INDEMNIFICATION AGREEMENT
Exhibit 10.3
This INDEMNIFICATION AGREEMENT (the “AGREEMENT”) is made and entered into as of the
___ day of ___, ___, by and between First Acceptance Corporation, a Delaware corporation
(including any successors thereto, the “COMPANY”),
and___ (“INDEMNITEE”).
RECITALS:
A. Competent and experienced persons are reluctant to serve or to continue to serve
corporations as directors, officers, or in other capacities unless they are provided with adequate
protection through insurance or indemnification (or both) against claims and actions against them
arising out of their service to and activities on behalf of those corporations.
B. The current uncertainties relating to the availability of adequate insurance for directors
and officers have increased the difficulty for corporations to attract and retain competent and
experienced persons.
C. The Board of Directors of the Company (the “BOARD”) has determined that the continuation of
present trends in litigation will make it more difficult to attract and retain competent and
experienced persons, that this situation is detrimental to the best interests of the Company’s
stockholders, and that the Company should act to assure its directors and officers that there will
be increased certainty of adequate protection in the future.
D. It is reasonable, prudent, and necessary for the Company to obligate itself contractually
to indemnify its directors and officers to the fullest extent permitted by applicable law in order
to induce them to serve or continue to serve the Company.
E. Indemnitee is willing to serve and continue to serve the Company on the condition that he
be indemnified to the fullest extent permitted by law.
F. Concurrently with the execution of this Agreement, Indemnitee is agreeing to serve or to
continue to serve as a director or officer of the Company.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises, Indemnitee’s agreement to serve or
continue to serve as a director or officer of the Company, and the covenants contained in this
Agreement, the Company and Indemnitee hereby covenant and agree as follows:
1. Certain Definitions:
For purposes of this Agreement:
(a) Change of Control: shall mean the occurrence of any of the following events:
(i) The acquisition by any individual, entity, or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “EXCHANGE ACT”))(a
“PERSON”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 20% or more of either (x) the then outstanding shares of common stock of the Company (the
“OUTSTANDING COMPANY COMMON STOCK”) or (y) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of directors (the “OUTSTANDING
COMPANY VOTING SECURITIES”); provided, however, that for purposes of this paragraph (i), the
following acquisitions shall not constitute a Change of Control: (A) any acquisition directly from
the Company or any Subsidiary thereof, (B) any acquisition by the Company or any Subsidiary
thereof, (C) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Subsidiary of the Company, or (D) any acquisition by any entity or
its security holders pursuant to a transaction which complies with clauses (A) and (B) of paragraph
(iii) below; or
(ii) Individuals who, as of the date of this Agreement, constitute the Board (the “INCUMBENT
BOARD”) cease for any reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date of this Agreement whose election, or
nomination for election by the Company’s stockholders, was approved by a vote of at least a
majority of the directors then comprising 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 occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger, or consolidation or sale or other disposition
of all or substantially all of the assets of the Company or an acquisition of assets of another
entity (a “BUSINESS COMBINATION”), in each case, unless, immediately following such Business
Combination, (A) the individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively,
the then outstanding shares of common stock or other equity interests and the combined voting power
of the then outstanding voting securities entitled to vote generally in the election of directors
(or similar governing body), as the case may be, of the entity resulting from such Business
Combination (including, without limitation, an entity 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) in proportions not materially different from their ownership, immediately prior
to such Business Combination, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, and (B) at least a majority of the members of the board of
directors (or similar governing body) of the entity resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination, or
(iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company.
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(b) Claim: shall mean any threatened, pending, or completed action, suit, or
proceeding (including, without limitation, securities laws actions, suits, and proceedings and also
any cross claim or counterclaim in any action, suit, or proceeding), whether civil, criminal,
arbitral, administrative, or investigative in nature, or any inquiry or investigation (including
discovery), whether conducted by the Company or any other Person.
