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Exhibit 10.1
DIRECTOR INDEMNIFICATION AGREEMENT
Indemnification Agreement (this " Agreement "), dated as
of
,
2009 between Bank of Hawaii Corporation, a Delaware corporation
(the " Company "), and
(" Indemnitee ").
RECITALS
A.
Indemnitee is a director of the Company and in such capacity is
performing valuable services to the Company.
B.
The Company’s Bylaws, as amended, provide for the
indemnification of the directors of the Company to the fullest
extent permitted by applicable law, including the General
Corporation Law of the State of Delaware (" DGCL ").
C.
The Bylaws, as amended, and the DGCL specifically provide that they
are not exclusive and thereby contemplate that contracts may be
entered into between the Company and the members of the Board of
Directors (the "Board") with respect to indemnification of such
directors.
D.
This Agreement is a supplement to and in furtherance of the
certificate of incorporation and bylaws of the Company, as amended,
and any resolutions adopted pursuant thereto, and the DGCL, and
shall not be deemed a substitute therefore, nor to diminish or
abrogate any rights of Indemnitee there under.
E.
In order to induce Indemnitee to serve or to continue to serve as a
director of the Company, the Company has entered into this
Agreement with Indemnitee.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
ARTICLE 1
Certain Definitions
(A) As used in this Agreement:
" agent " shall mean any person who is or was a director,
officer, or employee of the Company or a subsidiary of the Company
or other person authorized by the Company to act for the Company,
to include such person serving in such capacity as a director,
officer, employee, fiduciary or other official of another
corporation, partnership, limited liability company, joint venture,
trust or other Enterprise at the request of, for the convenience
of, or to represent the interests of the Company or a subsidiary of
the Company.
" Change in Control " shall be deemed to have occurred
upon the earliest to occur after the date of this Agreement of any
of the following events: (i) there shall have occurred
an event required to be reported with respect to the Company in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form) under
the Exchange Act, regardless of whether the Company is then subject
to such reporting requirement; (ii) any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) shall have become, without prior approval of the
Board, the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing 15% or more of the combined voting power of
the Company’s then outstanding voting securities (provided
that as used in this clause (ii), the term "person" shall exclude
the Company, a trustee or other fiduciary holding securities under
an employee benefit plan of the Company, and any corporation or
other entity owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of stock of the Company); (iii) the effective date
of a merger or consolidation of the Company with any other entity,
other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving or resulting entity) more than 51% of the combined
voting power of the voting securities of the surviving or resulting
entity outstanding immediately after such merger or consolidation
and with the power to elect at least a majority of the board of
directors or other governing body of such surviving or resulting
entity; (iv) all or substantially all the assets of the
Company are sold or otherwise disposed of in a transaction or
series of related transactions; (v) the approval by the
stockholders of the Company of a complete liquidation of the
Company or the sale or other disposition of all or substantially
all of the assets of the Company; or (vi) the individuals who
on the date hereof constitute the Board (including, for this
purpose, any new director whose election or nomination for election
by the Company’s stockholders was approved by a vote of at
least a majority of the directors then still in office who were
directors on the date hereof or whose election or nomination was so
approved) cease for any reason to constitute at least a majority of
the members of the Board.
" Corporate Status " means the status of a person who is
or was a director, officer, employee or agent of the Company or who
is or was serving at the request of the Company as a director,
officer, employee or agent of any other Enterprise.
" Disinterested Director " means a director of the
Company who is not and was not a party to the Proceeding in respect
of which indemnification or advancement of expenses is sought by
Indemnitee.
" Enterprise " means the Company and any corporation,
limited liability company, partnership, joint venture, trust,
employee benefit plan or other person or enterprise of which
Indemnitee is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary.
" Exchange Act " means the Securities Exchange Act of
1934, as amended.
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" Expenses " means all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel,
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 any
federal, state, local or foreign taxes imposed on Indemnitee as a
result of the actual or deemed receipt of any payments under this
Agreement) incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a
Proceeding. Expenses shall include Expenses incurred in
connection with any appeal resulting from any Proceeding including,
without limitation, the premium, security for and other costs
relating to any cost bond, supersedeas bond or other appeal bond or
its equivalent.
