Exhibit 10.14
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of ________, 2007 between Western
United Financial Corporation, a Delaware corporation (the "Company"), and
_________________ (the "Indemnitee").
WHEREAS, it is essential to the Company to retain and attract
as directors and officers the most capable persons available;
WHEREAS, Indemnitee is a director or officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the
increased risk of litigation and other claims being asserted against directors
and officers of public companies in today's environment;
WHEREAS, basic protection against undue risk of personal
liability of directors and officers heretofore has been provided through
insurance coverage providing reasonable protection at reasonable cost, and
Indemnitee has relied on the availability of such coverage; but as a result of
substantial changes in the marketplace for such insurance it has become
increasingly more difficult to obtain such insurance on terms providing
reasonable protection at reasonable cost;
WHEREAS, the By-laws of the Company and the Certificate of
Incorporation of the Company require the Company to indemnify and advance
expenses to its directors and officers to the full extent permitted by law and
the Indemnitee has been serving and continues to serve as a director or officer
of the Company in part in reliance on such By-laws and Certificate of
Incorporation;
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's continued
service to the Company in an effective manner, the increasing difficulty in
obtaining satisfactory director and officer liability insurance coverage, and
Indemnitee's reliance on the aforesaid By-laws and Certificate of Incorporation,
and in part to provide Indemnitee with specific contractual assurance that the
protection promised by such By-laws and Certificate of Incorporation will be
available to Indemnitee (regardless of, among other things, any amendment to or
revocation of such By-laws or Certificate of Incorporation or any change in the
composition of the Company's Board of Directors or acquisition transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to Indemnitee to the
fullest extent (whether partial or complete) permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and officers' liability
insurance policies;
NOW, THEREFORE, in consideration of the premises and of
Indemnitee continuing to serve the Company directly or, at its request, another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. CERTAIN DEFINITIONS:
(a) CHANGE IN CONTROL: shall be deemed to have occurred
if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of
1934, as amended), other than a trustee or other
fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the
Company in substantially the same proportions as
their ownership of stock of the Company, is or
becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of
securities of the Company representing 20% or more of
the total
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voting power represented by the Company's then
outstanding Voting Securities, or (ii) during any
period of two consecutive years, individuals who at
the beginning of such period constitute the Board of
Directors of the Company and any new director whose
election by the Board of Directors or nomination for
election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the
directors then still in office who either were
directors at the beginning of the period or whose
election or nomination for election was previously so
approved, cease for any reason to constitute a
majority thereof, or (iii) the stockholders of the
Company approve a merger or consolidation of the
Company with any other corporation, other than a
merger or consolidation which would result in the
Voting Securities of the Company outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being
converted into Voting Securities of the surviving
entity) at least 80% of the total voting power
represented by the Voting Securities of the Company
or such surviving entity outstanding immediately
after such merger or consolidation, or the
stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one
transaction or a series of transactions) all or
substantially all the Company's assets.
(b) CLAIM: any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation,
whether instituted by the Company or any other party,
that Indemnitee in good faith believes might lead to
the institution of any such action, suit or
proceeding, whether civil, criminal, administrative,
investigative or other.
(c) EXPENSES: include attorneys' fees and all other
costs, expenses and obligations paid or incurred in
connection with investigating, defending, 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: any event or occurrence related
to the fact that Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company,
or is or was serving at the request of the Company as
a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust or other
enterprise, or by reason of anything done or not done
by Indemnitee in any such capacity.
(e) INDEPENDENT LEGAL COUNSEL: an attorney or firm of
attorneys, selected in accordance with the provisions
of Section 3, who shall not have otherwise performed
services for the Company or Indemnitee within the
last five years (other than with respect to matters
concerning the rights of Indemnitee under this
Agreement, or of other indemnitees under similar
indemnity agreements).
(f) POTENTIAL CHANGE IN 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 in Control; (ii) any person
(including the Company) publicly announces an
intention to take or to consider taking actions which
if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other
fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned,
directly or indirectly, by the stockholders of
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the Company in substantially the same proportions as
their ownership of stock of the Company, who is or
becomes the beneficial owner, directly or indirectly,
of securities of the Company representing 9.5% or
more of the combined voting power of the Company's
then outstanding Voting Securities, increases his
beneficial ownership of such securities by five
percentage points (5%) or more over the percentage so
owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has
occurred.
(g) REVIEWING PARTY: any appropriate person or body
consisting of a member or members of the Company's
Board of Directors or any other person or body
appointed by the Board who is not a party to the
particular Claim for which Indemnitee is seeking
indemnification, or Independent Legal Counsel.
(h) VOTING SECURITIES: any securities of the Company
which vote generally in the election of directors.
