Exhibit 10.36.18
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is effective as of November 28, 2005 (this
"Agreement") by and between Hanover Capital Mortgage Holdings, Inc., a Maryland
corporation (the "Company"), and Xxxxxxx Xxxxxxx Xxxxxxx, Vice President and
General Counsel of the Company (together with such person's legal
representatives or other successors, "Indemnitee").
WHEREAS, in order to induce Indemnitee to serve, or continue to serve, as Vice
President and General Counsel of the Company or to accept, or continue to
accept, the duties, responsibilities and burdens associated with such service,
the Company desires, and the board of directors of the Company has resolved to
provide the Indemnitee with the indemnification arrangements set forth herein;
and
WHEREAS, Indemnitee is willing to serve or continue to serve as Vice President
and General Counsel of the Company on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS; INTERPRETIVE PRINCIPLES.
(a) Definitions
For purposes of this Agreement:
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such
particular Person, where "control" means the possession, directly or
indirectly, of the power to direct the management and policies of a
Person whether through the ownership of voting securities, contract or
otherwise.
"Company Entity" shall mean the Company or any Subsidiary of the
Company.
"Corporate Status" describes the status of a Person who is or was a
director, officer, partner, employee, trustee, agent or fiduciary of
any Company Entity or of any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or
other enterprise which such Person is or was serving at the request of
any Company Entity.
"Disinterested Director" means a member of the board of directors of
the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
"Expenses" shall include all 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, participating or being or preparing to be a witness in
any Proceeding or other proceeding of the type described in the
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definition of "Proceeding" set forth below.
"Including" means including but not limited to.
"Independent Counsel" means 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 three years has been, retained to
represent: (i) any Company Entity or Indemnitee in any matter (other
than with respect to matters concerning Indemnitee under this
Agreement) 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 any Company Entity
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement.
"Losses" means judgments, penalties, liabilities, losses, claims,
damages, fines and amounts, including amounts paid in settlement.
"Person" shall mean any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a
corporation, a limited liability company, a partnership, a trust or
other entity.
"Proceeding" includes any actual, threatened, pending or completed
action, suit, litigation, claim, arbitration, mediation, alternate
dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened, pending or completed
proceeding arising on or after the date hereof, whether brought by or
in the right of any Company Entity or otherwise and whether civil,
criminal, administrative or investigative, in which Indemnitee was, is
or will be involved as a party or otherwise, by reason of the fact
that he is or was a director, officer, employee, trustee, agent,
attorney-in-fact or fiduciary of any Company Entity at any time on or
after the date hereof, or is or was serving at the request of any
Company Entity as a director, officer, partner, employee, trustee,
agent, attorney-in-fact or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of
any action taken by him or of any inaction on his part, on or after
the date hereof, while acting as director, officer, partner, employee,
trustee, agent, attorney-in-fact or fiduciary of any Company Entity,
or while serving at the request of any Company Entity as a director,
officer, partner, employee, trustee, agent, attorney-in-fact or
fiduciary of another corporation, partnership, joint venture, trust or
other enterprise, in each case whether or not he is acting or serving
in any such capacity at the time any Expense, Loss or other amount for
which indemnification can be provided under this Agreement is incurred
or imposed.
"Subsidiary" shall mean with respect to any Person, any corporation or
other entity of which a majority of the voting power of the voting
equity securities or equity interest is owned, directly or indirectly,
by that Person.
(b) Interpretive Principles
For purposes of this Agreement, (i) the terms defined in this Section
include the plural as well as the singular, (ii) the use of any gender
herein shall be deemed to include the other genders; and (iii)
references herein to Sections without reference to a document are to
designated Sections in this Agreement.
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2. SCOPE OF INDEMNIFICATION.
The obligations of the Company to indemnify Indemnitee in the manner set
forth in this Agreement shall continue in full force and effect, consistent
with the terms of Section 10, notwithstanding any termination or
resignation of the Indemnitee.
