Exhibit 10.24
MONTEREY BAY BANK
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of this _____ day
of August, 2002, by and between Monterey Bay Bank, a federal savings institution
(the "Bank"), and _______________ ("Indemnitee").
WHEREAS, the Bank and Indemnitee recognize the increasing difficulty in
obtaining directors' and officers' liability insurance, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance;
WHEREAS, the Bank and Indemnitee further recognize the substantial increase
in corporate litigation in general, subjecting officers and directors to
expensive litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited;
WHEREAS, Indemnitee does not regard the current protection available as
adequate under the present circumstances, and Indemnitee and other officers and
directors of the Bank may not be willing to continue to serve as officers and
directors without additional protection; and
WHEREAS, the Bank desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as officers and directors of
the Bank and to indemnify its officers and directors so as to provide them with
the maximum protection permitted by law.
NOW, THEREFORE, the Bank and Indemnitee hereby agree as follows:
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Monterey Bay Bank
Form Of Indemnification Agreement, Continued
1. Indemnification.
(a) General. The Bank shall indemnify Indemnitee if Indemnitee is or
was a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the Bank, or any subsidiary of the Bank, by reason
of any action or inaction on the part of Indemnitee while an officer or director
or by reason of the fact that Indemnitee is or was serving at the request of the
Bank as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, with respect to any
amount for which Indemnitee becomes liable under a judgment in connection with
such action, suit or proceeding, and reasonable expenses, including reasonable
attorneys' fees, actually paid or incurred by Indemnitee in defending or
settling such action, suit or proceeding, or in enforcing Indemnitee's rights to
indemnification if Indemnitee obtains a favorable judgment in such action, suit
or proceeding, provided that indemnification shall be made to Indemnitee only if
Indemnitee obtains a final judgment on the merits in his or her favor or, in
case of settlement, final judgment against Indemnitee, or final judgment in
Indemnitee's favor, other than on the merits, if such indemnification is
approved by a majority of disinterested directors of the Bank who conclude that
Indemnitee acted in good faith within the scope of his or her employment or
authority as Indemnitee could reasonably have perceived and for a purpose that
Indemnitee could reasonably have believed, under the circumstances, to be in the
best interests of the Bank.
(b) No indemnification shall be provided by the Bank pursuant to
Subsection 1(a) unless the Bank gives the Office of Thrift Supervision, or any
successor thereto (the "OTS"), at least 60 days notice of its intention to make
such indemnification, and the OTS does not advise the Bank in writing within
such 60 day period, of its objection to such indemnification.
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Monterey Bay Bancorp, Inc.
Form Of Indemnification Agreement, Continued
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. If a majority of the directors of the Bank
concludes that, in connection with an action, suit or proceeding referenced in
Subsection 1(a), Indemnitee ultimately may become entitled to indemnification
pursuant to Section 1, the directors may authorize the payment of reasonable
costs and expenses, including reasonable attorneys' fees, arising from the
defense or settlement of such action, suit or proceeding. Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Bank as authorized hereby. The advances to be made hereunder
shall be paid by the Bank to Indemnitee within ten (10) days following
authorization thereof by the directors of the Bank, at a special or regular
meeting of the directors of the Bank, which meeting shall be held as promptly as
possible, pursuant to the Bank' Bylaws, after delivery of a written request for
the advancement of expenses by Indemnitee to the Bank.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition
precedent to his right to be indemnified under this Agreement, give the Bank
notice in writing as soon as practicable of any claim made against Indemnitee
for which indemnification will or could be sought under this Agreement. Notice
to the Bank shall be directed to the Secretary of the Bank at the address shown
on the signature page of this Agreement (or such other address as the Bank shall
designate in writing to Indemnitee). Notice shall be deemed received five (5)
days after the date postmarked, if sent by domestic certified or registered
mail, properly addressed; otherwise when such notice shall actually be received
by the Bank. In addition, Indemnitee shall (i) give the Bank such information
and cooperation as it may reasonably require and as shall be within Indemnitee's
power and (ii) upon request of the Bank testify at, or be deposed in connection
with, any proceeding to adjudicate or consider a claim against Indemnitee for
which indemnification will or could be sought under this Agreement.
