EXHIBIT 10.1
FORM
OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“ Agreement ”) is made as of
,
between ENSTAR GROUP LIMITED (formerly known as Castlewood Holdings
Limited), a company organized under the laws of Bermuda (the
“ Company ”), and
(“ Indemnitee ”).
RECITAL
The
Second Amended and Restated Bye-Laws of the Company, as may be
amended from time to time (the “ Bye-Laws ”)
contain provisions indemnifying the Company’s directors and
officers with respect to certain liabilities and expenses.
Indemnitee is currently serving as a director of the
Company’s Board of Directors (the “ Board
”), and the Board has determined that it is in the best
interests of the shareholders of the Company for the Company to
provide Indemnitee with additional assurance of protection against
personal liability pursuant to and in furtherance of the Bye-Laws,
as provided in this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing recital and of other
good and valuable consideration, the receipt and sufficiency of
which is acknowledged, the parties, intending to be legally bound,
agree as follows:
1.
Indemnification.
(a) The
Company shall hold harmless and indemnify and reimburse Indemnitee
against all liabilities, costs, expenses (including without
limitation, investigation expenses and expert witnesses’ and
attorneys’ fees), judgments, penalties, fines, excise taxes,
interest and amounts paid or to be paid in settlement in connection
with any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing, or proceeding (collectively, a “
Proceeding ”), in which Indemnitee was or is a party
or a witness, or is threatened to be made a party or a witness,
including without limitation, actions by or in the right of the
Company, whether civil, criminal, administrative, regulatory or
investigative, by reason that, either before or after the date
hereof, Indemnitee is or was a director, officer, employee, agent,
fiduciary, or other representative of the Company, or is or was
serving while a director, officer, employee, agent, fiduciary, or
other representative of the Company at the request of the Company
as a director, officer, employee, agent, fiduciary, or other
representative of another corporation (for profit or
not-for-profit), limited liability company, partnership, joint
venture, trust, employee benefit plan or other entity or enterprise
(“ Indemnified Position ”). Notwithstanding
anything to the contrary set forth in this Agreement, the term
“Proceeding” shall not include any action or proceeding
commenced by Indemnitee, other than (i) mandatory
counterclaims, (ii) affirmative defenses, (iii) as
permitted by the Company and (iv) actions or proceedings to
enforce the terms of this Agreement.
(b) If
Indemnitee is entitled under this Agreement to indemnification by
the Company for a portion of the Indemnified Amounts (defined
below) but not for the total
amount
thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
(c) The
Company shall not settle any Proceeding in any manner which would
impose any penalty or limitation of any kind or nature on
Indemnitee without Indemnitee’s prior written consent.
2.
Limitations on Indemnification . Notwithstanding any other
provision of this Agreement, Indemnitee shall not be entitled to
indemnification under Section 1 :
(a) if
the claim, obligation or liability with respect to which indemnity
is sought shall have been determined by a court of competent
jurisdiction, by a final, nonappealable judgment or decree, to have
resulted from Indemnitee’s fraud or dishonesty;
(b) if
a court of competent jurisdiction shall determine, by a final,
nonappealable judgment or decree, that such indemnity is prohibited
under applicable law;
(c) on
account of any suit in which judgment is rendered for an accounting
of profits made from the purchase or sale by Indemnitee of
securities of the Company in violation of the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, and
amendments thereto or similar provisions of any U.S. federal or
state statutory law or any Bermuda statutory law; or
(d) on
account of any suit brought against Indemnitee for misuse or
misappropriation of non-public information, or otherwise involving
Indemnitee’s status as an “insider” of the
Company, in connection with any purchase or sale by Indemnitee of
securities of the Company, and judgment is rendered against
Indemnitee in such suit.
3.
