EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made as of January 31,
2007, between ENSTAR GROUP LIMITED (formerly known as Castlewood Holdings
Limited), a company organized under the laws of Bermuda (the "Company"), and
J. XXXXXXXXXXX XXXXXXX ("Indemnitee").
RECITAL
The Second Amended and Restated Bye-Laws of the Company, as may be amended
from time to time (the "Bye-Laws") contain provisions indemnifying the Company's
directors and officers with respect to certain liabilities and expenses.
Indemnitee is currently serving as a director of the Company's Board of
Directors (the "Board"), and the Board has determined that it is in the best
interests of the shareholders of the Company for the Company to provide
Indemnitee with additional assurance of protection against personal liability
pursuant to and in furtherance of the Bye-Laws, as provided in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recital and of other
good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties, intending to be legally bound, agree as follows:
1. Indemnification.
(a) The Company shall hold harmless and indemnify and reimburse
Indemnitee against all liabilities, costs, expenses (including without
limitation, investigation expenses and expert witnesses' and attorneys' fees),
judgments, penalties, fines, excise taxes, interest and amounts paid or to be
paid in settlement in connection with any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing, or proceeding (collectively, a
"Proceeding"), in which Indemnitee was or is a party or a witness, or is
threatened to be made a party or a witness, including without limitation,
actions by or in the right of the Company, whether civil, criminal,
administrative, regulatory or investigative, by reason that, either before or
after the date hereof, Indemnitee is or was a director, officer, employee,
agent, fiduciary, or other representative of the Company, or is or was serving
while a director, officer, employee, agent, fiduciary, or other representative
of the Company at the request of the Company as a director, officer, employee,
agent, fiduciary, or other representative of another corporation (for profit or
not-for-profit), limited liability company, partnership, joint venture, trust,
employee benefit plan or other entity or enterprise ("Indemnified Position").
Notwithstanding anything to the contrary set forth in this Agreement, the term
"Proceeding" shall not include any action or proceeding commenced by Indemnitee,
other than (i) mandatory counterclaims, (ii) affirmative defenses, (iii) as
permitted by the Company and (iv) actions or proceedings to enforce the terms of
this Agreement.
(b) If Indemnitee is entitled under this Agreement to indemnification
by the Company for a portion of the Indemnified Amounts (defined below) but not
for the total
amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
(c) The Company shall not settle any Proceeding in any manner which
would impose any penalty or limitation of any kind or nature on Indemnitee
without Indemnitee's prior written consent.
2. Limitations on Indemnification. Notwithstanding any other provision of
this Agreement, Indemnitee shall not be entitled to indemnification under
Section 1:
(a) if the claim, obligation or liability with respect to which
indemnity is sought shall have been determined by a court of competent
jurisdiction, by a final, nonappealable judgment or decree, to have resulted
from Indemnitee's fraud or dishonesty;
(b) if a court of competent jurisdiction shall determine, by a
final, nonappealable judgment or decree, that such indemnity is prohibited under
applicable law;
(c) on account of any suit in which judgment is rendered for an
accounting of profits made from the purchase or sale by Indemnitee of securities
of the Company in violation of the provisions of Section 16(b) of the Securities
Exchange Act of 1934, as amended, and amendments thereto or similar provisions
of any U.S. federal or state statutory law or any Bermuda statutory law; or
(d) on account of any suit brought against Indemnitee for misuse or
misappropriation of non-public information, or otherwise involving Indemnitee's
status as an "insider" of the Company, in connection with any purchase or sale
by Indemnitee of securities of the Company, and judgment is rendered against
Indemnitee in such suit.
3. Other Indemnification Arrangements. The Company's purchase,
establishment and maintenance of insurance or similar protection or other
arrangements, including, but not limited to, the Bye-Laws, providing a trust
fund, letter of credit or surety bond (collectively, "Indemnification
Arrangements") on behalf of Indemnitee against any liability asserted against
him or her or incurred by or on his or her behalf in his or her Indemnified
Position, whether or not the Company would have the power to indemnify him or
her against such liability under the provisions of this Agreement or under
applicable law, shall not in any way limit or affect the rights and obligations
of the Company or of Indemnitee under this Agreement, and the execution and
delivery of this Agreement by the Company and Indemnitee shall not in any way
limit or affect the rights and obligations of the Company or the other party or
parties thereto under any Indemnification Arrangement. All amounts payable by
the Company pursuant to this Section 3 or Section 1 are referred to as
"Indemnified Amounts."
