INDEMNIFICATION AGREEMENT
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This Indemnification Agreement (this
"Agreement") is made as of this __ day of _____, 2010, by and
between, on the one hand, Bridge Capital Holdings and Bridge Bank, National
Association (Bridge Capital Holdings and Bridge Bank, National Association are
sometimes referred to herein both individually and collectively as the
"Company"), and, on the other hand, the employee, officer, director or agent of
the Company named below (the"Indemnitee").
Recitals
A. Bridge
Capital Holdings is a California corporation and a registered bank holding
company under the Bank Holding Company Act of 1956. Bridge Bank, National
Association is a national banking association with its headquarters office
located in San Jose, California. Bridge Capital Holdings owns all of the
outstanding shares of common stock of and is the bank holding company for Bridge
Bank, National Association. Indemnitee is an employee, officer, director or
agent of Bridge Capital Holdings and/or Bridge Bank, National
Association.
B. The
Company and the Indemnitee recognize the increasing difficulty in obtaining
directors', officers', and agents' liability insurance at reasonable cost and
with a scope of coverage deemed adequate to protect against litigation risks to
such directors, officers and agents.
C. The
Company and the Indemnitee further recognize that conducting complex corporate
business in an atmosphere of increased litigation in general, increases the
exposure of directors, officers and agents to expensive litigation risks at the
same time as the coverage of liability insurance may be inadequate and may cause
the Company to incur substantial and unreasonable cost.
D. The
Indemnitee does not regard the current protection available through the
Company's chartering documents, Bylaws and insurance policies as adequate under
the present circumstances, and the Indemnitee and other directors, officers and
agents of the Company may not be willing to continue to serve as directors,
officers and agents without additional protection.
E. The
Company desires to attract and retain the services of highly qualified
individuals, such as the Indemnitee, to serve as directors, officers and agents
of the Company and to indemnify its directors, officers and agents so as to
provide them with the maximum protection permitted by law.
Based
upon the facts and premises contained in the above Recitals and in consideration
of the mutual promises below, the Company and the Indemnitee hereby agree as
follows:
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1.
Indemnification and Expense
Advancement.
(a) Action Other than by Right
of the Company. The Company shall indemnify the
Indemnitee if the 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 Company
to procure a judgment in its favor) by reason of the fact that the Indemnitee is
or was an Agent of the Company, against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with such
proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in the best interests of the Company and, in the case
of a criminal proceeding, has no reasonable cause to believe the conduct of the
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 the Indemnitee did
not act in good faith and in a manner which the Indemnitee reasonably believed
to be in the best interests of the Company or that the Indemnitee had reasonable
cause to believe that the Indemnitee's conduct was unlawful.
(b) Action By or in the Right of
the Company. The Company shall indemnify the Indemnitee if the 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 Company to procure a judgment in
its favor by reason of the fact that the Indemnitee is or was an Agent of the
Company, against expenses actually and reasonably incurred by the Indemnitee in
connection with the defense or settlement of such action if the Indemnitee acted
in good faith, in a manner the Indemnitee believed to be in the best interests
of the Company 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 the Indemnitee shall have been
adjudged to be liable to the Company in the performance of the Indemnitee's duty
to the Company 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, the 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 under Subparagraphs (a) and (b)
shall be made by the Company only if authorized in the specific case, upon a
determination that indemnification of the Indemnitee is proper in the
circumstances because the 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;
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(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 Company 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 Company.
(d) Advances of Expenses.
Expenses (including attorneys' fees), costs, and charges incurred in defending
any proceeding shall be advanced by the Company prior to the final disposition
of such proceeding upon receipt of an undertaking by or on behalf of the
Indemnitee to repay such amount unless it shall be determined ultimately that
the Indemnitee is entitled to be indemnified as authorized in this Paragraph
I.
(e) Indemnification Against
Expenses of Successful Party. Notwithstanding the other provisions of
this Paragraph I, to the extent that the Indemnitee has been successful on the
merits in a defense of any proceeding, claim, issue or matter referred to in
Subparagraphs (a) and (b), the Indemnitee shall be indemnified against all
expenses actually and reasonably incurred by the Indemnitee in connection
therewith.
