DIRECTOR INDEMNIFICATION
AGREEMENT
THIS AGREEMENT is entered into, effective as of [EFFECTIVE
DATE], between Wintrust Financial Corporation, an Illinois
corporation (the “Company”) and [NAME OF DIRECTOR]
(“Indemnitee”).
WHEREAS, it is essential to the Company to retain and
attract as directors the most capable persons available;
WHEREAS, Indemnitee is a director of the Company;
WHEREAS, both the Company and Indemnitee recognize the
increased risk of litigation and other claims currently being
asserted against directors of corporations; and
WHEREAS, in recognition of Indemnitee’s need for
substantial protection against personal liability in order to
enhance Indemnitee’s continued and effective service to the
Company, and in order to induce Indemnitee to provide continued
services to the Company as a director, the Company wishes to
provide in this Agreement for the indemnification of and the
advancing of expenses to Indemnitee to the fullest extent (whether
partial or complete) permitted by law and as set forth in this
Agreement and for the coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies.
NOW, THEREFORE, in consideration of the above premises and
of Indemnitee’s continuing to serve as a director of the
Company and intending to be legally bound hereby, the parties agree
as follows:
(a)
Board : The Board of Directors of the Company.
(b)
Change in Control : A Change in Control shall be deemed to
occur if:
(i)
any “person,” as such term is defined in
Section 3(a)(9) of the Securities Exchange Act of 1934 (the
“Exchange Act”), as modified and used in Section 13(d)
and 14(d) thereof (but not including (a) the Company or any of
its subsidiaries, (b) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its subsidiaries, (c) an underwriter temporarily holding
securities pursuant to an offering of such securities, or
(d) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company) (hereinafter a
“Person”) is or becomes the beneficial owner, as
defined in Rule 13d-3 of the Exchange Act, directly or indirectly,
of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly
from the Company or its affiliates, excluding an acquisition
resulting from the exercise of a conversion or exchange privilege
in respect of outstanding convertible or exchangeable securities)
representing 50% or more of the combined voting power of the
Company’s then outstanding securities; or
(ii)
during any period of two consecutive years beginning on the date
hereof, individuals who at the beginning of such period constitute
the Board and any new director (other than a director designated by
a Person who has entered into any agreement with the Company to
effect a transaction described in Clause (i), (iii) or
(iv) of this Section) whose election by the Board or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously
so approved (each such director, a “Continuing
Director”), cease for any reason to constitute a majority
thereof; or
(iii)
the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than (a) a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving or acquiring entity), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company,
at least 50% of the combined voting power of the voting securities
of the Company or such surviving or acquiring entity outstanding
immediately after such merger or consolidation, or (b) a
merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no Person acquires
more than 50% of the combined voting power of the Company’s
then outstanding securities; or
(iv)
the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets.
(c)
Disinterested Director : A director of the Company who is
not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d)
Expenses : Any expense, including without limitation,
attorneys’ fees, retainers, court costs, transcript costs,
fees and expenses of experts, including accountants and other
advisors, travel expenses, duplicating costs, postage, delivery
service fees, filing fees, and all other disbursements or expenses
of the types typically paid or incurred in connection with
investigating, defending, being a witness in, or participating
(including on appeal), or preparing for any of the foregoing, in
any Proceeding relating to any Indemnifiable Event, and any
expenses of establishing a right to indemnification under any of
Sections 2, 4 or 5 of this Agreement, in each case, to the
extent actually and reasonably incurred.
(e)
Indemnifiable Costs : Any cost that is eligible for
indemnification pursuant to applicable law, including, without
limitation, any and all Expenses, liability or loss, judgments,
fines and amounts paid in settlement and any interest, assessments,
or other charges imposed thereon, and any federal, state, local, or
foreign taxes imposed as a result of the actual or deemed receipt
of any payments under this Agreement.
(f)
Indemnifiable Event : Any event or occurrence that takes
place either prior to or after the execution of this Agreement,
related to the fact that Indemnitee is or was a director
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of the Company,
or while a director is or was serving at the request of the Company
as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise or related to anything done or
not done by Indemnitee in any such capacity, whether or not the
basis of the Proceeding is alleged action in an official capacity
as a director of the Company, or in any other capacity, as
described above.
