1
EXHIBIT 10.20
Agreement for Separation from Employment and Release by and between
Alexander L. Kyman and City National Bank,
dated November 3, 1993
2
EXHIBIT 10.20
AGREEMENT FOR SEPARATION FROM EMPLOYMENT AND RELEASE
This Agreement for Separation of Employment and Release ("Agreement")
is made and entered into between ALEXANDER L. KYMAN ("Kyman") and CITY NATIONAL
BANK, a national banking association ("CNB"), with reference to the following:
A. Kyman was hired by CNB on February 28, 1966;
B. Kyman has suffered permanent disabilities not arising out of
or relating to the course and scope of Kyman's employment with
CNB;
C. Both Kyman and CNB now wish, by the terms of this Agreement,
to forever and finally resolve all of their respective rights
and obligations relating to Kyman's employment relationship
with CNB and separation therefrom, except respecting the
parties' rights and obligations under and arising out of this
Agreement.
Based on the foregoing, Kyman and CNB knowingly and voluntarily agree
as follows:
1. Kyman's last day of work and last day on the payroll at CNB
will be December 31, 1993. Kyman's separation from employment will be
effective December 31, 1993. Because of Kyman's disabilities, he will not be
required to report to work or to perform any services prior to December 31,
1993, except as set forth in Paragraph 9.3 below.
2. Until December 31, 1993, CNB will pay Kyman at a rate based on
his net salary from CNB (the gross amount of which is $300,000.00 per year) on
CNB's regular semi-monthly pay period dates (and after deducting required
taxes, other required governmental withholdings, and any other deductions
authorized by Kyman) by deposit to his present CNB checking account and with
pay advice thereof mailed to his residence address as reflected in his CNB
personnel file.
3. Provided Kyman does not revoke this Agreement in the manner
set forth in Paragraph 24 below, on January 3, 1994, or such later date as
Kyman may elect, CNB will deposit to Kyman's CNB checking account the amount of
$165,000.00 and will mail an advice thereof to his residence address as
reflected in his CNB personnel file. Said payment is made in full, complete
and final settlement of Kyman's claims for alleged personal injury, pain,
suffering and emotional injury and stress arising out of Kyman's employment
with CNB or the termination thereof, or arising out of any matter occurring on
or before the date Kyman executes this Agreement, except as to the parties'
rights and obligations arising out of this Agreement. Kyman understands that
the amount paid under this Paragraph need not be reported on an Internal
Revenue Service Form 1099 inasmuch as it represents the settlement of a tort
claim, and therefore CNB agrees not to file a Form 1099 reporting its payment
to Kyman under this Paragraph. Kyman agrees and warrants that if any
governmental entity finds any or all of this settlement payment to
1
3
represent taxable earnings, Kyman will be responsible for the payment of any
income taxes, interest, fines, penalties or any other payment or liability
owed thereon, and to the extent CNB may be held responsible for any such
payment, Kyman agrees to indemnify and hold CNB harmless for such payment or
liability.
4. Kyman will continue to be eligible for all CNB employee
insurance benefits through December 31, 1993. Because Kyman is under age 65,
he may be eligible for continued group health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") after December
31, 1993, at his own expense. Kyman will be paid for all his unused vacation
(less required taxes and other governmental withholdings) in the payment due
him on December 31, 1993, referenced in Paragraph 2 above.
5. Kyman understands that all the payments and benefits set forth
in Paragraphs 2, 3 and 4, above, except payment for his accrued, unused
vacation, are not required by any of CNB's policies or procedures.
6. Any costs or expenses of Kyman which would normally be
reimbursed by CNB (including, but not limited to, club membership, business
development expenses, mileage, meals, etc.) will only be paid by CNB if
incurred on or before December 31, 1993, and to the extent they satisfy CNB
reimbursement requirements. Any such costs or expenses incurred after that
date by Kyman are the sole responsibility of and are fully assumed by Kyman.
7. Kyman's rights and status as a participant under the CNB
Profit Sharing Plan will continue through December 31, 1993. Kyman
acknowledges his rights and status under that Plan and his entitlement, if any,
to benefits under it will be determined in accordance with its terms except as
otherwise specifically provided in this Agreement, including those respecting
exercise rights upon termination of employment, which date, for purposes
thereof and consistent with the intent of this Agreement, is December 31, 1993.