(f) Right of the Indemnitee to
Indemnification Upon Application and Procedure Upon Application. Any
indemnification provided for in Subparagraphs (a), (b) or (e) shall be made no
later than ninety (90) days after the Company is given notice of request by the
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 Company 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
the 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 Company shall retain (at the
Company's expense) independent legal counsel chosen either jointly by the
Company and the 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.
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If notice of a request for payment of a
claim under any statute, under this Agreement, or under the Company's Articles
of Association or Bylaws providing for indemnification or advance of expenses
has been given to the Company by the Indemnitee, and such claim is not paid in
full by the Company 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, the Indemnitee
may, but need not, at any time thereafter bring an action against the Company to
receive the unpaid amount of the claim or the expense advance and, if
successful, the 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 the Indemnitee has not met the standards of conduct which make
it permissible under applicable law for the Company to indemnify the Indemnitee
for the amount claimed, and the 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 Company (including its Board
of Directors' independent legal counsel, or its shareholders) to have made a
determination that indemnification of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the Company
(including its Board of Directors, independent legal counsel. or its
shareholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has or has not met the
applicable standard of conduct.
(g) Other Rights and
Remedies. The indemnification provided by this Paragraph 1 shall not be
deemed exclusive of, and shall not affect, any other rights to which an the
Indemnitee may be entitled under any law, the Company'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 the 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 the
Indemnitee.
(h) Insurance. The
Company may purchase and maintain insurance 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 Company would have the power to indemnify such person against
such liability under the provisions of this Paragraph I.
(i)
Optional Means of
Assuring Payment. Upon request by an the Indemnitee certifying that the
Indemnitee has reasonable grounds to believe the Indemnitee may be made a party
to a proceeding for which the Indemnitee may be entitled to be indemnified under
this Paragraph 1, the Company 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 shall be invalidated on any ground by
any court of competent jurisdiction, then the Company shall nevertheless
indemnify
the 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 Company, 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.
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(k) Definition of
Agent. For the purposes of this Paragraph 1, "Agent" means any
person who is or was a director, officer, employee or other agent of the
Company, or is or was serving at the request of the Company 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.
(l) Indemnification under
Section 204(a)(11) of the California Corporations Code. Subject to the
provisions of California Corporations Code Section 204(a)(II) and any other
applicable law, notwithstanding any other provisions of this Paragraph 1, the
following shall apply to the indemnification of the Indemnitee:
(i)
The Company shall indemnify the Indemnitee pursuant to this Subparagraph (1) if
the Company would be required to indemnify the Indemnitee pursuant to
Subparagraphs (a) or (b) if in Subparagraphs (a) or (b) the phrase "in a manner
the Indemnitee reasonably believed to be in the best interests of the Company"
is replaced with the phrase "in a manner the Indemnitee did not believe to be
contrary to the best interests of the Company." 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 the 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
Company shall have the burden of proving that the 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 the 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 the Indemnitee and the Company 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.
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2. Changes.
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
the 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' right and obligations hereunder. In the event of an
amendment to the Company'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 the Indemnitee's rights and
Association's obligations under this Agreement. In the event of any
amendment to the Company'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 the Indemnitee for acts
committed, or lack of action, by the Indemnitee after such amendment. The
Company agrees to give the Indemnitee prompt notice of amendments to the
Company's Bylaws which concern indemnification.
3. Nonexclusivity.
The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which the Indemnitee
may be entitled under the Company'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 the 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 the 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.
If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company 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 Company shall nevertheless indemnify the Indemnitee for the portion
of such expenses, judgments, fines or penalties to which the Indemnitee is
entitled.
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5. Mutual
Acknowledgement.
Both the Company and the Indemnitee
acknowledge that in certain instances, federal law or public policy may override
applicable law and prohibit the Company from indemnifying its' directors and
officers under this Agreement or otherwise. For example, the Company and the
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. The Indemnitee understands and
acknowledges that the Company 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 Company's right under public
policy to indemnify the Indemnitee. Furthermore, the 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 the Indemnitee's rights under
Subparagraph (1) is uncertain.
6. 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 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
the Indemnitee to the fullest extent permissible by law.
