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Exhibit 10.r
INDEMNIFICATION AGREEMENT
This Indemnification Agreement this____ day of ____, 2001, between UNB
Corp., an Ohio corporation (the "Company") and ___________ a director, officer,
employee, agent or representative (as hereinafter defined) of the Company (the
"Indemnitee").
RECITALS
A. The Company and the Indemnitee are each aware of the exposure to
litigation of officers, directors, employees, agents and representatives of the
Company as such persons exercise their duties to the Company;
B. The Company and the Indemnitee are also aware of conditions in the
insurance industry that have affected and may continue to affect the Company's
ability to obtain appropriate liability insurance on an economically acceptable
basis;
C. The Company desires to continue to benefit from the services of highly
qualified, experienced and otherwise competent persons such as the Indemnitee;
D. The Indemnitee desires to serve or to continue to serve the Company as
a director, officer, employee, or agent or as a director, officer, employee,
agent, or trustee of another corporation, joint venture, trust or other
enterprise in which the Company has a direct or indirect ownership interest, for
so long as the Company continues to provide, on an acceptable basis, adequate
and reliable indemnification against certain liabilities and expenses that may
be incurred by the Indemnitee.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. INDEMNIFICATION. Subject to the exclusions contained in Section 8 of
this Agreement, the Company shall indemnify the Indemnitee with respect to his
activities as a director, officer, employee or agent of the Company and/or as a
person who is serving or has served at the request of the Company
("representative") as a director, officer, employee, agent or trustee of another
corporation, joint venture, trust or other enterprise, domestic or foreign, in
which the Company has a direct or indirect ownership interest (an "affiliated
entity") against expenses (including, without limitation, attorneys' fees,
judgments, fines and amounts paid in settlement) actually and reasonably
incurred by him ("Expenses") in connection with any claim against Indemnitee
that is the subject of any threatened, pending or completed action, suit or
other type of proceeding, whether civil, criminal, administrative, investigative
or otherwise and whether formal or informal (a "Proceeding"), to which
Indemnitee was, is or is threatened to be made a party by reason of facts, which
include Indemnitee's being or having been such a director, officer, employee,
agent or representative, to the extent of the highest and most advantageous to
the Indemnitee, as determined by the Indemnitee, of one or any combination of
the following:
(a) The benefits provided by the Company's Amended Articles of
Incorporation ("Articles") or Code of Regulations, or the Articles
of Incorporation/Association or Code of Regulations/Bylaws of an
affiliated entity of which the Indemnitee serves as a
representative, in each case as in effect on the date hereof;
(b) The benefits provided by the Company's Amended Articles of
Incorporation, as amended ("Articles") or Code of Regulations, or
the Articles of Incorporation/Association or Code of
Regulations/Bylaws of an affiliated entity of which the Indemnitee
serves as a representative, in each case as in effect at the time
Expenses are incurred by the Indemnitee;
(c) The benefits allowable under Ohio law in effect at the date hereof;
(d) The benefits allowable under the law of the jurisdiction under which
the Company exists at the time Expenses are incurred by the
Indemnitee;
(e) The benefits available under any liability insurance obtained by the
Company in effect at the date hereof;
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(f) The benefits available under any liability insurance obtained by the
Company in effect at the time Expenses are incurred by the
Indemnitee; and
(g) Such other benefits as are or may be otherwise available to
Indemnitee.
Combination of two or more of the benefits provided by (a) through (g)
shall be available to the extent that the Applicable Document (as hereafter
defined) does not require that the benefits provided therein be exclusive of
other benefits. The document or law providing for the benefits listed in items
(a) through (g) above is called the "Applicable Document" in this Agreement.
Company hereby undertakes to use its best efforts to assist Indemnitee, in all
proper and legal ways, to obtain the benefits selected by Indemnitee under item
(a) through (g) above.
For purposes of this Agreement, references to "other enterprises" shall
include employee benefit plans for employees of the Company or of any affiliated
entity, without regard to ownership of such plans; references to "fines" shall
include any excise taxes assessed on the Indemnitee with respect to any employee
benefit plan; references to "serving at the request of the Company" shall
include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, the Indemnitee with respect to
an employee benefit plan, its participants or beneficiaries; references to the
masculine shall include the feminine; references to the singular shall include
the plural and vice versa; and if the Indemnitee acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan, he shall be deemed to have acted in a
manner consistent with the standards required for indemnification by the Company
under the Applicable Documents.
2. INSURANCE. The Company shall maintain liability insurance for so long
as Indemnitee's services are covered hereunder, provided and to the extent that
such insurance is available on a basis acceptable to the Company. However, the
Company agrees that the provisions hereof shall remain in effect regardless of
whether liability or other insurance coverage is at any time obtained or
retained by the Company, but payments made to Indemnitee under an insurance
policy obtained or retained by the Company shall reduce the obligation of the
Company to make payments hereunder by the amount of the payments made under any
such insurance policy.
