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EXHIBIT 10
United Companies Financial Corporation
March 31, 1995
The Company entered into Indemnification Agreements in the form attached
hereto, each dated as of March 31, 1995, with the following directors and/or
officers:
James J. Bailey, III
General Robert H. Barrow
J. Terrell Brown
Richard A. Campbell
Harris J. Chustz
O. Miles Pollard, Jr.
Charles Prosser, M.D.
Robert D. Kilpatrick
Dale E. Redman
William H. Wright, Jr.
W. Roger Clark
John D. Dienes
Robert B. Thomas, Jr.
Sherry E. Anderson
F. Wayne Bono
Jo Anna Cotaya
Greg Fontenot
Frank W. Foote
Jesse O. Griffin
Kitty S. Kennedy
Paul E. Kirk
Laura T. Martin
H. C. McCall, III
Kathleen M. Merkel
B. Dale Quick
Louis J. Resweber
William S. Spann, Jr.
Gary L. Warrington
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EXHIBIT 10
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of
the ____ day of March, 1995, by and between United Companies Financial
Corporation, a Louisiana corporation (the "Company"), and ____________________
(the "Indemnitee").
RECITALS
The Indemnitee is presently serving as a [director][officer] of
the Company and the Company desires the Indemnitee to continue in such
capacity. The Indemnitee is willing, subject to certain conditions including
without limitation the execution and performance of this Agreement by the
Company, to continue in that capacity. Accordingly, and in order to induce the
Indemnitee to continue to serve in his present capacity, the Company and the
Indemnitee agree as follows:
1. Continued Service. [The Indemnitee will continue to serve as
a director of the Company so long as he is duly elected and qualified in
accordance with the By-laws until he resigns in writing or is removed in
accordance with applicable law. [The Indemnitee will continue to serve as an
officer of the Company (and/or one or more subsidiaries of the Company) subject
to the right of the Company (and/or one or more such subsidiaries) and the
Indemnitee, as the case may be, to terminate his employment (as provided in his
employment agreement dated ______________ ______, 19____, between the
Indemnitee and (the Company or name subsidiaries)) (at will without cause or
prior notice).]
2. Initial Indemnity. (a) The Company shall indemnify the
Indemnitee when he was, is or becomes a party or witness or other participant
in, or was or is threatened to be made a party to or witness or other
participant in, any pending, threatened or completed action, suit or
proceeding, whether civil, administrative, investigative or criminal (other
than an action by or in the name or right of the Company), by reason of the
fact that he is or was or had agreed to become a director or officer of the
Company, or is or was serving or had agreed to serve at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against any and
all costs, charges and expenses, including without limitation attorneys' and
others' fees and expenses, judgments, fines and amounts paid in settlement
(including without limitation all interest, assessments and other charges paid
or payable in connection with or in respect of such costs, charges, expenses,
judgments, fines and amounts paid in settlement) actually and reasonably
incurred by the Indemnitee in connection therewith and any appeal therefrom and
any federal, state, local or foreign taxes imposed on the Indemnitee as a
result of the actual or deemed receipt of any payments under this Agreement, if
the Indemnitee 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. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the Indemnitee
did not satisfy the foregoing standard of conduct to the extent applicable
thereto.
(b) The Company shall indemnify the Indemnitee when he was, is
or becomes a party or witness or other participant in, or was or is threatened
to be made a party to or witness or other participant in, any pending,
threatened or completed action, suit or proceeding by or in the name or right
of the Company to procure a judgment in its favor by reason of the fact that he
is or was or had agreed to become a director or officer of the Company, or is
or was serving or had agreed to serve at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, against any and all costs, charges and
expenses (including without limitation attorneys' and others' fees and
expenses) actually and reasonably incurred by him in connection with the
defense or settlement thereof (including without limitation all interest,
assessments and other charges paid or payable in connection with or in respect
of such costs,
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charges, expenses and amounts paid in settlement) or any appeal therefrom and
any federal, state, local or foreign taxes imposed on the Indemnitee as a
result of the actual or deemed receipt of any payments under this Agreement,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
for willful or intentional misconduct in the performance of his duty to the
Company unless and only to the extent that the court in which such action, suit
or proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such expenses
that such court shall deem proper.
