Exhibit 10.8(b)
Indemnity Agreement among Flushing Savings Bank, FSB, Flushing Financial
Corporation, and Certain Officers.
INDEMNITY AGREEMENT
AGREEMENT, dated as of August 20,1996, by and among Flushing Savings Bank, FSB
(the "Bank"), Flushing Financial Corporation ("FFC") and the undersigned
Officer of the Bank and FFC (the "Officer").
The Officer is rendering valuable services to the Bank and desires to continue
to provide such services provided he receives assurance that the Bank and FFC
will indemnify him to the full extent permitted by law against claims arising
out of such services.
The Bank and FFC desire to retain the services of the Officer and are willing
to provide such assurances.
NOW THEREFORE, the Bank and FFC hereby agree with the Officer as follows:
GENERAL RIGHT TO INDEMNIFICATION.
Notwithstanding any other provision of this Agreement, the Bank and FCC,
jointly and severally, shall indemnify the Officer, his heirs, executors and
personal or legal representatives (collectively, an "Indemnified Party") to
the full extent permitted by applicable law as now or hereafter in effect,
against judgments, fines, amounts paid in settlement, and Expenses (as
hereinafter defined) actually incurred in connection with any pending,
threatened or completed claim, action or proceeding, or in connection with an
appeal therein, whether civil, criminal or administrative, including any
action by or in the right of the Bank to procure a judgment in its favor (a
"Claim") arising out of, based upon, or related to the fact that the Officer
is or was an Officer of the Bank or FFC, or serves or served any other
corporation, partnership, association, trust, conference, group, employee
benefit plan or other enterprise, of any type of kind, domestic or foreign, in
any capacity at the request of the Bank (an "Indemnifiable Event").
As used in this Agreement, the term "Expenses" includes attorneys' fees and
all other costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in (including on
appeal), or preparing to defend, be a witness in or participate in any Claim
relating to an Indemnifiable Event.
Without limiting the generality of the foregoing, the Bank shall indemnify the
Indemnified Party in accordance with the provisions set forth below, provided
that no indemnification may be made to or on the behalf of the Officer if a
judgment or other final adjudication adverse to the Officer establishes that
his acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he personally gained in fact a financial profit or other advantage to
which he was not legally entitled.
Notwithstanding anything to the contrary contained in this Agreement neither
the Bank, nor FFC shall indemnify the Officer in connection with any
proceeding initiated by the Officer against any other person or entity other
than FFC or any subsidiary of FFC unless such proceeding was authorized by the
Board of Directors of the Bank and FFC (collectively, the "Boards").
ACTIONS INVOLVING EMPLOYEE BENEFIT PLANS.
For the purpose of this Agreement, the Bank and FFC shall be deemed to have
requested the Officer to serve an employee benefit plan where the Officer is a
fiduciary with respect to such plan or where the performance by the Officer of
his duties to the Bank or FFC also imposes duties on, or otherwise involves
services by, the Officer to the plan or participants or beneficiaries of the
plan. Excise taxes assessed on the Officer with respect to an employee
benefit plan pursuant to applicable law shall be considered fines. Action
taken or omitted by the Officer with respect to an employee benefit plan in
the performance of his duties for a purpose reasonably believed by him to be
in the interest of the participants and beneficiaries of the plan shall be
deemed to be for a purpose which is not opposed to the best interests of the
Bank or FFC.
NO PRESUMPTIONS.
The termination of any Claim by judgment, settlement, conviction or upon a
plea of nolo contendere, or its equivalent, shall not in itself for any
purpose create a presumption that the Officer did not act in good faith, for a
purpose which he reasonably believed to be in, or, in the case of service to
any other corporation, not opposed to, the best interests of the Bank or that
he had reasonable cause to believe that his conduct was unlawful.
ADVANCEMENT OF EXPENSES.
Expenses incurred by or on behalf of the Officer in connection with any Claim
shall be paid by the Bank or FFC in advance of the final disposition of such
action not later than 45 days after receipt by the Bank and FFC of a written
undertaking by or on behalf of the Indemnified Party agreeing to repay such
amount as and to the extent required by this Section 4. All expenses incurred
in defending a Claim which are advanced by the Bank or FFC under this Section
4 shall be repaid in case the Indemnified Party receiving such advancement or
allowance is ultimately found, under the procedure set forth in this
Agreement, not to be entitled to indemnification or, where indemnification is
granted, to the extent the expenses so advanced by the Bank or FFC exceed the
indemnification to which the Indemnified Party is entitled.
NOTICE TO COMPANY.