3. PAYMENT OF EXPENSES. At Indemnitee's request, after receipt of written
notice under Section 5 hereof and an undertaking in the form of Exhibit A
attached hereto by or on behalf of Indemnitee to repay such amounts so paid on
Indemnitee's behalf if it shall ultimately be determined under the Applicable
Document that Indemnitee is not entitled to be indemnified by the Company for
such Expenses, the Company shall pay the Expenses as and when incurred by
Indemnitee. That portion of Expenses representing attorney's fees and other
costs incurred in defending any proceeding shall be paid by the Company within
30 days after the Company receives the request and reasonable documentation
evidencing the amount and nature of the Expenses, subject to its also having
received such a notice and undertaking.
4. ADDITIONAL RIGHTS. The Indemnification provided in this Agreement shall
not be exclusive of any other indemnification or right to which Indemnitee may
be entitled and shall continue after Indemnitee has ceased to occupy a position
as an officer, director, employee, agent or representative as described in
Section 1 above with respect to Proceedings relating to or arising out of
Indemnitee's acts or omissions during his service in such position. The benefits
provided to Indemnitee under this Agreement for the Indemnitee's service as a
representative shall be payable if and only if and only to the extent that
reimbursement to Indemnitee by the affiliated entity with which Indemnitee has
served as a representative, whether pursuant to agreement, applicable law,
articles of incorporation or association, bylaws or regulations of the entity,
or insurance maintained by such affiliated entity, is insufficient to compensate
Indemnitee for Expenses actually incurred and otherwise payable by the Company
under this Agreement. Any payments in fact made to or on behalf of the
Indemnitee directly or indirectly by the affiliated entity with which Indemnitee
served as a representative shall reduce the obligation of the Company hereunder.
5. NOTICE TO COMPANY. Indemnitee shall provide to the Company prompt
written notice of any Proceeding brought, threatened, asserted or commenced
against Indemnitee with respect to which Indemnitee may assert a right to
indemnification hereunder; provided however, that failure to provide such notice
shall not in any way limit Indemnitee's rights under this Agreement.
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6. COOPERATION IN DEFENSE AND SETTLEMENT. Indemnitee shall not make any
admission or effect any settlement without the Company's written consent unless
Indemnitee shall have determined to undertake his own defense in such matter and
has waived the benefits of this Agreement. The Company shall not settle any
Proceeding to which Indemnitee is a party in a manner that would impose any
Expense on Indemnitee without his written consent. Neither Indemnitee nor the
Company will unreasonably withhold consent to the proposed settlement.
Indemnitee and the Company shall cooperate to the extent reasonably possible
with each other and with the Company's insurers in attempts to defend and/or
settle such Proceeding.
7. ASSUMPTION OF DEFENSE. Except as otherwise provided below, the Company
jointly with any other indemnifying party similarly notified, may assume
Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to
Indemnitee and the Company. After notice from the Company to Indemnitee of the
Company's election to assume such defense, the Company will not be liable to
Indemnitee under this Agreement for Expenses subsequently incurred by Indemnitee
in connection with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the right to
employ 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 Indemnitee's expense unless:
(a) The employment of counsel by Indemnitee has been authorized by the
Company:
(b) Counsel employed by the Company initially is unacceptable or later
becomes unacceptable to Indemnitee and such unacceptability is
reasonable under then existing circumstances;
(c) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between Indemnitee and the Company (or another
party being represented jointly with the Company) in the conduct of
the defense of such Proceeding; or
(d) The Company shall not have employed counsel promptly to assume the
defense of such Proceeding,
in each of which cases the fees and expenses of counsel shall be at the expense
of the Company and subject to payment pursuant to this Agreement. The Company
shall not be entitled to assume the defense of Indemnitee in any Proceeding
brought by or on behalf of the Company or as to which Indemnitee shall have made
either of the conclusions provided for in clauses (b) or (c) above.
8. ENFORCEMENT. If a dispute or controversy arises under this Agreement
between Indemnitee and the Company with respect to whether the Indemnitee is
entitled to indemnification for any Proceeding or for Expenses incurred, then
for each such dispute or controversy, the Indemnitee may seek to enforce the
Agreement through legal action or, at Indemnitee's sole option and written
request, through arbitration. If the Indemnitee requests arbitration, the
dispute or controversy shall be submitted by the parties to binding arbitration
in the City of Canton, State of Ohio, before a single arbitrator agreeable to
both parties; provided, however, that indemnification for any claim, issue or
matter in a proceeding brought against Indemnitee by or in the right of the
Company and as to which Indemnitee is adjudged liable for negligence or
misconduct in the performance of his duty to the Company shall be submitted to
arbitration only to the extent permitted under the Applicable Document and
applicable law then in effect. If the parties cannot agree on a designated
arbitrator within 15 days after arbitration is requested in writing by the
Indemnitee, the arbitration shall proceed in the City of Canton, State of Ohio,
before an arbitrator appointed by the American Arbitration Association. In
either case, the arbitration proceeding shall commence promptly under the rules
then in effect of that Association. The arbitrator agreed to by the parties or
appointed by that Association shall be an attorney other than the attorney who
has or is associated with a firm having associated with it an attorney who has
been retained by or performed services for the Company or Indemnitee at any time
during the five years preceding commencement of arbitration. The award shall be
rendered in such form that judgment may be entered thereon in any court having
jurisdiction thereof. The prevailing party shall be entitled to prompt
reimbursement of any costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred in connection with such legal action or
arbitration; provided, however, that the Indemnitee shall not be required to
reimburse the Company unless the arbitrator or court resolving the dispute
determines that Indemnitee acted in bad faith in bringing the action or
arbitration.
