Exhibit 10.1


 


DIRECTOR INDEMNIFICATION AGREEMENT


 


Indemnification Agreement (this “Agreement”), dated as of
              ,
2009 between Bank of Hawaii Corporation, a Delaware corporation (the “Company”), and
                  
(“Indemnitee”).


 


RECITALS


 


A.            Indemnitee
is a director of the Company and in such capacity is performing valuable
services to the Company.


 


B.            The
Company’s Bylaws, as amended, provide for the indemnification of the directors
of the Company to the fullest extent permitted by applicable law, including the
General Corporation Law of the State of Delaware (“ DGCL ”).


 


C.            The
Bylaws, as amended, and the DGCL specifically provide that they are not
exclusive and thereby contemplate that contracts may be entered into between
the Company and the members of the Board of Directors (the “Board”) with
respect to indemnification of such directors.


 


D.            This
Agreement is a supplement to and in furtherance of the certificate of
incorporation and bylaws of the Company, as amended, and any resolutions adopted
pursuant thereto, and the DGCL, and shall not be deemed a substitute therefore,
nor to diminish or abrogate any rights of Indemnitee there under.


 


E.             In
order to induce Indemnitee to serve or to continue to serve as a director of
the Company, the Company has entered into this Agreement with Indemnitee.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and Indemnitee do
hereby covenant and agree as follows:


 


ARTICLE 1


 


Certain Definitions


 


(A) As used in this Agreement:


 


“agent”
shall mean any person who is or was a director, officer, or employee of the
Company or a subsidiary of the Company or other person authorized by the
Company to act for the Company, to include such person serving in such capacity
as a director, officer, employee, fiduciary or other official of another
corporation, partnership, limited liability company, joint venture, trust or
other Enterprise at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company.


 

















 


“Change
in Control” shall be deemed to have occurred upon the earliest to
occur after the date of this Agreement of any of the following events:  (i) there shall have occurred an event
required to be reported with respect to the Company in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) under the Exchange Act, regardless of whether the
Company is then subject to such reporting requirement; (ii) any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) shall have become, without prior approval of the Board, the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 15% or more of the
combined voting power of the Company’s then outstanding voting securities
(provided that as used in this clause (ii), the term “person” shall exclude the
Company, a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, and any corporation or other entity owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company); (iii) the
effective date of a merger or consolidation of the Company with any other
entity, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving or resulting entity)
more than 51% of the combined voting power of the voting securities of the
surviving or resulting entity outstanding immediately after such merger or
consolidation and with the power to elect at least a majority of the board of
directors or other governing body of such surviving or resulting entity; (iv) all
or substantially all the assets of the Company are sold or otherwise disposed
of in a transaction or series of related transactions; (v) the approval by
the stockholders of the Company of a complete liquidation of the Company or the
sale or other disposition of all or substantially all of the assets of the
Company; or (vi) the individuals who on the date hereof constitute the
Board (including, for this purpose, any new director whose election or
nomination for election by the Company’s stockholders was approved by a vote of
at least a majority of the directors then still in office who were directors on
the date hereof or whose election or nomination was so approved) cease for any
reason to constitute at least a majority of the members of the Board.


 


“Corporate
Status” means the status of a person who is or was a director,
officer, employee or agent of the Company or who is or was serving at the
request of the Company as a director, officer, employee or agent of any other
Enterprise.


 


“Disinterested
Director” means a director of the Company who is not and was not a
party to the Proceeding in respect of which indemnification or advancement of
expenses is sought by Indemnitee.


 


“Enterprise”
means the Company and any corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other person or enterprise of
which Indemnitee is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


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“Expenses”
means all reasonable costs and expenses (including, without limitation, fees
and expenses of counsel, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and any federal,
state, local or foreign taxes imposed on Indemnitee as a result of the actual
or deemed receipt of any payments under this Agreement) incurred in connection
with prosecuting, defending, preparing to prosecute or defend, investigating,
being or preparing to be a witness in, or otherwise participating in, a
Proceeding.  Expenses shall include
Expenses incurred in connection with any appeal resulting from any Proceeding
including, without limitation, the premium, security for and other costs
relating to any cost bond, supersedeas bond or other appeal bond or its
equivalent.


