Exhibit 10.11
FORM OF DEED OF
INDEMNITY
This Deed of Indemnity (this
“Deed” ) dated the _______ day of
____________, by and between Greenlight Capital Re, Ltd., a Cayman
Islands exempted company (the “Company”
), and ____________, an individual (
“Indemnitee” ).
RECITALS
A. Competent and experienced persons
are reluctant to serve or to continue to serve as directors and
officers of companies or in other capacities unless they are
provided with adequate protection through insurance or
indemnification (or both) against claims against them arising out
of their service and activities on behalf of a company.
B. The Board of Directors of the
Company (the “ Board of Directors ” ) has
determined that the continuation of present trends in litigation
will make it more difficult to attract and retain competent and
experienced persons to serve as directors and officers of the
Company, that this situation is detrimental to the best interests
of the Company’s shareholders and that the Company should act
to assure such persons that there will be increased certainty of
adequate protection in the future.
C. As a supplement to and in the
furtherance of the provisions regarding the indemnification and
limitation of liability of directors and officers of the Company
that are contained in the Memorandum of Association and Articles of
Association of the Company, as amended ( “ Memorandum
and Articles ” ), it is reasonable, prudent,
desirable and necessary for the Company contractually to obligate
itself to indemnify, and to pay in advance expenses on behalf of,
officers and directors to the fullest extent permitted by law so
that they will serve or continue to serve the Company free from
concern that they will not be so indemnified and that their
expenses will not be so paid in advance;
D. This Deed is not a substitute
for, nor does it diminish or abrogate any rights of Indemnitee
under the Memorandum and Articles or any resolutions adopted
pursuant thereto (including any contractual rights of Indemnitee
that may exist).
E. Indemnitee is a director and/or
officer of the Company and his or her willingness to continue to
serve in such capacity is predicated, in substantial part, upon the
Company’s willingness to indemnify him or her to the fullest
extent permitted by the laws of the Cayman Islands and upon the
other undertakings set forth in this Deed.
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AGREEMENT
NOW, THEREFORE,
in consideration of the premises and
covenants contained herein, the Company and Indemnitee hereby agree
as follows:
ARTICLE 1
CERTAIN
DEFINITIONS
Capitalised terms used but not
otherwise defined in this Deed have the meanings set forth
below:
“ Corporate Status
” means the status
of a person who is or was a director, officer, employee, partner,
member, manager, trustee, fiduciary or agent of the Company or of
any other Enterprise which such person is or was serving at the
request of the Company. In addition to any service at the actual
request of the Company, Indemnitee will be deemed, for purposes of
this Deed, to be serving or to have served at the request of the
Company as a director, officer, employee, partner, member, manager,
trustee, fiduciary or agent of another Enterprise if Indemnitee is
or was serving as a director, officer, employee, partner, member,
manager, fiduciary, trustee or agent of such Enterprise and (i)
such Enterprise is or at the time of such service was a Controlled
Affiliate, (ii) such Enterprise is or at the time of such service
was an employee benefit plan (or related trust) sponsored on
maintained by the Company or a Controlled Affiliate or (iii) the
Company or a Controlled Affiliate directly or indirectly caused
Indemnitee to be nominated, elected, appointed, designated,
employed, engaged or selected to serve in such capacity.
“ Controlled
Affiliate ” means any company, limited liability company,
partnership, joint venture, trust or other Enterprise, whether or
not for profit, that is directly or indirectly controlled by the
Company. For purposes of this definition, the term
“control” means the possession, directly or indirectly,
of the power to direct, or cause the direction of, the management
or policies of an Enterprise, whether through the ownership of
voting securities, through other voting rights, by contract or
otherwise; provided, however, that direct or indirect
beneficial ownership of capital stock or other interests in an
Enterprise entitling the holder to cast 30% or more of the total
number of votes generally entitled to be cast in the election of
directors (or persons performing comparable functions) of such
Enterprise will be deemed to constitute “control” for
purposes of this definition.
“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.
“Enterprise”
means the Company and any other
company, partnership, limited liability company, joint venture,
employee benefit plan, trust or other entity or other enterprise of
which Indemnitee is or was serving at the request of the Company in
a Corporate Status.
“Expenses”
means all reasonable
attorney’s fees, disbursements and retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, fax transmission charges, secretarial services,
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delivery service fees and all other
reasonable disbursements or expenses paid or incurred in connection
with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding, or in connection with seeking
indemnification under this Deed or under the Memorandum and
Articles. Expenses will also include Expenses paid or incurred in
connection with any appeal resulting from any Proceeding, including
the premium, security for and other costs relating to any appeal
bond or its equivalent. Expenses, however, will not include amounts
paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.
