EXHIBIT 10.9
COMMUNITY WEST BANCSHARES
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made as of the 20th day
of December, 2001 by and between Community West Bancshares, a California
corporation (the "Company"), and Xxxxx Xxxxx ("Indemnitee"), a director or
officer of the Company with reference to the following facts:
A. The Company and the Indemnitee recognize that interpretations of
ambiguous statutes, regulations, court opinions, and the Company's Articles of
Incorporation and Bylaws, are too uncertain to provide the Company's officers
and directors with adequate or reliable advance knowledge or guidance with
respect to the legal risks and potential liabilities to which they may become
personally exposed as a result of preforming their duties in good faith for the
Company;
B. The Company and the Indemnitee are aware of the substantial growth
in the number of lawsuits filed against corporate officers and directors in
connection with their activities in such capacities and by reason of their
status as such;
C. The Company and the Indemnitee recognize that the cost of defending
against such lawsuits, whether or not meritorious, is typically beyond the
financial resources of most officers and directors of the Company;
D. The Company and the Indemnitee recognize that legal risks and
potential officer or director liabilities, or the threat thereof, and the
resultant substantial time and expense endured in defending against such
lawsuit, bear no reasonable logical relationship to the amount of compensation
received by the Company's officers or directors. These factors pose a
significant deterrent to, and induce increased reluctance on the part of,
experienced and capable individuals to serve as officers or directors of the
Company;
E. The Company has investigated the availability and deficiency of
liability insurance to provide its officers and directors with adequate
protection against the foregoing legal risks and potential liabilities. The
Company has concluded that such insurance provides only limited protection to
its officers and directors, and that it is in the best interests of the Company
and its shareholders to contract with its officers and directors, including the
Indemnitee, to indemnify them to the fullest extent permitted by law against
personal liability for actions taken in the good faith performance of their
duties to the Company;
F. Section 317 of the General Corporation Law of the State of
California, which sets forth certain provisions relating to mandatory and
permissive indemnification of officers and directors of a California corporation
by such corporation, requires indemnification in certain circumstances, permits
it in other circumstances, and prohibits it in some circumstances;
G. The Board of Directors of the Company has determined, after due
consideration and investigation of this Agreement and various other options
available in lieu hereof, that the following Agreement is reasonable, prudent
and necessary to promote and ensure the best interests of the Company and its
shareholders in that Agreement is intended to: (1) induce and encourage highly
experienced and capable persons such as the Indemnitee to serve as officers
and/or directors of the Company; (2) encourage such persons to resist what they
consider unjustifiable suits and claims made against them in connection with the
good faith performance of their duties to the Company, secure in knowledge that
certain expenses, costs and liabilities incurred by them in their defense of
such litigation will be borne by the Company and that they will receive the
maximum protection against such risks and liabilities as legally may be made
available to them; and (3) encourage officers and directors to exercise their
best business judgment regarding matters which come before the Board of
Directors without undue concern for the risk that claims may be made against
them on account thereof; and
H. The Company desires to have the Indemnitee continue to serve as an
officer or director of the Company free from concern for unpredictable,
inappropriate or unreasonable legal risk and personal liabilities by reason of
Indemnitee acting in good faith in the performance of Indemnitee's duty to the
Company. The Indemnitee desires to continue to serve as an officer or director
of the Company, provided, and on the express condition, that he is furnished
with the indemnity set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below and based on the premises set forth above, the Company and
Indemnitee do hereby agree as follows:
1. Definitions. For the purposes of this Agreement, the following
-----------
definitions shall apply:
(a) The term "Agent" shall mean any person who is or was acting in
his\her capacity as a director or officer of the Company, or is or was serving
as a director, officer, employee or agent of any other enterprise at the request
of the Company, and whether or not Indemnitee is serving in any such capacity at
the time any liability or expense is incurred for which indemnification or
reimbursement can be provided under this Agreement.
(b) The term "Applicable Standard" means that a person acted in
good faith and in a manner such person reasonably believed to be in the best
interests of the Company; except that in a criminal proceeding, such person must
also have had no reasonable cause to believe that such person'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 any presumption, or establish, that the person did not meet the
"Applicable Standard."
