Exhibit 10.32
FINANCIAL PACIFIC COMPANY
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT FINANCIAL PACIFIC COMPANY
CONTENTS
1. Indemnification of Indemnitee...................................................... 1
1.1 Scope..................................................................... 1
1.2 Nonexclusivity............................................................ 2
1.3 Indemnification For Damages............................................... 2
1.4 Definition of Proceeding.................................................. 2
1.5 Determination of Entitlement.............................................. 2
1.6 Survival.................................................................. 3
2. Expense Advances................................................................... 3
2.1 Generally................................................................. 3
2.2 Conditions to Expense Advance............................................. 3
3. Procedures for Enforcement......................................................... 4
3.1 Enforcement............................................................... 4
3.2 Presumptions in Enforcement Action........................................ 4
3.3 Attorneys' Fees and Expenses for Enforcement Action....................... 4
4. Limitations on Indemnity; Mutual Acknowledgment.................................... 5
4.1 Limitation on Indemnity................................................... 5
4.2 Partial Indemnification................................................... 5
4.3 Mutual Acknowledgment..................................................... 5
5. Notification and Defense of Claim.................................................. 6
5.1 Notification.............................................................. 6
5.2 Defense of Claim.......................................................... 6
6. Miscellaneous...................................................................... 7
6.1 Entire Agreement.......................................................... 7
6.2 Severability.............................................................. 7
6.3 Notices................................................................... 7
6.4 Governing Law; Jurisdiction; Venue........................................ 7
6.5 Counterparts.............................................................. 7
6.6 Amendments; Waivers....................................................... 7
6.7 Successors and Assigns.................................................... 8
INDEMNIFICATION AGREEMENT FINANCIAL PACIFIC COMPANY
FINANCIAL PACIFIC COMPANY
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("AGREEMENT") dated as of __________ __,
2001 is made between Financial Pacific Company, a Washington corporation (the
"COMPANY"), and ____________________ ("INDEMNITEE").
RECITALS
A. The Company and Indemnitee recognize the difficulty in obtaining
liability insurance for directors and the significant cost of such insurance.
B. The Company and Indemnitee further recognize the substantial
increase in litigation subjecting directors to expensive litigation risks at the
same time that such liability insurance has been severely limited.
C. The shareholders of the Company have adopted bylaws (the "BYLAWS")
providing for indemnification of the directors of the Company to the full extent
permitted by the Washington Business Corporation Act (the "STATUTE").
D. The Bylaws and the Statute specifically contemplate that contracts
may be entered into between the Company and its directors with respect to their
indemnification.
E. To induce Indemnitee to accept the position of, or to continue to
serve as a director, as the case may be, of the Company, the Company has agreed
to enter into this Agreement with Indemnitee.
AGREEMENT
1. INDEMNIFICATION OF INDEMNITEE
1.1 SCOPE
The Company agrees to hold harmless and indemnify Indemnitee to the full
extent permitted by law, even if such indemnification is not specifically
authorized by this Agreement, the Company's Articles of Incorporation, the
Bylaws, the Statute or otherwise. In the event of any change, after the date of
this Agreement, in any applicable law, statute or rule regarding the right of a
Washington corporation to indemnify a director, such change, to the extent it
would expand Indemnitee's rights under this Agreement, shall be within the
purview of Indemnitee's rights and the Company's obligations under this
Agreement, and, to the extent it would narrow Indemnitee's rights hereunder,
shall not affect or limit the scope of this Agreement; provided, however, that
any change required by applicable laws, statutes or
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rules to be applied to this Agreement shall be so applied regardless of whether
the effect of such change is to narrow Indemnitee's rights.
1.2 NONEXCLUSIVITY
The indemnification provided by this Agreement is not exclusive of any
rights to which Indemnitee may be entitled under the Company's Articles of
Incorporation, the Bylaws, any other agreement, any vote of shareholders or
disinterested directors, the Statute, or otherwise, whether as to action in
Indemnitee's official capacity or otherwise.
