Form of INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, dated as of [insert date] (this
"Agreement"), is made and entered into by and between Scottish Annuity & Life
Holdings, Ltd., a Cayman Islands company (the "Company"), and
____________________ ("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, officer, [employee and/or agent] of the
Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors, officers,
[employees and/or agents] of companies in today's environment;
WHEREAS, the Company's Articles of Association (the "Articles") provide
that the Company will indemnify its directors, officers, [employees and/or
agents] to the fullest extent permitted by law and will advance expenses in
connection therewith, and Indemnitee's willingness to serve as a director,
officer, [employee and/or agent] of the Company is based in part on Indemnitee's
reliance on such provisions; and
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, and Indemnitee's reliance on the aforesaid
provisions of the Articles, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such provisions will be
available to Indemnitee regardless of, among other things, any amendment to or
revocation of such provisions or any change in the composition of the Company's
Board of Directors or any acquisition or business combination transaction
relating to the Company, the Company wishes to provide in this Agreement for the
indemnification of and the advancement of expenses to Indemnitee as set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein set forth,
the parties hereto hereby agree as follows:
1. Certain Definitions.
1.1 Claim. The term "Claim" shall mean any threatened, pending or
completed action, suit or proceeding, or any inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal, administrative,
investigative (including, without limitation, an action by or in the right of
the Company) or other.
1.2 Indemnifiable Event. The term "Indemnifiable Event" shall mean any
actual or asserted 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 entity, or
anything done or not done by Indemnitee in any such capacity.
2. Basic Indemnification Arrangement. (a) The Company shall indemnify, in
accordance with and to the fullest extent permitted by the laws of the State of
New York in effect on the date hereof or as such laws may from time to time
hereafter be amended to increase the scope of such permitted indemnification,
Indemnitee who was or is a party or is threatened to be made a party to any
Claim by reason of (or arising in whole or in part out of) an Indemnifiable
Event, against any liability or expense actually and reasonably incurred,
including, without limitation, attorney's fees and other fees and expenses,
judgments, fines and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect
of any such attorneys' fees and other fees and expenses, judgments, fines or
amounts paid in settlement) by Indemnitee in connection with such Claim or any
appeal therefrom, if Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interest of the Company,
and, with respect to any criminal action, proceeding or investigation, had no
reasonable cause to believe his or her conduct was unlawful.
(b) In the event Indemnitee was, is or becomes a party to or other
participant in, or is threatened to be made a party to or other participant in,
a Claim by or in the right of the Company to procure a judgment in its favor by
reason of (or arising in whole or in part out of) an Indemnifiable Event, the
Company will indemnify Indemnitee, in accordance with and to the fullest extent
permitted by the laws of the State of New York in effect on the date hereof or
as such laws may from time to time hereafter be amended to increase the scope of
such permitted indemnification, against costs, charges and expenses, including,
without limitation, attorneys' fees and other fees and expenses, actually and
reasonably incurred by Indemnitee in connection with such Claim or any appeal
therefrom, if Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification shall be made in respect of any such
Claim as to which Indemnitee shall have been adjudged to be liable to the
Company unless and only to the extent that the court in which such action, suit
or proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.
(c) To the extent that the Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense of any Claim referred to in Sections 2(a) or 2(b)
hereof, Indemnitee shall be indemnified against costs, charges and expenses
(including attorneys' fees and other fees and expenses) actually and reasonably
incurred by him in connection therewith.
(d) Directors of the Company shall have no personal liability to the
Company or its Members for monetary damages for breach of fiduciary or other
duties as a director, except (i) for any breach of a director's duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii) a
payment of a dividend on stock of the Company or a purchase or redemption of
stock of the Company in violation of law, or (iv) for any transaction from which
a director derived an improper personal benefit.
2
(e) Subject to Section 4(a), any indemnification under Sections 2(a)
or 2(b), unless ordered by a court, shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of the
Indemnitee is proper in the circumstances because Indemnitee has satisfied the
applicable standard set forth in Section 2(a) or 2(b), as the case may be.