3. INDEMNITY.
(a) If an Indemnitee was, is, or is threatened to be made a party to or
participant in any Proceeding whether such Proceeding is by or in the
right of any Company Entity, any third party or any other Person, the
Company hereby agrees to hold harmless and indemnify the Indemnitee
from and against any and all Expenses and Losses incurred by
Indemnitee or incurred on his behalf to the fullest extent authorized
or permitted by applicable law, by the Charter of the Company and by
the By-Laws of the Company as the foregoing may be amended from time
to time, and including any and all Expenses and Losses arising out of
or relating to the actual or alleged acts, omissions, negligence or
active or passive wrongdoing of Indemnitee. The only limitation that
shall exist upon the indemnification obligations of the Company
pursuant to this Agreement is that the Company shall not be obligated
to make any indemnity-related payment to Indemnitee that is finally
determined (pursuant to the procedures and subject to the presumptions
set forth in Sections 7 and 8) to be unlawful under Maryland law.
(b) Notwithstanding any other provision of this Agreement to the contrary,
to the extent that Indemnitee is a party to and is successful, on the
merits or otherwise, in any Proceeding, he shall be indemnified
pursuant to subsection (a) above to the maximum extent permitted by
law. However, if (i) Indemnitee is not wholly successful in a
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,
and (ii) it is determined that it is unlawful for Indemnitee to be
indemnified with respect to such unsuccessful claims, issues or
matters, in such instance the Company shall indemnify Indemnitee
against all Expenses and Losses incurred by Indemnitee, or incurred on
his behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in a Proceeding by
dismissal, with or without prejudice, shall be deemed to be successful
on the merits or otherwise as to such claim, issue or matter.
4. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.
(a) Irrespective of whether the indemnification rights granted pursuant to
Section 3 are available in any given instance, it is agreed by the
parties that with respect to any Proceeding in which any Company
Entity is jointly liable with Indemnitee (or would be liable if joined
in such Proceeding), the Company shall pay, in the first instance, the
entire amount of any and all Expenses and Losses relating to or
incurred in connection with such Proceeding, without requiring
Indemnitee to contribute to such payment, and the Company hereby
waives and relinquishes any right of contribution it may have against
Indemnitee. The Company shall not enter into any settlement of any
Proceeding in which any Company Entity is jointly liable with
Indemnitee (or would be liable if joined in such Proceeding) unless
such settlement provides for a full and final release of all claims
asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set
forth in subsection (a) above, if,
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for any reason, Indemnitee should elect or be required by any relevant
judicial or administrative authority to pay all or any portion of any
Expenses and Losses relating to or incurred in connection with any
Proceeding in which any Company Entity is jointly liable with
Indemnitee (or would be liable if joined in such Proceeding), the
Company shall contribute to the amount of Expenses and Losses incurred
and paid or payable by Indemnitee. The contribution by the Company
shall be in an amount proportional to (i) on the one hand, the
relative benefits received or enjoyed from the transaction to which
the Proceeding relates by any Company Entity and all directors,
officers, partners, employees, trustees, agents, attorneys-in-fact or
fiduciaries of any Company Entity (other than Indemnitee) who are
jointly liable with Indemnitee (or would be liable if joined in such
Proceeding), and (ii) the relative benefits received or enjoyed from
the transaction to which the Proceeding relates by Indemnitee,
provided, however, that such proportional calculation, to the extent
necessary to conform to applicable law, may be further adjusted: (A)
by reference to the relative fault of any Company Entity and all
directors, officers, partners, employees, trustees, agents,
attorneys-in-fact or fiduciaries of any Company Entity (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 and Losses; and/or (B) by any other equitable considerations
which the law may require to be considered. The relative fault of any
Company Entity and all directors, officers, partners, employees,
trustees, agents, attorneys-in-fact or fiduciaries of any Company
Entity (other than Indemnitee) who are jointly liable with him (or
would be liable if joined in such Proceeding) on the one hand, and
Indemnitee, on the other hand, shall be determined by taking into
account, among other factors, the degree to which their respective
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.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee
harmless from and against any and all claims of contribution which may
be brought by any director, officer, employee, trustee, agent,
attorney-in-fact or fiduciary of any Company Entity who may be jointly
liable with Indemnitee in connection with any given Proceeding.
