EXHIBIT 10.2
HEMET BANCORP
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made and entered into as
of the 24th day of April, 2002, by and between Hemet Bancorp, a California
corporation ("Bancorp"), and _________________, (the "Indemnitee"), a director
(and/or officer) of Bancorp.
RECITALS
A. Bancorp and the Indemnitee recognize that statutes, regulations,
court opinions and Bancorp's Articles of Incorporation and Bylaws are indefinite
in providing Bancorp's directors and officers with adequate protection from
liabilities to which they may become personally exposed as a result of
performing their duties in good faith for Bancorp;
B. Bancorp and the Indemnitee are aware of the large number of lawsuits
filed against corporate directors and officers;
C. Bancorp and the Indemnitee recognize that the cost of defending
against such lawsuits may be beyond the financial resources of most directors
and officers of Bancorp;
D. Bancorp and the Indemnitee recognize that the potential risks and
liabilities of being a director and/or officer pose a significant deterrent and
increased reluctance on the part of experienced and capable individuals to serve
as a director and/or officer of Bancorp;
E. Bancorp has investigated the availability and sufficiency of
liability insurance for its directors and officers with adequate protection
against potential liabilities and has determined that such insurance provides
inadequate protection to its directors and officers, and, thus, it would be in
the best interests of Bancorp and its shareholders to contract with the
Indemnitee, to indemnify him/her to the fullest extent permitted by law against
personal liability for actions taken in the good faith performance of his/her
duties to Bancorp;
F. Section 317 of the California Corporations Code ("Section 317") sets
forth certain provisions relating to the mandatory and permissive
indemnification of directors and officers (among others) of a California
corporation by such corporation;
G. As inducement and encouragement for experienced and capable persons
such as the Indemnitee to continue to serve as a director and/or officer of
Bancorp, the Board of Directors of Bancorp has determined, after due
consideration and investigation, that this Agreement is a reasonable and prudent
means to promote and ensure the best interests of Bancorp and its shareholders;
and
H. Bancorp desires to have the Indemnitee continue to serve as a
director or officer of Bancorp free from undue concern for unpredictable,
inappropriate or unreasonable legal risks and personal liabilities by reason of
his/her acting in good faith in the performance of his/her duty to
Bancorp; and the Indemnitee desires to continue to serve as a director or
officer of Bancorp; provided, and on the express condition, that the Indemnitee
is furnished with the indemnity set forth hereinafter.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below and based on the premises set forth above, Bancorp and the
Indemnitee do hereby agree as follows:
1. AGREEMENT TO SERVE. The Indemnitee will serve or continue to serve as
a director or officer of Bancorp to the best of his/her abilities at the will of
Bancorp for so long as the Indemnitee is duly elected or appointed or until such
time as the Indemnitee tenders his/her resignation in writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending
or completed action, suit or proceeding, whether brought in the right of Bancorp
or otherwise and whether of a civil, criminal, administrative or investigative
nature, including, but not limited to, actions, suits or proceedings brought
under and/or predicated upon the Securities Act of 1933, as amended, and/or the
Securities Exchange Act of 1934, as amended, and/or their respective state
counterparts, and/or any rule or regulation promulgated thereunder, in which the
Indemnitee may be or may have been involved as a party or otherwise, by reason
of the fact that the Indemnitee is or was a director or officer of Bancorp, by
reason of any action taken by him/her or of any inaction on his/her part while
acting as such director or officer or by reason of the fact that he/she is or
was serving at the request of Bancorp as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
whether or not he/she is serving in 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 "Expenses" includes, without limitation thereto,
expenses of investigations, of judicial or administrative proceedings or
appeals, attorneys' fees and disbursements and any expenses of establishing a
right to indemnification under Paragraph 7 of this Agreement, but shall not
include the amount of judgments, settlements, fines or penalties actually levied
against the Indemnitee.
