INDEMNIFICATION AGREEMENT Dated as of December 15, 2004 between DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A. ("Downey Savings"), and ____________________________ ("Indemnitee")
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Exhibit 10.2
Dated as of December 15, 2004 between
XXXXXX SAVINGS AND LOAN ASSOCIATION, F.A. ("Xxxxxx Savings"), and
____________________________ ("Indemnitee")
WHEREAS, the Board of Directors has determined that the ability to attract and retain qualified persons as directors is essential to the best interests of Xxxxxx Savings and that Xxxxxx Savings should act to assure such persons that there will be adequate certainty of protection through insurance and indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of Xxxxxx Savings;
WHEREAS, 12 C.F.R. § 545.121 provides that a federal savings association shall indemnify its directors in accordance with the requirements set forth therein; and
WHEREAS, Xxxxxx Savings desires to have Indemnitee serve or continue to serve as a director of Xxxxxx Savings free from undue concern for unpredictable, inappropriate or unreasonable legal risks and personal liabilities by reason of Indemnitee acting in good faith and the performance of Indemnitee’s duties to Xxxxxx Savings, and Indemnitee desires to serve or continue to serve Xxxxxx Savings, provided, and on the express condition, that he or she is furnished with the indemnity set forth hereinafter.
Now, therefore, in consideration of Indemnitee’s service or continued service as a director of Xxxxxx Savings, the parties agree as follows:
1. Service by Indemnitee.
Indemnitee will serve and/or continue to serve as a director of Xxxxxx Savings faithfully and to the best of Indemnitee’s ability so long as Indemnitee is duly elected and until such time as Indemnitee is removed as permitted by law or tenders a resignation in writing. Nothing contained in this Indemnification Agreement shall give rise to any right of continued service.
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2. Indemnification.
Xxxxxx Savings shall indemnify Indemnitee to the fullest extent permitted by the Federal Deposit Insurance Act (12 U.S.C. § 1811, et seq.) and 12 C.F.R. § 545.121.
3. Advances to Pay Expenses.
If Indemnitee is a party or is threatened to be made a party or witness to an action because Indemnitee is or was a director of Xxxxxx Savings, then Xxxxxx Savings shall advance funds to pay all reasonable and necessary expenses incurred by Indemnitee at the request of Indemnitee, within thirty days after Xxxxxx Savings receives the request. The request must include reasonable proof of the expenses which Indemnitee has incurred and shall be accompanied by an undertaking, in the form of Exhibit A attached hereto, which shall obligate Indemnitee to reimburse the advances made by Xxxxxx Savings if it is finally determined that Indemnitee is not entitled to indemnification. Any advances to pay expenses shall not require pre-approval of the Board of Directors, so long as the other requirements in this Section 3 are satisfied.
4. Other Provisions.
(a) This Agreement shall be interpreted and enforced in accordance with the laws of the United States and applicable regulations.
(b) All agreements and obligations of Xxxxxx Savings contained herein shall continue during the period Indemnitee is a director of Xxxxxx Savings and shall continue thereafter with respect to any possible claims based on the fact that Indemnitee was a director of Xxxxxx Savings. This Agreement shall continue to be in full force and effect upon abrogation of any law or regulations requiring this indemnity, provided that Xxxxxx Savings and Indemnitee acknowledge that in certain instances, federal laws and regulations, affective orders issued by governmental agencies or applicable public policy may prohibit Xxxxxx Savings from indemnifying its directors under this Agreement or otherwise and Xxxxxx Savings intends to comply with such laws and regulations.
(c) No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall waiver constitute a continue of waiver.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
XXXXXX SAVINGS AND LOAN ASSOCIATION, F.A
By ____________________________________
Its ____________________________________
____________________________________
Indemnitee
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EXHIBIT A
UNDERTAKING
WHEREAS the undersigned has applied to Xxxxxx Savings and Loan Association, F.A. ("Xxxxxx Savings") for an advance to cover expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of an action or proceeding covered by an indemnification agreement or by-laws; and
WHEREAS Xxxxxx Savings will not and cannot advance expenses in the absence of an unconditional undertaking.
THE UNDERSIGNED HEREBY unconditionally undertakes to reimburse Xxxxxx Savings for all amounts advanced for reasonable costs incurred by the undersigned in defending a covered action or proceeding if it is ultimately determined by arbitration or the Delaware Court of Chancery that the undersigned is not entitled to be indemnified by Xxxxxx Savings as authorized by Section 145 of the Delaware General Corporation Law or by the Federal Deposit Insurance Act, 12 U.S.C. § 1811, et seq. The reimbursement will be provided within ten days of written notice that the Chancery Court or arbitration has determined the undersigned is not entitled to indemnity.
Executed at _________________ this _________ day of _____________ 200_.
__________________________________
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