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Exhibit 10.11
AMERISAFE, INC.
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this "AGREEMENT") is made and entered
into
as of the ______ day of ________________ 2005, by and between
AMERISAFE, Inc., a
Texas corporation (the "CORPORATION"), and ________________
("INDEMNITEE").
RECITALS
A. It is
critically important to the Corporation and its shareholders
that
the Corporation be able to attract and retain the most capable
persons
reasonably available to serve as directors and officers of the
Corporation.
B. In
recognition of the need for corporations to be able to induce
capable and responsible persons to accept positions in corporate
management,
Texas law authorizes (and in some instances requires) corporations
to indemnify
their directors and officers, and further authorizes corporations
to purchase
and maintain insurance for the benefit of their directors and
officers.
C. Recent
federal legislation and rules adopted by the Securities and
Exchange Commission and the national securities exchanges have
imposed
additional disclosure and corporate governance obligations on
directors and
officers of public companies and have exposed such directors and
officers to new
and substantially broadened civil liabilities.
D. These
legislative and regulatory initiatives have also exposed
directors and officers of public companies to a significantly
greater risk of
criminal proceedings, with attendant defense costs and potential
criminal fines
and penalties.
E.
Indemnitee is a director and/or officer of the Corporation and
his/her
willingness to serve in such capacity is predicated, in substantial
part, upon
the Corporation's willingness to indemnify him/her in accordance
with the
principles reflected above, to the full extent permitted by the
laws of the
State of Texas, and upon the other undertakings set forth in this
Agreement.
F.
Therefore, in recognition of the need to provide Indemnitee
with
substantial protection against personal liability, in order to
procure
Indemnitee's continued service as a director and/or officer of the
Corporation
and to enhance Indemnitee's ability to serve the Corporation in an
effective
manner, and in order to provide such protection pursuant to express
contract
rights (intended to be enforceable irrespective of, among other
things, any
amendment to the Corporation's Second Amended and Restated Articles
of
Incorporation (the "ARTICLES") or Second Amended and Restated
Bylaws (the
"BYLAWS") or any change in the composition of the Corporation's
Board of
Directors (the "BOARD")), the Corporation wishes to provide in this
Agreement
for the indemnification of and the advancement of Expenses (as
defined in
Article I) to Indemnitee as set forth in this Agreement and for the
continued
coverage of Indemnitee under the Corporation's directors' and
officers'
liability insurance policies.
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G. In
light of the considerations referred to in the preceding
recitals,
it is the Corporation's intention and desire that the provisions of
this
Agreement be construed liberally, subject to their express terms,
to maximize
the protections to be provided to Indemnitee hereunder.
NOW,
THEREFORE, in order to induce Indemnitee to continue to serve
in
his/her present capacity, the Corporation and Indemnitee hereby
agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
As used
herein, the following words and terms shall have the following
respective meanings (whether singular or plural):
"CLAIM"
means an actual or threatened claim or request for relief.
"CORPORATE STATUS"
means the status of a person as a current or former
director or officer of the Corporation or, at the request of the
Corporation, as
a current or former director, officer, partner, venturer,
proprietor, trustee,
employee, agent or similar functionary of another foreign or
domestic
corporation, employee benefit plan, other enterprise or other
entity.
"DISINTERESTED DIRECTOR" means a director of the Corporation who is
not
and was not a party to the Proceeding or Claim in respect of
which
indemnification is sought by Indemnitee.
"EXPENSES"
means all attorneys' fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating
costs,
printing costs, telephone charges, postage, delivery service fees
and all other
disbursements or expenses of the types customarily incurred in
connection with
prosecuting, defending, preparing to prosecute or defend,
investigating or being
or preparing to be a witness in a Proceeding.
"INCUMBENT
DIRECTORS" means the individuals who, as of the date hereof,
are directors of the Corporation and any individual becoming a
director
subsequent to the date hereof whose election, nomination for
election by the
Corporation's shareholders, or appointment, was approved by a vote
of at least
two-thirds of the then-Incumbent Directors (either by a specific
vote or by
approval of the proxy statement of the Corporation in which such
person is named
as a nominee for director, without objection to such nomination);
provided,
however, that an individual shall not be an Incumbent Director if
such
individual's election or appointment to the Board occurs as a
result of an
actual or threatened election contest (as described in Rule
14a-12(c) under the
Securities Exchange Act of 1934, as amended) with respect to the
election or
removal of directors or other actual or threatened solicitation of
proxies or
consents by or on behalf of a person other than the Board.
"INDEPENDENT COUNSEL" means a law firm, or a member of a law firm,
that is
experienced in matters of corporation law and neither presently is,
nor in the
past five years has been, retained to represent: (i) the
Corporation or
Indemnitee in any matter material to either such party (other than
with respect
to matters concerning Indemnitee under this Agreement, or of other
indemnitees
under similar indemnification agreements), or (ii) any other named
(or, as to a
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threatened matter, reasonably likely to be named) party in the
Proceeding or
Claim giving rise to a claim for indemnification hereunder.
