Exhibit 10(d)(1)
INDEMNITY AGREEMENT FOR OFFICERS
This Agreement, effective as of the Effective Date hereinafter defined,
is made by and between Protective Life Corporation, a Delaware corporation
(hereinafter the "Company") and [INDEMNITEE'S NAME HERE], an officer of Company
(hereinafter, together with such person's heirs, personal representatives and
estate, the "Indemnitee").
WITNESSETH: THAT
WHEREAS, Section 145 of the General Corporation Law of the State of
Delaware (hereinafter "Section 145") empowers corporations to indemnify persons
serving as a director, officer, employee or agent of the corporation or a person
who serves at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, and further specifies that the indemnification set forth in said
Section 145 "shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise";
and said Section 145 further empowers a corporation to "purchase and maintain
insurance" on behalf of any of such persons "against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to indemnify
him against such liability under" Section 145; and
WHEREAS, Company has initiated a thorough investigation to determine
the type of insurance available, the nature and extent of the coverage provided
and the cost thereof to Company to insure each of the directors and officers of
Company and of corporations affiliated with Company against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any action, suit or
proceeding with which such person is threatened or made a party by reason of
such status and/or such person's decisions, actions or omissions; however, upon
receiving such information, the Board of Directors of Company concluded that at
present, due to the high cost and other negative features of the coverage
available at the date hereof, it would not be in the best interests of its
shareholders for Company to purchase and maintain an adequate amount of such
insurance and that, on the contrary, its shareholders' interests would be better
served by Company's contracting to indemnify such persons and thereby to
effectively self-insure against such potential liabilities in excess of, and in
certain instances against liabilities excluded from, the $10,000,000 insurance
policy obtained by Company effective May 8, 1989 and any additional acceptable
coverage which from time to time hereafter may be placed in force (hereinafter
collectively the "Policy") provided that the aggregate liability of Company
hereunder (stated as $10,000,000 in Section 9(g) below) shall be reduced by the
amounts insured under the Policy as in effect at any given time; and
WHEREAS, the Board of Directors on recommendation of Company counsel
has concluded that certain Officers (as defined in Section 1 below) of Company,
both in their capacities as either executive officers, attorney-officers, or
certain other officers of Company as may be designated from
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time to time by Company's Chief Executive Officer and/or the Board of Directors,
and also in their respective capacities as directors, officers, employees or
agents of Company's affiliates or of any other corporation, subsidiary,
partnership, joint venture, or trust or other enterprise at the request or for
the convenience of Company or to represent the interests of Company, as the case
may be, should be provided with maximum protection in order to insure that the
most capable persons otherwise available will remain in, and in the future be
attracted to, such positions and, furthermore, that it is not only fair,
reasonable and prudent but necessary for Company to contractually obligate
itself to indemnify such past, present and future Officers and their respective
estates in a reasonable and adequate manner and that Company assume for itself
the responsibility and liability for expenses and damages in connection with
claims brought, whether on account of any prior, present or future alleged act,
omission, injury, damage, or event; and
WHEREAS, Company desires to have Indemnitee serve or continue to serve
as an Officer free from undue concern for costs, expenses and damages by reason
of Indemnitee's serving in such office or in such capacity or by reason of
Indemnitee's decisions or actions or omissions while so serving on behalf of
Company or its affiliates, or, at Company's direction or request, on behalf of
any other corporation, subsidiary, partnership, joint venture, or trust or other
enterprise; and Indemnitee desires to serve or continue to serve in one or more
of such capacities, provided Indemnitee is furnished the indemnity provided for
hereinafter;
NOW, THEREFORE, for and in consideration of the premises and the
covenants contained herein, Company and Indemnitee do hereby covenant and agree
as follows:
1. Agreement to Serve; Definitions.
(a) Indemnitee agrees that Indemnitee will, at the pleasure of the
Chief Executive Officer or the Board of Directors of Company, as the case may
be, serve or continue to serve as an Officer (as defined herein); provided,
however, that nothing herein, express or implied, shall be deemed to be an
employment contract nor to grant any rights to Indemnitee for any specific
period of continued employment by one or more of Company and its Affiliates.
