Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this
“Agreement”) is entered into, effective as of
March 25, 2009 between PacWest Community Bancorp, a Delaware
corporation (the “Company”), and
(“Indemnitee”).
WHEREAS, it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS, Indemnitee is a director
and/or officer of the Company and/or its subsidiaries;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims currently being asserted against directors and officers of
corporations; and
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued and
effective service to the Company and/or its subsidiaries and in
order to induce Indemnitee to provide services to the Company
and/or any of its subsidiaries as a director or officer, the
Company wishes to provide in this Agreement for the indemnification
of, and the advancing of expenses to, Indemnitee to the fullest
extent (whether partial or complete) permitted by law and as set
forth in this Agreement and to, the extent insurance is maintained
for the coverage of Indemnitee, under the Company’s
directors’ and officers’ liability policies.
NOW, THEREFORE, in consideration of
the above premises and of Indemnitee’s continuing to serve
the Company directly or, at the Company’s request, with
another enterprise, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
1.
Indemnification .
(a)
Third Party Proceedings . In the event Indemnitee was
or is a party to or other participant in, or is threatened to be
made a party to or other participant in, a Proceeding (except as
described in Section 1(b) below) by reason of (or arising
in part out of ) an Indemnifiable Event, the Company shall
indemnify Indemnitee from and against any and all Expenses,
liabilities, losses, judgments, fines, amounts paid or to be paid
in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld), any
interest, assessments or other charges imposed thereon and any
federal, state, local or foreign taxes imposed as a result of the
actual or deemed receipt of any payments under this Agreement,
which are actually and reasonably incurred by Indemnitee in
connection with such Proceeding; provided , that Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in or not
opposed to the
best interests of the Company, and, with respect to any criminal
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 (i) Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company or (ii) with
respect to any criminal Proceeding, Indemnitee had reasonable cause
to believe that Indemnitee’s conduct was
unlawful.
(b)
Proceedings by or in the Right of the Company . In the
event Indemnitee was or is a party to or other participant in, or
is threatened to be made a party to or other participant in, a
Proceeding by or in the right of the Company or any subsidiary of
the Company to procure a judgment in its favor by reason of (or
arising in part out of ) an Indemnifiable Event, the Company shall
indemnify Indemnitee from and against any and all Expenses,
liabilities, losses, judgments, fines, and, to the fullest extent
permitted by law, amounts paid in settlement, any interest,
assessments or other charges imposed thereon and any federal,
state, local or foreign taxes imposed as a result of the actual or
deemed receipt of any payments under this Agreement, in each case
to the extent actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of 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 Company; provided , however , that no
indemnification shall be made in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged to be liable
to the Company in the performance of Indemnitee’s duty to the
Company unless and only to the extent that the court in which such
Proceeding is or was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses which that the court shall
deem proper.
2.
Advancement of Expenses; Indemnification Procedure
.
(a)
Advancement of Expenses . The Company shall advance
all Expenses incurred by Indemnitee in connection with the
investigation, preparation for, defense, settlement or appeal of
any Proceeding referenced in Section 1(a) or
(b) hereof (but not amounts actually paid in settlement of any
such Proceeding). Indemnitee hereby undertakes to repay such
amounts advanced only if, and to the extent that, it shall
ultimately be determined that Indemnitee is not entitled to be
indemnified by the Company as authorized hereby or elsewhere.
The advances to be made hereunder shall be paid by the Company to
Indemnitee within ten (10) days following delivery of a
written request therefor by Indemnitee to the Company and shall be
made without regard to Indemnitee’s ability to repay the
Expenses and without regard to Indemnitee’s ultimate
entitlement to indemnification under the provisions of this
Agreement. Written requests of Indemnitee for advances shall
provide reasonable accounting for the Expenses to
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be paid by the
Company. Advances shall include any and all reasonable
Expenses incurred pursuing an action to enforce this right of
advancement. Indemnitee’s obligation to reimburse the
Company for advances shall be unsecured and no interest shall be
charged thereon.
(b)
Notice/Cooperation by
Indemnitee . Indemnitee shall give
the Company notice in writing as soon as practicable of any claim
made against Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be
directed to the General Counsel of the Company at the address shown
on the signature page of this Agreement (or such other address
as the Company shall designate in writing to Indemnitee pursuant to
Section 15 hereof). Notice shall be deemed received as
set forth in Section 15 hereof. In addition, Indemnitee
shall give the Company such information and cooperation in the
defense of any Proceeding as shall be within Indemnitee’s
power, except that Indemnitee shall not be required to give the
Company information that is privileged or confidential as to
Indemnitee. The giving of notice required under this
Section 2(b) shall be a condition precedent to
Indemnitee’s right to be indemnified under this Agreement if
the failure to give such notice materially prejudices any right,
claim or defense available to the Company.
