Contract
Exhibit 10.20
THIS DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT, dated as of [•] (this “Agreement”), is
made by and between Symetra Financial Corporation, a Delaware corporation (the “Company”), and
[insert name of D&O] (“Indemnitee”).
RECITALS
A. It is important to the Company to attract (and retain) the most talented and experienced
persons reasonably available to serve as directors and officers.
B. Indemnitee is a director and/or officer of the Company and/or of a subsidiary of the
Company.
C. Both the Company and Indemnitee recognize the increased risk of litigation and other claims
being asserted against directors and officers of companies in today’s environment.
D. The Company’s Amended and Restated Certificate of Incorporation and By-laws (the
“Constituent Documents”) provide that the Company will indemnify its directors and officers to the
fullest extent permitted by law and will advance expenses in connection therewith, and Indemnitee’s
willingness to serve as a director and/or officer of the Company is based in part on Indemnitee’s
reliance on such provisions.
E. In recognition of Indemnitee’s need for substantial protection against personal liability
in order to enhance Indemnitee’s continued service to the Company in an effective manner, in
recognition of Indemnitee’s reliance on the aforesaid provisions of the Constituent Documents and
to provide Indemnitee with express contractual indemnification (regardless of, among other things,
any amendment to or revocation of such provisions or any change in the composition of the Company’s
Board of Directors (the “Board”) or any acquisition or business combination transaction relating to
the Company), the Company wishes to provide in this Agreement for the indemnification of and the
advancement of Expenses (as defined in Section 1(b)) to Indemnitee as set forth in this Agreement
and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the
Company’s directors’ and officers’ liability insurance policies so long as Indemnitee continues to
serve in a director and/or officer capacity.
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein, the following
terms shall have the meanings ascribed to them below when used in this Agreement with initial
capital letters:
(a) “Claim” means any threatened, pending or completed action, suit or proceeding,
or any inquiry or investigation, whether instituted, made or conducted by the Company or any
other party, including without limitation any governmental entity, that Indemnitee determines
might lead to the institution of any
such action, suit or proceeding, whether civil, criminal, administrative, arbitrative,
investigative or other.
(b) “Expenses” includes all direct and indirect costs and expenses of any type
whatsoever (including without limitation all attorneys’ and experts’ fees, expenses and
charges) and all other costs, expenses and obligations actually and reasonably paid or incurred
in connection with investigating, defending, being a witness in or participating in (including
on appeal), or preparing to investigate, defend, be a witness in or participate in, any Claim.
(c) “Indemnifiable Losses” means any and all Expenses, damages, losses,
liabilities, judgments, fines, penalties and amounts paid in settlement (including without
limitation all interest, assessments and other charges paid or payable in connection with or in
respect of any of the foregoing) (collectively, “Losses”) relating to, resulting from or
arising out of any Claim by reason of the fact that (i) Indemnitee is or was a director,
officer, employee or agent of the Company and/or of a subsidiary of the Company, or (ii)
Indemnitee is or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, non-profit organization, joint venture, trust or
other enterprise. Inclusion of the Indemnitee’s role with such an enterprise (including, for
example, service on the board of directors of a non-profit organization) on a list approved
from time to time by the Chief Executive Officer or Chief Financial Officer of the Company
shall constitute service “at the request of the Company” for purposes of clause (ii) in the
preceding sentence.
2. Service by Indemnitee. Indemnitee will serve and/or continue to serve as a
director and/or officer of the Company and/or of a subsidiary of the Company, and/or in such other
capacity with respect to the Company as the Company may request, as the case may be, faithfully and
to the best of Indemnitee’s ability so long as Indemnitee is duly elected or appointed and until
such time as Indemnitee is removed as permitted by law or tenders a resignation in writing (and
provided that the Company shall have no obligation under this Agreement to continue to indemnify
the Indemnitee for any actions taken or not taken by him or her after the date of resignation or
termination of such position).
