INDEMNIFICATION AGREEMENT
Exhibit
10.1
This
Indemnification Agreement, dated as of July ___, 2007, is made by and between
Washington Mutual, Inc., a Washington corporation (the “Corporation”) and
____________ (the “Indemnitee”).
RECITALS
A. The
Corporation recognizes that competent and experienced persons are increasingly
reluctant to serve or to continue to serve as directors of corporations unless
they are protected by comprehensive liability insurance or indemnification,
or
both, due to increased exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the compensation of such
directors;
B. The
statutes and judicial decisions regarding the duties of directors are often
difficult to apply, ambiguous, or conflicting, and therefore fail to provide
such directors with adequate, reliable knowledge of legal risks to which they
are exposed or information regarding the proper course of action to
take;
C. The
Corporation and Indemnitee recognize that plaintiffs often seek damages in
such
large amounts and the costs of litigation may be so enormous (whether or not
the
case is meritorious), that the defense and/or settlement of such litigation
is
often beyond the personal resources of directors;
D. The
Corporation believes that it is unfair for its directors to assume the risk
of
huge judgments and other expenses which may occur in cases in which the director
received no personal profit or benefit to which he or she was not entitled,
did
not improperly vote for or assent to a distribution and was not culpable of
intentional misconduct or a knowing violation of law;
E. The
Corporation believes that the interests of the Corporation and its shareholders
would best be served by a combination of liability insurance and the
indemnification by the Corporation of the directors of the
Corporation;
F. The
Corporation’s articles of incorporation (the “Articles”) and bylaws (the
“Bylaws”) require the Corporation to indemnify its directors to the fullest
extent permitted by the Washington Business Corporation Act (the “WBCA”). The
Bylaws expressly provide that the indemnification provisions set forth therein
are not exclusive, and contemplate that agreements may be entered into between
the Corporation and its directors with respect to indemnification;
G. The
WBCA, under which the Corporation is organized, empowers the Corporation to
indemnify its directors by agreement and to indemnify persons who serve, at
the
request of the Corporation, as the directors, officers, employees or agents
of
other corporations or enterprises, and expressly provides that the
indemnification provided by the WBCA is not exclusive;
H. Section 8.32
of the WBCA allows a corporation to include in its Articles a provision limiting
or eliminating the personal liability of a director for monetary damages to
the
Corporation or its shareholders except in certain enumerated circumstances,
and
the Corporation has provided in its Articles that each director shall be
exculpated from such liability to the maximum extent permitted by
law;
I. The
Board of Directors has determined that contractual indemnification as set forth
herein is not only reasonable and prudent but also promotes the best interests
of the Corporation and its shareholders;
J. The
Corporation desires Indemnitee to serve or continue to serve as a director
of
the Corporation free from undue concern for unwarranted claims for damages
arising out of or related to such services to the Corporation; and
K. Indemnitee
is willing to serve, continue to serve or to provide additional service for
or
on behalf of the Corporation on the condition that he or she is furnished the
indemnity provided for herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
below, and other good and valuable consideration, the receipt and adequacy
of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section
1. Generally.
To
the
fullest extent permitted by the laws of the State of Washington:
(a) The
Corporation shall indemnify and hold harmless Indemnitee if Indemnitee was
or is
a party or is threatened to be made a party to or is involved in (including,
without limitation, as a witness) any actual, pending or threatened action,
suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that Indemnitee is or was, or has agreed to serve as, a
director of the Corporation, or being or having been a director of the
Corporation, is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent (which, for purposes
hereof, shall include a trustee, partner or manager or similar capacity) of
the
Corporation or another corporation or of a partnership, joint
venture, trust, other enterprise including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity or in any other capacity while serving in an official
capacity. For the avoidance of doubt, the foregoing indemnification
obligation includes, without limitation, claims for monetary damages against
Indemnitee in respect of an alleged breach of fiduciary duties, to the fullest
extent permitted under the WBCA.
(b) The
indemnification provided by this Section 1 shall be from and against all
expenses, liabilities and losses (including attorneys’ fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement), actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with
such action, suit or proceeding and any appeal therefrom.
