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EXHIBIT
10.1
FORM OF
INDEMNITY
AGREEMENT
This Indemnity Agreement
(“Agreement”) is made and entered into as of the 6th
day of December, 2007 by and between Encore Bancshares, Inc., a
Texas corporation and registered bank holding company under the
Bank Holding Company Act of 1956, as amended (the
“Company”), and [ · ] (“Indemnitee”).
RECITALS
WHEREAS, Indemnitee is a
director and/or officer of the Company and in such capacity is
performing valuable services for the Company and the Company
desires Indemnitee to continue in such capacity and the Indemnitee
is willing, under certain circumstances, to continue in such
capacity; and
WHEREAS, Indemnitee may from
time to time serve as a director, officer, employee or agent of
other corporations, partnerships, joint ventures, trusts or other
enterprises, entities or plans at the request of the Company to
pursue the Company’s interests; and
WHEREAS, the Board of
Directors of the Company has determined that it is in the best
interests of the Company to retain Indemnitee’s services and
to provide indemnification (including advancement of expenses) to
Indemnitee against any and all liabilities asserted against
Indemnitee to the fullest extent permitted by the Texas Business
Corporation Act and any other law (including statutory laws and
laws established by judicial decision) of the State of Texas,
subject, however, to 12 U.S.C. § 1828(k) and the
rules and regulations promulgated thereunder (collectively, the
“Law”), as the Law presently exists or as may hereafter
be amended from time to time.
AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing premises, and for certain good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Indemnitee agree as
follows:
1. Continued Service .
Indemnitee will serve at the will of the Company or under separate
contract, if such exists, as a director and/or officer of the
Company for so long as Indemnitee is duly elected and qualified in
accordance with the bylaws of the Company or until Indemnitee
tenders Indemnitee’s written resignation to the Company. This
Agreement shall not be deemed an employment contract between the
Company (or any of its affiliates) and Indemnitee. This Agreement
shall continue is force after Indemnitee has ceased to serve as a
director or officer of the Company.
2. Indemnification .
Subject to Section 19, the Company shall indemnify Indemnitee
as follows:
Indemnitee shall be indemnified and held
harmless by the Company to the fullest extent authorized by the Law
as the same exist or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits
the Company to provide
broader indemnification rights than said
law permitted the Company to provide prior to such amendment), when
Indemnitee was, is or is threatened to be made a named defendant or
respondent in a proceeding by reason of the fact that Indemnitee is
or was a director, officer or employee of the Company but only if
it is determined in accordance with Section 5 of this
Agreement that Indemnitee:
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(a) |
conducted himself in good faith; |
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(i) |
in the case of conduct in his official capacity as a director,
officer, employee or agent of the Company, that his conduct was in
the Company’s best interests; and |
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(ii) |
in all other cases, that his conduct was at least not opposed
to the Company’s best interests; and |
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(c) |
in the case of any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. |
The termination of a proceeding by
judgment, order, settlement or conviction, or on a plea of nolo
contendere or its equivalent is not of itself determinative that
Indemnitee did not meet the requirements set forth in this
Section 2.
3. Limitation on
Indemnification . Except to the extent permitted by
Section 4 below, Indemnitee shall not be indemnified under
Section 2 above in respect of a proceeding:
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(a) |
in which Indemnitee is found liable on the basis that personal
benefit was improperly received by him, whether or not the benefit
resulted from an action taken in his official capacity;
or |
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(b) |
in which Indemnitee is found liable to the Company. |
For the purposes hereof, Indemnitee
shall be deemed to have been found liable in respect of any claim,
issue or matter only after the Indemnitee shall have been so
adjudged by a court of competent jurisdiction after exhaustion of
all appeals therefrom.
4. Extent of
Indemnification . If Indemnitee is entitled to indemnification
under Section 2 of this Agreement, the Company shall indemnify
Indemnitee against judgments, penalties (including excise and
similar taxes), fines, settlements and reasonable expenses actually
incurred by Indemnitee in connection with the proceeding; however,
if the Indemnitee is found liable to the Company or is found liable
on the basis that personal benefit was improperly received by
Indemnitee, the indemnification (1) shall be limited to
reasonable expenses actually incurred by Indemnitee in connection
with the proceeding, and (2) shall not be made in any manner
in respect of any proceeding in which Indemnitee shall have been
found liable for willful or intentional misconduct in the
performance of Indemnitee’s duty to the Company. The
reasonableness of the Indemnitee’s expenses contemplated in
this Section 4 shall be determined in the same manner that the
determination of indemnification is made under Section 5 of
this Agreement.
Page 2 of 8
5. Determination of
Indemnification .
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(a) |
A determination of whether Indemnitee is entitled to
indemnification under Section 2 of this Agreement shall be
made: |
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(i) |
by the Board of Directors of the Company by a majority vote of
a quorum consisting of directors who at the time of the vote are
not named defendants or respondents in the proceeding; |
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(ii) |
if such a quorum cannot be obtained, by a majority vote of a
committee of the Board of Directors, designated to act in the
matter by a majority vote of all directors, consisting solely of
two or more directors who at the time of the vote are not named
defendants or respondents in the proceeding; |
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(iii) |
by special legal counsel selected by the Board of Directors or
a committee of the Board of Directors by vote as set forth in
paragraphs (a)(i) or (a)(ii) of this Section 5, or, if such a
quorum cannot be obtained and such a committee cannot be
established, by a majority vote of all directors; or |
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(iv) |
by the shareholders in a vote that excludes the shares held by
directors who are named defendants or respondents in the
proceeding. |
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(b) |
The Board of Directors, special legal counsel or shareholders,
as the case may be, shall make such determination of
indemnification under paragraph (a) of this Section 5 in
accordance with the following procedure: |
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(i) |
Indemnitee may submit to the board of directors a sworn
statement of a Request for Indemnification, substantially in the
form of Exhibit A hereto, in which the Indemnitee requests
indemnification from the Company pursuant to this Agreement and
states that he has met the standard of conduct required for
indemnification under Section 2 of this Agreement. |
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(ii) |
The Indemnitee’s submission of a Request for
Indemnification to the Board of Directors shall create a rebuttable
presumption that the Indemnitee has met the requirements set forth
in Section 2 of this Agreement and, therefore, is entitled to
indemnification thereunder. The directors, special legal counsel or
shareholders, as the case may be, shall determine, within 30 days
after submission of the Request for Indemnification, specifically
that the Indemnitee is so entitled unless they or it possess clear
and convincing evidence to rebut the foregoing presumption, which
evidence shall be disclosed to the Indemnitee with
particularity. |
Page 3 of 8
6. Mandatory
Indemnification for Reasonable Expenses upon Successful Defense
. The Company shall indemnify Indemnitee against reasonable
expenses incurred by him in connection with a proceeding in which
he is a named defendant or respondent because he is or was a
director or an officer of the Company if he has been wholly
successful, on the merits or otherwise, in the defense of the
proceeding. The reasonableness of the Indemnitee’s expenses
contemplated in this Section 6 shall be determined in any
manner set forth in Section 5 of this Agreement.
7. Advancement of
Reasonable Expenses . Reasonable expenses incurred by
Indemnitee who was, is or is threatened to be made a named
respondent or defendant in a proceeding shall be paid or reimbursed
by the Company, in advance of the final disposition of the
proceeding, without the determination specified in Section 5
of this Agreement or the determination as to the reasonableness of
such expenses contemplated in Sections 3 and
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