(b) Unless the context otherwise clearly indicates to the contrary, the
following terms as used herein shall have the respective meanings set forth
below:
(i) "Officer" shall refer to: (A) each member of Company's
Operations Committee and the principal accounting officer of Company; (B) every
officer employed by Company as an attorney in Company's Legal Department; and
(C) certain other officers as may be designated from time to time by the Chief
Executive Officer and/or the Board of Directors, whether any of said individuals
described in (A), (B) or (C) above is serving in the capacity of executive
officer of Company, and/or director and/or officer of one or more of Company's
Affiliates, and/or serving, at the written request of Company, as a director,
officer, employee or agent of any other corporation, subsidiary, partnership,
joint venture, or trust or other enterprise for the convenience of Company or to
represent the interests of Company, as the case may be.
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(ii) Except as used in Section 10, "Affiliate" shall mean any
corporation which is at least 51% owned by Company or by any corporation at
least 51% of which is owned by Company; the term "Company" shall specifically
mean and refer to Protective Life Insurance Company prior to its organization
with Company in 1981 whereby Company became the parent of Protective Life
Insurance Company.
(iii) "Person" means any one (or more) individual or natural
person or any one (or more) corporation, firm, joint venture, partnership,
proprietorship, business venture, government, governmental body, agency or
instrumentality, estate, trust, association or other legal entity whatsoever or
group of same.
(iv) "Non-governmental" shall refer to any Person which is not
(A) the government of the United States of America or of any state, district,
territory or possession thereof or of any county, parish, city, town, township
or municipality within any such state, district, territory or possession, or (B)
any agency, tribunal, council, instrumentality or public body established by any
Person described in (A).
(v) "Effective Date" shall refer to the date that Indemnitee
first assumed the duties of an Officer, whether as an executive officer for the
Company and/or as director and/or officer of one or more of Company's
Affiliates, and/or, at the written request of Company, as a director, officer,
employee or agent of any other corporation, subsidiary, partnership, joint
venture, or trust or other enterprise for the convenience of Company or to
represent the interests of Company, as the case may be.
2. Indemnification. Subject to the provisions of Sections 5, 8
and 9, Company shall indemnify Indemnitee as follows:
(a) Company will pay on behalf of Indemnitee, and Indemnitee's
executors, administrators and heirs, any amount which Indemnitee is or becomes
legally obligated to pay because of any claim or claims from time to time
threatened or made against Indemnitee by any Person because of any act or
omission or neglect or breach of duty, including any actual or alleged error or
misstatement or misleading statement, which Indemnitee commits or suffers while
acting in Indemnitee's capacity as, and solely because of Indemnitee's acting as
an Officer, provided, however, that prior disclosure by Indemnitee of a
relationship with another corporation or organization shall not be deemed to be
service at the request of Company. The payments which Company will be obligated
to make hereunder shall include, inter alia, damages, charges, judgments, fines,
penalties, settlements and costs, cost of investigation and costs of defense of
legal or equitable or criminal actions, claims or proceedings and appeals
therefrom, and costs of attachment, supersedeas, bail or other bonds.
(b) If a claim under this Agreement is not paid by Company, or on its
behalf, within sixty (60) days after the later of (i) receipt of written claim
by Company or (ii) the date of approval of Indemnitee's coverage hereunder in a
specific instance under Section 5, the claimant may at any time
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thereafter bring suit against Company to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expense (including reasonable attorney's fees) of prosecuting such
claim.
(c) In the event of payment under this Agreement, Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all documents and take all actions reasonably
requested by Company to implement such right of subrogation.
(d) Indemnitee shall give to Company notice in writing as soon as
practicable of any claim made against Indemnitee for which indemnification will
or could be sought under this Agreement. Indemnitee will further notify and
cooperate with Company in the selection of counsel and in the incurrence of
costs and expenses in defending or investigating any claim for which
indemnification may be sought hereunder. Indemnitee shall give Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
3. Assumption of Liability by Company. If Indemnitee is deceased and is
entitled to indemnification under any provision of this Agreement, Company shall
indemnify lndemnitee's estate and Indemnitee's spouse, heirs, administrators and
executors against, and Company shall and does hereby agree to assume, any and
all costs, charges and expenses (including attorneys' fees), penalties and fines
actually and reasonably incurred by or for Indemnitee or Indemnitee's estate, in
connection with the investigation, defense, settlement or appeal of any such
action, suit or proceeding. Further, when requested in writing by the spouse of
Indemnitee, and/or the heirs, executors or administrators of Indemnitee's
estate, Company shall provide appropriate evidence of Company's agreement set
out herein to indemnify Indemnitee against and to assume itself such costs,
charges, liabilities and expenses.
4. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by Company for some or a portion
of the cost, charges and expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by Indemnitee in
the investigation, defense, appeal or settlement of such suit, action or
proceeding but not, however, of the total amount thereof, Company shall
nevertheless indemnify Indemnitee as to the portion thereof to which Indemnitee
is entitled.
5. Determination of Right to Indemnification. Anything contained
elsewhere herein to the contrary notwithstanding, any indemnification under
Sections 2 through 4 hereinabove, inclusive, shall (unless ordered by a court)
not be paid by Company unless a determination is made, as hereinafter provided,
that indemnification is proper in the circumstances and not excluded because of
the provisions of Section 8 or 9.
The determination as to whether or not Indemnitee has met the standard
of conduct required to qualify and entitle Indemnitee, partially or fully, to
indemnification under the provisions of any provision of Section 2 hereof may be
made either by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or if there are no
such
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directors, or if such directors so direct, by independent legal counsel (who may
be the outside counsel regularly employed by Company) in a written opinion, or
by the stockholders of Company. The fees and expenses of counsel in connection
with making said determination contemplated hereunder shall be paid by Company,
and, if requested by such counsel, Company shall give such counsel an
appropriate written agreement with respect to the payment of their fees and
expenses and such other matters as may be reasonably requested by counsel.
If the Person (including the Board of Directors, independent legal
counsel, the stockholders or a court) making the determination hereunder shall
determine that Indemnitee is entitled to indemnification as to some claims,
issues or matters involved in the action, suit or proceeding but not as to
others, such Person shall reasonably prorate the expenses (including attorneys'
fees), judgments, penalties, fines and amounts paid in settlement with respect
to which indemnification is sought by Indemnitee among such claims, issues or
matters.
If, and to the extent that, it is finally determined hereunder that
Indemnitee is not entitled to indemnification, then Indemnitee agrees to
reimburse Company for all expenses advanced or prepaid hereunder, or the proper
proportion thereof.
6. Advance of Costs, Charges and Expenses. If so ordered by the Board
of Directors, the costs, charges and expenses incurred by Indemnitee in
investigating, defending, or appealing any threatened, pending or completed
civil or criminal action, suit or proceeding (administrative or investigative)
covered hereunder, shall be paid by Company in advance in order to properly
investigate, defend or appeal any such action, suit, or proceeding, and, if so
ordered by the Board of Directors of Company, any judgments, fines or amounts
paid in settlement shall be paid by Company in advance, all with the
understanding and agreement hereby made and entered into by Indemnitee and
Company, that in the event it shall ultimately be determined as provided
hereunder that Indemnitee was not entitled to be indemnified, or was not
entitled to be fully indemnified, that Indemnitee shall repay to Company such
amount, or the appropriate portion thereof, so paid or advanced.
7. Other Rights and Remedies. The indemnification and advance payment
of expenses as provided by any provision of this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under any
provision of law, the Policy (as an Insured thereunder), Company's Certificate
of Incorporation, any By-Law, this or other agreement, vote of stockholders or
disinterested directors or otherwise, as to action taken while occupying any of
the various positions or relationships inherent in Indemnitee's capacity as an
Officer, as defined in Section 1 of this Agreement, and shall continue after
Indemnitee has ceased to occupy such position or have such relationship and
shall inure to the benefit of the heirs, executors and administrators of
Indemnitee.
8. Construction. (a) This Agreement shall not be construed so
as to give rise to a "contractual liability" which is excluded by the Policy.