(c) To the extent that the Indemnitee has been successful on the
merits or otherwise, including without limitation the dismissal of an action
without prejudice, in defense of any action, suit or proceeding referred to in
Sections 2(a) or 2(b) hereof or in defense of any claim, issue or matter
therein, he shall be indemnified against costs, charges and expenses (including
without limitation attorneys' and others' fees and expenses) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under Sections 2(a) or 2(b) hereof
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination, in compliance with the provisions of
Section 4 hereof or, to the extent more favorable to the Indemnitee, any
applicable provision of the Articles of Incorporation of the Company (the
"Articles"), the By-laws of the Company (the "By-laws"), other agreements,
resolutions or otherwise, that the applicable standard of conduct has been met.
Such determination shall be made as follows: (i) by the Board of Directors of
the Company (the "Board"), by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum of disinterested directors is not available or so directs, by
independent legal counsel (designated in the manner provided below in this
subsection (d)) in a written opinion, or (iii) by the shareholders of the
Company (the "Shareholders"). Independent legal counsel shall be designated by
vote of a majority of the disinterested directors; provided, however, that if
the Board is unable or fails to so designate, such designation shall be made by
the Indemnitee subject to the approval of the Company (which approval shall not
be unreasonably withheld). Independent legal counsel shall not be any person
or firm who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Company or the Indemnitee in an action to determine the Indemnitee's rights
under this Agreement. The Company agrees to pay the reasonable fees and
expenses of such independent legal counsel and to indemnify fully such counsel
against costs, charges and expenses (including without limitation attorneys'
and others' fees and expenses) actually and reasonably incurred by such counsel
in connection with this Agreement or the opinion of such counsel pursuant
hereto.
(e) All expenses (including without limitation attorneys' and
others' fees and expenses) incurred by the Indemnitee in defending a civil or
criminal action, suit or proceeding for which indemnification is provided under
this Agreement shall be paid by the Company in advance of the final disposition
of such action, suit or proceeding subject to and in the manner prescribed by
Section 4(b) hereof.
(f) The Company shall not adopt any amendment to the Articles or
the By-laws, the effect of which would be to deny, diminish or encumber the
Indemnitee's rights to indemnity pursuant to the Articles, the By-laws, the
Business Corporation Law of the State of Louisiana (the "LBCL") or any other
applicable law as applied to any act or failure to act occurring in whole or in
part prior to the date (the "Effective Date") upon which the amendment was
approved by the Board or the Shareholders, as the case may be. In the event
that the Company shall adopt any amendment to the Articles or the By-laws, the
effect of which is to so deny, diminish or encumber the Indemnitee's rights to
indemnity, such amendment shall apply only to acts or failures to act occurring
entirely after the Effective Date thereof unless the Indemnitee shall have
voted in favor of such adoption as a director or holder of record of the
Company's voting stock, as the case may be.
3. Additional Indemnification. (a) Pursuant to Section 83 of
the LBCL, without limiting any right which the Indemnitee may have pursuant to
Section 2 hereof, the Articles, the By-laws, the LBCL, any policy of insurance
or otherwise, but subject to the limitations on the maximum permissible
indemnity that may exist under applicable law at the time of any request for
indemnity hereunder determined as contemplated by this Section 3(a), the
Company shall indemnify the Indemnitee to the fullest extent permitted by law
against any
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amount that he is or becomes legally obligated to pay relating to or arising
out of any claim made against him because of any act, failure to act or neglect
or breach of duty, including without limitation any actual or alleged error,
misstatement or misleading statement, that he commits, suffers, permits or
acquiesces in while acting in his capacity as a director or officer of the
Company, or, at the request of the Company, as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise. The payments that the Company is obligated to make pursuant to
this Section 3 shall include without limitation damages, judgments, settlements
and charges, costs, expenses, expenses of investigation and expenses of defense
of legal actions, suits, proceedings or claims and appeals therefrom (including
without limitation all interest, assessments and other charges paid or payable
in connection with or in respect of such damages, judgments, settlements,
charges, costs and expenses), and expenses of appeal, attachment or similar
bonds and any federal, state, local or foreign taxes imposed on the Indemnitee
as a result of the actual or deemed receipt of any payments under this
Agreement; provided, however, that the Company shall not be obligated under
this Section 3(a) to make any payment in connection with any claim against the
Indemnitee:
(i) to the extent of any fine or similar governmental
imposition that the Company is prohibited by applicable law from
paying that results in a final, nonappealable order; or
(ii) to the extent based upon or attributable to the
Indemnitee gaining in fact a personal profit to which he was not
legally entitled, including without limitation profits made from
the purchase and sale by the Indemnitee of equity securities of
the Company that are recoverable by the Company pursuant to
Section 16(b) of the Securities Exchange Act of 1934, as amended,
and profits arising from transactions in publicly traded
securities of the Company that were effected by the Indemnitee in
violation of Section 10(b) of the Securities Exchange Act of
1934, as amended, including without limitation Rule 10b-5
promulgated thereunder.
