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EXHIBIT 10.06
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement, dated as of August 9, 2007, is made
by and among Bank of Marin Bancorp, a California corporation,
Bank of Marin, a California banking corporation (Bank of Marin
Bancorp and Bank of Marin being collectively referred to as
the "Corporation"), and
a director [officer] of either Bank of Marin Bancorp or
Bank of Marin (the "Indemnitee").
RECITALS
A. The
Corporation and the Indemnitee recognize that the present
state of the law is too uncertain to provide the Corporation's
officers and directors with adequate and reliable advance
knowledge or guidance with respect to the legal risks and
potential liabilities to which they may become personally
exposed as a result of performing their duties for the
Corporation;
B. The
Corporation and the Indemnitee are aware of the substantial
growth in the number of lawsuits filed against corporate
officers and directors in connection with their activities in
such capacities and by reason of their status as
such;
C. The
Corporation and the Indemnitee recognize that the cost of
defending against such lawsuits, whether or not meritorious,
is typically beyond the financial resources of most officers
and directors of the Corporation;
D. The
Corporation and the Indemnitee recognize that the legal risks
and potential liabilities, and the threat thereof, associated
with proceedings filed against the officers and directors of
the Corporation bear no reasonable relationship to the amount
of compensation received by the Corporation's officers and
directors;
E. The
Corporation has determined that the liability insurance
coverage available to the Corporation as of the date may not
be entirely adequate. The Corporation believes,
therefore, that the interest of the Corporation's shareholders
would be best served by a combination of (i) such insurance as
the Corporation may obtain pursuant to the Corporation's
obligations hereunder and (ii) a contract with its officers
and directors, including the Indemnitee, to indemnify them to
the fullest extent permitted by law (as in effect on the date
hereof, or, to the extent any amendment may expand such
permitted indemnification, as hereafter in effect) against
personal liability for actions taken in the performance of
their duties to the Corporation;
F. Section
317 of the California Corporations Code empowers California
corporations to indemnify their officers and directors and
further states that the indemnification provided by Section
317 "shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any
bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in an official
capacity and as to action in another capacity while holding
such office, to the extent such additional rights to
indemnification are authorized in the articles of the
corporation"; thus, Section 317 does not by itself limit the
extent to which the Corporation may indemnify persons serving
as its officers and directors;
G. The
Corporation's Articles of Incorporation and Bylaws authorize
the indemnification of the officers and directors of the
Corporation in excess of that expressly permitted by Section
317, subject to the limitations set forth in Section
204(a)(11) of the California Corporations Code;
H. The
Board of Directors of the Corporation has concluded that, to
retain and attract talented and experienced individuals to
serve as officers and directors of the Corporation and to
encourage such individuals to take the business risks
necessary for the success of the Corporation, it is necessary
for the Corporation to contractually indemnify its officers
and directors, and to assume for itself liability for expenses
and damages in connection with claims against such officers
and directors in connection with their service to the
Corporation, and has further concluded that the failure to
provide such contractual indemnification could result in great
harm to the Corporation and its shareholders;
I. The
Corporation desires and has requested Indemnitee to serve or
continue to serve as a director [officer] of the Corporation,
free from undue concern for the potential liabilities
associated with such services to Corporation; and
J. The
Indemnitee is willing to serve, or continue to serve, the
Corporation, provided, and on the expressed condition, that he
is furnished with the indemnification provided for
herein.
AGREEMENT
NOW,
THEREFORE, the Corporation and Indemnitee agree as
follows:
1.
Definitions .
(a) "Expenses"
means, for the purposes of this Agreement, all direct and
indirect costs of any type or nature whatsoever (including,
without limitation, any fees and disbursements of Indemnitee's
counsel, accountants and other experts and other out-of-pocket
costs) actually and reasonably incurred by the Indemnitee in
connection with the investigation, preparation, defense or
appeal of a Proceeding; provided, however, that Expenses shall
not include judgments, fines, penalties or amounts paid in
settlement of a Proceeding.
