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Exhibit 10.4
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into, effective as of April __, 2007,
between FIRST MIDWEST BANCORP, INC., a Delaware corporation (the "
Company ") and the _____________ (" Indemnitee
").
WHEREAS, it is essential to the Company and its Subsidiaries (as
defined below) to retain and attract as directors, officers and
employees the most capable persons available;
WHEREAS, Indemnitee is a director, officer, and/or employee of
the Company or one or more of its Subsidiaries;
WHEREAS, both the Company and Indemnitee recognize the increased
risk of litigation and other claims currently being asserted
against directors, officers and employees of corporations and
banks; and
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance
Indemnitee's continued and effective service to the Company and/or
its Subsidiaries, and in order to induce Indemnitee to provide
services to the Company and/or its Subsidiaries as a director,
officer and/or employee, the Company wishes to provide in this
Agreement for the indemnification of and the advancing of Expenses
(as defined below) to Indemnitee to the fullest extent (whether
partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained which
includes Indemnitee as a covered party, for the coverage of
Indemnitee under the Company's directors' and officers' liability
insurance policies.
NOW, THEREFORE, in consideration of the above premises and of
Indemnitee's continuing to serve the Company directly or, at its
request, one or more of its Subsidiaries or an other enterprise (as
defined below), and intending to be legally bound hereby, the
parties agree as follows:
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1. Certain Definitions . For purposes of this Agreement,
the following terms shall have the meanings set forth in this
Section 1 (such meanings to be equally applicable in both
the singular and plural forms of the term defined, unless the
context requires otherwise).
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a. " Board " means the Board of Directors of the
Company.
b. " Bank " means any federally or state chartered bank,
savings bank, savings and loan bank or other financial institution
eighty percent (80%) or more of whose Voting Securities are owned
by the Company, directly or indirectly, at any time while
Indemnitee is or was serving as a director, officer, employee
and/or agent of any such institution.
c. " Bank Proceeding " means any threatened, pending or
completed action, suit, arbitration, alternative dispute mechanism,
inquiry, administrative or legislative hearing, investigation or
any other actual, threatened or contemplated proceeding, including
any and all appeals, conducted by any federal or state banking,
savings and loan or other financial institution governmental or
regulatory agency that has proper jurisdiction over the applicable
Bank, whether
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civil, criminal, administrative, investigative or other, and in
each case whether or not commenced prior to the date of this
Agreement, that relates to an Indemnifiable Event.
d. " Bank Regulations " means 12 C.F.R. 359 and any
similar applicable federal or state banking statute or regulation
as now or hereafter in effect.
e. " Business Day " means any day other than a day when
banks are required or authorized to be closed for business in the
State of Illinois.
f. " Change in Control of a Subsidiary " means any
Subsidiary of which the Company ceases for any reason to be the
registered or beneficial owner, directly or indirectly, of at least
two-thirds (2/3) of the outstanding Voting Securities of such
Subsidiary. As used herein, a Change in Control of a Subsidiary
shall mean a Change in Control of a Subsidiary of which Indemnitee
is or was serving as a director, officer, employee and/or
agent.
g. " Change in Control of the Company " means (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or indirectly
by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or
becomes the " Beneficial Owner " (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the
Company representing ten percent (10%) or more of the total voting
power represented by the Company's then outstanding Voting
Securities, (ii) during any period of two consecutive years (not
including any period prior to the execution of this Agreement),
individuals who at the beginning of such period constitute the
Board and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect
a transaction described in Sections 1(g)(i), 1(g)(iii) or 1(g)(iv))
whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, (iii) the effective date
of a merger or consolidation of the Company with any other Person,
other than a merger or consolidation that would result in the
Voting Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into Voting Securities of the surviving entity)
at least eighty percent (80%) of the total voting power represented
by the Voting Securities of the Company, or such surviving entity
outstanding immediately after such merger or consolidation, (iv)
the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of
transactions) of all or substantially all of the Company's assets,
or (v) there occurs any other event of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar
schedule or form) promulgated under the Securities Exchange Act of
1934, as amended, whether or not the Company is then subject to
such reporting requirement.
h. " Company Business Combination " has the meaning set
forth in Section 15 hereof.
