EX-10.1
Published on May 23, 2012
Exhibit 10.1
FORM OF INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of between California Water Service Group (the company), and (Indemnitee).
WHEREAS, the board of directors has determined that the ability to attract and retain qualified persons as directors and officers is in the best interests of the companys stockholders and that the company should act to assure such persons that there will be adequate certainty of protection through insurance and indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of the company; and
WHEREAS, the companys certificate of incorporation provides for the elimination of liability of the directors of the company to the fullest extent permitted by Delaware law, and further provides for indemnification of any person who is or was a party or is threatened to be made a party to any proceeding by reason of the fact that such person is or was an agent of the corporation to the fullest extent permitted by Section 145 of the Delaware General Corporation Law (the DGCL), and the company wishes to clarify and enhance the rights and obligations of the company and Indemnitee with respect to indemnification and advancement of expenses; and
WHEREAS, in order to induce and encourage highly experienced and capable persons such as Indemnitee to serve and continue to serve as directors and officers of the company and in any other capacity with respect to the company, and to otherwise promote the desirable end that such persons will resist what they consider unjustified lawsuits and claims made against them in connection with the good faith performance of their duties to the company, with the knowledge that certain costs, judgments, penalties, fines, liabilities and expenses incurred by them in their defense of such litigation are to be borne by the company and they will receive the maximum protection against such risks and liabilities as may be afforded by law, the board of directors of the company has determined that the following Agreement is reasonable and prudent to promote and ensure the best interests of the company and its stockholders; and
WHEREAS, the company desires to have Indemnitee continue to serve as a director or officer of the company and in such other capacity with respect to the company as the company may request, as the case may be, free from undue concern for unpredictable, inappropriate or unreasonable legal risks and personal liabilities by reason of Indemnitee acting in good faith in the performance of Indemnitees duty to the company; and Indemnitee desires to continue so to serve the company, provided, and on the express condition, that he or she is furnished with the protections set forth hereinafter;
Now, therefore, in consideration of Indemnitees continued service as a director or officer of the company, the parties hereto agree as follows:
1. Service by Indemnitee. Indemnitee will serve and/or continue to serve as a director or officer of the company faithfully and to the best of Indemnitees ability so long as Indemnitee is duly elected or appointed and until such time as Indemnitee is removed as permitted by law or tenders a resignation in writing. This Agreement shall not impose any
obligation on the company to continue Indemnitees service to the company beyond any period otherwise required by law or by other agreements of the parties, if any.
2. Indemnification and Advancement of Expenses. The company shall indemnify and hold harmless Indemnitee, and shall pay to Indemnitee in advance of the final disposition of any Proceeding all Expenses incurred by Indemnitee in defending any such Proceeding, to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, all on the terms and conditions set forth in this Agreement. Without diminishing the scope of the rights provided by this Section, the rights of Indemnitee to indemnification and advancement of Expenses provided hereunder shall include but shall not be limited to those rights hereinafter set forth, except that no indemnification or advancement of Expenses shall be paid to Indemnitee:
(a) to the extent expressly prohibited by applicable law or the certificate of incorporation or bylaws of the company;
(b) for and to the extent that payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, provision of the certificate of incorporation or bylaws, or agreement of the company or any other company or other enterprise where Indemnitee is or was serving at the request of the company (and Indemnitee shall reimburse the company for any amounts paid by the company and subsequently so recovered by Indemnitee);
(c) in connection with an action, suit, or proceeding, or part thereof initiated by Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) Indemnitee, or (ii) the company in an action, suit, or proceeding initiated by Indemnitee), except a judicial proceeding or arbitration pursuant to Section 10 to enforce rights under this Agreement, unless the action, suit, or proceeding, or part thereof, was authorized or ratified by the board of directors of the company;
(d) with respect to any Proceeding brought by or in the right of the company against Indemnitee that is authorized by the board of directors of the company, except as provided in Sections 4, 5 and 6 below.