(c) Expenses: shall mean all costs, fees and expenses (including, without limitation,
attorneys’ and expert witnesses’ fees and disbursements, fees of private investigators and
professional advisors, court costs, transcript costs and travel expenses), and obligations paid or
incurred in connection with investigating, defending (including affirmative defenses and
counterclaims), being a witness in, or participating in (including on appeal), or preparing to
defend, be a witness in, or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: shall mean any actual or alleged act, omission, statement,
misstatement, event, or occurrence related to the fact that Indemnitee is or was a director,
officer, agent, or fiduciary of the Company, or is or was serving at the request of the Company as
a director, officer, trustee, agent, or fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust, or other enterprise, or by reason of any actual or alleged
thing done or not done by Indemnitee in any such capacity. For purposes of this Agreement, the
Company agrees that Indemnitee’s service on behalf of or with respect to any Subsidiary or employee
benefits plan of the Company or any Subsidiary of the Company shall be deemed to be at the request
of the Company.
(e) Indemnifiable Liabilities: shall mean all Expenses and all other liabilities,
damages (including, without limitation, punitive, exemplary, and the multiplied portion of any
damages), judgments, payments, fines, penalties, amounts paid in settlement, and awards paid or
incurred that arise out of, or in any way relate to, any Indemnifiable Event.
(f) Potential Change of Control: shall be deemed to have occurred if (i) the Company
enters into an agreement, the consummation of which would result in the occurrence of a Change of
Control; (ii) any Person (including the Company) publicly announces an intention to take or to
consider taking actions that, if consummated, would constitute a Change in Control; or (iii) the
Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change of
Control has occurred.
(g) Reviewing Party: shall mean (i) a member or members of the Board who are not
parties to the particular Claim for which Indemnitee is seeking indemnification or (ii) if a Change
of Control has occurred and Indemnitee so requests, or if the members of the Board so elect, or if
all of the members of the Board are parties to such Claim, Special Counsel.
(h) Special Counsel: shall mean special, independent legal counsel selected by
Indemnitee and approved by the Company (which approval shall not be unreasonably withheld), and who
has not otherwise performed material services for the Company or for Indemnitee within the last
three years (other than as Special Counsel under this Agreement or similar agreement).
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(i) Subsidiary: shall mean, with respect to any Person, any corporation or other
entity of which a majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by that Person.
2. Indemnification and Expense Advancement.
(a) The Company shall indemnify Indemnitee and hold Indemnitee harmless to the fullest extent
permitted by law, as soon as practicable but in any event no later than 30 days after written
demand is presented to the Company, from and against any and all Indemnifiable Liabilities. In
connection with the foregoing obligation, the Company agrees that the Reviewing Party shall make a
determination (in a written opinion, in any case in which Special Counsel is involved) as to
Indemnitee’s entitlement to indemnification under Section 145 of the Delaware General Corporation
Law, as amended from time to time (“APPLICABLE LAW”). Notwithstanding the foregoing, nothing
contained in this Agreement shall require any determination under this Section 2(a) to be made by
the Reviewing Party prior to the disposition or conclusion of the Claim against the Indemnitee. If
there has been a Change of Control, the Reviewing Party shall be Special Counsel, if Indemnitee so
requests, in accordance with the terms of Section 3 hereof.
(b) If so requested by Indemnitee, the Company shall advance to Indemnitee all reasonable
Expenses incurred by Indemnitee to the fullest extent permitted by law (or, if applicable,
reimburse Indemnitee for any and all reasonable Expenses incurred by Indemnitee and previously paid
by Indemnitee) within ten business days after such request (an “EXPENSE ADVANCE”). The Company
shall be obligated from time to time at the request of Indemnitee to make or pay an Expense Advance
in advance of the final disposition or conclusion of any Claim and in advance of any determination
by the Reviewing Party as to Indemnitee’s entitlement to indemnification hereunder.
