EXHIBIT 10.18
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement, made on the 16th day of October,
2002, by and among First Federal Bancorp, Inc., a savings and loan holding
company incorporated under Ohio law (hereinafter referred to as "Bancorp"),
and Xxxxxx X. Xxxxxxxx, XX, a director of Bancorp (hereinafter referred to
as the "Indemnified Party");
WITNESSETH:
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WHEREAS, the Ohio General Corporation Law (hereinafter referred to as
the "GCL") permits the indemnification of persons serving as directors,
officers, employees or agents of Bancorp and its subsidiaries;
WHEREAS, the GCL provides that the indemnification permitted by the
GCL is not exclusive of any other rights to which a person seeking
indemnification may be entitled by agreement, vote of shareholders or
disinterested directors or otherwise;
WHEREAS, Bancorp believes that the Indemnified Party has the
abilities and qualities which are needed for the effective management and
operation of Bancorp and desires to have the Indemnified Party make
business judgments which he determines are in the best interests of Bancorp
and its shareholders; and
WHEREAS, as an inducement to the Indemnified Party to continue to
serve as a Bancorp director, Bancorp desires to indemnify the Indemnified
Party upon the terms and subject to the conditions of this Indemnification
Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged,
the Indemnified Party and Bancorp hereby agree as follows:
Section 1. Mandatory Indemnification.
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Bancorp shall indemnify the Indemnified Party in the event that he is
or was a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal or
investigative (other than an action, suit or proceeding by or in the right
of Bancorp or an administrative proceeding or civil action initiated by any
federal banking agency), by reason of the fact that he is or was a
director, officer, employee or agent of Bancorp or a subsidiary of Bancorp,
including, but not limited to, First Federal Savings Bank of Eastern Ohio
(hereinafter referred to as the "Bank"), or is or was serving at the
request of Bancorp as a director, officer, trustee, employee or agent of
another corporation (domestic or foreign, non-profit or for profit),
partnership, limited liability company, joint venture, trust or other
enterprise (or by reason of any of his acts or omissions in any one or more
of such capacities), against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees, transcript costs and
investigative costs), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by him in connection with such
action, suit or proceeding; provided, however that Bancorp shall not
indemnify the Indemnified Party in accordance with this Section 1 in the
event of a determination by the Court of Common Pleas of Muskingum County,
Ohio, or by the court in which any such action, suit or proceeding is
commenced or is pending, that (a) the act or omission giving rise to the
claim for indemnification was undertaken by the Indemnified Party with
deliberate intent to cause injury to Bancorp or its subsidiaries or with
reckless disregard of the best interests of Bancorp or its subsidiaries or
(b) in respect of any criminal action or proceeding, the Indemnified Party
had reasonable cause to believe his conduct was unlawful.
Section 2. Court-Approved Indemnification.
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Bancorp shall indemnify the Indemnified Party in the event that he is
or was a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, by or in the right of
Indemnified Party to procure a judgment in its favor, by reason of the fact
that he is or was a director, officer, employee or agent of Bancorp or a
subsidiary of Bancorp, including, but not limited to, the Bank, or is or
was serving at the request of Bancorp as a director, officer, trustee,
employee or agent of another corporation (domestic or foreign, non-profit
or for profit), partnership, limited liability company, joint venture,
trust or other enterprise (or by reason of any of his acts or omissions in
any one or more of such capacities), against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees, transcript
costs and investigative costs), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by the Indemnified Party in
connection with such action, suit or proceeding if the Court of Common
Pleas of Muskingum County, Ohio, or the court in which any such action,
suit or proceeding is commenced or is pending, determines that the act or
omission giving rise to the claim for indemnification was not undertaken by
the Indemnified Party with deliberate intent to cause injury to Bancorp or
its subsidiaries or with reckless disregard of the best interests of
Bancorp or its subsidiaries.
Section 3. Permissive Indemnification.
