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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/29/24 Genworth Financial Inc. 10-K 12/31/23 217:65M Donnelley … Solutions/FA |
Document/Exhibit Description Pages Size
1: 10-K Annual Report HTML 14.39M
2: EX-10.40 Material Contract HTML 118K
3: EX-10.41 Material Contract HTML 117K
4: EX-21 Subsidiaries List HTML 66K
5: EX-23 Consent of Expert or Counsel HTML 59K
6: EX-24 Power of Attorney HTML 64K
11: EX-97 Clawback Policy re: Recovery of Erroneously HTML 74K
Awarded Compensation
7: EX-31.1 Certification -- §302 - SOA'02 HTML 63K
8: EX-31.2 Certification -- §302 - SOA'02 HTML 63K
9: EX-32.1 Certification -- §906 - SOA'02 HTML 61K
10: EX-32.2 Certification -- §906 - SOA'02 HTML 61K
17: R1 Cover Page HTML 130K
18: R2 Consolidated Balance Sheets HTML 206K
19: R3 Consolidated Balance Sheets (Parenthetical) HTML 79K
20: R4 Consolidated Statements of Income HTML 233K
21: R5 Consolidated Statements of Comprehensive Income HTML 105K
22: R6 Consolidated Statements of Changes in Equity HTML 139K
23: R7 Consolidated Statements of Cash Flows HTML 189K
24: R8 Consolidated Statements of Cash Flows HTML 63K
(Parenthetical)
25: R9 Pay vs Performance Disclosure HTML 78K
26: R10 Insider Trading Arrangements HTML 67K
27: R11 Nature of Business HTML 77K
28: R12 Summary of Significant Accounting Policies HTML 286K
29: R13 Long-Duration Insurance Contracts Targeted HTML 323K
Improvements
30: R14 Earnings Per Share HTML 109K
31: R15 Investments HTML 1.02M
32: R16 Derivative Instruments HTML 284K
33: R17 Deferred Acquisition Costs HTML 123K
34: R18 Intangible Assets HTML 95K
35: R19 Reinsurance HTML 190K
36: R20 Future Policy Benefits HTML 312K
37: R21 Policyholder Account Balances HTML 210K
38: R22 Additional Insurance Liabilities HTML 110K
39: R23 Market Risk Benefits HTML 170K
40: R24 Separate Accounts HTML 93K
41: R25 Liability for Policy and Contract Claims HTML 294K
42: R26 Employee Benefit Plans HTML 74K
43: R27 Borrowings and Other Financings HTML 100K
44: R28 Income Taxes HTML 187K
45: R29 Supplemental Cash Flow Information HTML 62K
46: R30 Long-Term Incentive Compensation HTML 217K
47: R31 Fair Value of Financial Instruments HTML 2.17M
48: R32 Insurance Subsidiary Financial Information and HTML 113K
Regulatory Matters
49: R33 Segment Information HTML 434K
50: R34 Quarterly Results of Operations (Unaudited) HTML 179K
51: R35 Commitments and Contingencies HTML 93K
52: R36 Changes in Accumulated Other Comprehensive Income HTML 194K
(Loss)
53: R37 Noncontrolling Interests HTML 72K
54: R38 Discontinued Operations HTML 91K
55: R39 Schedule I Genworth Financial, Inc. Summary of HTML 89K
Investments-Other Than Investments in Related
Parties
56: R40 Schedule II Genworth Financial, Inc. (Parent HTML 230K
Company Only)
57: R41 Schedule III Supplemental Insurance Information HTML 147K
58: R42 Summary of Significant Accounting Policies HTML 346K
(Policies)
59: R43 Summary of Significant Accounting Policies HTML 186K
(Tables)
60: R44 Long-Duration Insurance Contracts Targeted HTML 327K
Improvements (Tables)
61: R45 Earnings Per Share (Tables) HTML 108K
62: R46 Investments (Tables) HTML 1.04M
63: R47 Derivative Instruments (Tables) HTML 288K
64: R48 Deferred Acquisition Costs (Tables) HTML 123K
65: R49 Intangible Assets (Tables) HTML 97K
66: R50 Reinsurance (Tables) HTML 176K
67: R51 Future Policy Benefits (Tables) HTML 310K
68: R52 Policyholder Account Balances (Tables) HTML 210K
69: R53 Additional Insurance Liabilities (Tables) HTML 111K
70: R54 Market Risk Benefits (Tables) HTML 170K
71: R55 Separate Accounts (Tables) HTML 94K
72: R56 Liability for Policy and Contract Claims (Tables) HTML 298K
73: R57 Borrowings and Other Financings (Tables) HTML 88K
74: R58 Income Taxes (Tables) HTML 181K
75: R59 Long-Term Incentive Compensation (Tables) HTML 205K
76: R60 Fair Value of Financial Instruments (Tables) HTML 2.14M
77: R61 Insurance Subsidiary Financial Information and HTML 85K
Regulatory Matters (Tables)
78: R62 Segment Information (Tables) HTML 427K
79: R63 Quarterly Results of Operations (Unaudited) HTML 178K
(Tables)
80: R64 Changes in Accumulated Other Comprehensive Income HTML 192K
(Loss) (Tables)
81: R65 Noncontrolling Interests (Tables) HTML 69K
82: R66 Discontinued Operations (Tables) HTML 90K
83: R67 Nature of Business - Additional Information HTML 79K
(Detail)
84: R68 Summary of Significant Accounting Policies - HTML 162K
Additional Information (Detail)
85: R69 Summary of Significant Accounting Policies - HTML 177K
Summary Of Impact Of Accounting Changes Due To
Recognition And Measurement Of Long Duration
Insurance Contracts On The Statement Of Financial
Position (Detail)
86: R70 Summary of Significant Accounting Policies - HTML 254K
Summary Of Impact Of Accounting Changes Due To
Recognition And Measurement Of Long Duration
Insurance Contracts On The Income Statement
(Detail)
87: R71 Summary of Significant Accounting Policies - HTML 136K
Summary Of Impact Of Accounting Changes Due To
Recognition And Measurement Of Long Duration
Insurance Contracts On The Cash Flow Statement
(Detail)
88: R72 Summary Of Adoption Of New Accounting Guidance HTML 288K
Related To The Recognition And Measurement Of
Long-Duration Insurance Contracts (Detail)
89: R73 Summary of the Transition Adjustments within HTML 124K
Stockholders Equity (Detail)
90: R74 Summary Of Business Acquired And Deferred Sales HTML 82K
Inducement As A Result Of Adoption Of New
Accounting Guidance (Detail)
91: R75 Summary Of Changes In The Liability For Future HTML 134K
Policy Benefits (Detail)
92: R76 Summary Of Changes In The Net Liability Position HTML 114K
For Market Risk Benefits (Detail)
93: R77 Long-Duration Insurance Contracts Targeted HTML 62K
Improvements - Additional Information (Detail)
94: R78 Summary of Changes in Deferred Acquisition Costs HTML 101K
(Detail)
95: R79 Earnings Per Share (Detail) HTML 186K
96: R80 Net Investment Income (Detail) HTML 88K
97: R81 Net Investment Gains (Losses) (Detail) HTML 93K
98: R82 Net Investment Allowance for Credit Losses HTML 99K
(Detail)
99: R83 Investments - Additional Information (Detail) HTML 116K
100: R84 Net Unrealized Gains and Losses on HTML 77K
Available-for-Sale Investment Securities Reflected
as Separate Component of Accumulated Other
Comprehensive Income (Loss) (Detail)
101: R85 Change in Net Unrealized Gains (Losses) on HTML 83K
Available-for-Sale Securities Reported in
Accumulated Other Comprehensive Income (Loss)
(Detail)
