EXHIBIT 10.12
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into
as of January 18, 2000 by and between Surety Bank, National
Association, a national banking association (the "Bank"), and
_______________ ("Indemnitee").
WITNESSETH THAT:
WHEREAS, Indemnitee performs a valuable service for the
Bank;
WHEREAS, the Board (as hereinafter defined) has adopted
Articles of Association (the "Articles") and Bylaws (the
"Bylaws") providing for the indemnification of the officers and
directors of the Bank to the maximum extent authorized by the
national banking laws, as amended ("Law");
WHEREAS, pursuant to Interpretative Ruling ss 7.2014 of the
Regulations of the Comptroller of the Currency ("Ruling ss
7.2014"), a national bank may only make or agree to make
indemnification payments to an officer or director of the bank
with respect to a Federal Proceeding (as hereinafter defined)
that are reasonable and consistent with the requirements of 12
USC 1828(k) of the Federal Deposit Insurance Act ("FDIA") and
the implementing regulations thereunder;
WHEREAS, pursuant to Ruling ss 7.2014, in all other cases
involving an administrative proceeding or civil action, a
national bank may indemnify an officer or director of the bank
for damages and expenses and legal fees, in accordance with the
law of the state in which the main office of the bank is
located, the law of the state in which the bank holding company
is incorporated, or the relevant provisions of the Model
Business Corporations Act (1984, as amended 1994, and as amended
thereafter) or Delaware General Corporation Law, Del. Code Xxx.
tit. 8 (1991, as amended 1994, and as amended thereafter)
provided such payments are consistent with sound banking
practices;
WHEREAS, the Bank has designated in its Bylaws the law of
the State of Delaware (the state in which the Bank's holding
company is incorporated) as the body of law selected for making
indemnification payments to an officer or director of the Bank
in all cases involving an administrative proceeding or civil
action other than a Federal Proceeding;
WHEREAS, the Articles, Bylaws and the Law, by their
nonexclusive nature, permit contracts between the Bank and the
officers or directors of the Bank with respect to
indemnification of such officers or directors;
WHEREAS, in accordance with the authorization as provided
by the Law, the Bank may purchase and maintain a policy or
policies of directors' and officers' liability insurance ("D & O
Insurance"), covering certain liabilities which may be incurred
by its officers or directors in the performance of their
obligations to the Bank; and
WHEREAS, in order to induce Indemnitee to continue to serve
as an officer or director of the Bank, the Bank has determined
and agreed to enter into this Agreement with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's service as
an officer or director after the date hereof, the parties hereto
agree as follows:
1. Indemnity of Indemnitee. The Bank hereby agrees to
hold harmless and indemnify Indemnitee to the full extent
authorized or permitted by the provisions of the Law, as such
may be amended from time to time, and Article Tenth of the
Articles and Article X of the Bylaws, as such may be amended.
In furtherance of the foregoing indemnification, and without
limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the
Right of the Bank. Indemnitee shall be entitled to the rights
of indemnification provided in this Section 1(a) if, by reason
of his Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to or participant in any
Proceeding (as hereinafter defined) other than a Proceeding by
or in the right of the Bank. Pursuant to this Section 1(a),
Indemnitee shall be indemnified against all Expenses (as
hereinafter defined), judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by him or on
his behalf in connection with such Proceeding or any claim,
issue or matter therein, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of the Bank and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was
unlawful.
(b) Proceedings by or in the Right of the Bank.
Indemnitee shall be entitled to the rights of indemnification
provided in this Section 1(b) if, by reason of his Corporate
Status, he is, or is threatened to be made, a party to or
participant in any Proceeding brought by or in the right of the
Bank. Pursuant to this Section 1(b), Indemnitee shall be
indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Bank; provided, however, that, if applicable
law so provides, no indemnification against such Expenses shall
be made in respect of any claim, issue or matter in such
Proceeding as to which Indemnitee shall have been adjudged to be
liable to the Bank unless and to the extent that the Court of
Chancery of the State of Delaware shall determine that such
indemnification may be made.