4. Advance Payment of Indemnified Amounts.
(a) Subject to Section 4(b), Indemnitee hereby is granted the right
to receive in advance of a final, nonappealable judgment or other final,
nonappealable adjudication of a Proceeding the amount of any and all expenses,
including, without limitation, attorney's
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fees, expended or incurred by Indemnitee in connection with any Proceeding (such
amounts so expended or incurred, "Advanced Amounts").
(b) In making any request for Advanced Amounts, Indemnitee shall
submit to the Company an undertaking by or on behalf of Indemnitee to repay the
Advanced Amounts if it shall ultimately be determined in a final, nonappealable
judgment or decree that he or she is not entitled to be indemnified by the
Company. The undertaking shall be in the form attached hereto as Exhibit A. The
Company shall pay to Indemnitee without the need for action by the Board
Advanced Amounts within five days of its receipt of appropriate documentation
and information evidencing the Advanced Amounts provided that Indemnitee has
previously provided the Company with the undertaking required to be provided by
Indemnitee pursuant to this Section 4(b).
5. Procedure for Payment of Indemnified Amounts.
(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request for payment of the appropriate
Indemnified Amounts, with such documentation and information to accompany such
request as is reasonably available to Indemnitee and reasonably necessary for
the Company to determine whether and to what extent Indemnitee is entitled to
indemnification.
(b) The Company shall pay Indemnitee the Indemnified Amounts unless
it is established that Indemnitee has not met any applicable standard of conduct
required in this Agreement or applicable law. For purposes of determining
whether Indemnitee is entitled to Indemnified Amounts, in order to deny
indemnification to Indemnitee, the Company shall have the burden of proof in
establishing that Indemnitee did not meet the applicable standard of conduct
required to qualify for indemnification. In this regard, a termination of any
Proceeding by judgment, order, plea of nolo contendere, settlement or conviction
shall not create a presumption that Indemnitee did not meet the applicable
standard of conduct required to qualify for indemnification.
(c) Any determination that Indemnitee has not met the applicable
standard of conduct required to qualify for indemnification shall be made either
(i) by the Board by a unanimous vote of all directors who were not parties to
the Proceeding or (ii) by independent legal counsel (who may be the outside
counsel regularly employed by the Company, so long as it has not advised any
party in the subject matter of the Proceeding or the Proceeding itself) approved
in advance in writing by both the highest ranking executive officer of the
Company who is not party to the Proceeding and by Indemnitee. The fees and
expenses of counsel in connection with making the determination contemplated
hereunder shall be paid by the Company, and, if requested by such counsel, the
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 such counsel.
(d) The Company shall use its best efforts to conclude as soon as
practicable (but in no event later than 60 days from the date of Indemnitee's
request for indemnification pursuant to Section 5(a)) any requested
determination pursuant to Section 5(c) and shall promptly advise Indemnitee in
writing with respect to any determination that
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Indemnitee is or is not entitled to indemnification, including a reasonably
detailed description of any reason or basis for which indemnification has been
denied. Payment of any applicable Indemnified Amounts shall be made to
Indemnitee within five days after any determination of Indemnitee's entitlement
to indemnification.
(e) Notwithstanding the foregoing, at any time after 30 days after
Indemnitee's request for indemnification pursuant to Section 5(a) (or upon
receipt of written notice that a claim for Indemnified Amounts has been
rejected, if earlier), and before three years after a claim for Indemnified
Amounts has been delivered by Indemnitee to the Company, Indemnitee may petition
a court of competent jurisdiction to determine whether Indemnitee is entitled to
indemnification under the provisions of this Agreement, and such court shall
thereupon have the exclusive authority to make such determination unless and
until the court dismisses or otherwise terminates the action without having made
such determination. The court shall, as petitioned, make an independent
determination of whether Indemnitee is entitled to indemnification as provided
under this Agreement, irrespective of any prior determination made by the Board
or independent counsel and without being provided or having evidence or
testimony regarding any such prior determination. If the court determines that
Indemnitee is entitled to indemnification as to any claim, issue or matter
involved in the Proceeding with respect to which there has been no prior
determination pursuant to this Agreement or with respect to which there has been
a prior determination that Indemnitee was not entitled to indemnification
hereunder, the Company shall pay all expenses, including attorneys' fees,
actually incurred by Indemnitee in connection with obtaining such judicial
determination, as well as Indemnified Amounts relating thereto.
(f) Nothing set forth in this Section 5 shall limit or affect the
timing or amount, or the right of Indemnitee to payment, of any Advanced Amounts
pursuant to Section 4.