(c) If, when, and to the extent that the Reviewing Party determines that Indemnitee would not
permitted to be indemnified with respect to a Claim under Applicable Law, the Company shall be
entitled to be reimbursed by Indemnitee and Indemnitee hereby agrees to reimburse the Company
without interest (which agreement shall be an unsecured obligation of Indemnitee) for all related
Expense Advances theretofore made or paid by the Company in the event that it is determined that
indemnification would not be permitted under Applicable Law, if and only to the extent such
reimbursement is required by Applicable Law; provided, however, that if Indemnitee commences legal
proceedings in a court of competent jurisdiction to secure a determination that Indemnitee could be
indemnified under Applicable Law, any determination made by the Reviewing Party that Indemnitee
would not be permitted to be indemnified under Applicable Law shall not be binding, and the Company
shall be obligated to continue to make Expense Advances until a final judicial determination is
made with respect thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed), which determination shall be conclusive and binding. If there has been no determination by
the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively is not
permitted to be indemnified in whole or part under Applicable Law, Indemnitee shall have the right
to commence litigation in the Delaware Court of Chancery to enforce the Company’s obligations and
the Indemnitee’s rights under this Agreement or to challenge any adverse
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determination made by the Reviewing Party or any aspect thereof, and the Company hereby
consents to service of process and to appear in any such proceeding.
(d) Nothing in this Agreement, however, shall require the Company to indemnify Indemnitee with
respect to any Claim initiated by Indemnitee, other than a Claim solely seeking enforcement of the
Company’s indemnification obligations to Indemnitee or the Indemnitee’s rights under this
Agreement, any counterclaims or affirmative defenses asserted by Indemnitee in an action brought
against Indemnitee, or a Claim authorized by the Board.
3. Change of Control. The Company agrees that if there is a Change of Control and if
Indemnitee requests in writing that Special Counsel be the Reviewing Party, then Special Counsel
shall be the Reviewing Party. In such a case, the Company agrees not to request or seek
reimbursement from Indemnitee of any indemnification payment or Expense Advances unless Special
Counsel has rendered its written opinion to the Company and Indemnitee that the Company was not or
is not permitted under Applicable Law to indemnify Indemnitee. However, if Indemnitee has commenced
legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee
could be indemnified under Applicable Law, any determination made by Special Counsel that
Indemnitee would not be permitted to be indemnified under Applicable Law shall not be binding, and
the Company shall be obligated to continue to make Expense Advances, until a final judicial
determination is made with respect thereto (as to which all rights of appeal therefore have been
exhausted or lapsed), which determination shall be conclusive and binding. The Company agrees to
pay the fees of Special Counsel and to indemnify Special Counsel against any and all expenses
(including attorneys’ fees), claims, liabilities, and damages arising out of or relating to this
Agreement or Special Counsel’s engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change of Control or a Change of
Control, the Company shall, upon written request by Indemnitee, create a trust for the benefit of
Indemnitee (the “TRUST”) and from time to time upon written request of Indemnitee shall fund the
Trust in an amount equal to all Indemnifiable Liabilities reasonably anticipated at the time to be
incurred in connection with any Claim. The amount to be deposited in the Trust pursuant to the
foregoing funding obligation shall be determined by the Reviewing Party. The terms of the Trust
shall provide that, upon a Change of Control, (i) the Trust shall not be revoked or the principal
thereof invaded, without the written consent of Indemnitee; (ii) the trustee of the Trust shall
advance, within ten business days of a request by Indemnitee, any and all reasonable Expenses to
Indemnitee (and Indemnitee hereby agrees to reimburse the Trust under the circumstances in which
Indemnitee would be required to reimburse the Company for Expense Advances under this Agreement),
(iii) the Trust shall continue to be funded by the Company in accordance with the funding
obligation set forth above; (iv) the trustee of the Trust shall promptly pay to Indemnitee all
amounts for which Indemnitee shall be entitled to indemnification pursuant to this Agreement; and
(v) all unexpended funds in the Trust shall revert to the Company upon a final determination by the
Reviewing Party or a court of competent jurisdiction, as the case may be, that Indemnitee has been
fully indemnified under the terms of this Agreement. The trustee of the Trust shall be chosen by
Indemnitee, and shall be an institution that is not affiliated with Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligation under this Agreement.