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(c) Notwithstanding
the foregoing provisions of this Section 1, the Corporation shall not
indemnify any person from or on account of any acts or omissions of such person
finally adjudged to be intentional misconduct or knowing violation of the law
by
such person, from conduct of the person in violation of Section 8.31 of the
WBCA or from or on account of any transaction with respect to which it is
finally adjudged that such person personally received a benefit in money,
property or services to which such person was not legally entitled
(collectively, the “indemnification standards”). In addition, except
as provided in Section 8 hereof with respect to proceedings seeking
indemnification, the Corporation shall not indemnify any person with respect
to
an action, suit or proceeding initiated by that person unless such action,
claim
or proceeding was authorized by the Board of Directors of the
Corporation.
(d) Without
limiting the situations in which a person shall be considered to be serving
at
the request of the Corporation, a director who serves as a director, officer,
employee or agent of the Corporation or another corporation or other enterprise
that is a subsidiary of the Corporation shall be deemed to be serving at the
request of the Corporation, where “subsidiary” means (i) a corporation or other
enterprise in which a majority of the voting stock or other voting power is
owned or controlled by the Corporation directly or though one or more
subsidiaries or (ii) a corporation or other enterprise which is consolidated
on
the Corporation’s financial statements or is reported using the equity
method.
(e) 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 Indemnitee did not satisfy the indemnification
standards.
Section
2. Successful
Defense; Partial Indemnification. If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Corporation for some
or a portion of the expenses, liabilities or losses (including attorneys’ fees,
judgments, fines or amounts paid in settlement) actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with any action, suit,
proceeding or investigation, or in defense of any claim, issue or matter
therein, and any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion
of such expenses, liabilities or losses (including attorneys’ fees, judgments,
fines or amounts paid in settlement) to which Indemnitee is
entitled.
Section
3. Determination
That Indemnification Is Proper; Authorization.
(a) If
and to the extent that under applicable law or otherwise the Corporation is
required to make a determination that the Indemnitee has met the indemnification
standards, any such determination may be made (i) by a majority vote of the
directors who are not parties to the action, suit or proceeding in question
(“disinterested directors”), (ii) by a majority vote of a committee consisting
solely of two or more disinterested directors designated by the Board of
Directors, in which designation directors who are parties may participate,
(iii)
by special legal counsel or other persons (A) selected by the Board of Directors
or its committee in the manner described in clauses (i) or (ii) of this sentence
or (B) if a quorum of the Board of Directors cannot be attained under clause
(i)
and a committee cannot be designated under clause (ii), selected by majority
vote of the full Board of Directors, in which selection directors who are
parties may participate, (iv) by the shareholders, but shares owned by or voted
under the control of directors who are at the time not disinterested directors
may not be voted on the determination, or (v) by a court of competent
jurisdiction.
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(b) Authorization
of indemnification and evaluation as to reasonableness of expenses and costs,
if
and to the extent required by applicable law or otherwise, may be made in the
same manner as the determination that indemnification is proper under
Section 1(c), except that if the determination is made by special legal
counsel, authorizations of indemnification and evaluation as to reasonableness
of expenses and costs may be made by those entitled under clause (iii) of
Section 3(a) to select counsel.
Section
4. Advance
Payment of Expenses; Notification and Defense of Claim.
(a) Expenses
(including attorneys’ fees) incurred by Indemnitee in defending a threatened or
pending civil, criminal, administrative or investigative action, suit or
proceeding, or in connection with an enforcement action pursuant to
Section 5(b), shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding within twenty (20) days after
receipt by the Corporation of (i) a statement or statements from Indemnitee
requesting such advance or advances from time to time, and (ii) an undertaking
by or on behalf of Indemnitee to repay such amount or amounts, only if, and
to
the extent that, it shall ultimately be determined that Indemnitee is not
entitled to be indemnified by the Corporation as authorized by this Agreement
or
otherwise. Such undertaking shall be accepted without reference to
the financial ability of Indemnitee to make such repayment. Advances shall
be
unsecured and interest-free.
