INDEMNIFICATION AGREEMENT
INDEMNIFICATION
AGREEMENT (this “Agreement”) dated as of
, 2008 among F.N.B. Corporation, a Florida corporation
(“FNB”), First National Bank of Pennsylvania, a
national banking association (“FNBPA”) and
(the “Indemnitee”):
WHEREAS, the Board
of Directors of FNB and FNBPA have determined that the inability to
retain the officers who serve it and FNBPA because of potential
liability considerations would be detrimental to the best interests
of FNB and FNBPA and their respective shareholders and that FNB and
FNBPA should act to assure their respective officers that such
protection will remain available in the future; and
WHEREAS, it is
reasonable, prudent and necessary for FNB and FNBPA to obligate
themselves contractually to indemnify their respective officers to
the fullest extent permitted by applicable law, subject only to the
limited exceptions contained in this Agreement, so that their
respective officers will continue to serve FNB and FNBPA free from
undue concern that they will not be so indemnified.
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein,
FNB, FNBPA 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 an officer of FNB or FNBPA, FNB and FNBPA,
jointly and severally, 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 or
FNBPA . 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 or FNBPA, by reason of the fact that the
Indemnitee is or was a director, officer, employee, agent or
fiduciary of FNB or FNBPA or is or was serving at the request of
FNB or FNBPA 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 FNBPA, 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 or FNBPA . 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 or FNBPA 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 FNBPA or
is or was serving at the request of FNB or FNBPA 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 or FNBPA, as the case may be, 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 FNBPA 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.
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 or FNBPA for the
reasonable costs and expenses, including attorneys’ fees,
judgments, penalties, fines and amounts paid in settlement actually
and
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reasonably
incurred by the Indemnitee, FNB and FNBPA 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 and FNBPA. Such request shall include documentation or
information that is reasonably available to the Indemnitee and
reasonably necessary for FNB and FNBPA 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 or FNBPA, as the case may be, 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 or FNBPA, as the case may be, 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 or FNBPA, as
the case may be. Such Independent Counsel shall be selected by the
Board of Directors of FNB or FNBPA, as the case may be, 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 or FNBPA 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 and
FNBPA, as the case may be, 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 FNBPA, or such other officer, if any, as shall
have been designated by their respective Board of Directors, shall,
promptly upon receipt of the Indemnitee’s request for
indemnification, advise FNB’s or FNBPA’s Board of
Directors, as the case may be, 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. Upon making such request for
indemnification, the Indemnitee shall be presumed to be entitled to
indemnification hereunder, and FNB or FNBPA, as the case may be,
shall have the burden of proof in the making of any determination
contrary to such presumption. If the person
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