1.3 INDEMNIFICATION FOR DAMAGES
If Indemnitee was or is made a party, or is threatened to be made a party
to, or is otherwise involved (including, without limitation, as a witness) in
any Proceeding (as defined below), the Company shall hold harmless and indemnify
Indemnitee from and against any and all losses, claims, damages (compensatory,
exemplary, punitive or otherwise), liabilities and expenses (including, but not
limited to, attorneys' fees, costs, judgments, fines, ERISA excise taxes or
penalties, amounts paid in settlement and other expenses incurred in connection
with such Proceeding) (collectively, "DAMAGES").
1.4 DEFINITION OF PROCEEDING
For purposes of this Agreement, "PROCEEDING" shall mean any threatened,
pending or completed action, suit, claim or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, in which
Indemnitee is, was or becomes involved by reason of the fact that Indemnitee is
or was a director of the Company or that, being or having been such a director,
Indemnitee is or was serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(collectively a "RELATED COMPANY"), whether the basis of such proceeding is
alleged action (or inaction) by Indemnitee in an official capacity or in any
other capacity while serving as a director, officer, partner, trustee, employee
or agent; provided, however, that, except with respect to an action to enforce
the provisions of this Agreement, "Proceeding" shall not include any action,
suit, claim or proceeding instituted by or at the direction of Indemnitee unless
such action, suit, claim or proceeding is or was authorized or ratified by the
Company's Board of Directors.
1.5 DETERMINATION OF ENTITLEMENT
In the event that a determination of Indemnitee's entitlement to
indemnification is required pursuant to Section 23B.08.550 of the Statute or its
successor or pursuant to other applicable law, the appropriate decision-maker
shall make such determination; provided, however, (a) that Indemnitee shall
initially be presumed in all cases to be entitled to indemnification, (b) that
Indemnitee may establish a conclusive presumption of any fact necessary to such
a determination by delivering to the Company a declaration made under penalty of
perjury that such fact is true, and (c) that, unless the Company shall deliver
to
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Indemnitee written notice of a determination that Indemnitee is not entitled to
indemnification within twenty (20) days of the Company's receipt of Indemnitee's
initial written request for indemnification, such determination shall
conclusively be deemed to have been made in favor of the Company's provision of
indemnification and the Company agrees not to assert otherwise.
1.6 SURVIVAL
The indemnification provided under this Agreement shall apply to any and
all Proceedings, notwithstanding that Indemnitee has ceased to be a director of
the Company or a director, officer, partner, trustee, employee or agent of a
Related Company.
2. EXPENSE ADVANCES
2.1 GENERALLY
The right to indemnification of Damages conferred by Section 1 shall
include the right to have the Company pay Indemnitee's expenses in any
Proceeding as such expenses are incurred and in advance of such Proceeding's
final disposition (such right is referred to hereinafter as an "EXPENSE
ADVANCE").
2.2 CONDITIONS TO EXPENSE ADVANCE
The Company's obligation to provide an Expense Advance is subject to the
following conditions:
(a) If the Proceeding arose in connection with Indemnitee's service as a
director or officer of the Company (and not in any other capacity in which
Indemnitee rendered service, including service to any Related Company), then
Indemnitee or his or her representative shall have executed and delivered to the
Company an undertaking, which need not be secured and shall be accepted without
reference to Indemnitee's financial ability to make repayment, by or on behalf
of Indemnitee to repay all Expense Advances if and to the extent that it shall
ultimately be determined by a final, unappealable decision rendered by a court
having jurisdiction over the parties and the question that Indemnitee is not
entitled to be indemnified under this Agreement or otherwise;
(b) Indemnitee shall give the Company such information and cooperation
as it may reasonably request and as shall be within Indemnitee's power; and
(c) Indemnitee shall furnish, upon request by the Company, a written
affirmation of Indemnitee's good faith belief that any applicable standards of
conduct have been met by Indemnitee.
