DIRECTOR INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT, dated
(the “Agreement”), is entered into between INDYMAC
BANCORP, INC., a Delaware corporation (the “Company”),
and
(“Indemnitee”) on the basis of the following
facts:
A. The Company
desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve as directors of the
Company and its subsidiaries and in other capacities with respect
to the Company, its subsidiaries and its other related
entities.
B. The statutes
and judicial decisions regarding the duties of directors and
persons serving corporations in other capacities are often
difficult to apply, ambiguous or conflicting, and therefore fail to
provide such persons with adequate knowledge of the legal risks to
which they are exposed or clear guidance regarding the appropriate
course of action in specific situations.
C. Highly
qualified and experienced persons are becoming more reluctant to
serve as directors of corporations or to serve corporations in
other capacities unless they are provided with adequate protection
through indemnification and insurance against the inordinate and
increasing risks, and costs of defense, of claims and litigation
against them arising out of their service to and activities on
behalf of the corporation.
D. The Company
and Indemnitee are aware that the costs of directors and officers
liability insurance has increased substantially, that the scope of
coverage provided by such insurance has been made subject to
exclusions of various types or otherwise reduced, and that these
trends are likely to continue.
E. The
Certificate of Incorporation and Bylaws of the Company provide that
the Company shall indemnify persons serving as directors of or in
other capacities with the Company or, at the request of the
Company, as directors of or in other capacities with another
corporation or entity to the maximum extent permitted by law and
further provide that the provisions regarding indemnification
contained in the Certificate of Incorporation and Bylaws are not
exclusive.
F. The Company
and Indemnitee desire to provide greater assurance and specificity
regarding the rights of Indemnitee to receive indemnification from
the Company, and advancement of litigation expenses, to the maximum
extent permitted by Delaware law and to have the benefit of
coverage by directors and officers liability insurance.
NOW, THEREFORE,
for good and valuable consideration, including Indemnitee’s
service as a director of the Company or its subsidiary, IndyMac
Bank, F.S.B., the Company and Indemnitee hereby agree as
follows:
SECTION 1.
INDEMNIFICATION .
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(a)
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General Indemnification
Rights . The
Company hereby agrees to indemnify Indemnitee to the fullest extent
permitted by law, whether or not such indemnification is
specifically authorized by the provisions of this Agreement, by the
Company’s Certificate of Incorporation or Bylaws, or by
statute. In the event of any change, after the date of this
Agreement, in any applicable law, statute or rule which has the
effect of expanding the right
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or obligation
of a Delaware corporation to indemnify a member of its board of
directors, such change shall be automatically deemed to be
incorporated into this Agreement and thereby to expand
Indemnitee’s rights and the Company’s obligations under
this Agreement. In the event of any change in any applicable law,
statute or rule which limits the right of a Delaware corporation to
indemnify a member of its board of directors, it is the intention
and agreement of the Company and Indemnitee that such change shall
not have any effect on this Agreement or the parties’ rights
and obligations hereunder.
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(b)
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Third Party Proceedings
. Without limiting the
generality of Section 1(a) of this Agreement, the Company shall
indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, including any alternative
dispute resolution mechanism, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Company or any
subsidiary of the Company, or by reason of the fact that Indemnitee
is or was serving at the request of the Company as a director,
officer, employee, consultant or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses, including reasonable attorneys’ fees, judgments,
fines, excise taxes and amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld or delayed) incurred by
Indemnitee in connection with such action, suit or proceeding
(including, but not limited to, the investigation, defense or
appeal thereof and obtaining indemnification from the Company with
respect thereto) if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal action
or proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal action
or proceeding, had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
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(c)
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Proceedings By or in the Right of
the Company . Without limiting the generality
of Section 1(a) of this Agreement, the Company shall indemnify
Indemnitee if Indemnitee was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding by or in the right of the Company or any subsidiary
of the Company to procure a judgment in its favor by reason of the
fact that Indemnitee is or was a director, officer, employee,
consultant or agent of the Company or any subsidiary of the
Company, or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including reasonable
attorneys’ fees, judgments and, to the fullest extent
permitted by law, amounts paid in settlement, incurred by
Indemnitee in connection with the defense or settlement of such
action or suit (including, but not limited to, the investigation,
defense or appeal thereof and obtaining indemnification from the
Company with respect thereto) if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged to be liable
to the Company, unless and only to the
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extent that the
Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery
of the State of Delaware or such other court shall deem
proper.
