Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT is
made and entered into this 18 th day of October, 2006 (“
Agreement ”), by and between Alesco Financial Inc., a
Maryland corporation (the “ Company ”), and
____________________ (“ Indemnitee
”).
WHEREAS, at the request of the
Company, Indemnitee currently serves as an officer or director (or
both) of the Company and may, therefore, be subjected to claims,
suits or proceedings arising as a result of his/her service;
and
WHEREAS, as an inducement to
Indemnitee to continue to serve as such member, the Company has
agreed to indemnify and to advance expenses and costs incurred by
Indemnitee in connection with any such claims, suits or
proceedings, to the maximum extent permitted by law; and
WHEREAS, the parties by this
Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions . For
purposes of this Agreement:
(a) “ Change of Control
” means a change of control of the Company occurring after
the Effective Date of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar
schedule or form) promulgated under the Securities Exchange Act of
1934, as amended (the “ Act ”), whether or not
the Company is then subject to such reporting requirement;
provided, however, that, without limitation, such a Change of
Control shall be deemed to have occurred if after the Effective
Date (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Act) is or becomes
the “beneficial owner” (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the
Company representing 15% or more of the combined voting power in
the election of directors of the Company’s then outstanding
securities without the prior approval of at least two-thirds of the
members of the Board of Directors in office immediately prior to
such person attaining such percentage interest; (ii) there
occurs a proxy contest, or the Company is a party to a merger,
consolidation, sale of assets, plan of liquidation or other
reorganization not approved by at least two-thirds of the members
of the Board of Directors then in office, as a consequence of which
members of the Board of Directors in office immediately prior to
such transaction or event constitute less than a majority of the
Board of Directors thereafter; or (iii) during any period of
two consecutive years, other than as a result of an event described
in clause (a)(ii) of this Section 1, individuals who at
the beginning of such period constituted the Board of Directors
(including for this purpose any new director whose election or
nomination for election by the Company’s shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period)
cease for any reason to constitute at least a majority of the Board
of Directors.
(b) “ Corporate Status
” means the status of a person who is or was a director,
trustee, officer, employee or agent of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise for which such person is or was serving at
the request of the Company.
(c) “ 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.
(d) “ Effective Date
” means the date set forth in the first paragraph of this
Agreement.
(e) “ Expenses ”
shall include all reasonable and out-of-pocket 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, or being or preparing to be a
witness in a Proceeding.
(f) “ Independent
Counsel ” means a law firm, or a member of a law firm,
that is experienced in matters of Maryland corporation law and
neither is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter
material to either such party, or (ii) any other party to or
witness in 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
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. If a Change of
Control has not occurred, Independent Counsel shall be selected by
the Board of Directors, with the approval of Indemnitee, which
approval will not be unreasonably withheld. If a Change of Control
has occurred, Independent Counsel shall be selected by Indemnitee,
with the approval of the Board of Directors, which approval will
not be unreasonably withheld.
(g) “ Proceeding
” includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative (including on appeal),
except one pending or completed on or before the Effective Date,
unless otherwise specifically agreed in writing by the Company and
Indemnitee.
Section 2. Services by
Indemnitee . Indemnitee will serve as an officer or director
(or both) of the Company. However, this Agreement shall not impose
any obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
Section 3.
Indemnification—General . The Company shall indemnify,
and advance Expenses to, Indemnitee (a) as provided in this
Agreement and (b) otherwise to the maximum extent permitted by
Maryland law in effect on the date hereof and as amended from time
to time; provided, however, that no change in Maryland law shall
have the effect of reducing the benefits available to Indemnitee
hereunder based on Maryland law as in effect on the date hereof.
The rights of Indemnitee provided in this Section 3 shall
include, without limitation, the rights set forth in the other
sections of this Agreement, including any additional
indemnification permitted by Section 2-418(g) of the Maryland
General Corporation Law (“ MGCL ”).
