Exhibit 10.1
FORM OF
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT
(this “Agreement”) is made and entered into as of
, by and between THE ST.
JOE COMPANY , a Florida corporation (the
“Company”), and
(“Indemnified
Party”).
Recitals
WHEREAS , it is essential to
the Company to retain and attract talented and experienced persons
as directors and officers;
WHEREAS , Indemnified Party is
a director and/or an officer of the Company;
WHEREAS , both the Company and
Indemnified Party recognize the increased risk of litigation and
other claims being asserted against directors and officers of
public companies;
WHEREAS , the Amended and
Restated Bylaws of the Company (the “Bylaws”) require
the Company to indemnify and advance expenses to its directors and
officers to the fullest extent permitted by the Florida Business
Corporation Act;
WHEREAS , the Indemnified
Party needs specific contractual assurance that the protection
promised by the Bylaws will be available to Indemnified Party,
regardless of, among other things, any amendment to or revocation
of the Bylaws or any change in the composition of the Board of
Directors of the Company (the “Board”);
WHEREAS , the Company believes
it is in the best interests of the Company and its shareholders to
provide for the indemnification of and the advancing of expenses to
the Indemnified Party as set forth in this Agreement; and
WHEREAS , Indemnified Party
has been serving and intends to continue serving as a director
and/or officer of the Company in part in reliance on this
Agreement.
NOW, THEREFORE , in
consideration of the foregoing premises and as an inducement to
Indemnified Party to continue to serve as a director and/or officer
of the Company, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Certain Definitions.
In addition to terms defined
elsewhere herein, the following terms have the following meanings
when used in this Agreement:
(a) “Affiliate” has
the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act “).
(b) “Claim” means
any threatened, asserted, pending or completed claim, action, suit
or proceeding, or any hearing, inquiry or investigation, whether
instituted by the Company or any governmental agency or any other
party, that Indemnified Party in good faith believes might lead to
the institution of any such claim, action, suit or proceeding,
whether civil, criminal, administrative, investigative or other,
including any arbitration or other alternative dispute resolution
mechanism.
(c) “Expenses”
include reasonable attorneys’ fees and all other reasonable
costs, expenses and obligations (including experts’ fees,
court costs, retainers, transcript fees, duplicating costs,
printing and binding costs, as well as telecommunications, postage
and courier charges) paid or incurred in connection with
investigating, defending, settling, being a witness in or
participating in (including on appeal), or preparing to
investigate, defend, be a witness in or participate in, any Claim
relating to any Indemnifiable Event.
(d) “Indemnifiable
Amounts” means any and all Expenses, liability, loss and
damages (including judgments, fines, penalties, ERISA excise taxes
and amounts paid in settlement and all interest, assessments or
other charges paid or payable in connection with or in respect of
such Expenses, judgments, fines, penalties, excise taxes or amounts
paid in settlement) arising out of or resulting from any Claim
relating to an Indemnifiable Event.
(e) “Indemnifiable
Event” means any event or occurrence, whether occurring
before or after the date of this Agreement, related to the fact
that Indemnified Party is or was or is claimed to be a director,
officer, employee, agent, independent contractor, shareholder or
fiduciary of the Company or its Affiliates, or is or was serving at
the request of the Company or any of its Affiliates as a director,
officer, employee, agent, independent contractor, shareholder,
member, partner, trustee, manager or fiduciary of a Related Entity,
or by reason of anything done or not done by Indemnified Party in
any such capacity.
(f) “Independent Legal
Counsel” means an attorney or firm of attorneys who is
experienced in matters of corporate law and who shall not have
otherwise performed services for the Company, the Board or any
individual officer or director within the last five years.
(g) “Related Entity”
means any corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other enterprise or
entity of which such person is or was serving at the request of the
Company or any of its Affiliates as a director, officer, employee,
agent, independent contractor, shareholder, member, partner,
trustee, manager or fiduciary.
(h) “Reviewing
Party” means (1) a quorum of the Board consisting of
directors who are not a party to the Claim at issue; (2) a
committee designated by the Board (in which directors who are
parties to the Claim at issue may participate) consisting of at
least two members of the Board who are not a party to the Claim at
issue; or (3) Independent Legal Counsel, selected by the group
described in clause (1), or if such group cannot be constituted,
then the committee described in clause (2), or if such committee
cannot be constituted, then the Board (including the participation
of directors who are parties to the Claim at issue).
2. Indemnification; Advancement of Expenses.
(a) In the event Indemnified
Party 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 Indemnified Party
to the fullest extent permitted by law as soon as practicable but
in any event no later than 30 days after written demand is
presented to the Company, against any and all Indemnifiable
Amounts.
(b) Indemnified Party shall
notify the Company in writing promptly and in any event within 30
days after the Indemnified Party has actual knowledge of any Claim.
The notice shall include a detailed written description of the
Claim, the Indemnifiable Event and the facts giving rise thereto,
together with the Indemnifiable Amount or an estimate of the
Indemnifiable Amount arising therefrom.
(c) If so requested by
Indemnified Party, the Company shall advance (within 10 business
days of such request) any and all Expenses incurred by Indemnified
Party (an “Expense Advance”). The Company shall, in
accordance with such request (but without duplication), either
(i) pay such Expenses on behalf of Indemnified Party, or
(ii) reimburse Indemnified Party for such Expenses.
Indemnified Party’s right to an Expense Advance is absolute
and shall not be subject to any prior determination by the
Reviewing Party that Indemnified Party has satisfied any applicable
standard of conduct for indemnification.
(d) Notwithstanding anything in
this Agreement to the contrary, Indemnified Party shall not be
entitled to indemnification or any Expense Advances pursuant to
this Agreement (i) in connection with any Claim initiated by
Indemnified Party against the Company or any director or officer of
the Company unless (x) the Company has joined in or the Board
has authorized or consented to the initiation of such Claim, or
(y) the Claim is one to enforce Indemnified Party’s
rights under this Agreement; or (ii) on account of any suit in
which judgment is rendered against Indemnified Party pursuant to
Section 16(b) of the Exchange Act for an accounting of profits made
from the purchase or sale by the Indemnified Party of securities of
the Company.
(e) (1) Notwithstanding the
foregoing, (i) the indemnification 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 Independent Legal Counsel is involved) that
Indemnified Party 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(c) shall be subject to the
condition that, if, when and to the extent that the Reviewing Party
determines that Indemnified Party would not be permitted to be so
indemnified under applicable law, the Indemnified Party shall
reimburse the Company for all such amounts theretofore paid,
subject to Section 2(e)(3) below. The parties agree that the
foregoing agreement by Indemnified Party shall be deemed to satisfy
any requirement that Indemnified Party provide the Company with an
undertaking to repay any Expense Advance if it is ultimately
determined that Indemnified Party is not entitled to
indemnification under applicable law. Indemnified Party’s
undertaking to repay such Expense Advances shall be unsecured and
interest-free.
(2) If there has been no
determination by the Reviewing Party, or if the Reviewing Party
determines that Indemnified Party would not be permitted to be
indemnified in whole or in part under applicable law, Indemnified
Party shall have the right to commence litigation seeking an
initial determination by the court or challenging any determination
by
