EXHIBIT 10.35
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT made this ____ day of __________,
______, between FirstMerit Corporation, an Ohio corporation (the "Company") and
_____________, a [director, officer, employee, agent or representative] (as
hereinafter defined) of the Company (the "Indemnitee").
R E C I T A L S:
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 which 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. 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
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with any claim against Indemnitee which 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 and Restated
Articles of Incorporation, as amended ("Articles") in effect on the
date hereof, a copy of the relevant portions of which are attached
hereto as Exhibit A;
(b) The benefits provided by the Articles, the Company's Code of
Regulations ("Regulations"), or their equivalent of the Company in
effect at the time Expenses are incurred by 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; and
(f) Such other benefits as are or may be otherwise available to
Indemnitee.
Combination of two or more of the benefits provided by (a) through (f)
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 (f) 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 (f) 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.
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2. INSURANCE. The Company may, but need not, 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; except that any payments in fact 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 pursuant to Section 5 hereof and an undertaking in the form of
Exhibit B 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 which represents attorneys fees
and other costs incurred in defending any proceeding shall be paid by the
Company within thirty (30) days of its receipt of such request, together with
reasonable documentation evidencing the amount and nature of such 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.
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 that failure to provide such notice shall
not, in any way, limit Indemnitee's rights under this Agreement.
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 any manner which would impose any
Expense on Indemnitee without his written consent. Neither Indemnitee nor the
Company will unreasonably withhold consent to any 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, to the
extent that it may wish, the Company jointly with any other indemnifying party
similarly notified will be entitled to 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
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election so 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 or interest between Indemnitee and 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. EXCLUSIONS. Notwithstanding the scope of indemnification which may
be 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: (i) 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 to enforce his rights under this Agreement or 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,or (ii) those actions, fines or penalties specifically excluded from
indemnification coverage under applicable Ohio law. Nothing in this Section 8
shall eliminate or diminish Company's obligations to advance that portion of
Indemnitee's Expenses which represent attorneys' fees and other costs incurred
in defending any proceeding pursuant to Section 3 of this Agreement.
9. 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
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(b) Otherwise adequately provide for the satisfaction of the
Company's obligations under this Agreement, in a manner acceptable to
Indemnitee.
10. 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.
11. SEVERABILITY. If any provision, phrase or other portion of this
Agreement should be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable, in whole or in part, and such determination
should become 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.
12. SUBROGATION. In the event of any payment 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 the Indemnitee, who shall execute all instruments and take all other
actions as shall be reasonably necessary for the Company to enforce such rights.
13. 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.
14. 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: FirstMerit Corporation
III Xxxxxxx Xxxxx
Xxxxx, Xxxx 00000
Attention: Secretary
If to Indemnitee, to: ___________________
FirstMerit Corporation
III Xxxxxxx Xxxxx
Xxxxx, Xxxx 00000
or to such other or further address as shall be designated from time to time by
the Indemnitee or the Company to the other.
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15. TERMINATION. This Agreement may be terminated by either party upon
not less than sixty (60) days' prior written notice delivered to the other
party, but such termination shall not in any way diminish the obligations of
Company hereunder with respect to Indemnitee's activities prior to the effective
date of termination.
16. AMENDMENTS. 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
and shall be binding upon and shall inure to the benefits of the parties thereto
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.
FIRSTMERIT CORPORATION
By:
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Its:
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INDEMNITEE
Title: _________________________
