Indemnification Agreement
INDEMNIFICATION AGREEMENT
THIS AGREEMENT entered into this 10th day of March, 1997, by and
between Xxxxxxx Savings, Inc., a corporation duly organized and existing under
the laws of the State of Oklahoma (the "COMPANY"), with its principal place of
business situated in Xxxxxxx, Xxxxx County, Oklahoma, and Xxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxxxxxx, Xxxxx Xxxxxxx, Xxxxx X. Xxxxxx, Xx., and H. Xxxxxxx Xxxx,
(collectively referred to as the "Directors"), and Xxxxxxx X. Xxxxxxxxxx, H.
Xxxxxxx Xxxx, Xxxxxxxx Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxx (collectively referred to as the "Officers", and individually as
"Officer").
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto do hereby agree as follows:
A. Persons. The COMPANY shall indemnify, to the extent provided in
paragraphs B, D or F:
1. any person who is or was a director, officer, employee, of the
COMPANY or any wholly owned subsidiary of the COMPANY, including Xxxxxxx Federal
Savings Bank (collectively, the "Subsidiary"); and
2. any person who serves or served at the COMPANY's or
SUBSIDIARY's request as a director, officer, employee, partner or trustee of
another corporation, partnership, joint venture, trust or other enterprise.
B. Extent -- Derivative Suits. In case of a threatened, pending or
completed action or suit by or in the right of the COMPANY against a person
named in paragraph A by reason of his holding a position named in paragraph A,
the COMPANY shall indemnify him if he satisfies the standard in paragraph C, for
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit, except to the
extent that such individual shall otherwise be indemnified by a SUBSIDIARY.
C. Standard -- Derivative Suits. In case of a threatened, pending
or completed action or suit by or in the right of the COMPANY, a person named in
paragraph A shall be indemnified only if:
1. he is successful on the merits or otherwise; or
2. he acted in good faith in the transaction which is the subject
of the suit or action, and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the COMPANY, including, but not limited to, the
taking of any and all actions in connection with the COMPANY's response to any
tender offer or any offer or proposal of another party to engage in a Business
Combination (as defined at Article XIV of the Company's Certificate of
Incorporation ("Certificate")) not approved by the board of directors. However,
he shall not be indemnified in respect of any claim, issue or matter as to which
he has been adjudged liable to the COMPANY unless (and only to the extent that)
the Court of Chancery or the court in which the suit was brought shall
determine, upon application, that despite the adjudication but
in view of all the circumstances, he is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
D. Extent -- Nonderivative Suits. In case of a threatened, pending or
completed suit, action or proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the COMPANY, together
hereafter referred to as a nonderivative suit, against a person named in
paragraph A by reason of his holding a position named in paragraph A, the
COMPANY shall indemnify him if he satisfies the standard in paragraph E, for
amounts actually and reasonably incurred by him in connection with the defense
or settlement of the nonderivative suit, including, but not limited to (i)
expenses (including attorneys' fees), (ii) amounts paid in settlement, (iii)
judgments, and (iv) fines, except to the extent that such individual shall
otherwise be indemnified by a SUBSIDIARY.
E. Standard -- Nonderivative Suits. In case of a nonderivative suit,
a person named in paragraph A shall be indemnified only if:
1. he is successful on the merits or otherwise; or
2. he acted in good faith in the transaction which is the
subject of the nonderivative suit and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the COMPANY, including, but not
limited to, the taking of any and all actions in connection with the COMPANY's
response to any tender offer or any offer or proposal of another party to engage
in a Business Combination (as defined in Article XIV of the Certificate) not
approved by the board of directors and, with respect to any criminal action or
proceeding, he had no reasonable cause to believe his conduct was unlawful. The
termination of a nonderivative suit by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent shall not, in itself, create
a presumption that the person failed to satisfy the standard of this paragraph
E.2.
F. Determination That Standard Has Been Met. A determination that
the standard of paragraph C or E has been satisfied may be made by a court, or,
except as stated in paragraph C.2 (second sentence), the determination may be
made by:
1. the board of directors by a majority vote of a quorum
consisting of directors of the COMPANY who were not parties to the action, suit
or proceeding; or
2. independent legal counsel (appointed by a majority of the
disinterested directors of the COMPANY, whether or not a quorum) in a written
opinion; or
3. the stockholders of the COMPANY.