Subject to Section 3(a), such determination shall be made (i) by the Board of
Directors of the Company (the "Board"), by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
(ii) if such a quorum of disinterested directors is not available or if such
disinterested directors so direct, by independent legal counsel (designated in
the manner provided below in this subsection (d)) in a written opinion or (iii)
by the shareholders of the Company (the "Shareholders") by a majority vote of
Shareholders present at a meeting at which a quorum is present. Independent
legal counsel shall be designated by vote of a majority of the disinterested
directors; provided, however, that if the Board is unable or fails to so
designate, such designation shall be made by the Indemnitee subject to the
approval of the Company which approval shall not be unreasonably withheld.
Independent legal counsel shall not be any person or firm who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or the Indemnitee in an
action to determine the Indemnitee's rights under this Agreement. The Company
agrees to pay the reasonable fees and expenses of such independent legal counsel
and to indemnify fully such counsel against costs, charges and expenses,
including, without limitation, attorneys' fees and other fees and expenses,
actually and reasonably incurred by such counsel in connection with this
Agreement or the opinion of such counsel pursuant hereto.
(f) All expenses, including, without limitation, attorneys' fees and
other fees and expenses, incurred by Indemnitee in his capacity as a director,
officer, employee and/or agent of the Company in connection with a Claim shall
be paid by the Company in advance of the final disposition of such Claim in
accordance with and to the full extent now or hereafter permitted by law, and in
the procedural manner prescribed by Section 4(b) hereof.
3. Exceptions to Indemnification; Allowance for Compliance with Commission
Requirements. (a) The Company shall not be obliged under this Agreement to make
any payment in connection with any claim against Indemnitee:
(i) to the extent of any fine or similar governmental
imposition which the Company is prohibited by applicable law, in a
final nonappealable order, from paying; or
(ii) to the extent based upon or attributable to Indemnitee
gaining in fact a personal profit to which he or she was not legally
entitled, including, without limitation, profits made from the
purchase and sale by Indemnitee of equity securities of the Company
which are recoverable by the Company pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
profits arising from transactions in publicly traded securities of the
Company which were effected by Indemnitee in violation of Section
10(b) of the Exchange Act, including Rule 10b-5 promulgated
thereunder.
(b) Indemnitee acknowledges that the Securities and Exchange
Commission (the "Commission") has expressed the opinion that indemnification of
directors and officers from liabilities under the Securities Act of 1933, as
amended (the "Securities Act"), is against public
3
policy as expressed in the Securities Act and is, therefore, unenforceable.
Indemnitee hereby acknowledges and agrees that it will not be a breach of this
Agreement for the Company to undertake with the Commission in connection with
the registration for sale of any shares or other securities of the Company from
time to time that, in the event a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director or officer of the Company in the successful defense of any action,
suit or proceeding) is asserted in connection with such shares or other
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of competent jurisdiction the question of whether or not such indemnification by
the Company is against public policy as expressed in the Securities Act and the
Company will be governed by the final adjudication of such issue. Indemnitee
further agrees that such submission to a court of competent jurisdiction shall
not be a breach of this Agreement.
