indemnificationagmt-down






  25022134.2   INDEMNIFICATION AGREEMENT   THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into this 1st  day of November, 2021, by and between Newtek Business Services Corp., a Maryland corporation (the  “Company”), and the undersigned (“Indemnitee”).     WHEREAS, at the request of the Company, Indemnitee currently serves as a director 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 fullest extent permitted by law, except as otherwise expressly  provided for herein; 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, and of  other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and  intending to be legally bound hereby, the Company and Indemnitee do hereby covenant and agree as  follows:     Section 1. Definitions. For purposes of this Agreement:     (a) “Change of Control” shall mean the occurrence of any of the following events after  the Effective Date of this Agreement:     (i) the sale or other disposition of all or substantially all of the Company’s  assets; or    (ii) the acquisition, whether directly, indirectly, beneficially (within the  meaning of rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934  Act”)) or of record, as a result of a merger, consolidation or otherwise, of securities of the  Company representing twenty percent (20%) or more of the aggregate voting power of  the Company’s then-outstanding common stock by any “person” (within the meaning of  Sections 13(d) and 14(d) of the 1934 Act), including, but not limited to, any corporation  or group of persons acting in concert, other than (i) the Company or its subsidiaries  and/or (ii) any employee pension benefit plan (within the meaning of Section 3(2) of the  Employee Retirement Income Security Act of 1974) of the Company or its subsidiaries,  including a trust established pursuant to any such plan; or    (iii) the individuals who were members of the Board of Directors as of the  Effective Date (the “Incumbent Board”) cease to constitute at least two-thirds (2/3) of  the Board; provided, however, that any director appointed by at least two-thirds (2/3) of  the then Incumbent Board or nominated by at least two-thirds (2/3) of the Nominating  and Corporate Governance Committee of the Board of Directors (a majority of the  members of the Nominating and Corporate Governance Committee shall be members of  the then Incumbent Board or appointees thereof), other than any director appointed or  nominated in connection with, or as a result of, a threatened or actual proxy or control  contest, shall be deemed to constitute a member of the Incumbent Board.    (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.   DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2    (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 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 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 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 (i) initiated by an Indemnitee pursuant to Section 11 of this Agreement to enforce his rights  under this Agreement or (ii) 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 a director 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 fullest 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”). Notwithstanding anything to the contrary in this Section 3 or any other section of this  Agreement, for so long as the Company is subject to the Investment Company Act of 1940 and the  regulations promulgated thereunder (the “Investment Company Act”), the Company shall not indemnify or  advance Expenses to Indemnitee to the extent such indemnification or advance would violate the  Investment Company Act.     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 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 or on his behalf in connection with a Proceeding by  DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2  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 (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 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 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.     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 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 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 incurred by or on  behalf of Indemnitee in connection with any Proceeding 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 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  DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2  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. For so long as the Company is subject to the Investment  Company Act, any advancement of Expenses shall be subject to at least one of the following as a condition  of the advancement: (a) Indemnitee shall provide a security for his or her undertaking, (b) the Company  shall be insured against losses arising by reason of any lawful advances or (c) a majority of a quorum of the  Disinterested Directors of the Company, or Independent Counsel in a written opinion, shall determine,  based on a review of readily available facts (as opposed to a full-trial-type inquiry), that there is reason to  believe that Indemnitee ultimately will be found entitled to indemnification .  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 Board of Directors in writing that Indemnitee has requested indemnification. (b)  Upon written request  by Indemnitee for indemnification pursuant to the first sentence of Section 9(a) hereof, 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 of 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; or (ii) if a Change of Control shall  not have occurred, (A) by the Board of Directors (or a duly authorized committee thereof) by a majority  vote of a quorum consisting of Disinterested Directors, or (B) if a quorum of the Board of Directors  consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested  Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of  which shall be delivered to Indemnitee, or (C) if so directed by a majority of the members of the Board of  Directors, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to  indemnification, payment to Indemnitee shall be made within ten days after such determination. Indemnitee  shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s  entitlement to indemnification, including providing to such person, persons or entity upon reasonable  advance request any documentation or information which is not privileged or otherwise protected from  disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination.   