102: R86 Change in Net Unrealized Gains (Losses) on HTML 64K
Available-for-Sale Securities Reported in
Accumulated Other Comprehensive Income (Loss)
(Parenthetical) (Detail)
103: R87 Amortized Cost or Cost, Gross Unrealized Gains HTML 205K
(Losses) and Fair Value of Fixed Maturity and
Equity Securities Classified as Available-for-Sale
(Detail)
104: R88 Gross Unrealized Losses and Fair Value of HTML 181K
Investment Securities (Detail)
105: R89 Gross Unrealized Losses and Fair Value of HTML 205K
Corporate Securities Based on Industries (Detail)
106: R90 Scheduled Maturity Distribution of Fixed Maturity HTML 107K
Securities (Detail)
107: R91 Distribution Across Property Type and Geographic HTML 112K
Region for Commercial Mortgage Loans (Detail)
108: R92 Allowance for Credit Losses Related To Commercial HTML 73K
Mortgage Loans (Detail)
109: R93 Commercial Mortgage Loans By Year of Origination HTML 183K
and Credit Quality Indicator (Detail)
110: R94 Debt-to-Value of Commercial Mortgage Loans by HTML 135K
Property Type (Detail)
111: R95 Debt Service Coverage Ratio for Fixed Rate HTML 143K
Commercial Mortgage Loans by Property Type
(Detail)
112: R96 Schedule of Positions in Derivative Instruments HTML 124K
(Detail)
113: R97 Activity Associated with Derivative Instruments HTML 102K
(Detail)
114: R98 Schedule of Pre-Tax Income (Loss) Effects of Cash HTML 93K
Flow Hedges (Detail)
115: R99 Reconciliation of Current Period Changes, Net of HTML 68K
Applicable Income Taxes, for Derivatives
Qualifying as Hedges (Detail)
116: R100 Reconciliation of Current Period Changes, Net of HTML 66K
Applicable Income Taxes, for Derivatives
Qualifying as Hedges (Parenthetical) (Detail)
117: R101 Derivative Instruments - Additional Information HTML 70K
(Detail)
118: R102 Schedule of Pre-Tax Gain (Loss) Recognized in Net HTML 80K
Income (Loss) for Effects of Derivatives not
Designated as Hedges (Detail)
119: R103 Additional Information about Derivative Assets and HTML 132K
Liabilities Subject to Enforceable Master Netting
Arrangement (Detail)
120: R104 Changes in Deferred Acquisition Costs (Detail) HTML 94K
121: R105 Intangible Assets (Detail) HTML 76K
122: R106 Intangible Assets - Additional Information HTML 67K
(Detail)
123: R107 Changes in Present Value of Future Profits HTML 69K
(Detail)
124: R108 Percentage of PVFP Balance Net of Interest HTML 73K
Accretion, before Effect of Unrealized Investment
Gains or Losses, Estimated to be Amortized Over
Next Five years (Detail)
125: R109 Net Domestic Life Insurance In-Force (Detail) HTML 73K
126: R110 Effects of Reinsurance on Premiums Written and HTML 99K
Earned (Detail)
127: R111 Effects of Reinsurance on Premiums Written and HTML 64K
Earned (Parenthetical) (Detail)
128: R112 Reinsurance - Schedule of Reinsurance Recoverable HTML 69K
in Allowance for Credit Losses (Detail)
129: R113 Reinsurance - Schedule Of Credit Ratings on HTML 79K
Reinsurance Recoverable (Detail)
130: R114 Reinsurance - Additional Information (Detail) HTML 128K
131: R115 Future Policy Benefits - Summary of Components of HTML 79K
Liability for Future Policy Benefits (Detail)
132: R116 Future Policy Benefits - Summary of Liability for HTML 210K
Future Policy Benefit Activity (Detail)
133: R117 Future Policy Benefits - Summary of Weighted HTML 73K
Average Interest and Discount Rates (Detail)
134: R118 Future Policy Benefits - Summary of Undiscounted HTML 82K
and Discounted Expected Future Gross Premiums and
Expected Future Benefit Payments (Detail)
135: R119 Future Policy Benefits - Summary of Revenue and HTML 75K
Interest Expense in Respect of Future Policy
Benefits (Detail)
136: R120 Future Policy Benefits - Additional Information HTML 75K
(Detail)
137: R121 Policyholder Account Balances - Summary of HTML 90K
Liabilities for Policyholder Account (Detail)
138: R122 Policyholder Account Balances - Summary of Changes HTML 118K
in Policyholder Account Balance (Detail)
139: R123 Policyholder Account Balances - Summary of Range HTML 113K
Guaranteed Minimum Crediting Rate (Detail)
140: R124 Policyholder Account Balances - Summary of Range HTML 126K
Guaranteed Minimum Crediting Rate (Parenthetical)
(Detail)
141: R125 Policyholder Account Balances - Additional HTML 68K
Information (Detail)
142: R126 Additional Insurance Liabilities - Summary of HTML 105K
Balances of and Changes in Additional Insurance
Liabilities (Detail)
143: R127 Additional Insurance Liabilities - Summary of HTML 67K
Weighted-Average Anterest rates for the Liability
for Additional Insurance Liabilities (Detail)
144: R128 Additional Insurance Liabilities - Summary of HTML 66K
Additional Liability Long Duration Insurance
Revenue and Interest Accretion (Expense)
Recognized (Detail)
145: R129 Summary of Market Risk Benefit (Detail) HTML 75K
146: R130 Summary of Balances of and Changes in Market Risk HTML 140K
Benefits (Detail)
147: R131 Summary of Changes in Separate Account Liabilities HTML 84K
(Detail)
148: R132 Summary of Aggregate Fair Value of Assets (Detail) HTML 73K
149: R133 Liability for Policy and Contract Claims (Detail) HTML 72K
150: R134 Changes in Liability for Policy and Contract HTML 87K
Claims (Detail)
151: R135 Liability for Policy and Contract Claims - HTML 66K
Additional Information (Detail)
152: R136 Incurred Claims, Net of Reinsurance, Cumulative HTML 118K
Number of Reported Delinquencies and Total of
Incurred-But-Not-Reported Liabilities (Detail)
153: R137 Paid Claims Development, Net of Reinsurance HTML 127K
(Detail)
154: R138 Average Payout of Incurred Claims by Age (Detail) HTML 84K
155: R139 Employee Benefit Plans - Additional Information HTML 111K
(Detail)
156: R140 Borrowings and Other Financings - Long Term HTML 88K
Borrowings (Detail)
157: R141 Borrowings and Other Financings - Long Term HTML 79K
Borrowings (Parenthetical) (Detail)
158: R142 Borrowings and Other Financings - Additional HTML 140K
Information (Detail)
159: R143 Principal Amounts of Long-Term Borrowings by HTML 76K
Maturity (Detail)
160: R144 Components of Income before Income Taxes (Detail) HTML 69K
161: R145 Components of Income Tax Provision (Detail) HTML 88K
162: R146 Income Taxes - Additional Information (Detail) HTML 111K
163: R147 Reconciliation of Federal Statutory Tax Rate to HTML 78K
Effective Income Tax Rate (Detail)
164: R148 Components Net Deferred Income Tax Liability HTML 110K
(Detail)
165: R149 Reconciliation of Unrecognized Tax Benefits HTML 72K
(Detail)
166: R150 Supplemental Cash Flow Information - Additional HTML 65K
Information (Detail)