Other Indemnification Arrangements . The Company’s
purchase, establishment and maintenance of insurance or similar
protection or other arrangements, including, but not limited to,
the Bye-Laws, providing a trust fund, letter of credit or surety
bond (collectively, “ Indemnification Arrangements
”) on behalf of Indemnitee against any liability asserted
against him or her or incurred by or on his or her behalf in his or
her Indemnified Position, whether or not the Company would have the
power to indemnify him or her against such liability under the
provisions of this Agreement or under applicable law, shall not in
any way limit or affect the rights and obligations of the Company
or of Indemnitee under this Agreement, and the execution and
delivery of this Agreement by the Company and Indemnitee shall not
in any way limit or affect the rights and obligations of the
Company or the other party or parties thereto under any
Indemnification Arrangement. All amounts payable by the Company
pursuant to this Section 3 or Section 1 are
referred to as “Indemnified Amounts.”
4.
Advance Payment of Indemnified Amounts .
(a) Subject
to Section 4(b) , Indemnitee hereby is granted the
right to receive in advance of a final, nonappealable judgment or
other final, nonappealable adjudication of a Proceeding the amount
of any and all expenses, including, without limitation,
attorney’s fees, expended or incurred by Indemnitee in
connection with any Proceeding (such amounts so expended or
incurred, “ Advanced Amounts ”).
- 2 -
(b) In
making any request for Advanced Amounts, Indemnitee shall submit to
the Company an undertaking by or on behalf of Indemnitee to repay
the Advanced Amounts if it shall ultimately be determined in a
final, nonappealable judgment or decree that he or she is not
entitled to be indemnified by the Company. The undertaking shall be
in the form attached hereto as Exhibit A . The Company shall
pay to Indemnitee without the need for action by the Board Advanced
Amounts within five days of its receipt of appropriate
documentation and information evidencing the Advanced Amounts
provided that Indemnitee has previously provided the Company with
the undertaking required to be provided by Indemnitee pursuant to
this Section 4(b) .
5.
Procedure for Payment of Indemnified Amounts .
(a) To
obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request for payment of the
appropriate Indemnified Amounts, with such documentation and
information to accompany such request as is reasonably available to
Indemnitee and reasonably necessary for the Company to determine
whether and to what extent Indemnitee is entitled to
indemnification.
(b) The
Company shall pay Indemnitee the Indemnified Amounts unless it is
established that Indemnitee has not met any applicable standard of
conduct required in this Agreement or applicable law. For purposes
of determining whether Indemnitee is entitled to Indemnified
Amounts, in order to deny indemnification to Indemnitee, the
Company shall have the burden of proof in establishing that
Indemnitee did not meet the applicable standard of conduct required
to qualify for indemnification. In this regard, a termination of
any Proceeding by judgment, order, plea of nolo
contendere , settlement or conviction shall not create a
presumption that Indemnitee did not meet the applicable standard of
conduct required to qualify for indemnification.
(c) Any
determination that Indemnitee has not met the applicable standard
of conduct required to qualify for indemnification shall be made
either (i) by the Board by a unanimous vote of all directors
who were not parties to the Proceeding or (ii) by independent
legal counsel (who may be the outside counsel regularly employed by
the Company, so long as it has not advised any party in the subject
matter of the Proceeding or the Proceeding itself) approved in
advance in writing by both the highest ranking executive officer of
the Company who is not party to the Proceeding and by Indemnitee.
The fees and expenses of counsel in connection with making the
determination contemplated hereunder shall be paid by the Company,
and, if requested by such counsel, the Company shall give such
counsel an appropriate written agreement with respect to the
payment of their fees and expenses and such other matters as may be
reasonably requested by such counsel.
(d) The
Company shall use its best efforts to conclude as soon as
practicable (but in no event later than 60 days from the date
of Indemnitee’s request for indemnification pursuant to
Section 5(a)) any requested determination pursuant to
Section 5(c) and shall promptly advise Indemnitee in
writing with respect to any determination that Indemnitee is or is
not entitled to indemnification, including a reasonably detailed
description of any reason or basis for which indemnification has
been denied. Payment of any applicable
- 3 -
Indemnified Amounts shall be made to Indemnitee within five days
after any determination of Indemnitee’s entitlement to
indemnification.
(e) Notwithstanding
the foregoing, at any time after 30 days after
Indemnitee’s request for indemnification pursuant to
Section 5(a) (or upon receipt of writte
|
