EX-10.5



 





Exhibit 10.5




FORM OF INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (“Agreement”) is made as of the 12th day of June, 2007,
by and between Tiptree Financial Partners, L.P., a Delaware limited partnership (“LP”), and
[          ] (“Indemnitee”).



     WHEREAS, the LP desires to attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve as directors and officers of the LP and to indemnify its directors and
officers so as to provide them with the maximum protection permitted by law;



     WHEREAS, the LP and Indemnitee recognize the increasing difficulty in obtaining directors’ and
officers’ liability insurance, the significant increases in the cost of that insurance, and the
general reductions in the coverage of that insurance;



     WHEREAS, the LP and Indemnitee further recognize the substantial increase in commercial
litigation in general, subjecting directors and officers to expensive litigation risks at the same
time that the availability and coverage of liability insurance has been severely limited;



     WHEREAS, it is reasonable, prudent and necessary for the LP contractually to obligate itself
to indemnify its directors and certain of its officers to the fullest extent permitted by
applicable law so that they will serve and continue to serve the LP free from undue concern that
they will not be so indemnified; and



     WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the LP on the condition that Indemnitee be so indemnified.



     NOW, THEREFORE, in consideration of the premises and the covenants contained in this
Agreement, the LP and Indemnitee agree as follows:



     1. Indemnification.



          (a) Third Party Actions. Subject to Section 1(c), the LP will indemnify Indemnitee if
Indemnitee was or is a party to any threatened, pending or completed action, suit, arbitration or
proceeding, whether civil, criminal, administrative or investigative (an “Action”), other than an
Action by or in the right of the LP, by reason of the fact that Indemnitee is or was (1) a
director, officer, employee or agent of the LP, or (2) serving at the request of the LP as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement (“Losses”) actually and reasonably incurred by Indemnitee in connection with that
Action if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the LP, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful. The termination
of any Action by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, will not, of itself, create a presumption that Indemnitee did not act in good faith and
in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of
the LP, and, with respect to any criminal action or proceeding, had reasonable cause to believe
that Indemnitee’s conduct was unlawful.




 









 








          (b) Actions by or in the Right of the LP. Subject to Section 1(c), the LP will
indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending or completed Action by or in the right of the LP to procure a judgment in its
favor by reason of the fact that Indemnitee is or was (1) a director, officer, employee or agent of
the LP, or (2) serving at the request of the LP as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise, against Losses actually
and reasonably incurred by Indemnitee in connection with the defense or settlement of that Action
if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the LP. No indemnification will be made, however, in respect of
any claim, issue or matter as to which Indemnitee has been adjudged to be liable to the LP unless
and only to the extent that the Delaware Court of Chancery or the court in which that Action was
brought determines upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for those
expenses that the Delaware Court of Chancery or other court deems proper.




          (c) Authorization. Any indemnification under this Agreement (unless ordered by a
court) will be made by the LP only as authorized in the specific case upon a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct set forth in Section 1(a) or 1(b). This determination will be made
(1) by a majority vote of the directors who were not parties to the Action, even though less than a
quorum, (2) by a committee of those directors designated by majority vote of those directors, even
though less than a quorum, (3) if there are no such directors or if those directors so direct, by
independent legal counsel in a written opinion, or (4) by the unit holders. To the extent,
however, that Indemnitee has been successful on the merits or otherwise in defense of any Action
described in Section 1(a) or 1(b), or in defense of any related claim, issue or matter, the LP will
indemnify Indemnitee against expenses (including attorneys’ fees) actually and reasonably incurred
by Indemnitee in connection that Action, without the necessity of authorization in the specific
case.




     2. Expenses and Indemnification Procedure.



          (a) Advance of Expenses. The LP will pay expenses (including reasonable attorneys’
fees) incurred by Indemnitee in defending any Action described in Section 1(a) or 1(b) in advance
of the final disposition of that Action upon receipt of an undertaking by or on behalf of
Indemnitee to repay those expenses if it is ultimately determined that Indemnitee is not entitled
to be indemnified by the LP pursuant to this Agreement.




