Exhibit 10.1
INDEMNIFICATION
AGREEMENT
This indemnification agreement (this
“Agreement”) is made on
,
200 , by and between CoBiz Inc., a Colorado corporation
(the “Company”), and
(“Indemnitee”).
RECITALS
A.
The Company desires to attract and
retain the services of highly qualified individuals, such as
Indemnitee, to serve the Company and its subsidiaries.
B.
The Company and Indemnitee both
recognize the increased risk of litigation and other claims
routinely being asserted against directors and officers of public
companies in today’s environment, and the attendant costs of
defending even wholly frivolous claims.
D.
In recognition of Indemnitee’s
need for substantial protection against personal liability in order
to enhance Indemnitee’s service to the Company in an
effective manner, the Company wishes to provide in this Agreement
for the indemnification of and the advancing of expenses to
Indemnitee to the fullest extent permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for
the continued coverage of Indemnitee under the Company’s
directors’ and officers’ liability insurance
policies.
AGREEMENT
Accordingly, the Company and
Indemnitee agree as follows:
1.
Certain Definitions
. As used in this
Agreement:
a.
A “Change
in Control” shall be deemed to have occurred if, on or after
the date of this Agreement, (i) any “person” (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company,
is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under such Act), directly or indirectly, of securities
of the Company representing 20% or more of the total voting power
represented by the Company’s then outstanding Voting
Securities, or (ii) during any period of two consecutive years,
individuals who at the beginning of that two-year period constitute
the Board of Directors of the Company and any new director whose
election by the Board of Directors or nomination for election by
the Company’s shareholders was approved by a vote of at least
a majority of the directors then still in office who either were
directors at the beginning of the two-year period or whose election
or nomination for election was previously so approved, cease for
any reason to constitute a majority of the Board of Directors, or
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other entity, other than a
merger or consolidation which would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 50% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, or the shareholders of the Company approve
a plan of complete
liquidation of
the Company or an agreement for the sale or disposition by the
Company in one transaction or a series of transactions of all or
substantially all the Company’s assets.
b.
“Charter
Documents” means the articles of incorporation of the Company
and the bylaws of the Company.
c.
“Disinterested
Director” means a director of the Company who is not a party
to the Proceeding in respect of which indemnification or
advancement of Expenses is sought by Indemnitee.
d.
“Expenses” means
all costs and expenses, including attorneys’ fees, paid or
incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing
for an investigation or preparing to defend, be a witness in or
participate in any Proceeding relating to any Indemnifiable Event
and any federal, state, local or foreign taxes imposed as a result
of the actual or deemed receipt of any payments under the
Agreement.
e.
“Indemnifiable
Event” means any event or occurrence related to the fact that
Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any subsidiary of the Company, or is
or was serving at the request of the Company as a director,
officer, partner, manager, member, employee, trustee, agent or
fiduciary of another corporation, partnership, limited liability
company, joint venture, employee benefit plan, trust or other
enterprise, or by reason of anything done or not done by Indemnitee
in any such capacity.
f.
“Independent
Counsel” means an attorney or firm of attorneys, selected in
accordance with the provisions of Section 5(c), who shall not have
otherwise performed services for the Company or Indemnitee within
the last three years (other than with respect to matters concerning
the rights of indemnity under this Agreement, or of other
indemnitees under similar indemnification agreements or under the
Charter Documents).
g.
“Liabilities”
means the obligation incurred with respect to a Proceeding to pay
any judgment, settlement, penalty, fine or reasonable Expense,
including any excise taxes assessed with respect to any employee
benefit plan, and including all interest, assessments and other
charges paid or payable in connection with or in respect of any
such amounts.
h.
“Proceeding”
means any threatened, pending or completed action, suit or
proceeding, including any alternative dispute resolution mechanism,
whether civil, criminal, administrative or investigative, and
whether formal or informal.
i.
“Voting
Securities” means any securities of the Company which are
entitled to vote generally in the election of
directors.
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2.
Indemnification
.
a.
The Company shall
indemnify Indemnitee to the fullest extent permitted by law against
any and all Liabilities and Expenses arising out of or in
connection with any Proceeding to which Indemnitee was, is or
becomes a party, or is threatened to be made a party, by reason of,
or arising in whole or part out of, an Indemnifiable
Event.
b.
To the extent
that Indemnitee has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any Proceeding, Indemnitee shall be
indemnified against all Expenses incurred by Indemnitee in
connection therewith. If Indemnitee is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in any Proceeding, the Company shall indemnify
Indemnitee against all Expenses incurred by Indemnitee in
connection with each successfully resolved claim, issue or
matter.
c.