(b) Promptly
after receipt by Indemnitee of notice of the commencement of any action, suit
or
proceeding, Indemnitee shall, if a claim thereof is to be made against the
Corporation hereunder, notify the Corporation of the commencement
thereof. The failure to promptly notify the Corporation of the
commencement of the action, suit or proceeding, or Indemnitee’s request for
indemnification, will not relieve the Corporation from any liability that it
may
have to Indemnitee hereunder, except to the extent the Corporation is prejudiced
in its defense of such action, suit or proceeding as a result of such
failure.
(c) In
the event the Corporation shall be obligated to pay the expenses of Indemnitee
with respect to an action, suit or proceeding, as provided in this Agreement,
the Corporation, if appropriate, shall be entitled to assume the defense of
such
action, suit or proceeding, with counsel reasonably acceptable to Indemnitee,
upon the delivery to Indemnitee of written notice of its election to do
so. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Corporation, the Corporation
will not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same action, suit or
proceeding, provided that (1) Indemnitee shall have the right to employ
Indemnitee’s own counsel in such action, suit or proceeding at Indemnitee’s
expense and (2) if (i) the employment of counsel by Indemnitee has been
previously authorized in writing by the Corporation, (ii) counsel to the
Corporation or Indemnitee shall have reasonably concluded that there may be
a
conflict of interest or position, or reasonably believes that a conflict is
likely to arise, on any significant issue between the Corporation and Indemnitee
in the conduct of any such defense, (iii) the Corporation shall not, in fact,
have employed counsel to assume the defense of such action, suit or proceeding,
or (iv) the Corporation is not financially or legally able to pay or otherwise
perform its indemnification obligations, then the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Corporation, except as
otherwise expressly provided by this Agreement. The Corporation shall
not be entitled, without the consent of Indemnitee, to assume the defense of
any
claim brought by or in the right of the Corporation or as to which counsel
for
the Corporation or Indemnitee shall have reasonably made the conclusion provided
for in clause (ii) above.
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(d) Notwithstanding
any other provision of this Agreement to the contrary, to the extent that
Indemnitee is, by reason of Indemnitee’s corporate status with respect to the
Corporation or any corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee is or was serving or has
agreed to serve at the request of the Corporation, a witness or otherwise
participates in any action, suit or proceeding at a time when Indemnitee is
not
a party in the action, suit or proceeding, the Corporation shall indemnify
Indemnitee against all expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
Section
5. Procedure
for Indemnification.
(a) To
obtain indemnification, Indemnitee shall promptly submit to the Corporation
a
written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Corporation shall, promptly upon receipt of such a request
for indemnification, advise the Board of Directors in writing that Indemnitee
has requested indemnification.
(b) The
Corporation’s determination whether to grant Indemnitee’s indemnification
request shall be made promptly, and in any event within sixty (60) days
following receipt of a request for indemnification pursuant to Section 5(a).
The
right to indemnification as granted by Section 1 of this Agreement shall be
enforceable by Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or fails to respond within
such 60-day period, or 20 days in the case of a claim for expenses incurred
in
defending a proceeding in advance of its final disposition. It shall
be a defense to any such action (other than an action brought to enforce a
claim
for the advance of costs, charges and expenses under Section 4 hereof where
the
required undertaking, if any, has been received by the Corporation) that
Indemnitee has not met the indemnification standards, but the burden of proving
such defense by clear and convincing evidence shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors or
one
of its committees, its special legal counsel, and its shareholders) to have
made
a determination prior to the commencement of such action that indemnification
of
Indemnitee is proper in the circumstances because Indemnitee has met the
indemnification standards, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors or one of
its
committees, its special legal counsel, and its shareholders) that Indemnitee
has
not met the indemnification standards of conduct, shall be a defense to the
action or create a presumption that Indemnitee has or has not met the
indemnification standards. The Indemnitee’s expenses (including
attorneys’ fees) incurred in connection with successfully establishing
Indemnitee’s right to indemnification, in whole or in part, in any such
proceeding or otherwise shall also be indemnified by the
Corporation.
