EXHIBIT 10.1
SOUTHWEST
BANCORPORATION OF TEXAS, INC.
DIRECTOR AND OFFICER
INDEMNITY AGREEMENT
This instrument evidences an
INDEMNITY AGREEMENT, effective as of December 31, 2004, made
between Southwest Bancorporation of Texas, Inc., a Texas
corporation (“the Corporation”), and
(the “Indemnified Party”).
Recitals
WHEREAS, the Indemnified Party is an
officer or a member of the Board of Directors of the Corporation
and in such capacity is performing valuable services for the
Corporation and the Corporation wishes the Indemnified Party to
continue in such capacity and the Indemnified Party is willing,
under certain circumstances, to continue in such capacity;
WHEREAS, the Indemnified Party may
from time to time serve as a director, officer, employee, agent, or
fiduciary of other corporations, partnerships, joint ventures,
trusts, or other enterprises, entities, or plans at the request of
the Corporation to pursue the Corporation’s interests;
WHEREAS, the Articles of
Incorporation (“the Articles”) of the Corporation
provide for the mandatory indemnification of persons serving as
directors, officers, employees, and agents of the Corporation or
serving, at the request of the Corporation, as directors, officers,
partners, or trustees of another foreign or domestic corporation,
partnership, joint venture, trust or employee benefit plan
permitted by Section B of Section 2.02-1 of the Texas
Business Corporation Act (“the State Statute”);
WHEREAS, in accordance with the
authorization provided by the State Statute, the Corporation has
purchased and will maintain a policy of Directors’ and
Officers’ Liability Insurance (“D&O
Insurance”) covering certain liabilities that may be incurred
by its directors and officers in the performance of their services
for the Corporation, possibly including certain liabilities for
which indemnification by the Corporation is not authorized or
permitted under the State Statute;
WHEREAS, uncertainties with respect
to the terms and availability of D&O Insurance and with respect
to the application, amendment, and enforcement of statutory and
by-law indemnification provisions make it desirable to supplement
and enhance the adequacy and reliability of the protection afforded
to directors and officers thereby; and
WHEREAS, to supplement and enhance
the protection afforded the Indemnified Party and to induce the
Indemnified Party to continue to serve as a member of the Board of
Directors or as an officer or both of the Corporation, the
Corporation has determined and agreed to enter into this Agreement
with the Indemnified Party, which has been approved and adopted by
the Corporation’s Board of Directors.
Agreement
NOW, THEREFORE, in consideration of
the Indemnified Party’s continued service as a director or an
officer or both of the Corporation after the date hereof the
parties hereto agree as follows:
Definitions . For purposes of
this Agreement:
“Litigation Costs” means
costs, charges, expenses, and obligations, including, without
limitation, all bonds, expenses of investigation, fees and expenses
of experts, accountants or other professionals, travel and lodging
expenses, court costs, transcript costs, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
fees, and attorneys’ fees, retainers and expenses, reasonably
incurred or contracted for in the investigation, defense, or
prosecution of or other involvement in any Proceeding and any
appeal therefrom, and all costs of appeal, attachment, supersedeas,
and other bonds that may be relevant to any Proceeding. A
determination of the reasonableness of expenses shall be made
pursuant to the procedure set forth in Section 10(b).
“Losses” means the total
of all amounts which the Indemnified Party becomes, or may become,
legally obligated to pay in connection with any Proceeding,
including (without limitation) judgments, penalties (including
excise and similar taxes), fines, court or investigative costs,
amounts paid in settlement, amounts lost or ordered forfeited
pursuant to injunctive sanctions, and all Litigation Costs.
“Proceeding” means any
threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit or proceeding,
and any inquiry or investigation that could lead to such an action
suit or proceeding, whether formal or informal.
SECTION 1. Indemnity of the
Indemnified Party . The Corporation hereby agrees to indemnify
the Indemnified Party to the fullest extent authorized or permitted
by the provisions of the State Statute, including, but not limited
to, the maximum extent required or permitted by any amendment
thereof or other statutory provision authorizing or permitting such
indemnification which is adopted after the date hereof.