 


“Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporate law and neither currently is, nor in the
five years previous to its selection or appointment has been, retained to
represent (i) the Company or Indemnitee in any matter material to either
such party (provided that acting as an Independent Counsel under this Agreement
or in a similar capacity with respect to any other indemnification arrangements
between the Company and its present or former directors shall not be deemed a
representation of the Company or Indemnitee) or (ii) any other party to
the Proceeding giving rise to a claim for indemnification or advancement of
expenses hereunder.  Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee’s rights under this Agreement.


 


“Liabilities”
means all judgments, fines (including any excise taxes assessed with respect to
any employee benefit plan), penalties and amounts paid in settlement and other
liabilities (including all interest, assessments and other charges paid or
payable in connection with or in respect of any such amounts) arising out of or
in connection with any Proceeding or any claim, issue or matter therein; provided that Liabilities shall not
include any Expenses.


 


“person”
means an individual, corporation, partnership, limited liability company,
association, trust, natural person or any other entity or organization.


 


“Proceeding” includes any threatened, pending or
completed action, suit or other proceeding (which shall include an arbitration
or other alternate dispute resolution mechanism or an inquiry, investigation or
administrative hearing), whether civil, criminal, administrative or investigative
(whether formal or informal) in nature (including any appeal therefrom) and
whether instituted by or on behalf of the Company or any other party, in any
such case, in which Indemnitee was, is or may be involved as a party, potential
party, non-party witness or otherwise by reason of any Corporate Status of
Indemnitee or by reason of any action taken (or failure to act) by him or on
his part while serving in any Corporate Status (in each case, whether or not
serving in such capacity at the time any liability or expense is incurred for
which indemnification or advancement of expenses can be provided under this
Agreement), or any inquiry or investigation that Indemnitee in good faith
believes might lead to the institution of any such action, suit or other
proceeding; provided that
Proceeding shall not include an action, suit or other proceeding contemplated
by Section 8.06.


 


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(B) For the purposes of this
Agreement:


 


References to the “Company” shall include, in addition to the
surviving or resulting corporation in any merger or consolidation, any
constituent corporation (including any constituent of a constituent) absorbed
in a merger or consolidation which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that if Indemnitee is or was a director, officer, employee or agent
of such constituent corporation or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
entity, then Indemnitee shall stand in the same position under the provisions
of this Agreement with respect to the surviving or resulting corporation as
Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.


 


References to “director, officer, employee or agent” shall
include, but not be limited to, a trustee, general partner, managing member,
fiduciary or board of directors’ committee member.


 


References to “serving at the request of the Company”
shall include, but not be limited to, any service as a director, officer,
employee or agent of the Company or any other entity which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries.


 


ARTICLE 2


 


Services By Indemnitee


 


Section 2.01.  Services
By Indemnitee.  Indemnitee
hereby agrees to serve or continue to serve as a director of the Company, for so
long as Indemnitee is duly elected or appointed or until Indemnitee tenders his
resignation or is removed.  This
Agreement shall not be deemed an employment contract between the Company (or
any of its subsidiaries or any Enterprise) and Indemnitee.  This Agreement shall continue in force after
Indemnitee has ceased to serve as a director of the Company.


 


ARTICLE 3


 


Indemnification


 


Section 3.01.  General.  The Company hereby agrees to and shall
indemnify Indemnitee and hold Indemnitee harmless, to the fullest extent
permitted by applicable law, from and against any and all Expenses and
Liabilities actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with a Proceeding. The phrase “to the fullest extent
permitted by applicable law” shall include, to the fullest extent permitted by
the DGCL as in effect on the date of this Agreement, and to the fullest extent
authorized or permitted by any amendments to or replacements of the DGCL
adopted after the date of this Agreement that increase the extent to which a
corporation may indemnify its officers and directors.  The parties hereto intend that this Agreement
shall provide to the fullest extent permitted by law for indemnification in
excess of that expressly permitted by statute, including, without limitation,
any indemnification provided by the Company’s certificate of incorporation,
bylaws, vote of its stockholders or disinterested directors or applicable law.


 


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Section 3.02.   Indemnification of
Successful Party.  To the
extent that Indemnitee is a party to (or a participant in) and is successful,
on the merits or otherwise, in the defense of any Proceeding or any claim,
issue or matter therein, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is successful, on the merits or otherwise, as to one
or more but less than all claims, issues or matters in any Proceeding, the
Company shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter and any claim, issue or matter related to each such
successfully resolved claim, issue or matter to the fullest extent permitted by
law.  For purposes of this Section 3.01(c) and
without limitation, the termination of any Proceeding or any claim, issue or
matter in a Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such Proceeding, claim, issue or matter.