(c) Indemnification for Expenses of a Party Who is
Wholly or Partly Successful. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is,
by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be
indemnified to the maximum extent permitted by law against all
Expenses actually and reasonably incurred by him or on his
behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits
or otherwise, as to one or more but less than all claims, issues
or matters in such Proceeding, the Bank shall indemnify
Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Section
1(c) and without limitation, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
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2. Additional Indemnity and Limitations on Indemnity. In
addition to, and without regard to any limitations on, the
indemnification provided for in Section 1, the Bank shall and
hereby does indemnify and hold harmless Indemnitee against all
Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his
behalf if, by reason of his Corporate Status, he is, or is
threatened to be made, a party to or participant in any
Proceeding (including a Proceeding by or in the right of the
Bank), including, without limitation, all liability arising out
of the negligence or active or passive wrongdoing of Indemnitee.
The only limitations that shall exist upon the Bank's
obligations pursuant to this Agreement shall be that the Bank
shall not be obligated to make any payment to Indemnitee (i)
that is finally determined (under the procedures, and subject to
the presumptions, set forth in Sections 6 and 7 hereof) to be
unlawful under Delaware law, (ii) that is inconsistent with safe
and sound banking practices, and (iii) with respect to a Federal
Proceeding only, that is not reasonable and consistent with the
requirements of 12 USC 1828(k) of the FDIA and the implementing
regulations thereunder.
3. Contribution in the Event of Joint Liability.
(a) Whether or not the indemnification provided in
Sections 1 and 2 hereof is available, in respect of any
threatened, pending or completed action, suit or proceeding in
which the Bank is jointly liable with Indemnitee (or would be if
joined in such action, suit or proceeding), the Bank shall pay,
in the first instance, the entire amount of any judgment or
settlement of such action, suit or proceeding without requiring
Indemnitee to contribute to such payment and the Bank hereby
waives and relinquishes any right of contribution it may have
against Indemnitee. The Bank shall not enter into any
settlement of any action, suit or proceeding in which the Bank
is jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding) unless such settlement provides for
a full and final release of all claims asserted against
Indemnitee.
(b) Without diminishing or impairing the obligations
of the Bank set forth in the preceding subparagraph, if, for any
reason, Indemnitee shall elect or be required to pay all or any
portion of any judgment or settlement in any threatened, pending
or completed action, suit or proceeding in which the Bank is
jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), the Bank shall contribute to the
amount of expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred
and paid or payable by Indemnitee in proportion to the relative
benefits received by the Bank and all officers, directors or
employees of the Bank other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such action,
suit or proceeding), on the one hand, and Indemnitee, on the
other hand, from the transaction from which such action, suit or
proceeding arose; provided, however, that the proportion
determined on the basis of relative benefit may, to the extent
necessary to conform to law, be further adjusted by reference to
the relative fault of the Bank and all officers, directors or
employees of the Bank other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such action,
suit or proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the events that resulted in such
expenses, judgments, fines or settlement amounts, as well as any
other equitable considerations which the law may require to be
considered. The relative fault of the Bank and all officers,
directors or employees of the Bank other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on
the other hand, shall be determined by reference to, among other
things, the degree to which their actions were motivated by
intent to gain personal profit or advantage, the degree to which
their liability is primary or secondary, and the degree to which
their conduct is active or passive.
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(c) The Bank hereby agrees to fully indemnify and hold
Indemnitee harmless from any claims of contribution which may be
brought by officers, directors or employees of the Bank other
than Indemnitee who may be jointly liable with Indemnitee.
4. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, he
shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection
therewith.
5. Advancement of Expenses. Notwithstanding any other
provision of this Agreement, the Bank shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with any
Proceeding by reason of Indemnitee's Corporate Status within ten
(10) days after the receipt by the Bank of a statement or
statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition
of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and
shall include or be preceded or accompanied by an undertaking by
or on behalf of Indemnitee (a) to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses and (b) to
repay, with respect to a Federal Proceeding only, that portion
of the advances which subsequently become a Prohibited
Indemnification Payment (as hereinafter defined). Any advances
and undertakings to repay pursuant to this Section 5 shall be
unsecured and interest free. Notwithstanding the foregoing, the
obligation of the Bank to advance Expenses pursuant to this
Section 5 shall be subject to the condition that, if, when and
to the extent that the Bank determines that Indemnitee would not
be permitted to be indemnified under applicable law, the Bank
shall be entitled to be reimbursed, within thirty (30) days of
such determination, by Indemnitee (who hereby agrees to
reimburse the Bank) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the
Bank that Indemnitee would not be permitted to be indemnified
under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Bank for any advance of
Expenses until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed).
