ex102indemnificationagre






                          INDEMNIFICATION AGREEMENT                                                  This Indemnification Agreement, dated as of [•], 2020, is made by and between Pacific  Mercantile Bank, a California banking corporation (the “Bank”), and [•] (the “Indemnitee”).         WHEREAS,  it  is  essential  to  the Bank to  retain  and attract  as  directors, officers and  employees the most capable persons available;         WHEREAS, the Indemnitee serves as an “agent” (as such term is defined in Section 317  of the California Corporations Code) of the Bank;         WHEREAS, the  Bank and the Indemnitee recognize the increased risk of litigation and  other  claims  being  asserted  against  directors, officers and  employees of  companies  in  today’s  environment;         WHEREAS,  Section  317  of  the  California  Corporations  Code,  the Bank’s  Articles  of  Incorporation  (“Articles of  Incorporation”)  and  the Bank’s  Bylaws  (“Bylaws”)  authorize  the  Bank to  indemnify and  advance expenses  to  its agents to  the extent provided therein,  and the  Indemnitee serves as an agent of the Bank, in part, in reliance on such provisions;         WHEREAS, the Bank has determined that its inability to retain and attract as directors,  officers and  employees the  most  capable  persons  would  be  detrimental  to  the  interests  of  the  Bank, and that the Bank therefore should seek to assure such persons that indemnification and  insurance coverage will be available in the future; and         WHEREAS,  in  recognition  of  the  Indemnitee’s  need  for  substantial  protection  against  personal  liability  in  order  to  enhance  the  Indemnitee’s  continued  service  to  the Bank in  an  effective  manner and  the  Indemnitee’s  reliance  on  the Bank’s  Articles  of  Incorporation  and  Bylaws,  and  in  part  to  provide  the  Indemnitee  with  specific  contractual  assurance  that  the  protection promised by the Bank’s Articles of Incorporation and Bylaws will be available to the  Indemnitee (regardless of, among other things, any amendment to or revocation of the applicable  provisions of the Bank’s Articles of Incorporation and Bylaws or any change in the composition  of  the  governing  bodies  of  the Bank or  any  acquisition  transaction  relating  to  the Bank),  the  Bank wishes  to  provide  in  this  Agreement  for  the  indemnification  of  and  the  advancing  of  expenses to the 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 continued  coverage  of  the  Indemnitee  under  the  directors’  and  officers’  liability  insurance  policy  of  the  Bank.         NOW, THEREFORE, in consideration of the premises and of the Indemnitee continuing  to  serve  the Bank directly  or,  on  its  behalf  or  at  its  request,  as  an  officer,  director,  manager,  member, partner, fiduciary or trustee of, or in a similar capacity with, another Person (as defined  below) or any employee benefit plan, and intending to be legally bound hereby, the parties hereto  agree as follows:         1.    Certain Definitions.  In addition to terms defined elsewhere herein, the following  terms have the following meanings when used in this Agreement:   SMRH:4817-2626-3994.1                -1-                                                                                                                         





 