4. Certain Procedures Relating to Indemnification and Advancement of
Expenses. (a) For purposes of pursuing any rights to indemnification under
Sections 2(a) or 2(b) hereof, as the case may be, Indemnitee may, but shall not
be required to, (i) submit to the entity making the determination whether the
Indemnitee is entitled to indemnification (the "Determining Entity") a written
statement of request for indemnification stating that he or she is entitled to
indemnification hereunder and the basis for asserting such a claim for
indemnification; and (ii) present to the Company reasonable evidence of all
expenses for which payment is requested. Submission of such a written statement
to the Determining Entity shall create a presumption that the Indemnitee is
entitled to indemnification under Sections 2(a) or 2(b) hereof, as the case may
be, and the Determining Entity shall be deemed to have determined that
Indemnitee is entitled to such indemnification unless within 30 calendar days
after receipt of such written statement the Determining Entity shall determine
(i) in the case of a determination made by the Board, by a vote of a majority of
the directors who are not parties to such suit, action or proceeding at a
meeting at which a quorum is present, (ii) in the case of a determination made
by independent legal counsel, in its judgment, or (iii) in the case of a
determination made by the Shareholders, by a vote of a majority of the
Shareholders present at a meeting of Shareholders entitled to vote thereon at a
meeting at which a quorum is present, in each case based upon clear and
convincing evidence (sufficient to rebut the foregoing presumption) that
Indemnitee is not entitled to indemnification and Indemnitee shall have received
notice within such 30 calendar day period in writing of such determination that
Indemnitee is not so entitled to indemnification. The notice to the Indemnitee
specified in the preceding sentence shall disclose with particularity the
evidence in support of the Determining Entity's determination. The provisions of
this Section 4(a) are intended to be procedural only and shall not affect the
right of Indemnitee to indemnification under this Agreement and any
determination by the Determining Entity that the Indemnitee is not entitled to
indemnification and any failure to make the payments requested in the written
statement for indemnification shall be subject to judicial review as provided in
Section 7 hereof.
(b) For purposes of determining whether to authorize advancement of
expenses pursuant to Section 2(f) hereof, Indemnitee shall submit to the Board a
sworn statement of request for advancement of expenses substantially in the form
of Exhibit 1 attached hereto and made a part hereof (the "Undertaking"),
averring that (i) he or she has reasonably incurred or will reasonably incur
actual expenses in connection with a Claim and (ii) he or she undertakes to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Company under this Agreement or otherwise.
Upon receipt of an
4
Undertaking, the Board shall within 10 calendar days authorize immediate payment
of the expenses stated in the Undertaking whereupon such payments shall
immediately be made by the Company. No security shall be required in connection
with any Undertaking and any Undertaking shall be accepted without reference to
the Indemnitee's ability to make repayment.
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 and amounts paid in settlement of a Claim but not,
however, for all of the total amount thereof, the Company will 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, without limitation, dismissal
without prejudice, Indemnitee shall be indemnified against all costs, charges
and expenses, including, without limitation, attorneys' fees and other fees and
expenses, incurred in connection therewith.
6. No Presumption. For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court approval),
or conviction, or upon a plea of nolo contendere or its equivalent, will 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.
7. Enforcement. (a) If a claim for indemnification made to the Company is
not paid in full by the Company within 30 calendar days after a written claim
has been received by the Company, the Indemnitee may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim.
(b) In any action brought under Section 7(a) hereof, it shall be a
defense to a claim for indemnification pursuant to Sections 2(a) or 2(b) hereof
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the
Undertaking, if any is required, has been tendered to the Company) that the
Indemnitee has not met the standards of conduct which make it permissible under
this Agreement for the Company to indemnify the Indemnitee for the amount
claimed, but the burden of proving such defense shall be on the Company. Neither
the failure of the Company, including the Board, independent legal counsel or
the Shareholders, to have made a determination prior to commencement of such
action that indemnification of the Indemnitee is proper in the circumstances
because he has met the applicable standard of conduct set forth in the this
Agreement, nor an actual determination by the Company, including the Board,
independent legal counsel or the Shareholders, that the Indemnitee has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the Indemnitee has not met the applicable standard of
conduct.
(c) It is intent of the Company that the Indemnitee not be required to
incur the expenses associated with the enforcement of his rights under this
Agreement by litigation or other legal action because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
the Indemnitee hereunder. Accordingly, if it should appear to the Indemnitee
that the Company has failed to comply with any of its obligations under this
5
Agreement or in the event that the Company or any other person takes any action
to declare this Agreement void or unenforceable, or institutes any action, suit
or proceeding designed (or having the effect of being designed) to deny, or to
recover from, the Indemnitee the benefits intended to be provided to the
Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee from
time to time to retain counsel of his choice, at the expense of the Company as
hereinafter provided, to represent the Indemnitee in connection with the
initiation or defense of any litigation or other legal action, whether by or
against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. Regardless of the outcome
thereof, the Company shall pay and be solely responsible for any and all costs,
charges and expenses, including, without limitation, attorneys' and other fees
and expenses, reasonably incurred by the Indemnitee (i) as a result of the
Company's failure to perform this Agreement or any provision thereof or (ii) as
a result of the Company or any person contesting the validity or enforceability
of this Agreement or any provision thereof as aforesaid.