Any costs or Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making  such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s  entitlement to indemnification) and the Company shall indemnify and hold Indemnitee harmless therefrom.     Section 10. Presumptions and Effect of Certain Proceedings.  (a)  In making a determination with  respect to entitlement to indemnification hereunder, the person or persons or entity making such  determination shall presume that Indemnitee is entitled to indemnification under this Agreement if  Indemnitee has submitted a request for indemnification in accordance with Section 9(a) of this Agreement,  and the Company shall have the burden of proof to overcome that presumption in connection with the  making of any determination contrary to that presumption.  (b)  The termination of any Proceeding by  judgment, order, settlement, conviction, a plea of nolo contendere or its equivalent, or an entry of an order  of probation prior to judgment, does not create a presumption that Indemnitee did not meet the requisite  standard of conduct described herein for indemnification.     Section 11. Remedies of Indemnitee.  (a)  If (i) a determination is made pursuant to Section 9 of this  Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advance of  Expenses is not timely made pursuant to Section 8 of this Agreement, (iii) no determination of entitlement  to indemnification shall have been made pursuant to Section 9(b) of this Agreement within 30 days after  receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made  pursuant to Section 7 of this Agreement within ten days after receipt by the Company of a written request  therefor, or (v) payment of indemnification is not made within ten days after a determination has been  DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2  made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an  appropriate court of the State of Maryland, or in any other court of competent jurisdiction, of his  entitlement to such indemnification or advance of Expenses.  Alternatively, Indemnitee, at his option, may  seek an award in arbitration to be conducted by a single arbitrator pursuant to the commercial Arbitration  Rules of the American Arbitration Association.  Indemnitee shall commence such proceeding seeking an  adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the  right to commence such proceeding pursuant to this Section 11(a); provided, however, that the foregoing  clause shall not apply to a proceeding brought by Indemnitee to enforce his rights under Section 7 of this  Agreement.  (b)  In any judicial proceeding or arbitration commenced pursuant to this Section 11 the  Company shall have the burden of proving that Indemnitee is not entitled to indemnification or advance of  Expenses, as the case may be. (c)  If a determination shall have been made pursuant to Section 9(b) of this  Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such  determination in any judicial proceeding or arbitration commenced pursuant to this Section 11, absent a  misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make  Indemnitee’s statement not materially misleading, in connection with the request for indemnification.   (d)  In the event that Indemnitee, pursuant to this Section 11, seeks a judicial adjudication of or an award in  arbitration to enforce his rights under, or to recover damages for breach of, this Agreement, Indemnitee  shall be entitled to recover from the Company, and shall be indemnified by the Company for, any and all  Expenses actually and reasonably incurred by him in such judicial adjudication or arbitration. If it shall be  determined in such judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all  of the indemnification or advance of Expenses sought, the Expenses incurred by Indemnitee in connection  with such judicial adjudication or arbitration shall be appropriately prorated.    Section 12. Defense of the Underlying Proceeding. (a)  Indemnitee shall notify the Company promptly  upon being served with or receiving any summons, citation, subpoena, complaint, indictment, information,  notice, request or other document relating to any Proceeding which may result in the right to  indemnification or the advance of Expenses hereunder; provided, however, that the failure to give any such  notice shall not disqualify Indemnitee from the right, or otherwise affect in any manner any right of  Indemnitee, to indemnification or the advance of Expenses under this Agreement unless the Company’s  ability to defend in such Proceeding or to obtain proceeds under any insurance policy is materially and  adversely prejudiced thereby, and then only to the extent the Company is thereby actually so prejudiced. (b)   Subject to the provisions of the last sentence of this Section 12(b) and of Section 12(c) below, the Company  shall have the right to defend Indemnitee in any Proceeding which may give rise to indemnification  hereunder; provided, however, that the Company shall notify Indemnitee of any such decision to defend  within 15 calendar days following receipt of notice of any such Proceeding under Section 12(a) above.  The  Company shall not, without the prior written consent of Indemnitee, which shall not be unreasonably  withheld or delayed, consent to the entry of any judgment against Indemnitee or enter into any settlement  or compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an  unconditional term thereof, the full release of Indemnitee from all liability in respect of such Proceeding,  which release shall be in form and substance reasonably satisfactory to Indemnitee.  This Section 12(b)  shall not apply to a Proceeding brought by Indemnitee under Section 11 above or Section 18 below. (c)   Notwithstanding the provisions of Section 12(b) above, if in a Proceeding to which Indemnitee is a party by  reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably concludes, based upon an opinion of  counsel approved by the Company, which approval shall not be unreasonably withheld, that he may have  separate defenses or counterclaims to assert with respect to any issue which may not be consistent with  other defendants in such Proceeding, (ii) Indemnitee reasonably concludes, based upon an opinion of  counsel approved by the Company, which approval shall not be unreasonably withheld, that an actual or  apparent conflict of interest or potential conflict of interest exists between Indemnitee and the Company, or  (iii) if the Company fails to assume the defense of such Proceeding in a timely manner, Indemnitee shall be  entitled to be represented by separate legal counsel of Indemnitee’s choice, subject to the prior approval of  the Company, which shall not be unreasonably withheld, at the expense of the Company.  