FORM OF DIRECTOR AND OFFICER INDEMNIFICATION AGREE

 

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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