INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION
AGREEMENT, (this “Agreement”) is made and entered into effective as of
December 18, 2008 by and between Federal Home Loan Bank of Topeka, (the “Bank”),
and ____________, a[n officer] [director] of the Bank (the
“[Officer][Director]”).
RECITALS
WHEREAS, Section 8.3 of the
Bank’s Amended and Restated Bylaws (“Bylaws”) provides the Bank’s
[officers][directors] with certain rights to indemnification; and
WHEREAS, the Bank desires to
supplement its contractual duty and obligation to indemnify its
[officers][directors] in accordance with Section 8.3 of the Bank’s Bylaws by
entering into indemnification agreements with its [officers][directors] that
provide materially similar indemnification rights and duties as that provided in
the Bylaws; and
WHEREAS, this Agreement is
being entered into as part of the [Officer’s][Director’s] total consideration
for serving as a[n officer][director] of the Bank; and
WHEREAS, the
[Officer][Director] desires to serve and continue to serve as a[n
officer][director] of the Bank and to enter into such an agreement to supplement
the indemnification rights provided in the Bylaws.
NOW THEREFORE, in
consideration of the mutual premises and covenants contained herein, the Bank
and the [Officer][Director] do hereby covenant and agree as
follows:
AGREEMENT
1. Actions Not By or in
the Right of the Bank. The Bank shall indemnify the [Officer][Director]
who was or is a Party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, other than an action, suit or proceeding by or
in the right of the Bank, by reason of the fact that the
[Officer][Director]:
(i)
is or was a[n officer][director] of the Bank, or
(ii)
is or was serving at the request of the Bank as a director, of another
corporation, partnership, joint venture, trust or other enterprise,
or
(iii)
rendered or attempted to render emergency aid including, without limitation,
first
aid,
rescue breathing, cardiopulmonary resuscitation, or use of an
automated
external
defibrillator, on Bank premises or at any Bank-sponsored event,
function
or
activity, if the [Officer][Director] is or was a director of the Bank at the
time of such action or actions,
against
expenses, judgments, fines and amounts paid in settlement, actually and
reasonably by the [Officer][Director] in connection with such action, suit or
proceeding, including attorney fees, if the [Officer][Director] acted in good
faith and in a manner the [Officer][Director] reasonably believed to be in, or
not opposed to, the best interests of the Bank; and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the
[Officer’s][Director’s] 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 [Officer][Director] did not act in good faith and in a manner which the
[Officer][Director] reasonably believed to be in, or not opposed to, the best
interests of the Bank, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that the [Officer’s][Director’s] conduct was
unlawful.
2. Actions By or in the
Right of the Bank. The Bank shall indemnify the [Officer][Director] who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, by or in the right of the Bank
to procure a judgment in its favor by reason of the fact that the
[Officer][Director] is or was a[n officer][director], of the Bank, or is or was
serving at the request of the Bank as a director of another corporation,
partnership, joint venture, trust or other enterprise, against expenses actually
and reasonably incurred by the [Officer][Director] in connection with the
defense or settlement of such action or suit, including attorney fees, if the
[Officer][Director] acted in good faith and in a manner the [Officer][Director]
reasonably believed to be in, or not opposed to, the best interests of the Bank
and except that no indemnification shall be made in respect to any claim, issue
or matter as to which the [Officer][Director] shall have been adjudged to be
liable to the Bank unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, the
[Officer][Director] is reasonably and fairly entitled to indemnity for such
expenses which the court shall deem proper.
3. Success on the Merits or
Otherwise. To the extent that the [Officer][Director] has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred
to in Section 1 or 2, or in defense of any claim, issue or matter therein, the
[Officer][Director] shall be indemnified against expenses actually and
reasonably incurred in connection therewith, including attorney fees. To the
extent that the [Officer][Director] has been successful on the merits of any
action, suit or proceeding to enforce his or her rights under this Agreement,
the [Officer][Director] shall be indemnified against expenses actually and
reasonably incurred in connection therewith, including attorney
fees.
4. Determination to Indemnify.
Any indemnification under Section 1 or 2, unless ordered by a court, shall be
made by the Bank only as authorized in the specific case upon a determination
that indemnification of the [Officer][Director] is proper in the circumstances
because the [Officer][Director] has met the applicable standard of conduct set
forth in Section 1 or 2. Such determination shall be made (1) by the Board by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding (hereinafter referred to as “disinterested
directors”), or (2) if such a quorum is not obtainable, or even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion.
