EXHIBIT 10.1
SOUTHWEST BANCORPORATION OF TEXAS,
INC.
DIRECTOR AND OFFICER INDEMNITY
AGREEMENT
This instrument
evidences an INDEMNITY AGREEMENT, effective as of December 31,
2004, made between Southwest Bancorporation of Texas, Inc., a Texas
corporation (“the Corporation”), and
(the “Indemnified Party”).
Recitals
WHEREAS, the
Indemnified Party is an officer or a member of the Board of
Directors of the Corporation and in such capacity is performing
valuable services for the Corporation and the Corporation wishes
the Indemnified Party to continue in such capacity and the
Indemnified Party is willing, under certain circumstances, to
continue in such capacity;
WHEREAS, the
Indemnified Party may from time to time serve as a director,
officer, employee, agent, or fiduciary of other corporations,
partnerships, joint ventures, trusts, or other enterprises,
entities, or plans at the request of the Corporation to pursue the
Corporation’s interests;
WHEREAS, the
Articles of Incorporation (“the Articles”) of the
Corporation provide for the mandatory indemnification of persons
serving as directors, officers, employees, and agents of the
Corporation or serving, at the request of the Corporation, as
directors, officers, partners, or trustees of another foreign or
domestic corporation, partnership, joint venture, trust or employee
benefit plan permitted by Section B of Section 2.02-1 of
the Texas Business Corporation Act (“the State
Statute”);
WHEREAS, in
accordance with the authorization provided by the State Statute,
the Corporation has purchased and will maintain a policy of
Directors’ and Officers’ Liability Insurance
(“D&O Insurance”) covering certain liabilities that
may be incurred by its directors and officers in the performance of
their services for the Corporation, possibly including certain
liabilities for which indemnification by the Corporation is not
authorized or permitted under the State Statute;
WHEREAS,
uncertainties with respect to the terms and availability of D&O
Insurance and with respect to the application, amendment, and
enforcement of statutory and by-law indemnification provisions make
it desirable to supplement and enhance the adequacy and reliability
of the protection afforded to directors and officers thereby;
and
WHEREAS, to
supplement and enhance the protection afforded the Indemnified
Party and to induce the Indemnified Party to continue to serve as a
member of the Board of Directors or as an officer or both of the
Corporation, the Corporation has determined and agreed to enter
into this Agreement with the Indemnified Party, which has been
approved and adopted by the Corporation’s Board of
Directors.
Agreement
NOW, THEREFORE, in
consideration of the Indemnified Party’s continued service as
a director or an officer or both of the Corporation after the date
hereof the parties hereto agree as follows:
Definitions . For purposes of this Agreement:
“Litigation
Costs” means costs, charges, expenses, and obligations,
including, without limitation, all bonds, expenses of
investigation, fees and expenses of experts, accountants or other
professionals, travel and lodging expenses, court costs, transcript
costs, duplicating costs, printing and binding costs, telephone
charges, postage, delivery fees, and attorneys’ fees,
retainers and expenses, reasonably incurred or contracted for in
the investigation, defense, or prosecution of or other involvement
in any Proceeding and any appeal therefrom, and all costs of
appeal, attachment, supersedeas, and other bonds that may be
relevant to any Proceeding. A determination of the reasonableness
of expenses shall be made pursuant to the procedure set forth in
Section 10(b).
“Losses”
means the total of all amounts which the Indemnified Party becomes,
or may become, legally obligated to pay in connection with any
Proceeding, including (without limitation) judgments, penalties
(including excise and similar taxes), fines, court or investigative
costs, amounts paid in settlement, amounts lost or ordered
forfeited pursuant to injunctive sanctions, and all Litigation
Costs.
“Proceeding”
means any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative,
or investigative, any appeal in such an action, suit or proceeding,
and any inquiry or investigation that could lead to such an action
suit or proceeding, whether formal or informal.
SECTION 1.
Indemnity of the Indemnified Party . The Corporation hereby
agrees to indemnify the Indemnified Party to the fullest extent
authorized or permitted by the provisions of the State Statute,
including, but not limited to, the maximum extent required or
permitted by any amendment thereof or other statutory provision
authorizing or permitting such indemnification which is adopted
after the date hereof.