 


Section 3.03.  Exclusions.  Notwithstanding any provision of this
Agreement to the contrary (including Section 3.01 and Section 4.01),
the Company shall not be obligated under this Agreement to indemnify in
connection with:


 


(a) any claim made against
Indemnitee (i) for an accounting of profits made from the purchase and
sale (or sale and purchase) by Indemnitee of securities of the Company pursuant
to Section 16(b) of the Exchange Act or similar provisions of state
statutory law or common law or (ii) for reimbursement to the Company of
any bonus or other incentive-based or equity-based compensation or of any
profits realized by Indemnitee from the sale of securities of the Company in each
case as required under the Exchange Act (including any such reimbursements that
arise from an accounting restatement of the Company pursuant to Section 304
of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) or the payment to
the Company of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 306 of the Sarbanes-Oxley Act);


 


(b) except for an action, suit
or other proceeding contemplated by Section 8.06, any action, suit or
other proceeding (or part thereof) initiated by Indemnitee (including any such
action, suit or other proceeding (or part thereof) initiated by Indemnitee
against the Company or its directors, officers, employees, agents or other
indemnitees), unless (i) the Board authorized the action, suit or other
proceeding (or part thereof) prior to its initiation or (ii) the Company
provides the indemnification, in its sole discretion, pursuant to the powers
vested in the Company under applicable law;


 


(c) any claim, issue or matter
in a Proceeding by or in the right of the Company to procure a judgment in its
favor as to which Indemnitee shall have been adjudged to be liable to the
Company unless and only to the extent the Delaware Chancery Court or the court
in which such Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Chancery Court or such other court shall deem
proper; or


 


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(d) any claim made against
Indemnitee for which payment has actually been made to or on behalf of
Indemnitee under any insurance policy or other indemnity provision, except with
respect to any excess beyond the amount paid under any insurance policy or
other indemnity provision.


 


ARTICLE 4


 


Advancement Of Expenses; Defense of Claims


 


Section 4.01.  Advances.  Notwithstanding
any provision of this Agreement to the contrary
the Company shall advance, to the extent not prohibited by
law, any Expenses incurred by Indemnitee or on Indemnitee’s behalf in
connection with a Proceeding within 30 days after receipt by the Company of a
written request for advancement of expenses, which request may be delivered to
the Company at such time and from time to time as Indemnitee deems appropriate
in his sole discretion (whether prior to or after final disposition of any such
Proceeding). Advances shall be made without regard to Indemnitee’s ability to
repay such amounts and without regard to Indemnitee’s ultimate entitlement to
indemnification under this Agreement or otherwise. Any such advances shall be
made on an unsecured basis and be interest free.  Advances shall include any and
all reasonable Expenses incurred pursuing an action to enforce this right of
advancement, including Expenses incurred preparing and forwarding statements to
the Company to support the advances claimed. 
This Section 4.01 shall not apply to any claim made by Indemnitee
for which indemnity is excluded pursuant to Article 3 of this Agreement.


 


Section 4.02.  Repayment
of Advances or Other Expenses. 
Indemnitee agrees that Indemnitee shall reimburse the Company for
all amounts advanced by the Company pursuant to Section 4.01 if it is ultimately
determined that Indemnitee is not entitled to be indemnified by the Company for
such Expenses. Notwithstanding the foregoing, if Indemnitee seeks a judicial
adjudication or an arbitration pursuant to Section 6.01(a), Indemnitee
shall not be required to reimburse the Company pursuant to this Section 4.02
until a final determination (as to which all rights of appeal have been
exhausted or lapsed) has been made.  The
Indemnitee shall qualify for advances upon the execution and delivery to the
Company of this Agreement, which shall constitute an undertaking providing that
the Indemnitee undertakes to repay the amounts advanced (without interest) to
the extent that it is ultimately determined that Indemnitee is not entitled to
be indemnified by the Company.  No other
form of undertaking shall be required other than the execution of this
Agreement.