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6. Procedures and Presumptions for Determination of
Entitlement to Indemnification. It is the intent of this
Agreement to secure for Indemnitee rights of indemnity that are
as favorable as may be permitted under the law and public policy
of the State of Delaware. Accordingly, the parties agree that
the following procedures and presumptions shall apply in the
event of any question as to whether Indemnitee is entitled to
indemnification under this Agreement:
(a) To obtain indemnification (including, but not
limited to, the advancement of Expenses and contribution by the
Bank) under this Agreement, Indemnitee shall submit to the Bank
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
Secretary of the Bank shall, promptly upon receipt of such a
request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 6(a)
hereof, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall be made in the
specific case by one of the following three methods, which shall
be at the election of Indemnitee: (1) by a majority vote of the
Disinterested Directors, even though less than a quorum, or (2)
by Independent Counsel (as hereinafter defined) in a written
opinion, or (3) by the stockholders.
(c) If the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 6(b) hereof, the Independent Counsel shall be selected
as provided in this Section 6(c). The Independent Counsel shall
be selected by Indemnitee (unless Indemnitee shall request that
such selection be made by the Board). Indemnitee or the Bank,
as the case may be, may, within ten (10) days after such written
notice of selection shall have been given, deliver to the Bank
or to Indemnitee, as the case may be, a written objection to
such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of "Independent Counsel"
as defined in Section 13 of this Agreement, and the objection
shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written
objection is made and substantiated, the Independent Counsel
selected may not serve as Independent Counsel unless and until
such objection is withdrawn or a court has determined that such
objection is without merit. If, within twenty (20) days after
submission by Indemnitee of a written request for
indemnification pursuant to Section 6(a) hereof no Independent
Counsel shall have been selected and not objected to, either the
Bank or Indemnitee may petition the Court of Chancery of the
State of Delaware or other court of competent jurisdiction for
resolution of any objection which shall have been made by the
Bank or Indemnitee to the other's selection of Independent
Counsel and/or for the appointment as Independent Counsel of a
person selected by the court or by such other person as the
court shall designate, and the person with respect to whom all
objections are so resolved or the person so appointed shall act
as Independent Counsel under Section 6(b) hereof. The Bank
shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b) hereof, and the
Bank shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c), regardless of the manner in
which such Independent Counsel was selected or appointed.
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(d) In making a determination with respect to
entitlement to indemnification hereunder, the person or persons
or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement
if Indemnitee has submitted a request for indemnification in
accordance with Section 6(a) of this Agreement. Anyone seeking
to overcome this presumption shall have the burden of proof and
the burden of persuasion, by clear and convincing evidence.
(e) Indemnitee shall be deemed to have acted in good
faith if Indemnitee's action is based on the records or books of
account of the Enterprise (as hereinafter defined), including
financial statements, or on information supplied to Indemnitee
by the officers of the Enterprise in the course of their duties,
or on the advice of legal counsel for the Enterprise or on
information or records given or reports made to the Enterprise
by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Enterprise.
In addition, the knowledge and/or actions, or failure to act, of
any director, officer, agent or employee of the Enterprise shall
not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement. Whether or not
the foregoing provisions of this Section 6(e) are satisfied, it
shall in any event be presumed that Indemnitee has at all times
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Bank. Anyone
seeking to overcome this presumption shall have the burden of
proof and the burden of persuasion, by clear and convincing
evidence.