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5. Indemnification for Additional Expenses. The Company shall indemnify Indemnitee against
any and all costs and expenses (including attorneys’ and expert witnesses’ fees) and, if requested
by Indemnitee, shall (within two business days of that request) advance those costs and expenses to
Indemnitee, that are incurred by Indemnitee if Indemnitee, whether by formal proceedings or through
demand and negotiation without formal proceedings: (a) seeks to enforce Indemnitee’s rights under
this Agreement, (b) seeks to enforce Indemnitee’s rights to expense advancement or indemnification
under any other agreement or provision of the Company’s Certificate of Incorporation (the
“CERTIFICATE OF INCORPORATION”) or Bylaws (the “BYLAWS”) now or hereafter in effect relating to
Claims for Indemnifiable Events, or (c) seeks recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, in each case regardless of whether Indemnitee
ultimately prevails; provided that a court of competent jurisdiction has not found Indemnitee’s
claim for indemnification or expense advancements under the foregoing clauses (a), (b) or (c) to be
frivolous, presented for an improper purpose, without evidentiary support, or otherwise
sanctionable under Federal Rule of Civil Procedure No. 11 or an analogous rule or law, and provided
further, that if a court makes such a finding, Indemnitee shall reimburse the Company for all
amounts previously advanced to Indemnitee pursuant to this Section 5. Subject to the provisos
contained in the preceding sentence, to the fullest extent permitted by law, the Company waives any
and all rights that it may have to recover its costs and expenses from Indemnitee.
6. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some, but not all, of Indemnitee’s Indemnifiable Liabilities,
the Company shall indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
7. Contribution.
(a) Contribution Payment. To the extent the indemnification provided for under any
provision of this Agreement is determined (in the manner hereinabove provided) not to be permitted
under applicable law, the Company, in lieu of indemnifying Indemnitee, shall, to the extent
permitted by law, contribute to the amount of any and all Indemnifiable Liabilities incurred or
paid by Indemnitee for which such indemnification is not permitted. The amount the Company
contributes shall be in such proportion as is appropriate to reflect the relative fault of
Indemnitee, on the one hand, and of the Company and any and all other parties (including officers
and directors of the Company other than Indemnitee) who may be at fault (collectively, including
the Company, the “THIRD PARTIES”), on the other hand.
(b) Relative Fault. The relative fault of the Third Parties and the Indemnitee shall
be determined (i) by reference to the relative fault of Indemnitee as determined by the court or
other governmental agency or (ii) to the extent such court or other governmental agency does not
apportion relative fault, by the Reviewing Party after giving effect to, among other things, the
relative intent, knowledge, access to information, and opportunity to prevent or correct the
relevant events, of each party, and other relevant equitable considerations. The Company and
Indemnitee agree that it would not be just and equitable if contribution were determined by pro
rata allocation or by any other method of allocation that does take account of the equitable
considerations referred to in this Section 7(b).
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8. Burden of Proof. In connection with any determination by the Reviewing Party or in any
judicial proceeding to determine whether Indemnitee is entitled to be indemnified under any
provisions of this Agreement or to receive contribution pursuant to Section 7 of this Agreement, to
the extent permitted by law the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
9. No 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 on nolo
contendere, or its equivalent, or an entry of an order of probation prior to judgment shall not
create a presumption (other than any presumption arising as a matter of law that the parties may
not contractually agree to disregard) 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.
10. Non-exclusivity; Changes in Law. The rights of Indemnitee hereunder shall be in addition
to any other rights Indemnitee may have under the Bylaws or Certificate of Incorporation or the
Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General
Corporation Law (whether by statute or judicial decision) permits greater indemnification or
advancement of expenses by agreement than would be afforded currently under this Agreement, it is
the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits
so afforded by that change, and this Agreement shall be deemed to be amended to such extent.
Indemnitee’s rights under this Agreement shall not be diminished by any amendment to the
Certificate of Incorporation or Bylaws, or of any other agreement or instrument to which Indemnitee
is not a party, and shall not diminish any other rights that Indemnitee now or in the future has
against the Company.
11. Liability Insurance. The Company shall use commercially reasonable efforts to obtain and
maintain in effect an insurance policy or policies with a reputable insurer providing directors’
and officers’ liability insurance coverage to Indemnitee in an amount which is not less than the
greater of (i) $10 million, or (ii) the maximum amount of coverage available for the most favorably
insured of the Company’s officers and directors, which policy or policies shall name the Indemnitee
as an insured in such a manner as to provide Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company’s officers and directors.