167: R151 Long-Term Incentive Compensation - Additional HTML 121K
Information (Detail)
168: R152 Long-Term Incentive Compensation - Summary of HTML 72K
Other Equity Awards Valuation Assumptions (Detail)
169: R153 Stock Option Activity and Other Equity-Based HTML 121K
Awards (Detail)
170: R154 Long-Term Incentive Compensation - Summary of Cash HTML 100K
Award Activity (Detail)
171: R155 Long-Term Incentive Compensation - Summary of HTML 116K
Enact Holdings' Equity-Based Awards (Details)
172: R156 Fair Value of Financial Instruments - Additional HTML 102K
Information (Detail)
173: R157 Fair Value of Financial Instruments - Summary of HTML 110K
Significant Inputs Used by Third-Party Pricing
Services for Certain Fair Value Measurements of
Fixed Maturity Securities that Classified as Level
2 (Detail)
174: R158 Assets by Class of Instrument that are Measured at HTML 422K
Fair Value on Recurring Basis (Detail)
175: R159 Assets Measured at Fair Value on Recurring Basis HTML 359K
and Utilized Significant Unobservable (Level 3)
Inputs to Determine Fair Value (Detail)
176: R160 Gains and Losses Included in Net Income (Loss) HTML 80K
from Assets Measured at Fair Value (Detail)
177: R161 Summary of Significant Unobservable Inputs Used HTML 282K
for Fair Value Measurements Classified As Level 3
(Detail)
178: R162 Liabilities by Class of Instrument that are HTML 115K
Measured at Fair Value on Recurring Basis (Detail)
179: R163 Liabilities Measured at Fair Value on Recurring HTML 123K
Basis and Utilized Significant Unobservable (Level
3) Inputs to Determine Fair Value (Detail)
180: R164 Gains and Losses Included in Net (Income) from HTML 81K
Liabilities Measured at Fair Value (Detail)
181: R165 Fair Value Financial Instruments Not Required to HTML 126K
Be Carried at Fair Value (Detail)
182: R166 Summary of carrying value of limited partnerships HTML 85K
and commitments to fund (Detail)
183: R167 Insurance Subsidiary Financial Information and HTML 146K
Regulatory Matters - Additional Information
(Detail)
184: R168 Schedule of Statutory Accounting Practices HTML 78K
(Detail)
185: R169 Segment Information - Additional Information HTML 68K
(Detail)
186: R170 Summary of Segments and Corporate and Other HTML 348K
(Detail)
187: R171 Summary of Revenues for Segments and Corporate and HTML 96K
Other (Detail)
188: R172 Summary of Net Operating Income (Loss) for HTML 204K
Segments and Corporate and Other (Detail)
189: R173 Summary of Net Operating Income (Loss) for HTML 77K
Segments and Corporate and Other (Parenthetical)
(Detail)
190: R174 Schedule of Revenue, Net Income and Assets by HTML 134K
Geographic Location (Detail)
191: R175 Quarterly Results of Operations (Detail) HTML 183K
192: R176 Quarterly Results of Operations (Parenthetical) HTML 87K
(Detail)
193: R177 Commitments and Contingencies - Additional HTML 71K
Information (Detail)
194: R178 Component of Changes in Accumulated Other HTML 117K
Comprehensive Income (Loss) (Detail)
195: R179 Changes In Accumulated Other Comprehensive Income HTML 76K
(Loss) - Additional Information (Detail)
196: R180 Reclassifications In (Out) of Accumulated Other HTML 113K
Comprehensive Income (Loss), Net of Taxes (Detail)
197: R181 Noncontrolling Interests - Summary of Changes in HTML 90K
Ownership Interests (Details)
198: R182 Noncontrolling Interests - Additional Information HTML 96K
(Detail)
199: R183 Discontinued Operations - Schedule of Income Loss HTML 81K
on Sale Recorded in Our Disposition Group (Detail)
200: R184 Discontinued Operations - Schedule of Income Loss HTML 74K
on Sale Recorded in Our Disposition Group
(Parenthetical) (Detail)
201: R185 Discontinued Operations - Summary of Operating HTML 144K
Results Related to Discontinued Operations
(Detail)
202: R186 Discontinued Operations - Summary of Operating HTML 64K
Results Related to Discontinued Operations
(Parenthetical) (Detail)
203: R187 Discontinued Operations - Additional Information HTML 66K
(Detail)
204: R188 Schedule I Genworth Financial, Inc. Summary of HTML 101K
Investments-Other than Investments in Related
Parties (Detail)
205: R189 Schedule II Genworth Financial, Inc. (Parent HTML 134K
Company Only) (Balance Sheets) (Detail)
206: R190 Schedule II Genworth Financial, Inc. (Parent HTML 127K
Company Only) (Statements of Income) (Detail)
207: R191 Schedule II Genworth Financial, Inc. (Parent HTML 113K
Company Only) (Statements of Comprehensive Income)
(Detail)
208: R192 Schedule II Genworth Financial, Inc. (Parent HTML 152K
Company Only) (Statements of Cash Flows) (Detail)
209: R193 Schedule II Genworth Financial, Inc. (Parent HTML 134K
Company Only) - Additional Information (Detail)
210: R194 Schedule II Genworth Financial, Inc. (Parent HTML 176K
Company Only) - Accounting Changes (Detail)
211: R195 Schedule III Genworth Financial, Inc. Supplemental HTML 118K
Insurance Information (Schedule of Supplemental
Insurance Information) (Detail)
212: R196 Schedule III Genworth Financial, Inc. Supplemental HTML 70K
Insurance Information (Schedule of Supplemental
Insurance Information) (Parenthetical) (Detail)
214: XML IDEA XML File -- Filing Summary XML 426K
217: XML XBRL Instance -- d699556d10k_htm XML 24.22M
213: EXCEL IDEA Workbook of Financial Report Info XLSX 712K
13: EX-101.CAL XBRL Calculations -- gnw-20231231_cal XML 361K
14: EX-101.DEF XBRL Definitions -- gnw-20231231_def XML 4.30M
15: EX-101.LAB XBRL Labels -- gnw-20231231_lab XML 3.91M
16: EX-101.PRE XBRL Presentations -- gnw-20231231_pre XML 4.44M
12: EX-101.SCH XBRL Schema -- gnw-20231231 XSD 634K
215: JSON XBRL Instance as JSON Data -- MetaLinks 1,331± 2.21M
216: ZIP XBRL Zipped Folder -- 0001193125-24-051772-xbrl Zip 1.60M
| EX-10.41 |
Exhibit 10.41
AMENDED AND RESTATED INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement, dated as of February 26, 2024 (this “Agreement”), amends and restates that certain Indemnification Agreement, dated July 22, 2021 (the “2021 Agreement”), by and between Genworth Financial, Inc., a Delaware corporation (the “Company”), and Rohit Gupta (“Indemnitee”).
WHEREAS, it is essential to the Company to attract and retain as directors and officers the most capable persons available;
WHEREAS, Indemnitee has been a director and/or officer of the Company;