               (a)   Agreement:   means  this  Indemnification  Agreement,  as  amended  from  time to time hereafter.               (b)   Board of Directors:  means the Board of Directors of the Bank.               (c)   Claim:   means  any  threatened,  asserted,  pending  or  completed  civil,  criminal, administrative, investigative or other action, suit or proceeding of any kind whatsoever,  including any arbitration or other alternative dispute resolution mechanism, or any appeal of any  kind thereof, or any inquiry or investigation, whether instituted by the Bank, any governmental  agency or any other party, that the Indemnitee in good faith believes might lead to the institution  of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or  other, including any arbitration or other alternative dispute resolution mechanism.               (d)   Indemnifiable Expenses:  means (i) all expenses and liabilities, including  judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Bank,  and  counsel  fees  and  disbursements  (including,  without  limitation,  experts’  fees,  court  costs,  retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications,  postage and courier charges) paid or incurred in connection with investigating, defending, being  a witness in or participating in (including on appeal), or preparing to investigate, defend, be a  witness in or participate in, any Claim relating to any Indemnifiable Event by reason of the fact  that Indemnitee is, was  or has agreed to serve as a director, officer, employee or agent of the  Bank, or is or was serving or has agreed to serve on behalf of or at the request of the Bank as a  director, officer, manager, member, partner, fiduciary, trustee or in a similar capacity of another  Person, or by reason of any action alleged to have been taken or omitted in any such capacity,  whether  occurring  before,  on  or  after  the  date  of  this  Agreement  (any  such  event,  an  “Indemnifiable Event”), (ii) any liability pursuant to a loan guaranty (other than a loan guaranty  given in a personal capacity) or otherwise, for any indebtedness of the Bank or any subsidiary of  the Bank, including, without limitation, any indebtedness which the Bank or any subsidiary of  the Bank has assumed or taken subject to, and (iii) any liabilities which an Indemnitee incurs as a  result of acting on behalf of the Bank (whether as a fiduciary or otherwise) in connection with  the operation, administration or maintenance of an employee benefit plan or any related trust or  funding  mechanism  (whether  such  liabilities  are  in  the  form  of  excise  taxes  assessed  by  the  United States Internal Revenue Service, penalties assessed by the United States Department of  Labor,  restitutions  to  such  a  plan  or  trust  or  other  funding  mechanism  or  to  a  participant  or  beneficiary of such plan, trust or other funding mechanism, or otherwise).               (e)   Indemnitee-Related  Entities:   means  any  corporation,  limited  liability  company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than  the Bank or  any  other  corporation,  limited  liability  company,  partnership,  joint  venture,  trust,  employee benefit plan or other enterprise Indemnitee has agreed, on behalf of the Bank or at the  Bank’s request, to serve as a director, officer, employee or agent and which service is covered by  the  indemnity  described  in  this  Agreement)  from  whom  an  Indemnitee  may  be  entitled  to  indemnification or advancement of expenses with respect to which, in whole or in part, the Bank  may  also  have  an  indemnification  or  advancement  obligation  (other  than  as  a  result  of  obligations under an insurance policy).    SMRH:4817-2626-3994.1                -2-                                                                                                                         





 






