Exhibit 10(b)
INDEMNIFICATION AGREEMENT
Preamble
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This Indemnification Agreement (this "Agreement") is made as of
this 27th day of September 27, 2005, by and between Sonoma National Bank,
a national banking association (the "Association"), and Xxxxxxx X. Xxxxxx
("Indemnitee").
Recitals
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A. The Association and Indemnitee recognize the increasing
difficulty in obtaining directors', officers', and agents' liability
insurance, the significant increases in the cost of such insurance, and
the general reductions in the coverage of such insurance.
B. The Association and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors,
officers and agents to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited
and may not be available to the Association in the future.
C. Indemnitee does not regard the current protection available as
adequate under the present circumstances, and Indemnitee and other
directors, officers and agents of the Association may not be willing to
continue to serve as directors, officers and agents without additional
protection.
D. The Association desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve as directors,
officers and agents of the Association and to indemnify its directors,
officers and agents so as to provide them with the maximum protection
permitted by law.
Agreement
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Based upon the facts and premises contained in the above Recitals
and in consideration of the mutual promises below, the Association and
Indemnitee hereby agree as follows:
1. Indemnification and Expense Advancement.
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(a) Action, Etc., Other than by Right of the Association.
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The Association shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any proceeding (other than
an action by or in the right of the Association to procure a judgment in
its favor) by reason of the fact that Indemnitee is or was an Agent of
the Association, against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such
proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the Association and, in
the case of a criminal proceeding, has no reasonable cause to believe the
conduct of Indemnitee 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 Association or that
Indemnitee had reasonable cause to believe that Indemnitee's conduct was
unlawful.
(b) Action, Etc., By or in the Right of the Association.
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The Association shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any threatened, pending or
completed action by or in the right of the Association to procure a
judgment in its favor by reason of the fact that Indemnitee is or was an
Agent of the Association, against expenses actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of
such action if Indemnitee acted in good faith, in a manner Indemnitee
believed to be in the best interests of the Association and its
shareholders; except that no indemnification shall be made under this
subparagraph (b) for any of the following:
(i) In respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the
Association in the performance of Indemnitee's duty to the
Association and its shareholders, unless and only to the
extent that the court in which such 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 the expenses which such
court shall determine;
(ii) Of amounts paid in settling or otherwise disposing of a
pending action without court approval; or
(iii) Of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
(c) Determination of Right of Indemnification. Any indemnification
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under subparagraphs (a) and (b) shall be made by the Association only if
authorized in the specific case, upon a determination that indemnification
of Indemnitee is proper in the circumstances because Indemnitee has met
the applicable standard of conduct set forth above in subparagraphs (a)
and (b) by any of the following:
(i) A majority vote of a quorum consisting of directors who are
not parties to such proceeding;
(ii) If such a quorum of directors is not obtainable, by
independent legal counsel in a written opinion;
(iii) Approval of the shareholders by the affirmative vote of a
majority of the shares entitled to vote represented at a
duly held meeting at which a quorum is present or by the
written consent of shareholders as provided in the Bylaws,
with the shares owned by the person to be indemnified not
being entitled to vote thereon; or
(iv) The court in which such proceeding is or was pending upon
application made by the Association or its Agent or attorney
or other person rendering services in connection with the
defense, whether or not such application by the Agent,
attorney or other person is opposed by the Association.
(d) Advances of Expenses. Expenses (including attorneys' fees)
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costs, and charges incurred in defending any proceeding shall be advanced
by the Association prior to the final disposition of such proceeding upon
receipt of an undertaking by or on behalf of Indemnitee to repay such
amount unless it shall be determined ultimately that Indemnitee is
entitled to be indemnified as authorized in this Paragraph 1.
(e) Indemnification Against Expenses of successful Party.
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Notwithstanding the other provisions of this paragraph 1, to the extent
that Indemnitee has been successful on the merits in a defense of any
proceeding, claim, issue or matter referred to in subparagraphs (a) and
(b), Indemnitee shall be indemnified against all expenses actually and
reasonably incurred by Indemnitee in connection therewith.
(f) Right of Indemnitee to Indemnification Upon Application;
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Procedure Upon Application. Any indemnification provided for in
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subparagraphs (a), (b) or (e) shall be made no later than ninety (90)
days after the Association is given notice of request by Indemnitee,
provided that such request is made after final adjudication, dismissal,
or settlement unless an appeal is filed, in which case the request is
made after the appeal is resolved (hereafter referred to as "Final
Disposition"). Upon such notice, if a quorum of directors who were not
parties to the action, suit, or proceeding giving rise to indemnification
is obtainable, the Association shall within two (2) weeks call a Board of
Directors meeting to be held within four (4) weeks of such notice, to make
a determination as to whether Indemnitee has met the applicable standard
of conduct. Otherwise, if a quorum consisting of directors who were not
parties in the relevant action, suit, or proceeding is not obtainable, the
Association shall retain (at the Association's expense) independent legal
counsel chosen either jointly by the Association and Indemnitee or else by
Association counsel within two (2) weeks to make such determination. If
(1) at such directors meeting such a quorum is not obtained or, if
obtained, refuses to make such determination or (2) if such legal counsel
is not so retained or, if retained, does not make such determination
within four (4) weeks, then the Board of Directors shall cause a
shareholders meeting to be held within four (4) weeks to make such a
determination.