WHEREAS, Indemnitee, as President and Chief Executive Officer of Enact Holdings, Inc., a majority-owned subsidiary of the Company (“Enact”), currently is an executive officer (an “Executive Officer”) of the Company under Rule 3b-7 of the Exchange Act (as defined below) and a Section 16 officer (a “Section 16 Officer” and together with the role as an Executive Officer, an “SEC Officer”) of the Company under Rule 16a-1(f) of the Exchange Act. Until the Effective Time (as defined below), Indemnitee was also an officer of the Company for purposes of Section 142 or 145 of the General Corporation Law of the State of Delaware (the “DGCL”) and Article VIII of the Company’s Certificate of Incorporation (as defined below), but has not been so since the Effective Time;
WHEREAS, both the Company and Indemnitee recognize the risk of litigation and other claims being asserted against directors and officers of public companies;
WHEREAS, the Company’s Amended and Restated Certificate of Incorporation, as amended from time to time (the “Certificate of Incorporation”), requires the Company to indemnify and advance expenses to its directors and officers to the fullest extent permitted by law and Indemnitee has served as a director and/or officer of the Company, in part, in reliance on such Certificate of Incorporation;
WHEREAS, Indemnitee continues to serve as an SEC Officer of the Company;
WHEREAS, uncertainties as to the availability of indemnification may increase the risk that the Company will be unable to attract and retain as directors and officers the most capable persons available;
WHEREAS, the board of directors of the Company (the “Board”) has determined that enhancing the ability of the Company to attract and retain highly qualified persons as its directors and officers is in the best interests of the Company and its stockholders, and that the Company therefore should act to assure such persons that there will be increased certainty of protection through insurance, indemnification and other provisions against risks of claims and actions against them arising out of their service as directors and/or officers of the Company;
WHEREAS, in recognition of Indemnitee’s need for protection against personal liability and in order to enhance Indemnitee’s continued service as an SEC Officer to the Company in an effective manner, and to continue to provide Indemnitee with specific contractual indemnification and advancement protections that (i) for Indemnifiable Events (as defined
below) prior to the Effective Time are consistent with those available to other officers of the Company under the Certificate of Incorporation and (ii) for Indemnifiable Events from and after the Effective Time are as set forth herein, the Company wishes to provide in this Agreement for the indemnification of and the advancing of expenses to Indemnitee, and for the continued coverage of Indemnitee under the directors’ and officers’ liability insurance policy of the Company;
WHEREAS, it is in the best interests of the Company and its stockholders for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, Indemnitee so that Indemnitee will serve or continue to serve the Company as an SEC Officer free from undue concern for unpredictable, inappropriate or unreasonable legal risks and personal liabilities by reason of Indemnitee acting in good faith in the performance of Indemnitee’s duties to the Company; and Indemnitee desires to serve or continue to serve the Company as an SEC Officer, provided, and on the express condition, that Indemnitee is furnished with the indemnity and protections set forth herein; and
WHEREAS, by entry into this Agreement, the Company and Indemnitee amend and restate the 2021 Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the premises and of Indemnitee’s agreement to serve or continue to serve the Company as an SEC Officer and intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement:
| (a) | Change in Control: shall be deemed to have occurred if: |
| (i) | Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of thirty percent (30%) or more of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of its directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this definition, the following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company, including without limitation, a public offering of securities; (B) any acquisition by the Company or any of its “affiliates” (as defined in Rule 12b-2 of the General Rules of the Exchange Act); or (C) any acquisition by any employee benefit plan or related trust sponsored or maintained by the Company or any of its affiliates; |
| (ii) | Individuals who constitute the Board as of the date of this Agreement (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director of the Company subsequent to the date of this agreement whose election to the |
| Board, or nomination for election by the Company’s stockholders, was approved by a vote of (A) at least a majority of the directors then comprising the Incumbent Board, (B) a vote of at least a majority of any nominating committee of the Board, which nominating committee was designated by a vote of at least a majority of the directors then comprising the Incumbent Board, or (C) in the case of a director appointed to fill a vacancy in the Board, at least a majority of the directors entitled under Section 6 of Article VII of the Certificate of Incorporation to elect such director (so long as at least a majority of such directors voting in favor of the director filling the vacancy are themselves members of (or considered to be pursuant to this definition members of) the Incumbent Board) shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election or removal of the directors of the Company or other actual or threatened solicitation of proxies of consents by or on behalf of a person other than the Board; |
| (iii) | Consummation of a reorganization, merger, or consolidation to which the Company is a party or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, following such Business Combination, all or substantially all of the individuals and entities who were the beneficial owners of Outstanding Company Voting Securities immediately prior to such Business Combination are the beneficial owners, directly or indirectly, of more than fifty percent (50%) of the combined voting power of the outstanding voting securities entitled to vote generally in the election of directors of the corporation or other entity resulting from the Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) (the “Successor Entity”) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Voting Securities; or |
| (iv) | Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. |
