Exhibit 10.8
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“Agreement”) is made and entered into as of
___________ __, 2008, by and between Gateway Pacific Bancorp,
a California corporation (the “Company”), and
_________________, [an officer][a director] of the Company
(“Indemnitee”).
RECITALS
A. The
Company and Indemnitee are aware of the substantial growth in the
number of lawsuits filed against corporate directors and officers
in connection with their activities in such capacities and by
reason of their status as such;
B. The
Company and Indemnitee recognize that the cost of defending against
such lawsuits, whether or not meritorious, is typically beyond the
financial resources of most of the Company’s directors and
officers;
C. The
Company and Indemnitee recognize that the legal risks and potential
liabilities associated with proceedings filed against the
Company’s directors and officers bear no reasonable
relationship to the amount of compensation received by the
Company’s directors and officers;
D. The
Company, after reasonable investigation prior to the date hereof,
has determined that the liability insurance coverage available to
the Company as of the date hereof is inadequate, unreasonably
expensive or both. The Company believes, therefore, that the
interest of the Company’s shareholders would be best served
by a combination of (i) such insurance as the Company may
obtain pursuant to the Company’s obligations hereunder and
(ii) a contract with its directors and certain officers,
including Indemnitee, to indemnify such individuals pursuant to
Section 317 of the California Corporations Code (the
“Code”) against personal liability for actions taken in
the performance of their duties to the Company;
E. Section 317 of
the Code empowers California corporations to indemnify their
directors and officers;
F. The Board
of Directors of the Company (the “Board”) has concluded
that, to retain and attract talented and experienced individuals to
serve as the Company’s directors and officers and to
encourage such individuals to take the business risks necessary for
the success of the Company, it is necessary for the Company to
contractually indemnify its directors and certain officers, and to
assume for itself liability for expenses and damages in connection
with claims against such directors and officers with respect to
their service to the Company, and has further concluded that the
failure to provide such contractual indemnification could result in
great harm to the Company and its shareholders;
G. The
Company desires and has requested Indemnitee to serve or continue
to serve as a director or officer of the Company, free from undue
concern for the risks and potential liabilities associated with
such services to the Company; and
H. Indemnitee
is willing to serve, or continue to serve, the Company, provided,
and on the expressed condition, that he is furnished with the
indemnification provided for herein.
AGREEMENT
NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Indemnitee agree as
follows:
(a) “Expenses” means 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 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.
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(b) “Proceeding” means
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 Company) 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 or officer of the Company, by reason of any action taken
by Indemnitee or of any inaction on his part while acting as such
director or officer or by reason of the fact that he is or was
serving at the request of the Company 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 Company 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.
(a) Third Party Proceedings .
The Company shall indemnify Indemnitee against Expenses, judgments,
fines, penalties or amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with a Proceeding
(other than a Proceeding by or in the right of the Company)
provided Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the Company and
its shareholders, 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 Company, 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 Company . The Company 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 Company 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 Company and
its shareholders. Notwithstanding the foregoing, no indemnification
shall be made in respect of (i) any claim, issue or matter as
to which Indemnitee shall have been adjudged liable to the Company
in the performance of Indemnitee’s duty to the Company and
its shareholders unless the court in which such action or
proceeding is or was pending shall determine upon application that,
in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnity for Expenses and then only to
the extent that such court shall determine; (ii) any amounts
paid by Indemnitee in settling or otherwise disposing of a pending
action without court approval; and (iii) Expenses incurred in
defending a pending action which is settled or otherwise disposed
of without court approval.
3.
Limitations on Indemnification . Notwithstanding
any other provision herein to the contrary, the Company 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
Section 204 of the Code or for expenses, penalties, or other
payments incurred in an administrative proceeding or action
instituted by an appropriate bank or bank holding company
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 Company or any banking subsidiary of the Company.
(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 Code, but such
indemnification or advancement of Expenses may be provided by the
Company in specific cases if the Board has approved the initiation
or bringing of such Proceeding.
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(c) Lack of Good Faith . To
indemnify Indemnitee for any Expenses incurred by 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 Indemnitee
in such Proceeding was not made in good faith or was
frivolous.
(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 penalties, and amounts paid in settlement) which
have been paid directly to or on behalf of Indemnitee by an
insurance carrier under a policy of directors’ and
officers’ liability insurance (“D&O
Insurance”) maintained by the Company or any other policy of
insurance maintained by the Company or Indemnitee.
(e) Claims Under
Section 16(b) . To indemnify Indemnitee for Expenses 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.
(f) Regulatory Limitations .
Notwithstanding any other provisions contained herein, this
Agreement is subject to the requirements and limitations set forth
in state and federal laws, rules, regulations and orders regarding
indemnification