5. INDEMNIFICATION FOR EXPENSES INCURRED AS A WITNESS.
Notwithstanding any other provision of this Agreement to the contrary, to
the extent that Indemnitee is, by reason of his Corporate Status, a witness
in any Proceeding to which Indemnitee is not a party, the Company shall
indemnify Indemnitee for and against all Expenses actually incurred by
Indemnitee or incurred on his behalf in connection therewith.
6. ADVANCEMENT OF EXPENSES.
Notwithstanding any other provision of this Agreement to the contrary, the
Company shall advance or directly pay all Expenses incurred by or on behalf
of Indemnitee in connection with any Proceeding, within ten days after the
receipt by the Company of any statement from Indemnitee requesting such
advances or payments from time to time, whether prior to or after final
disposition of such Proceeding. Such statement shall reasonably evidence
the Expenses incurred by, or on behalf of, or charged to Indemnitee. In
connection herewith, as a condition to any advancement or direct payment of
any Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding, Indemnitee hereby agrees and undertakes to repay any Expenses
advanced or paid hereunder, and Indemnitee shall, at the request of the
Company,
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execute one or more agreements and undertakings in reasonable form, in
favor of the Company or any insurer or other Person reasonably selected by
the Company, to repay any Expenses advanced or paid if ultimately it is
determined that Indemnitee is not entitled to be indemnified or reimbursed
for such Expenses in any given instance, in accordance with applicable law
and the Charter and By-laws of the Company, as the foregoing may be amended
from time to time. The foregoing undertaking to repay such Expenses by
Indemnitee shall be unsecured and interest-free. Notwithstanding the
foregoing, the obligation of the Company to advance Expenses pursuant to
this Section 6 shall be subject to the condition that if, when and to the
extent that the Company reasonably determines that Indemnitee would not be
permitted to be indemnified under applicable law (subject to the terms and
conditions of Section 7), the Company shall no longer be obligated to
advance expenses to Indemnitee and shall be entitled to reimbursement
within 30 days of such determination by Indemnitee for all such amounts
theretofore paid; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction
to secure a determination that he should be indemnified under applicable
law, any determination made by the Company that Indemnitee is not entitled
to indemnification under applicable law in a given instance shall not be
binding, and [the Company shall once again be required to advance
expenses,] and Indemnitee shall not be required to reimburse the Company
for any advance or payment of Expenses until a final judicial determination
is made with respect thereto (as to which all rights of appeal therefrom
have been exhausted or have lapsed).
7. PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
It is the intent of this Agreement to secure for Indemnitee rights of
indemnity that are as favorable and as broad as permitted under the law and
public policy of Maryland. Accordingly, the parties hereby agree that the
following procedures and presumptions shall apply if any question or
dispute arises as to whether Indemnitee is entitled to indemnification
under this Agreement.
(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 as may be reasonably necessary to enable
the Company 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
Company's board of directors of such request in writing. Indemnitee's
failure to strictly comply with the procedural requirements set forth
in this Section, however, shall not relieve the Company of any
obligation it may have to indemnify hereunder and shall not alter or
waive any presumptions for determination of entitlement to
indemnification contained herein unless, and to the extent, the
Company is prejudiced thereby.
(b) Upon each submission of a written request by Indemnitee for
indemnification pursuant to subsection (a) above, a determination with
respect to Indemnitee's entitlement thereto shall be made in
accordance with one of the following methods, the selection of which
method shall be at Indemnitee's discretion: (i) by a majority vote of
the Disinterested Directors even if such Disinterested Directors
constitute less than a quorum; or (ii) by Independent Counsel in a
written opinion pursuant to the procedures and selection processes set
forth in subsection (c) below.
