FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of October 1,
1995, is made by and between STERLING WEST BANCORP, a California
corporation (the "Corporation"), and XXXXXXX X. XXXXX (the
"Indemnitee"), an officer of the Corporation.
RECITALS
A. The Corporation and the Indemnitee recognize that
the present state of the law is too uncertain to provide the
officers and directors of the Corporation or its subsidiaries with
adequate and reliable advance knowledge or guidance with respect to
the legal risks and potential liabilities to which they may become
personally exposed as a result of performing their duties for the
Corporation or its subsidiaries;
B. The Corporation and the Indemnitee are aware of the
substantial growth in the number of lawsuits filed against
corporate officers and directors in connection with their
activities in such capacities and by reason of their status as
such;
C. The Corporation and the Indemnitee recognize that
the cost of defending against such lawsuits, whether or not
meritorious, is typically beyond the financial resources of most
officers and directors of the Corporation or its subsidiaries;
D. The Corporation and the Indemnitee recognize that
the legal risks and potential liabilities, and the threat thereof,
associated with proceedings filed against the officers and
directors of the Corporation or its subsidiaries bear no reasonable
relationship to the amount of compensation received by such -
officers and directors;
E. The Corporation, after reasonable investigation
prior to the date hereof, has determined that the liability
insurance coverage available to the Corporation as of the date
hereof is inadequate, unreasonably expensive or both. The
Corporation believes, therefore, that the interest of the Corpora-
tion's shareholders would be best served by a combination of (i)
such insurance as the Corporation may obtain pursuant to the
Corporation's obligations hereunder and (ii) a contract with its
officers and directors and those of its subsidiaries, including the
Indemnitee, to indemnify them to the fullest extent permitted by
law (as in effect on the date hereof, or, to the extent any
amendment may expand such permitted indemnification, as hereafter
in effect) against personal liability for actions taken in the
performance of their duties to the Corporation or its subsidiaries;
F. Section 317 of the California General Corporation
Law empowers California corporations to indemnify their officers
and directors and individuals serving at the request of such
corporations as a director, officer, employee or agent of another
corporation, and further states that the indemnification provided
by Section 317 "shall not be deemed exclusive of any other rights
to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors,
or otherwise, to the extent the additional rights to
indemnification are authorized in the articles of the corporation";
thus, Section 317 does not by itself limit the extent to which the
Corporation may indemnify persons serving as officers and directors
of the Corporation or its subsidiaries;
G. The Corporation's Articles of Incorporation and
Bylaws authorize the indemnification of the officers and directors
of the Corporation, including individuals serving at the request of
the Corporation as an officer, employee or agent of another
corporation, in excess of that expressly permitted by Section 317,
subject to the limitations set forth in Section 204(a)(11) of the
California General Corporation Law;
H. The Board of Directors of the Corporation has
concluded that, to retain and attract talented and experienced
individuals to serve as officers and directors of the Corporation
or its subsidiaries and to encourage such individuals to take the
business risks necessary for the success of the Corporation and its
subsidiaries, it is necessary for the Corporation to contractually
indemnify officers and directors of the Corporation or its
subsidiaries, and to assume for itself liability for expenses and
damages in connection with claims against such officers and
directors in connection with their service to the Corporation or
its subsidiaries, and has further concluded that the failure to
provide such contractual indemnification could result in great harm
to the Corporation and its shareholders;
I. The Corporation desires and has requested the
Indemnitee to serve or continue to serve the Corporation and
certain of its subsidiaries, free from undue concern for the risks
and potential liabilities associated with such service; and
J. The Indemnitee is willing to serve, or continue to
serve, the Corporation and certain of its subsidiaries, provided,
and on the expressed condition, that he is furnished with the
indemnification provided for herein.
AGREEMENT
NOW, THEREFORE, the Corporation and Indemnitee agree as
follows:
1. Definitions.
(a) "Expenses" means, for the purposes of this
Agreement, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, any fees and
disbursements of Indemnitee's counsel, accountants and other
experts and other out-of-pocket costs) actually and reasonably
incurred by the Indemnitee in connection with the investigation,
preparation, defense or appeal of a Proceeding; provided, however,
that Expenses shall not include judgments, fines, penalties or
amounts paid in settlement of a Proceeding.