               (f)   Jointly Indemnifiable Claim:  means any Claim for which the Indemnitee  shall  be  entitled  to  indemnification  from  both  an  Indemnitee-Related  Entity  and  the Bank  pursuant  to  applicable  law,  any  indemnification  agreement  or  the articles of  incorporation,  bylaws,  partnership  agreement,  operating  agreement,  certificate  of  formation,  certificate  of  limited  partnership  or  comparable  organizational  documents  of  the Bank and  an  Indemnitee- Related Entity.               (g)   Loss:   means  all  losses,  Claims,  damages,  fines,  or  penalties,  including,  without  limitation,  any  legal  or  other  expenses  (including,  without  limitation,  any  legal  fees,  judgments,  fines,  appeal  bonds  or  related  expenses)  incurred  in  connection  with  defending,  investigating or settling any Claim, fine, penalty or similar action.               (h)   Person:  means any individual, corporation, firm, partnership, joint venture,  limited liability company, estate, trust, business association, organization, governmental entity or  other entity.         2.    Basic Indemnification Arrangement; Advancement of Indemnifiable Expenses.               (a)   In the event that the Indemnitee was, is or becomes subject to, a party to or  witness or other participant in, or is threatened to be made subject to, a party to or witness or  other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the  Bank shall indemnify the Indemnitee, or cause such Indemnitee to be indemnified, to the fullest  extent  permitted  by  the  laws  of  the  State  of  California  in  effect  on  the  date  hereof  and  as  amended from time to time, and shall hold the Indemnitee harmless from and against all Losses  that arise by reason of (or arising in part out of) an Indemnifiable Event; provided, however, that  no change in  the laws  of the State of California shall have the effect  of reducing the benefits  available to the Indemnitee hereunder based on the laws of the State of California as in effect on  the date hereof or as such benefits may improve as a result of amendments after the date hereof.   The  rights  of  the  Indemnitee  provided  in  this  Section  2  shall  include,  without  limitation,  the  rights  set  forth  in  the other sections  of this  Agreement.  Payments  of  Indemnifiable Expenses  shall be made as soon  as practicable but in any event no later than twenty (20) calendar days  after written demand is presented to the Bank, against any and all Indemnifiable Expenses.               (b)   Upon request by the Indemnitee, the Bank shall advance, or cause to be  advanced,  any  and  all  Indemnifiable  Expenses  incurred  by  the  Indemnitee  (an  “Expense  Advance”) on the terms and subject to the conditions of this Agreement, as soon as practicable  but  in  any  event  no  later  than  twenty  (20)  calendar  days  after  written  demand,  together  with  supporting documentation, is presented to the Bank.  The Bank shall, in accordance with such  request  (but  without  duplication),  either  (i)  pay,  or  cause  to  be  paid,  such  Indemnifiable  Expenses  on  behalf  of  the  Indemnitee,  or  (ii) reimburse,  or  cause  the  reimbursement  of,  the  Indemnitee for such Indemnifiable Expenses.  The Indemnitee’s right to an Expense Advance is  absolute  and  shall  not  be  subject  to  any  condition  that  the  Board  of  Directors  shall  not  have  determined that the Indemnitee is not entitled to be indemnified under applicable law.  However,  the obligation of the Bank to make an Expense Advance pursuant to this Section 2(b) shall be  subject to the condition that, if, when and to the extent that a final judicial determination is made  (as to which all rights of appeal therefrom have been exhausted or lapsed) that the Indemnitee is  not  entitled  to  be  so indemnified  under  applicable  law,  the Bank shall  be  entitled  to  be    SMRH:4817-2626-3994.1                -3-                                                                                                                         





 






   reimbursed by the Indemnitee (who hereby agrees to reimburse the Bank) for all such amounts  theretofore paid (it being understood and agreed that the foregoing agreement by the Indemnitee  shall  be  deemed  to  satisfy  any  requirement  that  the  Indemnitee  provide  the Bank with  an  undertaking to repay any Expense Advance if it is ultimately determined that the Indemnitee is  not  entitled  to  indemnification  under  applicable  law).   The  Indemnitee’s  undertaking  to  repay  such Expense Advances shall be unsecured and interest-free.                 (c)   Notwithstanding  anything  in  this  Agreement  to  the  contrary,  the  Indemnitee shall not be entitled to indemnification or advancement of Indemnifiable Expenses  pursuant to this Agreement in connection with any Claim initiated by the Indemnitee unless (i)  the Bank has joined in or the Board of Directors of the Bank has authorized or consented to the  initiation  of  such  Claim  or  (ii)  the  Claim  is  one  to  enforce  the  Indemnitee’s  rights  under  this  Agreement  (including  an  action  pursued  by  the  Indemnitee  to  secure  a  determination  that  the  Indemnitee should be indemnified under applicable law).               (d)   The indemnification obligations  of the Bank under Section 2(a) shall be  subject to the condition that the Board of Directors shall not have determined (by majority vote  of  directors  who  are  not  parties  to  the  applicable  Claim)  that  the  indemnification  of  the  Indemnitee  is  not  proper  in  the  circumstances  because  the  Indemnitee  is  not  entitled  to  be  indemnified under applicable law.  If the Board of Directors determines that the Indemnitee is  not entitled to be indemnified in whole or in part under applicable law, the Indemnitee shall have  the  right  to  commence  litigation  in  any  court  in  the  State  of California  having  subject  matter  jurisdiction thereof and in which venue is proper, seeking an initial determination by the court or  challenging any such determination by the Board of Directors or any aspect thereof, including  the legal  or factual bases  therefor, and the Bank hereby  consents  to  service of process  and to  appear in any such proceeding.   If the Indemnitee commences legal proceedings in  a court of  competent jurisdiction to secure a determination that the Indemnitee should be indemnified under  applicable  law,  any  determination  made  by  the  Board  of  Directors  that  the  Indemnitee  is  not  entitled  to  be  indemnified  under  applicable  law  shall  not  be  binding,  the  Indemnitee  shall  continue to be entitled to receive Expense Advances, and the Indemnitee shall not be required to  reimburse the Bank for any Expense Advance, until a final judicial determination is made in the  Claim  (as  to  which  all  rights  of  appeal  therefrom  have  been  exhausted  or  lapsed)  that  the  Indemnitee is not entitled to be so indemnified under applicable law.  Any determination by the  Board of Directors otherwise shall be conclusive and binding on the Bank and the Indemnitee.               (e)   To  the  extent  that  the  Indemnitee  has  been  successful  on  the  merits  or  otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event  or  in  defense  of  any  issue  or  matter  therein,  including  dismissal  without  prejudice,  the  Indemnitee  shall  be  indemnified  against  all  Indemnifiable  Expenses  actually  and  reasonably  incurred  in  connection therewith,  notwithstanding  an  earlier  determination  by  the  Board  of  Directors that the Indemnitee is not entitled to indemnification under applicable law.               (f)   Notwithstanding  anything  to  the  contrary  herein,  the Bank shall  not  be  obligated  pursuant  to  the  terms  of  this  Agreement  to  indemnify  Indemnitee  for  any  acts  or  omissions or transactions from which a director, officer, employee or agent may not be relieved  of liability under applicable law.    SMRH:4817-2626-3994.1                -4-                                                                                                                         





