INDEMNIFICATION AGREEMENT
Exhibit 10.23
This INDEMNIFICATION AGREEMENT (the “Agreement”) dated as of February ____, 2011, is made by
and between Reinsurance Group of America, Incorporated, a Missouri corporation (“RGA”) and
(”Indemnitee”).
RECITALS
A. Indemnitee is a director of RGA and in such capacity is performing a valuable service for
RGA.
B. The Second Restated Articles of Incorporation of RGA requires RGA to indemnify its
directors and officers to the maximum extent permitted by law, and indemnification is also
authorized by Section 351.355 of The General and Business Corporation Law of Missouri (the
“Indemnification Statute”).
C. The Second Restated Articles of Incorporation of RGA and the Indemnification Statute, under
which RGA is organized, expressly provide that the indemnification provisions set forth therein are
not exclusive, and contemplate that contracts may be entered into between RGA and its directors and
officers with respect to indemnification.
D. In accordance with the authorization provided by the Second Restated Articles of
Incorporation of RGA and the Indemnification Statute, directors and officers liability insurance
(“D&O Insurance”) has been purchased covering certain liabilities which may be incurred by RGA’s
directors and officers in the performance of their services for RGA, subsidiaries of RGA, and other
enterprises.
E. RGA recognizes that competent and experienced persons are reluctant to serve as directors
or officers of corporations unless they are protected by comprehensive liability insurance or
indemnification, or both, due to increased exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and officers.
F. The statutes and judicial decisions regarding the duties of directors and officers are
often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such directors
and officers with adequate, reliable knowledge of legal risks to which they are exposed or
information regarding the proper course of action take.
G. RGA and Indemnitee recognize that plaintiffs often seek damages in such large amounts and
the costs of litigation may be so enormous (whether or not the case is meritorious), that the
defense and/or settlement of such litigation is often beyond the personal resources of directors
and officers.
H. RGA believes that it is unfair for its directors and officers to assume the risk of huge
judgments and other expenses which may occur in cases in which the director or officer received no
personal profit and in cases where the director or officer was not culpable.
I. RGA, after reasonable investigation, has determined that policies of D&O Insurance may be
inadequate in certain circumstances to cover all possible exposure from which Indemnitee should be
protected. RGA believes that the interests of RGA and its stockholders would best be served by a
combination of such insurance and the indemnification by RGA of the directors and officers of RGA.
To provide such protection and thereby induce Indemnitee to serve or continue to serve as a
director and/or officer of RGA, RGA has determined and agreed to enter into this Agreement with
Indemnitee.
J. The Board of Directors has determined that contractual indemnification as set forth herein
is not only reasonable and prudent but necessary to promote the best interests of RGA and its
shareholders.
K. RGA desires and has requested Indemnitee to serve or continue to serve as a director and/or
officer of RGA free from undue concern for claims for damages arising out of or related to such
services.
L. Indemnitee is willing to serve, or continue to serve, or to provide additional service as a
director and/or officer of RGA or for or on behalf of RGA, only on the condition that Indemnitee is
furnished the indemnity provided for herein.
NOW THEREFORE, in consideration of the premises and Indemnitee’s service as a director and/or
officer of RGA after the date hereof, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, RGA and Indemnitee, intending to be legally bound,
hereby agree as follows:
1. Definitions
In this Agreement the following terms have the following meanings:
(a) The term “another enterprise” shall mean any corporation (other than RGA), partnership,
joint venture, trust, limited liability company, employee benefit plan or other legal entity or
enterprise.
(b) The term “defense” when used with respect to any proceeding shall include investigations
of any proceeding as well as appeals in any proceeding and shall also include defense by way of
cross claim or counterclaim.
(c) The term “expenses” means all direct and indirect costs (including, without limitation,
attorneys’ fees, retainers, court costs, transcripts, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery
service fees, appeal bonds, and all other disbursements or out-of-pocket expenses) actually and
reasonably incurred in connection with (i) any proceeding or (ii) establishing or enforcing any
right to indemnification or advancement of expenses under this Agreement, applicable law, any other
agreement or provision of RGA’s Articles of Incorporation or By-laws now or hereafter in effect or
otherwise; provided, however, that “expenses” shall not include any judgment, fines or amount paid
in settlement. The term “expenses” shall include reasonable compensation for time spent by
Indemnitee for which Indemnitee is not otherwise compensated by RGA or any other source, provided
that the rate of compensation and estimated time involved is approved by RGA’s Board of Directors.
(d) The term “judgments, fines and amounts paid in settlement” shall be broadly construed and
shall include, without limitation, all direct and indirect payments of any type or nature
whatsoever, as well as any penalties or excise taxes assessed on a person with respect to an
employee benefit plan.
