EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into
as of _________ __, 2005 (the "Effective Date") by and between BofI Holding,
Inc., a Delaware corporation (the "Company"), and ______________ (the
"Indemnitee").
WHEREAS, the Company believes it is essential to retain and attract
qualified directors and officers;
WHEREAS, the Indemnitee is a director and/or officer of the Company;
WHEREAS, both the Company and the Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
public companies;
WHEREAS, the Company's certificate of incorporation (the "Certificate of
Incorporation") and bylaws (the "Bylaws") require the Company to indemnify and
advance expenses to its directors and officers to the extent permitted by
applicable law;
WHEREAS, the Indemnitee has been serving and intends to continue serving
as a director and/or officer of the Company in part in reliance on the
Certificate of Incorporation and Bylaws; and
WHEREAS, in recognition of the Indemnitee's need for (i) substantial
protection against personal liability based on the Indemnitee's reliance on the
Certificate of Incorporation and Bylaws, (ii) specific contractual assurance
that the protection promised by the Certificate of Incorporation and Bylaws will
be available to the Indemnitee, regardless of, among other things, any amendment
to or revocation of the Bylaws or any change in the composition of the Company's
board of directors (the "Board") or acquisition transaction relating to the
Company, and (iii) an inducement to continue to provide effective services to
the Company as a director and/or officer thereof, the Company wishes to provide
for the indemnification of the Indemnitee and to advance expenses to the
Indemnitee to the fullest extent permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained by the Company, to provide
for the continued coverage of the Indemnitee under the Company's directors' and
officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises contained herein and of
the Indemnitee continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. CERTAIN DEFINITIONS.
(a) A "Change in Control" shall be deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Exchange Act"), other than (a) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company; (b)
a corporation owned, directly or indirectly, by the stockholders
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of the Company in substantially the same proportions as their ownership of stock
of the Company; or (c) any current beneficial stockholder or group, as defined
by Rule 13d-5 of the Exchange Act, including the heirs, assigns and successors
thereof, of beneficial ownership, within the meaning of Rule 13d-3 of the
Exchange Act, of securities possessing more than 50% of the total combined
voting power of the Company's outstanding securities; hereafter becomes the
"beneficial owner," as defined in Rule 13d-3 of the Exchange Act, directly or
indirectly, of securities of the Company representing 20% or more of the total
combined voting power represented by the Company's then outstanding Voting
Securities;
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board and any new director
whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors then
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof; or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company, in one transaction or a series of
transactions, of all or substantially all of the Company's assets.
(b) "Expense" shall mean attorneys' fees and all other costs,
expenses and obligations paid or incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing for any of the foregoing, any Proceeding relating to any Indemnifiable
Event.
(c) "Indemnifiable Event" shall mean any event or occurrence that
takes place either prior to or after the execution of this Agreement, related to
the fact that the Indemnitee is or was a director or officer of the Company, or
is or was serving at the request of the Company as a director, officer,
employee, or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, or by reason of anything done or not done by the Indemnitee in any such
capacity.
(d) "Proceeding" shall mean any threatened, pending or completed
action, suit, investigation or proceeding, and any appeal thereof, whether
civil, criminal, administrative or investigative and/or any inquiry or
investigation, whether conducted by the Company or any other party, that the
Indemnitee in good faith believes might lead to the institution of any such
action.
(e) "Prohibited Indemnification Payment" means any payment (or any
agreement or arrangement to make any payment) by the Company or its subsidiary,
Bank of Internet USA (the "Bank"), for the benefit of Indemnitee to pay or
reimburse such person for any
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civil money penalty or judgment resulting from any Proceeding instituted by any
federal or state banking agency, or any other liability or legal expense with
regard to any administrative Proceeding instituted by any federal banking agency
which results in a final order or settlement pursuant to which such person: (i)
is assessed a civil money penalty; (ii) is removed from office or prohibited
from participating in the conduct of the affairs of the Company or the Bank; or
(iii) is required to cease and desist from or take any affirmative action
described in Section 8(b) of the Federal Deposit Insurance Act, as amended, or
any Proceeding instituted by a state banking agency which results in a final
order or settlement of similar or comparable purpose or effect. Notwithstanding
the foregoing, the term Prohibited Indemnification Payment shall not include (x)
any reasonable payment by the Company or the Bank which is used to purchase any
commercial insurance policy or fidelity bond, provided that such insurance
policy or bond shall not be used to pay or reimburse the Indemnitee for the cost
of any judgment or civil money penalty assessed against such person in a
Proceeding commenced by any federal or state banking agency, but may pay any
legal or professional expenses incurred in connection with such Proceeding or
the amount of any restitution, to the Company or the Bank, or (y) any reasonable
payment by the Company that represents partial indemnification for legal or
professional expenses specifically attributable to particular charges for which
there has been a formal and final adjudication or finding in connection with a
settlement that the Indemnitee has not violated certain banking laws or
regulations or has not engaged in certain unsafe or unsound banking practices or
breaches of fiduciary duty, unless the Proceeding has resulted in a final
prohibition order against the Indemnitee.
