Exhibit 10.1
FIRSTPLUS Financial Group, Inc.
122 W. John Carpenter Freeway, Suite 450
Irving, Texas 75039
August __, 2007
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c/o FIRSTPLUS Financial Group, Inc.
122 W. John Carpenter Freeway, Suite 450
Irving, Texas 75039
Dear ____________:
In consideration of your service as a director and/or officer of FIRSTPLUS
Financial Group, Inc., a Nevada corporation (the "Company"), the Company will,
to the extent provided herein, indemnify you and hold you harmless from and
against any and all "Losses" (as defined below), that you may incur in
connection with any "Proceeding" (as defined below) to the fullest extent
permitted by law.
1. DEFINITIONS.
(a) "Costs and Expenses" means, for the purposes of this Agreement,
all direct and indirect costs of any type or nature whatsoever (including,
without limitation, any fees and disbursements of your counsel, accountants and
other experts and other out-of-pocket costs) actually and reasonably incurred by
you in connection with the investigation, preparation, defense or appeal of a
Proceeding.
(b) "Losses" means all liabilities, Costs and Expenses, amounts of
judgments, fines, penalties or excise taxes (or other amounts assessed,
surcharged or levied under the Employee Retirement Income Security Act of 1974,
as amended) and amounts paid in settlement of or incurred in defense of or
otherwise in connection with any threatened, pending or completed Proceeding,
whether civil, criminal, administrative or investigative, and whether brought by
or in the right of the Company or otherwise, and appeals in which you may become
involved, as a party or otherwise, by reason of acts or omissions in your
capacity as and while serving as a director, officer, employee, agent, fiduciary
or representative of the Company or any Related Entity.
(c) "Proceeding" means, for the purposes of this Agreement, any
threatened, pending or completed action or proceeding, whether civil, criminal,
administrative or investigative (including an action brought by or in the right
of the Company) in which you may be or may have been involved as a party or
otherwise, by reason of the fact that you are or were a director or officer of
the Company, by reason of any action taken by you or of any inaction on your
part while acting as such director or officer or by reason of the fact that you
are or were serving at the request of the Company as a director, officer,
employee, agent, fiduciary or representative of a Related Entity whether or not
you were serving in such capacity at the time any liability or expense is
incurred for which indemnification or reimbursement can be provided under this
Agreement.
(d) "Related Entity" means any corporation, partnership, joint
venture, trust or other entity or enterprise in which the Company is in any way
interested, or in or as to which you are serving at the Company's request or on
its behalf, as a director, officer, employee, agent, fiduciary or representative
including, but not limited to, any employee benefit plan or any corporation of
which the Company or any Related Entity is, directly or indirectly, a
stockholder or creditor.
2. AGREEMENT TO SERVE.
You agree to serve or continue to serve as a director and/or officer of
the Company to the best of your abilities at the will of the Company or under
separate contract, if such contract exists, for so long as you are duly elected
or appointed and qualified or until such time as you tender your resignation in
writing. Nothing contained in this Agreement is intended to create in you any
right to continued employment.
3. INDEMNIFICATION.
(a) THIRD PARTY PROCEEDINGS. To the fullest extent permitted by law,
the Company shall indemnify you against Losses actually and reasonably incurred
by you in connection with a Proceeding (other than a Proceeding by or in the
right of the Company) if (i) you are not liable pursuant to NRS 78.138 or (ii)
you acted in good faith and in a manner you reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
Proceeding, had no reasonable cause to believe your conduct was unlawful. The
termination of any Proceeding by judgment, order, settlement, conviction, or
upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that you are liable pursuant to NRS 78.138 or did not act in good
faith and in a manner that you reasonably believed to be in or not opposed to
the best interests of the Company, or, with respect to any criminal Proceeding,
had reasonable cause to believe that your conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the fullest
extent permitted by law, the Company shall indemnify you against Losses,
actually and reasonably incurred by you in connection with a Proceeding by or in
the right of the Company to procure a judgment in its favor if (i) you are not
liable pursuant to NRS 78.138 or (ii) you acted in good faith and in a manner
you reasonably believed to be in or not opposed to the best interests of the
Company and its shareholders. Notwithstanding the foregoing, no indemnification
shall be made in respect of any claim, issue or matter as to which you shall
have been adjudged by a court of competent jurisdiction, after exhaustion of all
appeals therefrom, to be liable to the Company in the performance of your duty
to the Company and its shareholders unless and only to the extent that the court
in which such action or proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, you are fairly
and reasonably entitled to indemnity for Costs and Expenses and then only to the
extent that the court shall determine.
(c) SCOPE. Notwithstanding any other provision of this Agreement but
subject to Section 15(b), the Company shall indemnify you to the fullest extent
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permitted by law, notwithstanding that such indemnification is not specifically
authorized by other provisions of this Agreement, the Company's Articles of
Incorporation, as amended, the Company's Bylaws, as amended, or by statute.