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(c) The
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement upon submission of a request for indemnification pursuant to this
Section 5, and the Corporation shall have the burden of proof in overcoming
that
presumption in reaching a determination contrary to that
presumption. Such presumption shall be used as a basis for a
determination of entitlement to indemnification unless the Corporation overcomes
such presumption by clear and convincing evidence. Such presumption
shall apply both to the determination and/or authorization made by the
Corporation in connection with the claim and in any suit or action to enforce
the claim or otherwise relating to the claim. Such presumption shall
include a presumption that Indemnitee has satisfied the indemnification
standards and, in addition, has acted in good faith and in a manner in which
Indemnitee reasonably believed to be in or not opposed to the best interests
of
the Corporation. The knowledge and/or actions, or failures to act, of
any director, officer, agent or employee of the Corporation or a subsidiary,
shall not be imputed to the Indemnitee for purposes of determining the right
to
indemnification under this Agreement or otherwise.
Section
6. Insurance
and Subrogation.
(a) The
Corporation may purchase and maintain insurance on behalf of Indemnitee who
is
or was or has agreed to serve at the request of the Corporation as a director
or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against, and incurred by, Indemnitee or on
Indemnitee’s behalf in any such capacity, or arising out of Indemnitee’s status
as such, whether or not the Corporation would have the power to indemnify
Indemnitee against such liability under the provisions of this Agreement. If
the
Corporation has such insurance in effect at the time the Corporation receives
from Indemnitee any notice of the commencement of a proceeding, the Corporation
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the policy. The
Corporation shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a
result of such proceeding in accordance with the terms of such
policy.
(b) In
the event of any payment by the Corporation under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee with respect to any insurance policy, who
shall
execute all papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Corporation
to bring suit to enforce such rights in accordance with the terms of such
insurance policy. The Corporation shall pay or reimburse all expenses actually
and reasonably incurred by Indemnitee in connection with such
subrogation.
(c) The
Corporation shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) if and to the extent that Indemnitee has otherwise actually received
such payment under this Agreement or any insurance policy, contract, agreement
or otherwise.
6
Section
7. Certain
Definitions. For purposes of this Agreement, the following definitions shall
apply:
(a) The
term “action, suit or proceeding” shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense,
settlement, arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative.
(b) The
term “expenses” shall be broadly and reasonably construed and shall include,
without limitation, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, all attorneys’ fees and related
disbursements, appeal bonds, other out-of-pocket costs and reasonable
compensation for time spent by Indemnitee for which Indemnitee is not otherwise
compensated by the Corporation or any third party, provided that the rate of
compensation and estimated time involved is approved in accordance with
Section 3(b)), actually and reasonably incurred by Indemnitee in connection
with either the investigation, defense or appeal of a proceeding or establishing
or enforcing a right to indemnification under this Agreement.
(c) The
term “judgments, fines and amounts paid in settlement” shall be broadly
construed and shall include, without limitation, all direct and indirect
payments of any type or nature whatsoever (including, without limitation, all
penalties and amounts required to be forfeited or reimbursed to the
Corporation), as well as any penalties or excise taxes assessed on a person
with
respect to an employee benefit plan).
Section
8. Limitation
on Indemnification. Notwithstanding any other provision herein to
the contrary, the Corporation shall not be obligated pursuant to this
Agreement:
(a) Claims
Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee with
respect to an action, suit or proceeding (or part thereof) initiated by
Indemnitee, except with respect to an action, suit or proceeding brought to
establish or enforce a right to indemnification (which shall be governed by
the
provisions of Section 8(b) of this Agreement), unless such action, suit or
proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
(b) Action
for Indemnification. To indemnify Indemnitee for any expenses incurred by
Indemnitee with respect to any action, suit or proceeding instituted by
Indemnitee to enforce or interpret this Agreement, unless Indemnitee is
successful in establishing Indemnitee’s right to indemnification in such action,
suit or proceeding, in whole or in part, or unless and to the extent that the
court in such action, suit or proceeding shall determine that, despite
Indemnitee’s failure to establish their right to indemnification, Indemnitee is
entitled to indemnity for such expenses; provided, however, that nothing in
this
Section 8(b) is intended to limit the Corporation’s obligation with respect to
the advancement of expenses to Indemnitee in connection with any such action,
suit or proceeding instituted by Indemnitee to enforce or interpret this
Agreement, as provided in Section 4 hereof.
