INDEMNIFICATION AGREEMENT
Preamble
This Indemnification Agreement (this "Agreement") is made as of this
22nd day of October , 2002, by and between Sonoma National Bank, a
national banking association (the "Association"), and Xxxxx Xxxxx
("Indemnitee").
Recitals
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
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.
(a) Action, Etc., Other than by Right of the Association. 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. 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
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) 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.
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;
Procedure Upon Application. Any indemnification provided for in
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 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 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 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 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,
"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
Corporations Code. Subject to the provisions of California Corporations
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.
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.
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.
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.
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.
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.
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
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) Claims Initiated By Indemnitee. To indemnify or advance expenses
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
(c) Lack of Good Faith. To indemnify Indemnitee for any expenses
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
(d) Insured Claims. To indemnify 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 Indemnitee by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Association; or
(e) Claims under section 16(b). To indemnify Indemnitee for expenses
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.
This Agreement may by executed in one or more counterparts, each of
which shall constitute an original.
9. Successors and Assigns.
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.
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.
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.
The Paragraph and subparagraph headings in this Agreement are solely
for convenience and shall not by considered in its interpretation.
13. Waiver.
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.
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.
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.
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
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
Xxxxx X. Xxxxxx, Chairman of the Board
000 Xxxxxx 0xxxxx
Xxxxx Xxxx, XX 00000
(address)
Date Executed: October 22, 2002
AGREED TO AND ACCEPTED:
INDEMNITEE:
Signature of Xxxxx Xxxxx
0000 Xxxxx Xxxxx
0xxxx Xxxx, XX 00000
(address)
Date Executed: October 22, 2002
