INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (the “Agreement”) is made as
of this
day of
, 200 , by and between UCBH Holdings, Inc., a
Delaware corporation (the “Corporation”), and
, an individual (“Indemnitee”).
A. The
Corporation and Indemnitee recognize that unforeseen litigation may
subject directors, officers and agents to costs and expenses.
B. The
Corporation desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as directors,
officers and agents of the Corporation and to indemnify its
directors, officers and agents so as to provide them with the
maximum protection permitted by law.
In consideration
of the Recitals set forth above and the mutual covenants and
agreements set forth below, the Corporation and Indemnitee do
hereby agree as follows:
1.
Indemnification and Expense Advancement .
(a)
Proceedings Other than by Right of the Corporation . The
Corporation shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any proceeding (other
than an action by or in the right of the Corporation to procure a
judgment in its favor) by reason of the fact that Indemnitee is or
was an Agent (as defined in Section 1(i) below) of the Corporation,
against costs, expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such
proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation and, in the case of a criminal
proceeding, has no reasonable cause to believe the conduct of
Indemnitee 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 that Indemnitee had reasonable
cause to believe that Indemnitee’s conduct was unlawful.
(b)
Proceedings By or in the Right of the Corporation . The
Corporation shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any threatened,
pending or completed action by or in the right of the Corporation
to procure a judgment in its favor by reason of the fact that
Indemnitee is or was an Agent of the Corporation, against expenses
actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of such action if Indemnitee acted in
good faith, in a manner Indemnitee believed
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to be in or not opposed to the best interests
of the Corporation and its stockholders; except that no
indemnification shall be made under this Section 1(b) for any of
the following:
(i) In
respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Corporation in the
performance of Indemnitee’s duty to the Corporation and its
stockholders, unless and only to the extent that the court in which
such proceeding is or was pending or the Delaware Court of Chancery
shall determine upon application that, in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for the expenses which such court shall
determine;
(ii) Of
amounts paid in settling or otherwise disposing of a pending action
without court approval; or
(iii) Of
expenses incurred in defending a pending action which is settled or
otherwise disposed of without court approval.
(c)
Determination of Right of Indemnification . Any
indemnification under Sections 1(a) and (b) shall be made by
the Corporation only if authorized in the specific case, upon a
determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct set forth above in Sections 1(a) and (b) by any of the
following:
(i) A
majority vote of a quorum of the Corporation’s board of
directors consisting of directors who are not parties to such
proceeding; or
(ii) If
such a quorum of directors is not obtainable, by independent legal
counsel in a written opinion; or
(iii) Approval
of the stockholders by the affirmative vote of a majority of the
shares entitled to vote represented at a duly held meeting at which
a quorum is present or by the written consent of stockholders as
provided in the Bylaws, with the shares owned by the person to be
indemnified not being entitled to vote thereon; or
(iv) By
the court in which such proceeding is or was pending upon
application made by the Corporation or its Agent or attorney or
other person rendering services in connection with the defense,
whether or not such application by the Agent, attorney or other
person is opposed by the Corporation.
(d)
Advances of Expenses . Expenses (including reasonable
attorneys’ and experts’ fees), costs, and charges
incurred in defending any proceeding shall be advanced promptly by
the Corporation prior to the final disposition of such proceeding
upon receipt of a written undertaking by or on behalf of Indemnitee
to repay such amount unless it shall be determined ultimately that
Indemnitee is entitled to be indemnified as authorized in this
Section 1. The form of such undertaking shall be substantially
similar to Exhibit A hereto.
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(e)
Indemnification Against Expenses of Successful Party .
Notwithstanding the other provisions of this Section 1, to the
extent that Indemnitee has been successful on the merits in a
defense of any proceeding, claim, issue or matter referred to in
Sections 1(a) and (b), Indemnitee shall be indemnified against all
expenses actually and reasonably incurred by Indemnitee in
connection therewith.