“Independent
Counsel” means
an attorney or firm of attorneys that is experienced in matters of
company law and neither currently is, nor in the past five (5)
years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other than
with respect to matters concerning the Indemnitee under this Deed
and/or the indemnification provisions of the Memorandum and
Articles, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise
to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” does 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
Deed.
“ Losses
” means any loss,
liability, judgments, damages, amounts paid in settlement, fines
(including stamp duties, taxes and penalties assessed with respect
to employee benefit plans), penalties (whether civil, criminal or
otherwise) and all interest, assessments and other charges paid or
payable in connection with or in respect of any of the
foregoing.
“Proceeding”
means any threatened, pending or
completed action, suit, claim, demand, arbitration, alternate
dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed
proceeding, including any and all appeals, whether brought by or in
the right of the Company or otherwise, whether civil, criminal,
administrative or investigative, whether formal or informal, and in
each case whether or not commenced prior to the date of this Deed,
in which Indemnitee was, is or will be involved as a party or
otherwise, by reason of or relating to Indemnitee’s Corporate
Status and by reason of or relating to either (i) any action or
alleged action taken by Indemnitee (or failure or alleged failure
to act) or of any action or alleged action (or failure or alleged
failure to act) on Indemnitee’s part, while acting in his or
her Corporate Status or (ii) the fact that Indemnitee is or was
serving at the request of the Company as director, officer,
employee, partner, member, manager, trustee, fiduciary or agent of
another Enterprise, in each case whether or not serving in such
capacity at the time any Loss or Expense is paid or incurred for
which indemnification or advancement of Expenses can be provided
under this Deed, except one initiated by Indemnitee to enforce his
or her rights under this Deed. For purposes of this definition, the
term “threatened” will be deemed to include
Indemnitee’s good faith belief that a claim or other
assertion may lead to institution of a Proceeding.
References to “ serving
at the request of the Company ” include any service
as a director, officer, employee or agent of the Company which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to any employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner he or she
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reasonably believed to be in the
best interests of the participants and beneficiaries of an employee
benefit plan will be deemed to have acted in a manner “
not opposed to the best interests of the Company
.”
ARTICLE 2
SERVICES TO THE
COMPANY
2.1 Services to the
Company. Indemnitee
agrees to serve as a director of the Company. Indemnitee may at any
time and for any reason resign from such position (subject to any
other contractual obligation or any obligation imposed by operation
of law), in which event the Company will have no obligation under
this Deed to continue Indemnitee in such position. This Deed will
not be construed as giving Indemnitee any right to be retained in
the employ of the Company (or any other Enterprise).
ARTICLE 3
INDEMNIFICATION
3.1 Company
Indemnification. Except
as otherwise provided in this Article 3 , if Indemnitee was,
is or becomes a party to, or was or is threatened to be made a
party to, or was or is otherwise involved in, any Proceeding, the
Company will indemnify and hold harmless Indemnitee to the fullest
extent permitted by law, against any and all Expenses and Losses,
and any local or foreign stamp duties or taxes imposed as a result
of the actual or deemed receipt of any payments under this Deed,
that are paid or incurred by Indemnitee in connection with such
Proceeding.
3.2 Mandatory Indemnification if
Indemnitee is Wholly or Partly Successful. Notwithstanding any other provision of this Deed
(other than Section 6.9 ), to the extent that Indemnitee has
been successful, on the merits or otherwise, in defense of any
Proceeding or any part thereof, the Company will indemnify
Indemnitee against all Expenses that are paid or incurred by
Indemnitee 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 fewer than all claims, issues or
matters in such Proceeding, the Company will indemnify and hold
harmless Indemnitee against all Expenses paid or incurred by
Indemnitee in connection with each successfully resolved claim,
issue or matter on which Indemnitee was successful. For purposes of
this Section 3.2 , the termination of any Proceeding, or any
claim, issue or matter in such Proceeding, by dismissal with or
without prejudice will be deemed to be a successful result as to
such Proceeding, claim, issue or matter.
3.3 Indemnification for Expenses
of a Witness. Notwithstanding any other provision of this
Deed, to the extent that Indemnitee is, by reason of his or her
Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, the Company will indemnify Indemnitee against all
Expenses paid or incurred by Indemnitee on his or her behalf in
connection therewith.
3.4 Exclusions.
Notwithstanding any other provision
of this Deed, the Company will not be obligated under this Deed to
provide indemnification in connection with the
following:
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(a) Any Proceeding (or part of any
Proceeding) initiated or brought voluntarily by Indemnitee against
the Company or its directors, officers, employees or other
indemnities, unless the Board of Directors has authorised or
consented to the initiation of the Proceeding (or such part of any
Proceeding); provided, however, that nothing in this
Section 3.4(a) shall limit the right of Indemnitee to be
indemnified under Section 8.4 .