4. LIMITATIONS ON INDEMNIFICATION.
Any other provision herein to the contrary notwithstanding, the Company
shall not be obligated pursuant to the terms of this Agreement:
(a) EXCLUDED ACTS. To indemnify you for any acts or omissions or
transactions from which a director or officer may not be relieved of liability
under applicable law;
(b) EXCLUDED INDEMNIFICATION PAYMENTS. To indemnify or advance Costs
and Expenses in violation of any prohibition or limitation on indemnification
under the statutes, regulations or rules promulgated by any state or federal
regulatory agency having jurisdiction over the Company or in circumstances that
would otherwise be contrary to public policy;
(c) CLAIMS INITIATED BY YOU. To indemnify or advance Costs and
Expenses to you with respect to Proceedings or claims initiated or brought
voluntarily by you and not by way of defense, except with respect to proceedings
brought to establish or enforce a right to indemnification under this Agreement
or any other statute or law or otherwise as required under Section 78.7502 of
the Nevada Revised Statutes, but such indemnification or advancement of Costs
and Expenses may be provided by the Company in specific cases if the Board of
Directors has approved the initiation or bringing of such suit;
(d) LACK OF GOOD FAITH. To indemnify you for any Costs and Expenses
incurred by you with respect to any proceeding instituted by you to enforce or
interpret this Agreement, if a court of competent jurisdiction determines that
each of the material assertions made by you in such proceeding was not made in
good faith;
(e) INSURED CLAIMS. To indemnify you for Costs and Expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) that
have been paid directly to or on behalf of you by an insurance carrier under a
policy of directors' and officers' liability insurance maintained by the Company
or any other policy of insurance maintained by the Company or you;
(f) CLAIMS UNDER SECTION 16(B). To indemnify you for Costs and
Expenses and the payment of profits arising from the purchase and sale by you of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
(g) MUTUAL ACKNOWLEDGMENT. Both the Company and you acknowledge that
in certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors and officers under this Agreement or
otherwise. You understand and acknowledge that the Company has undertaken or may
be required in the future to undertake with the appropriate state or federal
regulatory agency to submit for approval any request for indemnification, and
has undertaken or may be required in the future to undertake with the Securities
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and Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify you.
5. DETERMINATION OF A RIGHT TO INDEMNIFICATION.
Upon receipt of a written claim addressed to the Board of Directors for
indemnification pursuant to Section 3, the Company shall determine by any of the
methods set forth in Section 78.751 of the Nevada Revised Statutes whether you
have met the applicable standards of conduct that makes it permissible under
applicable law to indemnify you. If a claim under Section 3 is not paid in full
by the Company within 60 days after such written claim has been received by the
Company, you may at any time thereafter bring suit against the Company to
recover the unpaid amount of the claim and, unless such action is brought in bad
faith, you shall be entitled to be paid also the expense of prosecuting such
claim. In any such action, except as otherwise provided in Section 78.7502 of
the Nevada Revised Statutes, the Company shall have the burden of proof
concerning whether you have or have not met the applicable standard of conduct.
6. INDEMNIFICATION FOR COSTS AND EXPENSES OF A WITNESS.
Notwithstanding any other provision of this Agreement, to the extent that
you are, by reason of your position as director or officer of the Company, a
witness in any Proceeding to which you are not a party, you shall be indemnified
against all Costs and Expenses actually and reasonably incurred by you or on
your behalf in connection therewith.
7. ADVANCEMENT AND REPAYMENT OF COSTS AND EXPENSES.
Subject to Section 4 hereof, the Costs and Expenses incurred by you in
defending and investigating any Proceeding shall be paid by the Company in
advance of the final disposition of such Proceeding within 30 days after
receiving from you the copies of invoices presented to you for such Costs and
Expenses, if you shall provide an undertaking to the Company to repay such
amount to the extent it is ultimately determined that you are not entitled to
indemnification. In determining whether or not to make an advance hereunder,
your ability to repay shall not be a factor.
8. PARTIAL INDEMNIFICATION.
If you are entitled under any provision of this Agreement to
indemnification or advancement by the Company of some or a portion of any Losses
of any type whatsoever (including, but not limited to, judgments, fines,
penalties, and amounts paid in settlement) incurred by you in the investigation,
defense, settlement or appeal of a Proceeding, but are not entitled to
indemnification or advancement of the total amount thereof, the Company shall
nevertheless indemnify or pay advancements to you for the portion of such Losses
or liabilities to which you are entitled.
9. NOTICE TO COMPANY BY YOU.
You shall notify the Company in writing of any matter with respect to
which you intend to seek indemnification hereunder as soon as reasonably
practicable following the receipt by you of written notice thereof; provided,
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however, that any delay in so notifying the Company shall not constitute a
waiver by you of your rights hereunder. The written notification to the Company
shall be addressed to the Board of Directors and shall include a description of
the nature of the Proceeding and the facts underlying the Proceeding and be
accompanied by copies of any documents filed with the court in which the
Proceeding is pending. In addition, you shall give the Company such information
and cooperation as it may reasonably require and as shall be within your power.