(f)
Right of Indemnitee to Indemnification Upon Application;
Procedure Upon Application . Any indemnification provided for
in Sections 1(a), (b) or (e) shall be made no later
than ninety (90) days after the Corporation is given notice of
request by Indemnitee, provided that any indemnification under
Sections 1(a) and (b) is authorized pursuant to Section 1(c).
Any such request for indemnification must be made within ninety
(90) days of the final adjudication, dismissal, or settlement
of the matter for which Indemnitee seeks indemnification, unless an
appeal is filed, in which case the request may be made within
ninety (90) days after the appeal is resolved (hereafter
referred to as “Final Disposition”). Upon such notice,
if a quorum of directors who were not parties to the action, suit,
or proceeding giving rise to indemnification is obtainable, the
Corporation shall within two (2) weeks call a Board of
Directors meeting to be held within four (4) weeks of such
notice, to make a determination as to whether Indemnitee has met
the applicable standard of conduct. Otherwise, if a quorum
consisting of directors who were not parties in the relevant
action, suit, or proceeding is not obtainable, the Corporation
shall retain (at the Corporation’s expense) independent legal
counsel chosen either jointly by the Corporation and Indemnitee or
else by the Corporation’s counsel within two (2) weeks
to make such determination.
If
notice of a request for payment of a claim under any statute, under
this Agreement, or under the Corporation’s Certificate of
Incorporation or Bylaws providing for indemnification or advance of
expenses has been given to the Corporation by Indemnitee, and such
claim is not paid in full by the Corporation within ninety
(90) days of the later occurring of the giving of such notice
and Final Disposition in case of indemnification and ten
(10) days of the giving of such notice in case of advance of
expenses, Indemnitee may, but need not, at any time thereafter
bring an action against the Corporation to receive the unpaid
amount of the claim or the expense advance and, if successful,
Indemnitee shall also be paid for the expenses (including
reasonable attorneys’ and experts’ fees) of bringing
such action. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in
connection with any action, suit, or proceeding in advance of its
Final Disposition) that Indemnitee has not met the standards of
conduct which make it permissible under applicable law for the
Corporation to indemnify Indemnitee for the amount claimed, and
Indemnitee shall be entitled to receive interim payment of expenses
pursuant to Section 1(d) unless and until such defense may be
finally adjudicated by court order or judgment from which no
further right of appeal exists. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the
Corporation (including its Board of Directors or independent legal
counsel) that Indemnitee has not met such applicable standard of
conduct, shall create a presumption that Indemnitee has or has not
met the applicable standard of conduct.
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(g)
Insurance . The Corporation may purchase and maintain
insurance on behalf of any person who is or was an Agent against
any liability asserted against such person and incurred by him or
her in any such capacity, or arising out of his or her status as
such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions
of this Section 1.
(h)
Optional Means of Assuring Payment . Upon request by an
Indemnitee certifying that Indemnitee has reasonable grounds to
believe Indemnitee may be made a party to a proceeding for which
Indemnitee may be entitled to be indemnified under this
Section 1, the Corporation may, but is not required to, create
a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the
payment of such sums as may become necessary to effect
indemnification as provided herein.
(i)
Definition of Agent . For the purposes of this Agreement,
“Agent” means any person who is or was a director,
officer, employee or other agent of the Corporation, or 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, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the corporation
or of another enterprise at the request of such predecessor
corporation; “proceeding” means any threatened, pending
or completed action or proceeding, whether civil, criminal,
administrative or investigative; and “expenses”
includes without limitation reasonable attorneys’ and
experts’ fees and any expenses of establishing a right to
indemnification.
(j)
Indemnification under Section 145 of the Delaware General
Corporation Law . Subject to the provisions of Delaware
Corporation Law Section 145 and any other applicable law,
notwithstanding any other provisions of this Section 1, the
following shall apply to the indemnification of Indemnitee:
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