INDEMNIFICATION AGREEMENT
INDEMNIFICATION
AGREEMENT (this “Agreement”) dated as of
, 2008 between F.N.B. Corporation, a Florida corporation
(“FNB”) and
(the “Indemnitee”):
WHEREAS, many
experienced candidates are becoming increasingly reluctant to serve
on the board of directors of publicly held corporations unless the
corporations provide adequate protection through insurance and
indemnification agreements against claims and actions against such
directors arising out of their service to and activities on behalf
of such corporations; and
WHEREAS, the
current difficulties in the marketplace generally of obtaining
adequate insurance coverage and uncertainties relating to
indemnification arising from recent decisions of the Court of
Chancery of the State of Delaware have increased the difficulty of
attracting and retaining such directors; and
WHEREAS, the Board
of Directors of FNB has determined that the inability to retain
their current directors because of potential liability
considerations would be detrimental to the best interests of FNB
and its shareholders and that FNB should act to assure its
directors that such protection will remain available in the future;
and
WHEREAS, it is
reasonable, prudent and necessary for FNB to indemnify its
directors to the fullest extent permitted by applicable law,
subject only to the limited exceptions contained in this Agreement,
so that its directors will continue to serve FNB free from undue
concern that they will not be so indemnified.
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein,
FNB and the Indemnitee, intending to be legally bound hereby,
covenant and agree as follows:
1.
Indemnification . In consideration of the Indemnitee’s
continued service as a director of FNB, FNB shall indemnify the
Indemnitee to the fullest extent permitted by applicable law in
effect on the date hereof or as such laws may from time to time be
amended in furtherance of such indemnification, subject only to the
limited exceptions set forth in this Agreement or as required by
law.
2.
Proceedings Other Than an Action by or in the Right of FNB .
The Indemnitee shall be entitled to the indemnification rights
provided in this Section 2 if the Indemnitee is a party to or
is threatened to be made a party to any Proceeding, as defined in
Section 17 of this Agreement, other than an action by or in
the right of FNB , by reason of the fact that the Indemnitee is or
was a director, officer, employee, agent or fiduciary of FNB or is
or was serving at the request of FNB as a director, officer,
employee, agent or fiduciary of any other corporation, partnership,
limited liability company, joint venture, trust or other enterprise
or entity or by reason of anything done or not done by the
Indemnitee in any such capacity. Pursuant to this Section 2,
the Indemnitee shall be indemnified against reasonable costs and
expenses, including attorneys’ fees, judgments, damages,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by the Indemnitee in connection with such
Proceeding, including, but not limited to, the investigation,
defense or appeal thereof, if the Indemnitee acted in good faith
and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of FNB , and, with respect to any
criminal Proceeding, the Indemnitee had no reasonable cause to
believe his conduct was unlawful.
3.
Actions by or in the Right of FNB . The Indemnitee shall be
entitled to the indemnification rights provided in this
Section 3 if the Indemnitee is a person who was or is made a
party or is threatened to be made a party to any Proceeding brought
by or in the right of FNB to procure a judgment in its favor by
reason of the fact that the Indemnitee is or was a director,
officer, employee, agent or fiduciary of FNB or is or was serving
at the request of FNB as a director, officer, employee, agent or
fiduciary of any other corporation, partnership, limited liability
company, joint venture, trust or other enterprise or entity by
reason of anything done or not done by the Indemnitee in any such
capacity. Pursuant to this Section 3, the Indemnitee shall be
indemnified against reasonable costs and expenses, including
attorneys’ fees, actually and reasonably incurred by the
Indemnitee in connection with such Proceeding, including, but not
limited to, the investigation, defense, settlement or appeal
thereof, if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best
interests of FNB , except that indemnification is not authorized
where there has been an adjudication of liability as to the
Indemnitee, unless a court determines in view of all of the
circumstances, that such person is fairly and reasonably entitled
to indemnity for such expenses.
4.
Indemnification for Costs and Expenses of Successful Party .
Notwithstanding the other provisions of this Agreement, to the
extent that the Indemnitee has served as a witness on behalf of FNB
or has been successful on the merits or otherwise, including,
without limitation, the dismissal of a Proceeding without
prejudice, in defense of any Proceeding referred to in
Sections 2 or 3 of this Agreement, or in defense of any claim,
issue or matter therein, the Indemnitee shall be indemnified
against reasonable costs and expenses, including attorneys’
fees, actually and reasonably incurred by the Indemnitee or on the
Indemnitee’s behalf in connection therewith.
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5.
Partial Indemnification . If the Indemnitee is only
partially successful in the defense, investigation, settlement or
appeal of any Proceeding described in Sections 2 or 3 of this
Agreement, and as a result is not entitled under Section 6 of
this Agreement to indemnification by FNB for the reasonable costs
and expenses, including attorneys’ fees, judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by the Indemnitee, FNB shall nevertheless
indemnify the Indemnitee pursuant to Section 6 to the extent
the Indemnitee has been partially successful.
6.
Determination of Entitlement to Indemnification . When
seeking indemnification under any section of this Agreement, the
Indemnitee shall submit a written request for indemnification to
FNB . Such request shall include documentation or information that
is reasonably available to the Indemnitee and reasonably necessary
for FNB to make a determination of the Indemnitee’s
entitlement to indemnification. Determination of the
Indemnitee’s entitlement to indemnification pursuant to this
Agreement shall be determined by: (a) the Board of Directors
of FNB by a majority vote of a quorum consisting of Disinterested
Directors as defined in Section 17 of this Agreement;
(b) if such a quorum is not obtainable or, even if obtainable,
if the Board of Directors of FNB by the majority vote of
Disinterested Directors so directs, by Independent Counsel as
defined in Section 17 of this Agreement in a written opinion
to such Board of Directors, a copy of which shall be delivered to
the Indemnitee or (c) by the shareholders of FNB. Such
Independent Counsel shall be selected by FNB’s Board of
Directors and shall be reasonably acceptable to the Indemnitee.
Upon failure of FNB’s Board of Directors so to select such
Independent Counsel or upon failure of the Indemnitee so to accept,
such Independent Counsel shall be selected by the Chairman of the
law firm of Duane Morris LLP. Such determination of entitlement to
indemnification shall be made not later than 60 days after
receipt by FNB of a written request for indemnification. Any
reasonable costs or expenses, including attorneys’ fees,
incurred by the Indemnitee in connection with a request for
indemnification under this Agreement shall be borne by FNB provided
that it is ultimately determined that the Indemnitee is entitled to
indemnification. If the person making such determination shall
determine that the Indemnitee is entitled to indemnification as to
part, but not all, of the application for indemnification, such
person shall reasonably prorate such partial indemnification among
such claims, issues or matters.
7.
Presumptions and Effect of Certain Proceedings . The
Secretary of FNB or other officer designated by FNB’s Board
of Directors, shall, promptly upon receipt of the
Indemnitee’s request for indemnification, advise FNB’s
Board of Directors in writing, or such other person or persons
empowered to make the determination as provided in Section 6
of this Agreement, that the Indemnitee has made such request for
indemnification. Up
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