8. All CNC incentive and non-statutory stock options awarded to
Kyman through December 31, 1993, will be fully vested effective December 31,
1993, and the period within which Kyman may exercise such options is extended
to the earlier of the date each option expires by its own terms (excluding any
terms accelerating the expiration date thereof), or December 31, 1998, all
subject to execution of a written amendment to Kyman's written stock option
agreements. Kyman understands that as a result of the exercise periods of
these options being extended beyond their original terms, the options will no
longer be treated as incentive stock options for federal income tax purposes
effective three years after December 31, 1993. This change will result in
significant differences in the tax treatment of these options, as more fully
discussed in Kyman's Participant's Guide to City National Corporation 1983 and
1985 Stock Option Plans. Except as otherwise specifically provided in this
Agreement, all Kyman's rights and benefits respecting his stock options are
determined in accordance with the terms of the Plans.
9. Kyman, as stated below, will do or not do the following:
9.1 Kyman has had access to, learned of or obtained
customer lists, financial information, pricing information, trade secrets,
trade knowledge, know-how, unprinted or printed data, confidential information
or other related tangible or intangible property ("Trade
2
4
Secrets") belonging to, used or developed by or for the benefit of, within the
possession or control of, or concerning CNB and/or any current or former
customers or shareholders. All such Trade Secrets must be kept strictly
confidential by Kyman and he will never use, divulge, disclose, or communicate
them, either directly or indirectly, in any way to any other person or entity
except as compelled by law or with the prior written permission of CNB's Chief
Executive Officer or President;
9.2 Kyman acknowledges and agrees that in the event of
any breach by him of the promises or obligations set forth in Paragraph 9.1
above, CNB would suffer great and irreparable harm, injury, and damage, would
encounter extreme difficulty in attempting to prove the actual amount of
damages suffered by it as a result of such breach, and would therefore not be
reasonably or adequately compensated in damages in any action at law. Kyman
therefore agrees that in addition to any other remedy CNB may have at law, in
equity, by statute, or otherwise, in the event of any breach by him of any of
his promises or obligations set forth in Paragraph 9.1, CNB will be entitled to
seek and receive temporary, preliminary and permanent injunctive and other
equitable relief from any court of competent jurisdiction to enforce those
promises or obligations, or otherwise to prevent the violation of any of the
terms or provisions of Paragraph 9.1, without the necessity of proving the
amount of any actual damage to CNB resulting therefrom. However, nothing in
this paragraph is intended as a waiver by CNB of any other rights it may have
against Kyman at law, in equity, by statute, or otherwise, arising out of, in
connection with or resulting from any breach by Kyman of this Agreement;
9.3 After December 31, 1993, Kyman will not be required
to perform any services for CNB except as may be reasonably necessary to
cooperate and assist at CNB's expense in an orderly transition and the
investigation and handling (including, but not limited to, providing
information or testifying) of any actual or threatened court action,
arbitration or administrative proceeding relating to any matter involving Kyman
or any of his duties or responsibilities during his employment with CNB;
9.4 Kyman will immediately return to CNB all files,
records, documents, plans, drawings, specifications, equipment (other than the
car telephone in Kyman's automobile, which will become the property of Kyman),
pictures, videotapes, keys and similar items which are the property of or
relate to CNB and/or any current or former customers or shareholders in his
possession or control;
9.5 Kyman will not assist in any litigation against CNB
relating to any act or omission occurring prior to the date Kyman executes this
Agreement, except as compelled by law, or in his own defense if Kyman is named
as a defendant in such litigation; and
9.6 Kyman will not directly or indirectly offer or
encourage CNB's officers or employees to seek employment elsewhere unless given
prior permission in writing by CNB's Chief Executive Officer or President,
provided, however, that nothing contained herein will prohibit Kyman from
giving references if requested.
10. This Agreement, its contents, and the parties' discussions
pertaining to it are confidential. Neither party will communicate in any
manner (written, oral, or otherwise) with respect thereto, except (1) by Kyman
to his spouse, family members, attorneys, and tax advisors,
3
5
if any, who must be informed of and bound by this confidentiality provision; or
(2) as compelled by law. Also, neither party will ever make any disparaging
statements or remarks about the other.