If notice of a request for payment of a claim under any statute,
under this Agreement, or under the Association's Articles of Association
or Bylaws providing for indemnification or advance of expenses has been
given to the Association by Indemnitee, and such claim is not paid in
full by the Association within ninety (90) days of the later occurring
of the giving of such notice and Final Disposition in case of
indemnification and twenty (20) days of the giving of such notice in case
of advance of expenses, Indemnitee may, but need not, at any time
thereafter bring an action against the Association to receive the unpaid
amount of the claim or the expense advance and, if successful, Indemnitee
shall also be paid for the expenses (including attorneys' fees) of
bringing such action. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in connection
with any action, suit, or proceeding in advance of its Final Disposition)
that Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Association to indemnify
Indemnitee for the amount claimed, and Indemnitee shall be entitled to
receive interim payment of expenses pursuant to Subparagraph (d) unless
and until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. Neither the failure
of the Association (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Association (including
its Board of Directors, independent legal counsel, or its shareholders)
that Indemnitee has not met such applicable standard of conduct, shall
create a presumption that Indemnitee has or has not met the applicable
standard of conduct.
(g) Other Rights and Remedies. The indemnification provided by
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this Paragraph 1 shall not be deemed exclusive of, and shall not affect,
any other rights to which an Indemnitee may be entitled under any law,
the Association's Articles of Association, Bylaws, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action
in his or her official capacity and as to action in another capacity while
holding such office, and shall continue after Indemnitee has ceased
holding such office or acting in such official capacity and shall inure to
the benefit of the heirs, executors, and administrators of Indemnitee.
(h) Insurance. The Association may purchase and maintain insurance
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on behalf of any person who is or was an Agent against any liability
asserted against such person and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not
the Association would have the power to indemnify such person against
such liability under the provisions of this Paragraph 1.
(i) Optional Means of Assuring Payment. Upon request by an
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Indemnitee certifying that Indemnitee has reasonable grounds to believe
Indemnitee may be made a party to a proceeding for which Indemnitee may be
entitled to be indemnified under this Paragraph 1, the Association may,
but is not required to, create a trust fund, grant a security interest or
use other means (including, without limitation, a letter of credit) to
ensure the payment of such sums as may become necessary to effect
indemnification as provided herein.
(j) Savings Clause. If this Paragraph 1 or any portion thereof
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shall be invalidated on any ground by any court of competent jurisdiction,
then the Association shall nevertheless indemnify Indemnitee as to
expenses (including attorneys' fees), judgments, fines, and amounts paid
in settlement with respect to any action, suit, proceeding, or
investigation, whether civil, criminal or administrative, and whether
internal or external, including a grand jury proceeding and an action or
suit brought by or in the right of the Association, to the full extent
permitted by any applicable portion of this Paragraph 1 that shall not
have been invalidated, or by any other applicable law.
(k) Definition of Agent. For the purposes of this Paragraph 1,
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"Agent" means any person who is or was a director, officer, employee or
other agent of the Association, or is or was serving at the request of
the Association as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation; "proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or
investigative; and "expenses" includes without limitation attorneys' fees
and any expenses of establishing a right to indemnification.
(1) Indemnification under Section 204(a) (11) of the California
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Corporations Code. Subject to the provisions of California Corporations
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Code Section 204 (a) (11) and any other applicable law, notwithstanding
any other provisions of these Paragraph 1, the following shall apply to
the indemnification of Indemnitee:
(i) The Association shall indemnify Indemnitee pursuant to this
Subparagraph (l) if the Association would be required to
indemnify Indemnitee pursuant to Subparagraphs (a) or (b) if
in Subparagraphs (a) or (b) the phrase "in a manner
Indemnitee reasonably believed to be in the best interests of
the Association" is replaced with the phrase "in a manner
Indemnitee did not believe to be contrary to the best
interests of the Association". If pursuant to Subparagraphs
(c) and (f) the person making the Subparagraph (a) and/or
(b) conduct standard determination determines that such
standard has not been satisfied, such person shall also
determine whether this subparagraph (1) (i) conduct standard
has been satisfied;
(ii) There shall be a presumption that Indemnitee met the
applicable standard of conduct required to be met in
subparagraph (c) for indemnification, rebuttable by clear
and convincing evidence to the contrary;
(iii) The Association shall have the burden of proving that
Indemnitee did not meet the applicable standard of conduct
in subparagraph (c);
(iv) In addition to the methods provided for in Subparagraph
(C), a determination that indemnification is proper in the
circumstances because that Indemnitee met the applicable
standard of conduct may also be made by the arbitrator in
any arbitration proceeding in which such matter is or was
pending;
(v) Unless otherwise agreed to in writing between an Indemnitee
and the Association in any specific case, indemnification
may be made under Subparagraph (b) for amounts paid in
settling or otherwise disposing of a pending action without
court approval.