A “Change in Control” will not be deemed to have occurred for purposes of this Agreement until the transaction (or series of transactions) that would otherwise be considered a “Change in Control” closes.
| (b) | Claim: means any actual, threatened, asserted, pending or completed action, suit or proceeding, whether civil, criminal, regulatory, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, or any appeal of any kind thereof, or any inquiry or investigation, whether instituted by (or in the right of) the Company or any governmental agency or any other person or entity, in which Indemnitee was, is, may be or will be involved as a party, witness or otherwise. |
| (c) | Disinterested Director: means a director of the Company who is not or was not a party to the particular Claim for which Indemnitee is seeking indemnification. |
| (d) | ERISA: means the Employee Retirement Income Security Act of 1974, as amended. |
| (e) | Expenses: include, without limitation, reasonable attorneys’ fees and all other reasonable direct or indirect costs, expenses and disbursements (including, without limitation, experts’ fees, court costs, retainers, travel expenses, appeal bond premiums, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier or delivery service charges), paid or incurred in connection with investigating, prosecuting, defending, settling, arbitrating, being a witness in or participating in (including on appeal), or preparing to investigate, prosecute, defend, settle, arbitrate, be a witness in or participate in, any Claim relating to any Indemnifiable Event, and shall include (without limitation) all reasonable attorneys’ fees and all other reasonable expenses incurred by or on behalf of an Indemnitee in connection with preparing and submitting any requests or statements for indemnification, advancement or any other right provided by this Agreement (including, without limitation, such fees or expenses incurred in connection with legal proceedings contemplated by Section 2(e) hereof). Expenses shall not include the amount of damages, judgments, fines, penalties, ERISA excise taxes or amounts paid in settlement. |
| (f) | Indemnifiable Amounts: means (i) any and all liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes or amounts paid in settlement) arising out of or resulting from any Claim relating to an Indemnifiable Event, (ii) any liability pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any subsidiary of the Company, including, without limitation, any indebtedness which the Company or any subsidiary of the Company has assumed, and (iii) any liabilities which an Indemnitee incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the United States Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise). To the fullest extent permitted by law, Indemnifiable Amounts shall include any punitive, special or exemplary damages, and the multiple portion of a multiplied damages award. |
| (g) | Indemnifiable Event: means any event or occurrence, whether occurring before, on or after the date of this Agreement, related to the fact that Indemnitee is or was (or agreed to serve as) a director, SEC Officer and/or officer or fiduciary of the Company, or is or was serving (or agreed to serve) at the request of the Company as a director, officer, employee, manager, member, partner, tax matter partner, trustee, agent, fiduciary or in a similar capacity, of or for another company, corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other entity or enterprise, or by reason of anything done or not done by Indemnitee in any such capacity (in all cases whether or not Indemnitee is or was acting or serving in any such capacity or has or had such status at the time any Indemnifiable Amount is incurred for which indemnification, advancement or any other right can be provided by this Agreement), provided that notwithstanding the foregoing, “Indemnifiable Event” shall not include any events, occurrences, actions or inactions of Indemnitee that take place after the effective time of Indemnitee’s resignation as an officer of the Company (September 20, 2021, the “Effective Time”) other than such events, occurrences, actions or inactions relating to Indemnitee’s service as an SEC Officer of the Company. After the Effective Time, with respect to Indemnitee’s service at Enact and any subsidiary or joint venture of Enact (and subject, in the case of a joint venture, to any indemnification arrangements agreed to by the joint venture parties), Enact, or any of its subsidiaries or joint ventures (as the case may be) shall be Indemnitee’s indemnitor, and Indemnitee shall have no right to indemnification or advancement under this Agreement for acts or omissions of Indemnitee that are taken in his capacity as a director, officer, employee or agent of Enact or any of its subsidiaries or joint ventures. |
For events, occurrences, acts or omissions of Indemnitee prior to the Effective Time, (i) the term “Company,” where the context requires when used in this Agreement, may be construed to include such other company, corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other entity or enterprise and (ii) service by Indemnitee shall be deemed to be at the request of the Company, in each case if Indemnitee served in any such capacity at (a) any direct or indirect majority-owned subsidiary of the Company, or (b) any joint venture of which at least 25% of the voting power or equity interest was owned at the time of the event, occurrence, act or omission directly or indirectly by the Company, or the management of which was controlled directly or indirectly by the Company. By entering into this Agreement, Indemnitee is deemed to be serving as an SEC Officer at the request of the Company for purposes of this Agreement, and the Company is deemed to be requesting such service. Notwithstanding the foregoing, and for the avoidance of doubt, (i) the Company acknowledges and agrees that Indemnitee served as an officer of the Company under Sections 142 and 145 of the DGCL and under Article VIII of the Certificate of Incorporation until the Effective Time and (ii) from and after the Effective Time, Indemnitee is not serving as an officer of the Company under Sections 142 and 145 of the DGCL or under Article VIII of the Certificate of Incorporation, nor shall he be deemed to be serving at the request of the Company as a director, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, under Article VIII of the Certificate of Incorporation.
