INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (“Agreement”) is made
effective as of the 17th day of April, 2009, by and between Walter
Investment Management Corp., a Maryland corporation (the
“Company”), and
(“Indemnitee”).
WHEREAS ,
at the request of the Company, Indemnitee currently serves as an
officer/board member of the Company and may, therefore, be
subjected to claims, suits or proceedings arising as a result of
his service; and
WHEREAS ,
as an inducement to Indemnitee to continue to serve as such
director, 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 in Control” means a change in 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
“Exchange Act”), whether or not the Company is then
subject to such reporting requirement; provided, however, that,
without limitation, such a Change in 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 Exchange Act) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing 15% or more of the combined voting power of all of the
Company’s then-outstanding securities entitled to vote
generally in the election of directors without the prior approval
of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person’s attaining such
percentage interest; (ii) 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) at any time, a majority of
the members of the Board of Directors are not individuals
(A) who were directors as of the Effective Date or
(B) whose election by the Board of Directors or nomination for
election by the Company’s stockholders was approved by the
affirmative vote of at least two-thirds of the directors then in
office who were directors as of the Effective Date or whose
election for nomination for election was previously so
approved.
(b)
“Corporate Status” means the status of a person as a
present or former director, officer, employee or agent of the
Company or as a director, trustee, officer, partner, manager,
managing member, fiduciary, employee or agent of any other foreign
or domestic corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise
that such person is or was serving in such capacity at the request
of the Company. As a clarification and without limiting the
circumstances in which Indemnitee may be serving at the request of
the Company, service by Indemnitee shall be deemed to be at the
request of the Company if Indemnitee serves or served as a
director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any corporation, partnership,
limited liability company, joint venture, trust, employee benefit
plan or other enterprise (i) of which a majority of the voting
power or equity interest is owned directly or indirectly by the
Company or (ii) the management of which is controlled directly
or indirectly by 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 and/or advance of Expenses is sought by
Indemnitee.
(d)
“Effective Date” means the date set forth in the first
paragraph of this Agreement.
(e)
“Expenses” means any and all reasonable and
out-of-pocket attorneys’ fees and costs, retainers, court
costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, federal, state, local or
foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, ERISA excise
taxes and penalties and any other disbursements or expenses
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. Expenses
shall also include Expenses incurred in connection with any appeal
resulting from any Proceeding including, without limitation, the
premium, security for and other costs relating to any cost bond
supersedeas bond or other appeal bond or its equivalent.
(f)
“Independent Counsel” means a law firm, or a member of
a law firm, that is experienced in matters of 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 (other than with respect to matters
concerning Indemnitee under this Agreement or of other indemnitees
under similar indemnification agreements), or (ii) any other
party to or participant or witness in the Proceeding giving rise to
a claim for indemnification or advance of Expenses 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.
(g)
“Proceeding” means any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other
proceeding, whether brought by or in the right of the Company or
otherwise and whether of a civil (including intentional or
unintentional tort claims), criminal, administrative or
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investigative
(formal or informal) nature, including any appeal therefrom, except
one pending or completed on or before the Effective Date, unless
otherwise specifically agreed in writing by the Company and
Indemnitee. If Indemnitee reasonably believes that a given
situation may lead to or culminate in the institution of a
Proceeding, such situation shall also be considered a
Proceeding.
Section 2.
Services by Indemnitee . Indemnitee will serve as a
directors of the Company. However, this Agreement shall not impose
any independent obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company. This Agreement shall not
be deemed an employment contract between the Company (or any other
entity) and Indemnitee.
Section 3.
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 Effective Date 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 Effective Date. 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
(the “MGCL”).
Section 4.
Standard for Indemnification . If, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is
threatened to be, made a party to any Proceeding, Indemnitee shall
be indemnified against all judgments, penalties, fines and amounts
paid in settlement and all Expenses actually and reasonably
incurred by him or on his behalf in connection with any such
Proceeding unless it is established that (a) the act or
omission of Indemnitee was material to the matter giving rise to
the Proceeding and (i) was committed in bad faith or
(ii) was the result of active and deliberate dishonesty,
(b) Indemnitee actually received an improper personal benefit
in money, property or services or (c) in the case of any
criminal Proceeding, Indemnitee had reasonable cause to believe
that his conduct was unlawful.
Section 5.
Certain Limits on Indemnification. Notwithstanding any other
provision of this Agreement (other than Section 6), Indemnitee
shall not be entitled to:
(a) indemnification
hereunder if the Proceeding was one by or in the right of the
Company and Indemnitee is adjudged to be liable to the
Company;
(b) indemnification
hereunder if Indemnitee is adjudged to be liable on the basis that
personal benefit was improperly received in any Proceeding charging
improper personal benefit to Indemnitee, whether or not involving
action in the Indemnitee’s Corporate Status; or
(c) indemnification
or advance of Expenses hereunder if the Proceeding was brought by
Indemnitee unless: (i) the Proceeding was brought to enforce
indemnification under this Agreement, and then only to the extent
in accordance with and as authorized by Section 12 of this
Agreement, or (ii) the Company’s charter or Bylaws, a
resolution of the stockholders entitled to vote generally in the
election of directors or of the Board of Directors or an
agreement
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approved by the
Board of Directors to which the Company is a party expressly
provide otherwise.
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.
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 was or is, by reason of his Corporate Status, made
a party to (or otherwise becomes a participant in) any Proceeding
and is successful, on the merits or otherwise, in the defense of
such Proceeding, Indemnitee shall be indemnified for all Expenses
actually and reasonably incurred by him 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 or on his behalf in connection with each such claim, issue or
matter, allocated on a reasonable and proportionate basis. For
purposes of this Section 7 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 for a Party . If, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is
threatened to be, made a party to any Proceeding, the Company
shall, without requiring a preliminary determination of
Indemnitee’s ultimate entitlement to indemnification
hereunder, advance all reasonable Expenses incurred by or on behalf
of Indemnitee in connection with such Proceeding within ten days
after the receipt by the Company of a statement or statements
requesting such advance or advances from time to time, whether
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
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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 by Indemnitee and which have
not been successfully resolved as described in Section 7 of
this Agreement. 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.
Indemnification and Advance of Expenses of a Witness .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is or may be, by reason of his Corporate
Status, made a witness or otherwise asked to participate in any
Proceeding, whether instituted by the Company or any other party,
and to which Indemnitee is not a party, he shall be advanced all
reasonable Expenses and indemnified against all Expenses actually
and reasonably incurred by him or on his behalf in connection
therewith within ten days after the receipt by the Company of a
statement or statements requesting such advance or advances from
time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee.
Section 10.
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. Indemnitee may submit one or more such requests
from time to time and at such time(s) as Indemnitee deems
appropriate in his sole discretion. The officer of the Company
receiving any such request from Indemnitee shall, promptly upon
receipt of such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested
indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to
Section 10(a) above, a determination, if required by applicable
law, with respect to Indemnitee’s entitlement thereto shall
promptly be made in the specific case: (i) if a Change in
Control shall have occurred, by Independent Counsel, in a written
opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, which Independent Counsel shall be
selected by the Indemnitee and approved by the Board of Directors
in accordance with Section 2-418(e)(2)(ii) of the MGCL, which
approval will not be unreasonably withh
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