" Independent Counsel " means a law firm, or a member of
a law firm, that is experienced in matters of corporate law and
neither currently is, nor in the five years previous to its
selection or appointment has been, retained to represent
(i) the Company or Indemnitee in any matter material to either
such party (provided that acting as an Independent Counsel under
this Agreement or in a similar capacity with respect to any other
indemnification arrangements between the Company and its present or
former directors shall not be deemed a representation of the
Company or Indemnitee) or (ii) any other party to the
Proceeding giving rise to a claim for indemnification or
advancement of expenses 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 Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
" Liabilities " means all judgments, fines (including any
excise taxes assessed with respect to any employee benefit plan),
penalties and amounts paid in settlement and other liabilities
(including all interest, assessments and other charges paid or
payable in connection with or in respect of any such amounts)
arising out of or in connection with any Proceeding or any claim,
issue or matter therein; provided that Liabilities shall not
include any Expenses.
" person " means an individual, corporation, partnership,
limited liability company, association, trust, natural person or
any other entity or organization.
"Proceeding" includes any threatened, pending or
completed action, suit or other proceeding (which shall include an
arbitration or other alternate dispute resolution mechanism or an
inquiry, investigation or administrative hearing), whether civil,
criminal, administrative or investigative (whether formal or
informal) in nature (including any appeal therefrom) and whether
instituted by or on behalf of the Company or any other party, in
any such case, in which Indemnitee was, is or may be involved as a
party, potential party, non-party witness or otherwise by reason of
any Corporate Status of Indemnitee or by reason of any action taken
(or failure to act) by him or on his part while serving in any
Corporate Status (in each case, whether or not serving in such
capacity at the time any liability or expense is incurred for which
indemnification or advancement of expenses can be provided under
this Agreement), or any inquiry or investigation that Indemnitee in
good faith believes might lead to the institution of any such
action, suit or other proceeding; provided that Proceeding
shall not include an action, suit or other proceeding contemplated
by Section 8.06.
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(B) For the purposes of this Agreement:
References to the " Company " shall include, in addition
to the surviving or resulting corporation in any merger or
consolidation, any constituent corporation (including any
constituent of a constituent) absorbed in a merger or consolidation
which, if its separate existence had continued, would have had
power and authority to indemnify its directors, officers, employees
or agents, so that if Indemnitee is or was a director, officer,
employee or agent of such constituent corporation or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another entity, then
Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the surviving or resulting
corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had
continued.
References to " director, officer, employee or agent "
shall include, but not be limited to, a trustee, general partner,
managing member, fiduciary or board of directors’ committee
member.
References to " serving at the request of the Company "
shall include, but not be limited to, any service as a director,
officer, employee or agent of the Company or any other entity which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.
ARTICLE 2
Services By Indemnitee
Section 2.01. Services By Indemnitee.
Indemnitee hereby agrees to serve or continue to serve as a
director of the Company, for so long as Indemnitee is duly elected
or appointed or until Indemnitee tenders his resignation or is
removed. This Agreement shall not be deemed an employment
contract between the Company (or any of its subsidiaries or any
Enterprise) and Indemnitee. This Agreement shall continue in
force after Indemnitee has ceased to serve as a director of the
Company.
ARTICLE 3
Indemnification
Section 3.01. General. The Company
hereby agrees to and shall indemnify Indemnitee and hold Indemnitee
harmless, to the fullest extent permitted by applicable law, from
and against any and all Expenses and Liabilities actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with a Proceeding. The phrase "to the fullest extent
permitted by applicable law" shall include, to the fullest extent
permitted by the DGCL as in effect on the date of this Agreement,
and to the fullest extent authorized or permitted by any amendments
to or replacements of the DGCL adopted after the date of this
Agreement that increase the extent to which a corporation may
indemnify its officers and directors. The parties hereto
intend that this Agreement shall provide to the fullest extent
permitted by law for indemnification in excess of that expressly
permitted by statute, including, without limitation, any
indemnification provided by the Company’s certificate of
incorporation, bylaws, vote of its stockholders or disinterested
directors or applicable law.
