RUBICON FINANCIAL
INCORPORATED
INDEMNITY
AGREEMENT
This Indemnity Agreement (this
“ Agreement ”), dated as of July 15, 2009 is
made by and between Rubicon Financial Incorporated ,
a Delaware corporation (the “ Company ”), and
Kathleen McPherson , a director and/or officer of the
Company (the “ Indemnitee ”).
RECITALS
A. The Company is
aware that competent and experienced persons are increasingly
reluctant to serve as directors or officers of corporations
unless they are protected by comprehensive liability insurance
and/or indemnification, due to increased exposure to
litigation costs and risks resulting from their service to
such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the
compensation of such directors and officers;
B. Based upon their
experience as business managers, the Board of Directors of the
Company (the “ Board ”) has concluded that, to
retain and attract talented and experienced individuals to
serve as officers and directors of the Company, and to
encourage such individuals to take the business risks
necessary for the success of the Company, it is necessary for
the Company contractually to indemnify officers and directors
and to assume for itself maximum liability for expenses and
damages in connection with claims against such officers
and directors in connection with their service to the
Company;
C. Section 145 of
the General Corporation Law of the State of Delaware, under
which the Company is organized (“ Section 145
”), empowers the Company to indemnify by agreement its
officers, directors, employees and agents, and persons who
serve, at the request of the Company, as directors,
officers, employees or agents of other corporations or
enterprises, and expressly provides that the indemnification
provided by Section 145 is not exclusive; and
D. The Company
desires and has requested the Indemnitee to serve or continue
to serve as a director or officer of the Company free from
undue concern for claims for damages arising out of or related
to such services to the Company.
NOW, THEREFORE, the parties hereto,
intending to be legally bound, hereby agree as
follows:
1.1 Agent . For the purposes
of this Agreement, “ agent ” of the Company
means any person who is or was a director or officer of the Company
or a subsidiary of the Company; or is or was serving at the request
of, for the convenience of, or to represent the interest of the
Company or a subsidiary of the Company as a director or officer of
another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise or an affiliate of the Company;
or was a director or officer of a foreign or domestic corporation
which was a predecessor corporation of the Company, or was a
director or officer of another enterprise or affiliate of the
Company at the request of, for the convenience of, or to represent
the interests of such predecessor corporation. The term
“enterprise” includes any employee benefit plan of the
Company, its subsidiaries, affiliates and predecessor
corporations.
1.2 Expenses . For purposes
of this Agreement, “ expenses ” includes all
direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and
related disbursements and other out-of-pocket costs) actually and
reasonably incurred by the Indemnitee in connection with the
investigation, defense or appeal of a proceeding or establishing or
enforcing a right to indemnification or advancement of expenses
under this Agreement, Section 145 or otherwise; provided, however,
that expenses shall not include any judgments, fines, ERISA excise
taxes or penalties or amounts paid in settlement of a
proceeding.
1.3 Proceeding . For the
purposes of this Agreement, “ proceeding ” means
any threatened, pending or completed action, suit or other
proceeding, whether civil, criminal, administrative, investigative
or any other type whatsoever.
1.4 Subsidiary . For purposes
of this Agreement, “ subsidiary ” means any
corporation of which more than 50% of the outstanding voting
securities is owned directly or indirectly by the Company, by the
Company and one or more of its subsidiaries or by one or more of
the Company’s subsidiaries.
2. AGREEMENT TO
SERVE. The Indemnitee
agrees to serve and/or continue to serve as an agent of the
Company, at the will of the Company (or under separate agreement,
if such agreement exists), in the capacity the Indemnitee currently
serves as an agent of the Company, faithfully and to the best of
his ability, so long as he is duly appointed or elected and
qualified in accordance with the applicable provisions of the
charter documents of the Company or any subsidiary of the Company;
provided, however, that the Indemnitee may at any time and for any
reason resign from such position (subject to any contractual
obligation that the Indemnitee may have assumed apart from this
Agreement), and the Company or any subsidiary shall have no
obligation under this Agreement to continue the Indemnitee in any
such position.
3. DIRECTORS’ AND
OFFICERS’ INSURANCE. The Company shall, to the extent that the Board
determines it to be economically reasonable, maintain a policy of
directors’ and officers’ liability insurance (“
D&O Insurance ”), on such terms and conditions as
may be approved by the Board.
4. MANDATORY
INDEMNIFICATION. Subject
to Section 9 below, the Company shall indemnify the
Indemnitee:
4.1 Third Party Actions . If
the Indemnitee is a person who was or is a party or is threatened
to be made a party to any proceeding (other than an action by or in
the right of the Company) by reason of the fact that he is or was
an agent of the Company, or by reason of anything done or not done
by him in any such capacity, against any and all expenses and
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties and amounts paid
in settlement) actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal of
such proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests
of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful; and
4.2 Derivative Actions . If
the Indemnitee is a person who was or is a party or is threatened
to be made a party to any proceeding by or in the right of the
Company to procure a judgment in its favor by reason of the fact
that he is or was an agent of the Company, or by reason of anything
done or not done by him in any such capacity, against any amounts
paid in settlement of any such proceeding and all expenses actually
and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal of such proceeding if
he acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the Company; except
that no indemnification under this subsection shall be made in
respect of any claim, issue or matter as to which such person shall
have been finally adjudged to be liable to the Company by a court
of competent jurisdiction due to willful misconduct of a culpable
nature in the performance of his duty to the Company, unless and
only to the extent that the Court of Chancery or the court in which
such proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such amounts which the Court of Chancery
or such other court shall deem proper; and
4.3 Exception for Amounts Covered
by Insurance . Notwithstanding the foregoing, the Company shall
not be obligated to indemnify the Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties and amounts paid
in settlement) to the extent such have been paid directly to the
Indemnitee by D&O Insurance.
5. PARTIAL INDEMNIFICATION AND
CONTRIBUTION.
5.1 Partial Indemnification .
If the Indemnitee is entitled under any provision of this Agreement
to indemnification by the Company for some or a portion of any
expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) incurred by him in the investigation,
defense, settlement or appeal of a proceeding but is not entitled,
however, to indemnification for all of the total amount thereof,
then the Company shall nevertheless indemnify the Indemnitee for
such total amount except as to the portion thereof to which the
Indemnitee is not entitled to indemnification.
5.2 Contribution . If the
Indemnitee is not entitled to the indemnification provided in
Section 4 for any reason other than the statutory limitations set
forth in the Delaware General Corporation Law, then in respect of
any threatened, pending or completed proceeding in which the
Company is jointly liable with the Indemnitee (or would be if
joined in such proceeding), the Company shall contribute to the
amount of expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by the Indemnitee in such proportion
as is appropriate to reflect (i) the relative benefits received by
the Company on the one hand and the Indemnitee on the other hand
from the transaction from which such proceeding arose and (ii) the
relative fault of the Company on the one hand and of the Indemnitee
on the other hand in connection with the events which resulted in
such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the Indemnitee on the other hand
shall be determined by reference to, among other things, the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent the circumstances resulting
in such expenses, judgments, fines or settlement amounts. The
Company agrees that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata
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