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i. " Delaware Court " has the meaning set forth in
Section 17 hereof.
j. " Disinterested Director " means a director of the
Company who is not and was not a party to the Proceeding in respect
of which indemnification is sought by Indemnitee.
k. " Expense Advance " has the meaning set forth in
Section 2(c) hereof.
l. " Expenses " means any expense, including without
limitation, reasonable attorneys' fees, retainers, court costs,
transcript costs, fees and expenses of experts, including
accountants and other advisors, travel expenses, duplicating costs,
postage, delivery service fees, filing fees and all other
disbursements or expenses of the types typically paid or incurred
in connection with investigating, defending, being a witness in, or
participating in (including on appeal), or preparing for any of the
foregoing in, any Proceeding relating to any Indemnifiable Event,
and any expenses of establishing a right to indemnification under
Sections 2 , 4 and/or 5 of this Agreement or
any other right hereunder.
m. " First Midwest Bank Business Combination " has the
meaning set forth in Section 15 hereof.
n. " Indemnifiable Event " means, to the fullest extent
permitted by law, any event or occurrence that takes place either
prior to or after the execution of this Agreement, related to the
fact that Indemnitee is or was a director, officer, employee or
agent of the Company or any Subsidiary, is or was serving at the
request of the Company or any Subsidiary as a director, officer,
employee, trustee, agent, limited partner, member or fiduciary of
another Person, including any other enterprise, or was a director,
officer, employee or agent of a foreign or domestic corporation
that was a predecessor corporation of the Company or any corporate
Subsidiary or a foreign or domestic financial institution that was
a predecessor of any Bank or of an other enterprise at the request
of such predecessor corporation or financial institution, or
related to anything done or not done by Indemnitee in any such
capacity, whether or not the basis of the Proceeding is alleged
action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director,
officer, employee or agent of the Company, any Bank or other
Subsidiary, as described above.
o. " Independent Counsel " means the legal counsel
appointed in connection with Section 3 .
p. " other enterprise " shall include employee benefit
plans; reference to "fines" shall include any excise tax assessed
with respect to any employee benefit plan; reference to "serving at
the request of the Company or a Subsidiary" shall include any
service as a director, officer, employee or agent of the Company or
any Subsidiary which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to any
employee benefit plan, its participants or beneficiaries.
q. " Person " means any individual or Bank, corporation,
partnership, joint venture, limited liability company, limited
partnership, employee benefit plan, trust or other entity or
enterprise, or any foreign, federal, state or local court,
governmental agency or other body.
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r. " Prior Agreement " has the meaning set forth in
Section 15 hereof.
s. " Proceeding " means any threatened, pending or
completed action, suit, arbitration, alternative dispute mechanism,
inquiry, administrative or legislative hearing, investigation or
any other actual, threatened or completed proceeding, including any
and all appeals, whether brought in the right of the Company or any
other Person, whether civil, criminal, administrative,
investigative or other, and in each case whether or not commenced
prior to the date of this Agreement, that relates to an
Indemnifiable Event, including without limitation any Bank
Proceeding.
t. " Reviewing Party " means the Person appointed in
accordance with Section 3 .
u. " Subsidiary " means any Person (other than an
individual) eighty percent (80%) or more of whose Voting Securities
are owned by the Company, directly or indirectly, at any time while
Indemnitee is or was serving as a director, officer, employee
and/or agent of such Person.
v. " Voting Securities " means any securities of the
Company or a Subsidiary that vote generally in the election of
directors of the Company or such Subsidiary, respectively.