11. By signing this Agreement, Kyman and his heirs, executors,
administrators, successors and assigns, if any, hereby absolutely and forever
release and discharge CNB and its parent, subsidiaries, affiliates, related and
correspondent entities and any of its or their current or former directors,
officers, employees, representatives, administrators, agents and attorneys, and
any successors-in-interest and assigns (collectively "CNB Parties") from any
and all claims, demands, losses, actions, causes of action, suits, liabilities,
obligations, controversies, damages, compensation, costs, expenses, attorneys'
fees, or the like, of every kind, nature or character, whether known or
unknown, suspected or unsuspected, direct or indirect, derivative or otherwise,
which Kyman now holds or owns or at any time heretofore held or owned, or may
at any time in the future hold or own, based on, arising out of or in
connection with any matter relating to Kyman's employment with CNB, the
termination of that employment, or any basis therefor, or any other matter
occurring or arising on or before the date Kyman executes this Agreement,
except as provided in this Agreement (collectively "Claims"). Claims released
under this Agreement include but are not limited to: (i) Claims for injuries to
Kyman arising out of or relating to the course and scope of his employment with
CNB; (ii) Claims for alleged violations of any contracts, express or implied,
or any covenants of good faith and fair dealing, express or implied; (iii)
Claims of any legal restrictions on CNB's right to discipline or terminate
employees, any "constructive discharge" or "wrongful discharge," or any tort;
(iv) Claims for defamation, invasion of privacy, emotional and/or personal
injury or distress or the like; (v) Claims for sick leave, vacation,
compensated time off, workers' compensation, separation pay or severance; or
(vi) Claims for violation of any local, state, federal or other governmental
statute, regulation or ordinance, as amended, including, without limitation:
(1) Title VII of the Civil Rights Act of 1964 (race, color, religion, sex
(including pregnancy), and national origin discrimination); (2) 42 U.S.C.
Section 1981 (discrimination in the making and enforcement of contracts); (3)
the Age Discrimination in Employment Act (42 U.S.C. Sections 621-634);
(4) the Federal and California Equal Pay Acts (29 U.S.C. Section 206(d)(1) and
California Labor Code Sections 3200, et seq.); (5) the California Fair
Employment and Housing Act (California Govt. Code Section 12940 et seq.)
(discrimination, including race, color, national origin, ancestry, physical
handicap, medical condition, marital status, sex (including pregnancy), or
age); (6) Executive Order 11246 (race, color, religion, sex (including
pregnancy), and national origin discrimination); (7) Executive Order 11141 (age
discrimination); (8) the Rehabilitation Act of 1973 (29 U.S.C. Sections
503 and 504); (9) the Older Workers Benefit Protection Act amendments to the
Age Discrimination in Employment Act (29 U.S.C. Sections 621 et seq.);
(10) the Civil Rights Act of 1991; (11) the Workers' Compensation Act
(California Labor Code Section 1197.5, et seq.); (12) the Americans with
Disabilities Act; and (13) the Employee Retirement Income Security Act of 1974
("ERISA"). This Agreement, however, does not include a release of (a) Kyman's
right, if any, to pension, retiree health, or similar benefits under any
standard retirement program of CNB, or rights or claims Kyman may have under
the Age Discrimination in Employment Act which arise after the date he executes
this Agreement; (b) any of Kyman's rights with respect to his long term
disability insurance coverage and benefits; or (c) any right Kyman may have to
participate in any recovery in any class action solely as a class member,
provided Kyman has not served as a named plaintiff or representative of the
class or otherwise assisted in such litigation in violation of Paragraph 9.5
above.
12. By signing this Agreement, CNB and its successors and assigns,
if any, hereby absolutely and forever release and discharge Kyman from any and
all claims, demands, losses,
4
6
actions, causes of action, suits, liabilities, obligations, controversies,
damages, compensation, costs, expenses, attorneys' fees, or the like, of every
kind, nature or character, whether known or unknown, suspected or unsuspected,
direct or indirect, derivative or otherwise, which CNB now holds or owns or at
any time heretofore held or owned, or may at any time in the future hold or
own, based on, arising out of or in connection with any matter relating to
Kyman's employment with CNB, the termination of that employment, or any basis
therefor, or any other matter occurring or arising on or before the date CNB
executes this Agreement, except as provided in this Agreement.
13. Each party intends and agrees that this Agreement will be
effective as a full, final and general release of and from all matters covered
herein. In furtherance thereof, each party acknowledges that such party is
familiar with, and that such party's attorney of record, if any, has advised
him or it of, California Civil Code Section 1542, which provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of execution of
the release, which if known by him must have materially affected his
settlement with the debtor.
Each party expressly waives and releases any right or benefit which that party
has or may in the future have under California Civil Code Section 1542 to the
fullest extent that he or it may do so lawfully. Further, each party
acknowledges that he or it may hereafter discover facts different from or in
addition to those facts now known to such party or believed by such party to be
true with respect to any or all of the matters covered by this Agreement, and
agrees that this Agreement will nevertheless be binding and remain in full and
complete force and effect.
14. Kyman represents that he has not filed any complaint(s),
charge(s), claim(s), or application(s) against any CNB Party with any local,
state or federal agency or court. Kyman represents and agrees that he will
never file any such complaint, charge, claim or application against CNB at any
time hereafter based upon any matter relating to his employment with CNB or his
separation therefrom, or based upon any matter arising on or before the date
Kyman executes this Agreement, except respecting his rights set forth in this
Agreement. Kyman further represents and agrees that if any agency or court
assumes jurisdiction of any such complaint, charge, claim or application
against CNB on behalf of Kyman, he will request such agency or court to
withdraw from and/or to dismiss the matter with prejudice; and if withdrawal or
dismissal cannot be or is not effected, Kyman agrees that CNB will be entitled
to a credit from Kyman in an amount equivalent to all payments and benefits to
him by CNB under Paragraphs 3 and 4 of this Agreement, for any amount Kyman
receives as a result of any such complaint, charge, claim or application.
15. Nothing contained in this Agreement is to be construed as an
admission of liability or wrongdoing of any kind by any party hereto, and all
such liability or wrongdoing is expressly denied.
16. Kyman acknowledges that if this Agreement becomes effective,
his employment with CNB will end voluntarily, irrevocably and forever on
December 31, 1993, and will not be resumed at any time in the future.
5
7
17. Kyman acknowledges that before signing this Agreement, he has
been encouraged by CNB to consult, and in fact has consulted, with an attorney
about this Agreement's terms.
18. Kyman agrees to pay his own attorneys' fees and costs, if any,
arising out of or in connection with this Agreement or its subject matter. The
parties agree that if a court of competent jurisdiction determines that either
of them has breached any provision of this Agreement, he or they will pay all
costs, damages, expenses and reasonable attorneys' fees, including those of
in-house counsel, incurred by the other in enforcing the Agreement against the
breaching party's claims.
19. Any alteration or modification to this Agreement must be in
writing and signed by each party to it or its duly authorized representative.
In the event a court of competent jurisdiction or a governmental agency
determines, upon the request or petition of Kyman, that any provision of this
Agreement, or application of it, is void, invalid, unenforceable, or contrary
to law for any reason, its remaining provisions will, at CNB's option, continue
to be binding and fully enforceable; in such a case, if CNB elects not to
enforce the remainder of this Agreement, Kyman agrees to return, in full or in
part, as determined by CNB, any and all payments received in exchange for
agreeing to this Agreement.
20. Each party to this Agreement represents and warrants that he
or it has not assigned, transferred and/or granted to any other person any
claim or portion thereof against any other party to this Agreement.
21. This Agreement will be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto, provided,
however, that Kyman will not be entitled to encumber, create a lien upon,
assign or transfer any payments due under this Agreement.
22. This Agreement will be construed and enforced in accordance
with the laws of California to the extent such laws are not preempted by
applicable federal law.
23. This Agreement will not impair or alter Kyman's rights, if
any, to indemnification or payment of defense costs or expenses from CNB as
provided by CNB's Articles of Association and/or applicable law or from CNC
pursuant to that certain written agreement between it and Kyman, dated April
21, 1987, a true and correct copy of which is attached hereto and incorporated
herein by this reference as Exhibit "1".
24. Kyman understands that he was given a period of at least 21
consecutive calendar days to review and consider this Agreement before signing
it. Kyman further understands he may revoke this Agreement within 7 days after
signing it. Revocation is effective upon written notice thereof being received
by Marjorie Luttenbacher, Executive Vice President and Manager of CNB's Human
Resources Division, 120 South Spalding Drive, Suite 300, Beverly Hills,
California 90212, no later than the close of business on the 7th day after
Kyman signs this Agreement. If Kyman revokes this Agreement, it will not be
effective or enforceable, and Kyman will not receive, or will be required to
immediately and fully reimburse CNB for, any payments or benefits to him
pursuant to this Agreement. If Kyman does not revoke the Agreement, it will
become effective on the 8th day after he signs it.
6
8
THE UNDERSIGNED PARTIES, AND EACH OF THEM, ACKNOWLEDGE THAT THEY HAVE
CAREFULLY READ THIS AGREEMENT FOR SEPARATION OF EMPLOYMENT AND RELEASE IN ITS
ENTIRETY, HAVE HAD THE OPPORTUNITY TO DISCUSS THE CONTENTS OF THE AGREEMENT
WITH THEIR RESPECTIVE ATTORNEYS, IF ANY, AND, AS A RESULT, FULLY UNDERSTAND THE
TERMS AND CONSEQUENCES OF THE AGREEMENT. BASED ON THEIR KNOWLEDGE AND
UNDERSTANDING OF THE AGREEMENT, THE PARTIES REPRESENT AND WARRANT THAT THEY
FREELY AND VOLUNTARILY ENTER INTO IT ON THE DATE SET FORTH BELOW.
Dated: November 3, 1993 /s/ Alexander L. Kyman
-----------------------------------
ALEXANDER L. KYMAN
CITY NATIONAL BANK, a national
banking association
By: /s/ Bram Goldsmith
------------------------------
BRAM GOLDSMITH
Chairman of the Board and
Chief Executive Officer
APPROVED AS TO FORM
AND CONTENT:
OFFICE OF THE GENERAL COUNSEL
By: /s/ Steven L. Strange
------------------------------
STEVEN L. STRANGE
Senior Counsel Attorney for
CITY NATIONAL BANK
7
9
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made and entered into this 21st day
of April, 1987, between City National Corporation, a Delaware corporation (the
"Company") and ALEXANDER L. KYMAN (the "Indemnitee"), an officer and/or member
of the Board of Directors of the Company.
RECITALS
--------
A. The Indemnitee is an officer and/or member of the Board of
Directors of the Company.
B. The Board of Directors of the Company has determined that
highly competent persons will be difficult to retain as officers and/or
directors of the Company unless such persons are adequately protected against
liabilities incurred in performances of their services as officers and/or
directors of the Company.
C. It is, therefore, in the best interests of the Company to
attract and retain such officers and/or directors by providing adequate
protection against such liabilities by means of Indemnification Agreements with
individual officers and/or directors, such as the Indemnitee.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the promises and covenants
contained herein and as an inducement to the Indemnitee to continue to serve as
an officer and/or director of the Company, the Company and the Indemnitee do
hereby agree as follows:
1. Indemnity of Director/Officer. The Company agrees to
indemnify and hold harmless the Indemnitee to the fullest extent permissible
under its Certificate of Incorporation, Bylaws and applicable law, as the same
exists or may be amended from time to time. Provided, however, that no
amendments to the Certificate of Incorporation or Bylaws subsequent to the date
hereof shall eliminate or lessen the availability or scope of indemnification
herein. In addition, the Indemnitee's indemnification rights shall include but
not be limited to the rights contained in the following Paragraphs except to
the extent expressly prohibited by applicable law.
2. Indemnification in Third-Party Actions. The Company shall
indemnify and hold harmless the Indemnitee from and against all expenses
(including attorneys' fees), liability, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with
any present or future threatened, pending or completed action, suit or
proceeding, or appeal thereof, whether civil, criminal, administrative or
investigative (other than an action by or in the
EXHIBIT 1
-1-
10
right of the Company) if the indemnitee is a party or threatens to be made a
party to such action, suit or proceeding by reason of the fact that Indemnitee
is or was a director, member of any committee of the board, officer, employee
or agent of the Company, or of any subsidiary of the Company, or is or was
serving at the request of the Company as a director, member of any committee of
the board, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise; provided, however, that the
Indemnitee shall be entitled to such indemnification only if Indemnitee acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
3. Indemnification in Proceedings by or in the Name of the
Company. The Company shall indemnify and hold harmless the Indemnitee from and
against expenses (including attorneys' fees), judgments and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of any present or future threatened, pending or
completed action or suit, or appeal thereof, by or in the right of the Company
to procure a judgment in its favor if the Indemnitee is a party or threatened
to be a party to such action or suit by reason of the fact that Indemnitee is
or was a director, member of any committee of the board, officer, employee or
agent of the Company, or of any subsidiary of the Company, or is or was serving
at the request of the Company as a director, member of any committee of the
board, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise; provided, however, that the Indemnitee
shall be entitled to such indemnification only if Indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Company and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable in the performance of his or her duty to the
Company if and to the extent that the court in which such action or suit was
brought shall determine that the Indemnitee is not entitled to such
indemnification.