7
(c) Section
16 Violations. To indemnify Indemnitee on account of any proceeding with
respect to which final judgment is rendered against Indemnitee for payment
or an
accounting of profits arising from the purchase or sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of
1934,
as amended, or any similar successor statute.
(d) Banking
Law. To indemnify Indemnitee to the extent that such
indemnification is not permitted pursuant to any applicable banking laws,
regulations, rules or policies including without limitation 12 U.S.C.
§1828(k) and 12 C.F.R. Part 359 or is prohibited by any banking
regulator with jurisdiction over the Corporation.
(e) Court
Prohibition. To indemnify Indemnitee to the extent that a final,
unappealable decision rendered by a court of competent jurisdiction finds that
paying such indemnification is prohibited by applicable law or determines that
the amount of indemnification claimed to be unreasonable.
Section
9. Mutual
Acknowledgment. The Corporation and Indemnitee acknowledge that, in certain
instances, federal law or public policy may override applicable state law and
prohibit the Corporation from indemnifying Indemnitee under this Agreement
or
otherwise. For example, the Corporation and Indemnitee acknowledge that the
Securities and Exchange Commission (the "SEC") has taken the position that
indemnification is not permissible for liabilities arising under certain federal
securities laws, and federal legislation prohibits indemnification for certain
ERISA violations. Furthermore, Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future
to
undertake with the SEC to submit the question of indemnification to a court
in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee. In addition, Indemnitee further
understands and acknowledges that applicable banking laws, regulations, rules
and policies could prohibit the Corporation from indemnifying Indemnitee under
this Agreement or otherwise with respect to expenses, liabilities and losses
incurred in connection with Indemnitee's service as a director, officer,
employee or agent of a depository institution or an entity controlled by a
depository institution.
Section
10. Certain
Settlement Provisions. The Corporation shall have no obligation
to indemnify Indemnitee under this Agreement for amounts paid in settlement
of
any action, suit or proceeding without the Corporation’s prior written consent,
which shall not be unreasonably withheld. The Corporation shall not
settle any action, suit or proceeding in any manner that would impose any fine
or other obligation on Indemnitee without Indemnitee’s prior written consent,
which shall not be unreasonably withheld. The Corporation shall not
enter into any settlement of any action, suit or proceeding in which the
Corporation is jointly liable with the Indemnitee unless such settlement
provides for a full and final release of all claims asserted against the
Indemnitee.
Section
11. Savings
Clause. If any provision or provisions of this Agreement shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee 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 Corporation, to the full extent permitted by any applicable portion
of this Agreement that shall not have been invalidated and to the full extent
permitted by applicable law.
8
Section
12. Contribution. In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for herein is finally adjudicated by a court of
competent jurisdiction to be unavailable to Indemnitee in whole or in part,
it
is agreed that, in such event, the Corporation shall, to the fullest extent
permitted by law, contribute to the payment of Indemnitee’s 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, in an amount that is just and
equitable in the circumstances, taking into account, among other things,
contributions by other directors and officers of the Corporation or others
pursuant to indemnification agreements or otherwise; provided, that, without
limiting the generality of the foregoing, such contribution shall not be
required where such holding by the court is due to (i) the failure of Indemnitee
to meet the indemnification standards, or (ii) any limitation on indemnification
set forth in Section 6(c), 8 or 10 hereof. The Corporation hereby
agrees to fully indemnify and hold the Indemnitee harmless from any claims
of
contribution which may be brought by officers, directors or employees of the
Corporation or of a subsidiary who may be jointly liable with the
Indemnitee.
Section
13. Form
and Delivery of Communications. Any notice, request or other
communication required or permitted to be given to the parties under this
Agreement shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified
or
registered mail, return receipt requested, postage prepaid, to the parties
at
the following addresses (or at such other addresses for a party as shall be
specified by like notice):
If
to the
Corporation:
Washington
Mutual, Inc.
0000
Xxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn:
Xxx
X. Xxxxxxx
Facsimile:
______________
If
to
Indemnitee:
_________________
_________________
_________________
Attn:
____________
Facsimile:
________
Section
14. Subsequent
Legislation. If the WBCA is amended after adoption of this Agreement to
expand further the indemnification permitted to directors, then the Corporation
shall indemnify Indemnitee to the fullest extent permitted by the WBCA, as
so
amended.
