INDEMNIFICATION AGREEMENT
EXHIBIT
10.10
This
Indemnification Agreement ("Agreement")
is
made effective as of ________, 2006, and is entered into by and between
SONOMAWEST HOLDINGS, INC., a Delaware corporation (the "Company"),
and
____________________________________ ("Indemnitee").
RECITALS
A. The
Company and Indemnitee recognize the increasing difficulty in obtaining
directors' and officers' liability insurance, the significant increases in
the
cost of such insurance and the general reductions in the coverage of such
insurance.
B. The
Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting officers and directors to expensive litigation
risks at the same time as the availability and coverage of liability insurance
has been severely limited.
C. Indemnitee
does not regard the current protection available as adequate under the present
circumstances, and Indemnitee and other officers and directors of the Company
may not be willing to continue to serve as officers and directors without
additional protection.
D. The
Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve as officers and directors of the
Company and to indemnify its officers and directors so as to provide them with
the maximum protection permitted by law.
AGREEMENT
NOW,
THEREFORE, the Company and Indemnitee hereby agree as follows:
1. INDEMNIFICATION.
(a) Third
Party Proceedings.
The
Company shall indemnify Indemnitee if Indemnitee is or was a party, or is
threatened to be made a party to or witness or other participant in, any
threatened, pending or completed action or proceeding, whether civil, criminal,
administrative or investigative (a “proceeding”)
(other
than a proceeding by or in the right of the Company) by reason of the fact
that
Indemnitee is or was a director, officer, employee or agent of the Company,
or
any subsidiary of the Company, by reason of any action or inaction on the part
of Indemnitee while an officer or director or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees,
disbursements and retainers, accounting and witness fees, travel and disposition
costs, expenses of investigations, judicial or administrative proceedings or
appeals), judgments, fines, penalties, excise taxes under the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”)
and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) actually and
reasonably incurred by Indemnitee in connection with such proceeding unless
the
Company shall establish, in accordance with the procedures described in Section
2(c) of this Agreement, that Indemnitee did not act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal 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 (i) Indemnitee
did
not act in good faith and in a manner which Indemnitee reasonably believed
to be
in, or not opposed to, the best interests of the Company, or (ii) with respect
to any criminal proceeding, Indemnitee had no reasonable cause to believe that
Indemnitee's conduct was unlawful.
(b) Proceedings
By or in the Right of the Company.
The
Company shall indemnify Indemnitee if Indemnitee was or is a party to or witness
or other participant in, or is threatened to be made a party to or witness
or
other participant in, any proceeding by or in the right of the Company or any
subsidiary of the Company to procure a judgment in its favor by reason of the
fact that Indemnitee is or was a director, officer, employee or agent of the
Company, or any subsidiary of the Company, by reason of any action or inaction
on the part of Indemnitee while an officer or director or by reason of the
fact
that Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including, without limitation,
attorneys' fees) and, to the fullest extent permitted by law, amounts paid
in
settlement, in each case to the extent actually and reasonably incurred by
Indemnitee, in connection with the defense or settlement of such proceeding
if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to
be in or not opposed to the best interests of the Company and its stockholders,
except that no indemnification shall be made in respect of any proceeding,
claim, issue or matter as to which Indemnitee shall have been finally
adjudicated by court order or judgment to be liable to the Company in the
performance of Indemnitee's duty to the Company and its stockholders, 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 expenses
and
then only to the extent that the court shall determine.
2. Expenses:
Indemnification Procedure.
(a) Advancement
of Expenses.
The
Company shall advance all expenses incurred by Indemnitee in connection with
the
investigation, defense, settlement or appeal of any proceeding referenced in
Section 1(a) or (b) hereof (but not amounts actually paid in settlement of
any
such proceeding). Indemnitee hereby undertakes to repay such amounts advanced
only if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Company as authorized
hereby. The advances to be made hereunder shall be paid by the Company to
Indemnitee within twenty (20) days following delivery of a written request
therefor by Indemnitee to the Company and documentation reasonably evidencing
the expenses for which reimbursement is requested. The parties agree that for
the purposes of any expense advance for which Indemnitee has made written demand
to the Company in accordance with this Agreement, all expenses included in
such
expense advance that are certified in good faith by affidavit of Indemnitee’s
counsel as being reasonable shall be presumed conclusively to be
reasonable.