 






               (g)   Notwithstanding  any  other  provisions  contained  herein,  this  Agreement  and the rights and obligations of the parties hereto are subject to the requirements, limitations  and  prohibitions  set  forth  in  state  and  federal  laws,  rules,  regulations,  and  orders  regarding  indemnification  and  prepayment  of  expenses,  legal  or  otherwise,  and  liabilities,  including,  without limitation, Section 317 of the California Corporations Code, Section 18(k) of the Federal  Deposit Insurance Act and Part 359 of the Federal Deposit Insurance Corporation’s Rules and  Regulations and any successor regulations thereto.         3.    Indemnification for Additional Expenses.  The Bank shall indemnify, or cause the  indemnification of, the Indemnitee against any and all Indemnifiable Expenses and, if requested  by the Indemnitee, shall advance such Indemnifiable Expenses to the Indemnitee subject to and  in  accordance  with  Section  2,  which  are  incurred  by  the  Indemnitee  in  connection  with  any  action brought by the Indemnitee, the Bank or any other Person with respect to the Indemnitee’s  right to: (i) indemnification or an Expense Advance by the Bank under this Agreement or any  provision of the Bank’s Articles of Incorporation and/or Bylaws and/or (ii) recovery under any  directors’ and officers’ liability insurance policies maintained by the Bank, regardless of whether  the Indemnitee ultimately is determined to be entitled to such indemnification, Expense Advance  or  insurance  recovery,  as  the  case  may  be;  provided  that  the  Indemnitee  shall  be  required  to  reimburse such Indemnifiable Expenses in the event that a final judicial determination is made in  the Claim (as to which all rights of appeal therefrom have been exhausted or lapsed) that such  action brought by the Indemnitee, or the defense by the Indemnitee of an action brought by the  Bank or any other Person, as applicable,  was frivolous or in bad faith.         4.    Partial Indemnity, Etc.  If the Indemnitee is entitled under any provision of this  Agreement to indemnification by the Bank for some or a portion of the Indemnifiable Expenses  in  respect  of  a  Claim  but  not,  however,  for  all  of  the  total  amount  thereof,  the Bank shall  nevertheless indemnify the Indemnitee for the portion thereof to which the Indemnitee is entitled.         5.    Burden of Proof.  In connection with any determination by the Board of Directors,  any court or otherwise as to whether the Indemnitee is entitled to be indemnified hereunder, the  Board  of  Directors  or  court  shall  presume  that  the  Indemnitee  has  satisfied  the  applicable  standard of conduct and is entitled to indemnification, and the burden of proof shall be on the  Bank or its representative to establish, by clear and convincing evidence, that the Indemnitee is  not so entitled.         6.    Reliance as Safe Harbor.  The Indemnitee shall be entitled to indemnification for  any action or omission to act undertaken (a) in good faith reliance upon the records of the Bank,  including its financial statements, or upon information, opinions, reports or statements furnished  to the Indemnitee by the officers or employees of the Bank or any of its subsidiaries in the course  of their duties, or by committees of the Board of Directors, or by any other Person as to matters  the  Indemnitee  reasonably  believes  are  within  such  other  Person’s  professional  or  expert  competence, or (b) on behalf of the Bank in furtherance of the interests of the Bank in good faith  in reliance upon, and in accordance with, the advice of legal counsel or accountants, provided  such legal counsel or accountants were selected with reasonable care by or on behalf of the Bank.   In addition, the knowledge and/or actions, or failures to act, of any other director, officer, agent  or employee of the Bank shall not be imputed to the Indemnitee for purposes of determining the  right to indemnity hereunder.   SMRH:4817-2626-3994.1                -5-                                                                                                                         