(e) The term “proceeding” shall mean, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, or the giving of testimony in, any
threatened, pending or completed claim, action, suit or proceeding (including those by or in the
right of RGA or a subsidiary of RGA) whether civil, criminal, administrative or investigative or
otherwise and whether formal or informal.
(f) The term “serving at the request of RGA” shall include, without limitation, any service as
a director, officer, employee or agent of RGA or a subsidiary of RGA which imposes duties on, or
involves services by, Indemnitee with respect to any employee benefit plan, its participants or
beneficiaries.
(g) “RGA” shall include, without limitation and in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
(h) A “director or officer of RGA” shall include a director or officer of a subsidiary of RGA,
a “director and/or officer of RGA” shall include a director and/or officer of a subsidiary of RGA”,
and “RGA’s directors and officers” shall include directors and officers of RGA’s subsidiaries.
2. Indemnification — General
RGA shall indemnify and hold harmless Indemnitee to the fullest extent permitted or authorized
by applicable law. The term “applicable law” means (i) the Indemnification Statute as in effect on
the date hereof and as thereafter amended (but in the case of any such amendment, only to the
extent such amendment permits RGA to provide broader indemnification rights than the
Indemnification Statute permitted RGA to provide immediately prior to such amendment) and (ii) any
other statutory indemnification provisions adopted after the date hereof.
3. Additional Indemnification
Notwithstanding any limitation on indemnity pursuant to Section 2, RGA shall indemnify
Indemnitee and hold Indemnitee harmless from and against any and all expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with any
proceeding to which Indemnitee is, was or at any time becomes a party, or is threatened to be made
a party by reason of the fact that Indemnitee is or was at any time a director, officer, employee
or agent of RGA, or is or was serving or at any time serves at the request of RGA as a director,
officer, employee or agent of another corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise. 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, Indemnitee shall be indemnified against expenses, including attorneys’
fees, actually and reasonably incurred by Indemnitee in connection with the proceeding in question.
4. Partial Indemnification
If Indemnitee is entitled under any provision of this Agreement to indemnification by RGA for
some or a portion of any expenses or liabilities of any type whatsoever (including, but not limited
to, attorneys’ fees, judgments, fines and amounts paid in settlement), but is not entitled,
however, to indemnification for the total amount thereof, RGA shall nevertheless indemnify the
Indemnitee for the portion thereof to which the Indemnitee is so entitled.
5. Insurance
RGA may, but is not obligated to, obtain D&O Insurance as may be or become available in
reasonable amounts from established and reputable insurers with respect to which Indemnitee is
named as an insured. Notwithstanding any other provision of the Agreement, the Company shall not
be obligated to indemnify Indemnitee for expenses or liabilities of any type which have been paid
directly to or on behalf of Indemnitee by D&O Insurance. If RGA has D&O Insurance in effect at the
time RGA receives from Indemnitee any notice of the commencement of a proceeding, RGA shall give
prompt notice of the commencement of such proceeding to the insurer(s) in accordance with the
procedures set forth in the applicable policy or policies. RGA shall thereafter take all necessary
or desirable action to cause such insurer(s) to pay, to or on behalf of the Indemnitee, all amounts
payable as a result of such proceeding in accordance with the terms of such policy or policies.
6. Limitations on Certain Indemnification
Notwithstanding any other provisions of this Agreement to the contrary, RGA shall not
indemnify or hold Indemnitee harmless:
(a) for amounts indemnified by RGA other than pursuant to this Agreement and amounts paid
pursuant to policies of D&O Insurance;
(b) in respect to remuneration paid to Indemnitee if it shall be determined by a final
judgment or other final adjudication that such remuneration was in violation of law;
(c) if a final judgment is rendered against Indemnitee for an accounting of profits made from
the purchase or sale by Indemnitee of securities of RGA pursuant to Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local
law;
(d) from or on account of Indemnitee’s conduct which is finally adjudged by a court having
jurisdiction in the matter to have been knowingly fraudulent, deliberately dishonest or to have
constituted willful misconduct;
(e) if a final adjudication by a court having jurisdiction in the matter shall determine that
such indemnification is not lawful;
(f) in respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not
by way of defense, except in respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement, or any other statute or law or otherwise as required under
the Indemnification Statute, if Indemnitee is successful in whole or in part, but such
indemnification or advancement of expenses may be provided by RGA in specific cases if the Board of
Directors finds it to be appropriate; or
(g) in connection with proceedings or claims involving the enforcement of non-compete and/or
non-disclosure agreements or the non-compete and/or non-disclosure provisions of employment,
consulting or similar agreements that Indemnitee may be a party to with RGA, any subsidiary of RGA
or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, if any.