(c) The term "Expenses" includes, without limitation, expenses of
investigations, judicial or administrative proceedings or appeals, court costs,
attorneys' fees and disbursements and any expenses of establishing a right to
indemnification under law or Paragraph 7 of this Agreement. "Expenses" shall
-----
not include the amount of any judgment, fines or penalties actually levied
--- -------
against Indemnitee or amounts paid in settlement of a Proceeding by or on behalf
of Indemnitee without court approval.
(d) "Independent Legal Counsel" shall include any firm of
attorneys selected by lot by the regular outside counsel for the Company from a
list of firms which meet minimum size criteria and other reasonable criteria
established by the Board of Directors of the Company, so long as such firm has
not represented the Company, Indemnitee or any entity controlled by Indemnitee
within the preceding 24 calendar months.
(e) References to "other enterprise" shall include employee
benefit plans; references to "fines" shall include any excise tax assessed with
respect to any employee benefit plan; references to "serving at the request of
the Company" shall include any service as a director or officer of the Company
which imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acts in good faith and in a manner Indemnitee reasonably believes to
be in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
(f) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the name of the Company
or otherwise and whether of a civil, criminal, administrative or investigative
nature, in which Indemnitee may be or may have been involved as a party or
otherwise (other than as plaintiff against the Company), by reason of the fact
that Indemnitee is or was an Agent of the Company or by reason of any action
taken by Indemnitee or of any inaction on Indemnitee's part while acting as such
Agent.
2. Agreement to Serve. Indemnitee agrees to serve or continue to serve
------------------
as a director and/or officer of the Company at the will of the Company or in
accordance with the terms of any agreement with the Company, as the case may be,
for so long as Indemnitee is duly elected or appointed, or until such time as
Indemnitee tenders Indemnitee's resignation in writing or Indemnitee's service
is terminated.
3. Indemnity in Third Party Proceedings. The Company shall indemnify
--------------------------------------
Indemnitee if Indemnitee is made a party to or threatened to be made a party to,
or otherwise involved in, any Proceeding (other than a Proceeding which is an
action by or in the right of the Company to procure a judgment in its favor), by
reason of the fact that Indemnitee is or was an Agent of the Company. This
indemnity shall apply, and be limited, to and against all Expenses, judgments,
fines, penalties, settlements, and other amounts, actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of the
Proceeding, so long as it is determined pursuant to Paragraph 7 of this
Agreement or by the court before which such action was brought, that Indemnitee
met the Applicable Standard.
4. Indemnity in Proceeding By or In the Name of the Company. The
--------------------------------------------------------------
Company shall indemnify Indemnitee if Indemnitee is made a party to, or
threatened to be made a party to, or otherwise involved in, any Proceeding which
is an action by or in the right of the Company to procure a judgment in its
favor by reason of the fact that Indemnitee is or was an Agent of the Company.
This indemnity shall apply, and be limited, to and against all Expenses actually
and reasonably incurred by Indemnitee in connection with the defense or
settlement of such Proceeding, but only if: (a) Indemnitee met the Applicable
Standard (except that the Indemnitee's belief regarding the best interests of
the Company need not have been reasonable); (b) Indemnitee also acted in a
manner Indemnitee believed to be in the best interests of the Company's
shareholders; and (c) the action is not settled or otherwise disposed of without
court approval. No indemnification shall be made under this Paragraph 4 in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company in the performance of such person's duty or
the Company, 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 indemnification for the expenses which such court shall determine.
5. Expenses of Successful Indemnitee. Notwithstanding any other
------------------------------------
provision of this Agreement, to the extent the Indemnitee has been successful on
the merits in defense of any Proceeding referred to in Paragraphs 3 or 4 hereof,
or in defense of any claim, issue or matter therein, including the dismissal of
an action or portion thereof without prejudice, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred in connection therewith.
6. Advances of Expenses. The Expenses incurred by Indemnitee in any
----------------------
Proceeding shall be advanced by the Company prior to the final disposition of
such proceeding at the written request of Indemnitee, but only if Indemnitee
shall undertake to repay such advances if it is ultimately determined that the
Indemnitee is not entitled to indemnification as provided for in this Agreement.
Any advance required hereunder shall be deemed to have been approved by the
Board of Directors of the Company to the extent this Agreement was so approved.