 






         7.    No Other Presumptions.  For purposes of this Agreement, the termination of any  Claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court  approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not create a  presumption  that  the  Indemnitee  did  not  meet  any  particular  standard  of  conduct  or  have  any  particular belief or that a court has determined that indemnification is not permitted by applicable  law.  In addition, neither the failure of the Board of Directors to have made a determination as to  whether the Indemnitee has met any particular standard of conduct or had any particular belief,  nor  an  actual  determination  by  the  Board  of  Directors  that  the  Indemnitee  has  not  met  such  standard of conduct or did not have such belief, prior to the commencement of legal proceedings  by the Indemnitee to secure a judicial determination that the Indemnitee should be indemnified  under applicable law shall be a defense to the Indemnitee’s claim or create a presumption that the  Indemnitee has not met any particular standard of conduct or did not have any particular belief.         8.    Nonexclusivity, Etc.  The rights of the Indemnitee hereunder shall be in addition  to  any  other  rights  the  Indemnitee  may  have  under  the Bank’s  Articles  of  Incorporation  and  Bylaws, the laws of the State of California, or otherwise.  To the extent that a change in the laws  of the State of California or the interpretation thereof (whether by statute or judicial decision)  permits greater indemnification by agreement than would be afforded currently under the Bank’s  Articles of  Incorporation and Bylaws, it is  the intent  of the parties  hereto that the  Indemnitee  shall enjoy by this Agreement the greater benefits so afforded by such change.  To the extent that  there is a conflict or inconsistency between the terms of this Agreement and the Bank’s Articles  of Incorporation or Bylaws, it is the intent of the parties hereto that the Indemnitee shall enjoy  the  greater  benefits  regardless  of  whether  contained  herein,  in  the Bank’s  Articles  of  Incorporation or Bylaws.  No amendment or alteration of the Bank’s Articles of Incorporation or  Bylaws or any other agreement shall adversely affect  the rights  provided to  Indemnitee under  this Agreement.         9.    Liability Insurance.  The Bank shall use its reasonable best efforts to purchase and  maintain a policy or policies of insurance with reputable insurance companies with A.M. Best  ratings of “A” or better, providing Indemnitee with coverage for any liability asserted against, or  incurred by, Indemnitee or on Indemnitee’s behalf by reason of the fact that Indemnitee is or was  or has agreed to serve as a director, officer, employee or agent of the Bank, or is or was serving  or has agreed to serve on behalf of or at the request of the Bank as a director, officer, employee  or  agent  (which,  for  purposes  hereof,  shall  include  a  trustee,  fiduciary,  partner  or  manager  or  similar  capacity)  of  another  corporation,  limited  liability  company,  partnership,  joint  venture,  trust,  employee  benefit  plan  or  other  enterprise,  or  arising  out  of  Indemnitee’s  status  as  such,  whether or not the Bank would have the power to indemnify Indemnitee against such liability  under the provisions of this Agreement.  Such insurance policies shall have coverage terms and  policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other  director or officer of the Bank.  If the Bank has such insurance in effect at the time the Bank  receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the  Bank shall give prompt notice of the commencement of such action, suit or proceeding to the  insurers in accordance with the procedures set forth in the policy.  The Bank 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 policy.    SMRH:4817-2626-3994.1                -6-                                                                                                                         