 


Section 4.03.  Defense
Of Claims.  The Company
will be entitled to participate in any Proceeding at its own expense. The
Company shall not settle any Proceeding (in whole or in part) which would
impose any Expense, Liability or limitation on Indemnitee without Indemnitee’s
prior written consent, such consent not to be unreasonably withheld. Indemnitee
shall not settle any Proceeding (in whole or in part) which would impose any
Expense, Liability or limitation on the Company without the Company’s prior
written consent, such consent not to be unreasonably withheld.


 


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ARTICLE 5


 


Procedures For Notification of and Determination of Entitlement To
Indemnification


 


Section 5.01.  Request
For Indemnification.


 


(a) Indemnitee shall notify
the Company in writing as soon as reasonably practicable (i) after being
served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or (ii) if the Company has
not been previously notified, after receipt of written notice of any other
matter with respect to which Indemnitee intends to seek indemnification or
advancement of expenses under Section 3.01 and Section 4.01.  The omission by Indemnitee to so notify the
Company will not relieve the Company from any liability which it may have to
Indemnitee (i) under this Agreement except and only to the extent  the Company can establish that such omission
to notify resulted in actual material prejudice to the Company or (ii) otherwise
than under this Agreement.


 


(b) Indemnitee may thereafter
deliver to the Company a written request for indemnification pursuant to this
Agreement at such time and from time to time as Indemnitee deems appropriate in
his sole discretion, which request shall also be deemed a request for
advancement of expenses under Section 4.01.  The written notification to the Company shall
include a description of the nature of the Proceeding and the facts underlying
the Proceeding.


 


Section 5.02.  Determination
of Entitlement.


 


(a) Except as otherwise
provided pursuant to Section 3.01(b) and Section 3.01(c), upon
the final disposition of the matter that is the subject of the request for
indemnification delivered pursuant to Section 5.01(b) and within 60
days after receipt by the Company of a written notice of request for
indemnification by Indemnitee, a determination shall be made with respect to
Indemnitee’s entitlement thereto in the specific case.  If a Change in Control shall not have
occurred, such determination shall be made (i) by a majority vote of the
Disinterested Directors or of a committee of Disinterested Directors designated
by a majority vote of the Disinterested Directors (in either case, even though
less than a quorum of the Board), (ii) if there are no Disinterested
Director or the Disinterested Directors so direct, by Independent Counsel or (iii) if
so directed by the Board, by the stockholders of the Company. If a Change in
Control shall have occurred, such determination shall be made by Independent
Counsel. Any determination made by Independent Counsel pursuant to this Section 5.02(a) shall
be in the form of a written opinion to the Board, a copy of which shall be
delivered to Indemnitee. Indemnitee shall reasonably


 


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cooperate with the person or
persons making such determination including providing to such person or persons
upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including fees and expenses of counsel) incurred by
Indemnitee in so cooperating with the person or persons making such
determination shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification), and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.


 


(b) If the determination is to
be made by Independent Counsel, such Independent Counsel shall be selected as
provided in this Section 5.02(b). If a Change in Control shall not have
occurred, the Independent Counsel shall be selected by the Board, and the
Company shall give written notice to Indemnitee advising him of the identity of
the Independent Counsel so selected. If a Change in Control shall have
occurred, the Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board, in which
event the preceding sentence shall apply), and Indemnitee shall give written
notice to the Company advising it of the identity of the Independent Counsel so
selected. In either case, the party receiving the notice may, within 10 days
after receipt thereof, deliver to the other a written objection to such
selection; provided that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in Article 1
of this Agreement, and the objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If a proper and timely
objection is made, the counsel selected may not serve as Independent Counsel
unless and until such objection is withdrawn or a court of competent
jurisdiction (or, at Indemnitee’s option pursuant to Section 6.01, an
arbitration) has determined that such objection is without merit. If, within 20
days after receipt by the Company of a request for indemnification pursuant to Section 5.01(b),
no Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition a court of competent jurisdiction (or, at
Indemnitee’s option pursuant to Section 6.01, an arbitration) for
resolution of any objection which shall have been made to the selection of
Independent Counsel and/or for the appointment of another person as Independent
Counsel, and the person with respect to whom all objections are so resolved or
the person so appointed shall act as Independent Counsel. The Company agrees to
pay the reasonable fees and expenses of any Independent Counsel appointed
pursuant to this Section and to indemnify such person against any and all
expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto except for gross negligence or
willful misconduct.


