ex101indemnificationagre






                          INDEMNIFICATION AGREEMENT                                                  This Indemnification Agreement, dated as of [•], 2020, is made by and between Pacific  Mercantile Bancorp,  a  corporation  organized  under  the  laws  of  the  State  of California (the  “Company”), and [•] (the “Indemnitee”).         WHEREAS, it is essential to the Company 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 Company;         WHEREAS, the Company 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 Company’s Articles of  Incorporation (“Articles of Incorporation”) and the Company’s Bylaws (“Bylaws”) authorize the  Company to indemnify and advance expenses to its agents to the extent provided therein, and the  Indemnitee serves as an agent of the Company, in part, in reliance on such provisions;         WHEREAS,  the  Company  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  Company,  and  that the Company  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 Company in an  effective manner and the Indemnitee’s reliance on the Company’s Articles of Incorporation and  Bylaws,  and  in  part  to  provide  the  Indemnitee  with  specific  contractual  assurance  that  the  protection promised by the Company’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 Company’s Articles of Incorporation and Bylaws or any change in  the composition of the governing bodies of the Company or any acquisition transaction relating  to the Company), the Company 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 Company.         NOW, THEREFORE, in consideration of the premises and of the Indemnitee continuing  to serve the Company 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:    SMRH:4834-5182-6618.1                -1-                                                                                                                         





 






         1.    Certain Definitions.  In addition to terms defined elsewhere herein, the following  terms have the following meanings when used in this Agreement:               (a)   Agreement:   means  this  Indemnification  Agreement,  as  amended  from  time to time hereafter.               (b)   Board of Directors:  means the Board of Directors of the Company.               (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  Company,  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  Company, 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 Company, or is or was serving or has agreed to serve on behalf of or at  the request of the Company 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  Company  or  any  subsidiary  of  the  Company,  including,  without  limitation,  any  indebtedness  which the Company or any subsidiary of the Company has assumed or taken subject to, and (iii)  any  liabilities  which  an  Indemnitee  incurs  as  a  result  of  acting  on  behalf  of  the  Company  (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 Company or any other corporation, limited liability company, partnership, joint venture, trust,  employee benefit plan or other enterprise Indemnitee has agreed, on behalf of the Company or at  the Company’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,    SMRH:4834-5182-6618.1                -2-                                                                                                                         





 






   the Company may also have an indemnification or advancement obligation (other than as a result  of obligations under an insurance policy).               (f)   Jointly Indemnifiable Claim:  means any Claim for which the Indemnitee  shall be entitled to indemnification from  both  an  Indemnitee-Related Entity and the Company  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 Company 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  Company 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 Company, against any and all Indemnifiable Expenses.               (b)   Upon request by the Indemnitee, the Company 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 Company.  The Company 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 Company to make an Expense Advance pursuant to this Section 2(b) shall    SMRH:4834-5182-6618.1                -3-                                                                                                                         





 






   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  Company  shall  be  entitled to be reimbursed by the Indemnitee (who hereby agrees to reimburse the Company) 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  Company 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  Company  has  joined  in  or  the  Board  of  Directors  of  the  Company  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 Company 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 Company 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 Company 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  Company  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.    SMRH:4834-5182-6618.1                -4-                                                                                                                         





 






               (f)   Notwithstanding anything to the contrary herein, the Company 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.               (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  Company  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 Company or any other Person with respect to the  Indemnitee’s  right  to:  (i) indemnification  or  an  Expense  Advance  by  the  Company  under  this  Agreement or any provision of the Company’s Articles of Incorporation and/or Bylaws and/or  (ii) recovery  under  any  directors’  and  officers’  liability  insurance  policies  maintained  by  the  Company, 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  Company  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  Company  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  Company 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  Company 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  Company, including its financial statements, or upon information, opinions, reports or statements  furnished  to  the  Indemnitee  by  the  officers  or  employees  of  the  Company  or  any  of  its  subsidiaries in the course of their duties, or by committees of the Board of Directors, or by any    SMRH:4834-5182-6618.1                -5-                                                                                                                         





 






   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  Company  in  furtherance  of  the  interests of the Company 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 Company.  In addition, the knowledge and/or actions, or  failures  to  act,  of  any  other  director,  officer,  agent  or  employee  of  the  Company  shall  not  be  imputed to the Indemnitee for purposes of determining the right to indemnity hereunder.         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 Company’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  Company’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  Company’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  Company’s Articles of Incorporation or Bylaws.  No amendment or alteration of the Company’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  Company  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  Company, or is  or  was  serving  or  has  agreed  to  serve  on  behalf  of  or  at  the  request  of  the  Company 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  Company  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   SMRH:4834-5182-6618.1                -6-                                                                                                                         





 






   as  the  insurance  coverage  provided  to  any  other  director  or  officer  of  the  Company.   If  the  Company has such insurance in effect at the time the Company receives from Indemnitee any  notice of the commencement of an action, suit or proceeding, the Company 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  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 policy.         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  Company  under this Agreement, the Company 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  Company effectively to bring suit to enforce such rights.  The Company 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 Company and  the service of the Indemnitee as a director and/or officer of the Company at the request of the  Indemnitee-Related Entities, the Company acknowledges and agrees that the Company 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 Company 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 Company 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 Company 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 Company as though each such Indemnitee-Related  Entity were a party to this Agreement.         13.   No Duplication of Payments.  Subject  to Section 12 hereof, the Company shall  not be liable under this  Agreement to make any payment in connection with any Claim made   SMRH:4834-5182-6618.1                -7-                                                                                                                         





 






   against  the  Indemnitee  to  the  extent  the  Indemnitee  has  otherwise  actually  received  payment  (under  any  insurance  policy,  any  provision  of  the  Company’s Articles of  Incorporation  and  Bylaws, or otherwise) of the amounts otherwise indemnifiable hereunder.         14.   Defense of Claims.  The Company 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  the Company 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 Company or any subsidiary of the Company 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 Company or any subsidiary of the Company  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  Company’s  expense.   The  Company  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 Company’s prior written consent.  The Company 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 Company 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 Company’s assumption of the defense of a Claim  pursuant to this Section 14 will constitute an irrevocable acknowledgement by the Company that  any Indemnifiable Expenses incurred by or for the account of Indemnitee incurred in connection  therewith are indemnifiable by the Company 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 Company), assigns, spouses, heirs, executors and personal  and  legal  representatives.   The  Company  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  Company  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 Company would be required  to perform if no such succession had taken place; provided that no such assumption shall relieve  the  Company  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  Company  and/or  on  behalf  of  or  at  the  request  of  the  Company  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   SMRH:4834-5182-6618.1                -8-                                                                                                                         





 






   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  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 Company, 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   SMRH:4834-5182-6618.1                -9-                                                                                                                         





 






   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.         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:4834-5182-6618.1                -10-                                                                                                                        





 






         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of  the date first above written.                                        PACIFIC MERCANTILE BANCORP                                                                            By:                                                                     Name: Brad Dinsmore                                      Title: Chief Executive Officer                                                                                                                [•]                                       Name:                                                                    Address:                                                                                                                                                                                                                                                               E-mail:                                                                                                                                                    SMRH:4834-5182-6618.1 [Signature Page to Indemnification Agreement]