(b) "Proceeding" means, for the purposes of this
Agreement, any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or
investigative (including an action brought by or in the right of
the Corporation), in which Indemnitee may be or may have been
involved as a party or otherwise, by reason of the fact that
Indemnitee is or was an officer of the Corporation, by reason of
any action taken by him or of any inaction on his part while acting
as such officer or by reason of the fact that he is or was serving
at the request of the Corporation as a director, officer, employee
or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, or was a director and/or
officer of the foreign or domestic corporation which was a
predecessor corporation to the Corporation or of another enterprise
at the request of such predecessor corporation, whether or not he
is serving in such capacity at the time any liability or expense is
incurred for which indemnification or reimbursement can be provided
under this Agreement.
2. Agreement to Serve. Indemnitee agrees to serve or
continue to serve as an officer of the Corporation and an officer
and/or director of the Corporation's subsidiaries, as appropriate,
to the best of his abilities at the will of the Corporation and
such subsidiaries or under separate contract, if such contract
exists, for so long as Indemnitee is duly elected or appointed and
qualified or until such time as he tenders his resignation in
writing. Nothing contained in this Agreement is intended to create
in Indemnitee any right to continued employment.
3. Indemnification.
(a) Third-Party Proceedings. The Corporation shall
indemnify Indemnitee against Expenses, judgments, fines, penalties
or amounts paid in settlement (if the settlement is approved in
advance by the Corporation) actually and reasonably incurred by
Indemnitee in connection with a Proceeding (other than a Proceeding
by or in the right of the Corporation) if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in the
best interests of the Corporation or any of its subsidiaries, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee's conduct was unlawful. The
termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably
believed to be in the best interests of the Corporation or its
subsidiaries, or, with respect to any criminal Proceeding, had no
reasonable cause to believe that Indemnitee's conduct was unlawful.
(b) Proceedings By or in the Right of the Corporation.
To the fullest extent permitted by law, the Corporation shall
indemnify Indemnitee against Expenses and amounts paid in settle-
ment, actually and reasonably incurred by Indemnitee in connection
with a Proceeding by or in the right of the Corporation or any of
its subsidiaries to procure a judgment in its favor if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in the best interests of the Corporation or any of its
subsidiaries and their respective shareholders. Notwithstanding
the foregoing, no indemnification shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have been
adjudged liable to the Corporation or any of its subsidiaries in
the performance of Indemnitee's duty to the Corporation or any of
its subsidiaries and their respective shareholders, unless and only
to the extent that the court in which such action or proceeding is
or was pending shall determine upon application that, in view of
all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for expenses and then only to the
extent that the court shall determine.
(c) Scope. Notwithstanding any other provision of this
Agreement but subject to Section 14(b) hereof, the Corporation
shall indemnify the Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification is not specifically
authorized by other provisions of this Agreement, the Corporation's
Articles of Incorporation, the Corporation's Bylaws or by statute.
4. Limitations on Indemnification. Any other
provision herein to the contrary notwithstanding, the Corporation
shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Acts. To indemnify Indemnitee for any
acts or omissions or transactions from which an officer or director
may not be relieved of liability under Section 204 of the
California General Corporation Law;
(b) Claims Initiated by Indemnitee. To indemnify or
advance Expenses to Indemnitee with respect to Proceedings or
claims initiated or brought voluntarily by Indemnitee and not by
way of defense, except with respect to proceedings brought to
establish or enforce a right to indemnification under this
Agreement or any other statute or law or otherwise as required
under Section 317 of the California General Corporation Law, but
such indemnification or advancement of Expenses may be provided by
the Corporation in specific cases if the Board of Directors has
approved the initiation or bringing of such suit;
(c) Lack of Good Faith. To indemnify Indemnitee for
any Expenses incurred by the Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that
each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous;
(d) Insured Claims. To indemnify Indemnitee for
Expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) which have been paid directly to or on
behalf of Indemnitee by an insurance carrier under a policy of
directors' and officers' liability insurance maintained by the
Corporation or any of its subsidiaries or any other policy of
insurance maintained by the Corporation or any of its subsidiaries
or the Indemnitee; or
(e) Claims Under Section 16(b). To indemnify
Indemnitee for Expenses and the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as amended,
or any similar successor statute.
5. Determination of Right to Indemnification.
Upon receipt of a written claim addressed to the Board of
Directors for indemnification pursuant to Section 3, the
Corporation shall determine by any of the methods set forth in
Section 317(e) of the California General Corporation Law whether
Indemnitee has met the applicable standards of conduct which makes
it permissible under applicable law to indemnify Indemnitee. If a
claim under Section 3 is not paid in full by the Corporation within
ninety (90) days after such written claim has been received by the
Corporation, the Indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim
and, unless such action is dismissed by the court as frivolous or
brought in bad faith, the Indemnitee shall be entitled to be paid
also the expense of prosecuting such claim. The court in which
such action is brought shall determine whether Indemnitee or the
Corporation shall have the burden of proof concerning whether
Indemnitee has or has not met the applicable standard of conduct.