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Bancorp may indemnify the Indemnified Party in the event that he is
or was a party, or is threatened to be made a party, to any threatened,
pending or completed administrative proceeding or civil action initiated by
any federal banking agency, by reason of the fact that he is or was a
director, officer, employee or agent of Bancorp or a subsidiary of Bancorp,
including, but not limited to, the Bank, or is or was serving at the
request of Bancorp as a director, officer, trustee, employee or agent of
another corporation (domestic or foreign, non-profit or for profit),
partnership, limited liability company, joint venture, trust or other
enterprise (or by reason of any of his acts or omissions in any one or more
of such capacities), against expenses (including, without limitation,
attorney's fees, filing fees, court reporters' fees, transcript costs and
investigative costs), judgments, fines and amounts paid in settlement,
actually and reasonably incurred by the Indemnified Party in connection
with such action, suit or proceeding if the following conditions are
satisfied:
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(a) Bancorp's board of directors, in good faith, determines, in
writing, after due investigation and consideration, that the
Indemnified Party acted in good faith and in a manner he
believed to be in the best interests of Bancorp;
(b) Bancorp's board of directors, in good faith, determines, in
writing, after due investigation and consideration, that the
payment of such expenses will not materially adversely affect
Bancorp's safety and soundness;
(c) the indemnification payments do not constitute prohibited
indemnification payments under [SECTION] 359.1(l) of the
Federal Deposit Insurance Corporation Regulations; and
(d) the Indemnified Party agrees, in writing, to reimburse Bancorp,
to the extent not covered by payments from insurance or bonds
purchased pursuant to [SECTION] 359.1(l)(2) of the Federal
Deposit Insurance Corporation Regulations, for that portion of
the advanced indemnification payments which subsequently become
prohibited indemnification payments, as defined in [SECTION]
359.1(l) of the Federal Deposit Insurance Corporation
Regulations.
Section 4. Determination.
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In making a determination under Section 1, 2 or 3 of this
Indemnification Agreement, the court shall presume that (a) no act or
omission in respect of which the Indemnified Party seeks indemnification
was undertaken by him with deliberate intent to cause injury to Bancorp or
its subsidiaries or with reckless disregard for the best interests of
Bancorp or its subsidiaries and (b) in respect of any criminal matter, the
Indemnified Party had no reasonable cause to believe his conduct was
unlawful. Such presumptions shall apply in each and every case, including,
without limitation, matters involving, arising from or out of, or affecting
any of the following, and shall be rebutted only by clear and convincing
evidence:
(i) any change or potential change in control of Bancorp;
(ii) any termination or potential termination of the Indemnified
Party's service to Bancorp or to any subsidiary of Bancorp as
an officer or director (if he is then serving as such) or both;
and
(iii) any service by him in any other position or any other
relationship he may have with Bancorp.
The termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut the presumption established
pursuant to this Section 4.
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Section 5. Indemnification for Expenses.
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Notwithstanding anything contained in this Indemnification Agreement
or elsewhere to the contrary, to the extent that the Indemnified Party has
been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in Section 1, 2 or 3 of this Indemnification
Agreement, or in defense of any claim, issue or matter therein, he shall be
promptly indemnified by Bancorp against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees, transcript
costs and investigative costs) actually and reasonably incurred by him in
connection therewith.
Section 6. Advancements for Expenses.
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Bancorp shall pay any and all expenses, including, without
limitation, attorneys' fees, filing fees, court reporters' fees, transcript
costs and investigative costs, incurred in defending any action, suit or
proceeding referred to in Section 1, 2 or 3 of this Indemnification
Agreement in advance of the final disposition of such action, suit or
proceeding, to or on behalf of the Indemnified Party, promptly as such
expenses are incurred by the Indemnified Party; provided, however, that the
Indemnified Party shall repay to Bancorp all amounts so paid in respect of
any claim, issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been successful on the
merits or otherwise if a court ultimately determines in accordance with
Section 1, 2 or 3 of this Indemnification Agreement that the Indemnified
Party is not entitled to indemnification in accordance with the terms of
this Indemnification Agreement.
Section 7. Certain Definitions.