Notwithstanding the
foregoing, Independent Counsel shall not include any person who,
under the
applicable standards of professional conduct then prevailing, would
have a
conflict of interest in representing either the Corporation or
Indemnitee in an
action to determine Indemnitee's rights under this Agreement.
"OFFICIAL
CAPACITY" means (a) when used with respect to a director, the
office of director in the Corporation, and (b) when used with
respect to a
person other than a director, the elective or appointive office in
the
Corporation held by the officer or the employment or agency
relationship
undertaken by the employee or agent on behalf of the Corporation,
but neither
clause (a) nor (b) includes service for any other foreign or
domestic
corporation or any employee benefit plan, other enterprise or other
entity.
"PROCEEDING" means any threatened, pending or completed action,
suit or
other proceeding, whether civil, criminal, administrative,
arbitrative or
investigative (except one initiated by Indemnitee pursuant to
Article V of this
Agreement to enforce his/her rights under this Agreement), any
appeal in such an
action, suit or proceeding, and any inquiry or investigation that
could lead to
such an action, suit or proceeding.
ARTICLE II
INDEMNIFICATION
Section
2.1 General. The Corporation shall indemnify, and advance
Expenses
to, Indemnitee to the full extent permitted by applicable law in
effect on the
date hereof and to such greater extent as applicable law may
thereafter from
time to time permit. The rights of Indemnitee provided under the
preceding
sentence shall include, but shall not be limited to, the right to
be indemnified
and to have Expenses advanced in all Proceedings to the full extent
permitted by
Article 2.02-1 of the Texas Business Corporation Act (the "TBCA")
(or any
successor provision). The provisions set forth in this Agreement
are provided in
addition to and as a means of furtherance and implementation of,
and not in
limitation of, the obligations expressed in this Article II.
Section
2.2 Additional Indemnity of the Corporation. Indemnitee shall
be
entitled to indemnification pursuant to this Section 2.2 if, by
reason of
his/her Corporate Status, he/she is, or is threatened to be made, a
party to any
Proceeding (except to the extent limited by Section 2.3). Pursuant
to this
Section 2.2, Indemnitee shall be indemnified against judgments,
penalties
(including excise and similar taxes), fines, settlements and
reasonable Expenses
actually incurred by him/her or on his/her behalf in connection
with such
Proceeding or any Claim therein, if (a) he/she conducted
himself/herself in good
faith, (b) he/she reasonably believed: (i) in the case of conduct
in his/her
Official Capacity, that his/her conduct was in the Corporation's
best interests;
and (ii) in all other cases, that his/her conduct was at least not
opposed to
the Corporation's best interests, and (c) in the case of any
criminal
Proceeding, had no reasonable cause to believe his/her conduct was
unlawful.
Nothing in this Section 2.2 shall limit the benefits of Section 2.1
or any other
Section hereunder.
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Section
2.3 Limitation on Indemnity. The indemnification otherwise
available to Indemnitee under Section 2.2 shall be limited to the
extent set
forth in this Section 2.3. In the event that Indemnitee is found
liable to the
Corporation or is found liable on the basis that personal benefit
was improperly
received by Indemnitee, whether or not the benefit resulted from an
action taken
in Indemnitee's Official Capacity, Indemnitee shall, with respect
to the Claim
in the Proceeding in which such finding is made, be indemnified
only against
reasonable Expenses actually incurred by him/her in connection with
that Claim.
Notwithstanding the foregoing, no indemnification against such
Expenses shall be
made in respect of any Claim in such Proceeding as to which
Indemnitee shall
have been adjudged to be liable for willful or intentional
misconduct in the
performance of his/her duty to the Corporation; provided, however,
that, if
applicable law so permits, indemnification against such Expenses
shall
nevertheless be made by the Corporation in such event if and only
to the extent
that the court in which such Proceeding shall have been brought or
is pending,
shall determine.
ARTICLE III
EXPENSES
Section
3.1 Expenses of a Party Who Is Wholly or Partly Successful.
Indemnitee shall be indemnified against all reasonable Expenses
incurred by
him/her in connection with any Proceeding to which Indemnitee is a
party by
reason of his/her Corporate Status and in which Indemnitee is
wholly successful,
on the merits or otherwise, in the defense of such Proceeding. In
the event that
Indemnitee is not wholly successful, on the merits or otherwise, in
a Proceeding
but is successful, on the merits or otherwise, as to any Claim in
such
Proceeding, the Corporation shall indemnify Indemnitee against all
reasonable
Expenses incurred by him/her or on his/her behalf relating to each
such Claim.
For purposes of this Section 3.1 and without limitation, the
termination of a
Claim in a Proceeding by dismissal, with or without prejudice,
shall be deemed
to be a successful result as to such Claim.
Section
3.2 Expenses of a Witness. To the extent that Indemnitee is, by
reason of his/her Corporate Status, a witness or otherwise
participates in any
Proceeding at a time when he/she is not named a defendant or
respondent in the
Proceeding, he/she shall be indemnified against all Expenses
incurred by him/her
or on his/her behalf in connection therewith.
