indemnify him for liability which he might incur in such
capacity; and
WHEREAS, the Corporation is willing to extend to the Designee such
indemnification.
NOW, THEREFORE, the Corporation and the Designee hereby agree as follows:
INDEMNIFICATION OBLIGATION. Except to the extent expressly prohibited by
applicable law, the Corporation shall promptly indemnify Designee (or such
person's executor, administrator or personal representative) (each of the
Designee or such person's executor, administrator or personal representative
being referred to hereafter as an "Indemnitee") if he, she or it was or is made,
or is threatened to be made, a party to any action or proceeding, whether civil
or criminal (including without limitation any action brought by or in the right
of the Corporation), or was or is a subject of a government investigation, by
reason of the fact that the Designee (i) is or was a director, officer or agent
of the Corporation or any subsidiary or affiliate thereof or (ii) serves or
served, at the request of the Corporation, as a director or officer of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against any and all liabilities, losses, judgments,
fines (including excise taxes assessed with respect to an employee benefit plan
pursuant to applicable law), amounts paid in settlement and expenses (including
attorneys' fees and expenses, reasonably incurred, including attorneys' fees and
expenses incurred in connection with actions or proceedings wherein the
Corporation and an Indemnitee are adverse parties) in connection with such
action or proceeding, or any appeal therein, or government investigation, except
where a judgment or other final adjudication adverse to such person establishes
that (a) the Designee's acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action so
adjudicated, or (b) that the Designee personally gained in fact a material
financial advantage to which the Designee was not legally entitled resulting
directly from the acts.
ADVANCEMENT OF EXPENSES. The Corporation shall advance or promptly reimburse
upon request of the Indemnitee all expenses, including attorneys' fees,
reasonably incurred by the Indemnitee in connection with any action, proceeding
or government investigation of the kind referred to in Section 1 in advance of
the final disposition thereof, subject to receipt of a written undertaking by or
on behalf of the Indemnitee to repay such amounts if such person is ultimately
found not to be entitled to indemnification under this Agreement or otherwise
or, where indemnification is granted, to the extent the expenses so advanced or
reimbursed exceed the amount to which the Indemnitee is ultimately determined to
be entitled, provided that the Indemnitee shall cooperate in good faith with any
request of the Corporation that common counsel be used by parties to any action,
proceeding or government investigation who are similarly situated unless to do
so would be inappropriate because of actual or potential differing interests
between such parties.
INTERPRETATION. An Indemnitee may elect to have the provisions of this Agreement
interpreted on the basis of the applicable law in effect either (i) at the time
of the occurrence of the event or events giving rise to the action, proceeding
or government investigation, to the extent permitted by law, or (ii) at the time
indemnification or advancement or reimbursement of expenses is provided or
sought.
SANCTIONS FOR NONPAYMENT. If a request to be indemnified or for the advancement
or reimbursement of expenses pursuant to this Agreement or any other obligation
of the Corporation is not paid in full by the Corporation within 30 days after a
written claim has been received by either the President or Secretary of the
Corporation therefor and the Indemnitee thereafter brings suit against the
Corporation to recover the unpaid amount of the claim which is successful in
whole or in substantial part, the Corporation shall be obligated to pay the
Indemnitee the expenses, including reasonable attorneys' fees, of prosecuting
such claim, if such claim is successful in whole or in part. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending a civil or criminal action or proceeding in
advance of the final disposition thereof where the required undertaking has been
tendered to the Corporation) that the Indemnitee has not met the standards of
conduct which make it permissible under this Agreement for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors or independent legal counsel) prior to the
commencement of such action to have made a determination that indemnification of
the Indemnitee is proper in the circumstances because the Designee has met the
applicable standard of conduct set forth in this Agreement, nor an actual
determination by the Corporation (including its Board of Directors or
independent legal counsel) that the Designee has not met such applicable
standard of conduct, shall be a defense to such action or create a presumption
that the Designee has not met such applicable standard of conduct.
NONEXCLUSIVITY. The indemnification or advancement or reimbursement of expenses
granted pursuant to or provided by the provisions of this Agreement shall be in
addition to and shall not be exclusive of any other rights to indemnification
and advancement or reimbursement of expenses to which such person may otherwise
be entitled by law, Certificate of Incorporation, By-laws, insurance policy,
contract or otherwise.
DEFINITIONS. For purposes of this Agreement, the following terms shall have the
following meanings:
"The Corporation" shall include any legal successor to the Corporation,
including any corporation or other entity which acquires all or substantially
all of the assets of the Corporation in one or more transactions.
Service "at the request of the Corporation" shall include serving any
corporation, partnership, joint venture, trust, employee benefit plan or other
entity or enterprise by virtue of (i) designation by resolution of the Board of
Directors or Executive Committee of the Corporation or any subsidiary or
affiliate thereof, (ii) a request by any officer of the Corporation or any
subsidiary or affiliate thereof, whether or not in writing or (iii) election by
action of the Corporation or any subsidiary or affiliate thereof as a
shareholder, partner or other participant of or in such corporation,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise.
"Subsidiary" shall include any corporation or other business organization of
which the Corporation owns 20% or more of the voting equity.
INVALIDITY. If any provision of this Agreement is determined to be unenforceable
in whole or in part, such provision shall be modified so as to be enforceable,
to the maximum extent allowed by law, and as so modified be enforced to the
fullest extent permissible, it being the intent of this Agreement to provide
indemnification to all persons eligible hereunder to the fullest extent
permitted under law.
NO WAIVER. The failure by either party at any time to require performance or
compliance by the other of any of its obligations or agreements shall in no way
affect the right to require such performance or compliance at any time
thereafter. The waiver by either party of a breach of any provision hereof shall
not be taken or held to be a waiver of any preceding or succeeding breach of
such provision or as a waiver of the provision itself. No waiver of any kind
shall be effective or binding, unless it is in writing and is signed by the
party against which such waiver is sought to be enforced.
ASSIGNMENT. This Agreement and all rights hereunder are personal to the parties
hereto and may not be transferred or assigned without the consent of the other
party at any time.
AMENDMENT. This Agreement may be amended, modified, superseded, canceled,
renewed or extended only by a written instrument executed by both of the parties
hereto.
NOTICES. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given when delivered
personally or mailed by certified mail, return receipt requested, postage
prepaid to the address of the applicable party as set forth above or as may be
changed by notice given in accordance with the provisions of this Section 11
except that a notice of change of address shall not be deemed to have been duly
given until actually received by the addressee.
BINDING NATURE. This Agreement shall be binding upon and inure to the benefit of
the personal representatives and successors of the respective parties hereto.
HEADINGS. The headings contained in this Agreement are for reference purposes
only and shall in no affect the meaning or interpretation of this Agreement.
GOVERNING LAW. This Agreement and the rights and obligations of the parties
hereto shall be construed in accordance with the laws of the State of New York
without reference to choice-of-law rules.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
LASER MORTGAGE MANAGEMENT, INC.
By:
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Name:
Title:
AGREED TO AND ACCEPTED BY:
DESIGNEE
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Name:
Address:
