INDEMNIFICATION AGREEMENT
Exhibit
10.51
THIS INDEMNIFICATION AGREEMENT (this
“Agreement”) is made and entered into as
of ,
2009, by and between Deerfield Capital Corp., a Maryland
corporation (the “Company”), and the undersigned (the
“Indemnitee”).
WHEREAS, the Indemnitee is currently serving as a member
of the board of directors of the Company (the “Board”)
and/or as an
officer of the Company and has agreed to continue to diligently
serve the Company in such capacity;
WHEREAS, in order to induce Indemnitee to continue to
serve in such capacity, the Company wishes to grant and secure
to Indemnitee as permitted by
Section 2-418
of the Corporations and Associations Article of the Annotated
Code of Maryland (the “MGCL”) indemnification and
advancement rights to the fullest extent permitted by Maryland
law as the same exist or may hereafter be revised, whether or
not expressly provided for in the Company’s Charter, Bylaws
or other provisions of the MGCL.
NOW, THEREFORE, in consideration of the Indemnitee’s
agreement to diligently serve the Company and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Indemnification
and Advancement Expenses.
(a) If the Indemnitee is made a party or is threatened to
be made a party to or is otherwise involved, whether or not a
party thereto, in any possible, threatened, pending or completed
action, suit, demand, arbitration, or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a
“Proceeding”) or otherwise incurs, suffers, sustains
or becomes subject to any expense, liability, damage, costs,
obligations, penalties, claims or losses (including, without
limitation, attorneys’ fees and expenses, judgments, fines,
Employee Retirement and Income Security Act excise taxes or
penalties and amounts paid or to be paid in settlement)
(collectively, “Losses”), arising out of, relating to,
based upon, in connection with or due to the fact that the
Indemnitee is or was serving as a director (including, without
limitation, as a member of any committee of the Board)
and/or
officer of the Company, any predecessor of the Company or any
subsidiary of the Company, or is or was serving at the request
of the Company as a director, trustee or officer of another
corporation, partnership, joint venture, trust, or other
enterprise, including service with respect to an employee
benefit plan (such service as a director, committee member,
officer or other service at the request of the Company being
referred to collectively as the “Official Capacity” of
the Indemnitee), the Indemnitee shall be indemnified and held
harmless by the Company to the fullest extent permitted by
Maryland law against all Losses incurred, suffered or sustained
by the Indemnitee or to which the Indemnitee became subject in
connection with such service, including without limitation any
such Losses arising, directly or indirectly, out of facts and
circumstances in existence prior to the time the Indemnitee
began to serve the Company in such Official Capacity, whether or
not known to or ascertainable by the Indemnitee at the time such
Official Capacity commenced, except with respect to (i) a
Proceeding by or in the right of the Company to procure a
judgment in its favor (other than as described in
Section 1(b)), or (ii) a Proceeding initiated by or on
behalf of the Indemnitee against the Company (other than as
described in Section 2) which Proceeding was not
authorized by the Board (for purposes of this clause (ii), a
compulsory counterclaim by the Indemnitee against the Company in
connection with a Proceeding initiated against the Indemnitee by
the Company shall not be considered to be a Proceeding initiated
by or on behalf of the Indemnitee). Such indemnification as
described in this Section 1(a) shall continue as to the
Indemnitee after the Indemnitee has ceased to serve in his or
her Official Capacity as set forth above, and shall inure to the
benefit of the Indemnitee’s heirs, executors,
administrators, conservators and guardians.
(b) In the case of a Proceeding by or in the right of the
Company or any subsidiary of the Company to procure a judgment
in its favor, the Indemnitee shall be entitled to
indemnification as provided in Section 1, except in respect
of any proceeding in which the Indemnitee shall have been
adjudged liable to the Company
by a court having jurisdiction over the matter. The Indemnitee
shall be entitled to indemnification for any judgment, fines or
amounts paid in settlement to the Company in connection with
such Proceeding.
(c) The rights conferred upon the Indemnitee by this
Agreement shall include the right to be paid or reimbursed by
the Company for any Losses from time to time incurred, suffered
or sustained by the Indemnitee or to which the Indemnitee became
subject in connection with any such service, including, without
limitation, reasonable expenses actually incurred in connection
with any such Proceeding or other action in advance of its final
disposition (hereinafter an “Advancement of
Expenses”); provided, however, that such
Advancement of Expense shall be made (without further inquiry by
the Company or the Board) upon and only upon delivery to the
Company of (i) a written affirmation by the Indemnitee of
the Indemnitee’s good faith belief that the standard of
conduct necessary for indemnification by the Company as
authorized by the MGCL has been met and (ii) a written
undertaking by or on behalf of the Indemnitee to repay any
Advancement of Expenses if it shall ultimately be determined by
a final, nonappealable judicial decision that the Indemnitee has
not met the applicable standard of conduct necessary for
indemnification under the MGCL. Any such undertaking shall be an
unlimited general obligation of the Indemnitee but need not be
secured and shall be accepted by the Company without reference
to financial ability to make repayment.
(d) If the Indemnitee is successful, on the merits or
otherwise, in defending one or more but less than all claims,
issues or matters in such Proceeding (including dismissal
without prejudice of certain claims), the Company shall
indemnify the Indemnitee against any Losses including, without
limitation, reasonable expenses actually incurred by the
Indemnitee or on the Indemnitee’s behalf in defending each
such successfully resolved, claim, issue, or matter.
(e) Notwithstanding any other provision of this Agreement,
to the extent that the Indemnitee, by reason of such
Indemnitee’s Official Capacity is, or is threatened to
become, a witness for any reason in any Proceeding in which such
Indemnitee is not a party, such Indemnitee shall be indemnified
against any Losses (and be entitled to Advancement of Expenses
pursuant to clause 1(c) hereof) including, without
limitation, reasonable expenses actually incurred by or on
behalf of such Indemnitee in connection therewith.
(f) Without diminishing or impairing the indemnification
obligations of the Company hereunder or under Maryland law or
the charter of by-laws of the Company, if, for any reason,
Indemnitee shall elect or be required to pay all or any portion
of any Losses with respect to which the Company is jointly
liable with Indemnitee (or would be if joined in such
Proceeding), to the maximum extent permitted by Maryland law now
or hereafter in force the Company shall contribute to the amount
of such Losses actually incurred and paid or payable by
Indemnitee in proportion to the relative benefits received by
the Company and all officers, directors or employees of the
Company other than Indemnitee who are jointly liable with
Indemnitee (or would be if joined in such Proceeding), on the
one hand, and Indemnitee, on the other hand, from the
transaction from which such Proceeding arose; provided,
however, that the proportion determined on the basis of
relative benefit may, to the extent necessary to conform to law,
be further adjusted by reference to the relative fault of the
Company and all officers, directors or employees of the Company
other than Indemnitee who are jointly liable with Indemnitee (or
would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, in connection with the events
that resulted in such expenses, judgments, fines or amounts paid
in settlement, as well as any other equitable considerations.
The relative fault of the Company and all officers, directors or
employees of the Company other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such
Proceeding), on the one hand, and Indemnitee, on the other hand,
shall be determined by reference to, among other things, the
degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their
liability is primary or secondary, and the degree to which their
conduct is active or passive.
Section 2. Determination
that Indemnitee is Entitled to Indemnification; Right of
Indemnitee to Enforce Indemnification and Advancement
Obligations.
(a) To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request
therefor. A determination, if required by applicable law, with
respect to Indemnitee’s entitlement thereto shall be made
in the specific case and within 50 days after the
Indemnitee’s written request therefor, by the Board of
Directors in accordance with any applicable provisions of the
MGCL or, at the election of the
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Indemnitee, by special legal counsel (which counsel shall be
selected by the Board of Directors if required by the MGCL) in a
written opinion to the Board, a copy of which shall be delivered
to Indemnitee. Such special legal counsel shall be a law firm,
or a member of a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past two
years has been, retained to represent (i) the Company or
the Indemnitee in any matter material to either party, or
(ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. The Indemnitee shall be
entitled to object to the Board’s selection of special
legal counsel if the counsel so selected does not meet the
requirements for independence set forth in this
Section 2(a); if Indemnitee shall so object (which right of
objection may be exercised no more than two times), the Board of
Directors shall designate an alternative special legal counsel
that meets the requirements for independence set forth in this
Section 2(a).
(b) If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall
cooperate with the special legal counsel making such
determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such counsel 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
(including attorneys’ fees and disbursements) incurred by
Indemnitee in so cooperating with the Independent Counsel shall
be borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee
harmless therefrom.
(c) If a claim under (x) Section 1(a) or 1(b) of
this Agreement, with respect to any right to indemnification is
not paid in full by the Company within sixty (60) days
after a written claim for indemnification has been received by
the Company, or (y) Section 1(c) of this Agreement
(provided the Indemnitee has provided the undertaking
contemplated thereby), with respect to any right to the
Advancement of Expenses is not paid in full by the Company
within twenty (20) days after a written claim for
Advancement of Expenses is received by the Company, then the
Indemnitee shall be entitled at any time thereafter to bring
suit against the Company to recover the unpaid amount of any
such claim. If successful in whole or in part in any such suit,
the Indemnitee shall be entitled additionally to be paid, and to
seek as an award in connection with any such suit, the cost and
expenses (including reasonable attorneys’ fees) actually
incurred by Indemnitee in prosecuting such suit. Neither the
failure of the Company (including its Board or special legal
counsel) to have made a determination prior to the commencement
of such suit that indemnification of the Indemnitee is proper in
the circumstances because the Indemnitee has met any applicable
standard of conduct set forth in the MGCL, nor an actual
determination by the Company (including its Board or special
legal counsel) that the Indemnitee has not met any such
applicable standard of conduct, shall be a defense to the suit
or create a presumption for purposes thereof that the Indemnitee
has not met any applicable standard of conduct necessary for
indemnification by the Company as authorized by the MGCL.