(f) If the person, persons or entity empowered or
selected under Section 6 to determine whether Indemnitee is
entitled to indemnification shall not have made a determination
within thirty (30) days after receipt by the Bank of the request
therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of
a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided, however, that such thirty (30)
day period may be extended for a reasonable time, not to exceed
an additional fifteen (15) days, if the person, persons or
entity making the determination with respect to entitlement to
indemnification in good faith requires such additional time for
the obtaining or evaluating documentation and/or information
relating thereto; and provided, further, that the foregoing
provisions of this Section 6(f) shall not apply if the
determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 6(b) of this Agreement and
if (A) within fifteen (15) days after receipt by the Bank of the
request for such determination the Board or the Disinterested
Directors, if appropriate, resolve to submit such determination
to the stockholders for their consideration at an annual meeting
thereof to be held within seventy five (75) days after such
receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within fifteen (15) days after
such receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after
having been so called and such determination is made thereat.
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(g) Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to
Indemnitee's entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged
or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such
determination. Any Independent Counsel, member of the Board, or
stockholder of the Bank shall act reasonably and in good faith
in making a determination under the Agreement of the
Indemnitee's entitlement to indemnification. Any costs or
expenses (including attorneys' fees and disbursements) incurred
by Indemnitee in so cooperating with the person, persons or
entity making such determination shall be borne by the Bank
(irrespective of the determination as to Indemnitee's
entitlement to indemnification) and the Bank hereby indemnifies
and agrees to hold Indemnitee harmless therefrom.
(h) The Bank acknowledges that a settlement or other
disposition short of final judgment may be successful if it
permits a party to avoid expense, delay, distraction, disruption
and uncertainty. In the event that any action, claim or
proceeding to which Indemnitee is a party is resolved in any
manner other than by adverse judgment against Indemnitee
(including, without limitation, settlement of such action, claim
or proceeding with or without payment of money or other
consideration) it shall be presumed that Indemnitee has been
successful on the merits or otherwise in such action, suit or
proceeding. Anyone seeking to overcome this presumption shall
have the burden of proof and the burden of persuasion, by clear
and convincing evidence.
(i) Anything herein to the contrary notwithstanding,
the determination with respect to entitlement by Indemnitee to
indemnification in connection with a Federal Proceeding shall be
subject to the following terms and conditions:
(1) the determination shall be made by the Board
in good faith and in writing after due investigation and
consideration that Indemnitee acted in good faith and in a
manner Indemnitee believed to be in the best interests of the
Bank and that the payment will not materially adversely affect
the Bank's safety and soundness;
(2) Indemnitee must agree in writing to reimburse
the Bank for that portion of the advanced indemnification
payments which subsequently become Prohibited Indemnification
Payments;
(3) Indemnitee shall not participate in any way
in the discussion and approval of such indemnification payments
by the Board, but Indemnitee may present Indemnitee's request to
the Board and respond to any inquiries from the Board concerning
Indemnitee's involvement in the circumstances giving rise to the
Federal Proceeding;
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(4) in the event that a majority of the members
of the Board are named as respondents in the Federal Proceeding
and request indemnification, the Disinterested Directors may
authorize Independent Counsel to review the indemnification
request and provide the Disinterested Directors with a written
opinion of counsel as to whether the conditions delineated in
Section 6(i) have been met and if Independent Counsel opines
that such conditions have been met, the Disinterested Directors
may rely on such opinion in authorizing the requested
indemnification;
(5) in the event that all of the members of the
Board are named as respondents in the Federal Proceeding and
request indemnification, the Board shall authorize Independent
Counsel to review the indemnification request and provide the
Board with a written opinion of counsel as to whether the
conditions delineated in Section 6(i) have been met and if
Independent Counsel opines that such conditions have been met,
the Board may rely on such opinion in authorizing the requested
indemnification; and
(6) to the extent not inconsistent with the terms
and provisions of this Section 6, the other terms and provisions
of this Agreement shall apply.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made
pursuant to Section 6 of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 5
of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 6(b) of
this Agreement within ninety (90) days after receipt by the Bank
of the request for indemnification, (iv) payment of
indemnification is not made pursuant to this Agreement within
ten (10) days after receipt by the Bank of a written request
therefor, or (v) payment of indemnification is not made within
ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination
is deemed to have been made pursuant to Section 6 of this
Agreement, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of his entitlement to such
indemnification. Indemnitee shall commence such proceeding
seeking an adjudication within one hundred eighty (180) days
following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 7(a). The
Bank shall not oppose Indemnitee's right to seek any such
adjudication.