| (h) | Indemnitee-Related Entity: means any company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise (other than the Company, any of its subsidiaries or joint ventures, Enact, any of its subsidiaries or joint ventures or any other company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise Indemnitee has agreed, on behalf of the Company, any of its subsidiaries or joint ventures, Enact, any of its subsidiaries or joint ventures or at the request of the Company, any of its subsidiaries or joint ventures, Enact, or any of its subsidiaries or joint ventures, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement) from whom Indemnitee may be entitled to indemnification or advancement of Expenses with respect to which, in whole or in part, the Company may also have an indemnification or advancement obligation. |
| (i) | Independent Legal Counsel: means an attorney or firm of attorneys (following a Change in Control selected in accordance with the provisions of Section 3 hereof) who or which is experienced in matters of corporate law and who or which shall not have otherwise performed services for the Company or Indemnitee on any matter material to such party within the last three years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements). |
| (j) | Jointly Indemnifiable Claim: means any Claim for which Indemnitee may be entitled to indemnification from both an Indemnitee-Related Entity and the Company pursuant to applicable laws, any indemnification agreements or the certificate of incorporation, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Company or an Indemnitee-Related Entity. |
| (k) | Voting Securities: means any securities of the Company which vote generally in the election of directors. |
2. Basic Indemnification Arrangement; Advancement of Expenses.
| (a) | Subject to and in accordance with Section 2(d), in the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted by applicable law as soon as practicable, but in any event no later than sixty (60) days after written demand is presented to the Company, and hold Indemnitee harmless against any and all Indemnifiable Amounts. Such written demand shall include documentation or information that is necessary for any determination of Indemnitee’s entitlement to indemnification required pursuant to this Agreement and that is reasonably available to the Indemnitee. |
| (b) | If so requested by Indemnitee, the Company shall advance promptly (and in any event within thirty (30) days of such request) any and all Expenses incurred by Indemnitee (an “Expense Advance”). The Company shall, in accordance with such request (but without duplication), either (i) pay such Expenses on behalf of Indemnitee or (ii) if Indemnitee shall have elected to pay such Expenses and have such Expenses reimbursed, reimburse Indemnitee for such Expenses. Indemnitee’s right to an Expense Advance is absolute and shall not be subject to satisfying any applicable standard of conduct for indemnification. Any request for an Expense Advance shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be accompanied by an undertaking, by or on behalf of Indemnitee, to repay any Expense Advance if a final judicial determination is made that Indemnitee is not permitted to be indemnified under applicable law (as to which all rights of appeal therefrom have been exhausted or lapsed). Indemnitee’s undertaking to repay any Expense Advance shall be unsecured and interest-free. Execution and delivery of this Agreement by the Indemnitee shall constitute an undertaking providing that the Indemnitee undertakes to repay the amounts advanced (without interest) by the Company pursuant to this Section 2, if and only to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. No other form of undertaking shall be required other than the execution of this Agreement. |
| (c) | Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated under this Agreement to make any indemnification payment or Expense Advance in connection with any Claim involving Indemnitee (i) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; (ii) for (x) 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 (as defined in Section 1(a) hereof) or similar provisions of state statutory law or common law, (y) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (z) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; (iii) that was voluntarily initiated by Indemnitee unless (x) the Company has joined in or the Board has authorized or consented to the initiation of such Claim, (y) the Claim is one to enforce Indemnitee’s rights under this Agreement, or (z) the Board otherwise determines that indemnification or advancement of Expenses is appropriate; or (iv) unless otherwise required by the Certificate of Incorporation, for Expenses determined by the Company to have |
| arisen out of Indemnitee’s breach or violation of his or her obligations under any written agreement between the Indemnitee and the Company or the Company’s Code of Ethics (as in effect as of the time of Indemnitee’s breach or violation thereof). |
| (d) | No determination of Indemnitee’s entitlement to indemnification shall be required to be made under this Agreement or any provision of the Certificate of Incorporation or Amended and Restated Bylaws of the Company (as amended from time to time, the “Bylaws”) to the extent that Indemnitee has been successful on the merits or otherwise in defense of a Claim, or Indemnitee is or was a witness or other participant in a Claim to which Indemnitee neither is, nor is threatened to be made, a party. In all other cases, if there has not been a Change in Control, a determination with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of the following methods selected by the Board: (i) the Board, by a majority vote of Disinterested Directors, whether or not such majority constitutes a quorum, (ii) a committee of Disinterested Directors designated by a majority vote of such directors, whether or not such majority constitutes a quorum, (iii) if there are no Disinterested Directors, or if the Disinterested Directors so direct, by the Independent Legal Counsel referred to in Section 3 hereof, in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (iv) the stockholders of the Company. If there has been a Change in Control, the determination shall be made by the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination of Indemnitee’s entitlement to indemnification (either pursuant to this Section 2(d) or Section 3, as applicable), within sixty (60) days after written demand is presented to the Company, the requisite determination that Indemnitee is entitled to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent actual fraud in the request for indemnification. If Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made that Indemnitee is not permitted to be indemnified under applicable law (as to which all rights of appeal therefrom have been exhausted or lapsed). |
| (e) | If (i) indemnification has not been paid or there has been no determination of Indemnitee’s entitlement to indemnification within sixty (60) days after written demand is presented to the Company, (ii) a determination is made that Indemnitee would not be permitted to be indemnified in whole or in part under applicable law or (iii) a claim for indemnification (following the final disposition of such action, suit or proceeding) or an Expense Advance is not paid within thirty (30) days after a written request is presented to the Company, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an adjudication by the court of entitlement to such indemnification or Expense Advance or challenging |