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Monterey Bay Bancorp, Inc.
Form Of Indemnification Agreement, Continued
(c) Procedure. Any indemnification and advancement of expenses provided
for in Section 1 and this Section 2 shall be made as promptly after the
expiration of OTS' sixty (60) day notice period as possible. Upon receipt of the
written request of Indemnitee, if the Bank can provide such indemnification and
advancement of expenses without approval of its directors, notice thereof shall
be sent to the OTS within five (5) days of receipt of the written request of
Indemnitee by the Bank, copying Indemnitee on such notice. In the event that
director approval is required, then the Bank shall notify its directors and hold
a special or regular meeting as promptly as possible pursuant to its Bylaws, and
upon action by its directors, if a majority of the directors approve such
indemnification and advancement of expenses, notice thereof shall be sent the
same day to the OTS with a copy of such notice also being sent to Indemnitee. If
the OTS objects to such indemnification and/or advancement of expenses written
notice thereof shall be sent to the Indemnitee promptly following the Bank's
receipt of such notice from the OTS. If a claim under this Agreement, under any
statute, or under any provision of the Bank's Charter or Bylaws providing for
indemnification, is not paid in full by the Bank within fifteen (15) days after
the expiration of the OTS' sixty (60) day notice period, if no objection to such
indemnification was made by the OTS, Indemnitee may, but need not, at any time
thereafter bring an action against the Bank to recover the unpaid amount of the
claim and, if successful in whole or in part, Indemnitee shall also be entitled
to 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 Bank
to indemnify Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the Bank, and Indemnitee shall be entitled to receive
interim payments of expenses pursuant to Subsection 2(a) unless and until such
defense may be finally adjudicated by court order or judgment from which no
further right of appeal exists. It is the parties' intention that, if the Bank
contests Indemnitee's right to indemnification, the question of Indemnitee's
right to indemnification shall be for the court to decide, and neither the
failure of the Bank (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 Bank (including its Board of Directors, any committee or
subgroup of the 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.
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Monterey Bay Bancorp, Inc.
Form Of Indemnification Agreement, Continued
(d) Notice to Insurers. If, at the time of the receipt of a notice of a
claim pursuant to Subsection 2(b) hereof, the Bank has director and officer
liability insurance in effect, the Bank shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Bank shall thereafter take
all necessary or desirable action to cause such insurers to pay, on behalf of
the Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(e) Selection of Counsel. In the event a majority of the directors of
the Bank shall determine under Subsection 2(a) hereof to pay the expenses of any
proceeding against the Indemnitee, the Bank, if appropriate, shall be entitled
to assume the defense of such proceeding, with counsel approved by the
Indemnitee, which counsel may be counsel for the Bank, upon the delivery to the
Indemnitee of written notice of its election so to do. After delivery of such
notice, approval of such counsel by the Indemnitee and the retention of such
counsel by the Bank, the Bank will not be liable to the Indemnitee under this
Agreement for any fees of counsel subsequently incurred by the Indemnitee with
respect to the same proceeding, provided that (i) the Indemnitee shall have the
right to employ his counsel in any such proceeding, at the Indemnitee's sole
expense; and (ii) if (A) the employment of counsel by the Indemnitee has been
previously authorized by the Bank, (B) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Bank and the
Indemnitee in the conduct of any such defense or (C) the Bank shall not, in
fact, have employed counsel to assume the defense of such proceeding, the fees
and expenses of Indemnitee's counsel shall be at the expense of the Bank.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this Agreement, the
Bank hereby agrees to indemnify the Indemnitee to the fullest extent permitted
by law, notwithstanding that such indemnification is not specifically authorized
by the other provisions of this Agreement, the Bank's Charter, the Bank's Bylaws
or by statute. 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 federal
savings institution to indemnify a member of its board of directors or an
officer, such changes shall be, ipso facto, within the purview of Indemnitee's
rights and Bank's obligations, under this Agreement. In the event of any change
in any applicable law, statute or rule which narrows the right of a federal
savings institution 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.
