INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement"), dated as of ____________,
1996, between OLYMPIC FINANCIAL LTD., a Minnesota corporation (the "Company"),
and ____________ ("Indemnitee"), an officer and/or member of the Board of
Directors of the Company.
WHEREAS, the Company desires the benefits of having Indemnitee serve as an
officer and/or director secure in the knowledge that expenses, liabilities and
losses incurred by him in his food faith service to the Company will be borne by
the company or its successors and assigns in accordance with applicable law; and
WHEREAS, the Company desires that Indemnitee resist and defend against
what Indemnitee may consider to be unjustified investigations, claims, actions,
suits and proceedings which have arisen or may arise in the future as a result
of Indemnitee's service to the Company;
WHEREAS, the Certificate of Incorporation and Bylaws of the company provide
that the Company shall indemnify and advance expenses to all directors and
officers of the Company int he manner set forth therein; and
WHEREAS, the parties believe it appropriate to memorialize and reaffirm the
Company's indemnification obligations to Indemnitee and, in addition, set forth
the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties agree as follows:
1. INDEMNIFICATION. Indemnitee shall be indemnified and held harmless by
the Company to the fullest extent permitted by the Minnesota Business
Corporation Act (the "MBCA") in effect on the date hereof, and to such greater
extent as applicable law may thereafter permit, against all judgments,
penalties, fines, including, without limitation, excise taxes assessed against
the Indemnitee with respect to an employee benefit plan, settlements, and
reasonable expenses, including attorneys' fees and disbursements, incurred or
suffered by Indemnitee in connection with any present or future threatened,
pending or contemplated Proceeding, as such term is defined in Section 302A.521
of the MBCA, to which Indemnitee is or was a party or is threatened to be made a
party (i) by reason of any action or inaction in Indemnitee's capacity as a
director or officer of the company, or (ii) with respect to which Indemnitee is
otherwise involved by reason of the fact that Indemnitee is or was serving as a
director, officer, employee or agent of the Company, or of any subsidiary or
division, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise.
2. ADVANCEMENT OF EXPENSES. In the event of any threatened or pending
Proceeding in which Indemnitee is or may in the future be a party or is or may
in the future be involved and that may give rise to a right of indemnification
under this Agreement, following written request to the Company by Indemnitee
pursuant to Section 302A.521, Subdivision 3, of the MBCA, the Company shall
promptly pay to Indemnitee amounts to cover reasonable expenses, including
attorneys' fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or being or
preparing to be a witness in a Proceeding, incurred by Indemnitee in such
Proceeding in advance of its final disposition upon the receipt by the Company
of (i) a written undertaking (a copy of which is attached hereto as an exhibit)
executed by or on behalf of Indemnitee providing that Indemnitee will repay the
advance if it shall ultimately be determined by a final, non-appealable order of
a court of competent jurisdiction that Indemnitee is not entitled to be
indemnified by the Company as provided in this Agreement and (ii) reasonable
evidence as to the amount of such expenses and, (iii) pursuant to Section
302A.521, Subdivision 3(b) of the MBCA, after a determination by the Board of
Directors of the Company that the facts then known to those making the
determination would not preclude indemnification under Section 302A.521 of the
MBCA.
3. NON-EXCLUSIVITY OF RIGHTS. the rights of indemnification and
advancement of Expenses provided by this Agreement shall not be deemed exclusive
of or excluded by any other rights to which Indemnitee may at any time be
entitled to under applicable law, the Company's Certificate of Incorporation,
the Company's Bylaws, any agreement, a vote of stockholders or a resolution of
directors or otherwise. No amendment, alteration or repeal of this Agreement or
any provision hereof shall be effective as to any Indemnitee for acts, events
and circumstances that occurred, in whole or in part, before such amendment,
alteration or repeal. The provisions of this Agreement shall continue as to an
Indemnitee whose employment by the Company has ceased for any reason and shall
inure to the benefit of his heirs, executors and administrators.
4. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Minnesota, without giving effect to
conflicts of laws principles thereof.
5. ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto.
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6. AMENDMENT. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, only by a written instrument duly executed
by the parties hereto.
7. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to its subject matter.
8. COUNTERPARTS. This Agreement may be executed simultaneously in two
more identical counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
INDEMNITOR: INDEMNITEE
OLYMPIC FINANCIAL LTD.
By:
--------------------------- --------------------------------
Name:
Title:
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EXHIBIT A
UNDERTAKING AGREEMENT
This UNDERTAKING AGREEMENT, is made on ___________, 19__, between
OLYMPIC FINANCIAL LTD., a Minnesota corporation (the "Company"), or its
successor or assignee in the event of a change of control of the Company, and
____________ ("Indemnitee"), an officer and/or member of the Board of Directors
of the Company.
WHEREAS, Indemnitee may become involved in investigations, claims,
actions, suits or proceedings which have arisen or may arise in the future as a
result of Indemnitee's service to the Company; and
WHEREAS, Indemnitee desires that the Company pay any and all expenses
(including, but not limited to, attorney's fees and court costs) actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in defending or
investigating any such suits or claims and that such payment be made in advance
of the final disposition of such investigations, claims, actions, suits or
proceedings to the extent that Indemnitee has not been previously reimburse by
insurance; and
WHEREAS, the Company is willing to take such payments but, in
accordance with 302A.521 of the Business Company Act of the State of Minnesota,
the Company may make such payments only if it receives an undertaking to repay
from the Indemnitee; and
WHEREAS, the Company is willing to take such payments but, in
accordance with 302A.521 of the Business Company Act of the State of Minnesota,
the Company may make such payments only if it receives an undertaking to repay
from the Indemnitee; and;
WHEREAS, Indemnitee is willing to give such an undertaking;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. In regard to any payments made by the Company to Indemnitee
pursuant to the terms of the Indemnification Agreement dated _________, 1996,
between the Company and Indemnitee, Indemnitee hereby undertakes and agrees to
repay to the Company any and all amounts so paid promptly and in any event
within thirty (30) days after the disposition, including any appeals, of any
litigation or threatened litigation on account of which payments were made, but
only to the extent that Indemnitee is ultimately found not entitled to be
indemnified by the
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Company under the Bylaws of the Company and Section 302A.521 of the Business
Company Act of the State of Minnesota (the "MBCA"), or other applicable law.
2. In accordance with Section 302A.521, Subdivision 3(a), of the
MBCA, Indemnitee hereby expressly affirms that in its good faith belief the
criteria for indemnification set forth in Section 302A.521, Subdivision 2, of
the MBCA have been satisfied.
3. This agreement shall not affect in any manner rights which
Indemnitee may have against the Company, any insurer or any other person to seek
indemnification for or reimbursement of any expenses referred to herein or any
judgment which may be rendered in any litigation or proceeding.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first written above.
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