12. Period of Limitations. No action, lawsuit, or proceeding may be brought against
Indemnitee or Indemnitee’s spouse, heirs, executors, or personal or legal representatives, nor may
any cause of action be asserted in any such action, lawsuit, or proceeding, by or on behalf of the
Company, after the expiration of two years after the statute of limitations commences with respect
to Indemnitee’s act or omission that gave rise to the action, lawsuit, proceeding, or cause of
action; provided, however, that, if any shorter period of limitations is otherwise applicable to
any such action, lawsuit, proceeding, or cause of action, the shorter period shall govern.
13. Amendments. 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 provision of this
Agreement shall be effective unless in a writing signed by the party granting the waiver. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute
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a waiver of any other provisions hereof (whether or not similar) nor shall that waiver
constitute a continuing waiver.
14. Other Sources. Indemnitee shall not be required to exercise any rights that Indemnitee
may have against any other Person (for example, under an insurance policy) before Indemnitee
enforces his rights under this Agreement. However, to the extent the Company actually indemnifies
Indemnitee or advances him Expenses, the Company shall be subrogated to the rights of Indemnitee
and shall be entitled to enforce any such rights which Indemnitee may have against third parties.
Indemnitee shall assist the Company in enforcing those rights if it pays his costs and expenses of
doing so. If Indemnitee is actually indemnified or advanced Expenses by any third party, then, for
so long as Indemnitee is not required to disgorge the amounts so received, to that extent the
Company shall be relieved of its obligation to indemnify Indemnitee or advance Indemnitee Expenses.
15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns (including any direct or
indirect successor by merger or consolidation), spouses, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues
to service as an officer or director of the Company or another enterprise at the Company’s request.
16. Severability. If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term hereof, that provision shall
be fully severable; this Agreement shall be construed and enforced as if that illegal, invalid, or
unenforceable provision had never comprised a part hereof; and the remaining provisions shall
remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of that illegal, invalid,
or unenforceable provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to the illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
17. Governing Law; Consent to Jurisdiction; Service of Process. 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 that state without giving effect to the
principles of conflicts of laws. Each of the Company and the Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Court of Chancery of the
State of Delaware and the courts of the United States of America located in the State of Delaware
(the “DELAWARE COURTS”) for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation relating thereto except
in such courts), waives any objection to the laying of venue of any such litigation in the Delaware
Courts and agrees not to plead or claim in any Delaware Court that such litigation brought therein
has been brought in an inconvenient forum. Each of the parties hereto agrees (a) to the extent such
party is not otherwise subject to service of process in the State of Delaware, to appoint and
maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process,
and (b) that service of process may also be made on such party by prepaid certified mail with a
proof of mailing receipt validated by the United States Postal Service constituting evidence of
valid service. Service made pursuant to (a) or (b) above
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shall have the same legal force and effect as if served upon such party personally within the
State of Delaware.
18. Headings. The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
19. Notices. Whenever this Agreement requires or permits notice to be given by one party to
the other, such notice shall be in writing and shall be deemed to have been duly given (a) when
delivered by hand, (b) when transmitted by facsimile and receipt is acknowledged, or (c) if mailed
by certified or registered mail with postage prepaid, on the third business day after the date on
which it is so mailed, to the address of the respective party as listed on the signature page
hereto, or to such other address as may have been furnished in the same manner by any party to the
other. Receipt of a notice by the Secretary of the Company shall be deemed receipt of such notice
by the Company.
20. Complete Agreement. This Agreement and the other agreements entered into concurrently
herewith by the Company and the Indemnitee constitute the complete understanding and agreement
among the parties with respect to the subject matter hereof and supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof, other than any
indemnification rights that Indemnitee may enjoy under the Certificate of Incorporation, the
Bylaws, or the Delaware General Corporation Law.
21. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but in making proof hereof it shall not be necessary to produce or
account for more than one such counterpart.
* * * * *
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EXECUTED as of the date first written above.
| FIRST ACCEPTANCE CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE |
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| Name: | ||||
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