Exhibit 10(c)
INDEMNIFICATION AGREEMENT
Preamble
--------
This Indemnification Agreement (this "Agreement") is made as of this
27th day of September, 2005, by and between Northern Empire Bancshares, a
California corporation (the "Company"), and Xxxxxxx X. Xxxxxxx
("Indemnitee").
Recitals
--------
A. The Company 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 Company 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 Company 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 Company may not be willing to
continue to serve as directors, officers and agents without additional
protection.
D. The Company desires to attract and retain the services of highly
qualified individuals, such as 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.
Agreement
---------
Based upon the facts and premises contained in the above Recitals and
in consideration of the mutual promises below, the Company and Indemnitee
hereby agree as follows:
1. Indemnification and Expense Advancement.
----------------------------------------
(a) Action, Etc., Other than by Right of the Company. The Company
-------------------------------------------------
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 Company to procure a judgment in its favor) by
reason of the fact that 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 Indemnitee
acted in good faith and in a manner 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 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 Company or that Indemnitee had reasonable cause
to believe that Indemnitee's conduct was unlawful.
(b) Action, Etc., By or in the Right of the Company. The Company
------------------------------------------------
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 Company to procure a judgment in its
favor by reason of the fact that Indemnitee is or was an Agent of the
Company, 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 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
Indemnitee shall have been adjudged to be liable to the
Company in the performance of 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, 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 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 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 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 Company 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
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 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 Indemnitee or else by Company 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 Company's Articles of Incorporation
or Bylaws providing for indemnification or advance of expenses has been
given to the Company by 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,
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, 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 Company 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 Company (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
Company (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
Company's Articles of Incorporation, 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 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 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 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 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.
(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.
(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 Company shall indemnify Indemnitee pursuant to this
Subparagraph (l) if the Company 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 Company" is replaced with the phrase "in a manner
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 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 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 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.
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 Company'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
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 Indemnitee's rights and
Company'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 Indemnitee for acts
committed, or lack of action, by Indemnitee after such amendment. The
Company agrees to give 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 Indemnitee may be entitled under the
Bank's Articles of Incorporation, 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 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 Indemnitee for the
portion of such expenses, judgments, fines or penalties to which
Indemnitee is entitled.
5. Mutual Acknowledgement.
-----------------------
Both the Company and 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
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
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 Indemnitee. Furthermore, Indemnitee and
Company 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 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 Company to indemnify 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 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.
(b) Applicable Law. To indemnify Indemnitee for expenses, penalties
---------------
or other payments, or for any other amounts, in violation of applicable
banking laws or regulations including, but not limited to, Xxxxxxx 00
X.X.X. 0000(x) of the Federal Deposit Insurance Act, the regulations of
the Federal Deposit Insurance Corporation thereunder, or the regulations
of the Office of the Comptroller of the Currency, as now or hereafter in
effect.
(c) 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 Company in specific cases if the Board of Directors finds it to by
appropriate; or
(d) 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
(e) 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 Company; or
(f) 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 Company 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
Company.
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
Company 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 Company's Articles of
Incorporation and Bylaws. It may by amended only by a written instrument
signed by a duly authorized officer of Company 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 Company 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
Company. Nothing in this Agreement shall preclude Indemnitee from
resigning as an Agent of the Company 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.
Northern Empire Bancshares
By /s/ Xxxxxx X. Xxxxxx
---------------------
000 Xxxxxx 0xxxxx
Xxxxx Xxxx, XX 00000
(address)
Date Executed: September 27, 2005
AGREED TO AND ACCEPTED:
INDEMNITEE:
/s/ Xxxxxxx X. Xxxxxxx
Signature of Xxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
(address)
Date Executed: September 27, 2005
11