4. Liability Insurance. The Company will undertake reasonable
efforts to maintain policies of Directors and Officers Liability Insurance in
reasonable amounts from established and reputable insurers. The Company shall
not be liable under this Indemnification Agreement for any amount of any claim
for which the Indemnitee has been paid, or is legally entitled to payment,
under such insurance policies or under any other valid insurance policies
maintained in the future by the Company for Indemnitee's benefit.
Any such policies maintained by the Company will expire under
expiration terms as therein set forth. The Company is uncertain whether such
policies will be renewed or if not renewed can be replaced with policies of
similar coverage at reasonable cost. The Company shall not be required to
maintain the policies presently in effect or to replace such policies if, in
the judgment of the Board of Directors of the Company, the cost of such
policies is not reasonable in relation to the coverage provided. If the
Company so decides not to maintain the current policies or replace them with
policies of similar coverage, the Company agrees to indemnify and hold harmless
the Indemnitee to the extent of coverage which would have been
-2-
11
provided by such policies to the fullest extent permissible under applicable
law, in addition to any other indemnification provided by this Agreement.
5. Advances of Expenses. Expenses incurred by the Indemnitee in
connection with any action, suit, proceeding or appeal thereof, described in
Paragraphs 2 and 3 above, shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding within twenty (20) days of
receipt of an undertaking by the Indemnitee to repay such amount if it is
ultimately determined by the Board of Directors, independent counsel, the
shareholders or a court, as provided in Paragraph 8 of this Indemnification
Agreement, that Indemnitee is not entitled to be indemnified by the Company or
not entitled to full indemnification by the Company.
6. Indemnification Hereunder Not Exclusive. Indemnification and
advancement of expenses set forth in this Indemnification Agreement shall not
be exclusive of other rights the Indemnitee may have under applicable law,
other agreements between the Company and the Indemnitee, the Certificate of
Incorporation or Bylaws of the Company, by vote of disinterested directors of
the Company or by vote of the shareholders of the Company.
7. Continuation of Indemnity. The indemnification and advancement
of expenses provided by, or granted pursuant to this Indemnification Agreement
shall continue after the Indemnitee has ceased to be an officer and/or director
of the Company and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee.
8. Indemnification Procedure; Determination of Right to
Indemnification. Upon written request by the Indemnitee for indemnification
under Paragraphs 2 and 3 above, the Indemnitee's entitlement to such
indemnification shall be made by (1) the Board of Directors of the Company by a
majority vote of a quorum consisting of directors who were not parties to the
action, suit, settlement or proceeding, or (2) if such quorum is not
obtainable, by independent counsel, in a written opinion, or (3) by the
shareholders of the Company. Determination of entitlement to indemnification
shall be made within sixty (60) days of receipt by the Company of a written
request for indemnification by the Indemnitee. The Indemnitee's request shall
be accompanied by documentation reasonably available to the Indemnitee relating
to the Indemnitee's entitlement to be indemnified. All reasonable expenses
(including attorney's fees) relating to the Indemnitee's request for
indemnification under the Indemnification Agreement shall be paid by the
Company regardless of the outcome of the determination as to the Indemnitee's
entitlement to indemnification. If such determination is unfavorable to the
Indemnitee or if the Indemnitee has made no request for indemnification under
or no determination is otherwise made, the Indemnitee may, within two (2) years
after such determination, or, if no determination has been made, within two (2)
years after the Indemnitee has incurred the expense or otherwise made a payment
for which the Indemnitee seeks indemnification, petition the Court of Chancery
of the State of Delaware or any other of competent jurisdiction to determine
whether the Indemnitee is entitled to indemnification hereunder the terms of
this Indemnification Agreement. The Indemnitee shall not be prejudiced in such
judicial proceeding by a prior determination that the Indemni-
-3-
12
tee is not entitled to indemnification. The Company shall be precluded from
asserting in such court that it is not bound by the provisions of the
Indemnification Agreement. The Company shall pay all expenses (including
attorneys' fees) actually and reasonably incurred by the Indemnitee in
connection with such judicial determination.