10. MAINTENANCE OF LIABILITY INSURANCE.
(a) Subject to Section 4 hereof, so long as you shall continue to
serve as a director or officer of the Company and thereafter so long as you
shall be subject to any possible Proceeding, the Company, subject to Section
10(b), shall use reasonable commercial efforts to obtain and maintain in full
force and effect directors' and officers' liability insurance ("D&O Insurance")
that provides you the same rights and benefits as are accorded the most
favorably insured of the Company's directors, if you are a director, or of the
Company's officers, if you are not a director of the Company, but are an
officer.
(b) Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines in good
faith that such insurance is not reasonably available, the premium costs for
such insurance are disproportionate to the amount of coverage provided, the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or you are covered by similar insurance maintained by a
subsidiary or parent of the Company.
(c) If, at the time of the receipt of a notice of a claim pursuant
to Section 9 hereof, the Company has D&O Insurance in effect, the Company shall
give prompt notice of the commencement of such Proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on your behalf, all amounts payable as a result of such Proceeding in
accordance with the terms of such policies.
11. DEFENSE OF CLAIM.
In the event that the Company shall be obligated under Section 7 hereof to
pay the Costs and Expenses of any Proceeding against you, the Company, if
appropriate, shall be entitled to assume the defense of such Proceeding, with
counsel of recognized standing. After the retention of such counsel by the
Company, the Company will not be liable to you under this Agreement for any fees
of counsel subsequently incurred by you with respect to the same Proceeding,
provided that (i) you shall have the right to employ your counsel in any such
Proceeding at your expense; and (ii) if (A) the employment of counsel by you has
been previously authorized by the Company, or (B) you shall have reasonably
concluded that there may be a conflict of interest between the Company and you
in the conduct of such defense or (C) the Company shall not, in fact, have
employed counsel to assume the defense of such Proceeding, then the fees and
Costs and Expenses of your counsel shall be at the expense of the Company.
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12. ATTORNEYS' FEES.
In the event that you or the Company institutes an action to enforce or
interpret any terms of this Agreement, the Company shall reimburse you for all
of your reasonable fees and Costs and Expenses in bringing and pursuing such
action or defense, unless as part of such action or defense, a court of
competent jurisdiction determines that the material assertions made by you as a
basis for such action or defense were not made in good faith.
13. CONTINUATION OF OBLIGATIONS.
All agreements and obligations of the Company contained herein shall
continue during the period you are a director or officer of the Company, or are
or were serving at the request of the Company as a director, officer, employee,
agent, fiduciary or representative of a Related Entity and shall continue
thereafter so long as you shall be subject to any possible Proceeding by reason
of the fact that you served in any capacity referred to herein.
14. SUCCESSORS AND ASSIGNS.
This Agreement establishes contract rights that shall be binding upon, and
shall inure to the benefit of, the successors, assigns, heirs and legal
representatives of the parties hereto.
15. NON-EXCLUSIVITY.
(a) The provisions for indemnification and advancement of Costs and
Expenses set forth in this Agreement shall not be deemed to be exclusive of any
other rights that you may have under any provision of law, the Company's
Articles of Incorporation, as amended, or Bylaws, as amended, the vote of the
Company's shareholders or disinterested directors, other agreements or
otherwise, both as to action in your official capacity and action in another
capacity while occupying your position as a director or officer of the Company.
(b) In the event of any changes, after the date of this Agreement,
in any applicable law, statute, or rule that expand the right of a Nevada
corporation to indemnify its officers and directors, your rights and the
Company's obligations under this Agreement shall be expanded to the full extent
permitted by such changes. In the event of any changes in any applicable law,
statute or rule that narrow the right of a Nevada corporation to indemnify a
director or officer, such changes, to the extent not otherwise required by such
law, statute or rule to be applied to this Agreement, shall have no effect on
this Agreement or the parties' rights and obligations hereunder.
16. EFFECTIVENESS OF AGREEMENT.
This Agreement shall be effective as of the date set forth on the first
page hereof and shall apply to your acts or omissions that occurred prior to
such date if you were an officer, director, employee or other agent of the
Company, or were serving at the request of the Company as a director, officer,
employee, agent, fiduciary or representative of a Related Entity at the time
such act or omission occurred.
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17. SEVERABILITY.
Nothing in this Agreement is intended to require or shall be construed as
requiring the Company to do or fail to do any act in violation of applicable
law. The Company's inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 17. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify you to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
18. GOVERNING LAW.
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of Nevada, without reference to its conflict of law rules. To
the extent permitted by applicable law, the parties hereby waive any provisions
of law that render any provision of this Agreement unenforceable in any respect.
19. NOTICE.
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) when received,
if delivered by hand (which shall include delivery by responsible overnight
carrier) or (ii) if mailed by certified or registered mail with postage prepaid,
on the fifth business day after the mailing date. Addresses for notice to either
party are as shown at the head of this Agreement, or as subsequently modified by
written notice given as provided hereunder.
20. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall constitute an original.
21. AMENDMENT AND TERMINATION.
No amendment, modification, termination or cancellation of this Agreement
shall be effective unless in writing signed by both parties hereto.
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Your signature below will evidence your agreement and acceptance with
respect to the foregoing.
Very truly yours,
FIRSTPLUS FINANCIAL GROUP, INC.
By:
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Name:
Title:
AGREED TO AND ACCEPTED:
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Name:
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