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9. EXCLUSIONS. Notwithstanding the scope of indemnification available to
Indemnitees from time to time under any Applicable Document, no indemnification,
reimbursement or payment shall be required of the Company hereunder with respect
to:
(a) Any claim or any part thereof as to which Indemnitee shall have been
determined by a court of competent jurisdiction, from which no
appeal is or can be taken, by clear and convincing evidence, to have
acted or failed to act with deliberate intent to cause injury to the
Company or with reckless disregard for the best interests of the
Company;
(b) Any claim or any part thereof arising under Section 16(b) of the
Securities Exchange Act of 1934 pursuant to which Indemnitee shall
be obligated to pay any penalty, fine, settlement or judgment;
(c) Any obligation of Indemnitee based upon or attributable to the
Indemnitee gaining in fact any personal gain, profit or advantage to
which he was not entitled; or
(d) Any proceeding initiated by Indemnitee without the consent or
authorization of the Board of Directors of the Company, provided
that this exclusion shall not apply with respect to any claims
brought by Indemnitee (1) to enforce his rights under this Agreement
or (2) in any Proceeding initiated by another person or entity
whether or not such claims were brought by Indemnitee against a
person or entity who was otherwise a party to such proceeding.
Nothing in this Section 9 shall eliminate or diminish Company's
obligations to advance that portion of Indemnitee's Expenses representing
attorney's fees and other costs incurred in defending any proceeding pursuant to
Section 3 of this Agreement.
Furthermore, anything herein to the contrary notwithstanding, nothing in
this Agreement requires indemnification, reimbursement or payment by the
Company, and the Indemnitee shall not be entitled to demand indemnification,
reimbursement or payment under this Agreement, if and to the extent
indemnification, reimbursement or payment constitutes a "prohibited
indemnification payment" within the meaning of Federal Deposit Insurance
Corporation Rule 359.1(1)(1) [12CFR359.1(1)(1)].
10. EXTRAORDINARY TRANSACTIONS. The Company covenants and agrees that in
the event of any merger, consolidation or reorganization in which the Company is
not the surviving entity, any sale of all or substantially all of the assets of
the Company or any liquidation of the Company (each such event is hereinafter
referred to as an "extraordinary transaction"), the Company shall:
(a) Have the obligations of the Company under this Agreement expressly
assumed by the survivor, purchaser or successor, as the case may be,
in such extraordinary transaction; or
(b) Otherwise adequately provide for the satisfaction of the Company's
obligations under this Agreement, in a manner acceptable to
Indemnitee.
11. NO PERSONAL LIABILITY. Indemnitee agrees that neither the directors
nor any officer, employee, representative or agent of the Company shall be
personally liable for the satisfaction of the Company's obligations under this
Agreement, and Indemnitee shall look solely to the assets of the Company for
satisfaction of any claims hereunder.
12. SEVERABILITY. If any provision, phrase or other portion of this
Agreement is determined by any court of competent jurisdiction to be invalid,
illegal or unenforceable, in whole or in part, and such determination becomes
final, such provision, phrase or other portion shall be deemed to be severed or
limited, but only to the extent required to render the remaining provisions and
portions of the Agreement enforceable, and the Agreement as thus amended shall
be enforced to give effect to the intention of the parties insofar as that is
possible.
13. SUBROGATION. If any payments are made under this Agreement, the
Company shall be subrogated to the extent thereof to all rights to
indemnification or reimbursement against any insurer or other entity or person
vested in
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the Indemnitee, who shall execute all instruments and take all other actions as
shall be reasonably necessary for the Company to enforce such rights.
14. GOVERNING LAW. The parties hereto agree that this Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of Ohio.
15. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be considered to have been duly given if
delivered by hand and receipted for by the party to whom the notice, request,
demand or other communication shall have been directed, or mailed by certified
mail, return receipt requested, with postage prepaid;
If to the Company, to: UNB Corp.
Xxxxx X. Xxxxxxxx
Executive Vice President & Treasurer
X.X. Xxx 00000
Xxxxxx, Xxxx 00000
If to Indemnitee, to:
or to such other or further address as shall be designated from time to
time by the Indemnitee or the Company to the other.
16.TERMINATION. This Agreement may be terminated by either party upon not
less than 60 days prior written notice delivered to the other party, but such
termination shall not diminish the obligations of Company hereunder with respect
to Indemnitee's activities before the effective date of determination.
17.AMENDMENTS AND BINDING EFFECT. This Agreement and the rights and duties
of Indemnitee and the Company hereunder may not be amended, modified or
terminated except by written instrument signed and delivered by the parties
hereto. This Agreement is binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
UNB CORP.
By:
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Its: Chairman, President and CEO
Indemnitee
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Title: Director