In addition, if the  Company fails to comply with any of its obligations under this Agreement or in the event that the Company  or any other person takes any action to declare this Agreement void or unenforceable, or institutes any  Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee  hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, subject to the prior  DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2  approval of the Company, which shall not be unreasonably withheld, at the expense of the Company  (subject to Section 11(d)), to represent Indemnitee in connection with any such matter.    Section 13. Non-Exclusivity; Survival of Rights; Subrogation; Insurance; Investment Company Act.   (a)  The rights of indemnification and advance of Expenses as provided by this Agreement shall not be  deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law,  the Articles of Amendment and Restatement of the Company (as amended from time to time, the  “Charter”) or the Amended and Restated Bylaws of the Company (as amended from time to time, the  “Bylaws”), any agreement or a resolution of the stockholders entitled to vote generally in the election of  directors or of the Board of Directors, or otherwise.  No amendment, alteration or repeal of this Agreement  or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of  any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration  or repeal. (b)  In the event of any 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 required  and take all action necessary to secure such rights, including execution of such documents as are necessary  to enable the Company to bring suit to enforce such rights.   (c)  The Company shall not be liable under this Agreement to make any payment of amounts otherwise  indemnifiable or payable or reimbursable as expenses hereunder if and to the extent that (i) Indemnitee has  otherwise actually received such payment under any insurance policy, contract, agreement or otherwise, or  (ii) for so long as the Company is subject to the Investment Company Act, indemnification or payment or  reimbursement of expenses would not be permissible under the Investment Company Act.     Section 14. Insurance. The Company will use its reasonable best efforts to acquire directors and officers  liability insurance, on terms and conditions deemed appropriate by the Board of Directors of the Company,  with the advice of counsel, covering Indemnitee or any claim made against Indemnitee for service as a  director or officer of the Company and covering the Company for any indemnification or advance of  Expenses made by the Company to Indemnitee for any claims made against Indemnitee for service as a  director or officer of the Company.  Without in any way limiting any other obligation under this  Agreement, the Company shall indemnify Indemnitee for any payment by Indemnitee arising out of the  amount of any deductible or retention and the amount of any excess of the aggregate of all judgments,  penalties, fines, settlements and reasonable Expenses incurred by Indemnitee in connection with a  Proceeding over the coverage of any insurance referred to in the previous sentence.     Section 15. Indemnification for Expenses of a Witness.  Notwithstanding any other provision of this  Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness 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.     Section 16. Duration of Agreement; Binding Effect.  (a)  This Agreement shall continue until and  terminate ten years after the date that Indemnitee’s Corporate Status shall have ceased; provided, that the  rights of Indemnitee hereunder shall continue until the final termination of any Proceeding then pending in  respect of which Indemnitee is granted rights of indemnification or advance of Expenses hereunder and of  any proceeding commenced by Indemnitee pursuant to Section 11 of this Agreement relating thereto.   (b)  The indemnification and advance of Expenses provided by, or granted pursuant to, this Agreement  shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns  (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or  substantially all of the business or assets of the Company), shall continue as to an Indemnitee who has  ceased to be 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 which such person is or was  serving at the written request of the Company, and shall inure to the benefit of Indemnitee and his spouse,  assigns, heirs, devisees, executors and administrators and other legal representatives. (c)  The Company  shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or  otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by  written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to  DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2  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.     Section 17. Severability.  If any provision or provisions of this Agreement shall be held to be invalid,  illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the  remaining provisions of this Agreement (including, without limitation, each portion of any section of this  Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself  invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest  extent possible, the provisions of this Agreement (including, without limitation, each portion of any section  of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not  itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested  thereby.     Section 18. Exception to Right of Indemnification or Advance of Expenses.  