Section
3.3 Advancement of Expenses. The Corporation shall pay all
reasonable Expenses incurred by or on behalf of Indemnitee in
connection with
any Proceeding or Claim, whether brought by the Corporation or
otherwise, in
advance of any determination respecting entitlement to
indemnification pursuant
to Article IV hereof within ten business days after the receipt by
the
Corporation of a written request from Indemnitee setting forth a
written
affirmation of his/her good faith belief that he/she has met the
standard of
conduct necessary for indemnification under applicable law,
confirming his/her
obligation under the last sentence of this Section 3.3 and
requesting such
payment or payments from time to time, whether prior to or after
final
disposition of such Proceeding or Claim. Such statement or
statements shall
reasonably evidence the Expenses incurred by Indemnitee. Indemnitee
hereby
undertakes and agrees that he/she will repay the Corporation for
any Expenses so
advanced to the extent that it shall ultimately be determined by a
court in a
final adjudication from which there is no further right of appeal,
that
Indemnitee is not entitled to be indemnified against such
Expenses.
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ARTICLE IV
PROCEDURE FOR DETERMINATION OF RIGHT TO INDEMNIFICATION
Section
4.1 Request for Indemnification. To obtain indemnification
under
this Agreement, Indemnitee shall submit to the Corporation a
written request,
including therein or therewith such documentation and information
as is
reasonably available to Indemnitee and is reasonably necessary to
determine
whether and to what extent Indemnitee is entitled to
indemnification for a
Proceeding or Claim. The Secretary or an Assistant Secretary of the
Corporation
shall, promptly upon receipt of such a request for indemnification,
advise the
Board in writing that Indemnitee has requested indemnification. If,
at the time
of the receipt of such request, the Corporation has directors' and
officers'
liability insurance in effect under which coverage for such
Proceeding or Claim
is potentially available, the Corporation shall give prompt written
notice of
such Proceeding or Claim to the applicable insurers in accordance
with the
procedures set forth in the applicable policies. The Corporation
shall provide
to Indemnitee a copy of such notice delivered to the applicable
insurers, and
copies of all subsequent correspondence between the Corporation and
such
insurers regarding the Proceeding or Claim, in each case
substantially
concurrently with the delivery or receipt thereof by the
Corporation. The
failure by Indemnitee to timely notify the Corporation of any
Proceeding or
Claim shall not relieve the Corporation from any liability
hereunder unless, and
only to the extent that, the Corporation did not otherwise learn of
such
Proceeding or Claim and such failure results in forfeiture by the
Corporation of
substantial defenses, rights or insurance coverage.
Section
4.2 Determination of Right to Indemnification.
(a) To the extent that Indemnitee shall have been wholly
successful,
on the merits or otherwise, in defense of any Proceeding or Claim
or in defense
of any issue or matter therein, including without limitation
dismissal without
prejudice, Indemnitee shall be indemnified against judgments,
penalties
(including excise and similar taxes), fines, settlements and
reasonable Expenses
actually incurred by him/her or on his/her behalf in connection
with any such
Proceeding or Claim or any issue or matter therein in accordance
with Article II
and no Standard of Conduct Determination (as defined in Section
4.2(b)) shall be
required.
(b) Upon written request by Indemnitee for indemnification
pursuant
to Section 4.1 hereof, a determination of whether Indemnitee has
satisfied any
applicable standard of conduct under Texas law that is a legally
required
condition precedent to indemnification of Indemnitee hereunder with
respect to
Indemnitee's entitlement thereto (a "STANDARD OF CONDUCT
DETERMINATION") shall
be made in the specific case in accordance with Article 2.02-1 of
the TBCA (or
any successor provision). Indemnitee will cooperate with the person
or persons
making such Standard of Conduct Determination, including providing
to such
person or persons, upon reasonable advance request, any
documentation or
information that is not privileged or otherwise protected from
disclosure and
that is reasonably available to Indemnitee and reasonably necessary
to such
determination. The Corporation shall indemnify and hold harmless
Indemnitee
against and, if requested by Indemnitee, shall reimburse Indemnitee
for, or
advance to Indemnitee, within five business days of such request,
any and all
costs and expenses (including attorneys' and experts' fees and
expenses)
incurred by Indemnitee in so cooperating with the person or persons
making such
Standard of Conduct Determination.
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(c) The Corporation shall use its reasonable best efforts to
cause
any Standard of Conduct Determination required under Section 4.2(b)
to be made
as promptly as practicable. If (i) the person or persons empowered
or selected
under this Section 4.2 to make the Standard of Conduct
Determination shall not
have made a determination within 30 days after the later of (A)
receipt by the
Corporation of written notice from Indemnitee advising the
Corporation of the
final disposition of the applicable Proceeding or Claim (the date
of such
receipt being the "NOTIFICATION DATE") and (B) the selection of
special legal
counsel, if such determination is to be made by special legal
counsel, that is
permitted under the provisions of Section 4.2(e) to make such
determination, and
(ii) Indemnitee shall have fulfilled his/her obligations set forth
in the second
sentence o