In determining whether or not to make an advance hereunder, the ability of
Indemnitee to repay shall not be a factor. However, in a Proceeding brought by
the Company directly, in its own right (as distinguished from an action brought
derivatively or by any receiver or trustee), the Company shall have discretion
whether or not to make the advances called for hereby if Independent Legal
Counsel advises in writing that the Company has probable cause to believe, and
the Company does believe, that Indemnitee did not act in good faith with regard
to the subject matter of the Proceeding or a material portion thereof.
7. Right of Indemnitee to Indemnification Upon Application; Procedure
--------------------------------------------------------------------
Upon Application. Any advance under Paragraphs 5 and/or 6 hereof or
-----------------
indemnification shall be made no later than 45 days after receipt of a written
request of Indemnitee in accordance with Paragraph 11 hereof. In all other
cases, indemnification shall be made by the Company only if authorized in the
specific case, upon a determination that indemnification of the Agent is proper
under the circumstances and the terms of this Agreement by: (a) a majority vote
of a quorum of the Board of Directors (or a duly constituted committee thereof),
consisting of directors who are not parties to such Proceeding; (b) approval of
the shareholders (as defined in Section 153 of the California Corporations Code,
as that Section reads at present), with the Indemnitee's shares not being
entitled to vote thereon; (c) the court in which such Proceeding is or was
pending upon application made by the Company, the Indemnitee or any person
rendering services in connection with Indemnitee's defense, whether or not the
Company opposes such application; or (d) to the extent permitted by law, by
Independent Legal Counsel in a written opinion.
The right to indemnification or advances as provided by this Agreement
shall be enforceable by Indemnitee in any court of competent jurisdiction. The
burden of proving that indemnification or advances are not appropriate shall be
on the Company. Neither the failure of the Company (including its Board of
Directors, Independent Legal Counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification or
advances are proper in the circumstances because Indemnitee has met the
Applicable Standard of Conduct, nor an actual determination by the Company
(including its Board of Directors or Independent Legal Counsel) that Indemnitee
has not met such Applicable Standard of Conduct, shall be a defense to the
action or create a presumption that Indemnitee has not met the Applicable
Standard of Conduct. Indemnitee's Expenses incurred in connection with
successfully establishing Indemnitee's right to indemnification or advances in
any such Proceeding shall also be indemnified by the Company; provided, however,
that if Indemnitee is only partially successful in establishing Indemnitee's
right to indemnification or advances, only an equitably allocated portion of
such Expenses, as determined by the court, shall be indemnified.
If Indemnitee is entitled under any provision of this Agreement or
indemnification by the Company, for some or a portion of the Expenses,
judgments, fines or penalties actually and reasonably incurred by Indemnitee in
the investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion (determined on an equitable basis) of such Expenses,
judgments, fines or penalties to which Indemnitee is entitled.
8. Indemnification Hereunder Not Exclusive. The indemnification
------------------------------------------
provided by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may be entitled under the Articles of Incorporation, the
Bylaws, any agreement, any vote of shareholders or disinterested directors, the
General Corporation Law of the State of California, or otherwise, both as to
action in Indemnitee's official capacity and as to action in another capacity
while holding such office. The indemnification under this Agreement shall
continue as to Indemnitee even though Indemnitee may have ceased to be a
director or officer and shall inure to the benefit of the heirs and personal
representatives of Indemnitee.
9. Limitations. The Company shall not be liable under this Agreement
-----------
to make any payment in connection with any claim made against the Indemnitee:
(a) for which payment is actually made to the Indemnitee under a
valid and collectible insurance policy, provided, however, that the Company
shall remain liable for any payments required by this Agreement in excess of the
amount of payment under such insurance;
(b) for which the Indemnitee is indemnified by the Company
otherwise than pursuant to this Agreement;
(c) for an accounting of profits made from the purchase or sale by
the Agent of securities of the Company within the meaning of Section 16(b) of
the Securities Exchange Act of 1934 and amendments thereto or similar provisions
of any state statutory law or common law;
(d) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law;
(e) for acts or omissions that the Indemnitee believes to be
contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the Indemnitee;
(f) for any transaction from which the Indemnitee derived an
improper personal benefit;
(g) for acts or omissions that show a reckless disregard for the
Indemnitee's duty to the Company or its shareholders in circumstances in which
the Indemnitee was aware, or should have been aware, in the ordinary course of
performing Indemnitee's duties, of a risk of serious injury to the Company or
its shareholders;
(h) for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the Indemnitee's duty to the
Company or its shareholders;
(i) under Section 310 of the General Corporation Law of the State
of California, as that Section reads at present; or
(j) under Section 316 of the General Corporation Law of the State
of California, as that Section reads at present.