7. Notification and Defense of Claim
After receipt by Indemnitee of notice of the commencement of, or the threat of the
commencement of, any proceeding, Indemnitee shall promptly notify RGA if Indemnitee believes that
indemnification with respect thereto may be sought from RGA under this Agreement; provided,
however, that the failure of Indemnitee to provide such notification shall not diminish
Indemnitee’s indemnification hereunder, except to the extent that RGA can demonstrate that it was
actually prejudiced as a result thereof. With respect to any such proceeding as to which
Indemnitee notifies RGA of the commencement thereof or the threat of the commencement thereof:
(a) RGA will be entitled to participate therein at its own expense.
(b) Except as otherwise provided in the next paragraph, RGA, jointly with any other
indemnifying party similarly notified, will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee. After notice from RGA to Indemnitee of RGA’s election to
assume the defense thereof, RGA will not be liable to Indemnitee under this Agreement for any legal
or other expenses subsequently incurred by Indemnitee in the defense thereof other than reasonable
costs of investigation or as noted in the next paragraph of this subsection (b).
Indemnitee may employ Indemnitee’s own counsel in such proceeding but the fees and expenses of
such counsel incurred after notice from RGA of its assumption of the defense thereof shall be at
the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by
RGA, (ii) RGA shall have reasonably concluded that there may be a conflict of interest between RGA
and Indemnitee in the conduct of the defense of such proceeding, or (iii) RGA shall not in fact
have employed counsel to assume the defense of such proceeding, in each of which cases the
reasonable fees and expenses of Indemnitee’s counsel shall be at the expense of RGA.
(c) RGA shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid
in settlement of any proceeding effected without RGA’s written consent. RGA shall not settle any
proceeding in any manner which would impose any penalty or limitation on Indemnitee without
Indemnitee’s written consent. Neither RGA nor Indemnitee will unreasonably withhold their consent
to any proposed settlement.
8. Advancement of Expenses
Except as otherwise provided herein, RGA shall advance any expenses actually and reasonably
incurred by Indemnitee in connection with the investigation, defense, settlement and/or appeal of
any proceeding to which Indemnitee is a party or is threatened to be made a party by reason of the
fact that Indemnitee is or was a director, officer, employee or agent of RGA or a subsidiary of
RGA, or is or was serving at the request or on behalf of RGA or a subsidiary of RGA as a director,
officer, employee or agent of another corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan or another enterprise, provided RGA receives an undertaking
from the Indemnitee agreeing to repay such amounts advanced in the event it is ultimately
determined that the Indemnitee is not entitled to be indemnified by RGA therefor. The advances to
be made hereunder shall be paid by RGA to or on behalf of the Indemnitee promptly and in any event
within thirty (30) days following delivery of a written request therefor by Indemnitee to RGA and a
copy of the invoices requested to be paid.
9. Enforcement
(a) In the event that Indemnitee is required to bring any action to enforce any rights or to
collect any money due under this Agreement, RGA shall advance Indemnitee’s expenses; provided,
however, that if Indemnitee is not successful in such action, in whole or in part, Indemnitee shall
reimburse RGA for all of Indemnitee’s expenses so advanced.
(b) Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for herein is held by a court of competent
jurisdiction to be unavailable to Indemnitee in whole or in part, it is agreed that, in such event,
RGA shall to the fullest extent permitted by Missouri law, contribute to the payment of the
Indemnitee’s expenses, judgments, fines and amounts paid in settlement with respect to any
proceeding in an amount that is just and equitable in the circumstances, taking into account, among
other things, contributions by other directors and
officers of RGA or others pursuant to indemnification agreements or otherwise; provided that,
without limiting the generality of the foregoing, such contribution shall not be required where
such holding by the court is due to Indemnitee having intentionally caused or intentionally
contributed to the injury complained of with the knowledge that such injury would occur.
(c) RGA shall indemnify Indemnitee against all expenses actually and reasonably incurred in
connection with any hearing or proceeding under this Section 9, if Indemnitee is successful in
whole or in part.
10. Continuation of Indemnity
All agreements and obligations of RGA contained herein shall continue during the period
Indemnitee is a director or officer of RGA (or is or was serving at the request or on behalf of RGA
or a subsidiary of RGA as a director, officer, employee or agent of another enterprise) and shall
continue thereafter so long as Indemnitee shall be subject to any possible proceeding by reason of
the fact that Indemnitee was a director or officer of RGA or serving in any other capacity referred
to herein.
