EXHIBIT 10.13
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement, made on the 4th day of January, 1995,
by and among First Federal Bancorp, Inc., a savings and loan holding
company incorporated under Ohio law (hereinafter referred to as "BANCORP"),
and J. Xxxxxxx Xxxxxxx, 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 under certain circumstances the indemnification of
persons serving as directors, officers, employees or agents of BANCORP;
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 she determines are in the best interests of
BANCORP and its shareholders;
WHEREAS, the INDEMNIFIED PARTY desires to make decisions which she
determines are in the best interests of BANCORP and its shareholders
without undue concern about personal liability for such decisions; and
WHEREAS, BANCORP desires to assure the INDEMNIFIED PARTY of
indemnification permitted by the GCL;
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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If the INDEMNIFIED PARTY acted in good faith and in a manner she
reasonably believed to be in or not opposed to the best interests of
BANCORP and if, with respect to any criminal action or proceeding, the
INDEMNIFIED PARTY had no reason to believe that her conduct was unlawful
(such action and belief hereinafter referred to as the "APPLICABLE STANDARD
OF CONDUCT"), BANCORP shall indemnify the INDEMNIFIED PARTY in the event
that she was or is 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 (including, without limitation,
any action threatened or instituted by or in the right of BANCORP), by
reason of the fact that she 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
"FIRST FEDERAL"), 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, joint
venture, trust or other enterprise (or by reason of any of her 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
her in connection with such action, suit or proceeding.
Section 2. Determination Requirement.
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(a) Any indemnification which is claimed under Section 1 of this
Indemnification Agreement shall be paid by BANCORP as the expenses,
judgments, fines or amounts paid in settlement which give rise to the
INDEMNIFIED PARTY's right of indemnification are incurred, regardless of
whether incurred in advance of the final disposition of the action, suit or
proceeding, but only upon a determination that such indemnification is
proper under the circumstances because the INDEMNIFIED PARTY has met the
APPLICABLE STANDARD OF CONDUCT. Such determination may be made only by one
or more of the following:
(i) A majority vote of a quorum consisting of directors of
BANCORP who were not or are not parties to, or threatened
with, such action, suit or proceeding;
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(ii) If such a quorum is not obtainable or if a majority of a
quorum of disinterested directors so directs, in a
written opinion by independent legal counsel other than
an attorney, or a firm having associated with it an
attorney, who has been retained by or performed services
for BANCORP, FIRST FEDERAL or the INDEMNIFIED PARTY
within the past five years;
(iii) The shareholders of BANCORP; or
(iv) The Court of Common Pleas of Muskingum County, or the
court in which such action, suit or proceeding was
brought.
Subject to meeting the requirements of subparagraph (i) of this Section
2(a), BANCORP shall have the right to elect any of the foregoing methods of
determination; provided, however, that in the absence of a determination
that the INDEMNIFIED PARTY met the APPLICABLE STANDARD OF CONDUCT pursuant
to the provisions of subparagraphs (i), (ii) or (iii) of this Section 2(a),
the INDEMNIFIED PARTY may at any time request a determination by a court in
accordance with subparagraph (iv) of this Section 2(a). In any such legal
proceeding, the failure to make a determination pursuant to the provisions
of subparagraphs (i), (ii) or (iii) of this Section 2(a) shall not be
evidence in rebuttal of the presumption set forth in Section 2(e) of this
Indemnification Agreement.
(b) Any determination made pursuant to the provisions of
subparagraphs (i), (ii) or (iii) of this Section 2(a) shall be made as
promptly as practicable, shall be communicated forthwith in writing to the
INDEMNIFIED PARTY and shall be final, conclusive and binding upon her
unless she shall commence a civil action in the Court of Common Pleas of
Muskingum County, Ohio, within sixty (60) days after she shall receive
notice of such determination, claiming such indemnification upon the
allegation that she met the APPLICABLE STANDARD OF CONDUCT. In the event
such civil action is commenced, BANCORP shall make such indemnification if
the Court of Common Pleas of Muskingum County, Ohio, determines in such
action that the INDEMNIFIED PARTY met the APPLICABLE STANDARD OF CONDUCT.
(c) Any determination made pursuant to the provisions of Section
2(a) or (b) to make indemnification in respect of any claim, issue or
matter asserted in an action or suit threatened or brought by or in the
right of BANCORP shall be promptly
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communicated to the person who threatened or brought such action or suit
and, within ten (10) days after receipt of such notification, such person
shall have the right to petition the Court of Common Pleas of Muskingum
County, Ohio, or the court in which such action or suit was brought, if
any, to review the reasonableness of such determination.
