Indemnification Provisions (version 1.0)
These indemnification provisions are a part of and are incorporated into those certain letter agreements (each, a “Letter Agreement”) that reference such provisions by and among the Company and Advisor. Each Letter Agreement and the provisions set forth herein are referred to as the “Agreement.” Capitalized terms used herein without definition shall have the meanings ascribed to them in the Letter Agreement.
As material consideration to enter into the Agreement, the Company agrees (i) to indemnify and hold harmless Advisor and its respective officers, directors, employees, affiliates, agents and members (along with Advisor, each of the foregoing being an “Indemnified Person”) to the fullest extent lawful, from and against any and all losses, claims, damages, or liabilities incurred by Indemnified Persons (whether joint or several, direct or indirect) arising from or relating to the Agreement, a Transaction, or any actions or inactions taken by an Indemnified Person in connection with the Agreement (a “Claim”); and (ii) to reimburse Indemnified Persons for all expenses (including reasonable fees, disbursements and other charges of counsel) as they are incurred in connection with investigating, preparing, pursuing, defending, or settling a Claim (including without limitation any shareholder or derivative action); provided, however, that the Company will not be liable to indemnify and hold harmless or reimburse an Indemnified Person pursuant to this paragraph to the extent that an arbitrator (or panel of arbitrators) or court of competent jurisdiction will have determined by a final non-appealable judgment that such Claim resulted from the gross negligence or willful misconduct of such Indemnified Person.
The Company will not settle, compromise or consent to the entry of a judgment in any pending or threatened action, claim, suit, dispute or proceeding against an Indemnified Person unless such settlement, compromise or consent includes a release of the Indemnified Persons satisfactory to Advisor and each Indemnified Person.
The Company further agrees that neither Advisor nor any other Indemnified Person will have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company, or anyone claiming liability on behalf of the Company, arising from or relating to the Agreement, a Transaction, or any actions or inactions taken by Indemnified Persons in connection with the Agreement, except to the extent that an arbitrator (or panel of arbitrators) or a court of competent jurisdiction will have determined by a final non-appealable judgment that losses, claims, damages, liabilities or costs incurred by the Company resulted from the gross negligence or willful misconduct of such Indemnified Person. The Company agrees that in no event will any Indemnified Person be liable or obligated in any manner for any consequential, exemplary or punitive damages or lost profits incurred by the Company arising from or relating to the Agreement, a Transaction, or any actions or inactions taken by an Indemnified Person in connection with the Agreement, and the Company agrees not to seek or claim any such damages under any circumstances.
If for any reason the foregoing indemnification or reimbursement is unavailable or insufficient fully to indemnify and hold harmless an Indemnified Person against a Claim, the Company will contribute to the amount paid or payable by an Indemnified Person as a result of such Claim in such proportion as is appropriate to reflect the relative financial benefits of the Transaction to the Company, on the one hand, and the Indemnified Person, on the other hand; or if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Company on the one hand and the Indemnified Person on the other hand with respect to such Claim as well as any other relevant equitable considerations. Notwithstanding the preceding paragraphs, in no event will the aggregate amount to be contributed by all Indemnified Persons towards all Claims, Company losses, claims, damages, liabilities or costs incurred, exceed the actual fees received by Advisor pursuant to the Agreement.
In the event that Advisor or any of its employees, officers, affiliates or agents are requested or required to appear as a witness or subpoenaed to produce documents in any action in which the Company or any of its affiliates is a party to and Advisor is not, the Company will reimburse Advisor for all expenses incurred by its employees, officers, affiliates or agents in preparing for and appearing as a witness or producing documents, including the reasonable fees and disbursements of legal counsel.
The rights accorded to Indemnified Persons hereunder will be in addition to any rights that any Indemnified Person may have at common law, by separate agreement or otherwise. If any provision of this indemnification agreement is determined to be invalid or unenforceable, such determination will not affect any other provision of this indemnification agreement, which will remain in full force and effect. Each Indemnified Person is an intended beneficiary hereunder. These Indemnification Provisions will remain in effect indefinitely notwithstanding any expiration or termination of the Agreement.
Notwithstanding the above, indemnification shall not exceed the maximum level permitted under applicable Federal, state or other laws and any indemnification shall not waive any non-waivable rights of the Company that it may have under applicable Federal or state law.