3. INDEMNITY IN THIRD PARTY PROCEEDINGS. Bancorp shall indemnify the
Indemnitee in accordance with the provisions of this section if the Indemnitee
is a party to or threatened to be made a party to or otherwise involved in any
Proceeding (other than a Proceeding by or in the right of Bancorp to procure a
judgment in its favor), by reason of the fact that the Indemnitee is or was a
director, officer, employee or agent of Bancorp or is or was serving at the
request of Bancorp as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against all
Expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred by the Indemnitee in connection with such Proceeding,
provided it is determined pursuant to Paragraph 7 of this Agreement or by the
court before which such action was brought or
2
by the shareholders of Bancorp in the manner prescribed by Section 317, that the
Indemnitee acted in good faith and in a manner which he/she reasonably believed
to be in the best interests of Bancorp and, in the case of a criminal
proceeding, in addition, had no reasonable cause to believe that his/her conduct
was unlawful. The termination of any such Proceeding by judgment, order of
court, settlement, conviction, or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption that the Indemnitee did
not act in good faith and in a manner which he/she reasonably believed to be in
the best interests of Bancorp, and with respect to any criminal proceeding, that
such person had reasonable cause to believe that his/her conduct was unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF BANCORP. Bancorp shall
indemnify the Indemnitee in accordance with the provisions of this section if
the Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding by or in the right of Bancorp to procure a judgment
in its favor by reason of the fact that the Indemnitee is or was a director,
officer, employee or agent of Bancorp or is or was serving at the request of
Bancorp as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against all Expenses
actually and reasonably incurred by the Indemnitee in connection with the
defense or settlement of such Proceeding, provided it is determined pursuant to
Paragraph 7 of this Agreement or by the court before which such action was
brought or by the shareholders of Bancorp in the manner prescribed by Section
317, that the Indemnitee acted in good faith and in a manner which he/she
believed to be in the best interests of Bancorp and its shareholders.
Notwithstanding the foregoing, no indemnification shall be made under this
Paragraph 4:
(a) in respect of any claim, issue or matter as to which the
Indemnitee shall have been adjudged to be liable to Bancorp, 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 indemnity for such Expenses
as such court shall determine;
(b) of amounts paid in settling or otherwise disposing of a
pending action without court approval;
(c) of Expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval; or
(d) in respect of any act, omission or transaction set forth in
Section 204(a)(10)(A)(i)-(vii) of the California Corporations Code.
5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits in defense of any Proceeding or in defense of any
claim, issue or matter therein, 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
pursuant to Paragraphs 3 and 4 in defending any Proceeding shall be paid by
Bancorp in advance of the final disposition of such Proceeding at the written
request of the Indemnitee, if the Indemnitee shall provide an undertaking in the
form attached hereto as Exhibit "A" to Bancorp to repay such amount
3
unless it is ultimately determined that the Indemnitee is entitled to the
payment of Expenses. The written request to Bancorp shall include a description
of the nature of the Proceeding and be accompanied by copies of any documents
filed with a court relating to the Proceeding.
Notwithstanding the foregoing or any other provision of this Agreement,
no advance shall be made by Bancorp if a determination is reasonably and
promptly made by the Board of Directors by a majority vote of a quorum of
disinterested directors, or (if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs) by independent legal
counsel, that, based upon the facts known to the Board of Directors or counsel
at the time such determination is made, (a) the Indemnitee acted in bad faith or
deliberately breached his/her duty to Bancorp or its shareholders, and (b) as a
result of such actions by the Indemnitee, it is more likely than not that it
will ultimately be determined that the Indemnitee is not entitled to
indemnification under the terms of this Agreement.
7. RIGHTS OF THE INDEMNITEE TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. To the extent a quorum of the Board of Directors of
Bancorp consisting of directors who were or are not parties to a Proceeding is
obtainable, the Board of Directors shall determine within 45 days after receipt
of the written request of the Indemnitee for indemnification whether the
Indemnitee has met the relevant standards for indemnification set forth in
Paragraphs 3 and 4 and, if it determines that such standards have been met, it
shall provide indemnification to the Indemnitee.
Notwithstanding the foregoing, the Indemnitee may request independent
counsel or may bring suit in the court in which such Proceeding is or was
pending to determine whether the Indemnitee is entitled to indemnification as
provided by this Agreement. The Indemnitee's expenses incurred in connection
with successfully establishing his/her right to indemnification, in whole or in
part, shall also be indemnified by Bancorp.
8. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by Bancorp for some or a portion
of the Expenses, judgments, fines, settlements or other amounts actually and
reasonably incurred by him/her in the investigation, defense, appeal or
settlement of any Proceeding but not, however, for the total amount thereof,
Bancorp shall nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, fines, settlements or other amounts to which the Indemnitee
is entitled.
9. DIRECTORS' AND OFFICERS' LIABILITY INSURANCE. The obtaining of
directors' and officers' liability insurance ("D&O Coverage") at the expense of
and by Bancorp shall in no way limit or diminish the obligation of Bancorp to
indemnify the Indemnitee as provided in this Agreement; provided, however, that
any amounts actually recovered by the Indemnitee from the insurer providing D&O
Coverage shall be applied in reduction of amounts otherwise owing by Bancorp by
reason of its indemnification under this Agreement and if Bancorp pays any
amounts to the Indemnitee pursuant to this Agreement, Bancorp shall be
subrogated to the Indemnitee's rights and claims against the insurer providing
D&O Coverage and the Indemnitee shall execute such documents as Bancorp shall
deem necessary to reflect such subrogation.