(c)
Procedure
.
(i)
Any indemnification provided for in Section 1(a) or
1(b) hereof shall be made no later than sixty (60) days after
receipt of the written request of Indemnitee if, and 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 in Section 1(a) or 1(b), as the case may be, by any
of the following:
A.
a majority vote of the Board of Directors of the Company consisting
of directors who are not parties to such Proceeding, even though
less than a quorum;
B.
a committee of such directors designated by a majority of such
directors, even though less than a quorum;
C.
if there are no such directors, by independent legal counsel in a
written opinion; or
D.
approval of the stockholders of the Company.
(ii)
If a claim under this Agreement, under any statute or under any
provision of the Company’s Certificate of Incorporation or
Bylaws providing for indemnification, is not paid in full by the
Company within sixty (60) days after a written request for payment
thereof has first been received by the
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Company,
Indemnitee may, but need not, within one (1) year after
receipt of such written request by the Company bring an action
against the Company to recover the unpaid amount of the claim and,
subject to Section 9 of this Agreement, Indemnitee shall also
be entitled to be paid for the Expenses (including reasonable
attorneys’ 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 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 Company to indemnify Indemnitee for the amount claimed, but
the burden of proving such defense shall be on the Company, and
Indemnitee shall be entitled to receive interim payments of
Expenses pursuant to Subsection 2(a) unless and until such
defense may be finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the
parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of
Indemnitee’s right to indemnification shall be for the court
to decide on a de novo basis, and neither the failure of the
Company (including its Board of Directors, any committee or
subgroup of the 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 Company (including its Board of
Directors, any committee or subgroup of the Board of Directors,
independent legal counsel or its stockholders) 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.
(d)
Notice to
Insurers . If, at the time of
the receipt of a notice of a claim pursuant to
Section 2(b) hereof, the Company has directors’ and
officers’ insurance policies in effect, then the
Company shall give prompt notice of the commencement of such
Proceeding to the insurers of such policies in accordance with the
procedures set forth in such policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to
pay, on behalf of Indemnitee, all amounts payable as a result of
such Proceeding in accordance with the terms of such
policies.
(e)
Selection of
Counsel . Upon notification of
the Company of the commencement of any Proceeding as to which
indemnification will or could be sought under this Agreement, the
Company shall be entitled to assume the defense of such Proceeding,
with counsel approved by Indemnitee, which approval shall not be
unreasonably withheld, upon the delivery to Indemnitee of written
notice of its election so to do. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same
Proceeding; provided , that (i) Indemnitee shall have
the right to employ his or her
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counsel in any
such Proceeding at Indemnitee’s expense; and (ii) if
(A) the employment of counsel by Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall
have reasonably concluded that there may be a conflict of interest
between the Company and Indemnitee in the conduct of any such
defense or (C) the Company shall not within sixty (60) days,
in fact, have employed counsel to assume the defense of such
Proceeding, then the Expenses of Indemnitee’s counsel shall
be at the expense of the Company. In the event separate
counsel is retained by an Indemnitee pursuant to this
Section 2(e), the Company shall cooperate with Indemnitee with
respect to the defense of the Proceeding, including making
documents, witnesses and other reasonable information related to
the defense available to Indemnitee and such separate counsel
pursuant to joint-defense agreements or confidentiality agreements,
as appropriate. The Company shall not be entitled to assume
the defense of any Proceeding brought by or on behalf of the
Company or as to which Indemnitee shall have made the determination
provided for in (ii)(B) above.
(f)
Settlement of Claims . The Company shall not be liable
to indemnify Indemnitee under this Agreement or otherwise for any
amounts paid in settlement of any Proceeding effected without the
Company’s written consent. The Company shall not settle
any Proceeding (in whole or in part) in any manner which would
impose any Expense, judgment, fine, penalty or limitation on
Indemnitee without Indemnitee’s prior written consent.
Neither the Company nor Indemnitee will unreasonably withhold their
consent to any proposed settlement. The Company shall not be
liable to indemnify Indemni
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