          (b) Notice/Cooperation by Indemnitee. Indemnitee will, as a condition precedent to
Indemnitee’s right to be indemnified under this Agreement, give the LP notice as soon as reasonably
practicable of any claim made or threatened to be made against Indemnitee for which indemnification
is or will be sought under this Agreement, but any failure to give or delay in giving notice of a
claim will not impair any right to indemnification under this Agreement to the extent that the LP
is not prejudiced by the failure or delay. In addition, Indemnitee will give to the LP such
information and cooperation as the LP may reasonably require and as is within Indemnitee’s power to
give.




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          (c) Procedure. Any claim for indemnification of Losses under Section 1 must be made
in writing in accordance with Section 9. If a claim for indemnification of Losses under Section 1
is not paid in full by the LP within 90 days after the claim has been received by the LP, or if a
claim under Section 2(a) for an advancement of expenses is not paid in full by the LP within 30
days after the written claim has been received by the LP, Indemnitee may at any time thereafter
bring an Action against the LP to recover the unpaid amount of the claim. If successful in whole
or in part in that Action, or in an Action brought by the LP to recover an advancement of expenses
pursuant to Section 2(a), Indemnitee may also recover the expense of prosecuting or defending the
Action brought pursuant to this Section 2(c), including reasonable attorneys’ fees. In any Action
by the LP to recover an advancement of expenses pursuant to Section 2(a), the LP may recover those
expenses upon a final judicial decision from which there is no further right to appeal that
Indemnitee has not met the standard of conduct that makes it permissible under applicable law for
the LP to indemnify Indemnitee for the amounts claimed. Neither the failure of the LP (including
its board of directors, independent legal counsel or stockholders) to have made a determination
prior to the commencement of that Action that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor an actual
determination by the LP (including its board of directors, independent legal counsel or
stockholders) that Indemnitee has not met the applicable standard of conduct, will create a
presumption that Indemnitee has not met the applicable standard of conduct or, in the case of an
Action brought by Indemnitee, be a defense to that Action. In any Action brought by Indemnitee to
enforce a right to indemnification or to an advancement of expenses pursuant to Section 2(a), or by
the LP to recover an advancement of expenses pursuant to Section 2(a), the LP will have the burden
of proving that Indemnitee is not entitled to be indemnified or to an advancement of expenses under
this Agreement or otherwise.




          (d) Notice to Insurers. If the LP has director and officer liability insurance in
effect at the time the LP receives notice of an actual or threatened claim pursuant to Section
2(b), the LP will give prompt notice of the commencement of the claim to the insurers as required
by its insurance policies. The LP will thereafter take all necessary or desirable action to cause
its liability insurers to pay, on behalf of Indemnitee, all amounts payable as a result of the
claim in accordance with and to the extent of the terms of its insurance policies.




          (e) Selection of Legal Counsel. If the LP is obligated under Section 1 to pay the
expenses of any Action against Indemnitee, the LP, if appropriate, may assume the defense of that
Action, with legal counsel approved by Indemnitee, which approval may not be unreasonably withheld
or delayed, upon delivery to Indemnitee of notice of its election so to do. After delivery of that
notice, approval of counsel by Indemnitee and retention of counsel by the LP, the LP will not be
liable to Indemnitee under this Agreement for any fees of legal counsel subsequently incurred by
Indemnitee with respect to the same Action unless the LP previously authorized Indemnitee to retain
his or her own legal counsel in that Action or the LP does not, in fact, retain legal counsel to
assume the defense of the Action. Indemnitee may in any event at Indemnitee’s expense employ his
or her own counsel in any Action.




