EXHIBIT 10.6
FIRST FEDERAL SAVINGS BANK OF IRONTON
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of this 12th
day of September, 2002, by and between First Federal Savings Bank of Ironton
(the "Bank"), and Xxxxxx X. Xxxxxxxx ("Indemnitee").
WHEREAS, the Bank and Indemnitee recognize the increasing difficulty in
obtaining directors' and officers' liability insurance, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance;
WHEREAS, the Bank and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting officers and directors
to expensive litigation risks at the same time as the availability and coverage
of liability insurance has been severely limited;
WHEREAS, Indemnitee does not regard the current protection available as
adequate under the present circumstances, and Indemnitee and other officers and
directors of the Bank may not be willing to continue to serve as officers and
directors without additional protection; and
WHEREAS, the Bank desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as officers and directors of
the Bank and to indemnify its officers and directors so as to provide them with
the maximum protection permitted by law.
NOW, THEREFORE, the Bank and Indemnitee hereby agree as follows:
1. Indemnification.
(a) GENERAL. The Bank shall indemnify Indemnitee if Indemnitee
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, administrative
or investigative by reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the Bank, or any subsidiary of the Bank, by reason
of any action or inaction on the part of Indemnitee while an officer or director
or by reason of the fact that Indemnitee is or was serving at the request of the
Bank as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, with respect to any
amount for which Indemnitee becomes liable under a judgment in connection with
such action, suit or proceeding, and reasonable expenses, including reasonable
attorneys' fees, actually paid or incurred by Indemnitee in defending or
settling such action, suit or proceeding, or in enforcing Indemnitee's rights to
indemnification if Indemnitee obtains a favorable judgment in such action, suit
or proceeding, provided that indemnification shall be made to Indemnitee only if
Indemnitee obtains a final judgment on the merits in his or her favor or, in
case of settlement, final judgment against Indemnitee, or final judgment in
Indemnitee's favor, other than on the merits, if such indemnification is
approved by a majority of disinterested
directors of the Bank who conclude that Indemnitee acted in good faith within
the scope of his or her employment or authority as Indemnitee could reasonably
have perceived and for a purpose that Indemnitee could reasonably have believed,
under the circumstances, to be in the best interests of the Bank.
(b) No indemnification shall be provided by the Bank pursuant
to Subsection 1(a) unless the Bank gives the Office of Thrift Supervision, or
any successor thereto (the "OTS"), at least 60 days notice of its intention to
make such indemnification, and the OTS does not advise the Bank in writing
within such 60 day period, of its objection to such indemnification.
2. Expenses; Indemnification Procedure.
(a) ADVANCEMENT OF EXPENSES. If a majority of the directors of
the Bank concludes that, in connection with an action, suit or proceeding
referenced in Subsection 1(a), Indemnitee ultimately may become entitled to
indemnification pursuant to Section 1, the directors may authorize the payment
of reasonable costs and expenses, including reasonable attorneys' fees, arising
from the defense or settlement of such action, suit or proceeding. Indemnitee
hereby undertakes to repay such amounts advanced only if, and to the extent
that, it shall ultimately be determined that the Indemnitee is not entitled to
be indemnified by the Bank as authorized hereby. The advances to be made
hereunder shall be paid by the Bank to Indemnitee within ten (10) days following
authorization thereof by the directors of the Bank, at a special or regular
meeting of the directors of the Bank, which meeting shall be held as promptly as
possible, pursuant to the Bank' Bylaws, after delivery of a written request for
the advancement of expenses by Indemnitee to the Bank.
(b) NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall, as a
condition precedent to his right to be indemnified under this Agreement, give
the Bank notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Bank shall be directed to the Secretary of the Bank at
the address shown on the signature page of this Agreement (or such other address
as the Bank shall designate in writing to Indemnitee). Notice shall be deemed
received five (5) days after the date postmarked, if sent by domestic certified
or registered mail, properly addressed; otherwise when such notice shall
actually be received by the Bank. In addition, Indemnitee shall (i) give the
Bank such information and cooperation as it may reasonably require and as shall
be within Indemnitee's power and (ii) upon request of the Bank testify at, or be
deposed in connection with, any proceeding to adjudicate or consider a claim
against Indemnitee for which indemnification will or could be sought under this
Agreement.