(b) "Proceeding"
means, for the purposes of this Agreement, any threatened,
pending or completed action or proceeding, whether civil,
criminal, administrative or investigative (including an action
brought by or in the right of the Corporation) in which
Indemnitee may be or may have been involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a
director [officer] of the Corporation, or is or was a director
[officer] of any subsidiary of the Corporation, by reason of
any action taken by him or of any inaction on his part while
acting as such director [officer] or by reason of the fact
that he is or was serving at the request of the Corporation as
a director, officer, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director and/or officer of the
foreign or domestic corporation which was a predecessor
corporation to the Corporation or of another enterprise at the
request of such predecessor corporation, whether or not he is
serving in such capacity at the time any liability or expense
is incurred for which indemnification or reimbursement can be
provided under this Agreement.
2.
Agreement to Serve . In consideration of the
protection afforded by this Agreement, if Indemnitee is a
director of the Corporation, he agrees to continue to serve in
such capacity until his resignation or the expiration of his
term. If Indemnitee is an officer of the
corporation not serving under an employment contract, he
agrees to continue to serve in such capacity until his
resignation or until at least for the balance of the current
fiscal year of the Corporation. Nothing contained in this
Agreement is intended to create in Indemnitee any right to
continued employment.
3.
Indemnification .
(a)
Third Party Proceedings . The Corporation
shall indemnify Indemnitee against Expenses, judgments, fines,
penalties or amounts paid in settlement (if the settlement is
approved in advance by the Corporation, which approval shall
not be unreasonably withheld) actually and reasonably incurred
by Indemnitee in connection with a Proceeding (other than a
Proceeding by or in the right of the Corporation) if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee's
conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that Indemnitee did not act in
good faith and in a manner which Indemnitee reasonably
believed to be in the best interests of the Corporation, or,
with respect to any criminal Proceeding, had no reasonable
cause to believe that Indemnitee's conduct was
unlawful.
(b)
Proceedings By or in the Right of the Corporation
. To the fullest extent permitted by law, the
Corporation shall indemnify Indemnitee against Expenses and
amounts paid in settlement, actually and reasonably incurred
by Indemnitee in connection with a Proceeding by or in the
right of the Corporation to procure a judgment in its favor if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the
Corporation and its shareholders.
(c)
Scope . Notwithstanding any other provision
of this Agreement but subject to Section 14(b), the
Corporation shall indemnify the Indemnitee to the fullest
extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by other
provisions of this Agreement, the Corporation's Articles of
Incorporation, the Corporation's Bylaws or by
statute.
4.
Limitations on Indemnification . Any other
provision herein to the contrary notwithstanding, the
Corporation shall not be obligated pursuant to the terms of
this Agreement:
(a)
Excluded Acts . To indemnify Indemnitee for
any acts or omissions or transactions from which a director or
officer may not be relieved of liability under the California
General Corporation Law or for expenses, penalties, or other
payments prohibited by Part 359 of the FDIC’s Rules and
Regulations, incurred in an administrative proceeding or
action instituted by an appropriate bank regulatory agency
which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an
individual or individuals in the form of payments to the
Corporation or its subsidiary;
(b)
Claims Initiated by Indemnitee . To
indemnify or advance Expenses to Indemnitee with respect to
Proceedings or claims initiated or brought voluntarily by
Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or
law or otherwise as required under Section 317 of the
California General Corporation Law, but such indemnification
or advancement of Expenses may be provided by the Corporation
in specific cases if the Board of Directors has approved the
initiation or bringing of such suit; or
(c)
Lack of Good Faith . To indemnify Indemnitee
for any Expenses incurred by the Indemnitee with respect to
any proceeding instituted by Indemnitee to enforce or
interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or
was frivolous; or
(d)
Insured Claims . To indemnify Indemnitee for
Expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes
or
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