EXHIBIT 10.3
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT ("Agreement") is made this ___ day of December
2004, effective as of the Effective Date, by and between North Country Financial
Corporation, a Michigan corporation (the "Company"), and _______________________
(the "Indemnitee").
WITNESSETH:
WHEREAS, the Michigan Business Corporation Act, as amended (the "Act"),
provides that the Company has the power to indemnify a directors who was or is a
party or is threatened to be made a party to an action in certain circumstances;
and
WHEREAS, in recognition of Indemnitee's reliance on such provision of the
Act, to provide Indemnitee with specific contractual assurance that the
protection promised by said provision will be available to him regardless of any
amendment to or any change in the Act, and to induce Indemnitee to serve as a
director, the Company wishes to provide in this Agreement for indemnification of
Indemnitee and the advancing of expenses to Indemnitee to the fullest extent now
or hereafter permitted by law.
NOW, THEREFORE, in consideration of the premises and mutual promises and
undertaking hereinafter contained, the Company and Indemnitee hereby agree as
follows:
1. Definitions. As used in this Agreement:
(a) The term "Effective Date" shall mean the date of Closing
pursuant to that certain Stock Purchase Agreement dated August 10, 2004,
as amended, by and between NCFC Recapitalization, LLC, a Michigan limited
liability company, individually and on behalf of the investors that
subscribe for shares of the Company's common stock, and the Company.
(b) The term "Expenses" includes, without limitation, attorneys
fees, disbursements and retainers, accounting, expert and witness fees,
travel and deposition costs, court costs, transcript costs, expenses of
investigations, judicial or administrative proceedings and appeals, and
all other disbursements and expenses customarily incurred in connection
with prosecuting, defending or investigating any Proceeding, and any
expenses of establishing a right to indemnification, pursuant to this
Agreement or otherwise. The term "Expenses" does not include the amount of
judgments, fines, penalties or ERISA excise taxes actually levied against
Indemnitee or amounts paid in settlement by or on behalf of Indemnitee.
(c) The term "Proceeding" shall include any threatened, pending or
completed action, suit, proceeding, arbitration or alternative dispute
resolution mechanism, formal or informal, whether brought in the name of
the Company or otherwise and whether of a civil, criminal or
administrative or investigative nature, in which Indemnitee may be
involved as a party or otherwise by reason of the fact that Indemnitee is
or was a director,
officer, employee, agent or fiduciary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, agent or
fiduciary of another enterprise, whether or not he is serving in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement is to be provided under this Agreement.
2. Agreement to Serve. Indemnitee hereby agrees to be nominated for
election to the board of directors of the Company and, if elected, after the
Effective Date, to serve as a director of the Company.
3. Indemnification.
(a) Subject to the terms of this Agreement, the Company hereby
agrees to indemnify and hold harmless Indemnitee against all Expenses
incurred by him in connection with any Proceeding, to the fullest extent
permitted by law. 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 Michigan corporation to indemnify a member of its board of directors,
it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits afforded by such change. In the event of
any change in any applicable law, statute or rule which narrows the right
of a Michigan corporation to indemnify a member of its board of directors,
such change, 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) In the event of a Proceeding by or in the right of the Company,
the Company shall indemnify Indemnitee and advance Expenses related to the
cost of the Proceeding in accordance with Section 5 of this Agreement.
4. Conclusive Presumption Regarding Entitlement. Indemnitee shall be
conclusively presumed to be entitled to indemnification pursuant to this
Agreement unless a final and nonappealable determination has been made by a
court of competent jurisdiction that Indemnitee is not entitled to
indemnification. The termination of any Proceeding, by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption or be
used as evidence that Indemnitee did not meet any particular standard of conduct
or have any particular belief or that a court has determined that
indemnification is not permitted hereunder or by applicable law.
5. Advances of Expenses. The Expenses incurred by Indemnitee in any
Proceeding shall be paid promptly by the Company in advance of the final
disposition of the Proceeding at the written request of Indemnitee accompanied
by reasonable documentation of such expenses, such payment to be made within
thirty (30) business days of each such request; provided, however, that
Indemnitee shall undertake in writing to repay any such Expense payments if it
is ultimately determined that Indemnitee is not entitled to indemnification for
such Expenses.
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6. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of
Expenses incurred in connection with any Proceeding, but not, however, for all
of the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such Expenses to which Indemnitee is entitled.
7. Indemnification Procedure; Determination of Right to Indemnification.
(a) Promptly after receipt by Indemnitee of notice of the
commencement of any Proceeding, Indemnitee shall, if a claim in respect
thereof is to be made against the Company under this Agreement, notify the
Company of the commencement thereof in writing unless the Company shall
have otherwise received notice of such Proceeding. The omission to so
notify the Company will not relieve it from any liability which it may
have to Indemnitee except to the extent that the Company is damaged by
such omission.
(b) If a claim for indemnification or advances under this Agreement
is not paid by the Company within thirty (30) days of receipt of written
notice, the rights provided by this Agreement shall be enforceable by
Indemnitee in any court of competent jurisdiction or Indemnitee may, at
his sole option, seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association,
which award shall be binding on the Company, nonappealable and enforceable
in any court of competent jurisdiction. The burden of proving by clear and
convincing evidence that indemnification or advances are not legally
permissible shall be on the Company or the person challenging the
indemnification or advances.