3. Basic Indemnification Arrangement. The Company will indemnify and hold harmless
Indemnitee, to the fullest extent permitted by the laws of the State of Delaware in effect on the
date hereof or as such laws may from time to time hereafter be amended to increase the scope of
such permitted indemnification, against all Indemnifiable Losses relating to, resulting from or
arising out of any Claim, subject to Section 7 of this Agreement. The failure by Indemnitee to
notify the Company of such Claim will not relieve the Company from any liability hereunder unless,
and only to the extent that, the Company did not otherwise learn of the Claim and such failure
results in forfeiture by the Company of substantial defenses, rights or insurance coverage. If so
requested by Indemnitee, the Company will advance within twenty business days of such request any
and all Expenses to Indemnitee which Indemnitee determines reasonably likely to be payable;
provided, however, that Indemnitee will return, without interest, any
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such advance which remains unspent at the final conclusion of the Claim to which the advance
related.
4. Indemnification for Additional Expenses. Without limiting the generality or effect
of the foregoing, the Company will indemnify Indemnitee against and, if requested by Indemnitee,
will within twenty business days of such request advance to Indemnitee, any additional Expenses
paid or incurred by Indemnitee in connection with any Claim asserted or brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under this Agreement or any other
agreement or under any provision of the Company’s Constituent Documents now or hereafter in effect
relating to Claims for Indemnifiable Losses and/or (ii) recovery under any directors’ and officers’
liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be.
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 any Indemnifiable Loss but not
for all of the total amount thereof, the Company will 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 Loss or in defense of
any issue or matter therein, including without limitation dismissal without prejudice, Indemnitee
will be indemnified against all Expenses incurred in connection therewith.
6. Contribution. If the Indemnitee is not entitled to indemnification under this
Agreement for any reason other than pursuant to Section 7, then in respect of any threatened,
pending or completed proceeding in which the Company is jointly liable with the Indemnitee (or
would be if joined in such proceeding), the Company shall contribute to the amount of damages,
losses, Expenses, liabilities, judgments, fines, penalties and amounts paid in settlement actually
and reasonably incurred and paid or payable by the Indemnitee in such proportion as is appropriate
to reflect (i) the relative benefits received by the Company on the one hand and the Indemnitee on
the other hand from the transaction from which such proceeding arose and (ii) the relative fault of
the Company on the one hand and of the Indemnitee on the other hand in connection with the events
which resulted in such expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the Company on the one hand and of the
Indemnitee on the other hand shall be determined by reference to, among other things, the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent the
circumstances resulting in such expenses, judgments, fines or settlement amounts. The Company
agrees that it would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation or any other method of allocation that does not take account of
the foregoing equitable considerations.
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7. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to the
Indemnitee with respect to proceedings or claims initiated or brought voluntarily by the
Indemnitee and not by way of defense, except with respect to proceedings specifically
authorized by the Board or brought to establish or enforce a right to indemnification and/or
advancement of expenses arising under this Agreement, the charter documents of the Company or
any subsidiary or any statute or law or otherwise (but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board finds it to be
appropriate); or
(b) Unauthorized Settlements. To indemnify or provide contribution to the
Indemnitee hereunder for any amounts paid in settlement of a proceeding unless the Company
consents in advance in writing to such settlement, which consent shall not be unreasonably
withheld; or
(c) Section 16. To indemnify or provide contribution to the Indemnitee on account
of any suit in which judgment is rendered against the Indemnitee for an accounting of profits
made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law; or
(d) Unlawful Indemnification. To indemnify or provide contribution to the
Indemnitee if a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful. In this respect, the Company and the Indemnitee have
been advised that the Securities and Exchange Commission takes the position that
indemnification for liabilities arising under the federal securities laws is against public
policy and is, therefore, unenforceable and that claims for indemnification should be submitted
to appropriate courts for adjudication; or
(e) No Duplication of Payments. To indemnify, provide contribution to or advance
expenses to the Indemnitee under this Agreement to the extent Indemnitee has otherwise actually
received payment (net of Expenses incurred in connection therewith) under any insurance policy,
the Constituent Documents and Other Indemnity Provisions or otherwise of the amounts otherwise
indemnifiable hereunder.