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(b) Notice.
Indemnitee shall give the Company notice in writing as soon as practicable
of
any claim made against Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be directed to the
Chief Executive Officer of the Company at the address shown on the signature
page of this Agreement (or such other address as the Company shall designate
in
writing to Indemnitee). Notice shall be deemed received three business days
after the date postmarked if sent by domestic certified or registered mail,
properly addressed; otherwise notice shall be deemed received when such notice
shall actually be received by the Company. The omission to so notify the Company
will not relieve the Company from any liability which it may have under this
Agreement or otherwise. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee’s power.
(c) Procedure;
Determination of Right to Indemnification.
(i) Any
indemnification provided for in Section 1 and this Section 2 shall be made
no
later than forty-five (45) days after receipt of the written request of
Indemnitee, accompanied by substantiating documentation, unless a determination
is made within such 45-day period by (i) the Board of Directors by a majority
vote of a quorum consisting of directors who are or were not parties such
proceeding, or (ii) independent legal counsel in a written opinion (which
counsel shall be appointed if such quorum is not obtainable), that Indemnitee
has not met the relevant standards for indemnification set forth herein. If
a
claim under this Agreement, under any statute, or under any provision of the
Company's certificate of incorporation or By-laws providing for indemnification,
is not paid in full by the Company within forty-five (45) days after a written
request for payment thereof has first been received by the Company, Indemnitee
may, but need not, at any time thereafter bring an action against the Company
to
recover the unpaid amount of the claim and, subject to Section 12 of this
Agreement, Indemnitee shall also be entitled to be paid for the expenses
(including, without limitation, 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 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 Company to indemnify Indemnitee
for the amount claimed, but the burden of proving such defense by clear and
convincing evidence shall be on the Company.
(ii) It
is the
parties' intention that if the Company contests Indemnitee's right to
indemnification, the question of Indemnitee's right to indemnification shall
be
resolved as provided in subparagraph (iv) below, and neither the failure of
the
Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its stockholders) 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 Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its stockholders) 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.
(iii) To
the extent
that the Indemnitee has been successful on the merits in defense of any
proceeding referred to in Section 1(a) or 1(b) above or in defense of any claim,
issue or matter therein, Indemnitee shall be indemnified against expenses
actually and reasonably incurred by Indemnitee in connection therewith.
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(iv) In
the event
that subparagraph (iii) above is inapplicable, or does not apply to the entire
proceeding, the Company shall nonetheless indemnify the Indemnitee (unless
applicable law expressly requires a different procedure) unless the Company
shall prove by clear and convincing evidence to the forum selected as provided
in subparagraph (v) below that the Indemnitee has not met the applicable
standard of conduct required to entitle the Indemnitee to such indemnification.
(v) The
Indemnitee shall be entitled to select the forum in which the validity of the
Company’s claim under subparagraph (iv) above that the Indemnitee is not
entitled to indemnification will be heard from among the following, except
that
the Indemnitee can select a forum consisting of the stockholders of the Company
only with the approval of the Company:
(A) a
quorum
consisting of directors who are not parties to the proceeding for which
indemnification is being sought;
(B) independent
legal counsel, which shall render a conclusion in a written legal opinion;
(C) the
stockholders of the Company; or
(D) the
court
having jurisdiction of the subject matter of the proceeding and the
parties.
For
purposes of the above, “independent legal counsel” shall mean a reputable law
firm with experience in the general subject matter of this Agreement, or a
member of such a firm, mutually agreed upon by the Company and Indemnitee,
that
neither is presently nor in the past three (3) years has been retained to
represent: (i) the Company or any of its subsidiaries or affiliates, or
Indemnitee or any corporation or which Indemnitee was or is a director, officer,
employee or agent, or any subsidiary or affiliate of such a corporation, in
any
material matter, or (ii) any other party to the claim giving rise to a claim
for
indemnification hereunder. Notwithstanding the foregoing, the term “independent
legal 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 right to indemnification under this Agreement. As soon as
practicable, and in no event later than thirty (30) days after the forum has
been selected pursuant to this subparagraph (v), the Company shall, at its
own
expense, submit to the selected forum its claim that the Indemnitee is not
entitled to indemnification, and the Company shall act in the utmost good faith
to assure the Indemnitee a complete opportunity to defend against such claim.
