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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement"), dated as of _____________,
1999, is between WEST COAST BANCORP ("Corporation") and < NAME > ("Indemnitee").
RECITALS
A. Indemnitee, as member of the board of directors or an officer of the
Corporation and/or, one or more of its affiliate corporations, performs
valuable services for the Corporation.
B. The Corporation's Articles of Incorporation ("Articles") and Bylaws
("Bylaws") provide for the indemnification of the officers, directors,
agents and employees of the Corporation to the maximum extent authorized
by the Oregon Business Corporation Act ("Act").
C. The Articles, Bylaws and the Act, by their non-exclusive nature, permit
contracts between the Corporation and its directors and officers to
indemnify those directors and officers.
D. The Corporation has purchased and maintains a policy or policies of
Directors and Officers Liability Insurance ("D & O Insurance"), covering
certain liabilities, which may be incurred by its directors and officers
in the performance of their duties.
E. Due to changes in the terms, scope and availability of D & 0 Insurance,
uncertainty exists as to the extent of protection afforded directors and
officers under such D & O Insurance or under the indemnification
provisions of the Act, Articles, or Bylaws.
F. To induce Indemnitee to continue service as a director or officer of the
Corporation and/or one or more of its affiliate corporations, the
Corporation desires to enter this contract with Indemnitee.
Therefore, in consideration of Indemnitee's continued service as a
director or officer, the parties agree as follows:
AGREEMENT
1. INDEMNITY. The Corporation agrees to hold harmless and indemnify
Indemnitee:
(a) to the fullest extent permitted under each of the Articles, the
Bylaws, and the Act, as each may be amended from time to time; and
(b) against any and all expenses (including attorneys' fees), witness
fees, judgments, fines, ERISA excise taxes, and amounts paid in
settlement actually and reasonably incurred by Indemnitee in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of the Corporation) to which
Indemnitee is, was or at any time becomes a party, or is threatened
to be made a party, by reason of the fact that Indemnitee is, was or
at any time becomes a director, officer, employee or agent of the
Corporation, or is or was serving or at any time serves at the
request of the Corporation as a director, officer, employee or agent
of another (i) corporation, including without
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limitation a corporate affiliate of the Corporation, (ii)
partnership, (iii) joint venture, (iv) trust, (v) employee benefit
plan or (vii) other enterprise.
2. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity under Section 1 will be
paid by the Corporation:
(a) for expenses or liabilities paid to the Indemnitee under any D & 0
Insurance purchased and maintained by the Corporation;
(b) on account of any action, suit or proceeding brought by or on behalf
of the Corporation in which judgment is rendered holding the
Indemnitee liable to the Corporation;
(c) on account of Indemnitee's conduct which is finally adjudged to be
willful misconduct or knowing violation of law;
(d) on account of Indemnitee's conduct which is the subject of an
action, suit or proceeding described in Section 6(c)(ii);
(e) on account of any action, claim or proceeding (other than a
proceeding referred to in Section 7(b)) initiated by the Indemnitee
unless such action, claim or proceeding is specifically authorized
by action of the Corporation's board of directors;
(f) on account of any action, claim or proceeding referred to in Section
7(b) which action is finally adjudged to be frivolous or made not in
good faith;
(g) if a final decision by a Court having jurisdiction in the matter
determines that such indemnification is not lawful.
3. MUTUAL ACKNOWLEDGMENT. Both Corporation and Indemnitee acknowledge that,
in certain instances, federal law or public policy may override applicable
state law and prohibit the Corporation from indemnifying its directors and
officers. For example, the Corporation and Indemnitee acknowledge that the
Securities and Exchange Commission (the "SEC") takes the position that
indemnification is not permitted for liabilities arising under certain
federal securities laws, and federal legislation prohibits indemnification
for certain ERISA violations.
4. CONTINUATION OF OBLIGATIONS. Under this Agreement the Corporation is
obligated to Indemnitee for any period Indemnitee is or was a director,
officer, employee or agent of the Corporation (or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another (i) corporation, including without limitation, a corporate
affiliate of Corporation, (ii) partnership, (iii) joint venture, (iv)
trust, (v) employee benefit plan or (vi) other enterprise). Furthermore,
this obligation will continue after Indemnittee's service as a director or
officer terminates and so long as Indemnitee may be subject to any
possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative, by reason of the
fact that Indemnitee was a director or an officer of the Corporation or
was serving at the Corporation's request as a director, officer, employee
or agent of another (i) corporation, including without limitation, a
corporate affiliate of Corporation, (ii) partnership, (iii) joint venture,
(iv) trust, (v) employee benefit plan or (vi) other enterprise.
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5. NOTIFICATION AND DEFENSE OF CLAIM. Within 30 after Indemnitee receives any
notice of the commencement of any action, suit, or proceeding, Indemnitee
will notify the Corporation of it, if a claim with respect to the action
may be made against the Corporation under this Agreement. The failure to
so notify the Corporation will not relieve the Corporation from any
liability it may have to Indemnitee under authority other than this
Agreement. With respect to any action, suit or proceeding of which
Indemnitee timely notifies the Corporation:
(a) the Corporation is entitled to participate at its own expense;
(b) except as otherwise provided below, the Corporation (jointly with
any other indemnifying party similarly notified) is entitled to
assume the defense of the action with counsel reasonably
satisfactory to Indemnitee; and
(c) the Corporation is not liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim
that is effected without its written consent.