To the extent
that Indemnitee is, by reason of an Indemnifiable Event, a witness
in any Proceeding to which Indemnitee is not a party, Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by or on behalf of Indemnitee in connection
therewith.
d.
The Company shall
indemnify and hold Indemnitee harmless from any Expenses incurred
by or on behalf of Indemnitee to recover under any liability
insurance policy maintained by any person for the benefit of
Indemnitee in connection with the performance of Indemnitee’s
duties for or on behalf of the Company.
3.
Advancement of
Expenses . The
Company shall advance any Expenses incurred by Indemnitee or on
Indemnitee’s behalf in connection with a Proceeding within 20
days after receipt by the Company of a written request for
advancement of Expenses, which request may be delivered to the
Company at such time and from time to time as Indemnitee deems
appropriate, whether prior to or after the final disposition of any
such Proceeding. The initial request for advancement of
Expenses in connection with any Proceeding shall include, or be
accompanied or preceded by, (i) a written affirmation of Indemnitee
of Indemnitee’s good faith belief that Indemnitee has met any
applicable standard of conduct required under the Act and (ii) an
undertaking by Indemnitee to reimburse the Company for all amounts
advanced by the Company pursuant to this Section 3 if it is
ultimately determined that Indemnitee is not entitled to be
indemnified by the Company for such Expenses. Any such
advances shall be made on an unsecured basis and shall be interest
free. Notwithstanding the foregoing, if Indmnitee seeks a
judicial adjudication or an arbitration pursuant to Section 8,
Indemnitee shall not be required to reimburse the Company pursuant
to the undertaking described above until a final determination (as
to which all rights of appeal have been exhausted or lapsed) has
been made.
4.
Exceptions
. Notwithstanding any other
provision of this Agreement, the Company shall not be obligated
pursuant to the terms of this Agreement:
a.
To indemnify or
advance Expenses to Indemnitee with respect to Proceedings arising
out of acts, omissions or transactions for which Indemnitee is
prohibited from receiving indemnification under applicable
law.
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b.
To indemnify or
advance Expenses to Indemnitee with respect to Proceedings
initiated or brought voluntarily by Indemnitee and not by way of
defense, counterclaim or crossclaim, except (i) with respect to
actions or proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other agreement or
insurance policy or under the Charter Documents now or hereafter in
effect relating to Proceedings for Indemnifiable Events, or (ii) in
specific cases if the Board of Directors of the Company has
approved the initiation or bringing of such Proceeding by a
majority vote of the Disinterested Directors.
c.
To indemnify
Indemnitee for any Expenses incurred by Indemnitee with respect to
any action instituted (i) by Indemnitee to enforce or interpret
this Agreement, if a court having jurisdiction over such action
determines that each of the material assertions made by Indemnitee
as a basis for such action was not made in good faith or was
frivolous, or (ii) by or in the name of the Company to enforce or
interpret this Agreement, if a court having jurisdiction over such
action determines that each of the material defenses asserted by
Indemnitee in such action was made in bad faith or was
frivolous.
d.
To indemnify
Indemnitee for Expenses, judgments, fines, penalties and the
payment of profits arising from the purchase and sale by Indemnitee
of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor
statute.
e.
To indemnify
Indemnitee for Liabilities or Expenses arising from an
administrative or civil enforcement action commenced by a federal
banking agency to the extent prohibited by the laws or regulations
of such agency.
5.
Procedures for Notification and
Determinations .
a.
Indemnitee shall
notify the Company in writing as soon as reasonably practicable (i)
after being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any
Proceeding or (ii) if the Company has not been previously notified,
after receipt of written notice of any other matter with respect to
which Indemnitee intends to seek indemnification or advancement of
Expenses under Section 2 and Section 3. The failure by Indemnitee
to so notify the Company will not relieve the Company from any
liability which it may have to Indemnitee (i) under this Agreement
except and only to the extent the Company can establish that such
omission to notify resulted in actual material prejudice to the
Company or (ii) otherwise than under this Agreement.
Indemnitee may thereafter deliver to the Company a written request
for indemnification pursuant to this Agreement at such time and
from time to time as Indemnitee deems appropriate, which request
shall also be deemed a request for advancement of Expenses under
Section 3.
b.
Except as
otherwise provided pursuant to Section 2(b) and Section 2(c), upon
the final disposition of the matter that is the subject of the
request for indemnification delivered pursuant to Section 5(a), a
determination shall be made with respect to Indemnitee’s
entitlement thereto in the specific case. If a Change in
Control shall not have occurred, such determination shall be made
(i) by a majority vote of Disinterested Directors or of a committee
of Disinterested Directors designated by a majority vote of the
Disinterested Directors (in either
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case, even though
less than a quorum of the Board of Directors) or (ii) if there
are
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