2. Agreement to Indemnify .
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a. General Agreement . In the event Indemnitee was, is or
becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, a Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee and
hold Indemnitee harmless from and against any and all Expenses,
liabilities or losses, judgments, fines, ERISA excise taxes and
penalties, amounts paid or to be paid in settlement, any interest,
assessments or other charges imposed thereon, and any federal,
state, local or foreign taxes imposed as a result of the actual or
deemed receipt of any payments under this Agreement, to the fullest
extent permitted by applicable law, as the same exists or may
hereafter be amended or interpreted (but in the case of any such
amendment or interpretation, only to the extent that such amendment
or interpretation permits the Company to provide broader
indemnification rights than were permitted prior thereto). The
parties hereto intend that this Agreement shall provide for
indemnification in excess of that expressly permitted by
statute.
b. Initiation of Proceeding . Notwithstanding anything in
this Agreement to the contrary, Indemnitee shall not be entitled to
indemnification or advancement of Expenses pursuant to this
Agreement in connection with any Proceeding initiated by Indemnitee
against the Company or any Subsidiary or any director or officer of
the Company or any Subsidiary unless (i) the Company has joined in
or the Board has consented to the initiation of such Proceeding,
(ii) the Proceeding is one to enforce indemnification rights under
Section 5 or contribution rights under Section 7 , or
(iii) the Proceeding is instituted after a Change in Control of the
Company or a Change in Control of a Subsidiary.
c. Expense Advances . If so requested by Indemnitee, the
Company shall advance any and all Expenses to Indemnitee (an "
Expense Advance ") within fifteen (15)
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Business Days after the receipt by the Company of a statement or
statements from Indemnitee requesting such Expense Advance or
Expense Advances, whether prior to or after final disposition of
any Proceeding. Expense Advances shall be made without regard to
Indemnitee's ability to repay the Expense Advance and without
regard to Indemnitee's ultimate entitlement to indemnification
under the provisions of this Agreement. Except as may be required
by any applicable Banking Regulations in any Bank Proceeding,
Indemnitee shall qualify for Expense Advances solely upon the
execution and delivery to the Company of an undertaking in form and
substance reasonably satisfactory to the Company providing that
Indemnitee undertakes to repay the Expense Advance if and to the
extent that it is ultimately determined that Indemnitee is not
entitled to be indemnified by the Company. Expense Advances shall
include any and all reasonable Expenses incurred pursuing an action
to enforce this right of advancement. If Indemnitee has commenced
legal proceedings in a court of competent jurisdiction in the State
of Delaware to secure a determination that Indemnitee should be
indemnified under applicable law, as provided in Section 4 ,
any determination made by the Reviewing Party that Indemnitee would
not be permitted to be indemnified under this Agreement or
applicable law shall not be binding and Indemnitee shall not be
required to reimburse the Company for any Expense Advance until a
final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or have
lapsed). Indemnitee's obligation to reimburse the Company for
Expense Advances shall be unsecured and no interest shall be
charged thereon.
d. Mandatory Indemnification . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful, in whole or in part, on the merits in defense of any
Proceeding relating to an Indemnifiable Event or in defense of any
issue or matter therein, Indemnitee shall be indemnified against
all Expenses incurred in connection therewith to the fullest extent
permitted by law. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one
or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or on his behalf
in connection with each successfully resolved claim, issue or
matter.
3. Reviewing Party .
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a. Prior to a Change in Control of the Company or a Change in
Control of a Subsidiary, the Person (the " Reviewing Party
") who shall determine whether Indemnitee is entitled to
indemnification in the first instance shall be (i) the Board acting
by a majority vote of Disinterested Directors, whether or not such
majority constitutes a quorum of the Board; (ii) a committee of
Disinterested Directors designated by a majority vote of such
directors, whether or not such majority constitutes a quorum; (iii)
if there are no Disinterested Directors, or if the Disinterested
Directors so direct, by Independent Counsel in a written opinion to
the Board, a copy of which shall be delivered to Indemnitee or (iv)
if so directed by the Board, by the stockholders of the Company.