The determination of whether the Indemnitee shall be entitled to
indemnification under this Section 3(a) may be, but shall not be required to
be, made in accordance with Section 4(a) hereof. If that determination is so
made, it shall be binding upon the Company and the Indemnitee for all purposes.
(b) All expenses (including without limitation attorneys' and
others' fees and expenses) incurred by the Indemnitee in defending any civil or
criminal action, suit or proceeding for which indemnification is provided under
this Agreement shall be paid by the Company in advance of the final disposition
of such action, suit or proceeding subject to and in the manner prescribed by
Section 4(b) hereof.
4. Certain Procedures Relating to Indemnification and
Advancement of Expenses. (a) Except as otherwise permitted or required by the
LBCL, for purposes of pursuing his rights to indemnification under Sections
2(a), 2(b) or 3(a) hereof, as the case may be, the Indemnitee may, but shall
not be required to, (i) submit to the Board a sworn statement of request for
indemnification substantially in the form of Exhibit A hereto and made a part
hereof (the "Indemnification Statement") averring that he is entitled to
indemnification hereunder; and (ii) present to the Company reasonable evidence
of all expenses for which payment is requested. Submission of an
Indemnification Statement and such evidence of expenses to the Board shall
create a presumption that the Indemnitee is entitled to indemnification under
Sections 2(a), 2(b) or 3(a) hereof, as the case may be, and the Board shall be
deemed to have determined that the Indemnitee is entitled to such
indemnification unless within 30 calendar days after submission of the
Indemnification Statement the Board shall determine by vote of two-thirds of
its directors based on clear and convincing evidence (sufficient to rebut the
foregoing presumption) that the Indemnitee is not so entitled to
indemnification and the Indemnitee shall have received notice within such
period in writing of such determination, which notice shall disclose with
particularity the evidence in support of the Board's determination. The
foregoing notice shall be sworn to by all persons who participated in the
determination and voted to deny indemnification. The provisions of this
Section 4(a) are intended to be procedural only and shall not affect the right
of the Indemnitee to indemnification under this Agreement and any determination
by the Board that the Indemnitee is not entitled to indemnification and any
failure to make the payments requested in the Indemnification Statement shall
be subject to judicial review as provided in Section 7 hereof.
(b) For purposes of determining whether to authorize advancement
of expenses pursuant to Section 2(e) or 3(b) hereof, the Indemnitee shall
submit to the Board a sworn statement of request for
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advancement of expenses substantially in the form of Exhibit B hereto and made
a part hereof (the "Undertaking"), averring that (i) he has reasonably incurred
or will reasonably incur actual expenses in defending an actual civil or
criminal action, suit, proceeding or claim, and (ii) he undertakes to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Company under this Agreement or otherwise. Subject to the
last sentence of this Section 4(b), upon receipt of an Undertaking, the Board
shall, within 10 calendar days after receipt of the Indemnification Statement,
authorize immediate payment of the expenses stated in the Undertaking,
whereupon such payments shall immediately be made by the Company. No security
shall be required in connection with any Undertaking and any Undertaking shall
be accepted without reference to the Indemnitee's ability to make repayment.