(c) If Indemnitee elects for the determination of entitlement to
indemnification to be made by Independent
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Counsel pursuant to subsection (b) above, the Independent Counsel
shall be selected as provided in this subsection (c). The Independent
Counsel shall be selected by Indemnitee (unless he requests that the
selection be made by the Company's board of directors) with the
approval of the Company (which approval may not be unreasonably
withheld). The Company shall pay any and all Expenses of such
Independent Counsel relating to its performance of services in
connection herewith, and the Company shall pay all Expenses incident
to the procedures contained in this subsection (c) irrespective of the
manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to Indemnitee's entitlement to
indemnification hereunder, the Person(s) making such determination
shall presume that Indemnitee is entitled to indemnification under
this Agreement if he has submitted a request for indemnification in
accordance with subsection (a) above. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of
persuasion, by clear and convincing evidence. In addition, if the
Person(s) making a determination pursuant to subsection (b) above
shall determine that Indemnitee is not entitled to indemnification
hereunder, such determination shall not create a presumption against
Indemnitee's entitlement to indemnification in any later action, suit
or proceeding initiated by Indemnitee to enforce his rights under this
Agreement.
(e) Indemnitee shall be presumed to have acted in good faith if his action
is based on the records or books of account of any Company Entity or
any other Person, including financial statements, or on information
supplied to Indemnitee by the officers of any Company Entity or such
other Person, in the course of their duties or on the advice of legal
counsel for any Company Entity, or on information or records given or
reports made to any Company Entity by an independent certified public
accountant, by a financial advisor or by an appraiser or other expert
selected by any Company Entity. In addition, the knowledge and/or
actions, or failure to act, of any director, officer, partner, agent,
trustee or employee of any Company Entity or any other Person, shall
not be imputed to Indemnitee for purposes of determining his right to
indemnification under this Agreement. Irrespective of whether the
foregoing provisions of this subsection (e) are satisfied, it shall be
presumed in any event that each Indemnitee has at all times acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of any Company Entity. Anyone seeking to
overcome this presumption shall have the burden of proof and the
burden of persuasion, by clear and convincing evidence.
(f) The Company acknowledges that a settlement or other disposition of a
Proceeding short of final judgment may be desirable if it permits a
party to avoid expense, delay, distraction, disruption and
uncertainty. If any Proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against
Indemnitee (including settlement of such Proceeding with or without
payment of money or other consideration) it shall be presumed that
Indemnitee has been successful on the merits or otherwise in such
Proceeding. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing
evidence.
(g) If the Person(s) empowered or selected under subsection (b) above to
determine whether Indemnitee is entitled to indemnification shall not
have made a determination within 30 days after receipt by the Company
of the request therefore, the requisite determination of entitlement
to indemnification shall be deemed to have been made in favor of the
Indemnitee, and he shall be entitled to such indemnification, absent
(i) an intentional misstatement by Indemnitee of a material fact, or
an intentional omission of a material fact necessary to make
Indemnitee's statement not materially misleading, in connection with
the
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request for indemnification; or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such
30-day period may be extended for a reasonable time, not to exceed an
additional 15 days, if the Person(s) making such determination
reasonably and in good faith requires such additional time to complete
the obtaining or evaluation of documentation and/or information
relating thereto.
(h) Indemnitee shall reasonably cooperate with the Person(s) making the
determination regarding his entitlement to indemnification, including
providing to such Person(s) 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
Independent Counsel or member of the board of directors of the Company
shall act reasonably and in good faith in making a determination of
Indemnitee's entitlement to indemnification hereunder. Any Expenses
incurred by Indemnitee in so cooperating with the Person(s) making
such determination shall be borne by the Company (irrespective of the
determination as to Indemnitee's entitlement to indemnification), and
the Company hereby agrees to indemnify and hold harmless Indemnitee
therefrom.
