COLUMBIA SPORTSWEAR COMPANY
INDEMNITY AGREEMENT
This Indemnity Agreement is made as of __________ ___, 1997 by and between
Columbia Sportswear Company, an Oregon corporation (the "Company"), and
_________________ ("Indemnitee"), a director of the Company.
RECITALS
A. It is essential to the Company to retain and attract as directors the
most capable persons available.
B. Corporate litigation subjects directors to expensive litigation risks at
the same time that adequate coverage of directors' and officers' liability
insurance may be unavailable.
C. The Restated Articles of Incorporation of the Company (the "Articles")
require indemnification of the directors of the Company to the fullest extent
not prohibited by law. The Articles and the Oregon Business Corporation Act, as
amended (the "Act"), expressly provide that the indemnification provisions set
forth in the Act are not exclusive, and thereby contemplate that contracts may
be entered into between the Company and members of the Board of Directors with
respect to indemnification of directors.
D. Indemnitee does not regard the protection available under the Company's
Articles and insurance adequate in the present circumstances, and may not be
willing to serve as a director without adequate protection, and the Company
desires Indemnitee to serve in such capacity.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and mutual agreements set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as a
director of the Company for so long as Indemnitee is duly elected or appointed
or until such time as Indemnitee tenders a resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" includes any threatened, pending or
completed action, suit or proceeding, whether brought in the right of the
Company or otherwise, whether of a civil, criminal, administrative or
investigative nature, and whether formal or informal, in which Indemnitee may be
or may have been involved as a party or otherwise, by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Company, or
is or was serving at the Company's request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, whether or not serving in that capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.
(b) The term "Expenses" includes, without limitation, expenses of
investigations, judicial or administrative proceedings or appeals, amounts paid
in settlement by Indemnitee, attorneys' fees and disbursements and any expenses
of establishing a right to indemnification under this Agreement, but shall not
include the amount of judgments or fines against Indemnitee.
(c) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise tax assessed with respect to any
employee benefit plan; references to "serving at the Company's request" include
any service as a director, officer, employee or agent of the Company which
imposes duties on, or involves services by, that director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner reasonably
believed to be in the interest of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Company" as
referred to in this Agreement.
3. Indemnity in Third-Party Proceedings. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is
a party to or threatened to be made a party to any Proceeding (other than a
Proceeding by or in the right of the Company to procure a judgment in its favor)
against all Expenses, judgments and fines actually and reasonably incurred by
Indemnitee in connection with the Proceeding, but only if Indemnitee acted in
good faith and in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company and, in the case of a criminal
proceeding, in addition, had no reasonable cause to believe that Indemnitee's
conduct was unlawful. The termination of any such Proceeding by judgment, order
of court, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably believed to be in
the best interests of the Company, and with respect to any criminal proceeding,
that Indemnitee had reasonable cause to believe that Indemnitee's conduct was
unlawful.
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Pursuant to this Agreement, the Company specifically will, and hereby does,
indemnify, to the fullest extent permitted by law, Indemnitee against any and
all losses, claims, damages, liabilities and expenses, joint or several (or
actions or proceedings, whether commenced or threatened, in respect thereof), to
which Indemnitee may become subject, as a result of serving as a director of the
Company, under the Securities Act of 1933, as amended, or any other statute or
common law, including any amount paid in settlement of any litigation, commenced
or threatened, and to reimburse Indemnitee for any legal or other expenses
incurred by Indemnitee in connection with investigating any claims and defending
any actions, insofar as any such losses, claims, damages, liabilities, expenses
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact regarding the Company, or the omission or alleged
omission to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
4. Indemnity in Proceedings By or In the Right of the Company. The Company
shall indemnify Indemnitee in accordance with the provisions of this Section 4
if Indemnitee is a party to or threatened to be made a party to any Proceeding
by or in the right of the Company to procure a judgment in its favor against all
Expenses actually and reasonably incurred by Indemnitee in connection with the
defense or settlement of the Proceeding, but only if Indemnitee acted in good
faith and in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification for
Expenses shall be made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a court to be
liable for negligence or misconduct in the performance of Indemnitee's duty to
the Company, unless and only to the extent that any court in which the
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity.
5. Indemnification of Expenses of Successful Party. Notwithstanding any
other provisions of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein, including the dismissal of an
action without prejudice, Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred in connection therewith.