8. No Other Presumption. 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, will not create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.
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9. Non-Exclusivity, Etc. The rights of Indemnitee hereunder will be in addition to
any other rights Indemnitee may have under the Constituent Documents, or the substantive laws of
the Company’s jurisdiction of incorporation, any other contract or otherwise (collectively, “Other
Indemnity Provisions”); provided, however, that (i) to the extent that Indemnitee otherwise would
have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will be
deemed to have such greater right hereunder and (ii) to the extent that any change is made to any
Other Indemnity Provision which permits any greater right to indemnification than that provided
under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater right
hereunder. The Company will not adopt any amendment to any of the Constituent Documents the effect
of which would be to deny, diminish or encumber Indemnitee’s right to indemnification under this
Agreement or any Other Indemnity Provision.
10. Liability Insurance and Funding. The Company shall, to the extent that the Board
determines it to be economically reasonable, maintain a policy or policies of directors’ and
officers’ liability insurance. Indemnitee will 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 or officer of the Company. The Company may, but will not be required to, create a trust
fund, grant a security interest or use other means, including without limitation a letter of
credit, to ensure the payment of such amounts as may be necessary to satisfy its obligations to
indemnify and advance expenses pursuant to this Agreement.
11. Subrogation. In the event of payment under this Agreement, the Company will be
subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee
against other persons or entities (other than Indemnitee’s successors). The Indemnitee will
execute all papers reasonably required to evidence such rights of recovery (all of Indemnitee’s
reasonable Expenses, including attorneys’ fees and charges, related thereto to be reimbursed by or,
at the option of Indemnitee, advanced by the Company).
12. Defense of Claims. The Company will be entitled to participate in the defense of
any Claim or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee;
provided, however, that in the event that (i) the use of counsel chosen by the Company to represent
Indemnitee would present such counsel with an actual or potential conflict, (ii) the named parties
in any such Claim (including any impleaded parties) include both the Company and Indemnitee and
Indemnitee shall conclude 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 (iii) any such
representation by the Company would be precluded under the applicable standards of professional
conduct then prevailing, then Indemnitee will 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 will not, without the prior written consent of the Indemnitee,
effect any settlement of any threatened or pending Claim which the Indemnitee is or could have been
a party unless such settlement solely involves the payment of money and includes an unconditional
release of the Indemnitee from all liability on any claims that are the subject matter of such
Claim.
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13. Successors and Binding Agreement.
(a) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the business or assets
of the Company, by 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 the Company would be required to perform if no such succession had taken place. This
Agreement will be binding upon and inure to the benefit of the Company and any successor to the
Company, including without limitation any person acquiring directly or indirectly all or
substantially all of the business or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor will thereafter be deemed the
“Company” for purposes of this Agreement), but will not otherwise be assignable or delegatable by
the Company.
(b) This Agreement will inure to the benefit of and be enforceable by the Indemnitee’s
personal or legal representatives, executors, administrators, successors, heirs, distributees,
legatees and other successors.
(c) This Agreement is personal in nature and neither of the parties hereto will, without the
consent of the other, assign or delegate this Agreement or any rights or obligations hereunder
except as expressly provided in Sections 12(a) and 12(b). Without limiting the generality or
effect of the foregoing, Indemnitee’s right to receive payments hereunder will not be assignable,
whether by pledge, creation of a security interest or otherwise, other than by a transfer by the
Indemnitee’s will or by the laws of descent and distribution, and, in the event of any attempted
assignment or transfer contrary to this Section 12(c), the Company will have no liability to pay
any amount so attempted to be assigned or transferred.
14. Continuation of Indemnity. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is a director and/or officer of the
Company or is serving at the request of the Company as a director, officer, employee or agent or
fiduciary of any other entity (including, but not limited to, another corporation, partnership,
joint venture or trust) of the Company and shall also continue after the period of such service
with respect to any possible claims based on the fact that Indemnitee was or had been a director
and/or officer of the Company or was or had been serving at the request of the Company as a
director, officer, employee or agent or fiduciary of any other entity (including, but not limited
to, another corporation, partnership, joint venture or trust).