Each and every term hereof is enforceable by Indemnitee solely as to amounts (i)
in excess of the limits of the Policy with respect to costs, charges and
expenses (including attorneys' fees), judgments, fines, penalties and amounts
paid in settlement
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for which coverage is in effect under the Policy, and (ii) used under the Policy
as a "deductible" amount, and (iii) which none of the Policy and the other
liability insurance policies of Company clearly covers for Indemnitee as Insured
thereunder; however, in any case in which Company believes the Policy or its
other insurance should cover a loss, cost or expense, Company may make a
contingent advance of monies pursuant to the terms hereof without admission,
waiver or prejudice to its position that the Policy or Company's other insurance
covers the loss, cost or expense. In amplification and clarification but not in
limitation hereof, it is the intent of Company that this Agreement operate as
"excess coverage" above the Policy and other applicable insurance limits up to
the limit set forth in Section 9(g) and that it operate as "first dollar"
coverage in all matters which are outside the scope of the Policy or within its
deductibles and all other insurance maintained by Company from time to time,
except as to the exclusions set forth hereinbelow in Section 9.
In amplification but not in limitation of the foregoing, there is
hereby expressly included "first dollar" coverage with respect to the following
matters if considered by the Policy to be exclusions:
(1) any act or omission in connection with the acquisition or
assumption by Affiliates or Company of the stock, assets and/or business of
other corporations by merger, purchase of assets, bulk reinsurance and
otherwise;
(2) liabilities and expenses based on or arising out of
any action, suit or proceeding by a non-governmental Person involving the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ss.1-61 et seq.;
(3) liabilities and expenses based on or arising out of or
directly or indirectly involving Indemnitee's position with any other entity if
requested in writing by Company to so serve with such other entity; and
(4) any act or omission the sole applicable exclusion for
which by the Policy is on account of either (i) lack of appropriate notice, (ii)
the existence of prior insurance, (iii) the timing of the occurrence and the
claim, or (iv) other procedural defenses to coverage by the Policy, except as
otherwise provided in Section 9(f) below.
(b) If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, all portions of any paragraphs or
sections of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby, and (ii) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph or section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
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9. Exclusions and Limitations. Notwithstanding anything herein
to the contrary:
(a) Company shall not be liable to Indemnitee for, nor obligated to
furnish advances in connection with, any loss, cost or expense of Indemnitee
resulting from Indemnitee's willful, negligent or inadvertent violation of
Section 16(b) of the Securities Exchange Act of 1934 or of the Foreign Corrupt
Practices Act of 1977.
(b) Company shall not be liable to Indemnitee for, and shall not be
obligated to furnish any advances except for repayable costs, charges and
expenses as hereinabove stated, in connection with, any loss, cost or expense of
Indemnitee as the direct result of a final judgment for money damages payable to
Company or any Affiliate for or on account of loss, cost or expense directly or
indirectly resulting from Indemnitee's negligence or misconduct within the
meaning of Section 145(b).
(c) Unless otherwise allowed by a court of competent jurisdiction or in
a separate action in the Chancery Court of Delaware, Company shall not be liable
to Indemnitee for, and Indemnitee undertakes to repay Company for all advances
which may have been made of, expenses of investigation, defense or appeal of any
matter the judgment of which is excluded under subsection 9(b) next above.
(d) Unless otherwise determined by a court of competent jurisdiction or
in a separate action in the Chancery Court of Delaware, a settlement of any
suit, action or proceeding shall be presumed to be an "expense" in mitigation of
the expenses of continued litigation and not the compromise of a judgment on the
merits of the action, suit or proceeding.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to Officers of Company
pursuant to the foregoing provisions, or otherwise, the Board of Directors has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by Company of expenses incurred or paid
by an Officer of Company in the wholly or partially successful defense of any
action, suit or proceeding) is asserted by Indemnitee in connection with Company
securities which have been registered, Company will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it hereunder is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue. In effect, therefore, absent a
court decision in the individual case or controlling precedent, the provisions
of the Agreement will not apply to liabilities of Indemnitee arising under the
Securities Act of 1933 (primarily relating to public distributions of
securities) unless and only to the extent that Indemnitee is successful in the
defense of the action, suit or proceeding in question.
(f) Company shall not be liable under this Agreement to make any
payment in connection with any claim made against Indemnitee:
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(i) based upon or attributable to Indemnitee or any member of
Indemnitee's immediate family gaining in fact any personal profit or advantage
to which Indemnitee was not legally entitled;
(ii) based upon or attributable to the dishonesty of
Indemnitee seeking payment hereunder;
(iii) for bodily injury, sickness, disease or
death of any person, or damage to or destruction of any tangible property;
including loss of use thereof;
(iv) for which indemnification under this Agreement is
determined by a final adjudication of a court of competent jurisdiction to be
unlawful and violative of public policy; or
(v) for any act or omission attributable to Indemnitee in
Indemnitee's capacity as a director, officer, agent or employee of any Person
which heretofore became or hereafter becomes an Affiliate, if the occurrence of
such act or omission was prior to the date such Person actually became or
becomes an Affiliate.
