INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (the “Agreement”), made as of March 30, 2005, by and
between FPIC
INSURANCE GROUP, INC.,
a Florida corporation (the “Company”), and H.
XXXXXXX XXXXX, D.D.S., a
director of First Professionals Insurance Company, Inc. (“First Pro”), a wholly
owned subsidiary of the Company (the “Indemnitee”).
W I T N E S S E T H T H A T:
WHEREAS,
the Company desires to retain and attract as directors of First Pro the most
capable persons available; and
WHEREAS,
the Company and Indemnitee recognize that Indemnitee is unable to acquire
adequate or reliable advance knowledge or guidance with respect to the legal
risks and potential civil liabilities to which he may become personally exposed
as a result of performing his duties in good faith for First Pro and the
Company; and
WHEREAS,
the Company and Indemnitee recognize that the cost of defending against such
lawsuits, whether or not meritorious, is typically beyond the financial
resources of most individuals; and
WHEREAS,
the Articles of Incorporation and Bylaws of the Company permit the Company to
indemnify its officers and directors to the fullest extent permitted by law;
and
WHEREAS,
Section 607.0850 of the Florida Statutes sets forth certain provisions relating
to the indemnification of officers and directors of a Florida corporation by
such corporation; and
WHEREAS,
the Company desires to have Indemnitee continue to serve as a director of First
Pro free from any undue concern, from unpredictable, inappropriate or
unreasonable civil risks and personal civil liabilities, by reason of acting in
good faith in the performance of his duties to the Company and Indemnitee
desires to continue to serve as a director of the First Pro; provided, on the
express condition, that he is furnished with the indemnity set forth
herein;
1
NOW,
THEREFORE, in consideration of the mutual covenants and agreements below and
based on the premises set forth above, the Company and Indemnitee do hereby
agree as follows:
1. Definitions.
As used in the Agreement:
(a) The
term “Proceeding” shall include any threatened, pending or completed action,
suit or proceeding, whether brought in the name of the Company or otherwise and
whether of civil, administrative or investigative nature, including, but not
limited to, actions, suits, or proceedings brought under and/or predicated upon
the Securities Act of 1933, as amended, and/or the Securities Exchange Act of
1934, as amended, and/or their respective state counterparts and/or any rule or
regulation promulgated thereunder, in which Indemnitee may be or may have been
involved as a party or otherwise, by reason of any action taken by his or any
inaction on his part while acting as such director and/or officer or by reason
of the fact that he is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, whether or not he is serving in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement. The term
“Proceeding” shall not include any criminal action or proceeding.
(b) The
term “Expenses” includes, without limitation thereto, expenses of
investigations, judicial or administrative proceedings or appeals, amounts paid
in settlement by or on behalf of Indemnitee, attorneys’ fees and disbursements
and any expenses of establishing a right to indemnification under Paragraph 7 of
this Agreement, but shall not include the amount of judgments, fines or
penalties actually levied against Indemnitee and shall not include any Expenses
incurred in connection with any criminal Proceeding.
(c) References
to “other enterprise” shall include employee benefit plans; references to
“fines” shall include an excise tax assessed with respect to any employee
benefit plan; references to “serving at the request of the Company” shall
include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its participants,
or beneficiaries; references to “employee benefit plans” shall include, and not
be limited to, stock option plans, stock award plans, stock purchase plans,
401(k) plans, pension plans, health and welfare plans, and retirement plans; and
a person who acts in good faith and in a manner he reasonably believes to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interests of
the Company” as referred to in this Agreement.
2. Agreement
to Serve.
Indemnitee agrees to serve or continue to serve as a director of First Pro at
the will of the Company or under separate contract, as the case may be, for so
long as he is duly elected or appointed or until such time as he tenders his
resignation in writing.
2
3. Indemnity
in Third Party Proceedings.
The Company shall indemnify Indemnitee in accordance with the provisions of this
section if Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any Proceeding (other than a Proceeding by or in the name
of the Company to procure a judgment in its favor), by reason of the fact that
Indemnitee is or was a director of First Pro or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all Expenses,
judgments, fines and penalties, actually and reasonably incurred by Indemnitee
in connection with the defense or settlement of such Proceeding, provided it is
determined pursuant to Paragraph 7 of this Agreement or by the court before
which such action was brought, that Indemnitee acted in good faith and in a
manner which he reasonably believed to be in good faith and in a manner he
believed to be in or not opposed to the best interests of the
Company.