 


(c) If it is determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within 10 days after such determination.


 


Section 5.03.  Presumptions
and Burdens of Proof; Effect of Certain Proceedings.


 


(a) In making any
determination as to Indemnitee’s entitlement to indemnification hereunder,
Indemnitee shall, to the fullest extent not prohibited by law, be entitled to a
presumption that Indemnitee is entitled to indemnification under this Agreement
if Indemnitee has submitted a request for indemnification in accordance with Section 5.01,
and the Company


 


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shall, to the fullest extent not
prohibited by law, have the burdens of coming forward with evidence and of persuasion
to overcome that presumption.


 


(b) The termination of any
Proceeding or of any claim, issue or matter therein by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not of itself create a presumption that Indemnitee did not satisfy any
applicable standard of conduct to be indemnified pursuant to this Agreement.


 


(c) For purposes of any
determination of good faith, to the fullest extent permitted by law, Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Enterprise, as applicable, including
financial statements, or on information supplied to Indemnitee by the officers
of such entity in the course of their duties, or on the advice of legal counsel
for such entity or on information or records given or reports made to such
entity by an independent certified public accountant, appraiser or other expert
selected with reasonable care by such entity. 
The provisions of this Section 5.03(c) shall not be deemed to
be exclusive or to limit in any way other circumstances in which Indemnitee may
be deemed or found to have met any applicable standard of conduct to be
indemnified pursuant to this Agreement.


 


(d) The knowledge or actions or
failure to act of any director, officer, employee or agent of the Enterprise
other than Indemnitee shall not be imputed to Indemnitee for purposes of
determining Indemnitee’s right to indemnification under this Agreement.


 


(e) If a determination as to
Indemnitee’s entitlement to indemnification shall not have been made pursuant
to this Agreement within 60 days after the Company’s receipt of Indemnitee’s
notice of request for indemnification as provided in Section 5.02(a), the
requisite determination of entitlement to indemnification shall, to the fullest
extent not prohibited by law, be deemed to have been made in favor of
Indemnitee, and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement of a material fact in the information provided by Indemnitee
pursuant to Section 5.01(b) and Section 5.02(a) or an
omission of a material fact necessary in order to make the information provided not misleading, or (ii) a
prohibition of such indemnification under applicable law; provided that such
60-day period may be extended for a reasonable time, not to exceed an
additional 30 days, if the person or persons making the determination in good
faith requires such additional time to obtain or evaluate any documentation or
information relating thereto. Provided, further, that the
foregoing provisions of this Section 5.03(e) shall not apply (i) if
the determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 5.02(a) of this Agreement and if (A) within
fifteen (15) days after receipt by the Company of the request for such
determination the Board has resolved to submit such determination to the
stockholders for their consideration at an annual meeting thereof to be held
within seventy-five (75) days after such receipt and such determination is made
thereat, or (B) a special meeting of stockholders is called within fifteen
(15) days after such receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after having been so
called and such determination is made thereat, or (ii) if the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 5.02(b) of this Agreement.


 


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ARTICLE 6


 


Remedies of Indemnitee


 


Section 6.01.  Adjudication
or Arbitration.


 


(a) Indemnitee shall be
entitled to an adjudication (by a court of competent jurisdiction or, at
Indemnitee’s option, through an arbitration conducted by a single arbitrator pursuant
to the Commercial Arbitration Rules of the American Arbitration
Association) of any determination pursuant to Section 5.02 that Indemnitee
is not entitled to indemnification under this Agreement, or of any
determination that Indemnitee is not entitled to advancement of Expenses
pursuant to Article 4.  Any such
adjudication shall be conducted in all respects as a de novo trial or arbitration on the merits, and any prior
adverse determination shall not be referred to or introduced into evidence,
create a presumption that Indemnitee is not entitled to indemnification or
advancement of Expenses, be a defense or otherwise adversely affect Indemnitee.
In any such judicial proceeding or arbitration, the provisions of Section 5.03
(including the presumption in favor of Indemnitee and the burdens on the
Company) shall apply.


 


(b) Indemnitee shall also be
entitled to adjudication (by a court of competent jurisdiction or, at
Indemnitee’s option, through arbitration as described above) of any other
disputes under this Agreement.