6. Advancement and Repayment of Expenses.
The Expenses incurred by Indemnitee in defending and
investigating any Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding within 30 days
after receiving from Indemnitee the copies of invoices presented to
Indemnitee for such Expenses, if Indemnitee shall provide an
undertaking to the Corporation to repay such amount to the extent
it is ultimately determined that Indemnitee is not entitled to
indemnification. In determining whether or not to make an advance
hereunder, the ability of Indemnitee to repay shall not be a
factor. Notwithstanding the foregoing, in a proceeding brought by
the Corporation directly, in its own right (as distinguished from
an action brought derivatively or by any receiver or trustee), the
Corporation shall not be required to make the advances called for
hereby if the Board of Directors determines, in its sole
discretion, that it does not appear that Indemnitee has met the
standards of conduct which make it permissible under applicable law
to indemnify Indemnitee and the advancement of Expenses would not
be in the best interests of the Corporation and its shareholders.
7. Partial Indemnification. If the Indemnitee is
entitled under any provision of this Agreement to indemnification
or advancement by the Corporation of some or a portion of any
Expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, penalties, and amounts paid in
settlement) incurred by him in the investigation, defense,
settlement or appeal of a Proceeding, but is not entitled to
indemnification or advancement of the total amount thereof, the
Corporation shall nevertheless indemnify or pay advancements to the
Indemnitee for the portion of such Expenses or liabilities to which
the Indemnitee is entitled.
8. Notice to Corporation by Indemnitee. Indemnitee
shall notify the Corporation in writing of any matter with respect
to which Indemnitee intends to seek indemnification hereunder as
soon as reasonably practicable following the receipt by Indemnitee
of written notice thereof; provided that any delay in so notifying
Corporation shall not constitute a waiver by Indemnitee of his
rights hereunder. The written notification to the Corporation
shall be addressed to the Board of Directors and shall include a
description of the nature of the Proceeding and the facts
underlying the Proceeding and be accompanied by copies of any
documents filed with the court in which the Proceeding is pending.
In addition, Indemnitee shall give the Corporation such information
and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
9. Maintenance of Liability Insurance.
(a) The Corporation hereby agrees that so long as
Indemnitee shall continue to serve as an officer or director of the
Corporation or any of its subsidiaries and thereafter so long as
Indemnitee shall be subject to any possible Proceeding, the
Corporation, subject to Section 9(b) hereof, shall use its best
efforts to obtain and maintain in full force and effect directors'
and officers' liability insurance ("D&O Insurance") which provides
Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Corporation's officers and/or directors,
as appropriate.
(b) Notwithstanding the foregoing, the Corporation shall
have no obligation to obtain or maintain D&O Insurance with respect
to the Indemnitee if the Corporation determines in good faith that
such insurance is not reasonably available, the premium costs for
such insurance are disproportionate to the amount of coverage
provided, the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit, or the
Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Corporation.
(c) Notice to Insurers. If, at the time of the receipt
of a notice of a claim pursuant to Section 8 hereof, the
Corporation has D&O Insurance in effect, the Corporation shall give
prompt notice of the commencement of such Proceeding to the
insurers in accordance with the procedures set forth in the
respective policies. The Corporation shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies.
10. Defense of Claim. In the event that the
Corporation shall be obligated under Section 6 hereof to pay the
Expenses of any Proceeding against Indemnitee, the Corporation, if
appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel approved by Indemnitee, which approval
shall not be unreasonably withheld, upon the delivery to Indemnitee
of written notice of its election to do so. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of
such counsel by the Corporation, the Corporation will not be liable
to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same
Proceeding, provided that (i) Indemnitee shall have the right to
employ his counsel in any such Proceeding at Indemnitee's expense;
and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Corporation, or (B) Indemnitee shall
have reasonably concluded that there may be a conflict of interest
between the Corporation and the Indemnitee in the conduct of such
defense, or (C) the Corporation shall not, in fact, have employed
counsel to assume the defense of such Proceeding, then the fees and
expenses of Indemnitee's counsel shall be at the expense of the
Corporation.