8. Non-Exclusivity and Severability. (a) The rights of Indemnitee hereunder
will be in addition to any other rights Indemnitee may have under the Articles
or the Cayman Islands Companies Law (the "CICL") or otherwise; provided,
however, that to the extent that Indemnitee otherwise would have any greater
right to indemnification under any provision of the Articles or the CICL as in
effect on the date hereof, Indemnitee will be deemed to have such greater right
hereunder; and, provided further, that to the extent that any change is made to
the CICL (whether by legislative action or judicial decision) or the Articles
which permits any greater right to indemnification than that provided under this
Agreement as of the date hereof, Indemnitee will be deemed to have such greater
right hereunder. The Company will not adopt any amendment to the Articles the
effect of which would be to deny, diminish or encumber Indemnitee's right to
indemnification under the Articles, the CICL, or otherwise as applied to any act
or failure to act occurring in whole or in part prior to the date upon which the
amendment was approved by the Company's Board of Directors and/or its
Shareholders, as the case may be.
(b) If any provision of this Agreement or the application of any
provision hereof to any person or circumstance is held invalid, unenforceable or
otherwise illegal, the remainder of this Agreement and the application of such
provision to any other person or circumstance will not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal will be
reformed to the extent (and only to the extent) necessary to make it
enforceable, valid or legal.
9. Liability Insurance and Funding. The Board of Directors may authorize
the Company to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another company, partnership, joint venture, trust or other enterprise, or in a
fiduciary or other capacity with respect to any employee benefit plan maintained
by the Company, against any liability asserted against him and incurred by him
in any such official capacity, or arising out of his status as such, whether or
not the Company would have the power to indemnify him against such liability
under the provisions contained in Articles ss.116. The Company may, but will not
be required to, create a trust fund, grant a security interest or use other
means, including without limitation a letter of credit, to ensure the payment of
such amounts as may be necessary to satisfy its obligations to indemnify and
advance expenses pursuant to this Agreement.
6
10. Subrogation. In the event of payment under this Agreement, the Company
will be subrogated to the extent of such payment to all of the related rights of
recovery of Indemnitee against other persons or entities. Indemnitee will
execute all papers reasonably required and will do everything that may be
reasonably necessary to secure such rights and enable the Company effectively to
bring suit to enforce such rights, including all of Indemnitee's reasonable
costs and expenses, including attorneys' fees and disbursements, to be
reimbursed by, or at the option of Indemnitee advanced by, the Company.
11. No Duplication of Payments. The Company will 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, the Articles or otherwise) of the amounts otherwise
indemnifiable hereunder.
12. Defense of Claims. The Company will be entitled to participate in the
defense of any Claim or to assume the defense thereof, with counsel reasonably
satisfactory to the Indemnitee, provided that in the event that (i) the use of
counsel chosen by the Company to represent Indemnitee would present such counsel
with an actual or potential conflict, (ii) the named parties in any such Claim
(including any impleaded parties) include both the Company and Indemnitee and
Indemnitee shall conclude that there may be one or more legal defenses available
to him or her that are different from or in addition to those available to the
Company, or (iii) any such representation by the Company would be precluded
under the applicable standards of professional conduct then prevailing, then
Indemnitee will be entitled to retain separate counsel at the Company's expense.
The Company will not, without the prior written consent of the Indemnitee,
effect any settlement of any threatened or pending Claim which the Indemnitee is
or could have been a party unless such settlement solely involves the payment of
money and includes an unconditional release of the Indemnitee from all liability
on any claims that are the subject matter of such Claim.