2. BASIC INDEMNIFICATION ARRANGEMENT. (a) In the event
Indemnitee was, is or becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant in, a Claim
by reason of (or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than thirty days after written demand is
presented to the Company, against any and all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties or amounts paid in settlement) of such
Claim. Notwithstanding anything in this Agreement to the contrary, except for
proceedings to enforce rights to Indemnification, Indemnitee shall not be
entitled to indemnification pursuant to this Agreement in connection with any
Claim initiated by Indemnitee unless the Board of Directors has authorized or
consented to the initiation of such Claim. If so requested by Indemnitee, the
Company shall advance (within two business days of such request) any and all
Expenses to Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing, (i) the obligations of
the Company under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion, in any case in
which the Independent Legal Counsel referred to in Section 3 hereof is involved)
that Indemnitee would not be permitted to be indemnified under applicable law,
and (ii) the obligation of the Company to make an Expense Advance pursuant to
Section 2(a) shall be subject to the condition that, if, when and to the extent
that the Reviewing Party determines that Indemnitee would not be permitted to be
so indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should 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 Indemnitee shall not be required to reimburse the Company for
any Expense Advance until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed). If there has not been a Change in Control, the Reviewing Party shall be
selected by the Board of Directors, and if there has been such a Change in
Control (other than a Change in Control which has been approved by a majority of
the Company's Board of Directors who were directors immediately prior to such
Change in Control), the Reviewing Party shall be the Independent Legal Counsel
referred to in Section 3 hereof. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee
substantively would not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to
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commence litigation in any court in the State of Delaware having subject matter
jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear in
any such proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
3. CHANGE IN CONTROL. The Company agrees that if there
is a Change in Control of the Company (other than a Change in Control which has
been approved by a majority of the Company's Board of Directors who were
directors immediately prior to such Change in Control) then with respect to all
matters thereafter arising concerning the rights of Indemnitee to indemnity
payments and Expense Advances under this Agreement or any other agreement or
Company By-law or Certificate of Incorporation Article now or hereafter in
effect relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from Independent Legal Counsel selected by Indemnitee and approved
by the Company (which approval shall not be unreasonably withheld). Such
counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the reasonable
fees of the Independent Legal Counsel referred to above and to indemnify fully
such counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
4. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Company
shall indemnify Indemnitee against any and all expenses (including attorneys'
fees) and, if requested by Indemnitee, shall (within two business days of such
request) advance such expenses to Indemnitee, which are incurred by Indemnitee
in connection with any action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any other
agreement or Company By-law or Certificate of Incorporation Article now or
hereafter in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be.
5. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for some
or a portion of the Expenses, judgments, fines, penalties and amounts paid in
settlement of a Claim but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
6. BURDEN OF PROOF. In connection with any determination
by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
7. NO PRESUMPTIONS. For purposes of this Agreement, the
termination of any claim, action, suit or proceeding, by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption 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. In addition, neither the failure of the Reviewing
Party to have made a determination as to whether Indemnitee has met any
particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that
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Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any
particular belief.
8. NONEXCLUSIVITY, ETC. The rights of the Indemnitee
hereunder shall be in addition to any other rights Indemnitee may have under the
Company's By-laws 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 by agreement than would be afforded currently under the
Company's By-laws, Certificate of Incorporation and this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change.
9. LIABILITY INSURANCE. To the extent the Company
maintains an insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Company director or officer.
10. PERIOD OF LIMITATIONS. No legal action shall be
brought and no cause of action shall be asserted by or in the right of the
Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or
legal representatives after the expiration of two years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such two-year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action such
shorter period shall govern.
11. AMENDMENTS, ETC. 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.
12. SUBROGATION. In the event of payment under this
Agreement, the Company 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 be necessary to secure such rights, including
the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
13. NO DUPLICATION OF PAYMENTS. The Company shall not be
liable under this Agreement to make any payment in connection with any Claim
made against Indemnitee to the extent Indemnitee has otherwise actually received
payment (under any insurance policy, By-law, Certificate of Incorporation
Article or otherwise) of the amounts otherwise indemnifiable hereunder.
14. BINDING EFFECT, ETC. 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 purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company, spouses, heirs, executors and
personal and legal representatives. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as an officer or director of
the Company or of any other enterprise at the Company's request.
15. SEVERABILITY. The provisions of this Agreement shall
be severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence)
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are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable in any respect, and the validity and enforceability of any such
provision in every other respect and of the remaining provisions hereof shall
not be in any way impaired and shall remain enforceable to the fullest extent
permitted by law.
16. GOVERNING LAW. 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 such state without giving
effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this ___ day of __________, 2007.
WESTERN UNITED FINANCIAL CORPORATION
By _____________________________
Name:
Title:
_____________________________
Name of Indemnitee
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