(b) In the event that a determination shall have been
made pursuant to Section 6(b) of this Agreement that Indemnitee
is not entitled to indemnification, any judicial proceeding
commenced pursuant to this Section 7 shall be conducted in all
respects as a de novo trial, on the merits and Indemnitee shall
not be prejudiced by reason of that adverse determination under
Section 6(b).
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(c) If a determination shall have been made pursuant
to Section 6(b) of this Agreement that Indemnitee is entitled to
indemnification, the Bank shall be bound by such determination
in any judicial proceeding commenced pursuant to this Section 7,
absent a prohibition of such indemnification under applicable
law.
(d) In the event that Indemnitee, pursuant to this
Section 7, seeks a judicial adjudication of his rights under, or
to recover damages for breach of, this Agreement, or to recover
under any D & O Insurance policies maintained by the Bank, the
Bank shall pay on his behalf, in advance, any and all expenses
(of the types described in the definition of Expenses in Section
13 of this Agreement) actually and reasonably incurred by him in
such judicial adjudication, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advancement of expenses or insurance recovery.
(e) The Bank shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 7 that
the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court
that the Bank is bound by all the provisions of this Agreement.
8. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this
Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may at any time be entitled under applicable
law, the certificate of incorporation of the Bank, the Bylaws,
any agreement, a vote of stockholders or a resolution of
directors, or otherwise. No amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or
restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal.
To the extent that a change in the Law, whether by statute or
judicial decision, permits greater indemnification than would be
afforded currently under the Bylaws and this Agreement, it is
the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change.
No right or remedy herein conferred is intended to be exclusive
of any other right or remedy, and every other right and remedy
shall be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Bank maintains an insurance
policy or policies providing liability insurance for directors,
officers, employees, or agents or fiduciaries of the Bank or of
any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person
serves at the request of the Bank, 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 such
director, officer, employee or agent under such policy or
policies.
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(c) In the event of any payment under this Agreement,
the Bank 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 take all action necessary to secure such
rights, including execution of such documents as are necessary
to enable the Bank to bring suit to enforce such rights.
(d) The Bank shall not be liable under this Agreement
to make any payment of amounts otherwise indemnifiable hereunder
if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract,
agreement or otherwise.
9. Exception to Right of Indemnification. Notwithstanding
any other provision of this Agreement, Indemnitee shall not be
entitled to indemnification under this Agreement with respect to
any Proceeding brought by Indemnitee, or any claim therein,
unless (a) the bringing of such Proceeding or making of such
claim shall have been approved by the Board or (b) such
Proceeding is being brought by the Indemnitee to assert,
interpret or enforce his rights under this Agreement.
10. Duration of Agreement. All agreements and obligations
of the Bank contained herein shall continue during the period
Indemnitee is an officer or director of the Bank (or is or was
serving at the request of the Bank as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise) and shall continue
thereafter so long as Indemnitee shall be subject to any
Proceeding (or any proceeding commenced under Section 7 hereof)
by reason of his Corporate Status, whether or not he is acting
or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided
under this Agreement. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto
and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business or assets
of the Bank), assigns, spouses, heirs, executors and personal
and legal representatives. This Agreement shall continue in
effect regardless of whether Indemnitee continues to serve as an
officer or director of the Bank or any other Enterprise at the
Bank's request.
11. Security. To the extent requested by the Indemnitee
and approved by the Board, the Bank may at any time and from
time to time provide security to the Indemnitee for the Bank's
obligations hereunder through an irrevocable bank line of
credit, funded trust or other collateral. Any such security,
once provided to the Indemnitee, may not be revoked or released
without the prior written consent of the Indemnitee.
12. Enforcement.
(a) The Bank expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed
on it hereby in order to induce Indemnitee to serve as an
officer or director of the Bank, and the Bank acknowledges that
Indemnitee is relying upon this Agreement in serving as an
officer or director of the Bank.
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(b) This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
(a) "Board" means the Board of Directors of the Bank.
(b) "Corporate Status" describes the status of a
person who is or was a director, officer, employee or agent or
fiduciary of the Bank or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the express written
request of the Bank.