5. Advance Payment of
Expenses. Payments of reasonable expenses, including attorney fees,
incurred by the [Officer][Director] in connection with a civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Bank as they are incurred, and in advance of the final disposition of such
action, suit or proceeding, beginning thirty (30) days from the date of receipt
by the Bank of the [Officer’s][Director’s] written application for
indemnification, including (a) a certification and supporting statement of the
[Officer’s][Director’s] belief that he or she ultimately will become entitled to
indemnification under this Agreement; and (b) a written statement by the
[Officer][Director] agreeing to reimburse the Bank for any advance payments made
by the Bank that subsequently become prohibited by law or regulation. No such
advance payment shall be made, or continued to be made, if at any time a
disinterested majority of a quorum of the Bank’s directors reasonably concludes
that the [Officer][Director] would not likely become entitled to indemnification
under this Agreement. In the case of such a finding, advanced payments to which
the [Officer][Director] is not entitled under this paragraph shall be reimbursed
to the Bank. Nothing in this Section 5 shall prevent the Bank from imposing such
contractual conditions on the advance payment of costs and expenses as the Bank
deems warranted to protect its interests.
6. Indemnification not
Exclusive. The indemnification and advancement of expenses provided by,
or granted pursuant to, the other sections of this Agreement shall not be deemed
exclusive of any other rights to which the [Officer][Director] may be entitled
under any bylaw, agreement, vote of disinterested directors or otherwise, both
as to action in the [Officer’s][Director’s] official capacity and as to action
in another capacity while holding such office.
7. Limited Application to
Persons Serving as Agents. Notwithstanding anything in this Agreement to
the contrary, the Bank shall not be required to indemnify the
[Officer][Director] if the [Officer][Director] was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that the [Officer][Director] is or was an officer or employee
of the Bank, if such action, suit or proceeding is based upon or arises out of
actions taken by the [Officer][Director] in his or her capacity as an agent of
the Federal Home Loan Bank Board and/or the Federal Savings and Loan Insurance
Corporation.
8. Right to Indemnification Not to be
Terminated or Diminished. In consideration of the continued service to
the Bank by the [Officer][Director], the right of the [Officer][Director] to
indemnification under this Agreement shall not be terminated or diminished by
the Bank, and the [Officer][Director] shall continue to be entitled to
indemnification under this Agreement notwithstanding any termination or
amendment of this Agreement, with respect to actions, suits or proceedings based
on or arising from the [Officer’s][Director’s] service to the Bank prior to the
termination or amendment of this Agreement.
9. Continuation of Right
to Indemnification. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Agreement shall continue if the
[Officer][Director] has ceased to be a[n officer][director] and shall inure to
the benefit of the heirs, executors and administrators of
the[Officer][Director].
10. Contractual Right to
Indemnification. The right to indemnification and advancement of expenses
provided by, or granted pursuant to, this Agreement (1) shall be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, (2) shall continue to exist after the termination or amendment of this
Agreement, with respect to actions, suits or proceedings based on or arising
from such person’s service to the Bank prior to the termination or amendment of
this Agreement and (3) consistent with Section 9 above shall inure to the
benefit of the heirs, executors and administrators of the
[Officer][Director].
11. Definitions. For purposes
of this Agreement, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on
the [Officer][Director] with respect to any employee benefit plan; and
references to “serving at the request of the Bank” shall include any service as
a[n officer][director] of the Bank which imposes duties on, or involves services
by, the [Officer][Director] with respect to an employee benefit plan, its
participants and beneficiaries; and a person who 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 shall be deemed to have acted in a
manner “not opposed to the best interests of the Bank” as referred to in this
Agreement.
12. Miscellaneous.
This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original, but all of which together shall
constitute one and the same Agreement. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Agreement. The headings of the
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
thereof. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by each of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing
waiver. The parties agree that this Agreement shall be governed by,
and construed and enforced in accordance with the laws of the State of
Kansas.
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remainder of this page is left intentionally blank.]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the day and year first above
written.
By:_________________________________
Xxxxxx
X. Xxxxxx
President
and CEO
[OFFICER][DIRECTOR]:
Name:
