Item 6. Indemnification of Directors and
Officers
Reference is made to
the provisions of Article VII of MVB Financial’s articles of incorporation below.
ARTICLE VII
Provisions for the regulation
of the internal affairs of the corporation are:
A.
Indemnification
.
Each person who was or is a party or is threatened to be made a party to or is involved (including, without limitation, as a witness
or deponent) in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative
or otherwise in nature (“Proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or was serving at the written request of the corporation’s
Board of Directors, president or their delegate as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such Proceeding
is alleged action or omission in an official capacity as a director, officer, trustee, employee or agent or in any other capacity,
shall be indemnified and held harmless by the corporation to the fullest extent authorized by law, including but not limited to
the West Virginia Code, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification rights than said Code permitted the corporation
to provide prior to such amendment), against all expenses, liability and loss (including, without limitation, attorneys’
fees and disbursements, judgments, fines, ERISA or other similar or dissimilar excise taxes or penalties and amounts paid or to
be paid in settlement) incurred or suffered by such person in connection therewith; provided, however, that the corporation shall
indemnify any such person seeking indemnity in connection with a Proceeding (or part thereof) initiated by such person only if
such Proceeding (or part thereof) was authorized by the Board of Directors of the corporation; provided, further, that the corporation
shall not indemnify any person for civil money penalties or other matters, to the extent such indemnification is specifically not
permissible pursuant to federal or state statute or regulation, or order or rule of a regulatory agency of the federal or state
government with authority to enter, make or promulgate such order or rule. Such right shall include the right to be paid by the
corporation expenses, including, without limitation, attorneys’ fees and disbursements, incurred in defending or participating
in any such Proceeding in advance of its final disposition; provided, however, that the payment of such expenses in advance of
the final disposition of such Proceeding shall be made only upon delivery to the corporation of an undertaking, by or on behalf
of such director or officer, in which such director or officer agrees to repay all amounts so advanced if it should be ultimately
determined that such person is not entitled to be indemnified under this Article or otherwise. The termination of any Proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interest of the corporation, or that such person did have reasonable cause to believe that his conduct was unlawful.
B.
Right of Claimant
to Bring Suit
. If a claim under this Article is not paid in full by the corporation within thirty days after a written claim
therefor has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover
the unpaid amount of the claim and, if successful, in whole or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses
incurred in defending or participating in any Proceeding in advance of its final disposition where the required undertaking has
been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the applicable
law for the corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the
corporation.
Neither the failure of
the corporation (including its Board of Directors, independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification or reimbursement of the claimant is permitted in the circumstances
because he or she has met the applicable standard of conduct, nor an actual determination by the corporation (including its Board
of Directors, independent legal counsel, or its shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
C.
Contractual Rights:
Applicability
. The right to be indemnified or to the reimbursement or advancement of expenses pursuant hereto (i) is a contract
right based upon good and valuable consideration, pursuant to which the person entitled thereto may bring suit as if the provisions
hereof were set forth in a separate written contract between the corporation and the director or officer, (ii) is intended to be
retroactive and shall be available with respect to events occurring prior to the adoption hereof, and (iii) shall continue to exist
after the rescission or restrictive modification hereof with respect to events occurring prior thereto.
D.
Requested Service
.
Any director or officer of the corporation serving, in any capacity, (i) another corporation of which five percent (5%) or more
of the shares entitled to vote in the election of its directors is held by the corporation, or (ii) any employee benefit plan of
the corporation or of any corporation referred to herein shall be deemed to be doing so at the request of the corporation.
E.
Non-Exclusivity
of Rights
. The rights conferred on any person hereunder shall not be exclusive of and shall be in addition to any other right
which such person may have or may hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement,
vote of shareholders or disinterested directors or otherwise.
F.
Insurance
.
The corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent
of the corporation or another corporation, partnership, joint venture, trust or other enterprise against such expense, liability
or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under
West Virginia law.
G.
Limitation of Liability
.
A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director except to the extent that such exception from liability or limitation thereof is not permitted
by the West Virginia Business Corporation Act or the laws of the United States or the State of West Virginia, as the same may exist
or are hereafter amended. Any repeal or modification of the foregoing provision by the stockholders of the corporation shall not
adversely affect any right of protection of a director of the corporation existing at the time of such repeal or modification.
MVB Financial is a West
Virginia corporation subject to the applicable indemnification provisions of the General Corporation Law of West Virginia.
The foregoing indemnity
provisions have the effect of reducing directors’ and officers’ exposure to personal liability for actions taken in
connection with their respective positions.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of MVB
Financial pursuant to the foregoing provisions, or otherwise, MVB Financial has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by MVB Financial
of expenses incurred or paid by a director, officer or controlling person of MVB Financial in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
MVB Financial will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
Item 9. Undertakings
|
(a)
|
The undersigned registrant hereby undertakes:
|
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment to the registration statement:
(i) To include any prospectus
required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the
prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(iii) To include any
material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
Provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the
purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(b) The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.