Exhibit 10.22
INDEMNIFICATION
AGREEMENT
This indemnification agreement (this
“Agreement”) is made on March 5, 2007, by and between
CoBiz Inc., a Colorado corporation (the “Company”), and
Troy Dumlao (“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
no Disinterested
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