Notwithstanding any other  provision of this Agreement, Indemnitee shall not be entitled to indemnification or advance of Expenses  under this Agreement with respect to any Proceeding brought by Indemnitee, unless (a) the Proceeding is  brought to enforce indemnification under this Agreement or otherwise or (b) the Company’s Bylaws, the  Charter, a resolution of the stockholders entitled to vote generally in the election of directors or of the  Board of Directors or an agreement approved by the Board of Directors to which the Company is a party  expressly provide otherwise.  In addition, notwithstanding any other provision of this Agreement,  Indemnitee shall not be entitled to indemnification or advance of Expenses under this Agreement to the  extent such indemnification or advance of Expenses would conflict with any provision of the Company’s  Bylaws or the Charter, in each case without giving effect to the non-exclusivity provision set forth in  Section 7.8 of the Charter; provided, that foregoing restriction not apply and shall be of no force or effect if  and to the extent the Company’s common stock is qualified as a “covered security,” as such term is defined  in Section 18 of the Securities Act of 1933, as amended.    Section 19. Identical 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.  One such counterpart signed by the party against whom enforceability is sought  shall be sufficient to evidence the existence of this Agreement.     Section 20. Headings.  The headings of the 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 thereof.     Section 21. Modification and Waiver. No supplement, modification or amendment of this Agreement  shall be binding unless executed in writing by both of the 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 waiver constitute a continuing waiver.     Section 22. Notices.  All notices, requests, demands and other communications hereunder shall be in  writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party  to whom said notice or other communication shall have been directed, or (ii) mailed by certified or  registered mail with postage prepaid, on the third business day after the date on which it is so mailed:     (a) If to Indemnitee, to: the address set forth on the signature page hereto.     (b) If to the Company, to:     Newtek Business Services Corp.   1981 Marcus Avenue, Suite 130  Lake Success,| NY 11042  Att: Chief Legal Officer    or to such other address as may have been furnished to Indemnitee by the Company or to the Company by  Indemnitee, as the case may be.   DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2    Section 23. Governing Law. The parties agree that this Agreement shall be governed by, and construed  and enforced in accordance with (i) the laws of the State of Maryland applicable to contracts formed and to  be performed entirely within the State of Maryland, without regard to its conflicts of laws rules, to the  extent such rules would require or permit the application of the laws of another jurisdiction, and (ii) the  Investment Company Act.  To the extent the applicable laws of the State of Maryland or any applicable  provision of this Agreement shall conflict with the applicable provisions of the Investment Company Act,  the latter shall control.     Section 24. Miscellaneous.  Use of the masculine pronoun shall be deemed to include usage of the  feminine pronoun where appropriate.     [SIGNATURE PAGE FOLLOWS] DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2  IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year  first above written.                        NEWTEK BUSINESS SERVICES  CORP.                                          By:          Name: Barry Sloane          Title: Chief Executive Officer                                      INDEMNITEE                                                           Name: Peter Downs          Title:  Director                  DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254 





 






  25022134.2  EXHIBIT A    FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED      The Board of Directors of Newtek Business Services Corp.    Re: Undertaking to Repay Expenses Advanced     Ladies and Gentlemen:     This undertaking is being provided pursuant to that certain Indemnification Agreement (the  “Indemnification Agreement”) dated the ___day of _______________, 2014, by and between Newtek  Business Services Corp. (the “Company”) and the undersigned Indemnitee (“Indemnitee”), pursuant to  which I am entitled to advance of expenses in connection with [Description of Proceeding] (the  “Proceeding”).     Terms used herein and not otherwise defined shall have the meanings specified in the  Indemnification Agreement.     I am subject to the Proceeding by reason of my Corporate Status or by reason of alleged actions or  omissions by me in such capacity. I hereby affirm that at all times, insofar as I was involved as director of  the Company, in any of the facts or events giving rise to the Proceeding, I (1) acted in good faith and  honestly, (2) did not receive any improper personal benefit in money, property or services and (3) in the  case of any criminal proceeding, had no reasonable cause to believe that any act or omission by me was  unlawful.     In consideration of the advance of Expenses by the Company for reasonable attorneys’ fees and  related expenses incurred by me in connection with the Proceeding (the “Advanced Expenses”), I hereby  agree that if, in connection with the Proceeding, it is established that (1) an act or omission by me was  material to the matter giving rise to the Proceeding and (a) was committed in bad faith or (b) was the result  of active and deliberate dishonesty or (2) I actually received an improper personal benefit in money,  property or services or (3) in the case of any criminal proceeding, I had reasonable cause to believe that the  act or omission was unlawful, then I shall promptly reimburse the portion of the Advanced Expenses  relating to the claims, issues or matters in the Proceeding as to which the foregoing findings have been  established and which have not been successfully resolved as described in Section 7 of the Indemnification  Agreement. To the extent that Advanced Expenses do not relate to a specific claim, issue or matter in the  Proceeding, I agree that such Expenses shall be allocated on a reasonable and proportionate basis.     IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this ___day of  ______________, 2014.              WITNESS:                              (SEAL)       DocuSign Envelope ID: C47477AD-237F-46F9-AE59-664DA53391E1612086B1-F57E-495B-8F5E-71E5C7776254