(c) PROCEDURE. Any indemnification and advancement of expenses
provided for in Section 1 and this Section 2 shall be made as promptly after the
expiration of OTS' sixty (60) day notice period as possible. Upon receipt of the
written request of Indemnitee, if the Bank can provide such indemnification and
advancement of expenses without approval of its directors, notice thereof shall
be sent to the OTS within five (5) days of receipt of the written request of
Indemnitee by the Bank, copying Indemnitee on such notice. In the event that
director approval is required, then the Bank shall notify its directors and hold
a special or regular meeting as promptly as possible pursuant to its Bylaws, and
upon action by its directors, if a majority of the
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directors approve such indemnification and advancement of expenses, notice
thereof shall be sent the same day to the OTS with a copy of such notice also
being sent to Indemnitee. If the OTS objects to such indemnification and/or
advancement of expenses written notice thereof shall be sent to the Indemnitee
promptly following the Bank's receipt of such notice from the OTS. If a claim
under this Agreement, under any statute, or under any provision of the Bank's
Charter or Bylaws providing for indemnification, is not paid in full by the Bank
within fifteen (15) days after the expiration of the OTS' sixty (60) day notice
period, if no objection to such indemnification was made by the OTS, Indemnitee
may, but need not, at any time thereafter bring an action against the Bank to
recover the unpaid amount of the claim and, if successful in whole or in part,
Indemnitee shall also be entitled to be paid for the expenses (including
attorneys' fees) of bringing such action. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
connection with any action, suit or proceeding in advance of its final
disposition) that Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Bank to indemnify Indemnitee for the
amount claimed, but the burden of proving such defense shall be on the Bank, and
Indemnitee shall be entitled to receive interim payments of expenses pursuant to
Subsection 2(a) unless and until such defense may be finally adjudicated by
court order or judgment from which no further right of appeal exists. It is the
parties' intention that, if the Bank contests Indemnitee's right to
indemnification, the question of Indemnitee's right to indemnification shall be
for the court to decide, and neither the failure of the Bank (including its
Board of Directors, independent legal counsel, or its shareholders) to have made
a determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the Bank (including
its Board of Directors, any committee or subgroup of the Board of Directors,
independent legal counsel, or its shareholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that Indemnitee has
or has not met the applicable standard of conduct.
(d) NOTICE TO INSURERS. If, at the time of the receipt of a
notice of a claim pursuant to Subsection 2(b) hereof, the Bank has director and
officer liability insurance in effect, the Bank shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Bank shall thereafter take
all necessary or desirable action to cause such insurers to pay, on behalf of
the Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(e) SELECTION OF COUNSEL. In the event a majority of the
directors of the Bank shall determine under Subsection 2(a) hereof to pay the
expenses of any proceeding against the Indemnitee, the Bank, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel
approved by the Indemnitee, which counsel may be counsel for the Bank, upon the
delivery to the Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by the Indemnitee and the
retention of such counsel by the Bank, the Bank will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
the Indemnitee with respect to the same proceeding, provided that (i) the
Indemnitee shall have the right to employ his counsel in any such proceeding, at
the Indemnitee's sole expense; and (ii) if (A) the employment of counsel by the
Indemnitee has been previously authorized by the Bank, (B) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the
Bank and the Indemnitee in the conduct of any such defense or (C) the Bank shall
not, in fact, have employed counsel to assume the defense of
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such proceeding, the fees and expenses of Indemnitee's counsel shall be at the
expense of the Bank.
3. Additional Indemnification Rights; Nonexclusivity.
(a) SCOPE. Notwithstanding any other provision of this
Agreement, the Bank hereby agrees to indemnify the Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the Bank's
Charter, the Bank's Bylaws or by statute. In the event of any change, after the
date of this Agreement, in any applicable law, statute, or rule which expands
the right of a federal savings institution to indemnify a member of its board of
directors or an officer, such changes shall be, ipso facto, within the purview
of Indemnitee's rights and Bank's obligations, under this Agreement. In the
event of any change in any applicable law, statute or rule which narrows the
right of a federal savings institution to indemnify a member of its board of
directors or an officer, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement shall have no effect
on this Agreement or the parties' rights and obligations hereunder.