(d) Anything herein to the contrary notwithstanding, in any and all
cases, the final order of such court determining that the APPLICABLE
STANDARD OF CONDUCT has or has not been met shall be final, conclusive and
binding.
(e) The directors, counsel, the shareholders or the court, as the
case may be, shall determine that the INDEMNIFIED PARTY has met the
APPLICABLE STANDARD OF CONDUCT unless it shall be established by clear and
convincing evidence that she has not, as a result of which the INDEMNIFIED
PARTY shall have the benefit of a presumption that she has met such
standard. Such presumption shall apply in each and every case, including,
without limitation, matters involving or affecting any of the following:
(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 she
is then serving as such) or both; and
(iii) Any service by her in any other position or any other
relationship she 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 2(e).
Section 3. Indemnification for Expenses.
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(a) Anything contained in this Indemnification Agreement or
elsewhere to the contrary notwithstanding, 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 or 2 of this
Indemnification Agreement, or in defense of any claim, issue or matter
therein, she shall be
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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 her in
connection therewith.
(b) Anything contained in this Indemnification Agreement or
elsewhere to the contrary notwithstanding:
(i) If the INDEMNIFIED PARTY is adjudged to be liable for
gross negligence or misconduct (other than negligence) in
the performance of her duty to BANCORP, she shall be
indemnified in respect of any claim, issue or matter
asserted in any completed action or suit instituted by or
in the right of the Company to procure a judgment in its
favor by reason of the fact that she is or was a
director, officer, employee or agent of BANCORP, or is or
was serving at the request of BANCORP as director,
trustee, officer, employee or agent of another
corporation (domestic or foreign, non-profit or for
profit), partnership, joint venture, trust or other
enterprise, only to the extent that the Court of Common
Pleas of Muskingum County, Ohio, or the court in which
such action or suit was brought shall determine upon
application that, despite the adjudication of liability,
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to such
indemnity as such Court of Common Pleas or such other
court shall deem proper; and
(ii) BANCORP shall promptly make such unpaid indemnification
as is determined by a court to be proper as contemplated
by this Section 3.
Section 4. Advancements for Expenses.
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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 of this Indemnification Agreement shall be paid by BANCORP 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 her.
The INDEMNIFIED PARTY shall repay to BANCORP all amounts
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so paid in respect of any claim, issue or other matter asserted in such
action, suit or proceeding in defense of which she shall not have been
successful on the merits or otherwise:
(i) If she shall have failed to cooperate reasonably with
BANCORP concerning the action, suit or proceeding; or
(ii) If it is proved by clear and convincing evidence in a
court of competent jurisdiction that her action or
failure to act involved an act or omission undertaken
with deliberate intent to cause injury to BANCORP or
undertaken with reckless disregard for the best interests
of BANCORP.
Section 5. 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 Section 1 of 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 her, with or without prejudice,
without the entry of a judgment or order against her, without a conviction
of her, without the imposition of a fine upon her or without her payment or
agreement to pay any amount in settlement thereof (whether or not any such
termination is based upon a judicial or other determination of the lack of
merit of the claims made against her or otherwise results in a vindication
of her); 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; and if the INDEMNIFIED PARTY acts in good faith and in a
manner she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan, she shall be
deemed to have acted in a manner "not opposed to the best interests of
BANCORP and its shareholders"
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within the meaning of that term as used in this Indemnification Agreement.
Section 6. 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
Regulations of BANCORP or under any other agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in her official
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 7. 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. BANCORP and the INDEMNIFIED PARTY consent to the exercise of
jurisdiction over its or her person by the Court of Common Pleas of
Muskingum County, Ohio.
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Section 8. 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 9. 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
said provision to any other person or circumstance, all of which provisions
shall remain in full force and effect, and 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 10. Gender.
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When used in this Indemnification Agreement, the number and gender of
each pronoun shall be construed to be such number and gender as the
context, circumstances or its antecedent may require.
Section 11. 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 her personal
representative or by her will or pursuant to the applicable laws of descent
and distribution.
Section 12. Modification.
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This Indemnification Agreement may be modified or terminated only by
a writing signed by both parties hereto.
Section 13. 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.
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/ J. Xxxxxxx Xxxxxxx By /s/ Xxxx X. Xxxxxxxx, III
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its Chairman
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