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Section 3.02. Indemnification of Successful
Party . To the extent that Indemnitee is a party to (or a
participant in) and is successful, on the merits or otherwise, in
the defense of any Proceeding or any claim, issue or matter
therein, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or on his behalf
in connection therewith. If Indemnitee is successful, on the merits
or otherwise, as to one or more but less than all claims, issues or
matters in any Proceeding, the Company 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 and any claim, issue or matter related to each such
successfully resolved claim, issue or matter to the fullest extent
permitted by law. For purposes of this
Section 3.01(c) and without limitation, the termination
of any Proceeding or any claim, issue or matter in a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a
successful result as to such Proceeding, claim, issue or
matter.
Section 3.03. Exclusions.
Notwithstanding any provision of this Agreement to the contrary
(including Section 3.01 and Section 4.01), the Company
shall not be obligated under this Agreement to indemnify in
connection with:
(a) any claim made against Indemnitee (i) for an
accounting of profits made from the purchase and sale (or sale and
purchase) by Indemnitee of securities of the Company pursuant to
Section 16(b) of the Exchange Act or similar provisions
of state statutory law or common law or (ii) for reimbursement
to the Company of any bonus or other incentive-based or
equity-based compensation or of any profits realized by Indemnitee
from the sale of securities of the Company in each case as required
under the Exchange Act (including any such reimbursements that
arise from an accounting restatement of the Company pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002 (the
"Sarbanes-Oxley Act") or the payment to the Company of profits
arising from the purchase and sale by Indemnitee of securities in
violation of Section 306 of the Sarbanes-Oxley Act);
(b) except for an action, suit or other proceeding
contemplated by Section 8.06, any action, suit or other
proceeding (or part thereof) initiated by Indemnitee (including any
such action, suit or other proceeding (or part thereof) initiated
by Indemnitee against the Company or its directors, officers,
employees, agents or other indemnitees), unless (i) the Board
authorized the action, suit or other proceeding (or part thereof)
prior to its initiation or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers
vested in the Company under applicable law;
(c) any claim, issue or matter in a Proceeding by or in the
right of the Company to procure a judgment in its favor as to which
Indemnitee shall have been adjudged to be liable to the Company
unless and only to the extent the Delaware Chancery Court or the
court in which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view
of all circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which the
Delaware Chancery Court or such other court shall deem proper;
or
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(d) any claim made against Indemnitee for which payment has
actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect
to any excess beyond the amount paid under any insurance policy or
other indemnity provision.
ARTICLE 4
Advancement Of Expenses; Defense of
Claims
Section 4.01. Advances. Notwithstanding
any provision of this Agreement to the contrary the Company shall
advance, to the extent not prohibited by law, any Expenses incurred
by Indemnitee or on Indemnitee’s behalf in connection with a
Proceeding within 30 days after receipt by the Company of a written
request for advancement of expenses, which request may be delivered
to the Company at such time and from time to time as Indemnitee
deems appropriate in his sole discretion (whether prior to or after
final disposition of any such Proceeding). Advances shall be made
without regard to Indemnitee’s ability to repay such amounts
and without regard to Indemnitee’s ultimate entitlement to
indemnification under this Agreement or otherwise. Any such
advances shall be made on an unsecured basis and be interest
free. Advances shall include any and all reasonable Expenses
incurred pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding statements to
the Company to support the advances claimed. This
Section 4.01 shall not apply to any claim made by Indemnitee
for which indemnity is excluded pursuant to Article 3 of this
Agreement.
Section 4.02. Repayment of Advances or Other
Expenses. Indemnitee agrees that Indemnitee shall
reimburse the Company for all amounts advanced by the Company
pursuant to Section 4.01 if it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company for
such Expenses. Notwithstanding the foregoing, if Indemnitee seeks a
judicial adjudication or an arbitration pursuant to
Section 6.01(a), Indemnitee shall not be required to reimburse
the Company pursuant to this Section 4.02 until a final
determination (as to which all rights of appeal have been exhausted
or lapsed) has been made. The Indemnitee shall qualify for
advances upon the execution and delivery to the Company of this
Agreement, which shall constitute an undertaking providing that the
Indemnitee undertakes to repay the amounts advanced (without
interest) to the extent that it is ultimately determined that
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