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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 no Disinterested Directors or
the Disinterested Directors so direct
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