3. Action or Proceedings Other than an Action by or in the Right of the Company. Except as limited by Section 2 above, Indemnitee shall be entitled to the indemnification rights provided in this Section if Indemnitee was or is a party or is threatened to be made a party to, or was or is otherwise involved in, any Proceeding (other than an action by or in the right of the company) by reason of the fact that Indemnitee is or was a director, officer, employee, agent, or trustee of the company or while a director, officer, employee, agent, or trustee of the company is or was serving at the request of the company as a director, officer, employee, agent, or trustee of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan, or by reason of anything done or not done by Indemnitee in any such capacity. Pursuant to this Section, Indemnitee shall be indemnified against all expense, liability, and loss (including judgments, fines, ERISA excise taxes or penalties, amounts paid in settlement by or on behalf of Indemnitee, and Expenses) actually and reasonably incurred by Indemnitee in connection with such Proceeding, if Indemnitee acted in good faith and in a manner he 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 his or her conduct was unlawful.
4. Indemnity in Proceedings by or in the Right of the Company. Except as limited by Section 2 above, Indemnitee shall be entitled to the indemnification rights provided in this Section if Indemnitee was or is a party or is threatened to be made a party to, or was or is otherwise involved in, any Proceeding brought by or in the right of the company to procure a judgment in its favor by reason of the fact that Indemnitee is or was a director, officer, employee, agent, or trustee of the company or while a director, officer, employee, agent, or trustee of the company is or was serving at the request of the company as a director, officer, employee, agent, or trustee of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan, or by reason of anything done or not done by Indemnitee in any such capacity. Pursuant to this Section, Indemnitee shall be indemnified against all expense, liability, and loss (including judgments, fines, ERISA excise taxes or penalties, amounts paid in settlement by or on behalf of Indemnitee, and Expenses) actually and reasonably incurred by Indemnitee 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 company; provided, however, that no such indemnification shall be made in respect of any claim, issue, or matter as to which Delaware law expressly prohibits such indemnification by reason of any adjudication of liability of Indemnitee to the company, unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is entitled to indemnification for such expense, liability and loss as such court shall deem proper.
5. Indemnification for Costs, Charges and Expenses of Successful Party. Notwithstanding the limitations of Section 2, 3 and 4 above, to the extent that Indemnitee has been successful, on the merits or otherwise, in whole or in part, in defense of any Proceeding, or in defense of any claim, issue or matter therein, including, without limitation, the dismissal of any action without prejudice, or if it is ultimately determined, by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal, that Indemnitee is otherwise entitled to be indemnified against Expenses, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred in connection therewith.
6. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the company for some or a portion of the expense, liability, and loss (including judgments, fines, ERISA excise taxes or penalties, amounts paid in settlement by or on behalf of Indemnitee, and Expenses) actually and reasonably incurred in connection with any Proceeding, or in connection with any judicial proceeding or arbitration pursuant to Section 10 to enforce rights under this Agreement, but not, however, for all of the total amount thereof, the company shall nevertheless indemnify Indemnitee for the portion of such expense, liability, and loss actually and reasonably incurred to which Indemnitee is entitled.
7. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the maximum extent permitted by applicable law, Indemnitee shall be entitled to indemnification against all Expenses actually and reasonably incurred or suffered by Indemnitee or on Indemnitees behalf if Indemnitee appears as a witness or otherwise incurs
legal expenses as a result of or related to Indemnitees service as a director or officer of the company, in any threatened, pending, or completed action, suit, arbitration, alternative dispute mechanism, inquiry, judicial, administrative, or legislative hearing, investigation, or any other threatened, pending, or completed or proceeding, whether of a civil, criminal, administrative, legislative, investigative, or other nature, to which Indemnitee neither is, nor is threatened to be made, a party.