(f) "Reviewing Party" shall mean any appropriate person or body
consisting of a member or members of the Company's Board or any other person or
body appointed by the Board (including the special independent counsel referred
to in Section 6) who is not a party to the particular Proceeding with respect to
which the Indemnitee is seeking indemnification.
(g) "Voting Securities" shall mean any securities of the Company
which vote generally in the election of directors.
2. INDEMNIFICATION. In the event the Indemnitee was or is a party to or
is involved (as a party, witness, or otherwise) in any Proceeding by reason of
(or arising in part out of) an Indemnifiable Event, whether the basis of the
Proceeding is the Indemnitee's alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, the Company shall indemnify the Indemnitee to the fullest extent
permitted by applicable law against any and all Expenses, liability, and loss
(including judgments, fines, ERISA excise taxes or penalties, and amounts paid
or to be paid in settlement, and any interest, assessments, or other charges
imposed thereon, and any federal, state, local, or foreign taxes imposed on any
director or officer as a result of the actual or deemed receipt of any payments
under this Agreement) (collectively, "Liabilities") reasonably incurred or
suffered by such person in connection with such Proceeding. The Company shall
provide indemnification pursuant to this Section 2 as soon as practicable, but
in no event later than 30 days after it receives written demand from the
Indemnitee. Notwithstanding anything in this Agreement to the contrary and
except as provided in Section 5 below, the Indemnitee shall not be entitled to
indemnification pursuant to this Agreement (i) in connection with any Proceeding
initiated by the Indemnitee against the Company or any director or officer of
the Company unless the Company has joined in or consented to the initiation of
such Proceeding, (ii) on account of any suit in which judgment is
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rendered against the Indemnitee pursuant to Section 16(b) of the Exchange Act or
similar provisions of any federal, state or local laws for an accounting of
profits made from the purchase or sale by the Indemnitee of securities of the
Company or (iii) if such indemnification would result in a Prohibited
Indemnification Payment.
3. ADVANCEMENT OF EXPENSES.
(a) The Company shall advance Expenses to the Indemnitee within 30
business days of such request (an "Expense Advance"); provided, that if required
by applicable corporate laws such Expenses shall be advanced only upon delivery
to the Company of an undertaking by or on behalf of the Indemnitee to repay such
amount if it is ultimately determined that the Indemnitee is not entitled to be
indemnified by the Company; and provided further, that the Company shall make
such advances only to the extent permitted by law. Expenses incurred by the
Indemnitee while not acting in his/her capacity as a director or officer,
including service with respect to employee benefit plans, may be advanced upon
such terms and conditions as the Board, in its sole discretion, deems
appropriate.
(b) Notwithstanding the foregoing, Expenses incurred by the
Indemnitee in defending and investigating any Proceeding initiated by a federal
or state banking agency shall be paid by the Company, at the request of the
Indemnitee, in advance of the final disposition of such Proceeding, only if all
of the following requirements are met:
(i) The Board, in good faith, has determined in writing
after due investigation and consideration that the Indemnitee acted in
good faith and in a manner he/she believed to be in the best interests of
the Company or the Bank, as the case may be;
(ii) The Board, in good faith, has determined in writing
after due investigation and consideration that the payment of such
Expenses will not materially adversely affect the Bank's safety and
soundness;
(iii) the indemnification payments will not constitute a
Prohibited Indemnification Payment; and
(iv) the Indemnitee has agreed in writing to reimburse the
Company, to the extent not covered by payments from insurance or bonds,
for that portion of the advanced indemnification payments which
subsequently become Prohibited Indemnification Payments.
(c) The Indemnitee shall not participate in any way in the Board's
discussion and approval of a request by the Indemnitee for reimbursement and
advancement of Expenses related to a Proceeding initiated by a federal or state
banking agency; provided, the Indemnitee may present his/her request to the
Board and respond to any inquiries from the Board concerning his/her involvement
in the circumstances giving rise to the Proceeding.
4. REVIEW PROCEDURE FOR INDEMNIFICATION. Notwithstanding the foregoing,
(i) the obligations of the Company under Sections 2 and 3 above shall be subject
to the condition that the Reviewing Party shall not have determined (in a
written opinion, in any case in which the
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special independent counsel referred to in Section 6 hereof is involved) that
the Indemnitee would not be permitted to be indemnified under applicable law,
and (ii) the obligation of the Company to make an Expense Advance pursuant to
Section 3 above shall be subject to the condition that, if, when and to the
extent that the Reviewing Party determines that the Indemnitee would not be
permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by the Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided, that if the Indemnitee
has commenced legal proceedings in a court of competent jurisdiction pursuant to
Section 5 below to secure a determination that the Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that the Indemnitee would not be permitted to be indemnified under applicable
law shall not be binding and the Indemnitee shall not be required to reimburse
the Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or have lapsed). The Indemnitee's obligation to reimburse the Company
for Expense Advances pursuant to this Section 4 shall be unsecured and no
interest shall be charged thereon. If there has not been a Change in Control,
the Reviewing Party shall be selected by the Board, and if there has been such a
Change in Control, other than a Change in Control which has been approved by a
majority of the Company's Board who were directors immediately prior to such
Change in Control, the Reviewing Party shall be the special independent counsel
referred to in Section 6 hereof.