6. Agreement Not Exclusive: Subrogation Rights, etc.
(a) This Agreement shall not be deemed exclusive of and shall not
diminish any other rights Indemnitee may have to be indemnified, insured or
otherwise protected against any liability, cost, expense (including, without
limitation, investigation expenses and expert witnesses and attorney's fees),
judgment, penalty, fine, excise tax, interest or amount paid or to be paid in
settlement by the Company, any subsidiary of the Company, or any other person or
entity under any memorandum of association, charter, bylaw, law, agreement,
policy of insurance or similar protection, vote of shareholders or directors,
disinterested or not, or otherwise, whether or not now in effect, both as to
actions in Indemnitee's official capacity with the Company, and as to actions in
another capacity while holding such office, including Indemnitee's right to
contribution as may be available under applicable law. The Company's obligations
to make payments of Indemnified Amounts hereunder shall be satisfied to the
extent that payments with respect to the same Proceeding (or part thereof) have
been made to or for the benefit of Indemnitee by reason of the indemnification
of Indemnitee pursuant to any other arrangement made by the Company for the
benefit of Indemnitee.
(b) If Indemnitee shall actually receive payment from any insurance
carrier or from the plaintiff in any Proceeding against Indemnitee in respect of
Indemnified Amounts after payments on account of all or part of such Indemnified
Amounts have been made
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by the Company pursuant hereto, Indemnitee shall promptly reimburse to the
Company the amount, if any, by which the sum of such payment by such insurance
carrier or such plaintiff and payments by the Company or pursuant to
arrangements made by the Company to Indemnitee exceeds such Indemnified Amounts.
Portions, if any, of insurance proceeds that are required to be reimbursed to
the insurance carrier under the terms of its insurance policy, such as
deductible or co-insurance payments, shall not be deemed to be payments to
Indemnitee hereunder. In addition, upon payment of Indemnified Amounts
hereunder, the Company shall be subrogated to the rights of Indemnitee receiving
such payments (to the extent thereof) against any insurance carrier (to the
extent permitted under such insurance policies) or plaintiff in respect of such
Indemnified Amounts and Indemnitee shall execute and deliver any and all
instruments and documents and perform any and all other acts or deeds that the
Company deems reasonably necessary or advisable to secure such rights; provided
that the Company reimburses Indemnitee for any costs, expenses or liabilities
incurred by it in providing such cooperation. Such right of subrogation shall be
terminated upon receipt by the Company of the amount to be reimbursed by
Indemnitee pursuant to the first sentence of this Section 6(b).
7. Additional Indemnification Rights. Notwithstanding any other provision
of this Agreement, the Company hereby agrees to indemnify Indemnitee to the
fullest extent permitted by applicable law, notwithstanding that such
indemnification may not be specifically authorized by the other provisions of
this Agreement, the Bye-Laws or by statute. If there is any change, after the
date of this Agreement, in any applicable law, statute or rule, whether by case
law or otherwise, that expands the right of a Bermuda company to indemnify a
member of its board of directors, such changes shall be, ipso facto, within the
purview of Indemnitee's rights and Company's obligations, under this Agreement.
If there is any change in any applicable law, statute or rule that narrows the
right of a Bermuda company to indemnify a member of its board of directors, such
changes, to the extent not otherwise mandatorily required by such law, statute
or rule to be applied to this Agreement, shall have no effect on this Agreement
or the parties, rights and obligations hereunder.
8. Insurance.
(a) If the Company maintains directors and officers liability
insurance to protect itself and any of its directors or officers against any
expense, liability or loss, and such insurance may cover Indemnitee, such
insurance shall cover Indemnitee to at least the same extent as any other
director or officer of the Company. If at any point (i) such insurance ceases to
cover acts and omissions occurring during all or any part of the period of
Indemnitee's Indemnified Position or (ii) neither the Company nor any of its
subsidiaries maintains any such insurance, the Company shall ensure that
Indemnitee is covered, for at least six years (or such shorter period as is
available on commercially reasonable terms) from such point, by other directors
and officers liability insurance, in amounts and on terms (including the period
of Indemnitee's Indemnified Position) no less favorable (or such other
commercially reasonable amounts and terms as are available) to Indemnitee than
the amounts and terms of the liability insurance maintained by the Company on
the date hereof, provided that such insurance is available on commercially
reasonable terms.
(b) The Company shall give prompt notice of the commencement of a
Proceeding to the insurers in accordance with the procedures set forth in the
respective policies.
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The Company shall thereafter take reasonable action to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies.