     3. Additional Indemnification Rights and Nonexclusivity.



          (a) Scope. Notwithstanding any other provision of this Agreement, the LP will
indemnify Indemnitee to the fullest extent permitted from time to time by the Delaware


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Revised Uniform Limited Partnership Act (“DRULPA”) as presently or subsequently in effect. If
a change to DRULPA broadens the right of a Delaware limited partnership to indemnify a director,
officer or other agent of the partnership, that change will be deemed part of this Agreement unless
and to the extent prohibited by law. If a change to DRULPA narrows the right of a Delaware limited
partnership to indemnify a director, officer or other agent of the partnership, that change will
have no effect on this Agreement or the parties’ rights and obligations under this Agreement unless
and to the extent required by law.




          (b) Nonexclusivity. The indemnification and advancement of expenses provided by or
granted pursuant to this Agreement will not be deemed exclusive of any other rights to which
Indemnitee may be entitled under the LP’s Certificate of Formation, the Limtied Partnership
Agreement (as amended from time to time), any other agreement or contract, any vote of unit holders
or disinterested directors, or otherwise, both as to action in Indemnitee’s official capacity and
as to action in another capacity while holding an office with the LP.




     4. Partial Indemnification. If Indemnitee is entitled to indemnification by the LP
for a portion, but not all, of the Losses actually or reasonably incurred by Indemnitee in the
investigation, defense, appeal or settlement of an Action, the LP will indemnify Indemnitee for the
portion of the Losses to which Indemnitee is entitled.



     5. Mutual Acknowledgment. Both the LP and Indemnitee acknowledge that, in certain
instances, Federal law or applicable public policy may prohibit the LP from indemnifying its
directors and officers under this Agreement or otherwise. Indemnitee understands and acknowledges
that the LP may be required in the future to submit for determination by the appropriate regulatory
agency the question of whether the LP’s obligation to indemnify Indemnitee is barred as a matter of
public policy. Nothing in this Agreement is intended to require or will be construed as requiring
the LP to do or fail to do any act in violation of applicable law. The LP’s inability, pursuant to
court order, to perform its obligations under this Agreement will not constitute a breach of this
Agreement.



     6. Exceptions. Any other provision in this Agreement to the contrary notwithstanding,
the LP is not obligated pursuant to this Agreement:




	 	(1)	 	Excluded Acts. To indemnify Indemnitee for any acts or omissions or
transactions from which a director or officer a may not be relieved of liability under
the DRULPA; or
	 
	 	(2)	 	Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to a proceeding (or part of a proceeding) initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to a
proceeding (or part of a proceeding) brought to enforce a right to indemnification
under this Agreement or as authorized or consented to by the board of directors of the
LP; or
	 
	 	(3)	 	Lack of Good Faith. To indemnify Indemnitee for expenses incurred by
Indemnitee with respect to any Action instituted by Indemnitee to enforce or interpret
this Agreement, if a court of competent jurisdiction determines that each




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	 	 	 	of the material assertions made by Indemnitee in that Action was not made in good
faith or was frivolous; or
	 	(4)	 	Insured Claims. To indemnify Indemnitee for expenses or liabilities of
any type (including judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) to the extent paid, or acknowledged to be payable, directly to or on
behalf of Indemnitee by an insurance carrier under a policy of directors’ and officers’
liability insurance.





     7. Interpretation. For purposes of this Agreement, (1) references to “the LP”
include, in addition to the resulting limited partnership, any constituent partnership or
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
that, if its separate existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a director, officer,
employee or agent of that constituent corporation, or is or was serving at the request of that
constituent partnership or corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, will stand in the same position
under this Agreement with respect to the resulting or surviving limited partnership as he or she
would have with respect to that constituent limited partnership if its separate existence had
continued; (2) references to “other enterprises” include employee benefit plans; (3) references to
“fines” include any excise taxes assessed on a person with respect to an employee benefit plan; (4)
references to “serving at the request of the LP” include service as a director, officer, employee
or agent of the LP that imposes duties on, or involves services by, that director, officer,
employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and
(5) a person who acted in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan will be deemed to have
acted in a manner “not opposed to the best interests of the LP” as referred to in this Agreement.
For purposes of this Agreement, “including” means including without limitation.