Section
15. Nonexclusivity. The
provisions for indemnification and advancement of expenses set forth in this
Agreement shall not be deemed exclusive of any other rights which Indemnitee
may
have under any provision of law, the Corporation’s Articles or Bylaws, in any
court in which a proceeding is brought, the vote of the Corporation’s
shareholders or disinterested directors, other agreements or otherwise, and
Indemnitee’s rights hereunder shall continue after Indemnitee has ceased acting
as an agent of the Corporation and shall inure to the benefit of the heirs,
executors and administrators of Indemnitee. However, no amendment or
alteration of the Corporation’s Articles or Bylaws or any other agreement shall
adversely affect the rights provided to Indemnitee under this
Agreement.
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Section
16. Enforcement. The
Corporation shall be precluded from asserting in any judicial proceeding that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Corporation agrees that its execution of this Agreement shall
constitute a stipulation by which it shall be irrevocably bound in any court
of
competent jurisdiction in which a proceeding by Indemnitee for enforcement
of
his rights hereunder shall have been commenced, continued or appealed, that
its
obligations set forth in this Agreement are unique and special, and that failure
of the Corporation to comply with the provisions of this Agreement will cause
irreparable and irremediable injury to Indemnitee, for which a remedy at law
will be inadequate. As a result, in addition to any other right or remedy
Indemnitee may have at law or in equity with respect to breach of this
Agreement, Indemnitee shall be entitled to injunctive or mandatory relief
directing specific performance by the Corporation of its obligations under
this
Agreement.
Section
17. Interpretation
of Agreement. It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification
to Indemnitee to the fullest extent now or hereafter permitted by
law.
Section
18. Entire
Agreement. This Agreement and the documents expressly referred to
herein constitute the entire agreement between the parties hereto with respect
to the matters covered hereby, and any other prior or contemporaneous oral
or
written understandings or agreements with respect to the matters covered hereby
are expressly superseded by this Agreement.
Section
19. Modification
and Waiver. 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 provision hereof (whether
or
not similar) nor shall such waiver constitute a continuing waiver.
Section
20. Successor
and Assigns. All of the terms and provisions of this Agreement,
together with all indemnification rights and benefits of the Indemnitee under
the Articles and the Bylaws, shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and their respective
successors, assigns, heirs, executors, administrators and legal representatives.
The Corporation shall require and cause any direct or indirect successor
(whether by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation, by written
agreement in form and substance reasonably satisfactory to Indemnitee, expressly
to assume and agree to perform this Agreement, and to honor the Indemnitee’s
rights and benefits under the Articles and the Bylaws, in the same manner and
to
the same extent that the Corporation would be so required if no such succession
had taken place.
10
Section
21. Service
of Process and Venue. For purposes of any claims or proceedings
to enforce this agreement, the Corporation consents to the jurisdiction and
venue of any federal or state court of competent jurisdiction in the State
of
Washington, and waives and agrees not to raise any defense that any such court
is an inconvenient forum or any similar claim.
Section
22. Supersedes
Prior Agreement. This Agreement supersedes any prior
indemnification agreement between Indemnitee and the Corporation or its
predecessors.
Section
23. Governing
Law. Except to the extent preempted by federal law, this
Agreement shall be governed by and construed in accordance to the laws of the
State of Washington, without giving effect to principles of conflicts of
law. If a court of competent jurisdiction shall make a final
determination that the provisions of the law of any state or jurisdiction other
than Washington govern indemnification by the Corporation of its directors,
then
the indemnification provided under this Agreement shall in all instances be
enforceable to the fullest extent permitted under such law, notwithstanding
any
provision of this Agreement to the contrary.
Section
24. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed to be an original and all of which together shall be deemed to be
one
and the same instrument, notwithstanding that both parties are not signatories
to the original or same counterpart.
Section
25. Headings.
The section and subsection headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN
WITNESS
WHEREOF, this Agreement has been duly executed and delivered to be effective
as
of the date first above written.
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WASHINGTON
MUTUAL, INC.
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By
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Name: | |
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Title: | |
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INDEMNITEE
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By
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Name: | |
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Title: Director | |