8. Determination of Entitlement to Indemnification. To receive indemnification under this Agreement, Indemnitee shall submit a written request to the secretary of the company. Such request shall include documentation or information that is necessary for such determination and is reasonably available to Indemnitee. Upon receipt by the secretary of the company of a written request by Indemnitee for indemnification pursuant to this Agreement, the entitlement of Indemnitee to indemnification, to the extent not provided pursuant to the terms of this Agreement, shall be determined by the following person or persons who shall be empowered to make such determination: (a) the board of directors of the company by a majority vote of Disinterested Directors, whether or not such majority constitutes a quorum; (b) a committee of Disinterested Directors designated by a majority vote of such directors, whether or not such majority constitutes a quorum; (c) if there are no Disinterested Directors, or if the Disinterested Directors so direct, by Independent Counsel in a written opinion to the board of directors, a copy of which shall be delivered to Indemnitee; (d) the stockholders of the company; or (e) if a Change in Control has occurred and Indemnitee specifically so requests in Indemnitees written request for indemnification, by Independent Counsel in a written opinion to the board of directors, a copy of which shall be delivered to Indemnitee. Such Independent Counsel shall be selected by the board of directors and approved by Indemnitee, except that in the event that a Change in Control has occurred and Indemnitee requests a determination by Independent Counsel, Independent Counsel shall be selected by Indemnitee. Upon failure of the board of directors so to select such Independent Counsel or upon failure of Indemnitee so to approve (or so to select, in the event a Change in Control has occurred), such Independent Counsel shall be selected upon application to a court of competent jurisdiction. The determination of entitlement to indemnification shall be made and, unless a contrary determination is made, such indemnification shall be paid in full by the company not later than 30 calendar days after receipt by the secretary of the company of a written request for indemnification. If the person making such determination shall determine that Indemnitee is entitled to indemnification as to part (but not all) of the application for indemnification, such person shall reasonably prorate such partial indemnification among the claims, issues, or matters at issue at the time of the determination.
9. Presumptions and Effect of Certain Proceedings. The secretary of the company shall, promptly upon receipt of Indemnitees written request for indemnification, advise in writing the board of directors or such other person or persons empowered to make the determination as provided in Section 8 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification hereunder, and the company shall have the burden of proof in making any determination contrary to such presumption. If the person or persons so empowered to make such determination shall have failed to make the requested determination with respect to indemnification within 30 calendar days after receipt by the secretary of the company of such request, a requisite determination of entitlement to indemnification shall be deemed to have been made, and Indemnitee shall be absolutely entitled to such indemnification, absent actual fraud in
the request for indemnification. The termination of any Proceeding described in Sections 3 or 4 by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself: (a) create a presumption that 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, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitees conduct was unlawful; or (b) otherwise adversely affect the rights of Indemnitee to indemnification except as may be provided herein.
10. Remedies of Indemnitee in Cases of Determination not to Indemnify or to Advance Expenses. In the event that a determination is made that Indemnitee is not entitled to indemnification hereunder or if payment has not been timely made following a determination of entitlement to indemnification pursuant to Sections 8 and 9, or if an advancement of Expenses is not paid pursuant to Section 15, Indemnitee may at any time thereafter bring suit against the company in a court of competent jurisdiction in the State of Delaware seeking an adjudication of entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee at Indemnitees option may seek an award in an arbitration to be conducted by a single arbitrator in the State of Delaware pursuant to the rules of the American Arbitration Association, such award to be made within 60 calendar days following the filing of the demand for arbitration. The company shall not oppose Indemnitees right to seek any such adjudication or award in arbitration. In any suit or arbitration brought by Indemnitee to enforce a right