     8. Attorney’s Fees. If any Action is instituted by Indemnitee under this Agreement to
enforce or interpret this Agreement, the LP will pay to Indemnitee all costs and expenses,
including reasonable attorneys’ fees, incurred by Indemnitee with respect to that Action, unless as
a part of the Action, the court determines that each of the material assertions made by Indemnitee
as a basis for the Action were not made in good faith or were frivolous. If an Action is
instituted by or in the name of the LP under this Agreement or to enforce or interpret this
Agreement, the LP will pay to Indemnitee all costs and expenses, including reasonable attorneys’
fees, incurred by Indemnitee in defense of that Action (including with respect to Indemnitee’s
counterclaims and cross-claims made in that Action), unless as a part of the Action the court
determines that each of Indemnitee’s material defenses to the Action were made in bad faith or were
frivolous.



     9. Notice. All notices, requests, demands and other communications under this
Agreement must be in writing, will be deemed given when actually received, and may be delivered by
overnight courier, by personal delivery, by certified or registered mail (if within the United
States), or facsimile transmission. Addresses for notice to either party are as follows (or at
such other address as either party may notify the other):



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	If to the LP:

	 	If to Indemnitee:
	 

	 	 
	Tiptree Financial Partners, L.P.

	 	[                                       ]
	767 Third Avenue, 11th Floor

	 	[                                       ]
	New York, New York 10017

	 	[                                       ]
	Attention: Secretary

	 	[                                       ]
	Telephone No.: (646) 388-5900

	 	Telephone No.: [               ]
	Facsimile No.: (646) 218-1585

	 	Facsimile No.: [               ]






     10. Miscellaneous.



          (a) Counterparts. This Agreement may be executed in multiple counterparts, each of
which will constitute an original.




          (b) Binding Effect; Successors and Assigns. This Agreement is binding upon the LP and
its successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the LP), and
will inure to the benefit of Indemnitee and Indemnitee’s estate, heirs, legal representative and
assigns. The LP will require and cause any successor (whether direct or indirect, and whether by
purchase, merger, consolidation or otherwise) to all or substantially all of its business or assets
expressly to assume and agree to perform this Agreement in the same manner and to the same extent
that it would be required to perform if no succession had taken place.




          (c) Consent to Jurisdiction. The LP and Indemnitee each hereby irrevocably consents
to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any
Action that arises out of or relates to this Agreement and agrees that any Action instituted under
this Agreement may be brought only in the state courts of the State of Delaware.




          (d) Choice of Law. This Agreement will be governed by and its provisions construed in
accordance with the laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within Delaware.




          (e) Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, that provision will be deemed
severable and the remaining provisions of this Agreement will remain enforceable to the fullest
extent permitted by law. To the fullest extent possible, the provisions of this Agreement
(including each portion of this Agreement containing a provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or unenforceable) will be construed so as
to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.




          (f) Subrogation. The LP will be subrogated to the extent of any payment under this
Agreement to all of the rights of recovery of Indemnitee, who will execute all documents required
and will do all acts that may be necessary to secure those rights and to enable the LP effectively
to bring an Action to enforce those rights.




          (g) Continuation of Indemnification. The indemnification and advancement of expenses
provided by or granted pursuant to this Agreement will, unless otherwise provided when authorized
or ratified, continue as to Indemnitee after Indemnitee has ceased to be a


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director, officer, employee or agent and will inure to the benefit of Indemnitee’s heirs,
executors, administrators and personal representatives.




          (h) Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement will be effective unless in writing signed by both parties.




          (i) Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements relating to the subject matter of this
Agreement.




          (j) No Right to Employment. Nothing in this Agreement will be construed as giving
Indemnitee any right to be retained in the employ of the LP or any of its subsidiaries or
affiliated entities.




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date shown
above.



	 	 	 	 	 
	 	TIPTREE FINANCIAL PARTNERS, L.P.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Indemnitee:

 	 
	 	
 	 
	 	Name:  	[                                                                        ] 	 
	 	 	 
	 




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