10. Savings Clause. If this Agreement or any portion hereof is
---------------
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee as to Expenses, judgments, fines
and penalties with respect to any Proceeding to the full extent permitted by any
applicable portion of this Agreement by any other applicable law.
11. Notices. Indemnitee shall, as a condition precedent to
-------
Indemnitee's right to be indemnified under this Agreement, give to the Company
notice in writing within thirty (30) days after Indemnitee becomes aware of any
claim made against Indemnitee for which Indemnitee believes, or should
reasonably believe, indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the Company's main
office, Attention: President (or such other address as the Company shall
designate in writing to Indemnitee). Failure to so notify the Company shall not
relieve the Company of any liability which it may have to Indemnitee otherwise
than under this Agreement.
All notices, requests, demands and other communications (collectively
"notices") provided for under this Agreement shall be in writing (including
communications by telephone, or telecommunication facilities providing facsimile
transmission) and mailed (postage prepaid and return receipt requested),
telegraphed, telexed, transmitted or personally served to each party at the
address set forth at the end of this Agreement or at such other address as any
party affected may designate in a written notice to the other parties in
compliance with this section. All such notices shall be effective when
received; provided, however, receipt shall be deemed to be effective within
three (3) business days of any properly addressed notice having been deposited
in the mail, within twenty-four (24) hours from the time electronic transmission
was made, or upon actual receipt of electronic delivery, whichever occurs first.
No costs, charges or expenses for which indemnity shall be sought
hereunder shall be incurred without the Company's consent, which consent shall
not be unreasonably withheld.
12. Choice of Law. This Agreement shall be interpreted and enforced in
-------------
accordance with the laws of the State of California, including applicable
statutes of limitations and other procedural statutes.
13. Attorneys' Fees. If any legal action is necessary to enforce the
----------------
terms of this Agreement, the prevailing party shall be entitled to recover, in
addition to the amounts to which the prevailing party may be entitled, actual
attorneys' fees and court costs as may be awarded by the court.
14. Amendments. Provisions of this Agreement may be waived, altered,
----------
amended or repealed in whole or in part only by the written consent of all
parties.
15. Parties in Interest. Nothing in this Agreement, whether express or
-------------------
implied, is intended to confer any rights or remedies under or by reason of this
Agreement to any persons other than the parties to it and their respective
successors and assigns (including an estate of Indemnitee), nor is anything in
this Agreement intended to relieve or discharge the obligation or liability of
any third persons to any party hereto. Furthermore, no provision of this
Agreement shall give any third persons any right of subrogation or action
against any party hereto.
16. Severability. If any portion of this Agreement shall be deemed by
------------
a court of competent jurisdiction to be unenforceable, the remaining portions
shall be valid and enforceable only if, after excluding the portion deemed to be
unenforceable, the remaining terms shall provide for the consummation of the
transaction contemplated herein in substantially the same manner as originally
set forth at the date this Agreement was executed.
17. Successors and Assigns. All terms and conditions of this Agreement
----------------------
shall be binding upon and shall inure to the benefit of the parties and their
respective transferees, successors and assigns; provided, however, that this
Agreement and all rights, privileges, duties and obligations of the parties, may
not be assigned or delegated by any party without the prior written consent of
the other parties.
18. Counterparts. This Agreement may be executed simultaneously in one
------------
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
19. Entire Agreement. Except as provided in Paragraph 8 hereof, this
-----------------
Agreement represents and contains the entire agreement and understanding between
and among the parties, and all previous statements or understandings, whether
express or implied, oral or written, relating to the subject matter hereof are
fully and completely extinguished and superseded by this Agreement. This
Agreement shall not be altered or varied except by a writing duly signed by all
of the parties.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
COMMUNITY WEST BANCSHARES
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
By: ______________________________
Xxxxxxx Xxxxxxxxx
Its: Chairman of the Board of Directors
"Indemnitee"
____________________________________
Xxxxx Xxxxx
Address: ____________________________________
____________________________________