4. Indemnity
in Proceedings By or in the Name of the Company.
The Company shall indemnify Indemnitee in accordance with the provisions of this
section if Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any Proceeding by or in the name of the Company to procure
a judgment in its favor by reason of the fact that Indemnitee was or is a
director of First Pro or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against all Expenses actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
Proceeding, but only if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification for Expenses shall be made under this
Paragraph 4 in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Company, unless and only to the
extent that any court in which such Proceeding is brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
5. Indemnification
of Expenses of Successful Party.
Notwithstanding any other provisions of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise, in defense of any
Proceeding or in defense of any claim, issue or matter therein, including the
dismissal of an action without prejudice, Indemnitee shall be indemnified
against all Expenses incurred in connection therewith.
6. Advances
of Expenses.
The Expenses incurred by Indemnitee pursuant to Paragraphs 3 and 4 in any
Proceeding shall be paid by the Company in advance at the written request of
Indemnitee, if Indemnitee shall undertake to repay such amount to the extent
that it is ultimately determined that Indemnitee is not entitled to
indemnification.
7. Right
of Indemnitee to Indemnification Upon Application; Procedure Upon
Application.
Any indemnification or advance under Paragraphs 3, 4, and/or 6 hereof shall be
made no later than 45 days after receipt of the written request of Indemnitee,
unless a determination is made within such 45 day period by (a) the Board of
Directors of the Company by a majority vote of a quorum thereof consisting of
directors who were not parties to such Proceedings, or (b) independent legal
counsel in a written opinion (which counsel shall be appointed if such a quorum
is not obtainable), that Indemnitee has not met the relevant standards for
indemnification set forth in Paragraphs 3 and 4.
3
The right to
indemnification or advances as provided by this Agreement shall be enforceable
by Indemnitee in any court of competent jurisdiction. The burden of proving that
indemnification or advances are not appropriate shall be on the Company. Neither
the failure of the Company (including its Board of Directors or independent
legal counsel) to have made a determination prior to the commencement of such
action that indemnification or advances are proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including its Board of Directors or independent
legal counsel) that Indemnitee has met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has not
met the applicable standard of conduct. Indemnitee’s Expenses incurred in
connection with successfully establishing his right to indemnification or
advances, in whole or in part, in any such Proceeding shall also be indemnified
by the Company.
8. Indemnification
Hereunder Not Exclusive.
The indemnification provided by this Agreement shall not be deemed exclusive of
any other rights to which Indemnitee may be entitled under the Company’s
Articles of Incorporation, Bylaws, or another capacity while holding such
office. The indemnification under this Agreement shall continue as to Indemnitee
even though he may have ceased to be a director of First Pro and shall inure to
the benefit of the heirs and personal representatives of
Indemnitee.
9. Partial
Indemnification.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments,
fines or penalties actually and reasonably incurred by him in the investigation,
defense, appeal or settlement of any Proceeding but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion of such Expenses, judgments, fines or penalties to which Indemnitee is
entitled.
10. Presumption
of Indemnification.
For purposes of this Agreement, determination of any Proceeding, suit or
proceeding by any means shall not create a presumption that Indemnitee did not
meet any particular standard of conduct; act in the best interests of the
Company; have any particular belief; or that a court has determined that
indemnification is not permitted by applicable law.
11. Liability
Insurance.
To the extent that Company maintains an insurance policy or policies providing
directors’ and officers’ liability insurance, Indemnitee shall be covered by
such policy or policies, in accordance with its or their terms, to the maximum
extent of the coverage available for any director and/or officer of the
Company.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first above written.
| FPIC INSURANCE GROUP, INC. | ||
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| By | /s/ Xxxx X. Xxxxx | |
|
President and Chief Executive Officer | ||
| INDEMNITEE: | ||
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| By | /s/ H. Xxxxxxx Xxxxx | |
|
H. Xxxxxxx Xxxxx, D.D.S. | ||