(g) From and after the date hereof the cumulative total of all amounts
paid pursuant to the terms of this Agreement and all similar agreements entered
into by Company with officers, reduced by (1) all sums repaid to Company under
the repayment provisions of this Agreement and such similar agreements with
officers and (2) all sums insured under the Policy for risks covered by this
Agreement and such similar agreements with officers, shall never exceed the sum
of Ten Million Dollars ($10,000,000).
10. Change of Control. (a) In the event that a Triggering Event,
as hereafter defined, should take place, any determination to be made by the
Board of Directors, as hereinabove referred to, shall be deemed to refer to
action and determinations solely by a Majority of the Continuing Directors.
(b) "Triggering Events" are:
(i) The coming into being of a Related Person (as defined
below);
(ii) The approval by the Board of Directors of Company of any
agreement, contract, pIan or other arrangement that would, if consummated,
result in a Business Combination (as defined below); and
(iii) The commencement of a Tender Offer
(as defined below).
Provided, however, that any event that would otherwise be a Triggering Event
shall not be deemed a Triggering Event if a Majority of the Continuing Directors
of Company (1) has expressly approved in advance the acquisition of outstanding
shares of capital stock of Company entitled to vote generally
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(the "Voting Stock") that caused the Related Person to become a Related Person,
or (2) has approved the Business Combination or recommended acceptance by the
shareholders of Company of the Tender Offer.
(c) For purposes of this Section 10:
(i) The term "Business Combination" shall mean (A) any
Reorganization of Company or a Subsidiary (as hereinafter defined) with or into
a Related Person, (B) any sale, lease, exchange, transfer or other disposition,
including without limitation a pledge, mortgage or any other security device, of
all or any Substantial Part (as hereinafter defined) of the assets either of
Company or of a Subsidiary, or both, to a Related Person, (C) any Reorganization
of a Related Person with or into Company or a Subsidiary, (D) any sale, lease,
exchange, transfer or other disposition of all or any Substantial Part of the
assets of a Related Person to Company or a Subsidiary, (E) the issuance of any
securities of Company or a Subsidiary to a Related Person except if such
issuance were a stock split, stock dividend or other distribution pro rata to
all holders of the same class of Voting Stock, (F) any reclassification of
securities (including a reverse stock split) or any other recapitalization that
would have the effect of increasing the voting power of a Related Person, and
(G) any agreement, contract, plan or other arrangement providing for any of the
transactions described in this definition of Business Combination.
(ii) The term "Related Person" shall mean and include (A) any
individual, corporation, partnership or other person or entity which, together
with its "Affiliates" and "Associates" (as defined on March 21, 1983 in Rule
12b-2 under the Securities Exchange Act of 1934), "beneficially owns" (as
defined on March 21, 1983 in Rule 13d-3 under the Securities Exchange Act of
1934) in the aggregate 15 percent or more of the outstanding Voting Stock of
Company, (B) any Affiliate or Associate of any such individual, corporation,
partnership or other person or entity, and (C) any assignee, transferee or
successor of any of the foregoing. Notwithstanding the foregoing, the term
"Related Person" shall not include (1) Company, (2) any Subsidiary (unless the
stock thereof not owned by Company is owned by a Related Person as hereinabove
defined), (3) any employee benefit plan of Company or any such Subsidiary, (4)
any trustee of or fiduciary with respect to any such plan when acting in such
capacity, or (5) except as hereinbelow provided, the individuals comprising the
Board of Directors of Company, their estates, immediate families, trusts
established by them, or trusts in which they have a beneficial interest. Any
person or other entity described in (5) above may, nevertheless, be a Related
Person involved in a Business Combination, and shall not be counted in
determining a Majority of the Continuing Directors, if an Associate or Affiliate
of such person or entity which is not excluded by any of (1) through (4),
inclusive, is a party to such Business Combination and such person or entity has
a 1 percent or greater interest in the equity or profits of such Associate or
Affiliate. Any person or entity who at any time is a Related Person continues at
all times thereafter to be a Related Person.