Section 4. Proceedings Other Than
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he/she is, or
is threatened to be, made a party to or a witness in any
threatened, pending, or completed Proceeding, other than a
Proceeding by or in the right of the Company. Pursuant to this
Section 4, Indemnitee shall be indemnified against all
judgments, penalties, fines and amounts paid in settlement and all
Expenses actually and reasonably incurred by him/her or on his
behalf in connection with a Proceeding by reason of his Corporate
Status unless it is established that (i) the act or omission
of Indemnitee was material to the matter giving rise to the
Proceeding and (a) was committed in bad faith or
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(b) was the result of active and deliberate
dishonesty, (ii) Indemnitee actually received an improper
personal benefit in money, property or services, or (iii) in
the case of any criminal Proceeding, Indemnitee had reasonable
cause to believe that his conduct was unlawful.
Section 5. Proceedings by or in
the Right of the Company . Indemnitee shall be entitled to the
rights of indemnification provided in this Section 5 if, by
reason of his Corporate Status, he/she is, or is threatened to be,
made a party to or a witness in any threatened, pending or
completed Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 5,
Indemnitee shall be indemnified against all amounts paid in
settlement and all Expenses actually and reasonably incurred by
him/her or on his behalf in connection with such Proceeding unless
it is established that (i) the act or omission of Indemnitee
was material to the matter giving rise to such a Proceeding and
(a) was committed in bad faith or (b) was the result of
active and deliberate dishonesty or (ii) Indemnitee actually
received an improper personal benefit in money, property or
services.
Section 6. Court-Ordered
Indemnification . Notwithstanding any other provision of this
Agreement, a court of appropriate jurisdiction, upon application of
Indemnitee and such notice as the court shall require, may order
indemnification in the following circumstances:
(a) if it determines Indemnitee is
entitled to reimbursement under Section 2-418(d)(1) of the
MGCL, the court shall order indemnification, in which case
Indemnitee shall be entitled to recover the expenses of securing
such reimbursement; or
(b) if it determines that Indemnitee
is fairly and reasonably entitled to indemnification in view of all
the relevant circumstances, whether or not Indemnitee (i) has
met the standards of conduct set forth in
Section 2-418(b) of the MGCL or (ii) has been
adjudged liable for receipt of an improper personal benefit under
Section 2-418(c) of the MGCL, the court may order such
indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right
of the Company or in which liability shall have been adjudged in
the circumstances described in Section 2-418(c) of the
MGCL shall be limited to Expenses actually and reasonably incurred
by him/her or on his behalf in connection with a
Proceeding.
Section 7. Indemnification for
Expenses of a Party Who is Wholly or Partly Successful .
Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by
reason of his Corporate Status, made a party to and is successful,
on the merits or otherwise, in the defense of any Proceeding,
he/she shall be indemnified for all Expenses actually and
reasonably incurred by him/her or on his behalf 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 less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee under this
Section 7 for all Expenses actually and reasonably incurred by
him/her or on his behalf in connection with each successfully
resolved claim, issue or matter, allocated on a reasonable and
proportionate basis. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or
matter.
Section 8. Advance of
Expenses . The Company shall advance all reasonable Expenses
actually and reasonably incurred by or on behalf of Indemnitee in
connection with any Proceeding (other than a Proceeding brought to
enforce indemnification under this Agreement, applicable law, the
Company’s articles of incorporation or by-laws, each as
amended, any agreement or a resolution of the shareholders entitled
to vote generally in the election of directors or of the Board of
Directors) to which Indemnitee is, or is threatened to be, made a
party or a witness, within ten days after the receipt by the
Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time, whether
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prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by a written affirmation by Indemnitee of
Indemnitee’s good faith belief that the standard of conduct
necessary for indemnification by the Company as authorized by law
and by this Agreement has been met and a written undertaking by or
on behalf of Indemnitee, in substantially the form attached hereto
as Exhibit A or in such form as may be required under
applicable law as in effect at the time of the execution thereof,
to reimburse the portion of any Expenses advanced to Indemnitee
relating to claims, issues or matters in the Proceeding as to which
it shall ultimately be established that the standard of conduct has
not been met and which have not been successfully resolved as
described in Section 7. To the extent that Expenses advanced
to Indemnitee do not relate to a specific claim, issue or matter in
the Proceeding, such Expenses shall be allocated on a reasonable
and proportionate basis. The undertaking required by this
Section 8 shall be an unlimited general obligation by or on
behalf of Indemnitee and shall be accepted without reference to
Indemnitee’s financial ability to repay such advanced
Expenses and without any requirement to post security
therefor.
Section 9. Procedure for
Determination of Entitlement to Indemnification .
(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 is
reasonably necessary 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