Promptly after receipt by an Indemnified Party of notice of any claim for
which indemnification will or could reasonably be sought hereunder, the
Indemnified Party shall, if a claim in respect thereof is to be made against
the Bank or FFC under this Agreement, notify the Bank and FFC in writing of
the existence of such claim, but the failure to promptly notify the Bank and
FFC shall not affect the obligations of the Bank and FFC or the rights of the
Indemnified Party under this Agreement, unless such failure materially
prejudices the rights of the Bank or FFC referred to in the following
sentence. If any such claim shall be asserted against the Officer, the Bank
and FFC shall be entitled to participate in any proceeding involving such
claim and, to the extent that the Bank or FFC wishes, to assume the defense
thereof with counsel reasonably satisfactory to the Officer.
PROCEDURE FOR INDEMNIFICATION.
Promptly following receipt by the Bank and FFC of notice from the Indemnified
Party of a Claim against which the Indemnified Party asserts a right to be
indemnified hereunder, the Bank and FFC shall cause all necessary actions to
be taken to consider and act in good faith upon any findings required to be
made under applicable law, or otherwise, in order to authorize the
indemnification hereunder in the specific case.
The Indemnified Party's entitlement to indemnification shall be determined in
one of the following ways: (1) By the Boards acting by a quorum consisting of
Directors who are not parties to such Claim; or (2) If a quorum of
disinterested Directors is not obtainable or, even if obtainable, a quorum of
disinterested Directors so directs, by an opinion in writing of independent
legal counsel. In addition, if required by applicable law, the Indemnified
Party's entitlement to indemnification shall be subject to the Boards having
determined that such indemnification will not materially and adversely affect
the safety and soundness of the Bank or FFC.
After the final disposition of any action or proceeding covered by this
Agreement, the Indemnified Party shall send to the Bank and FFC a written
request for any indemnification sought under this Agreement. Not later than
45 days following receipt by the Bank and FFC of such request, the Bank or FFC
shall cause the indemnification provided hereunder to be authorized and paid.
The Indemnified Party shall be given an opportunity to be heard and to present
facts and evidence on his behalf in connection with consideration by the
Boards, independent legal counsel, or others of any findings required by
applicable law.
If the Bank or FFC does not pay the indemnification requested by the
Indemnified Party, whether pursuant to final disposition, for advancement of
expenses, or otherwise, within 45 days after the receipt of such request, the
Officer's right to indemnification shall be enforceable in any court of
competent jurisdiction, including but not limited to the Supreme Court of the
State of New York, or, at the option of either party, an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association. In any such action, neither the making of, nor
failure to make, any finding by the Bank or FFC (including their respective
Boards of Directors and independent legal counsel that indemnification is
proper or not proper in the circumstances, shall be a defense to the action or
create a presumption that the Officer has not met the applicable standard of
conduct. The Indemnified Party's reasonable Expenses incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such action shall also be indemnified jointly and severally by
the Bank and FFC.
CHARTER AND BY-LAWS.
Except as may be required in order to conform the charter or By-Laws of the
Bank or FFC to the requirements of applicable law or regulation, the Bank and
FFC (i) will not take any action with respect to their respective charter or
By-Laws or otherwise which would adversely affect an Indemnified Party's
rights of indemnification as to matters occurring prior to the termination of
the Officer's services to the Bank or FFC as an Officer and (ii) will maintain
By-Law indemnification provisions which will not materially reduce the
coverage currently afforded to an Indemnified Party pursuant to the
indemnification provisions of the Bank's and FFC's By-Laws as in effect on the
date hereof. The Indemnified Party acknowledges and agrees that,
notwithstanding the provisions of the charter or By-Laws of the Bank or FFC,
as in effect from time to time, no payment in respect of indemnification shall
be made by the Bank or FCC, if such payment would result in a violation of law
by the Bank or FFC.
SURVIVAL.
The Bank and FFC acknowledge that in continuing to provide services to the
Bank and FFC the Officer is relying on this Agreement. Accordingly, each of
the Bank and FFC agree that its obligations hereunder will survive (i) any
actual or purported termination of this Agreement by the Bank or FFC or their
respective successors or assigns whether by operation of law, or otherwise,
and (ii) termination of the Officer's services to the Bank or FFC, whether
such services were terminated by the Bank, FCC or the Officer, with respect to
any Claim described in paragraph 1 hereof whether or not such Claim arises or
is commenced before or after the actual or purported termination of this
Agreement or the termination of the Officer's services to the Bank or FFC.
PARTIAL INDEMNITY.
If an Indemnified Party is entitled under any provision of this Agreement to
indemnification by the Bank and FFC for some or a portion of the expenses,
judgments, fines, penalties and amounts paid in settlement of a Claim but not,
however, for all of the total amount thereof, the Bank and FFC jointly and
severally agree nevertheless to indemnify the Indemnified Party for the
portion thereof to which the Indemnified Party is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that the
Indemnified Party has been successful on the merits or otherwise in defense of
any or all Claims relating in whole or in part to an Indemnifiable Event or
in defense of any issue or matter therein, including dismissal without
prejudice, the Indemnified Party shall be indemnified against all Expenses
incurred in connection therewith.