9. No Presumption. If any action, suit or proceeding described
in Paragraphs 2 and 3 above shall be terminated by judgment, order, settlement
or conviction or upon a plea of nolo contendere or its equivalent, no
presumption shall be created that the Indemnitee did not act in good faith and
in a manner which such Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal action
or proceeding, that the Indemnitee had reasonable cause to believe that his or
her conduct was unlawful.
10. Limitations on Indemnification. Notwithstanding any other
provision of the Indemnification Agreement, the Company shall not be liable to
indemnify the Indemnitee in connection with any claim against Indemnitee:
10.1 for which the Indemnitee is indemnified by the Company other
than under this Indemnification Agreement;
10.2 if a court of competent jurisdiction has rendered a final
decision that indemnification relating to the claim would be unlawful;
10.3 if, pursuant to Section 16(b) of the Securities Exchange Act
of 1934, as amended, or similar provisions of any state or federal statutory
law, the claim is for an accounting of profits made from the purchase and sale
by the Indemnitee of securities of the Company;
10.4 if a final decision by a court of competent jurisdiction shall
adjudge the Indemnitee's conduct to have been knowingly fraudulent or
deliberately dishonest and to be material to the claim adjudicated by the
court; or
10.5 if the claim was based upon the Indemnitee's deriving an
unlawful personal benefit and a court of competent jurisdiction adjudges that
such benefit was unlawful in a final decision.
11. Savings Clause. if any provision of this Indemnification
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions (including portions of
any paragraph of this Indemnification Agreement containing an invalid, illegal
or unenforceable provision) shall not be impaired thereby. To the extent
practicable, any invalid, illegal or unenforceable provision of this
Indemnification Agreement shall be deemed modified as necessary to comply with
all applicable laws.
-4-
13
12. Counterparts. This Indemnification Agreement may be executed
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.
13. Interpretation; Governing Law. Headings are for convenience
only and shall not be used in construing meaning. This Indemnification
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware.
14. Notices. All notices or other communication hereunder shall
be in writing and shall be deemed to be effective and to have been duly given
if delivered by certified mail, postage prepaid, return receipt requested to
the respective parties, as follows:
"Company" City National Corporation
400 North Roxbury Drive
Beverly Hills, CA 90210
Attn: General Counsel
"Indemnitee" ALEXANDER L. KYMAN
ALSO SEND 4411 WESTCHESTER DRIVE
COPIES TO DAVID KYMAN WOODLAND HILLS, CA 91364
C/O BUCHALTER, NEMER, FIELDS, __________________________________
CHRYSTIE & YOUNGER.
or to such other address as a party may have furnished to the other in writing
in accordance with this paragraph, except that notice of change of address
shall only be effective upon receipt.
15. Successors and Assigns. This Indemnification Agreement shall
be binding upon the Company and its successors and assigns and shall inure to
the benefit of the Indemnitee and his or heirs, executors and administrators.
16. Amendment, Waiver. No amendment of this Indemnification
Agreement shall be binding unless executed in writing by both parties hereto.
No waiver of any provision of this Indemnification Agreement shall constitute a
waiver of any other provision hereof.
*****
-5-
14
17. Notification of Claims. The Indemnitee shall promptly notify
the Company in writing upon being served with any summons, citation, subpoena,
indictment, complaint, information or other document relating to any matter
concerning which the Indemnitee may be entitled to indemnification hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Indemnification Agreement to be duly executed and signed as of the date first
above written.
"Company" City National Corporation, a
Delaware corporation
By: /s/ James P. Del Guercio
-----------------------------
Its: VICE PRESIDENT
-----------------------------
"Indemnitee" /s/ Alexander L. Kyman
-----------------------------------
ALEXANDER L. KYMAN
-6-