Exhibit 10.2
I NDEMNIFICATION A GREEMENT
This Indemnification
Agreement made this 29th day of January, 2009, between 1
st
Financial Services
Corporation, a North Carolina corporation (the
“Corporation”) and Roger A. Mobley, a director,
officer, employee, agent, or representative (as hereinafter
defined) of the Corporation (the
“Indemnitee”).
W HEREAS , the Corporation and the Indemnitee are each
aware of the exposure to litigation of officers, directors,
employees, agents, and representatives of the Corporation as such
persons exercise their duties to the Corporation,
W HEREAS , the Corporation and the Indemnitee are also
aware of conditions in the insurance industry that have affected
and may continue to affect the Corporation’s ability to
obtain appropriate liability insurance on an economically
acceptable basis,
W HEREAS , the Corporation desires to continue to benefit
from the services of highly qualified, experienced, and otherwise
competent persons such as the Indemnitee, and
W HEREAS , the Indemnitee desires to serve or to continue
to serve the Corporation as a director, officer, employee, or agent
or as a director, officer, employee, agent, or trustee of another
corporation, joint venture, trust, or other enterprise in which the
Corporation has a direct or indirect ownership interest, for so
long as the Corporation continues to provide, on an acceptable
basis, adequate and reliable indemnification against certain
liabilities and expenses that may be incurred by the
Indemnitee.
N OW ,
T HEREFORE
, in consideration of the foregoing
premises and the mutual covenants herein contained, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1 . Indemnification . Subject to the
exclusions contained in section 9 of this Agreement, the
Corporation shall indemnify the Indemnitee with respect to his or
her activities as a director, officer, employee, or agent of the
Corporation and/or as a person who is serving or has served at the
request of the Corporation (“representative”) as a
director, officer, employee, agent, or trustee of another
corporation, joint venture, trust, or other enterprise, domestic or
foreign, in which the Corporation has a direct or indirect
ownership interest (an “affiliated entity”) against
expenses (including, without limitation, attorneys’ and
experts’ fees, judgments, fines, and amounts paid or payable
in settlement) actually and reasonably incurred
(“Expenses”) in connection with any claim against
Indemnitee that is the subject of any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil,
criminal, administrative, investigative, or otherwise and whether
formal or informal (a “Proceeding”), to which
Indemnitee was, is, or is threatened to be made a party by reason
of facts which include Indemnitee’s being or having been such
a director, officer, employee, agent, or representative, to the
extent of the highest and most advantageous to the Indemnitee, as
determined by the Indemnitee, of one or any combination of the
following –
|
|
(a)
|
The benefits
provided by the Corporation’s Articles of Incorporation
(“Articles”) or Bylaws, or the Articles of
Incorporation or Bylaws of an affiliated entity of which the
Indemnitee serves as a representative, in each case as in effect on
the date hereof,
|
|
|
(b)
|
The benefits
provided by the Corporation’s Articles or Bylaws, or the
Articles of Incorporation or Bylaws of an affiliated entity of
which the Indemnitee serves as a representative, in each case as in
effect at the time Expenses are incurred by the
Indemnitee,
|
|
|
(c)
|
The benefits
allowable under North Carolina law in effect at the date hereof or
as amended to increase the scope of indemnification,
|
|
|
(d)
|
The benefits
allowable under the law of the jurisdiction under which the
Corporation exists at the time Expenses are incurred by the
Indemnitee,
|
|
|
(e)
|
The benefits
available under any liability insurance obtained by the Corporation
in effect when a claim is made against Indemnitee,
|
|
|
(f)
|
The benefits
available under any liability insurance obtained by the Corporation
in effect at the time Expenses are incurred by the Indemnitee,
and
|
|
|
(g)
|
Such other
benefits as are or may be otherwise available to
Indemnitee.
|
Combination of two or more of the
benefits provided by (a) through (g) shall be available
to the extent that the Applicable Document (as hereafter defined)
does not require that the benefits provided therein be exclusive of
other benefits. The document or law providing for the benefits
listed in items (a) through (g) above is called the
“Applicable Document” in this Agreement. The
Corporation hereby undertakes to use its best efforts to assist
Indemnitee, in all proper and legal ways, to obtain the benefits
selected by Indemnitee under item (a) through
(g) above.