8. REMEDIES.
(a) If: (i) a determination is made pursuant to Section 7 that Indemnitee
is not entitled to indemnification under this Agreement; (ii)
advancement of Expenses is not timely made pursuant to Section 6;
(iii) contribution is not made pursuant to Section 4; (iv) no
determination of entitlement to indemnification is made pursuant to
Section 7 within 90 days after receipt by the Company of the request
for indemnification; (v) payment of indemnification is not made within
ten days after a determination has been made that Indemnitee is
entitled to indemnification or such determination is deemed to have
been made pursuant to Section 7; or (vii) the Company has not complied
with any other term of this Agreement intended for the benefit of
Indemnitee, then in any such event, Indemnitee shall be entitled to an
adjudication of the foregoing in an appropriate court in Maryland, or
in any other court of competent jurisdiction. The Company shall not
oppose Indemnitee's right to seek any such adjudication.
(b) If a determination shall have been made pursuant to Section 7 that
Indemnitee is not entitled to indemnification, any judicial proceeding
commenced pursuant to this Section 8 shall be conducted in all
respects as a de novo trial, on the merits, and Indemnitee shall not
be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made pursuant to Section 7 that
Indemnitee is entitled to indemnification, the Company shall be bound
by such determination in any judicial proceeding commenced pursuant to
this Section 8, absent a prohibition of such indemnification under
applicable law.
(d) If Indemnitee, pursuant to this Section 8, seeks a judicial
adjudication of his rights under, or to recover damages for breach of,
this Agreement, or to recover under any directors' and officers'
liability insurance policies maintained by the Company, the Company
shall pay on his behalf, in advance, any and all Expenses incurred by
him in such judicial adjudication, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this
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Section 8 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court that the Company
is bound by all the provisions of this Agreement.
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9. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification, advancement or contribution set forth
in 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 of the Company, the By-Laws of the Company or any other
agreement to which the Indemnitee, the Company or any Affiliates of
the Company is a party. No amendment, alteration or repeal of this
Agreement or any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or
omitted by Indemnitee as a function of his Corporate Status prior to
such amendment, alteration or repeal. To the extent that a change in
the law, whether by statute or judicial decision, permits greater
indemnification, advancement or contribution rights than currently are
afforded under the Charter of the Company, the By-Laws of the Company
and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy conferred herein is
intended to be exclusive of any other right or remedy of Indemnitee,
and every other right or remedy shall be cumulative and in addition to
every other right or remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for a director, officer,
partner, employee, trustee, agent, attorney-in-fact or fiduciary of
any Company Entity or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such
Person serves at the request of any Company Entity, Indemnitee shall
be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available for any such
director, officer, partner, employee, trustee, agent, attorney-in-fact
or fiduciary under such policy or policies. If, at the time of a
request for indemnification under this Agreement, the Company has such
a policy or policies in effect, the Company shall give prompt notice
of the commencement of a Proceeding to the insurers in accordance with
the procedures set forth in the respective policy or policies. The
Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of the Indemnitee, all amounts
payable as a result of such Proceeding in accordance with the
provisions of such policy or policies.
(c) 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.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the
extent that Indemnitee otherwise and actually has received such
payment under any insurance policy, contract, agreement or otherwise.
10. DURATION OF AGREEMENT.
All agreements and obligations of the Company contained herein shall
continue with respect to Indemnitee during the period in which she serves
as a director, officer, partner, employee, trustee, agent, attorney-in-fact
or fiduciary of any Company Entity (or is or was serving at the request of
any Company Entity as a director, officer, partner, employee, trustee,
agent, attorney-in-fact or fiduciary of another corporation,
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partnership, joint venture, trust or other enterprise), whether or not such
service occurred prior to or after the date this Agreement was effective,
and shall continue in perpetuity thereafter, whether or not Indemnitee is
acting or serving in any such capacity at the time any Expenses or Losses
are incurred for which indemnification, advancement or contribution can be
provided under this Agreement. This Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the parties hereto and
their respective successors (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), assigns, spouses, heirs, executors
and personal and legal representatives.
