FCB BANCORP INDEMNIFICATION AGREEMENT
Exhibit 10.3
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made as of the ___day of ___, ___
by and between FCB Bancorp, a California corporation (the “Company”), and ______(the
“Indemnitee”), a director or officer of the Company with reference to the following facts:
RECITALS
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 performing 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 lawsuits, 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 this Agreement is intended to: (i) induce and
encourage highly experienced and capable persons such as the Indemnitee to serve as
officers and/or directors of the Company; (ii) encourage such persons to defend 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 the 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 (iii) 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;
H. Article Six of the Company’s Articles of Incorporation, Article VI of the Company’s Bylaws,
and California Corporations Code Section 317 authorize indemnification of persons who serve or
served as officers or directors of the Company; and
I. 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 the Indemnitee do hereby agree as follows:
AGREEMENT
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 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 he 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.
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(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, the Indemnitee or any entity controlled by the Indemnitee
within the preceding twenty-four (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 he 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 the Indemnitee is or was an Agent of the Company or by reason of any action taken by him
or of any inaction on his part while acting as such Agent.
(g) “Registration Statement” means any registration statement previously filed or hereafter
filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”) on any
applicable form (including Forms S-8 and S-4) for the registration of any securities of the Company
under the Securities Act, including, without limitation, debt and equity securities, guarantees,
back-up undertakings, rights, warrants and options and interest in employee benefit plans, and
shall include any amendment, post-effective or otherwise, thereto and any related registration
statement filed pursuant to Rule 462 under the Securities Act.
2. Agreement to Serve. The 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 he is duly elected or
appointed, or until such time as he tenders his resignation in writing or his service is
terminated.
3. Indemnity in Third Party Proceedings. The Company shall indemnify the Indemnitee
if the 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 the 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 the
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 the Indemnitee met the Applicable Standard.
4. Indemnity in Proceeding By or In the Name of the Company. The Company shall
indemnify the Indemnitee if the 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 the Indemnitee is or was an Agent of
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the Company. This indemnity shall apply, and be limited, to and against all expenses actually
and reasonably incurred by the Indemnitee in connection with the defense or settlement of such
Proceeding, but only if: (a) the Indemnitee met the Applicable Standard (except that the
Indemnitee’s belief regarding the best interests of the Company need not have been reasonable); (b)
the Indemnitee also acted in a manner he 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 the 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 the Indemnitee is fairly and reasonably entitled to indemnification for
the expenses which such court shall determine.
Notwithstanding the foregoing provisions of this Paragraph 4, the Company and the Indemnitee
agree that insofar as indemnification for liabilities arising under the Securities Act may be
permitted under this Agreement to the Indemnitee, in the event that a claim for indemnification
against such liabilities is made by the Indemnitee (other than the payment by the Company of
expenses incurred or paid by the Indemnitee in the successful defense of any action, suit or
proceeding) in connection with a Registration Statement, the Company will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act, and the Company and the Indemnitee will be governed by the final
adjudication of such question.
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, the Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred in connection therewith.
6. Advances of Expenses. The Expenses incurred by the Indemnitee in any Proceeding
shall be advanced by the Company prior to the final disposition of such proceeding at the written
request of the Indemnitee, but only if the 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 the 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 the
Indemnitee did not act in good faith with regard to the subject matter of the Proceeding or a
material portion thereof.
The Company shall be entitled to participate in the Proceeding and to assume the defense
thereof, with counsel chosen by the Company reasonably satisfactory to the Indemnitee, and after
notice from the Company to the Indemnitee of its election to assume the defense thereof, the
Company shall not be liable to the Indemnitee under this Paragraph 6 for any Expenses of other
counsel or any other Expenses, in each case, subsequently incurred by such Indemnitee, in
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connection with the defense thereof, other than reasonable costs of investigation actually
incurred by the Indemnitee. In the event that after notice of such an action the Company does not
assume the complete defense thereof, then the Indemnitee may, but shall not be obligated, to
conduct a defense of the action with counsel of the Indemnitee’s choosing reasonably satisfactory
to the Company, with reasonable attorneys’ fees and other reasonable Expenses to be paid by the
Company within thirty (30) days of the delivery of each invoice therefor to the Company. In all
cases, no settlement shall be entered into without the express prior written consent of the
Company. The Company and the Indemnitee shall cooperate fully in the defense of any Proceeding
regardless of which party assumes the defense; provided, further, the Indemnitee’s cooperation
shall be without compensation.
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 forty-five (45) days after receipt of a written request of the 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 the Indemnitee’s defense, whether or not the Company opposes such
application; or (d) to the extent permitted by law, and only if the court refuses or is unable to
rule, by Independent Legal Counsel in a written opinion.
The right to indemnification or advances as provided by this Agreement shall be enforceable by
the 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 the 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 the Indemnitee has not met such Applicable Standard of Conduct, shall be a defense to the
action or create a presumption that the Indemnitee has not met the Applicable Standard of Conduct.
The Indemnitee’s Expenses incurred in connection with successfully establishing his or her right to
indemnification or advances in any such Proceeding shall also be indemnified by the Company;
provided, however, that if the Indemnitee is only partially successful in establishing his right to
indemnification or advances, only an equitably allocated portion of such Expenses, as determined by
the court, shall be indemnified.
If the 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 the Indemnitee in the investigation, defense, appeal or settlement of any
Proceeding but not, however, for the total amount thereof, the Company shall nevertheless indemnify
the Indemnitee for the portion (determined on an equitable basis) of such Expenses, judgments,
fines or penalties to which the Indemnitee is entitled.
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The Company’s obligations to advance or indemnify hereunder shall be deemed satisfied to the
extent of any payments made by an insurer on behalf of the Company or the Indemnitee.
8. Indemnification Hereunder Not Exclusive. The indemnification provided by this
Agreement shall not be deemed exclusive of any other rights to which the 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 the Indemnitee’s official capacity and as to action in another capacity while
holding such office. The indemnification under this Agreement shall continue as to the Indemnitee
even though the Indemnitee may have ceased to be a director or officer and shall inure to the
benefit of the heirs and personal representatives of the 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 or for the benefit of 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 1994 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 his or her 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.
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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 the
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 or by any other applicable law.
11. Notices. The Indemnitee shall, as a condition precedent to the Indemnitee’s right
to be indemnified under this Agreement, give to the Company notice in writing within thirty (30)
days after he becomes aware of any claim made against him or her for which he or she 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 the Indemnitee). Failure to so notify the
Company shall not relieve the Company of any liability which it may have to the 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, telex 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 the
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.
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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.
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“Indemnitee”
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