If
the forum selected in accordance with this subparagraph (v) is independent
legal
counsel, the Company agrees to pay the reasonable fees of the independent legal
counsel and to indemnify fully such counsel against any and all expenses
(including legal fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto. If the forum
selected in accordance with this subparagraph (v) is not a court, then after the
final decision of such forum is rendered, the Company or Indemnitee shall have
the right to apply to a court with jurisdiction over the parties and subject
matter, or the court in which the proceeding giving rise to the Indemnitee’s
claim for indemnification is or was pending, for the purpose of appealing the
decision of such forum, provided that such right is exercised within sixty
(60)
days after the final decision of such forum is rendered. If the forum selected
in accordance with this subparagraph is a court, then the rights of the Company
or Indemnitee to appeal any decision of such court shall be governed by the
applicable laws and rules governing appeals of the decision of such court.
Notwithstanding any other provision in this Agreement, the Company shall
indemnify the Indemnitee against all expenses reasonably incurred by Indemnitee
in connection with any hearing or proceeding under this subparagraph (v)
involving Indemnitee and against all expenses reasonably incurred by Indemnitee
involving the interpretation or enforcement of the rights of Indemnitee under
this Agreement unless a court of competent jurisdiction finds that each of
the
material claims and/or defenses of Indemnitee in any such proceeding was
frivolous or not made in good faith.
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(d) Notice
to Insurers.
If, at
the time of the receipt of a notice of a claim pursuant to Section 3(b) hereof,
the Company has director and officer liability insurance in effect, the Company
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
Company shall thereafter take all necessary or desirable actions 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.
(e) Selection
of Counsel.
If the
Company shall be obligated under Section 2(a) hereof to pay the expenses of
any
proceeding against Indemnitee, the Company, if appropriate, shall be entitled
to
assume the defense of such proceeding, with counsel selected by the Company
and
approved by Indemnitee, which approval shall not be unreasonably withheld,
upon
the delivery to Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company 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 Indemnitee’s counsel in any such proceeding at
Indemnitee's expense; (ii) Indemnitee shall have the right to employ
Indemnitee’s own counsel in connection with any such proceeding, upon the
Company’s approval at the expense of the Company if such counsel serves only in
a review, observer, advice and counseling capacity and does not otherwise
materially control or participate in the defense of such proceeding; and (iii)
if (A) the employment of counsel by Indemnitee has been previously authorized
by
the Company, (B) Indemnitee shall have reasonably concluded that there may
be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense, or (C) the Company 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 Company. The Company shall
not be liable to indemnify Indemnitee or advance expenses to Indemnitee under
this Agreement for any amounts paid in settlement of any proceeding effected
by
Indemnitee without the Company’s written consent, which consent shall not be
unreasonably withheld, unless Indemnitee receives court approval for such
settlement or other disposition where the Company had the opportunity to oppose
Indemnitee's request for such court approval. The Company shall be permitted
to
settle any proceeding except that it shall not settle any proceeding in any
manner which would impose any penalty or limitation on Indemnitee without
Indemnitee’s written consent. Neither the Company nor Indemnitee shall
unreasonably withhold its consent to any proposed settlement.
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(f) Cooperation.
If the
Company assumes the defense of any claim for which indemnification is sought
under this Agreement, Indemnitee shall furnish such information regarding
Indemnitee, or the proceeding in question, as the Company may reasonably request
and as may be required in connection with the defense or settlement of such
proceeding, and shall cooperate fully with the Company in every other
respect.
3. ADDITIONAL
INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) Scope.
Notwithstanding any other provision of this Agreement, the Company hereby agrees
to indemnify the Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by
the
other provisions of this Agreement, the Company's Certificate of Incorporation
or Bylaws or by statute. 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
Delaware corporation to indemnify a member of its board of directors, an officer
or other corporate agent, such changes shall be, ipso facto, within
the purview of Indemnitee's rights and Company's obligations, under this
Agreement. In the event of any change in any applicable law, statute or rule
which narrows the right of a Delaware corporation to indemnify a member of
its
Board of Directors, an officer or other corporate agent, 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.