6. Advances of Expenses. The Expenses incurred by Indemnitee pursuant to
Sections 3, 4 and 8 in any Proceeding shall be paid by the Company in advance if
Indemnitee (i) in writing shall undertake to repay such amount to the extent it
is ultimately determined that Indemnitee did not meet the standard of conduct
required for indemnification and (ii) shall furnish the Company a written
affirmation of the Indemnitee's good faith belief that Indemnitee is entitled to
be indemnified by the Company under this Agreement. Such expenses shall be paid
no later than 45 days after receipt of Indemnitee's written request, unless a
determination is made within that 45-day
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period by (a) the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to such proceeding, or (b) independent legal
counsel in a written opinion (which counsel shall be appointed if a quorum is
not obtainable), that the Indemnitee has not met the relevant standards for
indemnification set forth in Section 3, 4 or 8 or an exclusion set forth in
Section 9 is applicable.
7. Board Authorization of Indemnification. Except with respect to Expenses
advanced pursuant to Section 6, indemnification pursuant to this Agreement shall
be made only upon a determination by the Board of Directors that indemnification
is permissible in the circumstances because the Indemnitee has met the standards
of conduct described herein or otherwise required by the Act.
8. Additional Indemnification.
(a) Notwithstanding any limitation in Section 3 or 4, the Company
shall indemnify Indemnitee in accordance with the provisions of this Section
8(a) to the fullest extent permitted by law if Indemnitee is a party to or
threatened to be made a party to any Proceeding (including a Proceeding by or in
the right of the Company to procure a judgment in its favor) involving a claim
against Indemnitee for breach of fiduciary duty by Indemnitee, against all
Expenses, judgments and fines actually and reasonably incurred by Indemnitee in
connection with the Proceeding, provided that no indemnity shall be made under
this Section 8(a) (1) on account of Indemnitee's conduct which (i) constitutes a
breach of Indemnitee's duty of loyalty to the Company or its shareholders, (ii)
is an act or omission not in good faith or which involves intentional misconduct
or a knowing violation of the law, or (iii) results in Indemnitee being adjudged
liable to the Company, or (2) with respect to an unlawful distribution under ORS
60.367.
(b) Notwithstanding any limitation in Section 3, 4 or 8(a), the
Company shall indemnify Indemnitee if Indemnitee is a party to or threatened to
be made a party to any Proceeding (including a Proceeding by or in the right of
the Company to procure a judgment in its favor) against all Expenses, judgments
and fines actually and reasonably incurred by Indemnitee in connection with the
Proceeding to the fullest extent permitted by the Act, including the
nonexclusivity provision of ORS 60.414(1) and any successor provision and
including any amendments to the Act adopted after the date hereof that may
increase the extent to which a corporation may indemnify its directors.
(c) The indemnification provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Articles, Bylaws, any other agreement, any vote of shareholders or directors,
the Act or otherwise, both as to action in Indemnitee's official capacity or as
to action in another capacity while holding that office. The indemnification
under this Agreement shall continue as to Indemnitee even though Indemnitee may
have ceased to be a director and shall inure to the benefit of Indemnitee's
heirs and personal representatives.
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9. Exclusions. Notwithstanding any provision in this Agreement, the Company
shall not be obligated to make any indemnification or advances of expenses in
connection with any claim made against Indemnitee:
(a) For which payment is required to be made to or on behalf of
Indemnitee under any insurance policy, except with respect to any excess beyond
the amount of required payment under such policy, unless payment under such
insurance policy is not made after reasonable effort by Indemnitee to obtain
payment. The Company shall be subrogated with respect to any other rights of
Indemnitee with respect to any payment made by the Company or on behalf of the
Company under this Agreement;
(b) For any transaction from which Indemnitee derived an improper
personal benefit; or
(c) For an accounting of profits made from the purchase and sale by
Indemnitee of securities of the Company within the meaning of Section 16(b) of
the Securities Exchange Act of 1934, as amended, or similar provisions of any
state statutory law or common law.
10. Partial Indemnification. If Indemnitee is entitled under any provisions
of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments and fines actually and reasonably incurred by Indemnitee in
the investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of those Expenses, judgments or fines to which
Indemnitee is entitled.
11. Severability. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee as to Expenses, judgments and
fines with respect to any Proceeding to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated or by
any other applicable law.
12. Notices. Indemnitee shall, as a condition precedent to Indemnitee's
right to be indemnified under this Agreement, give the Company written notice as
soon as practicable of any claim made against Indemnitee for which indemnity
will or could be sought under this Agreement. Notice to the Company shall be
directed to Columbia Sportswear Company, 0000 X. Xxxxxxxxx, Xxxxxxxx, Xxxxxx
00000-0000, Attention: Chief Financial Officer (or such other address as the
Company shall designate in writing to Indemnitee). Notice shall be deemed
received three days after the date postmarked if sent by prepaid mail, properly
addressed. In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power.
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13. Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
15. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Oregon.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the date set forth above.
COLUMBIA SPORTSWEAR COMPANY
By:
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INDEMNITEE
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