to indemnification hereunder (but not in a suit or arbitration brought by Indemnitee to enforce a right to an advancement of Expenses), it shall be a defense that Indemnitee did not act 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 his or her conduct was unlawful. Further, in any suit brought by the company to recover an advancement of Expenses pursuant to the terms of an undertaking, the company shall be entitled to recover such Expenses upon a final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that Indemnitee has not met the standard of conduct described above. Neither the failure of the company (including the Disinterested Directors, a committee of Disinterested Directors, Independent Counsel, or its stockholders) to have made a determination prior to the commencement of such suit or arbitration that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the standard of conduct described above, nor an actual determination by the company (including the Disinterested Directors, a committee of Disinterested Directors, Independent Counsel, or its stockholders) that Indemnitee has not met the standard of conduct described above shall create a presumption that Indemnitee has not met the standard of conduct described above, or, in the case of such a suit brought by Indemnitee, be a defense to such suit. In any suit brought by Indemnitee to enforce a right to indemnification or to an advancement of Expenses hereunder, or brought by the company to recover an advancement of Expenses pursuant to the terms of an undertaking, the burden of proving that Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Section 10 or otherwise shall be on the company. If a determination is made or deemed to have been made pursuant to the terms of Section 8 or 9 that Indemnitee is entitled to indemnification, the company shall be bound by such determination and is precluded from asserting that such determination has not been made or that the procedure by which such determination was made is not valid, binding and enforceable. The company further agrees to stipulate in any such court or before any such arbitrator pursuant to this Section 10 that the company is bound by all the provisions of this Agreement and is precluded from making any
assertions to the contrary. If the court or arbitrator shall determine that Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the company shall pay all Expenses actually and reasonably incurred by Indemnitee in connection with such adjudication or award in arbitration (including, but not limited to, any appellate proceedings) to the fullest extent permitted by law, and in any suit brought by the company to recover an advancement of Expenses pursuant to the terms of an undertaking, the company shall pay all Expenses actually and reasonably incurred by Indemnitee in connection with such suit to the extent Indemnitee has been successful, on the merits or otherwise, in whole or in part, in defense of such suit, to the fullest extent permitted by law.
11. Non-Exclusivity of Rights. The rights to indemnification and to the advancement of Expenses provided by this Agreement shall not be deemed exclusive of any other right that Indemnitee may now or hereafter acquire under any applicable law, agreement, vote of stockholders or Disinterested Directors, provisions of the certificate of incorporation or bylaws, or otherwise.
12. Expenses to Enforce Agreement. In the event that Indemnitee is subject to or intervenes in any action, suit or proceeding in which the validity or enforceability of this Agreement is at issue or seeks an adjudication or award in arbitration to enforce Indemnitees rights under, or to recover damages for breach of, this Agreement, Indemnitee, if Indemnitee prevails in whole or in part in such action, suit or proceeding shall be entitled to recover from the company and shall be indemnified by the company against any Expenses actually and reasonably incurred by Indemnitee in connection therewith.
13. Continuation of Indemnity. All agreements and obligations of the company contained herein shall continue during the period Indemnitee is a director, officer, employee, agent, or trustee of the company or while a director, officer, employee, agent, or trustee is serving at the request of the company as a director, officer, employee, agent, or trustee of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan, and shall continue thereafter with respect to any possible claims based on the fact that Indemnitee was a director, officer, employee, agent, or trustee of the company or was serving at the request of the company as a director, officer, employee, agent, or trustee of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan. This Agreement shall be binding upon all successors and assigns of the company (including any transferee of all or substantially all of its assets and any successor by merger or operation of law) and shall inure to the benefit of Indemnitees heirs, executors, and administrators.