15. Notices. For all purposes of this Agreement, all communications, including
without limitation notices, consents, requests or approvals, required or permitted to be given
hereunder will be in writing and will be deemed to have been duly given when hand delivered or
dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or five
business days after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid or one business day after having been sent for next-day delivery
by a nationally recognized
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overnight courier service, addressed to the Company (to the attention of the Secretary of the
Company) and to the Indemnitee at the addresses shown on the signature page hereto, or to such
other address as any party may have furnished to the other in writing and in accordance herewith,
except that notices of changes of address will be effective only upon receipt.
16. Governing Law. The validity, interpretation, construction and performance of this
Agreement will be governed by and construed in accordance with the substantive laws of the State of
Delaware, without giving effect to the principles of conflict of laws of such State. Each party
consents to non-exclusive jurisdiction of any Delaware state or federal court or any court in any
other jurisdiction in which a Claim is commenced by a third person for purposes of any action, suit
or proceeding hereunder, waives any objection to venue therein or any defense based on forum non
conveniens or similar theories and agrees that service of process may be effected in any such
action, suit or proceeding by notice given in accordance with Section 14.
17. Validity. If any provision of this Agreement or the application of any provision
hereof to any person or circumstance is held invalid, unenforceable or otherwise illegal, the
remainder of this Agreement and the application of such provision to any other person or
circumstance will not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal will be reformed to the extent, and only to the extent, necessary to make it
enforceable, valid or legal.
18. Miscellaneous. No provision of this Agreement may be waived, modified or
discharged unless such waiver, modification or discharge is agreed to in writing signed by
Indemnitee and the Company. No waiver by either party hereto at any time of any breach by the
other party hereto or compliance with any condition or provision of this Agreement to be performed
by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by either party that
are not set forth expressly in this Agreement. References to Sections are to references to
Sections of this Agreement.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original but all of which together will constitute one and the same
agreement.
20. Legal Fees and Expenses. It is the intent of the Company that the Indemnitee not
be required to incur legal fees and or other Expenses associated with the interpretation,
enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise
because the cost and expense thereof would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder. Accordingly, without limiting the generality or effect of
any other provision hereof, if it should appear to the Indemnitee that the Company has failed to
comply with any of its obligations under this Agreement or in the event that the Company or any
other person takes or threatens to take any action to declare this Agreement void or unenforceable,
or institutes any
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litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee
the benefits provided or intended to be provided to the Indemnitee hereunder, the Company
irrevocably authorizes the Indemnitee from time to time to retain counsel of Indemnitee’s choice,
at the expense of the Company as hereafter provided, to advise and represent the Indemnitee in
connection with any such interpretation, enforcement or defense, including without limitation the
initiation or defense of any litigation or other legal action, whether by or against the Company or
any director, officer, stockholder or other person affiliated with the Company, in any
jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Indemnitee’s entering into an
attorney-client relationship with such counsel, and in that connection the Company and the
Indemnitee agree that a confidential relationship shall exist between the Indemnitee and such
counsel. Without respect to whether the Indemnitee prevails, in whole or in part, in connection
with any of the foregoing, the Company will pay and be solely financially responsible for any and
all attorneys’ and related fees and expenses incurred by the Indemnitee in connection with any of
the foregoing.
21. Certain Interpretive Matters. No provision of this Agreement will be interpreted
in favor of, or against, either of the parties hereto by reason of the extent to which any such
party or its counsel participated in the drafting thereof or by reason of the extent to which any
such provision is inconsistent with any prior draft hereof or thereof.
IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized
representative to execute this Agreement as of the date first above written.
| SYMETRA FINANCIAL CORPORATION 000 000xx Xxxxxx XX, Xxxxx 0000 Xxxxxxxx, XX 00000 |
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| by | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE |
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| by | ||||
| Name: | ||||
| Title: | ||||
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