2. Changes.
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In the event of any change, after the date of this Agreement, in
any applicable law, statute, or rule which expands the right of a
California corporation to indemnify a member of its board of directors or
an officer, such changes shall be automatically, without further action of
the parties, within the purview of Indemnitee's rights and Association's
obligations, under this Agreement. In the event of any change in any
applicable law, statute or rule which narrows the right to indemnify a
member of its board of directors or an 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. In the event of an amendment to the
Association's Bylaws which expands the right to indemnify a member of its
board of directors or an officer, such change shall be automatically,
without further action of the parties, within Indemnitee's rights and
Association's obligations under this Agreement. In the event of any
amendment to the Association's Bylaws which narrows such right of a
California Corporation to indemnify a member of its board of directors or
an officer, such change shall only apply to the indemnification of
Indemnitee for acts committed, or lack of action, by Indemnitee after
such amendment. The Association agrees to give Indemnitee prompt notice of
amendments to the Association's Bylaws which concern indemnification.
3. Nonexclusivity.
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The indemnification provided by this Agreement shall not be deemed
exclusive of any rights to which Indemnitee may be entitled under the
Bank's Articles of Association, its Bylaws, any agreement, any vote of
shareholders or disinterested Directors, the California Corporations
Code, or otherwise, both as to action in Indemnitee's official capacity
and as to action in any other capacity while holding such office (an
"Indemnified Capacity"). The indemnification provided under this
Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an Indemnified Capacity even though he may have
ceased to serve in an Indemnified Capacity at the time of any action,
suit or other covered proceeding.
4. Partial Indemnification.
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If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Association for some or a portion of the expenses,
judgment, fines or penalties actually or reasonably incurred by him in the
investigation, defense, appeal or settlement of any civil or criminal
action, suit or proceeding, but not, however, for the total amount
thereof, the Association shall nevertheless indemnify Indemnitee for the
portion of such expenses, judgments, fines or penalties to which
Indemnitee is entitled.
5. Mutual Acknowledgement.
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Both the Association and Indemnitee acknowledge that in certain
instances, Federal law or public policy may override applicable law and
prohibit the Association from indemnifying its directors and officers
under this Agreement or otherwise. For example, the Association and
Indemnitee acknowledge that the Securities and Exchange Commission (the
"SEC") has taken the position that indemnification is not permissible for
liabilities arising under certain federal securities laws, and federal
legislation prohibits indemnification for certain ERISA violations.
Indemnitee understands and acknowledges that the Association has
undertaken or may be required in the future to undertake with the SEC to
submit questions of indemnification to a court in certain circumstances
for a determination of the Association's right under public policy to
indemnify Indemnitee. Furthermore, Indemnitee and Association acknowledge
that the extent of indemnification permissible under Section 204(a)(11) of
the California Corporations Code has not been judicially determined;
therefore, the enforceability of Indemnitee's rights under Subparagraph
(1) is uncertain.
6. Severability.
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Nothing in this Agreement is intended to require or shall be
construed as requiring the Association to do or fail to do any act in
violation of applicable law. The Association's inability, pursuant to
court order, to perform its obligations under this Agreement shall not
constitute a breach of the Agreement. If the application of any provision
or provisions of the Agreement to any particular facts or circumstances
shall be held to be invalid or unenforceable by any court of competent
jurisdiction, then (i) the validity and enforceability of such provision
or provisions as applied to any other particular facts or circumstances
and the validity of other provisions of this Agreement shall not in any
way be affected or impaired thereby and (ii) such provision(s) shall be
reformed without further action by the parties to make such provision(s)
valid and enforceable when applied to such facts and circumstances with a
view toward requiring Association to indemnify Indemnitee to the fullest
extent permissible by law.
7. Exceptions.
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Any other provision herein to the contrary notwithstanding, the
Association shall not be obligated pursuant to the terms of this
Agreement:
(a) Regulatory Agency Proceedings. To indemnify Indemnitee for
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expenses, penalties or other payments incurred in an administrative
proceeding or action instituted by a bank regulatory agency, which
proceeding or action results in a final order assessing civil money
penalties or requiring affirmative action by the Indemnitee in the form
of payments to the Association.