(b) NONEXCLUSIVITY. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which an Indemnitee may
be entitled under the Bank's Charter, its Bylaws, any agreement, any vote of
stockholders or disinterested Directors, the Home Owners' Loan Act of 1933, as
amended, and the regulations promulgated thereunder, the Federal Deposit
Insurance Act, and the regulations promulgated thereunder, each as may be
amended from time to time, or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such office
(each an "Indemnified Capacity"). The indemnification provided under this
Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an Indemnified Capacity even though he may have ceased to serve
in an Indemnified Capacity at the time of any action, suit or other covered
proceeding.
4. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Bank for some or a portion
of the expenses, judgments, fines or penalties actually and reasonably incurred
by him in the investigation, defense, appeal or settlement of any action, suit
or proceeding, but not, however, for the total amount thereof, the Bank shall
nevertheless indemnify Indemnitee for the portion of such expenses, judgments,
fines or penalties to which Indemnitee is entitled.
5. MUTUAL ACKNOWLEDGMENT. Both the Bank and Indemnitee acknowledge that
in certain instances, Federal law or public policy may prohibit the Bank from
indemnifying its directors and officers under this Agreement or otherwise. For
example, the Company and Indemnitee acknowledge that the Bank, a federal savings
institution, is subject to the prohibitions and limitations on indemnification
set forth in the federal banking laws including, without limitation, Sections
8(k) and 18(k) of the Federal Deposit Insurance Act and the regulations
promulgated thereunder.
6. OFFICER AND DIRECTOR LIABILITY INSURANCE. The Bank shall, from time
to time, make the good faith determination whether or not it is practicable for
the Bank to obtain and maintain a
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policy or policies of insurance with reputable insurance companies providing the
officers and directors of the Bank with coverage for losses from wrongful acts,
or to ensure the Bank's performance of its indemnification obligations under
this Agreement. Among other considerations, the Bank will weigh the costs of
obtaining such insurance coverage against the protection afforded by such
coverage. Notwithstanding the foregoing, the Bank shall have no obligation to
obtain or maintain such insurance if the Bank determines in good faith that such
insurance is not reasonably available, the premium costs for such insurance are
disproportionate to the amount of coverage provided, the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary or parent company of the Bank
7. SEVERABILITY. Nothing in this Agreement is intended to require or
shall be construed as requiring the Bank to do or fail to do any act in
violation of applicable law. The Bank's inability, pursuant to court order, to
perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 6. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Bank shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
8. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Bank shall not be obligated pursuant to the terms of this
Agreement:
(a) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance
expenses to Indemnitee with respect to proceedings or claims initiated or
brought voluntarily by Indemnitee and not by way of defense, except with respect
to proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
applicable federal law, but such indemnification or advancement of expenses may
be provided by the Bank in specific cases if the Board of Directors finds it to
be appropriate; or
(b) LACK OF GOOD FAITH. To indemnify Indemnitee for any
expenses incurred by the Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Notwithstanding the foregoing, the Bank shall not be
obligated to indemnify Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes
or penalties, and amounts paid in settlement) which have been paid directly to
Indemnitee by an insurance carrier under a policy of officers' and directors'
liability insurance maintained by the Bank.
9. CONSTRUCTION OF CERTAIN PHRASES.
(a) For purposes of this Agreement, references to the "Bank"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a
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constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that if Indemnitee is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and references to "serving at the request of the Bank" shall
include any service as a director, officer, employee or agent of the Bank which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan Indemnitee shall be deemed to have acted in a manner
"not opposed to the best interests of the Bank" as referred to in this
Agreement.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Bank and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
12. ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, actually and reasonably incurred by Indemnitee with
respect to such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were not made in good faith or were frivolous. In the
event of an action instituted by or in the name of the Bank under this Agreement
or to enforce or interpret any of the terms of this Agreement, Indemnitee shall
be entitled to be paid all court costs and expenses, including attorneys' fees,
incurred by Indemnitee in defense of such action (including with respect to
Indemnitee's counterclaims and cross-claims made in such action), unless as a
part of such action the court determines that each of Indemnitee's material
defenses to such action were made in bad faith or were frivolous.
13. NOTICE. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee or (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written notice.
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14. CHOICE OF LAW. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the United States where
applicable and otherwise by the substantive laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FIRST FEDERAL SAVINGS BANK OF IRONTON
By: /s/ I. Xxxxxxx Xxxx
------------------------
Name:
Title: President/CEO
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxx 00000
AGREED TO AND ACCEPTED:
INDEMNITEE:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Address: 0000 X 0xx Xx.
Xxxxxxx, XX 00000
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