G. Proration. Anyone making a determination under paragraph F may
determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
H. Advance Payment. The COMPANY may pay in advance any expenses
(including attorneys' fees) which may become subject to indemnification under
paragraphs A-G if the person receiving the payment undertakes in writing to
repay the same if it is ultimately
2
determined that he is not entitled to indemnification by the COMPANY under
paragraphs A-G.
I. Nonexclusive. The indemnification and advancement of expenses
provided by paragraphs A-H or otherwise granted pursuant to Oklahoma law shall
not be exclusive of any other rights to which a person may be entitled by law,
bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.
J. Continuation. The indemnification and advance payment provided by
paragraphs A-H shall continue as to a person who has ceased to hold a position
named in paragraph A and shall inure to his heirs, executors and administrators.
K. Insurance. The COMPANY may purchase and maintain insurance on behalf
of any person who holds or who has held any position named in paragraph A,
against any liability asserted against him and incurred by him in any such
position, or arising out of his status as such, whether or not the COMPANY would
have power to indemnify him against such liability under paragraphs A-H of
Article XVIII of the Certificate.
L. Savings Clause.
1. If Article XVIII of the Certificate or any portion of this Agreement
shall be invalidated on any ground by any court of competent jurisdiction, then
the COMPANY shall nevertheless indemnify each director, officer, employee, and
agent of the COMPANY as to costs, charges, and expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement with respect to any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the COMPANY to the full
extent permitted by any applicable portion of Article XVIII of the Certificate
that shall not have been invalidated and to the full extent permitted by
applicable law.
2. If Oklahoma law is amended to permit further indemnification of the
directors, officers, employees and agents of the COMPANY and its SUBSIDIARY,
then the COMPANY shall indemnify such persons to the fullest extent permitted by
Oklahoma law, as so amended. Any repeal or modification of Article XVIII of the
Certificate by the stockholders of the COMPANY shall not adversely affect any
right or protection of a director, officer, employee or agent existing at the
time of such repeal or modification.
M. Regulatory Limitations.
a) Notwithstanding anything herein to the contrary, no indemnification
shall be made in accordance with this Agreement if such action would result in
the COMPANY being in violation of a final cease and desist order issued by the
Office of Thrift Supervision or the Federal Deposit Insurance Corporation.
(b) Notwithstanding anything herein to the contrary, the
indemnification provided for in accordance with this Agreement is subject to and
qualified by the limitations as contained at 12 U.S.C. 1821(k) to the extent
applicable.
3
N. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of such
together shall constitute one and the same instrument.
O. Headings and Construction. The headings contained in this Agreement
are inserted for convenience only, and shall not constitute a part hereof.
P. Binding Effect. This agreement shall be binding upon all parties
signatory hereto and their respective heirs, legal representatives, successors
and assigns.
Q. Invalidity. If any one or more of the provisions of this Agreement
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect the
remaining provisions of this Agreement, and this document shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein.
R. Entire Purchase Contract. This Agreement constitutes the entire
Agreement between the parties hereto and supersedes any and all prior and
contemporaneous negotiations, agreements and understandings between the parties
hereto pertaining to the subject matter hereof.
S. Examination. The parties' signatory hereto hereby state and
acknowledge that they have heretofore examined, reviewed and inspected all
books, records, documents and related data regarding the COMPANY. Pursuant to
such exercise, each party's signatory hereto states and acknowledges that it is
satisfied in all respects regarding the assets, liabilities, claims, rights,
duties and business affairs of the COMPANY. Each of the undersigned further
acknowledges that he/she has read this Agreement, understands the contents
thereof, and has had the opportunity for an independent attorney of his/her
choosing who is not a party hereto, to review this Agreement on his/her behalf
and has been advised accordingly by such independent attorney.
T. Governing Law. It is agreed between the parties hereto that this
Agreement shall be construed by the laws of the State of Oklahoma, except to the
extent that federal law shall be deemed to preempt such state law.
4