(b) Applicable Law. To indemnify Indemnitee for expenses, penalties
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or other payments, or for any other amounts, in violation of applicable
banking laws or regulations including, but not limited to, Xxxxxxx 00
X.X.X. 0000(x) of the Federal Deposit Insurance Act, the regulations of
the Federal Deposit Insurance Corporation thereunder, or the regulations
of the Office of the Comptroller of the Currency, as now or hereafter in
effect.
(c) Claims Initiated By Indemnitee. To indemnify or advance expenses
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to Indemnitee with respect to proceedings or claims (except counter--
claims or cross--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 by the California
Corporations Code, but such indemnification or advancement of expenses may
by provided by the Association in specific cases if the Board of Directors
finds it to by appropriate; or
(d) Lack of Good Faith. To indemnify Indemnitee for any expenses
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incurred by 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
Indemnitee in such proceeding was not made in good faith or was frivolous;
or
(e) Insured Claims. To indemnify Indemnitee for expenses or
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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 Indemnitee by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Association; or
(f) Claims under section 16(b). To indemnify Indemnitee for expenses
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or 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.
8. Counterparts.
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This Agreement may by executed in one or more counterparts, each of
which shall constitute an original.
9. Successors and Assigns.
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This Agreement shall by binding upon the Association and its
successors and assigns, and shall inure to the benefit of Indemnitee and
Indemnitee's estate, heirs, and legal representatives and permitted
assigns. Indemnitee may not assign this Agreement without the prior
written consent of the Association.
10. Attorneys' Fees.
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In the event that any action is instituted by Indemnitee under this
Agreement to enforce or interpret any of the terms hereof, Indemnitee
shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such
action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by
Indemnitee as a basis for such action were not made in good faith or were
frivolous. In the event of an action instituted by or in the name of the
Association under this Agreement or to enforce or interpret any of the
terms of this Agreement, Indemnitee shall be entitled to be paid all court
costs and expenses, including attorneys' fees, incurred by Indemnitee in
defense of such action (including with respect to Indemnitee's
counterclaims and cross--claims made in such action), unless as a part of
such action the court determines that each of Indemnitee's material
defenses to such action were made in bad faith or were frivolous.
11. Notice.
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All notices, requests, demands and other communications under this
Agreement shall by in writing and shall by deemed duly given (i) if
delivered by hand and receipted for by the party addressee, on the date
of such receipt, or (ii) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown under Authorized
signatures at the end of this Agreement, or as subsequently modified by
written notice.
12. Paragraph Headings.
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The Paragraph and subparagraph headings in this Agreement are
solely for convenience and shall not by considered in its interpretation.
13. Waiver.
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A waiver by either party of any term or condition of the agreement
or any breach thereof, in any one instance, shall not by deemed or
construed to by a waiver of such term or condition or of any subsequent
breach thereof.
14. Entire Agreement; Amendment.
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This instrument contains the entire integrated Agreement between
the parties hereto and supersedes all prior negotiations, representations
or agreements, whether written or oral except for the Association's
Articles of Association and Bylaws. It may by amended only by a written
instrument signed by a duly authorized officer of Association and by
Indemnitee.
15. Choice of Law and Forum.
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Except for that body of law governing choice of law, this Agreement
shall be governed by, and construed in accordance with internal laws of
the State of California which govern transactions between California
residents. The parties agree that any suit or proceeding in connection
with, arising out of or relating to this Agreement shall by instituted
only in a state court located in Sonoma County in the State of California
to the fullest extent permissible or in a federal court located in
San Francisco County in the State of California, and the parties, for the
purpose of any such suit or proceeding, irrevocably agree and submit to
the personal and subject matter jurisdiction and venue of any such court
in any such suit or proceeding and agree that service of process may by
effected in the same manner notice is given pursuant to section 11 above.
16. Consideration.
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Part of the consideration the Association is receiving from
Indemnitee to enter into this Agreement is Indemnitee's agreement to
serve or to continue to serve, as applicable, for the present as an Agent
of the Association. Nothing in this Agreement shall preclude Indemnitee
from resigning as an Agent of the Association nor the Association, by
action of its shareholders, board of directors, or officers, as the case
may by, from terminating Indemnitee's services as an Agent, as the case
may by, with or without cause.
Authorized signatures
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In order to bind the parties to this Indemnification Agreement,
their duly authorized representations have signed their names below on
the dates indicated.
Sonoma National Bank
By /s/ Xxxxxxx X. Xxxxxxx
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000 Xxxxxx 0xxxxx
Xxxxx Xxxx, XX 00000
Date Executed: September 27, 2005
AGREED TO AND ACCEPTED:
INDEMNITEE:
/s/ Xxxxxxx X. Xxxxxx
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Signature of Xxxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xx.
Xxxxx Xxxx, XX 00000
(address)
Date Executed: September 27, 2005