SECTION 2.
Additional Indemnity . In addition to and not in
substitution for or diminution of the obligations of
indemnification set forth in Section 1 hereof, the Corporation
hereby further agrees to indemnify the Indemnified Party to the
fullest extent permitted by law against any and all Litigation
Costs and Losses of the Indemnified Party in connection with any
Proceeding to which the Indemnified Party is, was or at any time
becomes a party, or is threatened to be made a party or otherwise
becomes involved (other than as plaintiff except where being a
plaintiff or intervenor is necessary to avoid res judicata
or collateral estoppel or other estoppel or other result as to
matters which may adversely impact the Indemnified Party) by reason
of the fact that the Indemnified Party is, was, or at any time
becomes a director, officer, employee, agent, or fiduciary of the
Corporation, or is or was serving or at any time serves at the
request of the Corporation as a director, officer, employee, agent,
or fiduciary of
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another corporation, partnership,
joint venture, trust, or other enterprise or of any benefit plan
related to the business and affairs of the Corporation.
SECTION 3.
Limitations on Indemnity . No amounts of indemnity pursuant
to Section 1 or 2 hereof shall be paid by the
Corporation:
(a) except to
the extent permitted by the State Statute;
(b) for any
amounts of indemnity hereunder of any type whatsoever (including,
without limitation, judgments, fines, excise taxes and penalties,
and amounts paid in settlement) for which payment is actually made
to the Indemnified Party under a valid and collectible policy of
D&O Insurance, or under a valid and enforceable indemnity
clause, bylaw or other agreement, except in respect of any excess
beyond payment under such insurance, clause, bylaw, or
agreement;
(c) on
account of the Indemnified Party’s conduct which is finally
adjudged in any Proceeding to have been knowingly fraudulent,
deliberately dishonest, or an act or omission involving willful
misconduct;
(d) if a
final non-appealable decision by a court having jurisdiction over
the parties and the subject matter shall determine that such
indemnification is not lawful; or
(e) if such
indemnity is prohibited by Section 18(k) of the Federal Deposit
Insurance Act (12 U.S.C. §1828(k)) and the regulations
promulgated thereunder or any similar limitation imposed by state
or federal banking law or regulation.
SECTION 4.
Insurance . The Corporation shall maintain in full force and
effect, at its own expense, D&O Insurance coverage for each
director and officer in amounts and scope at least as favorable as
that maintained by the Corporation on the date hereof, or, to the
extent more favorable, any D&O Insurance policy entered into or
renewed by the Corporation after such date. Notwithstanding the
foregoing, if the Corporation, after using its best efforts, cannot
obtain and purchase such coverage for an amount no more than what
it paid for the most recent expiring D&O Insurance policy plus
a reasonable additional amount, the Corporation only shall be
required to purchase such D&O Insurance coverage for any act or
omission occurring at or prior to the time of such date.
SECTION 5.
Continuation of Indemnity . All agreements and obligations
of the Corporation contained herein shall continue during the
period the Indemnified Party is a director, officer, employee,
agent, or fiduciary of the Corporation (or is or was serving at the
request of the Corporation as a director, officer, employee, agent,
or fiduciary of another corporation, partnership, joint venture,
trust, or other enterprise or any benefit plan related to the
business and affairs of the Corporation or of any of its
affiliates, subsidiaries, associates, or other entities in which it
is interested) and shall continue thereafter so long as the
Indemnified Party shall be subject to any possible Litigation Costs
or Losses in any Proceeding or other loss or expense that such
Indemnified Party would be indemnified for pursuant to the State
Statue by reason of the fact that the Indemnified Party was a
director, officer, employee, agent, or fiduciary of the Corporation
(or is or was serving at the request of the Corporation as a
director, officer, employee, agent, or fiduciary of another
corporation, partnership, joint venture, trust, or other
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enterprise or any such benefit
plan); during such period, except as required by law, the
Corporation shall take no action to amend, eliminate, or terminate
any provisions in the Articles or the D&O Insurance that would
eliminate or limit the rights of the Indemnified Party to
exculpation, indemnity, right to reimbursement of expenses, or
other such similar protection.
SECTION 6.
Notification and Defense of Claim . Promptly after receipt
by the Ind
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