(c) The Expenses of Indemnitee incurred in connection with any
proceeding concerning his right to indemnification or advances in whole or
in part pursuant to this Agreement shall also be indemnified by the
Company unless it is ultimately determined in such proceeding that
Indemnitee had no right to indemnification or advances pursuant to this
Agreement.
(d) With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate therein at its own
expense and, except as otherwise provided below, to the extent that it may
wish, the Company may assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of
its election to assume the defense of a Proceeding, the Company will not
be liable to Indemnitee for any attorneys' fees subsequently incurred by
Indemnitee in connection with the defense thereof, other than as provided
below. The Company shall not settle any Proceeding in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent. Indemnitee shall have the right to employ his own counsel
in any Proceeding, but the fees and expenses of such counsel incurred
after notice from the Company of its assumption of the defense of the
Proceeding shall be at the expense of Indemnitee, unless (i) the
employment of counsel by Indemnitee has been authorized by the Company,
(ii) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and
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Indemnitee in the conduct of the defense of a Proceeding, (iii) the
Company shall not in fact have employed counsel to assume the defense of a
Proceeding, or (iv) counsel employed by the Company shall not have been
approved by Indemnitee, in each of which cases the fees and expanses of
Indemnitee's counsel shall be advanced by the Company. The Company shall
not be entitled to assume the defense of any Proceeding brought by or on
behalf of the Company or as to which Indemnitee has concluded that there
may be a conflict of interest between the Company and Indemnitee.
8. Limitations on Indemnification. No payments pursuant to this Agreement
shall be made by the Company:
(a) To indemnify Indemnitee for any Expenses incurred in connection
with any Proceeding to the extent Indemnitee has otherwise actually
received payment (under any insurance policy, provision of the Company's
Restated Articles of Incorporation, as amended, Bylaws or otherwise) of
the amounts payable hereunder;
(b) To indemnify Indemnitee for any Expenses, judgments, fines or
penalties sustained in any Proceeding for an accounting of profits made
from the purchase or sale by Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange Act
of 1934, the rules and regulations promulgated thereunder and amendments
thereto or similar provisions of any federal, state or local statutory
law;
(c) To indemnify Indemnitee for any amounts paid in settlement of
any Proceeding without its written consent;
(d) If a court of competent jurisdiction finally determines that
such indemnification is unlawful; or
(e) In the case of a Proceeding instituted by Indemnitee (other than
a proceeding concerning his right to indemnification or advances pursuant
to this Agreement) unless and only to the extent that such indemnification
or advances are approved by the court or other tribunal having
jurisdiction over such Proceeding.
9. Liability Insurance. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
Indemnitee shall be covered by such policy or policies, in accordance with its
or their terms, to the extent of the coverage provided for any director of the
Company.
10. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
if: (a) delivered by hand delivery and receipted for by the party to whom said
notice or other communication shall have been directed, on the date of such
receipt, or (b) mailed by certified or registered mail with postage prepaid, on
the third (3rd) business day after the date on which it is so mailed:
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(i) If to Indemnitee, at the address indicated on the signature page
of this Agreement, or such other address as Indemnitee subsequently shall
provide in writing to the Company.
(ii) If to the Company to: 130 S. Cedar Street
Manistique, Michigan 49854
11. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of Indemnitee and his heirs, executors,
administrators and assigns, whether or not Indemnitee has ceased to be a
director, and the Company and its successors and assigns.
12. Separability. Each and every paragraph, sentence, term and provision
of this Agreement is separate and distinct so that if any paragraph, sentence,
term or provision hereof shall be held to be invalid or unenforceable for any
reason, such invalidity or unenforceability shall not affect the validity or
enforceability of any other paragraph, sentence, term or provision hereof. To
the extent required, any paragraph, sentence, term or provision of this
Agreement may be modified by a court of competent jurisdiction to preserve its
validity and to provide Indemnitee with the broadest possible indemnification
permitted by law.
13. Interpretation; Governing Law. This Agreement shall be construed as a
whole and in accordance with its fair meaning. Headings are for convenience only
and shall not be used in construing meaning. This Agreement shall be governed
and interpreted in accordance with the laws of the State of Michigan without
regard to the conflicts of laws principles of such state.
14. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the court of the State of Michigan
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Michigan.
15. Amendments. No amendment, waiver, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties.
16. Term of this Agreement. This Agreement shall continue in force if and
so long as Indemnitee is serving as a director of the Company, or, if Indemnitee
is no longer serving as a director of the Company, if and so long as any
Proceeding is pending or might be commenced involving Indemnitee.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which counterpart shall be deemed an original, but all of
which counterparts taken together shall be one and the same document.
18. Facsimile Signatures. Facsimile signatures to this Agreement shall be
considered originals hereof, with any party executing this Agreement by
facsimile signature agreeing to provide promptly to the other parties an
original signature evidencing the same.
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IN WITNESS WHEREOF, the parties have executed this Indemnity Agreement on
the date first written above.
INDEMNITEE
__________________________________________
Address: _________________________________
__________________________________________
NORTH COUNTRY FINANCIAL CORPORATION
By _______________________________________
Its ____________________________
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