(b) Nonexclusivity.
The
indemnification provided by this Agreement shall not be deemed exclusive of
any
rights to which Indemnitee may be entitled under the Company's Certificate
of
Incorporation, its Bylaws, any agreement, any vote of stockholders or
disinterested directors, the Corporation Law of the State of Delaware, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in another capacity while holding such office. 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 Indemnitee may have
ceased to serve in such capacity at the time of any covered proceeding. If
Indemnitee was a party to a written indemnification agreement with the Company’s
predecessor entity, a California corporation, then this Agreement, rather than
the prior agreement, shall govern with respect to any matters arising after
the
date of this Agreement.
4. Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the expenses, judgments, fines,
penalties or ERISA excise taxes actually or reasonably incurred by either in
the
investigation, defense, appeal or settlement of any civil or criminal
proceeding, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify each of Indemnitee for the portion of such expenses,
judgments, fines, penalties or ERISA excise taxes to which Indemnitee is
entitled.
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5. Mutual
Acknowledgement.
The
Company and Indemnitee acknowledge that in certain instances, Federal law or
applicable public policy may prohibit the Company from indemnifying its
directors, officers and agents under this Agreement or otherwise. Indemnitee
understands and acknowledges that the Company 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 Company's right under public policy to indemnify
Indemnitee.
6. Directors’
and Officers’ Liability Insurance.
The
Company shall, from time to time, make the good faith determination whether
or
not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing the officers
and directors of the Company with coverage for losses from wrongful acts, or
to
ensure the Company's performance of its indemnification obligations under this
Agreement. Among other considerations, the Company will weigh the costs of
obtaining such insurance coverage against the protection afforded by such
coverage. In all policies of directors' and officers' liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company's directors, if Indemnitee is a director; or of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer. Notwithstanding the foregoing, the Company shall have no obligation
to
obtain or maintain such insurance if the Company determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, if the
coverage provided by such insurance is limited by exclusions so as to provide
an
insufficient benefit, or if Indemnitee is covered by similar insurance
maintained by a subsidiary or parent of the Company.
7. Severability.
Nothing
in this Agreement is intended to require or shall be construed as requiring
the
Company to do or fail to do any act in violation of applicable law. The
Company's inability, pursuant to court order, to perform its obligations under
this Agreement shall not constitute a breach of this Agreement. Each provision
of this Agreement, including without limitation, provisions within a single
sentence or clause therein, shall be severable as provided in this Section
7. If
this Agreement or any portion hereof shall be invalidated on any ground by
any
court of competent jurisdiction, then the Company shall nevertheless indemnify
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.
8. Exceptions.
Any
other provision herein to the contrary notwithstanding, the Company shall not
be
obligated pursuant to the terms of this Agreement:
(a) Unlawful
Indemnification.
To
indemnify Indemnitee for any acts or omissions or transactions from which a
court having jurisdiction in the matter shall determine that Indemnitee may
not
be relieved of liability under Delaware or any other applicable state or federal
law. In this respect, the Company and the Indemnitee have been advised that
the
Securities and Exchange Commission takes the position that indemnification
for
liabilities arising under the federal securities laws is against public policy
and is, therefore, unenforceable and that claims for indemnification should
be
submitted to appropriate courts for adjudication.
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(b) Claims
Initiated by Indemnitee.
To
indemnify or to 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 the Delaware General Corporation Law, but such indemnification
or
advancement of expenses may be provided by the Company in specific cases if
the
Board of Directors has approved the initiation or bringing of such suit;
or
(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, as the case may be, in such proceeding was
not made in good faith or was frivolous; or
(d) No
Duplication of Payments.
To
indemnify Indemnitee for expenses or liabilities of any type whatsoever
(including, without limitation, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) to the extent that Indemnitee has
otherwise actually received payment (under any insurance policy, provision
of
the Company’s certificate of incorporation, bylaws or otherwise) of the amounts
otherwise payable hereunder; 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 or similar provisions of any federal, state or local law.