11. SECURITY.
To the extent requested by Indemnitee and approved by the Company board of
directors, the Company may at any time and from time to time provide
security to Indemnitee for the obligations of the Company hereunder through
an irrevocable bank line of credit, funded trust or other collateral or by
other means. Any such security, once provided to Indemnitee, may not be
revoked or released without the prior written consent of Indemnitee.
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12. ENFORCEMENT; ENTIRE AGREEMENT.
(a) The Company expressly confirms and agrees that it has entered into
this Agreement and has assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve or continue to serve as a
director, officer, partner, employee, trustee, agent, attorney-in-fact
or fiduciary of any Company Entity, and the Company acknowledges that
Indemnitee is relying upon this Agreement in agreeing to serve as a
director, officer, partner, employee, trustee, agent, attorney-in-fact
or fiduciary of any Company Entity.
(b) Subject to Section 9, this Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral, written
and implied, between the parties hereto with respect to the subject
matter hereof, except to the extent referenced in Section 9 hereof.
13. SEVERABILITY.
If any provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid, void, illegal or otherwise unenforceable for
any reason whatsoever: (i) the validity, legality and enforceability of the
remaining provisions of this Agreement (including 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 be affected or impaired in any way thereby and
shall remain enforceable to the fullest extent permitted by law; and (ii)
to the fullest extent possible, the provisions of this Agreement (including
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.
14. MODIFICATION AND WAIVER.
No supplement, modification, waiver, termination or amendment of all or any
portion of this Agreement shall be binding unless expressed in a written
instrument executed by the parties hereto. No waiver of any term or
provision of this Agreement shall be deemed or shall constitute a waiver of
any other term or provision hereof (whether or not similar), and any such
waiver shall be effective only in the specific instance, for the specific
duration and for the express purpose for which it is given. Any waiver or
failure to insist upon strict compliance with any term or provision of this
Agreement shall not operate as a waiver of, or an estoppel with respect to,
any subsequent or other failure to comply.
15. NOTICE OF SERVICE BY INDEMNITEE.
Indemnitee agrees promptly to notify the Company in writing upon being
served with any summons, citation, subpoena, complaint, indictment or other
document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Company
shall not relieve the Company of any obligations which it may have to
Indemnitee under this Agreement or otherwise, except to the extent that the
Company is prejudiced thereby.
16. NOTICES.
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed
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to have been duly given if (i) delivered and receipted for by the party to
whom said notice or other communication shall have been directed; (ii)
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed; or (iii) sent by
facsimile, the successful transmission and receipt of which is confirmed in
a written report; in each instance to the addresses and/or facsimile
numbers set forth below:
(a) If to Indemnitee, to: Xxxxxxx Xxxxxxx Xxxxxxx 0 Xxxx Xxxxx, Xxxxxxx,
XX 00000 Facsimile: 000-000-0000
(b) If to the Company, to:
Hanover Capital Mortgage Holdings, Inc.
000 XxxxxxxxxXxxxx - Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attention: Chief Operating Officer
Facsimile: (000) 000-0000
or to such other address or facsimile number as may have been furnished to
Indemnitee by the Company, as the case may be.
17. 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. Only one such
counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
18. 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 or interpretation thereof.
19. GOVERNING LAW.
The parties agree that this Agreement shall be governed by, and construed
and enforced in accordance with, the laws of Maryland without application
of the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx
Indemnification Agreement - X. Xxxxxxx
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President and CEO
INDEMNITEE
/s/ Xxxxxxx Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx Xxxxxxx
Indemnification Agreement - X. Xxxxxxx
Page 13 of 13