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3. PROCEDURES FOR ENFORCEMENT
3.1 ENFORCEMENT
In the event that a claim for indemnity, an Expense Advance or otherwise
is made and is not paid in full within sixty (60) days (thirty (30) days for an
Expense Advance) after written notice of such claim is delivered to the Company,
Indemnitee may, but need not, at any time bring suit against the Company to
recover the unpaid amount of the claim (an "ENFORCEMENT ACTION").
3.2 PRESUMPTIONS IN ENFORCEMENT ACTION
In any Enforcement Action the following presumptions (and limitation on
presumptions) shall apply:
(a) The Company shall conclusively be presumed to have entered
into this Agreement and assumed the obligations imposed on it to induce
Indemnitee to accept the position of, or to continue as director, as the case
may be, of the Company;
(b) Neither (i) the failure of the Company (including its Board of
Directors, independent or special legal counsel or the Company's shareholders)
to have made a determination prior to the commencement of the Enforcement Action
that indemnification of Indemnitee is proper in the circumstances, nor (ii) an
actual determination by the Company, its Board of Directors, independent or
special legal counsel or the shareholders that Indemnitee is not entitled to
indemnification shall be a defense to the Enforcement Action or create a
presumption that Indemnitee is not entitled to indemnification; and
(c) If Indemnitee is or was serving as a director, officer,
employee, or agent of a corporation of which a majority of the shares entitled
to vote in the election of its directors is held by the Company or as a partner,
trustee or otherwise in an executive or management capacity in a partnership,
joint venture, trust, employee benefit plan or other enterprise of which the
Company or a majority owned subsidiary of the Company is a general partner or
has a majority ownership, then such corporation, partnership, joint venture,
trust, employee benefit plan or enterprise shall conclusively be deemed a
Related Company and Indemnitee shall conclusively be deemed to be serving such
Related Company at the request of the Company.
3.3 ATTORNEYS' FEES AND EXPENSES FOR ENFORCEMENT ACTION
In the event Indemnitee is required to bring an Enforcement Action, the
Company shall indemnify and hold harmless Indemnitee against all of Indemnitee's
fees and expenses in bringing and pursuing the Enforcement Action (including
attorneys' fees at any stage, including on appeal); provided, however, that the
Company shall not be required to provide such indemnity for such attorneys' fees
or expenses if a court of competent jurisdiction
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determines that each of the material assertions made by Indemnitee in such
Enforcement Action was not made in good faith or was frivolous.
4. LIMITATIONS ON INDEMNITY; MUTUAL ACKNOWLEDGMENT
4.1 LIMITATION ON INDEMNITY
No indemnity pursuant to this Agreement shall be provided by the Company:
(a) For Damages that have been paid directly to Indemnitee by an
insurance carrier under a policy of insurance maintained by the Company;
(b) On account of Indemnitee's conduct which is finally adjudged
with no further right of appeal to have been intentional misconduct, a knowing
violation of law a violation of RCW 23B.08.310 or any successor provision of the
Statute, or a transaction from which Indemnitee derived personal benefit in
money, property or services to which Indemnitee is not legally entitled;
(c) On account of any suit in which a final, unappealable judgment
is rendered against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company in violation of the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto;
(d) In connection with a proceeding buy or in the right of the
corporation in which the director was adjudged liable to the corporation; or
(e) If a final decision by a court having jurisdiction in the
matter with no further right of appeal shall determine that paying such
indemnification is prohibited by applicable law.
4.2 PARTIAL INDEMNIFICATION
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Damages in
connection with a Proceeding, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion of such
Damages to which Indemnitee is entitled.