10. SETTLEMENT OF CLAIMS.
4
(a) If Bancorp has not obtained D&O Coverage, the Indemnitee
shall not settle any Proceeding for which he/she intends to seek indemnification
hereunder without first attempting to obtain the approval of Bancorp. If the
Indemnitee seeks such approval and such approval is not granted by Bancorp, the
Indemnitee shall be free to settle the Proceeding and pursue any procedures to
establish his/her right to indemnification as provided under this Agreement. If
the Indemnitee seeks such approval and such approval is not granted by Bancorp,
but Bancorp agrees to indemnify the Indemnitee, subject to Paragraph 4 herein,
against any Expenses, judgments, fines, settlements or other amounts actually
and reasonably incurred by the Indemnitee in connection with such Proceeding,
the Indemnitee shall not settle such Proceeding. If, however, under such
circumstances the Indemnitee does settle such Proceeding, the Indemnitee shall
forfeit his/her rights to indemnification under this Agreement.
(b) If Bancorp has obtained D&O Coverage, the Indemnitee shall
not settle any Proceeding for which he/she intends to seek indemnification
without first attempting to obtain any approval required with respect to such
settlement by the insurance carrier of any applicable D&O Coverage. If the
Indemnitee seeks such approval and such approval is not granted by the insurance
carrier of any applicable D&O Coverage, the Indemnitee shall not settle such
Proceeding without then attempting to obtain the approval of Bancorp. In the
event the Indemnitee seeks such approval from Bancorp, Bancorp and the
Indemnitee shall have the same rights and obligations as set forth in Paragraph
10(a). If the Indemnitee seeks such approval from Bancorp and such approval is
granted, Bancorp shall be subrogated to the Indemnitee's rights and claims
against the insurance carrier of any applicable D&O Coverage and the Indemnitee
shall execute such documents as Bancorp shall deem necessary to effect such
subrogation.
11. MUTUAL ACKNOWLEDGMENT. Both Bancorp and the Indemnitee acknowledge
that in certain instances, Federal law or applicable public policy may prohibit
Bancorp from indemnifying the Indemnitee under this Agreement or otherwise.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon Bancorp
and its successors and assigns and shall inure to the benefit of the Indemnitee
and the Indemnitee's spouse, heirs, executors and administrators.
13. SAVINGS CLAUSE. If this Agreement or any portion thereof be
invalidated on any ground by any court of competent jurisdiction, then Bancorp
shall nevertheless indemnify the Indemnitee as to Expenses, judgments, fines,
settlements or other amounts with respect to any Proceeding to the fullest
extent permitted by any applicable portion of this Agreement that shall not have
been invalidated or by any other applicable law.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
15. NOTICES. The Indemnitee shall, as a condition precedent to his/her
right to be indemnified under this Agreement, give to Bancorp notice in writing
as soon as practicable of any claim made against him/her for which
indemnification will or could be sought under this Agreement. Notice to Bancorp
shall be directed to Hemet Bancorp, 3715 Sunnyside Drive, Riverside, California
92506, Attention: President (or such other address as Bancorp shall designate in
writing to the Indemnitee).
5
16. MODIFICATION AND AMENDMENT. No amendment, modification, termination
or cancellation of this Agreement, except as permitted pursuant to Section 11
above, shall be effected unless in writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year set forth above.
INDEMNITEE HEMET BANCORP
By By:
--------------------------- ---------------------------------
Its:
--------------------------------
6
EXHIBIT A
HEMET BANCORP
UNDERTAKING
TO: James B. Jaqua, President
Hemet Bancorp
3715 Sunnyside Drive
Riverside, California 92506
I, ______________, a director or officer of Hemet Bancorp, a California
corporation, pursuant to Section 317(f) of the California Corporations Code and
the terms of my Indemnification Agreement with Hemet Bancorp agree to repay
Hemet Bancorp for all Expenses advanced on my behalf in defense of any
Proceeding or in defense of any claim, issue or matter therein, prior to the
disposition of such Proceeding, unless it shall be ultimately determined that I
am entitled to indemnification under Section 317 of the California Corporations
Code or Hemet Bancorp's Articles of Incorporation, Bylaws or my Indemnification
Agreement.
Dated:
---------------------
INDEMNITEE
By
----------------------------------
7