Except as may be required by any applicable Bank Regulations in a
Bank Proceeding, if the Independent Counsel is the Reviewing Party,
the Company shall seek legal advice only from Independent Counsel
selected by the Company and approved by Indemnitee (which approval
shall not be unreasonably withheld or delayed), and who has not
otherwise performed services for the Company, the Subsidiary or
Indemnitee (other than in connection with indemnification matters)
within five (5) years prior to the date of selection of such
Independent Counsel. The Independent Counsel shall not include any
Person who, under
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the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing any
of the Company, such Subsidiary or Indemnitee in an action to
determine Indemnitee's rights under this Agreement. Such
Independent Counsel, among other things, shall render its written
opinion to the Company and, unless prohibited by any applicable
Banking Regulations in a Bank Proceeding, to Indemnitee, as to
whether and to what extent Indemnitee should be permitted to be
indemnified under applicable law. In any event, Indemnitee shall be
entitled to a copy of such written opinion. The Company agrees to
pay the reasonable fees of the Independent Counsel and to indemnify
fully such Independent Counsel against any and all expenses
(including attorneys' fees), claims, liabilities, losses and
damages arising out of or relating to this Agreement or the
engagement of such Independent Counsel hereto.
b. After a Change in Control of the Company or a Change in
Control of a Subsidiary and except as may be required by any
applicable Banking Regulations in a Bank Proceeding, the Reviewing
Party shall be the Independent Counsel referred to below. With
respect to all matters arising from a Change in Control of the
Company or a Change in Control of a Subsidiary (other than a Change
in Control of the Company approved by a majority of the directors
on the Board who were directors immediately prior to such Change in
Control of the Company) concerning the rights of Indemnitee to
indemnity payments and Expense Advances under this Agreement, any
other agreement or under applicable law or the Company's
certificate of incorporation or by-laws or a Subsidiary's
constituent documents now or hereafter in effect relating to
indemnification for Indemnifiable Events, the Company shall seek
legal advice only from Independent Counsel selected by Indemnitee
and approved by the Company (which approval shall not be
unreasonably withheld or delayed), and who has not otherwise
performed services for the Company, such Subsidiary or Indemnitee
(other than in connection with indemnification matters) within five
(5) years prior to the date of selection of such Independent
Counsel. The Independent Counsel shall not include any Person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing any
of the Company, such Subsidiary or Indemnitee in an action to
determine Indemnitee's rights under this Agreement. Such
Independent Counsel, among other things, shall render its written
opinion to the Company and, unless prohibited by applicable Banking
Regulations in a Bank Proceeding, to Indemnitee, as to whether and
to what extent Indemnitee should be permitted to be indemnified
under applicable law. In any event, Indemnitee shall be entitled to
a copy of such written opinion. The Company agrees to pay the
reasonable fees of the Independent Counsel and to indemnify fully
such Independent Counsel against any and all expenses (including
attorneys' fees), claims, liabilities, losses, and damages arising
out of or relating to this Agreement or the engagement of such
Independent Counsel pursuant hereto.
c. If, within twenty (20) calendar days after the later of
submission by Indemnitee of a written request for indemnification
pursuant to Section 4(a) hereof and the final disposition of
the Proceeding, no Independent Counsel shall have been selected and
not objected to, unless prohibited by any applicable Banking
Regulations in a Bank Proceeding, either the Company or Indemnitee
may petition the Court of Chancery of the State of Delaware or
other court of competent jurisdiction for resolution of any
objection which shall have been made by Indemnitee to the Company's
selection of Independent Counsel or by Indemnitee to the Company's
selection of Independent Counsel and/or for the appointment as
Independent Counsel of a Person selected by the court or by such
other Person as the court shall designate, and the Person with
respect to whom all objections are so resolved or the Person so
appointed shall act as
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Independent Counsel under Section 3(a) or (b)
hereof, as the case may be. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incu
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