BURDEN OF PROOF.
In connection with any determination by a court of competent jurisdiction, an
arbitrator or otherwise as to whether an Indemnified Party is entitled to be
indemnified hereunder, the burden of proof shall be on the Bank and FFC to
establish that the Indemnified Party is not so entitled.
NONEXCLUSIVITY.
The rights of the Indemnified Party hereunder shall be in addition to and not
exclusive of any other rights or remedies such Indemnified Party may have
under applicable law, the Bank's or FFC's Charter or By-laws, or otherwise.
To the extent that a change in applicable law (whether by statute or judicial
decision) permits greater indemnification by agreement than would be afforded
currently under the respective By-laws of the Bank and FFC and this Agreement,
it is the intent of the parties hereto that the Indemnified Party shall enjoy
by this Agreement the greater benefits so afforded by such change.
LIABILITY INSURANCE.
To the extent the Bank or FFC maintains an insurance policy or policies
providing Trustee's or Officer's liability, the Officer shall be covered by
such policy or policies, in accordance with its or their terms, to the maximum
extent of the coverage available for any Officer of the Bank or FFC.
PERIOD OF LIMITATIONS.
No legal action shall be brought and no cause of action shall be asserted by
or in the right of the Bank or FFC against the Officer's spouse, heirs,
executors or personal or legal representatives after the expiration of two
years from the date of accrual of such cause of action, and any claim or cause
of action of the Bank or FFC shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two-year period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action such shorter period shall govern.
WAIVER, AMENDMENTS.
No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
SUBROGATION.
In the event of payment under this Agreement, the Bank or FFC, as the case may
be, shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnified Party, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Bank or FFC effectively to
bring suit to enforce such rights.
NO DUPLICATION OF PAYMENTS.
Neither the Bank nor FFC shall be liable under this Agreement to make any
payment in connection with any Claim made against the Indemnified Party to the
extent the Indemnified Party has otherwise actually received
payment (under any insurance policy, the By-laws of the Bank or FFC or
otherwise) of the amounts otherwise indemnifiable hereunder.
SUCCESSORS, ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and the (i) successors and assigns of the
Bank and FFC, including any direct or indirect successor by purchase, merger,
consolidation, conservatorship or receivership, or otherwise to all or
substantially all of the business or assets of the Bank or FFC, and (ii) the
spouses, heirs, executors and personal and legal representatives of the
Officer.
SEVERABILITY.
The provisions of this Agreement shall be severable in the event that any of
the provisions hereof is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable in any respect, and the validity and
enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired and shall remain
enforceable to the full extent permitted by law. In the event that any of the
provisions hereof is held by a court of competent jurisdiction to be invalid,
void or otherwise unenforceable in any respect against either the Bank or FFC,
but not the other, then the enforceability of any such provision in every
respect and of the remaining provisions hereof against the other shall not be
in any way impaired and shall remain enforceable to the full extent permitted
by law.
GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the (i) United States with respect to indemnification
obligations of the Bank hereunder as a federal association, and of FFC, to the
extent required by applicable federal law, (ii) State of New York and (iii)
State of Delaware with respect to indemnification obligations of FFC
hereunder, in each case without giving effect to the principles of conflicts
of laws.
NOTICES.
All notices or other communications required or permitted hereunder shall be
given in writing and shall be delivered against receipt, transmitted by
telecopy or similar facsimile system (with receipt acknowledged) or mailed by
registered or certified mail, postage prepaid, as follows:
If to the Bank, to:
Flushing Savings Bank, FSB
000-00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
If to FFC, to:
Flushing Financial Corporation
000-00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
If to the Officer, to:
Xxxxx X. Xxxxx
00 Xxxxxxxxx Xxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
or to such other address as shall be furnished in writing by such party in
accordance with this Section 20, and any such notice or other communication
shall be effective and be deemed to have been given as of the date so
delivered or transmitted or three days after the date so mailed; provided,
however, that any notice or other communication changing any of the addresses
set forth above shall be effective and deemed given only upon its receipt.
IN WITNESS WHEREOF, this Agreement has been executed by the parties thereto,
in the case of the Bank and FFC, by a duly authorized officer thereof on its
behalf.
FLUSHING SAVINGS BANK, FSB
/s/ Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxx
-------------------- -----------------------
Officer Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx -----------------------
--------------------
FLUSHING FINANCIAL CORPORATION
By /s/ Xxxxx X. XxXxxxxxx
-------------------------
Xxxxx X. XxXxxxxxx
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Schedule A
On August 20, 1996, an agreement substantially identical in all material
respects to of agreement to which this Schedule A is attached was also entered
into with each of the following individuals:
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxxxx
The foregoing agreements were omitted from this filing pursuant to Reg.
Section 229.601(a)(4)2.