After notice from the Corporation to Indemnitee of its election to assume
the defense of the action, the Corporation will not be liable to
Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by Indemnitee in connection with the defense of the
action, other than reasonable costs of investigation or as otherwise
provided below. Indemnitee may employ its counsel in such action but the
fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense will be at the expense of
Indemnitee unless (i) Indemnitee's employment of counsel is authorized by
the Corporation, (ii) Indemnitee reasonably concludes that there may be a
conflict of interest between the Corporation and Indemnitee in the conduct
of the defense of such action or (iii) the Corporation has not employed
counsel to assume the defense of such action, in each of which cases the
fees and expenses of Indemnitee's separate counsel will be at the expense
of the Corporation. The Corporation is not entitled to assume the defense
of any action, suit, or proceeding brought by or on behalf of the
Corporation or as to which Indemnitee has made the conclusion provided for
in (ii) above.
The Corporation is permitted to settle any action except that it may not
settle any action or claim in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee's written consent. Neither the
Corporation nor Indemnitee will unreasonably withhold its consent to any
proposed settlement.
6. ADVANCEMENT AND REPAYMENT OF EXPENSES.
(a) If Indemnitee employs his/her own counsel, the cost of which is to
be indemnified by the Corporation under Section 5, the Corporation
will advance to Indemnitee any and all reasonable expenses
(including legal fees and expenses) incurred in investigating or
defending any such action, suit or proceeding. These expenses must
be advanced before any final disposition of any threatened or
pending action, suit or proceeding, whether civil, criminal,
administrative or investigative and within 10 days after receiving
copies of invoices presented to Indemnitee for such expenses.
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(b) Indemnitee agrees that Indemnitee will reimburse the Corporation for
all reasonable expenses paid by the Corporation in defending any
civil or criminal action, suit or proceeding against Indemnitee if,
and only to the extent that, it is ultimately determined by a final
judicial decision (from which there is no right of appeal) that
Indemnitee is not entitled to be indemnified by the Corporation for
such expenses.
(c) The Corporation is not required to advance expenses to Indemnitee if
Indemnitee (i) commences any action, suit or proceeding as a
plaintiff, unless such advance is specifically approved by a
majority of the Corporation's board of directors or (ii) is a party
to an action, suit or proceeding brought by the Corporation and
approved by a majority of the Corporation's board which alleges
willful misappropriation of corporate assets by Indemnitee,
disclosure of confidential information in violation of Indemnitee's
fiduciary or contractual obligations to the Corporation, or any
other willful and deliberate breach in faith of Indemnitee's duty to
the Corporation, its affiliates, or its shareholders.
7. ENFORCEMENT.
(a) The Corporation confirms that it has entered into this Agreement to
induce Indemnitee to continue as a director or an officer of the
Corporation or one or more of its affiliates, and acknowledges that
Indemnitee is relying upon this Agreement in continuing in such
capacity.
(b) If Indemnitee successfully brings any action to enforce rights or to
collect moneys due under this Agreement, the Corporation will
reimburse Indemnitee for all Indemnitee's reasonable fees and
expenses in bringing and pursuing such action.
8. SUBROGATION. If the Corporation pays Indemnitee under this Agreement, the
Corporation will be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who agrees to execute all documents
required and to do all acts necessary to secure such rights and to enable
the Corporation effectively to bring suit to enforce such rights.
9. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Indemnitee by this
Agreement are not exclusive of any other right which Indemnitee may have
or hereafter acquire under any statute, provision of the Articles, Bylaws,
agreement, vote of shareholders or directors, or otherwise, both as to
action in his/her official capacity and as to action in another capacity
while holding office.
10. SURVIVAL OF RIGHTS. The rights conferred on Indemnitee by this Agreement
continue after Indemnitee ceases to be a director, officer, employee, or
other agent of the Corporation and will inure to the benefit of
Indemnitee's heirs, executors, and administrators.
11. SEPARABILITY. Each provision of this Agreement is a separate and distinct
agreement independent of others. If any provision is held to be invalid or
unenforceable for any reason, such invalidity or unenforceability will not
affect the validity or enforceability of the other provisions or the
obligation of the Corporation to indemnify the Indemnitee to the full
extent provided by the Articles, Bylaws or the Act.
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12. GOVERNING LAW. This Agreement is interpreted and enforced in accordance
with the laws of the State of Oregon.
13. BINDING EFFECT. This Agreement is binding upon Indemnitee and upon the
Corporation, its successors and assigns, and inures to the benefit of
Indemnitee, his/her heirs, personal representatives, and assigns and to
the benefit of the Corporation, its successors and assigns.
14. AMENDMENT AND TERMINATION. No amendment, modification, termination, or
cancellation of this Agreement is effective unless in writing signed by
both parties.
Signed as of ____________, 1999:
WEST COAST BANCORP
By: Xxxxxx X. Xxxxxxxx
President and CEO
INDEMNITEE
__________________________________________
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