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EXHIBIT 10.10
Form of Indemnification Agreements dated December 14 and 15, 2005
by and between
Southwest Bancorp,
Inc. and each of Rick Green, Kerby E. Crowell, David Dietz,
Allen
Glenn, Steve Gobel, Steven N. Hadley, Jerry L. Lanier, Randy
Mills,
Kimberly Sinclair, Kay Smith, and Charles H. Westerheide, each
identical except
for the date and the name and title of the Indemnitee.
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the "Agreement"), made this ___th day of December
2005,
by and between Southwest Bancorp, Inc., a registered bank holding
company
("Southwest") and __________________________ ("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);
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(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.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein
contained, it is agreed as follows:
1. CERTAIN
DEFINITIONS. For the purposes of this Agreement:
(a)
"Expenses" shall mean
all expenses, including, without limitation,
legal and professional fees and expenses, actually and
reasonably
incurred by Indemnitee.
(b)
"Proceeding" shall
mean any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or
investigative.
(c)
"Southwest Subsidiary"
shall mean any corporation, partnership,
limited liability company, or other entity directly or
indirectly
controlled by Southwest.
2. SERVICES BY
INDEMNITEE; COOPERATION.
(a)
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).
(b)
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.
3.
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.
4.
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.
5. 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
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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.
6. 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.
7. ADVANCEMENT
OF EXPENSES.
(a)
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.
(b)
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.
(c)
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. 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:
(a)
The Board by a
majority vote of a quorum thereof consisting of
directors who were not parties to such Proceedings, or
(b)
Independent legal
counsel in a written opinion (which counsel shall be
appointed if such a quorum is not obtainable),
that the Indemnitee has not met the relevant standards for
indemnification set
forth in this agreement.
9. 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 go