14. Notification and Defense of Claim. Promptly after receipt by Indemnitee of notice of any Proceeding, Indemnitee shall, if a request for indemnification or an advancement of Expenses in respect thereof is to be made against the company under this Agreement, notify the company in writing of the commencement thereof; but the omission so to notify the company will not relieve it from any liability that it may have to Indemnitee. Notwithstanding any other provision of this Agreement, with respect to any such Proceeding of which Indemnitee notifies the company:
(a) The company shall be entitled to participate therein at its own expense; and
(b) Except as otherwise provided in this Section 14(b), to the extent that it may wish, the company, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereof, with counsel satisfactory to Indemnitee. After notice from the company to Indemnitee of its election so to assume the defense thereof, the company shall not be liable to Indemnitee under this Agreement for any expenses of counsel subsequently incurred by Indemnitee in connection with the defense thereof except as otherwise provided below. Indemnitee shall have the right to employ Indemnitees own counsel in such Proceeding, but the fees and expenses of such counsel incurred after notice from the company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the company, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the company and Indemnitee in the conduct of the defense of such Proceeding, or (iii) the company shall not within 60 calendar days of receipt of notice from Indemnitee in fact have employed counsel to assume the defense of the Proceeding, in each of which cases the fees and expenses of Indemnitees counsel shall be at the expense of the company. 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 conclusion provided for in (ii) above; and
(c) If the company has assumed the defense of a Proceeding, the company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without the companys written consent, or for any judicial or arbitral award if the company was not given an opportunity, in accordance with this Section 14, to participate in the defense of such Proceeding. The company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to Indemnitee without Indemnitees written consent. Neither the company nor Indemnitee will unreasonably withhold its consent to any proposed settlement.
15. Advancement of Expenses. All Expenses incurred by Indemnitee in defending any Proceeding described in Section 3 or 4 shall be paid by the company in advance of the final disposition of such Proceeding at the request of Indemnitee. To receive an advancement of Expenses under this Agreement, Indemnitee shall submit a written request to the secretary of the company. Such request shall reasonably evidence the Expenses incurred by Indemnitee in connection therewith and shall include or be accompanied by an undertaking, in substantially the form attached as Exhibit 1, by or on behalf of Indemnitee, to repay all amounts so advanced if it shall ultimately be determined, by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal, that Indemnitee is not entitled to be indemnified for such Expenses by the company as provided by this Agreement or otherwise. The Indemnitees undertaking to reimburse any such amounts is not required to be secured. Each such advancement of Expenses shall be made within 20 calendar days after the receipt by the secretary of the company of such written request. The Indemnitees entitlement to Expenses under this Agreement shall include those incurred in connection with any action, suit, or proceeding by Indemnitee seeking an adjudication or award in arbitration pursuant to Section 10 of this Agreement (including the enforcement of this provision) to the extent the court or arbitrator shall determine that Indemnitee is entitled to an advancement of Expenses hereunder.
16. Separability; Prior Indemnification Agreements. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent of the parties that the company provide protection to Indemnitee to the fullest enforceable extent. This Agreement shall supersede and replace any prior indemnification agreements entered into by and between the company and Indemnitee and any such prior agreements shall be terminated upon execution of this Agreement.
17. Headings; References; Pronouns. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. References herein to section numbers are to sections of this Agreement. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as appropriate.
18. Definitions. For purposes of this Agreement:
(a) Change in Control will be deemed to take place on the occurrence of any of the following events: (i) any merger or consolidation of the Employer (which includes the company and/or its Affiliates or Associates, as such terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934 or any successor provision), in which the Employer is not the surviving organization, a majority of the capital stock of which is not owned by the stockholders of the Employer immediately prior to such merger or consolidation; (ii) a transfer of all or substantially all of the assets of the Employer; (iii) any other corporate reorganization in which there is a change in ownership of the outstanding shares of the Employer wherein 30% or more of the outstanding shares of the Employer are transferred to any Person (as that term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 or any successor provisions); (iv) the acquisition by or transfer to a Person (including all Affiliates or Associates of such Person) of beneficial ownership (as that term is defined in Rule 13d-3 under the Securities Exchange Act of 1934 or any successor provision) of capital stock of the Employer if after such acquisition or transfer such Person (and their Affiliates or Associates) is entitled to exercise 30% or more of the outstanding voting power of all capital stock of the Employer entitled to vote in elections of directors; or (v) the election to the board of directors of the Employer of candidates who were not recommended for election by the board of directors of the Employer in office immediately prior to the election, if such candidates constitute a majority of those elected in that particular election.
(b) Disinterested Director means a director of the company who is not or was not a party to the Proceeding in respect of which indemnification is being sought by Indemnitee.
(c) Expenses includes, without limitation, expenses incurred in connection with the defense or settlement of any action, suit, arbitration, alternative dispute mechanism, inquiry, judicial, administrative, or legislative hearing, investigation, or any other threatened, pending, or completed proceeding, whether brought by or in the right of the company or otherwise, including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative, or other nature, attorneys fees, witness fees and expenses, fees and expenses of accountants and other advisors, retainers and disbursements and advances thereon, the premium, security for, and other costs relating to any bond (including cost bonds, appraisal bonds, or their equivalents), and any expenses of establishing a right to indemnification or advancement under Sections 8, 10, 12 and 15 hereof, but shall not include the amount of judgments, fines, ERISA excise taxes, or penalties actually levied against Indemnitee, or any amounts paid in settlement by or on behalf of Indemnitee.
(d) Independent Counsel means a law firm or a member of a law firm that neither is presently nor in the past five years has been retained to represent: (i) the company or Indemnitee in any matter material to either such party, or (ii) any other party to the Proceeding giving rise to a request for indemnification hereunder. Notwithstanding the foregoing, the term Independent Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the company or Indemnitee in an action to determine Indemnitees right to indemnification under this Agreement.
(e) Proceeding means any action, suit, arbitration, alternative dispute mechanism, inquiry, judicial, administrative, or legislative hearing, investigation, or any other threatened, pending, or completed proceeding, whether brought by or in the right of the company or otherwise, including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative, or other nature, to which Indemnitee was or is a party or is threatened to be made a party or is otherwise involved in by reason of the fact that Indemnitee is or was a director, officer, employee, agent, or trustee of the company or while a director, officer, employee, agent, or trustee of the company is or was serving at the request of the company as a director, officer, employee, agent, or trustee of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan, or by reason of anything done or not done by Indemnitee in any such capacity, whether or not Indemnitee is serving in such capacity at the time any expense, liability, or loss is incurred for which indemnification or advancement can be provided under this Agreement.
19. Other Provisions.
(a) This Agreement and all disputes or controversies arising out of or related to this Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that might be applied because of conflicts of laws principles of the State of Delaware.
(b) This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party.
(c) This Agreement shall not be deemed an employment contract between the company and any Indemnitee who is an officer of the company, and, if Indemnitee is an officer of the company, Indemnitee specifically acknowledges that Indemnitee may be discharged at any time for any reason, with or without cause, and with or without severance compensation, except as may be otherwise provided in a separate written contract between Indemnitee and the company.
(d) Upon a payment to Indemnitee under this Agreement, the company shall be subrogated to the extent of such payment to all of the rights of Indemnitee to recover against any person for such liability, and Indemnitee shall execute all documents and instruments required and shall take such other actions as may be necessary to secure such rights, including the execution of such documents as may be necessary for the company to bring suit to enforce such rights.
(e) This Agreement may not be amended, modified, or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each party. No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, and no single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, shall preclude any other or further exercise thereof or the exercise of any other right or power.
(f) All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if: (a) actually received; or (b) mailed by certified or registered mail, postage prepaid, on the third business day after the date on which it is so mailed. Notices, requests and demands pursuant to this Agreement shall be provided to: the company (to the attention of the General Counsel, at 1720 North First Street, San Jose, CA 95112 and the Chief Financial Officer, at 1720 North First Street, San Jose, CA 95112; with a copy to Gibson, Dunn & Crutcher LLP, One Montgomery Street, 31st Floor, San Francisco, CA 94104.
(g) This Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.
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CALIFORNIA WATER SERVICE GROUP | |
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Indemnitee |
EXHIBIT 1
UNDERTAKING TO REPAY INDEMNIFICATION EXPENSES
I , agree to reimburse California Water Service Group (the company) for all Expenses paid to me by the company in connection with any Proceeding (each as defined in the Indemnification Agreement dated as of between me and the company), in the event, and to the extent that it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that I am not entitled to be indemnified by the company for such Expenses.
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