4.3 MUTUAL ACKNOWLEDGMENT
The Company and Indemnitee acknowledge that, in certain instances, federal
law or public policy may override applicable state law and prohibit the Company
from indemnifying Indemnitee under this Agreement or otherwise. For example, the
Company and Indemnitee acknowledge that the Securities and Exchange Commission
(the "SEC") has taken the position that indemnification is not permissible for
liabilities arising under certain federal securities laws, and federal
legislation prohibits indemnification for certain ERISA
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violations. Furthermore, Indemnitee understands and acknowledges that the
Company may be required in the future to undertake with the SEC to submit the
question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee.
5. NOTIFICATION AND DEFENSE OF CLAIM
5.1 NOTIFICATION
Promptly after receipt by Indemnitee of notice of the commencement of any
Proceeding, Indemnitee will, if a claim is to be made against the Company under
this Agreement, notify the Company's Chief Executive Officer; but the omission
so to notify the Company will not relieve the Company from any liability which
it may have to Indemnitee under this Agreement unless and only to the extent
that such omission can be shown to have prejudiced the Company's ability to
defend the Proceeding.
If, at the time of the receipt of a notice of a claim pursuant to Section
5.1, the Company has director and officer liability insurance in effect, the
Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies.
The Company shall take all necessary or desirable action to cause such insurers
to pay, on behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies.
5.2 DEFENSE OF CLAIM
With respect to any such Proceeding as to which Indemnitee notifies the
Company of the commencement thereof:
(a) The Company may participate at its own expense;
(b) The Company, jointly with any other indemnifying party
similarly notified, may assume the defense. After notice from the Company to
Indemnitee of its election to assume the defense, the Company shall not be
liable to Indemnitee under this Agreement for any legal or other expenses (other
than reasonable costs of investigation) subsequently incurred by Indemnitee in
connection with the defense unless (i) the employment of separate 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 Indemnitee in the conduct of the defense of such action, (iii) the
Company shall not in fact have employed counsel to assume the defense of such
action, or (iv) the Company is not financially or legally able to perform its
indemnification obligations, in each of which cases the fees and expenses of
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any action, suit or proceeding brought by or
on behalf of the Company or as to which a determination as to matters provided
for in subsection (ii) or (iv) above has been made; and
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(c) The Company shall not settle any action or claim in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent.
6. MISCELLANEOUS
6.1 ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties regarding its
subject matter and supersedes all prior written or oral communications or
agreements.
6.2 SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed as
requiring the Company to do or fail to do any act in violation of applicable
law. The Company's inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable. If this
Agreement or any portion shall be invalidated on any ground by any court of
competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee
to the full extent permitted by any portion of this Agreement not invalidated,
and the balance of this Agreement shall be enforceable in accordance with its
terms.
6.3 NOTICES
Notices given pursuant to this Agreement shall be deemed duly given on the
date of personal delivery, on the date sent by fax or three days after mailing
if mailed by certified or registered mail, return receipt requested, postage
prepaid, to the party at its address set forth on the signature page hereto, or
such other address of which the addressee may subsequently notify the other
parties in writing.
6.4 GOVERNING LAW; JURISDICTION; VENUE
This Agreement and the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the state of
Washington, without giving effect to principles of conflicts of law. The parties
irrevocably consent to the jurisdiction and venue of the state and federal
courts located in King County, Washington in connection with any action relating
to this Agreement.
6.5 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instrument.
6.6 AMENDMENTS; WAIVERS
Neither this Agreement nor any provision may be amended except by written
agreement signed by the parties. No waiver of any breach or default shall be
considered valid
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unless in writing, and no such waiver shall be deemed a waiver of any subsequent
breach or default.
6.7 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the Company and its successors and
assigns, and inure to the benefit of Indemnitee and Indemnitee's heirs, legal
representatives and assigns.
(Signature page follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
COMPANY:
FINANCIAL PACIFIC COMPANY
By:__________________________________________
Title:_____________________________________
Address:
0000 X.000xx Xxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
INDEMNITEE:
_____________________________________________
Printed:_____________________________________
Address:_____________________________________
_____________________________________________
_____________________________________________
_____________________________________________
Telephone:___________________________________
Facsimile:___________________________________
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