(b) For an accounting of profits
made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act or any similar successor
statute.
ARTICLE 4
ADVANCEMENT OF
EXPENSES
4.1 Expense Advances.
Except as set forth in Section
4.1 , the Company will, if requested by Indemnitee, advance, to
the fullest extent permitted by law, to Indemnitee (hereinafter an
“ Expense Advance ”) any and all Expenses
paid or incurred by Indemnitee in connection with any Proceeding
(whether prior to or after its final disposition).
Indemnitee’s right to each Expense Advance will not be
subject to the satisfaction of any standard of conduct and will be
made without regard to Indemnitee’s ultimate entitlement to
indemnification under the other provisions of this Deed, or under
provisions of the Memorandum and Articles or otherwise. Each
Expense Advance will be unsecured and interest free and will be
made by the Company without regard to Indemnitee’s ability to
repay the Expense Advance.
4.2 Exclusions.
Indemnitee will not be entitled to
any Expense Advance in connection with any of the matters for which
indemnity is excluded pursuant to Section 3.4 .
4.3 Timing.
An Expense Advance pursuant to
Section 4.1 will be made within five (5) business days after
the receipt by the Company of a written statement or statements
from Indemnitee requesting such Expense Advance (which statement or
statements will include, if requested by the Company, reasonable
detail and proof underlying the Expenses for which the Expense
Advance is requested), whether such request is made prior to or
after final disposition of such Proceeding.
ARTICLE 5
CONTRIBUTION IN THE EVENT OF
JOINT LIABILITY
5.1 Contribution by
Company. To the fullest
extent permitted by law, if the indemnification provided for in
this Deed is unavailable to Indemnitee for any reason whatsoever,
the Company, in lieu of indemnifying Indemnitee, will contribute to
the amount of Expenses and Losses incurred or paid by Indemnitee in
connection with any Proceeding in proportion to the relative
benefits received by the Company and all officers, directors and
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 and
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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 and Losses, as well as any other equitable considerations
which applicable law may require to be considered. The relative
fault of the Company and all officers, directors and 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, will 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 was active or passive.
5.2 Indemnification for
Contribution Claims by Others. To the fullest extent permitted by law, the
Company will fully indemnify and hold Indemnitee harmless from any
claims of contribution which may be brought by other officers,
directors or employees of the Company who may be jointly liable
with Indemnitee for any Loss or Expense arising from a
Proceeding.
ARTICLE 6
PROCEDURES AND PRESUMPTIONS FOR
THE
DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION
6.1 Notification of Claims;
Request for Indemnification. Indemnitee agrees to notify promptly the Company
in writing of any claim made against Indemnitee for which
indemnification will or could be sought under this Deed;
provided, however , that a delay in giving such notice will
not deprive Indemnitee of any right to be indemnified under this
Deed unless, and then only to the extent that, the Company did not
otherwise learn of the Proceeding and such delay is prejudicial to
the Company’s ability to defend such Proceeding; and,
provided, further, that notice will be deemed to have been
given without any action on the part of Indemnitee in the event the
Company is a party to the same Proceeding. The omission to notify
the Company will not relieve the Company from any liability for
indemnification which it may have to Indemnitee otherwise than
under this Deed. Indemnitee may deliver to the Company a written
request to have the Company indemnify and hold harmless Indemnitee
in accordance with this Deed. Subject to Section 6.9 , such
request may be delivered from time to time and at such time(s) as
Indemnitee deems appropriate in his or her sole discretion.
Following such a written request for indemnification,
Indemnitee’s entitlement to indemnification shall be
determined according to Section 6.2 . The Secretary of the
Company will, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification. The Company will be
entitled to participate in any Proceeding at its own
expense.
6.2 Determination of Right to
Indemnification. Upon
written request by Indemnitee for indemnification pursuant to
Section 6.1 hereof with respect to any Proceeding, a
determination, if, but only if, required by applicable law, with
respect to Indemnitee’s entitlement thereto will be made by
one of the following, at the election of Indemnitee: (1) so long as
there are Disinterested Directors with respect to such Proceeding,
a majority vote of the Disinterested Directors, even though less
than a quorum of the Board of Directors or (2) Independent Counsel
in a written opinion delivered to the Board of Directors, a copy of
which
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will also be delivered to
Indemnitee. The person, persons or entity chosen to make a
determination under this Deed of the Indemnitee’s entitlement
to indemnification will act reasonably and in good faith in making
such determination.
6.3 Selection of Independent
Counsel. If the
determination of entitlement to indemnification pursuant to
Section 6.2 will be made by an Independent Counsel, the
Independent Counsel will be selected as provided in this Section
6.3 . The Independent Counsel will be selected by Indemnitee
(unless Indemnitee requests that such selection be made by the
Board