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(d)
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Mandatory Payment of
Expenses . To
the extent that Indemnitee has been required to serve as a witness
by the Company or any other party or has been successful, on the
merits or otherwise, including dismissal of an action or portion
thereof without prejudice, in the defense of any action, suit or
proceeding referred to in this Section 1, or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified
against the expenses, including reasonable attorneys’ fees,
incurred by Indemnitee in connection therewith.
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(e)
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Partial Indemnification
. If Indemnitee is
successful in the defense or settlement of only a portion of an
action, suit or proceeding, Indemnitee shall be entitled to
indemnification by the Company for the maximum portion of the
expenses, judgments, fines or penalties paid or incurred by
Indemnitee in the investigation, defense, appeal or settlement of
such action, suit or proceeding that may be reasonably attributed
or allocable to such successfully defended portion of such action,
suit or proceeding.
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SECTION 2.
ADVANCEMENT OF EXPENSES .
The Company
shall advance to Indemnitee all expenses, including reasonable
attorneys’ fees, incurred by Indemnitee in connection with
the investigation, defense, settlement or appeal of any civil or
criminal action, suit or proceeding referred to in Section 1
of this Agreement or in connection with any action, suit or
proceeding initiated by Indemnitee that is within the scope of
Section 6(a) of this Agreement. To the extent required by the
Delaware General Corporation Law as a condition to the advancement
of such expenses, Indemnitee hereby undertakes to repay such
amounts advanced if, and to the extent that, it shall ultimately be
determined in accordance with applicable law and this Agreement
that Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid
by the Company to Indemnitee within twenty (20) days following
delivery of each written request by Indemnitee to the Company
therefor, which requests shall not (except in extraordinary
circumstances) be made more frequently than monthly and shall be
accompanied by any applicable invoices or other reasonable
documentation of the expenses for which payment is requested by
Indemnitee; provided , that Indemnitee shall not in any
event be required to provide any information which is privileged or
otherwise protected from disclosure in connection
therewith.
SECTION 3.
PROCEDURES FOR INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
.
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(a)
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Notification by
Indemnitee. Indemnitee shall give the Company
notice in writing as soon as reasonably practicable of any claim
made against Indemnitee for which indemnification may be sought
under this Agreement; provided , that failure to give, or
delay in giving, such notice shall not affect Indemnitee’s
rights under this Agreement unless such failure or delay would
materially prejudice the Company.
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(b)
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Determination by the
Company .
Upon any written request by Indemnitee for indemnification, the
Company shall make a determination with respect to whether or not
Indemnitee has in the specific case met the standards of conduct
which make it permissible under applicable law for the Company to
indemnify Indemnitee. Such determination shall be made within sixty
(60) days after the Company’s receipt of
Indemnitee’s request for such determination by any of the
following procedures, which shall, except as provided in Section
3(f), be selected by the Company: (i) by a majority vote of
the Disinterested Directors (as hereinafter defined), even though
less than a quorum of the Company’s Board of Directors, or
(ii) by Independent Counsel (as hereinafter defined), selected
by the Company, in a written opinion to the Company’s Board
of Directors, a copy of which shall be delivered to Indemnitee, or
(iii) by the stockholders of the Company. 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 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 make such determination. Any costs or expenses,
including reasonable attorneys’ fees, incurred by Indemnitee
in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (whether or not it is
ultimately determined that Indemnitee is entitled to
indemnification) and the Company hereby indemnifies and agrees to
hold Indemnitee harmless therefrom.
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(c)
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Right of Indemnitee to Bring Action
for Indemnification or Advancement of Expenses
. Any indemnification
provided for in Section 1 of this Agreement shall be made no
later than sixty (60) days after the Company’s receipt
of Indemnitee’s written request therefor. If a claim for
indemnification, whether under this Agreement, any statute, any
provision of the Company’s Certificate of Incorporation or
Bylaws or otherwise, is not paid in full by the Company within
sixty (60) days after a written request for paym
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