(iii) Notwithstanding the definition of "beneficially owned"
in subsection (ii) above, any Voting Stock of Company that any Related Person
has the right to acquire pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise, shall be deemed
beneficially owned by the Related Person.
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(iv) The term "Substantial Part" shall mean more than 20
percent of the fair market value of the total assets of the corporation in
question, as determined in good faith by a Majority of the Continuing Directors,
as of the end of its most recent fiscal year ending prior to the time the
determination is being made.
(v) The term "Subsidiary" means any corporation of which a
majority of any class of equity security is owned directly or indirectly by
Company.
(vi) The term "Continuing Director" shall mean a director of
Company at the relevant time who was a member of the Board of Directors of
Company immediately prior to the earliest time that (A) any Related Person
involved in a Business Combination, or (B) any Related Person who is (1) a
Predecessor to such Related Person or (2) an assignor of beneficial ownership in
Company to such a Related Person or to its Predecessors, became a Related
Person.
(vii) The term "Majority" shall mean that number which
constitutes a majority of the members of the Board of Directors of Company
immediately prior to the earliest time that (A) any Related Person involved in
the Business Combination, or (B) any Related Person who is (1) a predecessor to
such Related Person or (2) an assignor of beneficial ownership in Company to
such a Related Person or to its Predecessors, became a Related person.
(viii) The term "Predecessor" shall mean each person or other
entity (A) to which the subject Related Person is a successor by merger,
consolidation, sale and purchase of substantially all of the assets, or other
reorganization or (B) which assigned or transferred beneficial ownership of
Voting Stock of Company to the subject Related Person, directly or through
successive transactions.
(ix) The term "Reorganization" includes a merger,
consolidation, plan of exchange, sale of all or substantially all of the assets
(including, as pertains to a subsidiary, bulk reinsurance or cession of
substantially all of its policies and contracts) or other form of corporate
reorganization pursuant to which shares of Voting Stock, or other securities of
the subject corporation, are to be converted or exchanged into cash or other
property, securities or other consolidation.
(x) The term "Tender Offer" shall mean any offer by any
individual, corporation, partnership, association, trust, or other organization
or entity directed to the shareholders of Company the results of which, if
consummated, could by its terms result in the coming into being of a Related
Person.
(xi) No Associate or Affiliate of any director of Company
shall be a Related Person by attribution to such Associate or Affiliate of the
Common Stock ownership of such director as of the date such director was elected
a member of Company's Board of Directors.
11. 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 and all of which shall constitute the same instrument, but only one of
which need be produced.
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12. Headings. The headings of the sections 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.
13. Use of Certain Terms. As used in this Agreement, the words
"herein", "hereof", and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular paragraph, subparagraph or
other subdivision.
14. 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.
15. Notice to Company. Indemnitee agrees to promptly notify
Company in writing upon being served with any citation, complaint, indictment or
other document covered hereunder, either civil or criminal.
16. Notices. All notices, requests, demand and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand by Federal Express, Purolator or other commercial courier and
receipted for by or on behalf of the party to whom said notice or other
communication shall have been directed or if (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:
[INDEMNITEE'S NAME HERE]
Protective Life Corporation
P. O. Box 2606
Birmingham, Alabama 35202
or to such other address as may have been furnished to Company by Indemnitee;
(b) If to Company, to:
Protective Life Corporation
P. O. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Xx.
Chairman of the Board and
Chief Executive Officer
or to such other address as may have been furnished to Indemnitee by Company.
17. Governing Law. The parties agree that this Agreement shall be
construed and enforced in accordance with, and governed by, the laws of the
State of Delaware.
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18. Successors and Assigns. This Agreement shall be binding upon
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's spouse, heirs, executors, administrators and estate.
IN WITNESS WHEREOF, Company has executed this Agreement by its duly
authorized officers, and Indemnitee has executed this Agreement, on this ______
day of _________________, 1996.
PROTECTIVE LIFE CORPORATION
By:
Xxxxxxx Xxxxxx, Xx.
Its Chairman of the Board and
Chief Executive Officer
ATTEST:
Xxxxxxx X. Xxxx
Assistant Secretary
(CORPORATE SEAL)
Indemnitee: [INDEMNITEE'S NAME HERE]
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