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Exhibit 10.44
INDEMNIFICATION AGREEMENT dated as of
, 2007
between
California Water Service Group (the
"company"),
and
("Indemnitee")
WHEREAS,
the board of directors has determined that the ability to attract
and retain qualified persons as directors and officers is in the
best interests of the company’s stockholders and that the
company should act to assure such persons that there will be
adequate certainty of protection through insurance and
indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the
company; and
WHEREAS,
the company’s certificate of incorporation provides for the
elimination of liability of the directors of the company to the
fullest extent permitted by Delaware law, and further provides for
indemnification of any person who is or was a party or is
threatened to be made a party to any proceeding by reason of the
fact that such person is or was an agent of the corporation to the
fullest extent permitted by Section 145 of the Delaware
General Corporation Law, and the company wishes to clarify and
enhance the rights and obligations of the company and Indemnitee
with respect to indemnification; and
WHEREAS,
in order to induce and encourage highly experienced and capable
persons such as Indemnitee to serve and continue to serve as
directors and officers of the company and in any other capacity
with respect to the company, and to otherwise promote the desirable
end that such persons will resist what they consider unjustified
lawsuits and claims made against them in connection with the good
faith performance of their duties to the company, with the
knowledge that certain costs, judgments, penalties, fines,
liabilities and expenses incurred by them in their defense of such
litigation are to be borne by the company and they will receive the
maximum protection against such risks and liabilities as may be
afforded by law, the board of directors of the company has
determined that the following Agreement is reasonable and prudent
to promote and ensure the best interests of the company and its
stockholders; and
WHEREAS,
the company desires to have Indemnitee continue to serve as a
director or officer of the company and in such other capacity with
respect to the company as the company may request, as the case may
be, free from undue concern for unpredictable, inappropriate or
unreasonable legal risks and personal liabilities by reason of
Indemnitee acting in good faith in the performance of
Indemnitee’s duty to the company; and Indemnitee desires to
continue so to serve the company, provided, and on the express
condition, that he or she is furnished with the indemnity set forth
hereinafter;
Now,
therefore, in consideration of Indemnitee’s continued service
as a director or officer of the company, the parties hereto agree
as follows:
1.
Service by Indemnitee . Indemnitee will serve and/or
continue to serve as a director or officer of the company
faithfully and to the best of Indemnitee’s ability so long as
Indemnitee is duly elected or appointed and until such time as
Indemnitee is removed as permitted by law or tenders a resignation
in writing. This Agreement shall not impose any obligation on the
company to continue Indemnitee’s service to the company
beyond any period otherwise required by law or by other agreements
of the parties, if any.
2.
Indemnification . The company shall indemnify Indemnitee to
the fullest extent permitted by the Delaware General Corporation
Law in effect on the date hereof or as such law may from time to
time be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the company to provide
broader indemnification rights than said law permitted the company
to provide prior to such amendment). Without diminishing the scope
of the indemnification provided by this Section, the rights of
indemnification of Indemnitee provided hereunder shall include but
shall not be limited to those rights hereinafter set forth, except
that no indemnification shall be paid to Indemnitee:
(a) to the extent expressly prohibited by Delaware law or
the by-laws of the company;
(b) for which payment is actually made to Indemnitee under
a valid and collectible insurance policy or under a valid and
enforceable indemnity clause, by-law or agreement of the company or
any other company or organization on whose board Indemnitee serves
at the request of the company, except in respect of any indemnity
exceeding the payment under such insurance, clause, by-law or
agreement;
(c) in connection with an action, suit or Proceeding
(defined below), or part thereof (including claims and
counterclaims) initiated by Indemnitee, except a judicial
Proceeding or arbitration pursuant to Section 10 to enforce
rights under this Agreement, unless the action, suit or proceeding
(or part thereof) was authorized by the board of directors of the
company;
(d) with respect to any action, suit or Proceeding brought
by or on behalf of the company against Indemnitee that is
authorized by the board of directors of the company, except as
provided in Sections 4, 5 and 6 below.
3.
Action or Proceedings Other than an Action by or in the Right of
the Company . Except as limited by Section 2 above,
Indemnitee shall be entitled to the indemnification rights provided
in this Section if Indemnitee is a party or is threatened to be
made a party to any Proceeding (other than an action by or in the
name of the company) by
reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the company, or is or was serving at
the request of the company as a director, officer, employee or
agent or fiduciary of any other entity (including, but not limited
to, another corporation, partnership, joint venture or trust); or
by reason of anything done or not done by Indemnitee in any such
capacity. Pursuant to this Section, Indemnitee shall be indemnified
against all costs, judgments, penalties, fines, liabilities,
amounts paid in settlement by or on behalf of Indemnitee, and
Expenses (defined below) actually and reasonably incurred by
Indemnitee in connection with such Proceeding, if Indemnitee acted
in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the company, and with respect
to any criminal Proceeding, had no reasonable cause to believe his
or her conduct was unlawful.