11. Attorneys' Fees. In the event that Indemnitee or
the Corporation institutes an action to enforce or interpret any
terms of this Agreement, the Corporation shall reimburse Indemnitee
for all of the Indemnitee's reasonable fees and expenses in
bringing and pursuing such action or defense, unless as part of
such action or defense, a court of competent jurisdiction
determines that the material assertions made by Indemnitee as a
basis for such action or defense were not made in good faith or
were frivolous.
12. Continuation of Obligations. All agreements and
obligations of the Corporation contained herein shall continue
during the period the Indemnitee is an officer of the Corporation,
or is or was serving at the request of the Corporation as a
director, officer, fiduciary, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
and shall continue thereafter so long as the Indemnitee shall be
subject to any possible proceeding by reason of the fact that
Indemnitee served in any capacity referred to herein.
13. Successors and Assigns. This Agreement establishes
contract rights that shall be binding upon, and shall inure to the
benefit of, the successors, assigns, heirs and legal
representatives of the parties hereto.
14. Non-exclusivity.
(a) The provisions for indemnification and advancement
of expenses set forth in this Agreement shall not be deemed to be
exclusive of any other rights that the Indemnitee may have under
any provision of law, the Corporation's Articles of Incorporation
or Bylaws, the vote of the Corporation's shareholders or
disinterested directors, other agreements or otherwise, both as to
action in his official capacity and action in another capacity
while occupying his position(s) as an officer or director of the
Corporation or any of its subsidiaries.
(b) In the event of any changes, after the date of this
Agreement, in any applicable law, statute, or rule which expand the
right of a California corporation to indemnify its officers and
directors, the Indemnitee's rights and the Corporation's
obligations under this Agreement shall be expanded to the full
extent permitted by such changes. In the event of any changes in
any applicable law, statute or rule, which narrow the right of a
California corporation to indemnify a director or officer, such
changes, to the extent not otherwise required by such law, statute
or rule to be applied to this Agreement, shall have no effect on
this Agreement or the parties' rights and obligations hereunder.
15. Effectiveness of Agreement. To the extent that the
indemnification permitted under the terms of certain provisions of
this Agreement exceeds the scope of the indemnification provided
for in the California General Corporation Law, such provisions
shall not be effective unless and until the Corporation's Articles
of Incorporation authorize such additional rights of
indemnification. In all other respects, the balance of this
Agreement shall be effective as of the date set forth on the first
page and may apply to acts or omissions of Indemnitee which
occurred prior to such date if Indemnitee was an officer, director,
employee or other agent of the Corporation, or was serving at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, at the time such act or omission occurred.
16. Severability. Nothing in this Agreement is intended
to require or shall be construed as requiring the Corporation to do
or fail to do any act in violation of applicable law. The
Corporation's inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be
severable as provided in this Section 16. If this Agreement or any
portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless
indemnify the Indemnitee to the full extent permitted by any
applicable portion of this Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated
shall be enforceable in accordance with its terms.
17. Governing Law. This Agreement shall be interpreted
and enforced in accordance with the laws of the State of
California. To the extent permitted by applicable law, the parties
hereby waive any provisions of law which render any provision of
this Agreement unenforceable in any respect.
18. Notice. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be
deemed duly given (i) if delivered by hand and receipted for by the
party addressee or (ii) if mailed by certified or registered mail with
postage prepaid, on the third business day after the mailing date.
Addresses for notice to either party are as shown on the signature page
of this Agreement, or as subsequently modified by written notice.
19. Mutual Acknowledgment. Both the Corporation and
Indemnitee acknowledge that in certain instances, federal law or
applicable public policy may prohibit the Corporation from indemnifying
its directors and officers under this Agreement or otherwise.
Indemnitee understands and acknowledges that the Corporation has
undertaken or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination
of the Corporation's right under public policy to indemnify Indemnitee.
20. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original.
21. Amendment and Termination. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless
in writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first set forth above.
STERLING WEST BANCORP
/S/Xxxxx X. Xxxxxxxx
By: ___________________________
Xxxxx X. Xxxxxxxx
Name: ___________________________
Chief Executive Officer
Title: ___________________________
Address: 0000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx
00000
THE INDEMNITEE
/S/Xxxxxxx X. Xxxxx
__________________________________________
Xxxxxxx X. Xxxxx
0000 Xxx Xxxxxxxx
(Xxxxxxx)
Xxxxxx Xxxxx Xxxxxx Xx 00000
(Address)