| any determination of Indemnitee’s entitlement to indemnification or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Absent such litigation, any determination pursuant to Section 2(d) or Section 3 shall be conclusive and binding on the Company and Indemnitee. |
3. Independent Legal Counsel; Change in Control. If a determination of Indemnitee’s entitlement to indemnification is to be made by Independent Legal Counsel pursuant to Section 2(d)(iii), Independent Legal Counsel shall be selected by the Company and approved by Indemnitee (which approval shall not be unreasonably delayed, conditioned or withheld). If there is a Change in Control, Independent Legal Counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Upon failure of the Company to select such Independent Legal Counsel or upon failure of Indemnitee so to approve (or so to select, in the event a Change in Control occurs), such Independent Legal Counsel shall be selected upon application to any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper. The Company agrees that if there is a Change in Control then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any provision of the Certificate of Incorporation or Bylaws now or hereafter in effect, the Company shall seek legal advice only from Independent Legal Counsel. The Company agrees to pay the reasonable fees of any Independent Legal Counsel selected pursuant to this Section 3 and to indemnify fully such counsel against any and all reasonable expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Indemnification for Additional Expenses. The Company shall indemnify and hold harmless Indemnitee against any and all Expenses and, if requested by Indemnitee, shall advance such Expenses to Indemnitee subject to and in accordance with Section 2(b), which are incurred by Indemnitee in connection with any action brought by Indemnitee for (i) indemnification or an Expense Advance by the Company under this Agreement or any provision of the Certificate of Incorporation or Bylaws now or hereafter in effect or (ii) recovery under any directors’ and officers’ liability insurance policies maintained by the Company, in the case of indemnification to the extent Indemnitee has been successful, in whole or in part in such action; provided that Indemnitee shall not be entitled to indemnification for such Expenses, and shall be required to reimburse any such Expense Advance, in the event of a final judicial determination in such action (and as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee is not entitled to indemnification, an Expense Advance or recovery under the Company’s directors’ and officers’ liability insurance policies.
5. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the Expenses or other Indemnifiable Amounts in respect of a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection with each successfully resolved Claim, issue or matter.
6. Burden of Proof, Etc. In connection with any determination pursuant to Section 2(d), Section 3 or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, it shall be presumed that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company (or any other person or entity disputing such conclusions) to establish by a preponderance of the evidence that Indemnitee is not so entitled.
7. Reliance as Safe Harbor. For purposes of this Agreement, and without creating any presumption as to a lack of good faith if the following circumstances do not exist, Indemnitee shall be deemed to have acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, without reasonable cause to believe Indemnitee’s conduct was unlawful, if Indemnitee’s actions or omissions to act were taken in good faith reliance upon the records of the Company or any of its subsidiaries, including its financial statements, or upon information, opinions, reports or statements furnished to Indemnitee by the officers or employees of the Company or any of its subsidiaries in the course of their duties, or by committees of the Board, or by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believed at the time were within such other person’s professional or expert competence and who had been selected with reasonable care by or on behalf of the Company. In addition, the knowledge and actions, or failures to act, of any other director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnity hereunder.
8. No Other Presumptions. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or did not have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Company (including the Disinterested Directors, a committee thereof, Independent Legal Counsel, or its stockholders) to have made a determination as to whether Indemnitee met any particular standard of conduct or had any particular belief, nor an actual determination by the Company (including the Disinterested Directors, a committee thereof, Independent Counsel, or its stockholders) that Indemnitee did not meet any particular standard of conduct or did not have any particular belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law, shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee did not meet any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Certificate of Incorporation or Bylaws, the General Corporation Law of the State of Delaware or otherwise. No agreement or amendment or alteration of the Certificate of Incorporation or Bylaws or of any agreement, other than of this Agreement pursuant to the terms hereof, shall adversely affect the rights provided to Indemnitee under this Agreement. No change in applicable law shall have the effect of reducing the benefits available to Indemnitee hereunder.
10. Liability Insurance. The Company shall maintain a policy or policies of insurance with insurance companies providing directors, officers and Indemnitee with coverage for any liability asserted by reason of the fact that they are serving as a director, officer, SEC Officer (with respect to Indemnitee) or have agreed to serve as a director, officer, SEC Officer (with respect to Indemnitee), employee or agent of another enterprise. Indemnitee shall be covered by such policies in accordance with their terms to the maximum extent of the coverage available for any of the Company’s directors, officers and SEC Officers. If the Company receives from Indemnitee any notice of the commencement of an action, suit, proceeding or Claim, the Company shall give prompt notice of the commencement of such action, suit, proceeding or Claim to its insurers thereunder in accordance with the procedures set forth therein. The Company shall thereafter take all necessary or desirable actions to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of any such action, suit, proceeding or Claim in accordance with the terms of such policies.
11. Amendments, Etc. This Agreement amends and restates the 2021 Agreement in its entirety. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both parties hereto. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions hereof (whether or not similar), nor shall such a waiver constitute a continuing waiver.