9. Construction
of Certain Phrases.
(a) For
purposes of this Agreement, references to the "Company" shall include in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to
indemnify its directors, officers and 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 corporation, partnership,
joint venture, trust or other enterprise, Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting
or
surviving corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(b) For
purposes of this Agreement, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit plan; and references
to "serving at the request of the Company" shall include any service as a
director, officer, employee or agent of the Company 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; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in
the
interest of the participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
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10. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
11. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and assigns (including,
in
the case of the Company, any successor by merger or similar transaction), and
shall inure to the benefit of Indemnitee and Indemnitee's estate, and each
of
Indemnitee’s heirs, legal representatives and assigns.
12. Attorneys’
Fees.
In the
event that any action is instituted by Indemnitee under this Agreement or under
any liability insurance policies maintained by the Company 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, regardless of whether Indemnitee is
ultimately successful in such action, unless as a part of such action, a court
of competent jurisdiction makes a final judicial determination (as to which
all
rights of appeal therefrom have been exhausted or lapsed) 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 Company under this Agreement or to enforce or interpret any
of
the terms of this Agreement, Indemnitee shall be entitled to be paid all costs
and expenses, including, without limitation, reasonable attorneys' fees,
incurred by Indemnitee in defense of such action (including, without limitation,
with respect to Indemnitee's counterclaims and cross-claims made in such
action), unless as a part of such action the court makes a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or
lapsed) that each of Indemnitee's material defenses to such action were made
in
bad faith or were frivolous.
13. Notice.
All
notices, requests, demands and other communications under this Agreement shall
be in writing, shall be effective upon receipt, and shall be delivered by
Federal Express or a similar courier, personal delivery, certified or registered
air mail, or by facsimile transmission. Addresses for notice to either party
are
as shown on the signature page of this Agreement, or as subsequently modified
by
written notice. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written
notice.
14. Consent
to Jurisdiction.
The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction
of
the courts of the State of Delaware or California for all purposes in connection
with any proceeding which arises out of or relates to this Agreement and agree
that any action instituted under this Agreement shall be brought only in the
state courts of the State of Delaware or California.
15. Choice
of Law.
This
Agreement shall be governed by and its provisions construed in accordance with
the laws of the State of Delaware as applied to contracts between Delaware
residents entered into and to be performed entirely within
Delaware.
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16. Subrogation.
In the
event of 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 documents required and shall do all acts that may be necessary
to
secure such rights and to enable the Company effectively to bring suit to
enforce such rights.
17. Continuation
of Indemnification.
All
agreements and obligations of the Company contained herein shall continue during
the period that Indemnitee is a director, officer or agent of the Company and
shall continue thereafter so long as Indemnitee shall be subject to any possible
claim or threatened, pending or completed action, suit or proceeding, whether
civil, criminal, arbitrational, administrative or investigative, by reason
of
the fact that Indemnitee was serving in the capacity referred to
herein.
18. Amendment
and Termination.
Subject
to Section 17, no amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties
hereto.
19. Agreement
to Serve.
Indemnitee agrees to continue to serve as a director of the Company and/or
the
Company’s subsidiaries, as the case may be, so long as Indemnitee is duly
appointed or elected and qualified in accordance with the applicable provisions
of the Bylaws of the Company or any subsidiary of the Company or until such
time
as Indemnitee tenders Indemnitee’s resignation in writing. Nothing contained in
this Agreement is intended to create in Indemnitee any right to continued
employment or service as a director.
20. Subject
Matter and Parties.
The
intended purpose of this Agreement is to provide for indemnification and
advancement of expenses, and this Agreement is not intended to affect any other
aspect of any relationship between the Indemnitee and the Company and is not
intended to and shall not create any rights in any person as a third party
beneficiary hereunder.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
10
IN
WITNESS WHEREOF,
the
parties hereto have executed this Indemnification Agreement as of the date
first
above written.
SONOMAWEST
HOLDINGS, INC.
By:
Title:
Address:
0000
Xxxxxxx 000 Xxxxx
Xxxxxxxxxx,
XX 00000
AGREED
TO AND ACCEPTED:
INDEMNITEE:
(Signature)
(Name)
(Address)
11