 


(c) If a determination shall
have been made pursuant to Section 5.02 that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 6.01,
absent a misstatement of a material fact in the information provided by
Indemnitee pursuant to Section 5.01(b) and Section 5.02(a) or
an omission of a material fact necessary in order to make the information
provided not misleading, or a prohibition of such indemnification under
applicable law.


 


(d) In connection with any
judicial proceeding or arbitration commenced pursuant to this Section 6.01,
the Company shall, to the fullest extent not prohibited by law, not oppose
Indemnitee’s right to seek such adjudication, shall be precluded from asserting
that the procedures and presumptions of this Agreement are not valid, binding
or enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all of the provisions of this
Agreement.


 


ARTICLE 7


 


Directors’ and Officers’ Liability Insurance


 


Section 7.01.  D&O
Liability Insurance.


 


(a) The Company may obtain and
maintain a policy or policies of insurance (“D&O
Liability Insurance”) providing liability insurance for directors of
the Company in their capacities as such (and for any capacity in which any
director of the Company serves any other entity at the request of the Company),
in respect of acts or omissions occurring while serving in such capacity.


 


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(b) Indemnitee shall be
covered by the Company’s D&O Liability Insurance policies as in effect from
time to time in accordance with the applicable terms to the maximum extent of
the coverage available for any other director under such policy or policies.
The Company shall, promptly after receiving notice of a Proceeding as to which
Indemnitee is a party or a participant (as a witness or otherwise), give notice
of such Proceeding to the insurers under the Company’s D&O Liability
Insurance policies in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or
desirable actions to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms of
such policies. The failure or refusal of any such insurer to pay any such
amount shall not affect or impair the obligations of the Company under this
Agreement.


 


(c) Upon request by Indemnitee,
the Company shall provide to Indemnitee copies of the D&O Liability
Insurance policies as in effect from time to time. The Company shall promptly
notify Indemnitee of any material changes in such insurance coverage.


 


ARTICLE 8


 


Miscellaneous


 


Section 8.01.  Nonexclusivity
of Rights.  The rights of
indemnification and advancement of Expenses provided by this Agreement shall
not be deemed exclusive of any other rights to which Indemnitee may at any time
be entitled to under applicable law, the Company’s certificate of incorporation
or bylaws, any other agreement, any vote of stockholders or resolution of the
Board or otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. To the extent
that a change in Delaware law, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would be afforded
currently under this Agreement, it is the intent of the parties hereto that
Indemnitee shall be entitled under this Agreement to the greater benefits so
afforded by such change. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every right and remedy shall be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder or otherwise shall not prevent the
concurrent assertion or employment of any other right or remedy.


 


Section 8.02.  Subrogation,
etc.


 


(a) In the event of any
payment under this Agreement, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery of Indemnitee, who shall execute
all papers required and take all actions necessary to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.


 


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(b) The Company shall not be
liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder (or for which advancement is provided hereunder) if and
to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.


 


(c) The Company’s obligation
to indemnify or advance Expenses hereunder to Indemnitee who is or was serving
at the request of the Company as a director, officer, employee or agent of any
other entity shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of Expenses from such Enterprise.


 


Section 8.03.  Contribution.  To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee
or on his behalf, whether for Liabilities and/or Expenses in connection with a
Proceeding or other expenses relating to an indemnifiable event or transaction
under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such action, suit or other proceeding in
order to reflect the relative benefits received by the Company and Indemnitee
as a result of the event(s) and/or transaction(s) giving rise to such
action, suit or other proceeding; and/or the relative fault of the Company (and
its directors, officers, employees and agents) and Indemnitee in connection
with such event(s) and/or transaction(s).


 


Section 8.04.  Amendment.  This Agreement may not be modified,
supplemented, or amended except by a written instrument executed by or on
behalf of each of the parties hereto.


 


Section 8.05.  Waivers.  The observance of any term of this
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only by a writing signed by the party
against which such waiver is to be asserted. Unless otherwise expressly
provided herein, no delay on the part of any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party hereto of any right, power or
privilege hereunder operate as a waiver of any other right, power or privilege
hereunder nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.


