EXHIBIT 10.11
FIRST COMMUNITY BANK, NATIONAL ASSOCIATION
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement ("AGREEMENT") is made as of this 20th day of
January, 2004, by and between First Community Bank, a National Association (the
"BANK"), and _______________ ("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:
Indemnification.
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(a) (1) Third Party Proceedings. 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, 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Bank, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with such
action, suit or proceeding, provided Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Bank, and, with respect to any criminal action or proceeding,
the Bank had no reasonable cause to believe Indemnitee's conduct was unlawful;
and further provided, that with respect to any administrative proceeding or
civil action initiated by any federal banking agency, the Company shall provide
such indemnification upon receipt by the Bank of notice of request for
indemnification, but only after the Board of the Bank determines, in writing,
after due investigation and consideration, without any involvement by the
Indemnitee, prior to and as a condition to any indemnification therefore, that
the Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Bank, that any
requested payment of indemnification will not materially adversely affect the
safety and soundness of either the Bank or First Community Bancshares, Inc, a
Nevada corporation, that such indemnification payment is consistent with safe
and sound banking practice, and that the payment of indemnification does not
meet the definition of a "prohibited indemnification payment" as defined in
Section 1(a)(2) hereof, and as may be further defined from time to time at 12
C.F.R. Section 359.1 (l) of the regulations promulgated under the Federal
Deposit Insurance Act. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that Indemnitee did
not act in good faith and in a manner which Indemnitee reasonably believed to be
in or not opposed to the best interests of the Bank.
(2) Notwithstanding Section 1(a)(1) hereof, the Bank is prohibited
from indemnifying the Indemnitee for any "prohibited indemnification payment,"
which for purposes of this Agreement, is the payment or reimbursement of any
civil money penalty or judgment resulting from any administrative or civil
action instituted by a federal banking agency, or any other liability or legal
expense with regard to any administrative
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proceeding or civil expense instituted by a federal banking agency which results
in a final order or settlement, pursuant to which the Indemnitee is assessed a
civil money penalty; is removed from office or prohibited from participating in
the conduct of the affairs of the Bank; or is required to cease and desist from
or take any affirmative action described in section 8(b) of the Federal Deposit
Insurance Corporation Act, with respect to the Bank.
(b) Mandatory Payment of Expenses. To the extent that Indemnitee
has been successful on the merits or otherwise in defense of any action, suit or
proceeding, or the defense of any claim, issue or matter therein (other than an
administrative proceeding or civil action initiated by any federal banking
agency which shall be governed by Section 1(a)), Indemnitee shall be indemnified
against expenses (including attorneys' fees) and any costs of settlement
(including amounts paid in settlement if such settlement is approved in advance
by the Bank, which approval shall not be unreasonably withheld) actually and
reasonably incurred by Indemnitee in connection therewith.
Expenses; Indemnification Procedure.
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(a) Advancement of Expenses. The Bank shall advance all expenses
actually and reasonably incurred by the Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal action,
suit or proceeding (other than an administrative proceeding or civil action
initiated by any federal banking agency which shall be governed by Section
1(a)). 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 the Indemnitee within twenty (20)
days following delivery of a written request therefore by the 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 advances provided for in
Section 1 and this Section 2 shall be made no later than forty-five (45) days
after receipt of the written request of Indemnitee. If a claim under this
Agreement, under any statute, or under any provision of the Bank's Articles of
Association nor By-laws providing for indemnification, is not paid in full by
the Bank within forty-five (45) days after a written request for payment thereof
has first been received by the Bank, 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.
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(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 actions 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 the Bank shall be obligated
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 such proceeding, the fees and expenses of Indemnitee's counsel
shall be at the expense of the Bank.
Additional Indemnification Rights; Nonexclusivity.
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(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 Articles of
Association, 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 Articles of Association, its Bylaws, any agreement,
any vote of stockholders or disinterested Directors, the National Bank Act, as
amended, the Office of the Comptroller of the Currency Rules and Regulations,
and 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.
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.
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 Bank and Indemnitee acknowledge that the Bank, a National
Association, is subject to the prohibitions and limitations on indemnification
set forth in the federal banking laws including, without limitation,
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12 CFR ss. 1838 of the Rules and Regulations of promulgated by the Office of the
Comptroller of the Currency and Sections 8(k) and 18(k) of the Federal Deposit
Insurance Act and the regulations promulgated thereunder.
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 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
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 7. 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.
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
Section 78.7502(3) of the Nevada General Corporation 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.
Construction of Certain Phrases.
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(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 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.
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(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 Section 1(a)
of this Agreement.
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
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.
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.
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 a written
notice.
Choice of Law. This Agreement shall be governed by and its provisions
construed in accordance with the federal laws of the United States with respect
to federal banking law and in accordance with the laws of the State of Nevada
for all other matters, including as applied to contracts between Nevada
residents entered into and to be performed entirely within Nevada.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
FIRST COMMUNITY BANK, A
NATIONAL ASSOCIATION
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President - Finance
AGREED TO AND ACCEPTED:
INDEMNITEE:
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Name:
Address:
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