Exhibit 10(b)
INDEMNIFICATION
AGREEMENT
THIS AGREEMENT (the "Agreement"), made this 22d day of June
2006, by and between Southwest Bancorp, Inc., a registered bank
holding company ("Southwest") and James M. Johnson a member of the
boards of directors of Southwest and Stillwater National Bank and
Trust Company (“Indemnitee").
W I T N E S S E T
H
WHEREAS
, it is essential
to Southwest to attract and retain as directors, officers, and
agents the most capable persons available.
WHEREAS
, the Board of
Directors of Southwest (the “Board”) and Indemnitee
recognize the increased risk of litigation and other claims being
asserted against directors and officers of public
corporations.
WHEREAS
, it has come to
the attention of the Board that in certain circumstances highly
competent persons have become more reluctant to serve publicly held
corporations as directors, officers, or agents unless they are
provided with adequate protection from the risk of liability due to
claims and actions against them arising out of their service to and
activities on behalf of such corporations.
WHEREAS
, the Board
understands that a delay in providing advancement of expenses or
uncertainty regarding the availability of indemnification may place
significant financial and other pressures on a director of
Southwest, which may cause such person to settle an action for
reasons other than its merits to the ultimate detriment of such
person and of Southwest, and, accordingly, Southwest and the
Indemnitee wish to ensure that any assertion that Indemnitee is not
entitled to indemnification, advancement of expenses, insurance, or
other rights provided hereunder is resolved in a timely manner,
such that Indemnitee is not subject to such undue pressure to
settle any actions because of the burden of legal costs and
potentially unindemnifiable liabilities.
WHEREAS
, the Board has
determined that it is in the best interests of Southwest to provide
contractual protection for Indemnitee in order to (i) enhance
Indemnitee’s continued service to Southwest in an effective
manner; (ii) encourage Indemnitee to resist what he considers
unjustifiable suits and claims made against the Indemnitee in
connection with the good faith performance of Indemnitee’s
duties to Southwest and its shareholders; and (iii) encourage
Indemnitee to exercise his or her best business judgment regarding
matters which come before the board of directors without undue
concern for the risk that claims may be made against Indemnitee
based on such actions.
WHEREAS,
Southwest and
Indemnitee wish to enter this agreement to establish such specific
contractual assurance (i) to ensure indemnification protection
provided by Southwest’s Certificate of Incorporation and
Bylaws will be available to Indemnitee (regardless of, among other
things, any amendment of or revocation of provisions in such
Certificate of Incorporation and Bylaws or any change in the
composition of the Board); (ii) to provide for the indemnification
of and the advancement of expenses to Indemnitee to the full extent
(whether partial or complete) permitted by law and as set forth in
this Agreement; and (iii) to the extent any insurance is
maintained, to provide for the continued coverage of Indemnitee
under Southwest’s directors’ and officers’
liability insurance policies.
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NOW,
THEREFORE , in consideration of the
premises and mutual covenants herein contained, it is agreed as
follows:
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1.
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Certain Definitions
. For the purposes
of this Agreement:
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(a)
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“Expenses” shall
mean all expenses, including, without limitation, legal and
professional fees and expenses, actually and reasonably incurred by
Indemnitee.
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(b)
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“Proceeding” shall
mean any threatened, pending, or completed action or proceeding,
whether civil, criminal, administrative, or
investigative.
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(c)
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“Southwest
Subsidiary” shall mean any corporation, partnership, limited
liability company, or other entity directly or indirectly
controlled by Southwest.
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2.
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Services by Indemnitee;
Cooperation .
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(a)
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Indemnitee agrees to serve or
continue to serve as a director of Southwest and, at its request,
as a director of certain other related corporations and entities so
long as he is duly elected or appointed or until such time as he
resigns in writing. Indemnitee may at any time and for any reason
resign from any such position (subject to any other contractual
obligation or any obligation imposed by operation of
law).
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(b)
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Indemnitee agrees to use
reasonable efforts to cooperate with Southwest in the investigation
and defense of any action or claim that is subject to
indemnification hereunder.
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3.
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Indemnification for Expenses
of a Party who is Wholly or Partly Successful.