 


Section 8.06.  Expenses.  The Company shall indemnify and hold
Indemnitee harmless from any and all costs and Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in seeking (whether through a
judicial proceeding or arbitration, including any appeal resulting therefrom or
otherwise) to enforce any rights against the Company for indemnification or
advancement of Expenses (whether under this Agreement or otherwise) or to
recover under any liability insurance policy maintained by any person for the
benefit of Indemnitee in connection with the performance of his duties for or
on behalf of the Company, in each case, whether or not Indemnitee is successful
(in whole or in part) with respect to his claims. The Company shall pay (or
reimburse Indemnitee for the payment of) any such costs or expenses within 20
days after receipt by the Company of a written request for the payment of such
amounts, which request may be delivered to the Company at such time or from
time to time


 


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as Indemnitee deems appropriate in
his sole discretion (whether prior to or after final disposition of any such
matter). Indemnitee shall have no obligation to reimburse any amounts paid by
the Company pursuant to this Section 8.06 unless it is finally determined
in a judicial proceeding or arbitration that the material assertions made by
Indemnitee in such proceeding were not made in good faith or were frivolous.


 


Section 8.07.  Entire
Agreement.  This Agreement
constitutes the entire agreement between the parties hereto with respect to the
matters covered herein and supersedes all prior oral or written understandings
or agreements with respect to the matters covered herein. This Section 8.07
shall not be construed to limit any other rights Indemnitee may have preserved
in Section 8.01.


 


Section 8.08.  Severability.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.


 


Section 8.09.  Notices.  All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) if delivered by hand or by courier and receipted
for by the party to whom said notice or other communication shall have been
directed, (b) if mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed or (c) if
sent by facsimile transmission and fax confirmation is received, on the next
business day following the date on which such facsimile transmission was sent.
Addresses for notice to either party are as shown on the signature page of
this Agreement, or such other address as any party shall have given by written
notice to the other party as provided above.


 


Section 8.10.  Binding
Effect.


 


(a) The Company expressly
confirms and agrees that it has entered into this Agreement and assumed the
obligations imposed on it hereby in order to induce Indemnitee to serve as a
director of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving as a director of the Company.


 


(b) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns, including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business and/or assets of the Company, heirs,
executors, administrators or other successors.


 


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The Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all or
substantially all or a substantial part of the business or assets of the
Company, by written agreement in the form and substance reasonably satisfactory
to Indemnitee, expressly to assume and agree to perform this Agreement in the
manner and to the same extent that the Company would be required to perform if
no such succession had taken place.


 


(c) The indemnification and
advancement of Expenses provided by this Agreement shall continue as to a
person who has ceased to be a director, officer, employee or agent or is
deceased and shall inure to the benefit of the heirs, executors, administrators
or other successors of the estate of such person.


 


Section 8.11.  Governing
Law.  This Agreement and
the legal relations among the parties hereto shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules.


 


Section 8.12.  Consent
To Jurisdiction.  Except
with respect to any arbitration commenced by Indemnitee pursuant to Section 6.01(a),
the Company and Indemnitee hereby irrevocably and unconditionally (i) agree
that any action, suit or other proceeding arising out of or in connection with
this Agreement shall be brought only in the Delaware Chancery Court and any
court to which an appeal may be taken in such action, suit or other proceeding
(the “Delaware Court”), and not in
any other state or federal court in the United States of America or any court
in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action, suit or other proceeding
arising out of or in connection with this Agreement, (iii) waive any
objection to the laying of venue of any such action, suit or other proceeding
in the Delaware Court, and (iv) waive, and agree not to plead or to make,
any claim that any such action, suit or other proceeding brought in the
Delaware Court has been brought in an improper or inconvenient forum.


 


Section 8.13.  Headings.  The Article and Section headings
in this Agreement are for convenience of reference only, and shall not be
deemed to alter or affect the meaning or interpretation of any provisions
hereof.


 


Section 8.14.  Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought
needs to be produced to evidence the existence of this Agreement.


 


Section 8.15.  Use of
Certain Terms.  As used in
this Agreement, the words “herein,” “hereof,” and “hereunder” and other words
of similar import refer to this Agreement as a whole and not to any particular
paragraph, subparagraph, section, subsection, or other subdivision. Whenever the
context may require, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.


 


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IN WITNESS WHEREOF, this Agreement
has been duly executed and delivered to be effective as of the date first above
written.


 


 


	
   

  	
  BANK OF HAWAII CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [INDEMNITEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
  Attention:

  



 


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