For purposes of this Agreement,
references to “other enterprises” shall include
employee benefit plans for employees of the Corporation or of any
affiliated entity, without regard to ownership of such plans;
references to “fines” shall include any excise taxes
assessed on the Indemnitee with respect to any employee benefit
plan; references to “serving at the request of the
Corporation” shall include any service as a director,
officer, employee, or agent of the Corporation which imposes duties
on, or involves services by, the Indemnitee with respect to an
employee benefit plan, its participants, or beneficiaries;
references to the masculine shall include the feminine; references
to the singular shall include the plural and vice versa ;
and if the Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants
and beneficiaries of an employee benefit plan, he or she shall be
deemed to have acted in a manner consistent with the standards
required for indemnification by the Corporation under the
Applicable Documents.
2 . Insurance . The Corporation shall
maintain liability insurance for so long as Indemnitee’s
services are covered hereunder, provided and to the extent that
such insurance is available on a basis acceptable to the
Corporation. However, the Corporation agrees that the provisions
hereof shall remain in effect regardless of whether liability or
other insurance coverage is at any time obtained or retained by the
Corporation. But payments made to Indemnitee under an insurance
policy obtained or retained by the Corporation shall reduce the
obligation of the Corporation to make payments hereunder by the
amount of the payments made under any such insurance
policy.
3 . Payment of Expenses . At
Indemnitee’s request, after receipt of written notice under
section 5 hereof and an undertaking in the form of Exhibit A
attached hereto by or on behalf of Indemnitee to repay such amounts
so paid on Indemnitee’s behalf if it shall ultimately be
determined under the Applicable Document that Indemnitee is not
entitled to be indemnified by the Corporation for such Expenses,
the Corporation shall pay the Expenses as and when incurred by
Indemnitee. That portion of Expenses representing attorneys’
fees and other costs incurred in defending any proceeding shall be
paid by the Corporation within 30 days after the Corporation
receives the request and reasonable documentation evidencing the
amount and nature of the Expenses, subject to its also having
received such a notice and undertaking.
4 . Additional Rights . The indemnification
provided in this Agreement shall not be exclusive of any other
indemnification or right to which Indemnitee may be entitled and
shall continue after Indemnitee has ceased to occupy a position as
an officer, director, employee, agent, or representative as
described in section 1 above with respect to Proceedings relating
to or arising out of Indemnitee’s acts or omissions during
his or her service in such position. The benefits provided to
Indemnitee under this Agreement for the Indemnitee’s service
as a representative of an affiliated entity shall be payable if and
only if and only to the extent that reimbursement to Indemnitee by
the affiliated entity with which Indemnitee has served as a
representative, whether pursuant to agreement, applicable law,
articles of incorporation or association, bylaws or regulations of
the entity, or insurance maintained by such affiliated entity, is
insufficient to compensate Indemnitee for Expenses actually
incurred and otherwise payable by the Corporation under this
Agreement. Any payments in fact made to or on behalf of the
Indemnitee directly or indirectly by the affiliated entity with
which Indemnitee served as a representative shall reduce the
obligation of the Corporation hereunder.
2
5 . Notice to Corporation . Indemnitee
shall provide to the Corporation prompt written notice of any
Proceeding brought, threatened, asserted, or commenced against
Indemnitee with respect to which Indemnitee may assert a right to
indemnification hereunder; provided, however , that failure
to provide such notice shall not in any way limit
Indemnitee’s rights under this Agreement.
6 . Cooperation in Defense and Settlement .
Indemnitee shall not make any admission or effect any settlement
without the Corporation’s written consent unless Indemnitee
shall have determined to undertake his or her own defense in such
matter and has waived the benefits of this Agreement. The
Corporation shall not settle any Proceeding to which Indemnitee is
a party in a manner that would impose any Expense on Indemnitee
witho