 






         10.   Amendments,  Etc.  No  supplement,  modification  or  amendment  of  this  Agreement shall be binding unless executed in writing by both of the parties hereto.  No waiver  of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any  other  provisions  hereof  (whether  or  not  similar)  nor  shall  such  waiver  constitute  a  continuing  waiver.           11.   Subrogation.  Subject to Section 12, in the event of payment by the Bank under  this Agreement, the Bank shall be subrogated to the extent of such payment to all of the rights of  recovery of the Indemnitee with respect to any insurance policy.  Indemnitee shall execute all  papers reasonably required and shall do everything that may be reasonably necessary to secure  such rights, including the execution of such documents necessary to enable the Bank effectively  to bring suit to enforce such rights.  The Bank shall pay or reimburse all expenses actually and  reasonably incurred by Indemnitee in connection with such subrogation.         12.   Jointly  Indemnifiable  Claims.   Given  that  certain  Jointly  Indemnifiable  Claims  may arise due to the relationship between the Indemnitee-Related Entities and the Bank and the  service  of  the  Indemnitee as  a  director  and/or  officer  of  the Bank at  the  request  of  the  Indemnitee-Related Entities, the Bank acknowledges and agrees that the Bank shall be fully and  primarily  responsible  for  the  payment  to  the  Indemnitee  in  respect  of  indemnification  and  advancement  of  Indemnifiable  Expenses  in  connection  with  any  such  Jointly  Indemnifiable  Claim, pursuant to and in accordance with the terms of this Agreement, irrespective of any right  of  recovery  the  Indemnitee  may  have  from  the  Indemnitee-Related  Entities.   Under  no  circumstance  shall  the Bank be  entitled  to  any  right  of  subrogation  or  contribution  by  the  Indemnitee-Related  Entities  and  no  right  of  recovery  the  Indemnitee  may  have  from  the  Indemnitee-Related Entities shall reduce or otherwise alter the rights  of the  Indemnitee or the  obligations of the Bank hereunder.  In the event that any of the Indemnitee-Related Entities shall  make any payment to the Indemnitee in respect of indemnification or advancement of expenses  with  respect  to  any  Jointly  Indemnifiable Claim,  the  Indemnitee-Related  Entity  making  such  payment shall be subrogated to the extent of such payment to all of the rights of recovery of the  Indemnitee against the Bank under the terms of this Agreement, and the Indemnitee shall execute  all papers reasonably required and shall do all things that may be reasonably necessary to secure  such  rights,  including  the  execution  of  such  documents  as  may  be  necessary  to  enable  the  Indemnitee-Related  Entities  effectively  to  bring  suit  to  enforce  such  rights.   Each  of  the  Indemnitee-Related  Entities  shall  be  third-party  beneficiaries  with  respect  to  this  Section  12,  entitled  to  enforce  this  Section  12  against  the Bank as  though  each  such  Indemnitee-Related  Entity were a party to this Agreement.         13.   No Duplication of Payments.  Subject to Section 12 hereof, the Bank shall not be  liable under this Agreement to make any payment in connection with any Claim made against  the Indemnitee to the extent the Indemnitee has otherwise actually received payment (under any  insurance policy, any provision of the Bank’s Articles of Incorporation and Bylaws, or otherwise)  of the amounts otherwise indemnifiable hereunder.         14.   Defense of Claims.  The Bank shall be entitled to participate in the defense of any  Claim  relating  to  an  Indemnifiable Event  or  to  assume  the  defense  thereof,  with  counsel  reasonably satisfactory to the Indemnitee; provided that if the Indemnitee reasonably believes,  after consultation with counsel selected by the Indemnitee, that (i) the use of counsel chosen by   SMRH:4817-2626-3994.1                -7-                                                                                                                         