9. Severability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provisions
hereof shall be held to be invalid or unenforceable for any reason or under any
circumstances, such invalidity or unenforceability shall not affect the validity
or enforceability of the other provisions hereof or the application of the
invalid or unenforceable provision under other circumstances. Furthermore, to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of this Agreement containing any provision held
to be invalid, void or otherwise unenforceable, that is not itself invalid, void
or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
10. Further Assurances. The parties shall do, execute and deliver, or
shall cause to be done, executed and delivered, all such further acts, documents
and things as may be reasonably required for the purpose of giving effect to
this Agreement and the transactions contemplated hereby.
11. Successors; Binding Agreement; No Third Party Beneficiaries. This
Agreement shall be binding on and shall inure to the benefit of and be
enforceable by the Company's successors and assigns and by Indemnitee's personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. Except for the foregoing persons and
entities, nothing in this Agreement, express or implied, is intended to or shall
be deemed to confer upon any person or entity other than the parties hereto any
rights or remedies under or by reason of this Agreement or any provision of this
Agreement. The Company shall require any successor or assignee (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by written agreement
in form and substance reasonably satisfactory to the Company and to Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such
succession or assignment had taken place.
12. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original (including facsimile signatures), but all such counterparts shall
together constitute one and the same instrument.
13. Corporate Power and Authority; Due Authorization; Valid and Binding
Obligation. The Company represents and warrants that (a) it has the corporate
power and authority to execute, deliver and perform its obligations under this
Agreement, (b) this Agreement has been duly authorized, executed and delivered
by the Company, (c) upon the execution and delivery of this Agreement by the
Indemnitee, this Agreement will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, (d) the
execution, delivery and performance of its obligations under this Agreement by
the Company does not and will not breach, violate or cause a termination,
default or acceleration under its Memorandum of Association or Bye-Laws or any
agreement, document,
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instrument, policy (insurance or otherwise), or arrangement to which it is a
party or is bound and (e) Indemnitee is relying upon this Agreement in serving
in an Indemnified Position.
14. Specific Performance. It is specifically understood and agreed that
any breach or threatened breach of this Agreement by the Company will result in
irreparable injury to Indemnitee, that the remedy at law alone will be an
inadequate remedy for such breach or threatened breach and that, in addition to
any other remedy for such breach or threatened breach, the Indemnitee shall be
entitled to enforce the provisions of this Agreement through both temporary and
permanent injunctive relief, without the necessity of (a) proving actual
damages, but without limitation of the rights to recover such damages and (b)
posting a bond or other security.
15. Miscellaneous. No provision of this Agreement may be modified, waived,
or discharged unless the modification, waiver or discharge is agreed to in
writing signed by Indemnitee and either the Chairman of the Board or the
President of the Company or another officer of the Company specifically
designated by the Board. No waiver by either party at any time of any breach by
the other party of, or of compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same time or at any prior or
subsequent time. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any
other right or remedy. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party that are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of Bermuda, without giving effect to the principles of conflict of
laws of that or any other jurisdiction. The headings in this Agreement are for
convenience only and shall not affect the interpretation of any provision of
this Agreement. All communications under this Agreement shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be
notified; (b) when sent by confirmed facsimile if sent during normal business
hours of the recipient; (c) seven days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (d) two days after
deposit with an internationally recognized overnight courier, specifying two day
or prior delivery, with written verification of receipt. All communications
under this Agreement to the (i) Company shall be sent to its principal place of
business to the attention of the Secretary and (ii) Indemnitee shall be sent to
his residential mailing address on file with the Company.
(The remainder of this page is intentionally left blank.)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
INDEMNITEE
/s/ J. Xxxxxxxxxxx Xxxxxxx
------------------------------------------
Name: J. Xxxxxxxxxxx Xxxxxxx
ENSTAR GROUP LIMITED
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
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Exhibit A
[Date]
[Company name and Address]
Ladies and Gentlemen:
I have entered into an Indemnification Agreement, made as of January 31,
2007 (the "Indemnification Agreement"), with Enstar Group Limited (formerly
known as Castlewood Holdings Limited) (the "Company") pursuant to which I am
entitled to advancement of expenses. I understand that the entry into of this
undertaking is a condition to the Company's obligations to advance expenses
under the Indemnification Agreement.
Please accept this letter as my undertaking to repay Advanced Amounts (as
defined in the Indemnification Agreement) if it shall ultimately be determined
in a final, nonappealable judgment or decree that I am not entitled to be
indemnified by the Company. I agree to repay any amounts to the Company within
fifteen business days of any demand therefore pursuant to this undertaking.
This undertaking shall survive any termination or rescission of the
Indemnification Agreement, unless agreed otherwise by the Company.
The validity, interpretation, construction and performance of this
undertaking shall be governed by the laws of Bermuda, without giving effect to
the principles of conflict of laws of that or any other jurisdiction.
Sincerely,