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Monterey Bay Bancorp, Inc.
Form Of Indemnification Agreement, Continued
(b) Nonexclusivity. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which an Indemnitee may be
entitled under the Bank's Charter, its Bylaws, any agreement, any vote of
stockholders or disinterested Directors, the Home Owners' Loan Act of 1933, as
amended, and the regulations promulgated thereunder, the Federal Deposit
Insurance Act, and the regulations promulgated thereunder, each as may be
amended from time to time, or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such office
(each 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 Bank for some or a portion of the
expenses, judgments, fines or penalties actually and reasonably incurred by him
in the investigation, defense, appeal or settlement of any action, suit or
proceeding, but not, however, for the total amount thereof, the Bank shall
nevertheless indemnify Indemnitee for the portion of such expenses, judgments,
fines or penalties to which Indemnitee is entitled.
5. Mutual Acknowledgment. Both the Bank and Indemnitee acknowledge that in
certain instances, Federal law or public policy may prohibit the Bank from
indemnifying its directors and officers under this Agreement or otherwise. For
example, the Company and Indemnitee acknowledge that the Bank, a federal savings
institution, is subject to the prohibitions and limitations on indemnification
set forth in the federal banking laws including, without limitation, Sections
8(k) and 18(k) of the Federal Deposit Insurance Act and the regulations
promulgated thereunder.
6. Officer and Director Liability Insurance. The Bank shall, from time to
time, make the good faith determination whether or not it is practicable for the
Bank to obtain and maintain a policy or policies of insurance with reputable
insurance companies providing the officers and directors of the Bank with
coverage for losses from wrongful acts, or to ensure the Bank's performance of
its indemnification obligations under this Agreement. Among other
considerations, the Bank will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. Notwithstanding the
foregoing, the Bank shall have no obligation to obtain or maintain such
insurance if the Bank determines in good faith that such insurance is not
reasonably available, the premium costs for such insurance are disproportionate
to the amount of coverage provided, the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or the
Indemnitee is covered by similar insurance maintained by a subsidiary or parent
company of the Bank.
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Monterey Bay Bancorp, Inc.
Form Of Indemnification Agreement, Continued
7. Severability. Nothing in this Agreement is intended to require or shall
be construed as requiring the Bank to do or fail to do any act in violation of
applicable law. The Bank's inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 7. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Bank shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
8. Exceptions. Any other provision herein to the contrary notwithstanding,
the Bank shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to proceedings or 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 under
applicable federal law, but such indemnification or advancement of expenses may
be provided by the Bank in specific cases if the Board of Directors finds it to
be appropriate; or
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses
incurred by the 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 the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Notwithstanding the foregoing, the Bank shall not be obligated 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 Bank.
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Monterey Bay Bancorp, Inc.
Form Of Indemnification Agreement, Continued
9. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to the "Bank" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
if Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, Indemnitee shall stand in
the same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on Indemnitee with respect to an employee benefit plan;
and references to "serving at the request of the Bank" shall include any service
as a director, officer, employee or agent of the Bank which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan Indemnitee shall be deemed to have acted in a manner "not opposed to the
best interests of the Bank" as referred to in this Agreement.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
11. Successors and Assigns. This Agreement shall be binding upon the Bank
and its successors and assigns, and shall inure to the benefit of Indemnitee and
Indemnitee's estate, heirs, legal representatives and assigns.
12. 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, actually and reasonably 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 Bank 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.
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Monterey Bay Bancorp, Inc.
Form Of Indemnification Agreement, Continued
13. Notice. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee or (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written notice.
14. Choice of Law. This Agreement shall be governed by and its provisions
construed in accordance with the laws of the United States where applicable and
otherwise by the substantive laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
MONTEREY BAY BANK
567 Auto Center Drive
Watsonville, California 95076
By:
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Name:
Title:
AGREED TO AND ACCEPTED:
INDEMNITEE:
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Name:
Address:
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