5. ENFORCEMENT OF INDEMNIFICATION RIGHTS. If the Reviewing Party
determines that the Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, or if the Indemnitee has
not otherwise been paid in full pursuant to Sections 2 and 3 above within 30
days after a written demand has been received by the Company, the Indemnitee
shall have the right to commence litigation in any court in the State of
Delaware having subject matter jurisdiction thereof and in which venue is proper
to recover the unpaid amount of the demand (an "Enforcement Proceeding") and, if
successful in whole or in part, the Indemnitee shall be entitled to be paid any
and all Expenses in connection with such Enforcement Proceeding. The Company
hereby consents to service of process for such Enforcement Proceeding and to
appear in any such Enforcement Proceeding. Any determination by the Reviewing
Party otherwise shall be conclusive and binding on the Company and the
Indemnitee.
6. CHANGE IN CONTROL. The Company agrees that if there is a Change in
Control of the Company, other than a Change in Control which has been approved
by a majority of the Company's Board who were directors immediately prior to
such Change in Control, then with respect to all matters thereafter arising
concerning the rights of the Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or under applicable law or
the Company's Certificate of Incorporation or Bylaws now or hereafter in effect
relating to indemnification for Indemnifiable Events, the Company shall seek
legal advice only from special independent counsel selected by the Indemnitee
and approved by the Company, which approval shall not be unreasonably withheld.
Such special independent counsel shall not have otherwise performed services for
the Company or the Indemnitee, other than in connection with such matters,
within the last five years. Such independent counsel shall not include any
person 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. Such counsel, among other
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things, shall render its written opinion to the Company and the Indemnitee as to
whether and to what extent the Indemnitee would be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees of the
special independent counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or the
engagement of special independent counsel pursuant to this Agreement.
7. PARTIAL INDEMNITY. If the Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
Expenses and Liabilities, but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the portion thereof
to which the Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any or all Proceedings
relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice, the Indemnitee
shall be indemnified against all Expenses incurred in connection therewith. In
connection with any determination by the Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish that the Indemnitee is not so
entitled.
8. NON-EXCLUSIVITY. The rights of the Indemnitee hereunder shall be in
addition to any other rights the Indemnitee may have under any statute,
provision of the Company's Certificate of Incorporation or Bylaws, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office. To the extent that a change in applicable law permits greater
indemnification by agreement than would be afforded currently under the
Company's Certificate of Incorporation and Bylaws and this Agreement, it is the
intent of the parties hereto that the Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change.
9. LIABILITY INSURANCE. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, the Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any director or officer of the Company.
10. SETTLEMENT OF CLAIMS. The Company shall not be liable to indemnify
the Indemnitee under this Agreement (a) for any amounts paid in settlement of
any action or claim effected without the Company's written consent, which
consent shall not be unreasonably withheld; or (b) for any judicial award if the
Company was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action.
11. NO PRESUMPTION. For purposes of this Agreement, to the fullest
extent permitted by law, the termination of any Proceeding, action, suit or
claim, by judgment, order, settlement (whether with or without court approval)
or conviction, or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that the Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law.
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12. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Company or any affiliate of
the Company against the Indemnitee, the Indemnitee's spouse, heirs, executors or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, or such longer period as may be
required by state law under the circumstances, and any claim or cause of action
of the Company or its affiliate shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such period; provided,
that if any shorter period of limitations is otherwise applicable to any such
cause of action, such shorter period shall govern.
13. AMENDMENT OF THIS AGREEMENT. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
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.
Except as specifically provided herein, no failure to exercise or any delay in
exercising any right or remedy hereunder shall constitute a waiver thereof.
14. SUBROGATION. In the event of payment 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 the
execution of such documents necessary to enable the Company effectively to bring
suit to enforce such rights.
15. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under
this Agreement to make any payment in connection with any claim made against
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any insurance policy, Bylaw, vote, agreement or otherwise) of the amounts
otherwise indemnifiable hereunder.
16. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to the
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect
regardless of whether the Indemnitee continues to serve as a director or officer
of the Company or of any other enterprise at the Company's request.
17. SEVERABILITY. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) is held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall
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be construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
18. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such State without giving effect to the
principles of conflicts of laws.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. NOTICES. All notices, demands, and other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand, against receipt, or mailed, postage prepaid,
certified or registered mail, return receipt requested, and addressed to the
Company at:
BofI Holding, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
and to the Indemnitee at the address set forth below the Indemnitee's
signatures.
Notice of change of address shall be effective only when done in
accordance with this Section. All notices complying with this Section shall be
deemed to have been received on the date of delivery or on the third business
day after mailing.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Indemnification Agreement as of the day first set forth above.
THE COMPANY:
BOFI HOLDING, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
INDEMNITEE:
_______________________________________
Signature
Print Name: ___________________________
Address: ______________________________
______________________________
______________________________