 






   the Bank to  represent  the  Indemnitee  would  present  such  counsel  with  an  actual  or  potential  conflict of interest, (ii) the named parties in any such Claim (including any impleaded parties)  include  both  (A)  the Bank or  any  subsidiary  of  the Bank and  (B)  the  Indemnitee,  and  the  Indemnitee  concludes  that  there  may  be  one  or  more  legal  defenses  available  to  him  that  are  different from or in addition to those available to the Bank or any subsidiary of the Bank or (iii)  any such representation by such counsel would be precluded under the applicable standards of  professional  conduct  then  prevailing,  then  the  Indemnitee  shall  be  entitled  to  retain  separate  counsel  (but  not  more  than  one  law  firm  plus,  if  applicable,  local  counsel  in  respect  of  any  particular Claim) at the Bank’s expense.  The Bank shall not be liable to the Indemnitee under  this  Agreement  for  any  amounts  paid  in  settlement  of  any  Claim  relating  to  an  Indemnifiable  Event effected without the Bank’s prior written consent.  The Bank shall not, without the prior  written  consent  of  the  Indemnitee,  effect  any  settlement  of  any  Claim  relating  to  an  Indemnifiable Event which the Indemnitee is or could have been a party unless such settlement  solely involves the payment of money and includes a complete and unconditional release of the  Indemnitee from all liability on all claims that are the subject matter of such Claim.  Neither the  Bank nor  the  Indemnitee  shall  unreasonably  withhold  its  or  his  consent  to  any  proposed  settlement; provided that the Indemnitee may withhold consent to any settlement that does not  provide a complete and unconditional release of the Indemnitee.  To the fullest extent permitted  by California law, the Bank’s assumption of the defense of a Claim pursuant to this Section 14  will constitute an irrevocable acknowledgement by the Bank that  any  Indemnifiable Expenses  incurred by or for the account of Indemnitee incurred in connection therewith are indemnifiable  by the Bank under Section 2 of this Agreement.         15.   Binding  Effect,  Etc.  This  Agreement  shall be  binding  upon  and  inure  to  the  benefit of and be enforceable by the parties hereto and their respective successors, (including any  direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially  all of the business and/or assets of the Bank), assigns, spouses, heirs, executors and personal and  legal  representatives.  The Bank shall require and cause any  successor(s) (whether directly or  indirectly,  whether  in  one  or  a  series  of  transactions,  and  whether  by  purchase,  merger,  consolidation,  or otherwise) to  all or a significant  portion  of the business  and/or assets  of the  Bank and/or  its  subsidiaries  (on  a  consolidated  basis),  by  written  agreement  in  form  and  substance reasonably satisfactory to the Indemnitee, expressly to assume and agree to perform  this Agreement in the same manner and to the same extent that the Bank would be required to  perform if no such succession had taken place; provided that no such assumption shall relieve the  Bank from  its  obligations  hereunder and  any  obligations  shall  thereafter  be  joint  and  several.   This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve  as a director or officer of the Bank and/or on behalf of or at the request of the Bank as a director,  officer, manager, member, partner, fiduciary, trustee or in a similar capacity of another Person.   Except as provided in this Section 15, neither party shall, without the prior written consent of the  other, assign or delegate this Agreement or any rights or obligations hereunder.         16.   Severability.  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 paragraph of this Agreement containing any such provision held to be invalid,  illegal or unenforceable, that are not 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   SMRH:4817-2626-3994.1                -8-                                                                                                                         