7. Exceptions.
Any other provision herein to the
contrary notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement:
(a)
Regulatory Agency
Proceedings. To indemnify the Indemnitee for 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 Company, or to make payments which are prohibited by
applicable rules or regulations promulgated by the Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency, the Board of Governors
of the Federal Reserve System, or any other regulatory agency having
jurisdiction over the Company including, without limitation, any payments
prohibited under the provisions of Section 7.2014 of Chapter 12 of the Code of
Federal Regulations or Section 1828(k) of Chapter 12 of the United States Code,
and any amendments thereto or similar successor statute.
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(b)
Claims
Initiated by the Indemnitee. To indemnify or advance expenses
to the Indemnitee with respect to proceedings or claims (except counterclaims or
cross-claims) initiated or brought voluntarily by the 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 be
provided by the Company in specific cases if the Board of Directors finds it to
be appropriate; or
(c) Lack of Good Faith.
To indemnify the Indemnitee for any expenses incurred by the Indemnitee with
respect to any proceeding instituted by the 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; or
(d) Insured Claims. To
indemnify the 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 the
Indemnitee by an insurance carrier under a policy of officers' and directors'
liability insurance maintained by the Company; or
(e) Claims under Section
16(b). To indemnify the Indemnitee for expenses or the
payment of profits arising from the purchase and sale by the Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
(f)
Claims
under the Securities Act of 1933 as amended. To indemnify the
Indemnitee against liabilities arising under the Securities Act of 1933, as
amended (the "Act"), as to which the Securities and Exchange Commission has
expressed its opinion that indemnification of directors, officers and
controlling persons of the Company against liabilities arising under the Act is
against public policy as expressed in the Act and is, therefore, unenforceable.
Notwithstanding the foregoing, in the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any such action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with securities which
have been registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will he governed by the final
adjudication of such issue.
8.
Counterparts.
This Agreement may be executed in one
or more counterparts, each of which shall constitute an original.
9. Successors
and Assigns.
This Agreement shall be binding upon
the Company and its successors and assigns, and shall inure to the benefit of
the Indemnitee and the Indemnitee's estate, heirs, and legal representatives and
permitted assigns. The Indemnitee may not assign this Agreement without
the prior
written consent of the Company.
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10. Attorneys'
Fees.
In the event that any action is
instituted by the Indemnitee under this Agreement to enforce or interpret any of
the terms hereof, the Indemnitee shall be entitled to be paid all court costs
and expenses, including reasonable attorneys' fees, incurred by the 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
the 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, the Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys' fees, incurred by the Indemnitee in defense of
such action (including with respect to the Indemnitee's counterclaims and
cross-claims made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such action were
made in bad faith or were frivolous.
11. 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, 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.
The Paragraph and Subparagraph headings
in this Agreement are solely for convenience and shall not be considered in its
interpretation.
13. Waiver.
A waiver by either party of any term or
condition of the Agreement or any breach thereof, in anyone instance, shall not
be deemed or construed to be a waiver of such term or condition or of any
subsequent breach thereof.
14. Entire
Agreement; Amendment.
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 Company's Articles of Association and Bylaws. It may be amended only by a
written instrument signed by a duly authorized officer of the Company and by the
Indemnitee.
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15. Choice
of Law and Forum.
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 be
instituted only in a court (whether federal or state) located in Santa Xxxxx
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 be effected in the same manner notice is
given pursuant to Section 11 above.
16. Consideration.
Part of the consideration the Company
is receiving from the Indemnitee to enter into this Agreement is the
Indemnitee's agreement to serve or to continue to serve, as applicable, for the
present as an Agent of the Company. Nothing in this Agreement shall
preclude the Indemnitee from resigning as an Agent of the Company nor the
Company, by action of its shareholders, Board of Directors, or officers, as the
case may be, from terminating the Indemnitee's services as an Agent, as the case
may be, with or without cause,
In order to bind the parties to this
Indemnification Agreement, their duly authorized representations have signed
their names below on the dates indicated.
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INDEMNITEE
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By:
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Signature:
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President
and Chief Executive Officer
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Date:
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Date:
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BRIDGE
BANK, NATIONAL ASSOCI TION
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By:
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President
and Chief Executive
Officer
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Date:
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