(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 three years has been, retained to
represent: (i) the Company or any of its subsidiaries or
affiliates, (ii) the Indemnitee or (iii) any other party
to the Proceeding giving rise to a claim for indemnification or
Expense Advances hereunder, in any matter (other than with respect
to matters relating to indemnification and advancement of
expenses). No law firm or lawyer shall qualify to serve as
Independent Counsel if that person would, under the applicable
standards of professional conduct then prevailing, have a conflict
of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.
The Indemnitee shall select a law firm or member of a law firm to
serve as Independent Counsel, subject to the consent of the
Company, which consent shall not be unreasonably withheld. Subject
to the foregoing, any law firm or a member of a law firm in the Am
Law 200 shall be presumed to qualify as Independent Counsel. In the
event that the Indemnitee and the Company are unable to agree upon
the selection of the Independent Counsel, the parties shall first
try to settle the dispute by mediation under the Commercial
Mediation Rules of the American Arbitration Association. Any
dispute that cannot be resolved by mediation shall be finally
resolved by arbitration by the American Arbitration Association
under its Commercial Arbitration Rules. The fees for any such
dispute resolution procedure shall be borne by the
Company.
(h)
Proceeding : Any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative that relates to an Indemnifiable Event.
(i)
Reviewing Party : Reviewing Party shall have the meaning
ascribed to such term in Section 3.
2.
Agreement to Indemnify .
(a)
General Agreement regarding Indemnification . In the event
Indemnitee was, is, or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness
or other participant in, a Proceeding by reason of (or arising in
part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee from and against Indemnifiable Costs, to the fullest
extent permitted by applicable law, as the same exists or may
hereafter be amended or interpreted (but in the case of any such
amendment or interpretation, only to the extent that such amendment
or interpretation permits the Company to provide broader
indemnification rights than were permitted prior thereto); provided
that the Company’s commitment set forth in this Section 2(a)
to indemnify the Indemnitee shall be subject to the limitations and
procedural requirements set forth in this Agreement.
(b)
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for some or a portion of Indemnifiable Costs,
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but not,
however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
(c)
Advancement of Expenses . If so requested by Indemnitee, the
Company shall advance to Indemnitee, to the fullest extent
permitted by applicable law, any and all Expenses incurred by
Indemnitee (an “Expense Advance” or an
“Advance”) within 10 calendar days after the receipt by
the Company of a request from Indemnitee for an Advance, whether
prior to or after final disposition of any Proceeding. Indemnitee
shall, and hereby undertakes to, repay to the Company any funds
advanced to Indemnitee or paid on his or her behalf if it shall
ultimately be determined that Indemnitee is not entitled to
indemnification. Indemnitee shall make any such repayment promptly
following written notice of any such determination. Payment by the
Company of Indemnitee’s expenses in connection with any
Proceeding in advance of the final disposition thereof shall not be
deemed an admission by the Company that it shall ultimately be
determined that Indemnitee is entitled to indemnification. Any
request for an Expense Advance shall be accompanied by an
itemization of the Expenses for which advancement is sought, and a
reasonably detailed summary shall be provided if the Company so
requests. Advances shall be made without regard to
Indemnitee’s ability to repay the Expenses. If Indemnitee has
commenced legal proceedings in a court of competent jurisdiction in
the State of Illinois to secure a determination that Indemnitee
should be indemnified under applicable law, as provided in
Section 4, any determination made by the Reviewing Party 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 Company for any Expense Advance until a
final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or have
lapsed). Indemnitee’s obligation to reimburse the Company for
Expense Advances shall be unsecured and no interest shall be
charged thereon.
(d)
Exception to Obligation to Indemnify and Advance Expenses .
Notwithstanding anything in this Agreement to the contrary,
Indemnitee shall not be entitled to indemnification or advancement
pursuant to this Agreement in connection with any Proceeding
initiated by Indemnitee against the Company or any director or
officer of
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