(d) In any suit brought by the Indemnitee seeking to
enforce a right to indemnification or to an Advancement of
Expenses under this Agreement, the burden shall be on the
Company to prove that the Indemnitee is not entitled to be
indemnified or to receive such Advancement of Expenses under
this Agreement.
Section 3. Rights
Not Exclusive. The rights provided hereunder
shall not be deemed exclusive of any other right to which the
Indemnitee may be entitled or hereafter may acquire under any
statute, provision of the Company’s Charter or Bylaws, each
as from time to time amended, agreement, vote of shareholders,
or determination by disinterested directors or special legal
counsel or otherwise, and shall continue as to the Indemnitee
after the Indemnitee has ceased to serve in his or her Official
Capacity or as otherwise set forth in this Agreement and shall
inure to the benefit of the Indemnitee’s heirs, executors,
administrators, conservators and guardians.
Section 4. D&O
Insurance.
(a) The Company hereby covenants and agrees that, so long
as Indemnitee shall continue to serve in his or her Official
Capacity and thereafter so long as Indemnitee shall be subject
to any possible, threatened, pending or completed Proceeding
arising out of, relating to, based upon, in connection with or
due to the fact
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that Indemnitee was serving in such Official Capacity, the
Company shall maintain in full force and effect or provide
through a corporate affiliate or otherwise for Indemnitee to be
covered by directors’ and officers’ liability
insurance in a commercially reasonable amount issued by one or
more financially sound and reputable insurers (the
“D&O Insurance”).
(b) With respect to the obligations of the Company to
maintain D&O Insurance as set forth in this Section 4,
the Company shall not be obligated to make annual premium
payments for any such insurance to the extent that such premiums
exceed 200% of the premiums being paid by or for the benefit of
the Company as of the date hereof for such insurance and, if
such premiums for such insurance would at any time exceed 200%
of such current premium, then the Company shall cause to be
maintained policies of insurance which, in the good faith
determination of the Board, provide the maximum coverage
available at an annual premium equal to 200% of such current
premium.
(c) The provision of D&O Insurance as provided in this
Section 4 shall be in addition to the Company’s
obligations under Section 1 and shall not be deemed to be
in satisfaction of those obligations.
Section 5. Settlement. The
Company shall not settle any Proceeding in any manner which
would impose any fine, penalty or any obligation on the
Indemnitee without the Indemnitee’s prior written consent.
The Indemnitee shall not unreasonably withhold consent to any
proposed settlement.
Section 6. Severability. In
the event that any provision of this Agreement is determined by
a court to require the Company to do or to fail to do an act
which is in violation of applicable law, such provision shall be
limited or modified in its application to the minimum extent
necessary to avoid a violation of law, and, as so limited or
modified, such provision and the balance of this Agreement shall
be enforceable in accordance with their terms.
Section 7. Choice
of Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of
the State of Maryland, including applicable statutes of
limitations and other procedural statutes.
Section 8. Successor
and Assigns. This Agreement shall be
(i) binding upon all successors and assigns of the Company
(including any transferee of all or substantially all of its
assets and successor by merger, consolidation or otherwise by
operation of law) and (ii) shall be binding on and inure to
the benefit of the heirs, executors, administrators,
conservators and guardians of Indemnitee.
Section 9. Amendment. No
amendment, modification, supplement, or repeal of this Agreement
or any provision hereof 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. No
amendment, modification, supplement, or repeal of this Agreement
or of any provision hereof shall limit or restrict any rights of
the Indemnitee under this Agreement in respect of any action
taken or omitted by the Indemnitee in or by reason of the
Indemnitee’s Official Capacity prior to such amendment,
modification, supplement or repeal.
Section 10. Waiver
of Jury Trial. The Company and the Indemnitee
hereby waive any rights either may have to trial by jury in
respect of any litigation arising out of, relating to, based
upon or in connection with this Agreement.
Section 11. Limitation
of Liability. The Indemnitee shall not be
personally liable to the Company or its shareholders for
monetary damages; provided, however, that the foregoing shall
not eliminate or limit the liability of the Indemnitee:
(i) to the extent that it is proved that the person
actually received an improper benefit or profit in money,
property, or services, for the amount of the benefit or profit
in money, property, or services actually received; or
(ii) to the extent that a judgment or other final
adjudication adverse to the person is entered in a proceeding
based on a finding in the proceeding that the person’s
action or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated
in the proceeding. If Maryland law shall be amended to permit
further elimination or limitation of the personal liability of
directors, then the liability of the Indemnitee shall,
automatically, without any further action, be eliminated or
limited to the fullest extent permitted by Maryland law as so
amended.
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Section 12. Effect
of Federal Laws. Notwithstanding any other
provisions contained herein, this Agreement is subject to the
requirements and limitations set forth in federal laws, rules,
regulations and orders regarding indemnification and advancement
of expenses.
IN WITNESS WHEREOF, the Company and the Indemnitee have
executed this Indemnification Agreement as of the day and year
first set forth above.
By: |
|
Name:
Title: |
INDEMNITEE
Name:
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