EXHIBIT 10.10
INDEMNIFICATION AGREEMENT
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This Agreement is made as of the ______ day of ___________, 1997,
among Bank of the Ozarks, Inc. (formerly Ozark Bankshares, Inc.), an Arkansas
corporation (the "Corporation"), and _________________________ ("Indemnitee"),
with reference to the following facts:
RECITALS
A. Indemnitee is currently serving as an [Officer and Director] of
the Corporation and/or as an [Officer and Director] of subsidiaries of the
Corporation, and the Corporation wishes Indemnitee to continue in such capacity.
Indemnitee is willing, under certain circumstances, to continue in such
capacity.
B. The indemnities available under the Corporation's articles of
incorporation, bylaws and available insurance, if any, are not adequate to
protect the Indemnitee against the risks associated with his service to the
Corporation and/or to the Corporation's subsidiaries. Indemnitee may not be
willing to continue such service in the absence of the benefits afforded to
Indemnitee under this Agreement.
AGREEMENT
In order to induce Indemnitee to continue to serve as an [Officer and
Director] for the Corporation and/or any of its subsidiaries, and in
consideration for such continued service, the Corporation hereby agrees to
indemnify Indemnitee as follows:
1. The Corporation will pay on behalf of the Indemnitee and his
executors, administrators and heirs, any amount which he is or becomes legally
obligated to pay because of (i) any claim or claims from time to time threatened
or made against him by any Person (as defined herein) because of any act or
omission or neglect or breach of duty, including any actual or alleged error or
misstatement or misleading statement, which he commits or suffers while acting
in his capacity as a director of the Corporation or its subsidiaries or (ii)
being a party, or being 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 he is or was an
officer, director, employee or agent of the Corporation or its subsidiaries 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 or
other entity. The payments which the Corporation will be obligated to make
hereunder shall include, inter alia, damages, charges, judgments, fines,
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penalties, settlements and expenses, including attorneys' fees, costs of
investigation and costs of defense of legal or equitable or criminal actions,
claims or proceedings and appeals therefrom, and costs of attachment,
supersedeas, bail, surety or other bonds.
2. In the event of payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of 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 Corporation effectively
to bring suit to enforce such rights.
3. Notwithstanding the provisions of Section 1, the Corporation shall
not be liable under this Agreement to make any payment in connection with any
claim made against the Indemnitee:
(a) for which payment is actually made to the Indemnitee under a valid
and collectible insurance policy, except in respect of any excess beyond
the amount of payment under such insurance;
(b) for which the Indemnitee is entitled to indemnity and/or payment
by reason of having given notice of any circumstance which might give rise
to a claim under any policy of insurance, the terms of which have expired
prior to the effective date of this Agreement;
(c) for which the Indemnitee is indemnified by the Corporation
otherwise than pursuant to this Agreement;
(d) based upon or attributable to the Indemnitee gaining in fact any
remuneration, personal profit or advantage to which he was not legally
entitled;
(e) for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Corporation within the meaning of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any state statutory law or common law;
(f) brought about or contributed to by the dishonesty of Indemnitee;
however, notwithstanding the foregoing, Indemnitee shall be protected under
this Agreement as to any claims upon which suit may be brought against him
by reason of any alleged dishonesty on his part, unless a judgment or other
final adjudication thereof adverse to Indemnitee shall establish that he
committed acts of active and deliberate dishonesty with actual dishonest
purpose and intent which were material to the cause of action so
adjudicated; or
(g) if a final decision by a court having jurisdiction in the matter
shall determine that such payment is not lawful.
4. Contribution. If the indemnification provided hereunder is
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unavailable and may not be paid to Indemnitee for any reason other than those
set forth in paragraphs (a) through (f) of Section 3, then in respect of any
threatened, pending or completed action, suit or proceeding in which Corporation
is jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), Corporation shall contribute to the amount of damages, judgments,
fines, amounts paid in settlement and expenses paid or payable by Indemnitee in
such proportion as is
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appropriate to reflect (i) the relative benefits received by Corporation on the
one hand and Indemnitee on the other hand from the transaction from which such
action, suit or proceeding arose, and (ii) the relative fault of Corporation on
the one hand and of Indemnitee on the other in connection with the events which
resulted in such damages, judgments, fines, amounts paid in settlement and
expenses, as well as any other relevant equitable considerations. The relative
fault of corporation on the one hand and of Indemnitee on the other shall be
determined by reference to, among other things, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent the
circumstances resulting in such expenses, judgments, fines or settlement
amounts. Corporation agrees that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata allocation
or any other method of allocation which does not take account of the foregoing
equitable considerations.