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For the purpose of this Indemnification Agreement, and as an example
and not by way of limitation:
(a) The Indemnified Party shall be deemed to have been "successful
on the merits or otherwise" in defense of any action, suit or proceeding
referred to in this Indemnification Agreement, or in defense of any claim,
issue or other matter therein, if such action, suit or proceeding shall be
terminated as to him, with or without prejudice, without the entry of a
judgment or order against him, without a conviction of him or without the
imposition of a fine upon him (whether or not any such termination is based
upon a judicial or other determination of the lack of merit of the claims
made against him or otherwise results in a vindication of him); and
(b) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of Bancorp" shall include any service
by the Indemnified Party as a director, officer, employee or agent of
Bancorp which imposes duties on, or involves services by, the Indemnified
Party with respect to an employee benefit plan, its participants or
beneficiaries.
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Section 8. Agreement Not Exclusive.
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The indemnification provided by this Indemnification Agreement shall
not be deemed exclusive of any other rights to which the Indemnified Party
may be entitled under the law, the Articles of Incorporation or the Code of
Regulations of Bancorp or under any other agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue after the Indemnified Party has ceased to be a director,
trustee, officer, employee or agent of Bancorp.
Section 9. Governing Law and Forum.
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This Indemnification Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio except with respect to
conflict of laws. Any action by the Indemnified Party or Bancorp to
determine a claim for indemnification under this Indemnification Agreement
shall be maintained as to Bancorp and the Indemnified Party in Muskingum
County, Ohio, or the court in which any action, suit or proceeding in
respect of which the Indemnified Party seeks indemnification is commenced
or is pending. Bancorp and the Indemnified Party consent to the exercise
of jurisdiction over its or his person by the Court of Common Pleas of
Muskingum County, Ohio.
Section 10. Notice.
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Any notice or other communication required or permitted pursuant to
this Indemnification Agreement shall be deemed delivered if such notice or
communication is in writing and is delivered personally or by facsimile
transmission or is deposited in the United States mail, postage prepaid,
addressed as follows:
If to Bancorp, to:
Mr. J. Xxxxxxx Xxxxxxx
President and Chief Executive Officer
First Federal Bancorp, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
With a copy to:
Xxxx X. Xxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
00 Xxxx Xxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxx 00000-0000
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If to the Indemnified Party, to:
Xx. Xxxxxx X. Xxxxxxxx, XX
0000 Xxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
or such other person or address from time to time by notice by the
other party.
Section 11. Counterparts.
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This Indemnification Agreement may be executed in one or more
counterparts, each of which shall be deemed to be a duplicate original, but
all of which, taken together, shall constitute a single instrument.
Section 12. Severability.
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If any provision of this Indemnification Agreement or the application
of any provision hereof to any person or circumstance shall be determined
to be invalid or unenforceable, then such determination shall not affect
any other provision of this Indemnification Agreement or the application of
such provision to any other person or circumstance, all of which provisions
shall remain in full force and effect. It is the intention of Bancorp and
of the Indemnified Party that if any provision of this Indemnification
Agreement is susceptible to two or more constructions, one of which would
render the provision enforceable and the other or others of which would
render the provision unenforceable, then the provision shall have the
meaning which renders it enforceable.
Section 13. Successors and Assigns.
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This Indemnification Agreement shall inure to the benefit of and be
binding upon the successors and assigns (including successive, as well as
immediate, successors and assigns) of the parties hereto; provided,
however, that the rights of the Indemnified Party under this
Indemnification Agreement may be assigned only to his personal
representative or by his will or pursuant to the applicable laws of descent
and distribution.
Section 14. Modification.
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This Indemnification Agreement may be modified or terminated only by
a writing signed by both parties hereto.
Section 15. Headings.
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The headings of various items of this Indemnification Agreement have
been inserted for convenience only, and the interpretation hereof shall be
based strictly upon the text without reference to such headings.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indemnification Agreement to be executed to be effective as of the date
first above written.
INDEMNIFIED PARTY FIRST FEDERAL BANCORP, INC.
/s/ Xxxxxx X. Xxxxxxxx, XX By /s/ J. Xxxxxxx Xxxxxxx
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its President/CEO
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