To the extent that
Indemnitee is, by reason of his status with Southwest, a party to
and is successful in, on the merits or otherwise, any Proceeding,
he shall be indemnified against all Expenses in connection
therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one
or more but less than all claims, issues, or matters in such
Proceeding, Southwest shall indemnify Indemnitee against all
Expenses in connection with each successfully resolved claim,
issue, or matter. For the purposes of this Section 3 and without
limiting the foregoing, the termination of any claim, issue, or
matter in any such Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue, or matter except as prohibited by law.
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4.
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Indemnification of Expenses of
a Witness. In addition to the
Indemnitees other rights hereunder, to the extent that Indemnitee
is, by reason of his status with Southwest or any Southwest
Subsidiary, a witness in any Proceeding as to which he is not, and
is not threatened to be made, a party, he shall be indemnified
against all Expenses in connection therewith.
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5.
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Proceedings Other than
Proceedings by or in the Right of Southwest . Indemnitee shall be entitled
to the rights of indemnification provided in this Section 5 if, by
reason of his status with Southwest or a Southwest Subsidiary, he
is, or is threatened to be made, a party to any Proceeding, other
than a Proceeding by or in the right of Southwest. Pursuant to this
Section 5, Indemnitee shall be indemnified against Expenses and
against judgments, penalties, fines, and amounts paid in settlement
in connection with any such Proceeding, if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to,
the best interests of Southwest and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was
unlawful.
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6.
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Proceedings by or in the Right
of Southwest . Indemnitee shall be
entitled to the rights of indemnification provided in this Section
6 if, by reason of his status with Southwest or a Southwest
Subsidiary, he is, or is threatened to be made, a party to any
Proceeding brought by or in the right of Southwest to procure a
judgment in its favor. Pursuant to this Section 6, Indemnitee shall
be indemnified against Expenses in connection with any such
Proceeding if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of
Southwest. Notwithstanding the foregoing, no indemnification
against such Expenses shall be made in respect of any such
Proceeding as to which Indemnitee shall have been adjudged to be
liable to Southwest except to the extent, if any, that, the court
in which such Proceeding shall have been brought, upon application,
determines that despite the adjudication, but in view of all the
circumstance, he is fairly and reasonably entitled to
indemnification.
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7.
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Advancement of
Expenses.
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(a)
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Unless and until, and except
to the extent that, (i) a final determination has been made the
indemnification of Expenses pursuant to Sections 3, 4, 5, and 6 is
impermissible under applicable law, or (ii) Southwest obtains a
legal opinion of independent legal counsel that advancement of
Expenses is both expressly prohibited by applicable law and would
subject Southwest or the Board to possible legal sanctions,
Southwest shall advance all Expenses in connection with any
Proceeding within thirty (30) days after the receipt by Southwest
of a statement or statements from Indemnitee requesting such
advancement, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the expenses incurred by Indemnitee. For purposes of this Section
7(a), final determination shall mean an express determination by a
court of competent jurisdiction which is no longer subject to
possible or pending appeal or other form of review.
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(b)
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Southwest shall act promptly
and in good faith to conduct such investigation and consideration,
and, if warranted by such investigation and consideration, to make
and issue such determinations, as are necessary for advancement of
Expenses pursuant to 12 U.S.C. 1828(k) or applicable regulations
thereunder.
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(c)
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The Indemnitee hereby agrees
that he will repay expenses advanced, without interest, by the
later of 90 days after the termination of the Proceeding or thirty
(30) days after demand by Southwest, if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified
against such expenses.
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8.
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Payment of Indemnified
Amounts. Payment of all other amounts,
other than Advanced Expenses, shall be made no later than thirty
(30) days after receipt of the written request, of the Indemnitee
therefor, unless, in the case of an indemnification, a
determination is made within said thirty (30) day period
by:
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(a)
The Board by a majority vote of a quorum thereof consisting of
directors who were not parties to such Proceedings, or
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(b)
Independent legal counsel in a written opinion (which counsel shall
be appointed if such a quorum is not obtainable),
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Page 3 of 9
that the
Indemnitee has not met the relevant standards for indemnification
set forth in this agreement.
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9.
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Presumptions and Effects of
Certain Proceedings . The termination of any
Proceeding or of any claim, issue, or matter therein, by judgment,
order, settlement, or conviction, or upon plea of nolo
contendere or its equivalent, shall not (except as otherwise
expressly provided there or in this Agreement or mandated by
applicable law or regulation) of itself create a presumption that
Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to the best interests
of, Southwest or, with respec
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