12. Subrogation. In the event of a 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 reasonably required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. The Company shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
13. Jointly Indemnifiable Claims. Given that certain Jointly Indemnifiable Claims may arise due to the relationships between an Indemnitee-Related Entity and the Company and the service of Indemnitee as a director and/or officer of the Company at the request of that Indemnitee-Related Entity, the Company and Indemnitee acknowledge and agree that (i) for events, occurrences, actions or inactions of Indemnitee that constitute Jointly Indemnifiable Claims and occurred prior to the Effective Date, the Company shall be the indemnitor of first resort and shall be fully and primarily responsible for the payment to Indemnitee in respect of indemnification and advancement of expenses in connection with any such Jointly Indemnifiable Claim, pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery Indemnitee may have from the Indemnitee-Related Entity (“Covered Jointly Indemnifiable Claims”) and (ii) for events, occurrences, actions or inactions of Indemnitee that constitute Jointly Indemnifiable Claims and occurred after the Effective Date, the Company shall have no indemnification obligation hereunder (“Excluded Jointly Indemnifiable Claims”). With respect to Covered Jointly Indemnifiable Claims, under no circumstance shall the Company be entitled to any right of subrogation or contribution by the Indemnitee-Related Entity, and no right of recovery Indemnitee may have from the Indemnitee-Related Entity with respect to Covered Jointly Indemnifiable Claims shall reduce or otherwise alter the rights of Indemnitee or the obligations of the Company hereunder. In the event that any Indemnitee-Related Entity shall make any payment to Indemnitee in respect of indemnification or advancement of Expenses with respect to any Covered Jointly Indemnifiable Claim, the Company agrees that such payment or advancement
shall not extinguish or affect in any way the rights of Indemnitee under this Agreement and further agrees that the Indemnitee-Related Entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee against the Company. Every Indemnitee-Related Entity shall be a third-party beneficiary with respect to Covered Jointly Indemnifiable Claims under this Section 13, entitled to enforce this Section 13 against the Company as though such Indemnitee-Related Entity were a party to this Agreement.
14. No Duplication of Payments. Subject to Section 13 hereof, the Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent that Indemnitee has otherwise actually received payment of such amount otherwise indemnifiable hereunder, whether under any insurance policy, provision of the Certificate of Incorporation or Bylaws, or otherwise.
15. Defense of Claims. The Company shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any such Claim (including any impleaded parties) include both the Company, or any subsidiary of the Company, and Indemnitee, and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or such subsidiary, or (iii) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Claim) at the Company’s expense. The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any Claim relating to an Indemnifiable Event effected without the Company’s prior written consent. The Company shall not, without the prior written consent of Indemnitee, effect any settlement of any Claim relating to an Indemnifiable Event to which Indemnitee is, was or could have been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that are the subject matter of such Claim. Neither the Company nor Indemnitee shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. In no event shall Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.
16. No Adverse Settlement. The Company shall not seek, nor shall it agree to, consent to, support, or agree not to contest any settlement or other resolution of, any Claim, action, proceeding, demand, investigation or other matter that has the actual or purported effect of extinguishing, limiting or impairing Indemnitee’s rights hereunder, including, without limitation, any entry of a bar order or other order, decree or stipulation, pursuant to 15 U.S.C. § 78u-4 (the Private Securities Litigation Reform Act) or any similar foreign, federal or state statute, regulation, rule or law.
17. Binding Effect, Etc. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor or continuing company by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company), assigns, spouses, heirs, estate, executors and personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect and whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee and his or her counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. This Agreement shall continue in effect during the period Indemnitee is an SEC Officer of the Company and shall continue thereafter with respect to any possible claims based on the fact that (i) prior to the Effective Time Indemnitee was an officer, SEC Officer and/or director of the Company or was serving at the request of the Company at any other entity or enterprise or (ii) after the Effective Time Indemnitee was an SEC Officer of the Company.
18. Security. To the extent requested by Indemnitee and approved by the Board, 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, a 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 such Indemnitee.
19. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) will not in any way be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable) will be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable and to give effect to the terms of this Agreement.
20. Specific Performance, Etc. The parties recognize that if any provision of this Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law. Accordingly, in the event of any such violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, enforce specific performance, enjoin that violation, or obtain any relief or any combination of the foregoing as Indemnitee may elect to pursue.
21. No Employment Contract. This Agreement shall not be deemed an employment contract between the Company and Indemnitee, and Indemnitee specifically acknowledges that Indemnitee may be discharged at any time for any reason, with or without cause, and with or without severance compensation, except as may be otherwise provided in a separate written contract between Indemnitee and the Company.
22. Notices. Any notice, request, consent or other communication hereunder to any party shall be deemed to be sufficient if contained in a written document delivered in person or sent by facsimile, nationally recognized overnight courier or personal delivery, addressed to such party at the address or addresses indicated below. Such a communication shall be sent instead to such other address as may designated from time to time in writing by a party to the other party.
| (a) | If to the Company, to: |
Genworth Financial, Inc.
6620 West Broad Street
Attention: Gregory S. Karawan
Email:
with a copy (which shall not constitute notice) to:
Richards, Layton & Finger, P.A.
One Rodney Square, 920 North King Street
Attention: Mark J. Gentile
Email:
| (b) | If to Indemnitee, to the address set forth below his or her signature hereto. |
All such notices, requests, consents and other communications shall be deemed to have been given or made if and when received (including by overnight courier) by the parties at the aforementioned mailing addresses or sent by email, with confirmation received, to the email addresses specified above (or at such other mailing or email address for a party as shall be specified by like notice). Any notice delivered by any party hereto to any other party hereto shall also be delivered to each other party hereto simultaneously with delivery to the first party receiving such notice.
23. 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.
24. Headings. The headings of the sections and 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 hereof.
25. Governing Law and Consent to Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Court of Chancery of the State of Delaware (the “Delaware Court”), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent and submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) irrevocably appoint, to the extent such
party is not otherwise subject to service of process in the State of Delaware, Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware, County of New Castle, 19808, as its agent in the State of Delaware as such party’s agent for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| GENWORTH FINANCIAL, INC. | ||
| By: | ||
| Name: | Thomas J. McInerney | |
| Title: | President and Chief Executive Officer | |
| INDEMNITEE | ||
| /s/ Rohit Gupta | ||
| Name: | Rohit Gupta | |
| Indemnitee’s Address: | ||
| This ‘10-K’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 2/29/24 | |||
| 2/26/24 | 4 | |||
| For Period end: | 12/31/23 | 13F-HR, 8-K | ||
| 9/20/21 | 8-K | |||
| 7/22/21 | 8-K | |||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 4/11/24 Genworth Financial Inc. S-3ASR 4/11/24 8:323K Donnelley … Solutions/FA |