(c) "Disinterested Director" means a director of the
Bank who is not and was not a party to the Proceeding in respect
of which indemnification is sought by Indemnitee.
(d) "Enterprise" shall mean the Bank and any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise of which Indemnitee is or was serving
at the express written request of the Bank as a director,
officer, employee, agent or fiduciary.
(e) "Expenses" shall include all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, participating,
or being or preparing to be a witness in a Proceeding.
(f) "Federal Proceeding" means an administrative
proceeding or civil action initiated by a Federal banking
agency.
(g) "Independent Counsel" means a law firm, or a
member of a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past five
years has been, retained to represent: (i) the Bank or
Indemnitee in any matter material to either such party (other
than with respect to matters concerning the Indemnitee under
this Agreement, or of other indemnitees under similar
indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "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 Bank or Indemnitee in an
action to determine Indemnitee's rights under this Agreement.
The Bank agrees to pay the reasonable fees of the Independent
Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto.
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(h) "Proceeding" includes any threatened, pending or
completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding,
whether brought by or in the right of the Bank or otherwise and
whether civil, criminal, administrative or investigative, in
which Indemnitee was, is or will be involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a
director of the Bank, by reason of any action taken by him or of
any inaction on his part while acting as an officer or director
of the Bank, or by reason of the fact that he is or was serving
at the request of the Bank as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other Enterprise; in each case whether or not he is acting or
serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided
under this Agreement; including one pending on or before the
date of this Agreement; and excluding one initiated by an
Indemnitee pursuant to Section 7 of this Agreement to enforce
his rights under this Agreement.
(i) "Prohibited Indemnification Payment" means any
payment by the Bank for the benefit of Indemnitee to pay or
reimburse Indemnitee for any civil monetary payment or judgment
resulting from any Federal Proceeding or any other Expense with
regard to any Federal Proceeding which results in a final order
or settlement pursuant to which Indemnitee: (a) is assessed a
civil money penalty; (b) is removed from office or prohibited
from participating in the conduct of the affairs of the Bank; or
(c) is required to cease and desist from or take any affirmative
action described in Section 8(b) of the FDIA with respect to the
Bank. The term "Prohibited Indemnification Payment" does not
include any reasonable payment by 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 Indemnitee for the cost of any judgment or
civil money penalty assessed against Indemnitee in a Federal
Proceeding, but may pay any legal or professional expenses
incurred in connection with such a Federal Proceeding or the
amount of any restitution to the Bank or a receiver.
Additionally, the term "Prohibited Indemnification Payment" does
not include any reasonable payment by the Bank 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 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 Federal Proceeding has resulted in a
final prohibition order against Indemnitee.
14. Severability. If any provision or provisions of this
Agreement shall be held by a court of competent jurisdiction to
be invalid, void, illegal or otherwise unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability
of the remaining provisions of this Agreement (including without
limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent
permitted by law; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation,
each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.
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15. Modification and Waiver. No supplement, modification,
termination 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.
16. Notice By Indemnitee. Indemnitee agrees promptly to
notify the Bank in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be
subject to indemnification covered hereunder. The failure to so
notify the Bank shall not relieve the Bank of any obligation
which it may have to the Indemnitee under this Agreement or
otherwise unless and only to the extent that such failure or
delay materially prejudices the Bank.
17. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if (i) delivered by hand and receipted
for by the party to whom said notice or other communication
shall have been directed, or (ii) mailed by certified mail with
postage prepaid, on the third business day after the date on
which it is so mailed:
(a) If to Indemnitee, to the address set forth below
Indemnitee's signature hereto.
(b) If to the Bank, to:
Surety Bank, National Association
Attention: Chairman of the Board
0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
or to such other address as may have been furnished to
Indemnitee by the Bank or to the Bank by Indemnitee, as the case
may be.
18. Identical Counterparts. 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.
19. Headings. 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.
20. Governing Law. The parties agree that this Agreement
shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware without application of
the conflict of laws principles thereof.
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21. Gender. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
BANK: SURETY BANK, NATIONAL ASSOCIATION
By:_______________________________
INDEMNITEE: __________________________________
Address: ________________________
__________________________________
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