5. Promptly after receipt by Indemnitee of notice of the commencement of
any action, suit or proceedings, Indemnitee will, if a claim in respect thereof
is to be made against Corporation under this Agreement, notify Corporation of
the commencement thereof; but the omission so to notify Corporation will not
relieve it from any liability which it may have to Indemnitee otherwise than
under this Agreement with respect to any such action, suit or proceedings as to
which Indemnitee notifies Corporation of the commencement thereof:
(a) Corporation will be entitled to participate therein at its own
expense;
(b) except as otherwise provided below, to the extent that it may
wish, Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from Corporation to Indemnitee of
its election so as to assume the defense thereof, Corporation will not be
liable to Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by Indemnitee in connection with the defense thereof
other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right to employ its counsel in such
action, suit or proceedings but the fees and expenses of such counsel
incurred after notice from Corporation of its assumption of the defense
thereof shall be at the expense of Indemnitee unless (i) the employment of
counsel by Indemnitee has been authorized by Corporation, (ii) Indemnitee
shall have reasonably concluded that there may be a conflict of interest
between Corporation and Indemnitee in the conduct of the defense of such
action or (iii) Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and
expenses of counsel shall be at the expense of Corporation. Corporation
shall not be entitled to assume the defense of any action, suit or
proceedings brought by or on behalf of Corporation or as to which
Indemnitee shall have made the conclusion provided for in (ii) above; and
(c) Corporation shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. Corporation shall not settle any
action or claim in any manner which would impose any penalty or limitation
on Indemnitee without Indemnitee's written
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consent. Neither Corporation or Indemnitee will unreasonably withhold its
consent to any proposed settlement.
6. In the event that Indemnitee employs his own counsel pursuant to
Section 5(b)(i) through (iii) above, Corporation shall advance to Indemnitee,
prior to any final disposition of any threatened or pending claim, action, suit
or proceedings, whether civil, criminal, administrative or investigative, any
and all reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such claim, action, suit or proceedings within
ten (10) days after receiving copies of invoices presented to Indemnitee for
such expenses. Indemnitee agrees that Indemnitee will reimburse Corporation for
all reasonable expenses paid by Corporation in defending any civil or criminal
claim, action, suit or proceedings against Indemnitee in the event and only to
the extent that a final decision by a court having jurisdiction in the matter
shall determine that it is unlawful for Indemnitee to be indemnified by
corporation for such expenses.
7. If Indemnitee is deceased and is entitled to indemnification under any
provision of this Agreement, the Corporation shall indemnify Indemnitee's estate
and his spouse, heirs, administrators and executors against, and the Corporation
shall assume any and all costs, charges and expenses (including attorneys'
fees), penalties and fines actually and reasonably incurred by or for Indemnitee
or his estate in connection with the investigation, defense, settlement or
appeal of any such action, suit or proceeding. Further, when requested in
writing by the spouse of Indemnitee and/or the heirs, executors or
administrators of Indemnitee's estate, the Corporation shall provide appropriate
evidence of the Corporation's agreement set out herein to indemnify Indemnitee
against and to assume itself such costs, charges, liabilities and expenses.
8. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the cost, charges
and expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement by him in the investigation, defense, appeal or settlement of such
suit, action or proceeding but not, however, for all of the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee as to the
portion thereof to which Indemnitee is entitled.
9. The indemnification and advance payment of expenses as provided by any
provision of this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may be entitled under any provision of law, any Policy (as
defined herein), the Corporation's articles of incorporation, any bylaw, this or
any other agreement, vote of stockholders or disinterested directors, or
otherwise, as to action in his official capacity, and shall continue after
Indemnitee has ceased to occupy such position and shall inure to the benefit of
the heirs, executors and administrators of Indemnitee.
10. This Agreement shall not be construed so as to give rise to a
"contractual liability" which is excluded by any Policy. Each and every term
hereof is enforceable by the Indemnitee solely as to amounts (i) in excess of
the limits of any Policy with respect to costs, charges and expenses (including
attorneys' fees), judgments, fines, penalties and amounts paid in settlement for
which coverage is in effect under any Policy and (ii) used under any Policy as a
"deductible"
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amount and (iii) which none of any Policy and the other liability insurance
policies of the Corporation clearly covers for the Indemnitee as insured
thereunder; however, in any case in which the Corporation believes a Policy or
its other insurance should cover a loss, cost or expense, the Corporation may
make a contingent advance of monies pursuant to the terms hereof without
admission, waiver or prejudice to its position that the Policy or the
Corporation's other insurance covers the loss, cost or expense.
11. The Corporation expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on Corporation hereby in
order to induce Indemnitee to continue with the Corporation and/or its
subsidiaries in the capacity or capacities as set forth in the recitals to this
Agreement, and acknowledges that Indemnitee is relying upon this Agreement in
continuing in such capacity or capacities. In the event Indemnitee is required
to bring any action to enforce rights or to collect monies due under this
Agreement and is successful in such action, Corporation shall reimburse
Indemnitee for all of Indemnitee's reasonable fees and expenses in bringing and
pursuing such action.
12. Unless the context otherwise clearly indicates to the contrary, the
following terms as used herein shall have the respective meanings set forth
below:
(i) "Person" means any one (or more) individual or natural person or
any one (or more) corporation, firm, joint venture, partnership,
proprietorship, business venture, government, governmental body, agency or
instrumentality, estate, trust, association or other legal entity
whatsoever or a group of same;
(ii) "Policy" shall refer to any insurance policy or coverage obtained
with respect of potential liabilities of directors and officers of the
Corporation.
13. Each of the provisions of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision hereof shall
be held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof.
14. This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Arkansas.
15. This Agreement shall be binding upon Indemnitee and upon Corporation,
its successors and assigns, and shall inure to the benefit of Indemnitee, his
heirs, personal representatives and assigns and to the benefit of Corporation,
its successors and assigns.
16. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing, signed by both parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
BANK OF THE OZARKS, INC.
(formerly Ozark Bankshares, Inc.)
By:_____________________________________
Xxxxxx X. Xxxxxxx, XX
Chairman and Chief Executive Officer
________________________________________
_____________________, Indemnitee
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