INDEMNIFICATION AGREEMENT
Exhibit
10(aaaa)
This
Indemnification Agreement (the “Agreement”), made as of December 28, 2004, by
and between FPIC
INSURANCE GROUP, INC., a
Florida corporation (the “Company”), and XXXXXX
X. XXXXX, a
director and/or officer 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 and officers 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 she may become personally exposed
as a result of performing her duties in good faith for 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 an officer and/or
director of the Company 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 her duties to the Company
and Indemnitee desires to continue to serve as an officer and/or director of the
Company; provided, on the express condition, that she is furnished with the
indemnity set forth herein;
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 her or any
inaction on her part while acting as such director and/or officer or by reason
of the fact that she 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 she 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.
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(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 she 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 and/or officer of
the Company at the will of the Company or under separate contract, as the case
may be, for so long as she is duly elected or appointed or until such time as
she tenders her resignation in writing.
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 and/or officer of the Company 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 she reasonably believed to be in good faith and
in a manner she 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 and/or officer of the Company 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 she acted in good faith and in a
manner which she 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.
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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 her 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 she may have ceased to be a director and/or officer of the Company
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 her 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 | |
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Xxxx X. Xxxxx, President and Chief Executive Officer | ||
| INDEMNITEE: | ||
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| By: | /s/ Xxxxxx X. Xxxxx | |
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Xxxxxx X. Xxxxx | ||
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