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Exhibit
10(a)
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the
"Agreement"), made this 24th day of August 2006, by and between
Southwest Bancorp, Inc., a registered bank holding company
("Southwest") and David S. Crockett, Jr. 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.
Page 1 of 9
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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Page 2 of
9
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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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Page 3 of
9
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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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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 respect
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