4.
Indemnity in Proceedings by or in the Name of the Company .
Except as limited by Section 2 above, Indemnitee shall be
entitled to the indemnification rights provided in this Section if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding brought by or in the name of the company to procure
a judgment in its favor by reason of the fact that Indemnitee is or
was a director, officer, employee or agent or fiduciary of the
company, or by reason of anything done or not done by Indemnitee in
any such capacity. Pursuant to this Section, Indemnitee shall be
indemnified against all costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by or on behalf of
Indemnitee, and Expenses actually and reasonably incurred by
Indemnitee in connection with such Proceeding if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the company; provided,
however, that no such indemnification shall be made in respect of
any claim, issue, or matter as to which Delaware law expressly
prohibits such indemnification by reason of any adjudication of
liability of Indemnitee to the company, unless and only to the
extent that the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, Indemnitee is entitled to
indemnification for such costs, judgments, penalties, fines,
liabilities and Expenses as such court shall deem proper.
5.
Indemnification for Costs, Charges and Expenses of Successful
Party . Notwithstanding the limitations of Section 2(d), 3
and 4 above, to the extent that Indemnitee has been successful, on
the merits or otherwise, in whole or in part, in defense of any
action, suit or proceeding (including an action, suit or Proceeding
brought by or on behalf of the company) or in defense of any claim,
issue or matter therein, including, without limitation, the
dismissal of any action without prejudice, or if it is ultimately
determined that Indemnitee is otherwise entitled to be indemnified
against Expenses, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred in connection
therewith.
6.
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the company
for some or a portion of the costs, judgments, penalties, fines,
liabilities or Expenses actually and reasonably incurred in
connection with any action, suit or Proceeding (including an
action, suit or Proceeding brought by or on behalf of the company),
but not, however, for all of the total amount thereof, the
company shall nevertheless indemnify Indemnitee for the portion
of such costs, judgments, penalties, fines, liabilities and
Expenses actually and reasonably incurred to which Indemnitee is
entitled.
7.
Indemnification for Expenses of a Witness . Notwithstanding
any other provision of this Agreement, to the maximum extent
permitted by applicable law, Indemnitee shall be entitled to
indemnification against all Expenses actually and reasonably
incurred or suffered by Indemnitee or on Indemnitee’s behalf
if Indemnitee appears as a witness or otherwise incurs legal
expenses as a result of or related to Indemnitee’s service as
a director or officer of the company, in any threatened, pending or
completed legal, administrative, investigative or other Proceeding
or matter to which Indemnitee neither is, nor is threatened to be
made, a party.
8.
Determination of Entitlement to Indemnification . Upon
written request by Indemnitee for indemnification pursuant to
Sections 3, 4, 5, 6 or 7, the entitlement of Indemnitee to
indemnification, to the extent not provided pursuant to the terms
of this Agreement, shall be determined by the following person or
persons who shall be empowered to make such determination:
(a) the board of directors of the company by a majority vote
of Disinterested Directors (defined below), whether or not such
majority constitutes a quorum; (b) a committee of
Disinterested Directors designated by a majority vote of such
directors, whether or not such majority constitutes a quorum;
(c) if there are no Disinterested Directors, or if the
Disinterested Directors so direct, by Independent Counsel (defined
below) in a written opinion to the board of directors, a copy of
which shall be delivered to Indemnitee; or (d) the
stockholders of the company. Such Independent Counsel shall be
selected by the board of directors and approved by Indemnitee.
Notwithstanding the foregoing, if a Change in Control (defined
below) has occurred since the date of this Agreement and the
Indemnitee specifically requests in Indemnitee’s written
request for indemnification pursuant to Sections 3, 4, 5, 6 or
7, that such determination not be made by the parties identified in
(a) or (b) above, such determination shall be made by the
party(ies) empowered to make such determination as identified in
(c) or (d). Upon failure of the board so to select such
Independent Counsel or upon failure of Indemnitee so to approve,
such Independent Counsel shall be selected upon application to a
court of competent jurisdiction. Such determination of entitlement
to indemnification shall be made not later than 30 calendar days
after receipt by the company of a written request for
indemnification. Such request shall include documentation or
information which is necessary for such determination and which is
reasonably available to Indemnitee. Any Expenses incurred by
Indemnitee in connection with a request for indemnification or
payment of Expenses hereunder, under any other agreement, any
provision of the company’s by-laws or any directors’
and officers’ liability insurance, shall be borne by the
company. The company hereby indemnifies Indemnitee for any such
Expense and agrees to hold Indemnitee harmless therefrom
irrespective of the outcome of the determination of
Indemnitee’s entitlement to indemnification. If the person
making such determination shall determine that Indemnitee is
entitled to indemnification as to part (but not all) of the
applicat
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