5. Subrogation; Duplication of Payments. (a) In the event of
any payment by the Company to or on behalf of the Indemnitee under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such rights,
including without limitation the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such rights.
(b) The Company shall not be liable under this Agreement to make
any payment in connection with any claim made against the Indemnitee to the
extent the Indemnitee has actually received payment (under any insurance
policy, the Articles, the By-laws or otherwise) of the amounts otherwise
payable hereunder.
6. Shareholder Ratification. The Company may, at its option,
propose at any future meeting of the Shareholders that this Agreement be
ratified by the Shareholders; provided, however, that the Indemnitee's rights
hereunder shall be fully enforceable in accordance with the terms hereof
whether or not such ratification is sought or obtained; and provided further,
however, that if such ratification is sought and not obtained, the Company, in
the discretion of and upon action by the Board, may rescind this Agreement
effective as of the date of such Board action.
7. Enforcement. (a) If a claim for indemnification made to the
Company pursuant to Section 4 hereof is not paid in full by the Company within
30 calendar days after a written claim has been received by the Company, the
Indemnitee may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim.
(b) In any action brought under Section 7(a) hereof, it shall be
a defense to a claim for indemnification pursuant to Sections 2(a) or 2(b)
hereof that the Indemnitee has not met the standards of conduct that make it
permissible under the LBCL for the Company to indemnify the Indemnitee for the
amount claimed, but the burden of proving such defense shall be on the Company.
Neither the failure of the Company (including without limitation the Board,
independent legal counsel or the Shareholders) to have made a determination
prior to commencement of such action that indemnification of the Indemnitee is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the LBCL, nor an actual determination by the Company
(including without limitation the Board, independent legal counsel or the
Shareholders) that the Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(c) It is the intent of the Company that the Indemnitee not be
required to incur the expenses associated with the enforcement of his rights
under this Agreement by litigation or other legal action because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder. Accordingly, if it should appear to the
Indemnitee that the Company has failed to comply with any of its obligations
under the Agreement or in the event that the Company or any other person takes
any action to declare the Agreement void or unenforceable, or institutes any
action, suit or proceeding designed (or having the effect of being designed) to
deny, or to recover from, the Indemnitee the benefits intended to be provided
to the Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee
from time to time to retain counsel of his choice, at the expense of the
Company as hereafter provided, to represent the Indemnitee in connection with
the initiation or defense of any litigation or other legal action, whether by
or against the Company or any director, officer, shareholder or other person
affiliated with the Company, in any jurisdiction. Regardless of the outcome
thereof, the Company shall pay and be solely
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responsible for any and all costs, charges and expenses, including without
limitation attorneys' and others' fees and expenses, reasonably incurred by the
Indemnitee (i) as a result of such action, suit or proceeding or litigation or
other legal action, and the Company's failure to perform this Agreement or any
provision thereof, or (ii) as a result of the Company or any person contesting
the validity or enforceability of this Agreement or any provision thereof as
aforesaid.
8. Merger or Consolidation. In the event that the Company shall
be a constituent corporation in a consolidation, merger or other
reorganization, the Company, if it shall not be the surviving, resulting or
acquiring corporation therein, shall require as a condition thereto the
surviving, resulting or acquiring corporation to agree to indemnify the
Indemnitee to the full extent provided in this Agreement. Whether or not the
Company is the surviving, resulting or acquiring corporation in any such
transaction, the Indemnitee shall also stand in the same position under this
Agreement with respect to the resulting, surviving or acquiring corporation as
he would have with respect to the Company if its separate existence had
continued.
9. Nonexclusivity and Severability. (a) The right to
indemnification provided by this Agreement shall not be exclusive of any other
rights to which the Indemnitee may be entitled under the Articles, the By-laws,
the LBCL, any other statute, insurance policy, agreement, vote of Shareholders
or the Board or otherwise, both as to actions in his official capacity and as
to actions in another capacity while holding such office, and shall continue
after the Indemnitee has ceased to be a director, officer, employee or agent
and shall inure to the benefit of his heirs, executors, administrators,
legatees and successors.