SECTION 2. Additional
Indemnity . In addition to and not in substitution for or
diminution of the obligations of indemnification set forth in
Section 1 hereof, the Corporation hereby further agrees to
indemnify the Indemnified Party to the fullest extent permitted by
law against any and all Litigation Costs and Losses of the
Indemnified Party in connection with any Proceeding to which the
Indemnified Party is, was or at any time becomes a party, or is
threatened to be made a party or otherwise becomes involved (other
than as plaintiff except where being a plaintiff or intervenor is
necessary to avoid res judicata or collateral estoppel or
other estoppel or other result as to matters which may adversely
impact the Indemnified Party) by reason of the fact that the
Indemnified Party is, was, or at any time becomes a director,
officer, employee, agent, or fiduciary of the Corporation, or is or
was serving or at any time serves at the request of the Corporation
as a director, officer, employee, agent, or fiduciary of
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another corporation,
partnership, joint venture, trust, or other enterprise or of any
benefit plan related to the business and affairs of the
Corporation.
SECTION 3. Limitations on
Indemnity . No amounts of indemnity pursuant to Section 1
or 2 hereof shall be paid by the Corporation:
(a) except to the extent
permitted by the State Statute;
(b) for any amounts of indemnity
hereunder of any type whatsoever (including, without limitation,
judgments, fines, excise taxes and penalties, and amounts paid in
settlement) for which payment is actually made to the Indemnified
Party under a valid and collectible policy of D&O Insurance, or
under a valid and enforceable indemnity clause, bylaw or other
agreement, except in respect of any excess beyond payment under
such insurance, clause, bylaw, or agreement;
(c) on account of the
Indemnified Party’s conduct which is finally adjudged in any
Proceeding to have been knowingly fraudulent, deliberately
dishonest, or an act or omission involving willful misconduct;
(d) if a final non-appealable
decision by a court having jurisdiction over the parties and the
subject matter shall determine that such indemnification is not
lawful; or
(e) if such indemnity is
prohibited by Section 18(k) of the Federal Deposit Insurance Act
(12 U.S.C. §1828(k)) and the regulations promulgated
thereunder or any similar limitation imposed by state or federal
banking law or regulation.
SECTION 4. Insurance . The
Corporation shall maintain in full force and effect, at its own
expense, D&O Insurance coverage for each director and officer
in amounts and scope at least as favorable as that maintained by
the Corporation on the date hereof, or, to the extent more
favorable, any D&O Insurance policy entered into or renewed by
the Corporation after such date. Notwithstanding the foregoing, if
the Corporation, after using its best efforts, cannot obtain and
purchase such coverage for an amount no more than what it paid for
the most recent expiring D&O Insurance policy plus a reasonable
additional amount, the Corporation only shall be required to
purchase such D&O Insurance coverage for any act or omission
occurring at or prior to the time of such date.
SECTION 5. Continuation of
Indemnity . All agreements and obligations of the Corporation
contained herein shall continue during the period the Indemnified
Party is a director, officer, employee, agent, or fiduciary of the
Corporation (or is or was serving at the request of the Corporation
as a director, officer, employee, agent, or fiduciary of another
corporation, partnership, joint venture, trust, or other enterprise
or any benefit plan related to the business and affairs of the
Corporation or of any of its affiliates, subsidiaries, associates,
or other entities in which it is interested) and shall continue
thereafter so long as the Indemnified Party shall be subject to any
possible Litigation Costs or Losses in any Proceeding or other loss
or expense that such Indemnified Party would be indemnified for
pursuant to the State Statue by reason of the fact that the
Indemnified Party was a director, officer, employee, agent, or
fiduciary of the Corporation (or is or was serving at the request
of the Corporation as a director, officer, employee, agent, or
fiduciary of another corporation, partnership, joint venture,
trust, or other
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enterprise or any such
benefit plan); during such period, except as required by law, the
Corporation shall take no action to amend, eliminate, or terminate
any provisions in the Articles or the D&O Insurance that would
eliminate or limit the rights of the Indemnified Party to
exculpation, indemnity, right to reimbursement of expenses, or
other such similar protection.
SECTION 6. Notification and
Defense of Claim . Promptly after receipt by the Indemnified
Party of notice of the commencement of any Proceeding, the
Indemnified Party shall, if a claim in respect thereof is to be
made against the Corporation under this Agreement, give written
notice to the Corporation of the commencement thereof as promptly
as practicable; but the omission so to notify the Corporation
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