13. Successors and Binding Agreement. (a) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business or
assets of the Company, by 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 the Company would be required to perform if no
such succession had taken place. This Agreement will be binding upon and inure
to the benefit of the Company and any successor to the Company, including,
without limitation, any person acquiring directly or indirectly all or
substantially all of the business or assets of the Company whether by purchase,
merger, consolidation, reorganization or otherwise (and such successor will
thereafter be deemed the "Company" for purposes of this Agreement), but this
Agreement will not otherwise be assignable, transferable or delegable by the
Company.
(b) This Agreement will inure to the benefit of and be enforceable by
Indemnitee's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties
hereto may, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as expressly provided in
Sections 13(a) and 13(b). Without
7
limiting the generality or effect of the foregoing, Indemnitee's right to
receive payments hereunder will not be assignable, transferable or delegable,
whether by pledge, creation of a security interest, or otherwise, other than by
a transfer by Indemnitee's will or by the laws of descent and distribution and,
in the event of any attempted assignment or transfer contrary to this Section
13(c), the Company will have no liability to pay any amount so attempted to be
assigned, transferred or delegated.
14. Notices. (a) For all purposes of this Agreement, all communications,
including, without limitation, notices, consents, requests or approvals,
required or permitted to be given hereunder will be in writing and may be given
by the Company to any Stockholder either personally or by sending it by post,
cable, email, telex or telecopy to him or to his address as shown in the
register of Shareholders, such notice, if mailed, to be forwarded airmail if the
address be outside the Cayman Islands.
(b) Where a notice or other communication is sent by post, service of
the notice shall be deemed to be effected by properly addressing to the Company,
to the attention of the President of the Company, at its principle executive
office and to Indemnitee at Indemnitee's principal residence as shown in the
Company's most current records, pre-paying and posting a letter containing the
notice, and to have been effected at the expiration of sixty hours after the
letter containing the same is posted as aforesaid.
(c) Where a notice or other communication is sent by cable, email,
telex, or telecopy, service of the notice shall be deemed to be effected by
properly addressing, and sending such notice through a transmitting organization
or medium (with receipt thereof orally confirmed) and to have been effected on
the day the same is sent as aforesaid.
15. Governing Law. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of New York, without giving effect to the
principles of conflict of laws of such State, except that the provisions of
Section 8(a) hereof with respect to the scope of rights to indemnification under
the CICL shall be interpreted and construed under the laws of the Cayman
Islands.
16. Consent to Jurisdiction, Venue and Service of Process. Each party
consents to non-exclusive jurisdiction of any New York state or federal court or
any court in any other jurisdiction in which a Claim is commenced by a third
person for purposes of any action, suit or proceeding hereunder, waives any
objection to venue therein or any defense based on forum non conveniens or
similar theories and agrees that service of process may be effected in any such
action, suit or proceeding by notice given in accordance with Section 14.
17. Miscellaneous. No provision of this Agreement may be waived, modified
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by Indemnitee and the Company. No waiver by either party hereto
at any time of any breach by the other party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
8
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the date first above written.
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
By:
----------------------------------------
Name:
Title:
INDEMNITEE:
-------------------------------------------
[Name of Indemnitee]
9
Exhibit 1
UNDERTAKING
CAYMAN ISLANDS
I, ____________________, being first duly sworn do depose and say as
follows:
1. This Undertaking is submitted pursuant to the Indemnification Agreement,
dated as of __________________, 20___, between Scottish Annuity & Life Holdings,
Ltd. (the "Company"), a Cayman Islands corporation and the undersigned.
2. I am requesting advancement of certain costs, charges and expenses which
I have incurred or will incur in defending an actual or pending civil or
criminal action, suit, proceeding or claim.
3. I hereby undertake to repay this advancement of expenses if it shall
ultimately be determined that I am not entitled to be indemnified by the Company
under the aforesaid Indemnification Agreement or otherwise.
4. The costs, charges and expenses for which advancement is requested are,
in general, all expenses related to
--------------------------------------------
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
--------------------------------------------
Subscribed and sworn to before me, a Notary Public in and for
, this day of , 20 .
-------------------- --- ------------------ --
--------------------------------------------
[Seal]
My commission expires the day of , 20 .
------- ---------------- --