(b) If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid, unenforceable
or otherwise illegal, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana, without giving
effect to the principles of conflict of laws thereof.
11. Modification; Survival. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and, subject to
the provisions of Section 9 hereof, supersedes any prior agreement between the
Indemnitee and the Company relating to the subject matter hereof. This
Agreement may be modified only by an instrument in writing signed by both
parties hereto. The provisions of this Agreement shall survive the death,
disability, or incapacity of the Indemnitee or the termination of the
Indemnitee's service as a director or officer of the Company, or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise for which he served at the request of the Company,
and shall inure to the benefit of the Indemnitee's heirs, executors,
administrators, legatees and successors.
12. Certain Terms. For purposes of this Agreement, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on Indemnitee with respect to
any employee benefit plan; and references to "serving at the request of the
Company" shall include any service as a director, officer, employee or agent of
the Company that imposes duties on, or involves services by, the Indemnitee
with respect to an employee benefit plan, its participants or beneficiaries;
references to the masculine shall include the feminine; references to the
singular shall include the plural and vice versa; and if the Indemnitee acted
in good faith and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan he shall be
deemed to have acted in a manner "not opposed to the best interests of the
Company" as referred to herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
UNITED COMPANIES FINANCIAL
CORPORATION
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By: ___________________________________
Name: ____________________________
Title: ____________________________
INDEMNITEE
____________________________________________
Name: _____________________________________
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EXHIBIT A
INDEMNIFICATION STATEMENT
STATE OF _____________________________________ )
) SS
(PARISH) (COUNTY) OF _________________________ )
I, ___________________________________________________, being
first duly sworn, do depose and say as follows:
1. This Indemnification Statement is submitted pursuant to
the Indemnification Agreement, dated as of February __, 1995 (the
"Indemnification Agreement), between United Companies Financial Corporation, a
Louisiana corporation (the "Company"), and the undersigned.
2. I am requesting indemnification against costs, charges,
expenses (including without limitation attorneys' and others' fees and
expenses), judgments, fines and amounts paid in settlement, and any federal,
state, local or foreign taxes imposed on me as a result of the actual or deemed
receipt of any payments under the Indemnification Agreement, all of which
(collectively, "Liabilities") have been or will be incurred by me in connection
with an actual or threatened action, suit, proceeding or claim to which I am a
party or witness or other participant or am threatened to be made a party or
witness or other participant.
3. With respect to all matters related to any such action,
suit, proceeding or claim, I am entitled to be indemnified as herein
contemplated pursuant to the Indemnification Agreement.
4. Without limiting any other rights which I have or may
have, I am requesting indemnification against Liabilities which have or may
arise out of ___________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Subscribed and sworn to before me, a Notary Public in and for
said (Parish) (County) and State, this _______ day of _______________, 19____.
__________________________________________
[Seal]
My commission expires the ________ day of ______________________, 19____.
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EXHIBIT B
UNDERTAKING
STATE OF _____________________________________ )
) SS
(PARISH) (COUNTY) OF _________________________ )
I, _______________________________________, being first duly
sworn do depose and say as follows:
1. This Undertaking is submitted pursuant to the
Indemnification Agreement, dated as of February __, 1995, between United
Companies Financial Corporation, a Louisiana corporation (the "Company"), and
the undersigned.
2. I am requesting advancement of certain costs, charges and
expenses which I have incurred or will reasonably incur in defending an actual
or pending civil or criminal action, suit, proceeding or claim.
3. I hereby undertake to repay this advancement of expenses
if it shall ultimately be determined that I am not entitled to be indemnified
by the Company under the aforesaid Indemnification Agreement or otherwise.
4. The costs, charges and expenses and other amounts for
which advancement is requested are, in general, all expenses related to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
__________________________________________
Subscribed and sworn to before me, a Notary Public in and for
said (Parish) (County) and State, this ______ day of _________________, 19____.
__________________________________________
[Seal]
My commission expires the _______ day of ______________________________, 19___.