EXHIBIT 10 (a)
INDEMNIFICATION AGREEMENT
PREAMBLE
This Indemnification Agreement (this "Agreement") is made as
of this 14th day of May, 1996, by and between Sonoma National Bank, a
national banking association (the "Association"), and Xxxxxxx X.
Xxxxxxxxx ("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:___________________
AGREED TO AND ACCEPTED:
INDEMNITEE:
Signature of Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxx
0xxxx Xxxx, XX 00000
(address)
Date Executed:
