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EXHIBIT
10.2
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 Bank, N.A., a national
banking association (“Bank”), and [ · ] (“Indemnitee”). Encore
Bancshares, Inc., a Texas corporation and registered bank holding
company under the Bank Holding Company Act of 1956, as amended
(“Bancshares”), is also executing this Agreement as
guarantor of the obligations under this Agreement of its
subsidiary, Encore Bank, N.A.
RECITALS
WHEREAS, Indemnitee is a
director and/or officer of the Bank and in such capacity is
performing valuable services for the Bank and the Bank 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 Bank to pursue
the Bank’s interests; and
WHEREAS, the Board of
Directors of the Bank has determined that it is in the best
interests of the Bank to retain Indemnitee’s services and to
provide insurance and indemnification (including advancement of
expenses) to Indemnitee against any and all liabilities asserted
against Indemnitee to the fullest extent permitted by the National
Bank Act and the Texas Business Organizations Code and any other
law (including statutory laws and laws established by judicial
decision) of the State of Texas, each subject 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 Bank and Indemnitee agree as
follows:
1. Continued Service .
Indemnitee will serve at the will of the Bank or under separate
contract, if such exists, as a director and/or officer of the Bank
for so long as Indemnitee is duly elected and qualified in
accordance with the bylaws of the Bank or until Indemnitee tenders
Indemnitee’s written resignation to the Bank. This Agreement
shall not be deemed an employment contract between the Bank (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 Bank.
2. Indemnification .
Subject to Section 19 of this Agreement, the Bank shall
indemnify Indemnitee as follows:
Indemnitee shall be indemnified and held
harmless by the Bank 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
Bank to provide broader indemnification rights than said law
permitted the Bank 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 or officer of the Bank but only if it is
determined in accordance with Section 5 of this Agreement
that:
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(ii) |
reasonably believed: |
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(1) |
in the case of conduct in his official capacity, that his
conduct was in the Bank’s best interests; and |
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(2) |
in all other cases, that his conduct was at least not opposed
to the Bank’s best interests; and |
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(iii) |
in the case of any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. |
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(b) |
with respect to expenses, the amount of expenses other than a
judgment is reasonable; and |
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(c) |
Indemnification should be paid. |
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 . Subject to Section 4 below, the Bank
shall indemnify Indemnitee under Section 2 above
against:
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(b) |
Expenses other than a judgment that are reasonable and actually
incurred by Indemnitee in connection with a proceeding. |
4. Extent of
Indemnification . If Indemnitee is found liable to the Bank or
is found liable on the basis that personal benefit was improperly
received by Indemnitee, the indemnification:
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(a) |
shall be limited to reasonable expenses actually incurred by
Indemnitee in connection with the proceeding; |
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(b) |
does not include a judgment, penalty, a fine, an excise tax or
similar tax, including an excise tax assessed against the person
with respect to an employee benefit plan; and |
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(c) |
may not be made in respect of any proceeding in which
Indemnitee shall have been found liable for: |
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(i) |
willful or intentional misconduct in the performance of
Indemnitee’s duty to the Bank. |
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(ii) |
breach of Indemnitee’s duty of loyalty owed to the Bank;
or |
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(iii) |
an act or omission not committed in good faith that constitutes
breach of a duty owed by Indemnitee to the Bank. |
For the purposes hereof, Indemnitee
shall be considered to have been found liable in relation to a
claim, issue or matter only if liability is established by an
order, including a judgment or decree of a court, and all appeals
of the order are exhausted or foreclosed by law.
The reasonableness of 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.
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 a majority vote of the Board of Directors of the Bank who at
the time of the vote are disinterested and independent; |
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(ii) |
if such quorum cannot be obtained, by a majority vote of a
committee of the Board of Directors of the Bank if the
committee: |
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(1) |
is designated by a majority vote of the directors who at the
time of the vote are disinterested and independent, regardless of
whether the directors who are disinterested and independent
constitute a quorum; and |
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(2) |
is comprised solely of one or more directors who are
disinterested and independent; |
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(iii) |
by special legal counsel selected by the Board of Directors of
the Bank or a committee of the Board of Directors of the Bank by
vote as set forth in paragraphs (a)(i) or (a)(ii) of this
Section 5, or, if such a quorum cannot be obtained or such a
committee cannot be established, by a majority vote of all
directors; or |
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(iv) |
the sole shareholder of the Bank. |
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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 Bank 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. |
If special legal counsel determines
under paragraph (a)(iii) of this Section 5 that
Indemnitee meets the standards under paragraph (a) of
Section 2 of this Agreement, the determination of whether
indemnification should be paid under paragraph (a)(iii) of
Section 2 of this Agreement must be made in a manner specified
by paragraphs (a)(i), (a)(ii), (a)(iv) or (a)(v) of this
Section 5.
6. Mandatory
Indemnification for Reasonable Expenses upon Successful Defense
. The Bank shall indemnify Indemnitee against reasonable expenses
incurred by him in connection with a proceeding in which he is a
respondent because he is or was a director or an officer of the
Bank 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 respondent in
a proceeding shall be paid or reimbursed by the Bank, in advance of
the final disposition of the pro
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