11. Other Rights and Remedies
The indemnification and other rights provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may be entitled under any provision of law, RGA’s Second
Restated Articles of Incorporation, RGA’s Bylaws, other agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in Indemnitee’s official capacity and as to
action in another capacity while occupying any of the positions or having any of the relationships
referred to in this Agreement, and shall continue after Indemnitee has ceased to occupy such
position or have such relationship.
12. Subrogation
In the event of payment under this Agreement, RGA shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and
shall do everything that may reasonably be necessary to secure such rights, including the execution
of such documents necessary to enable RGA effectively to bring suit to enforce such rights. RGA
shall pay or reimburse all reasonable expenses incurred by Indemnitee in connection with such
subrogation.
13. Severability
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable (i)
the validity, legality and enforceability of the remaining provisions of this Agreement shall not
be in any way affected or impaired thereby, and (ii) to the fullest extent possible, the provisions
of this Agreement shall be construed so as to give effect to the intent manifested by the provision
held invalid, illegal or unenforceable.
14. Modification and Waiver
No supplement or amendment of this Agreement shall be binding unless executed in writing by
both of the parties. No waiver of any of the provisions of this Agreement shall be binding unless
executed in writing by the person making the waiver nor shall such waiver constitute a continuing
waiver.
15. Notices
All notices, requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if (i) delivered by hand and receipted for by 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:
____________________________
____________________________
____________________________
or to such other address as may be furnished in writing to RGA by Indemnitee;
(b) If to RGA, to:
Reinsurance Group of America, Incorporated
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
or to such other address as may have been furnished in writing to Indemnitee by RGA.
16. Governing Law
This Agreement shall in all respects be construed in accordance with and governed by the
substantive laws of the State of Missouri, without reference to its choice of law rules.
17. Other Rights and Remedies
The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may
have under RGA’s Articles of Incorporation, Bylaws or the Indemnification Statute or otherwise, and
nothing herein shall be deemed to diminish or otherwise restrict Indemnitee’s right to
indemnification under any such other provision. To the extent applicable law or the Articles of
Incorporation or the Bylaws of RGA, as in effect on the date hereof or at any time in the future,
permit greater indemnification than as provided for in this Agreement, the parties hereto agree
that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such law or
provision of the Articles of Incorporation or Bylaws and this Agreement shall be deemed amended
without any further action by RGA or Indemnitee to grant such greater benefits.
18. Heirs, Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of and be enforceable against
and by the parties hereto and their respective successors, assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of RGA), spouses, heirs and personal and legal representatives. RGA
shall require and cause any successor (whether direct or indirect by purchase, merger,
consolidation, or otherwise) to all, substantially all, or a substantial part, of the business
and/or assets of RGA, by written agreement in form and substance satisfactory to Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent
that RGA would be required to perform if no such succession had taken place. This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as a director, officer,
employee or agent of RGA or of another enterprise at the request of RGA. This Agreement shall not
be deemed to create any obligation on the part of Indemnitee to continue to serve in any such
capacity. No assignment or succession (whether direct or indirect by purchase, merger,
consolidation, or otherwise) shall relieve RGA of its obligations hereunder.
19. Agreement to Serve
Indemnitee agrees to serve and/or continue to serve as an director and/or officer of RGA, at
its will (or under separate agreement, if such agreement now or hereafter exists), so long as he or
she is duly appointed or elected and qualified in accordance with the applicable provisions of the
Articles of Incorporation and Bylaws of RGA, any subsidiary of RGA, or any applicable other foreign
or domestic corporation, partnership, limited liability company, joint venture, trust or other
enterprise, or until such time as he or she tenders his or her resignation in writing, provided,
however, that nothing contained in this Agreement is intended to create any right to continued
employment by Indemnitee in any capacity.
20. Miscellaneous
(a) The headings of the paragraphs of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or affect the construction thereof.
(b) RGA expressly confirms and agrees that is has entered into this Agreement and assumed the
obligations imposed on RGA hereby in order to induce Indemnitee to become or to continue as a
director and/or officer of RGA and acknowledges that Indemnitee is relying upon this Agreement in
continuing in such capacity or capacities.
(c) In the event of any ambiguity, vagueness or other matter involving the interpretation or
meaning of this Agreement, this Agreement shall be liberally construed so as to provide to
Indemnitee the full benefits set out herein.
(d) This Agreement supercedes any prior indemnification agreement between Indemnitee and RGA
or its predecessors or subsidiaries.
[Remainder of this page intentionally left blank; signature page follows.]
This INDEMNIFICATION AGREEMENT is entered into on the day and year first above written.
| REINSURANCE GROUP OF AMERICA, INCORPORATED |
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| INDEMNITEE |
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