 






   Agreement  (including,  without  limitation,  all  portions  of  any  paragraph  of  this  Agreement  containing any such provision held to be invalid, illegal or unenforceable) shall be construed so  as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable  and to give effect to the terms of this Agreement.         17.   Specific  Performance,  Etc.  The  parties  recognize  that  if  any  provision  of  this  Agreement is violated by the parties hereto, the Indemnitee may be without an adequate remedy  at law.  Accordingly, in the event of any such violation, the Indemnitee shall be entitled, if the  Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, to  enforce specific performance, to enjoin such violation, or to obtain any relief or any combination  of the foregoing as the Indemnitee may elect to pursue.         18.   Notices.  All notices, requests, consents and other communications hereunder to  any party shall be deemed to be sufficient if contained in a written document delivered in person  or  sent  by  electronic  mail,  nationally  recognized  overnight  courier  or  personal  delivery,  addressed to such party at the address set forth below or such other address as may hereafter be  designated in writing by such party to the other parties:               (a)   If to the Bank, to:                       Pacific Mercantile Bancorp                    949 South Coast Drive, 3rd Floor                    Costa Mesa, California 92626                    Attn: Curt Christianssen                    E-mail:  Curt.Christianssen@pmbank.com               with a copy to (which copy alone shall not constitute notice):                     Sheppard, Mullin, Richter & Hampton LLP                    650 Town Center Drive, 10th Floor                    Costa Mesa, California 92626-1993                    Attn: Joshua A. Dean                    E-mail:  jdean@sheppardmullin.com               (b)   If to the Indemnitee, to the address set forth on the signature page hereto.   All  such  notices,  requests,  consents  and  other  communications  shall  be  deemed  to  have  been  given or made if and when received (including by overnight courier) by the parties at the above  addresses  or sent  by  electronic  transmission,  with  confirmation  received,  to  the  email  address  specified above (or at such other address or email address for a party as shall be specified by like  notice).   Any  notice  delivered  by  any  party  hereto  to  any  other  party  hereto  shall  also  be  delivered to each other party hereto simultaneously with delivery to the first party receiving such  notice.         19.   Counterparts.  This Agreement may be executed in counterparts, each of which  shall for all purposes be deemed to be an original but all of which together shall constitute one  and  the  same  agreement.   Only  one  such  counterpart  signed  by  the  party  against  whom  enforceability is sought needs to be produced to evidence the existence of this Agreement.   SMRH:4817-2626-3994.1                -9-                                                                                                                         





 






         20.   Headings.   The  headings  of  the  sections  and  paragraphs  of  this  Agreement  are  inserted for convenience only and shall not be deemed to constitute part of this Agreement or to  affect the construction or interpretation thereof.         21.   Governing  Law.   This  Agreement  shall  be  governed  by  and  construed and  enforced in accordance with the laws of the State of California applicable to contracts made and  to be performed in such state without giving effect to the principles of conflicts of laws.                             [SIGNATURE PAGE FOLLOWS]    SMRH:4817-2626-3994.1                -10-                                                                                                                        





 






         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of  the date first above written.                                        PACIFIC MERCANTILE BANK                                                                            By:                                                                     Name: Brad Dinsmore                                      Title: Chief Executive Officer                                                                                                                [•]                                       Name:                                                                    Address:                                                                                                                                                                                                                                                               E-mail:                                  SMRH:4817-2626-3994.1 [Signature Page to Indemnification Agreement]