EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, is made and entered into as of this ____ day of
________, 2001, by and between Check Technology Corporation, a Minnesota
corporation (the "Company"), and (the "Indemnified Party").
WITNESSETH:
WHEREAS, the Indemnified Party is a member of the Board of Directors
and/or an executive officer of the Company.
WHEREAS, it will be difficult to retain directors and executive
officers of the Company unless such persons are adequately indemnified against
liabilities incurred and claims made in connection with or arising out of the
performance of their duties as directors and/or executive officers of the
Company;
WHEREAS, to induce the Indemnified Party to serve and to continue to
serve as a member of the Board of Directors and/or executive officer of the
Company, the Company has determined that it is in its best interests to assure
the Indemnified Party of the protection currently provided by the Articles, the
Bylaws and to provide indemnification to the fullest extent provided by law.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and the Indemnified Party do hereby covenant and
agree to the foregoing as follows:
1. Indemnification. The Company agrees to indemnify the Indemnified
Party both during and after the time that such Indemnified Party shall have
served the Company as a director, officer or employee, or of any other
enterprise at the request of the Company, and the heirs, executors and
administrators of such Indemnified Party shall also be indemnified by the
Company, all in accordance with and to the fullest extent permitted by Minnesota
Statutes, Section 302A.521, as it may be amended from time to time.
2. Amendments. Any amendments to the Articles or Bylaws of the Company
which reduce or eliminate indemnification rights of persons thereunder shall
have no effect with respect to this Agreement, and thereafter Indemnified Party
shall continue to have all of the rights and benefits of this Agreement despite
any such amendments. However, if the Articles or Bylaws of the Company, or the
Minnesota Statutes, are amended to provide for greater indemnification rights or
privileges, this Agreement shall not be construed so as to limit Indemnified
Party's rights and privileges to the terms hereof and Indemnified Party shall be
entitled to the full benefit of any such additional rights and privileges.
Furthermore, to the extent that the Minnesota Statutes or other applicable law
now or hereafter establishes that indemnification cannot be made by the Company
according to this Agreement in any respect, this Agreement shall be interpreted
as being simultaneously amended to provide indemnification hereunder to the
fullest extent permitted by law.
3. Advances. The Company agrees to make payments or reimbursements to
the Indemnified Party for the reasonable expenses, including attorneys' fees and
disbursements, incurred by the Indemnified Party in advance of the final
disposition of any proceeding to which the Indemnified Party is or is threatened
to be made a party. The Company's obligation to make such advances shall be
subject only to receipt by the Company of a written affirmation by the
Indemnified Party of a good faith belief that the criteria for indemnification
set forth in the Company's Articles or Bylaws, or the Minnesota Statutes, have
been satisfied, together with a written undertaking by the Indemnified Party to
repay all amounts so paid or reimbursed by the Company, if it is ultimately
determined that the criteria for indemnification have not been satisfied. The
Company agrees that the undertaking set forth above need not be secured and
shall be accepted without reference to financial ability on the part of the
Indemnified Party or such Indemnified Party's estate, heirs, executor's or
administrator's financial ability to make the repayment. The Company further
agrees, in those instances where a determination of eligibility for
indemnification or reimbursement of expenses in advance of the final disposition
of a proceeding shall be made, that the person or persons making such
determination shall, to the extent permissible in accordance with law, be
instructed to resolve doubts or uncertainties with respect to the making of such
determination in favor of the Indemnified Party, thereby carrying out the intent
of
-1-
the Company's Articles, Bylaws and this Agreement as of the date hereof that the
Indemnified Party be accorded the benefits of the Company's indemnification
promise to the fullest extent permitted by law.
4. Notice. The Company agrees to provide the Indemnified Party with
prompt notice of any proposal to amend, modify or eliminate the provisions of
the Company's Articles or Bylaws relating to indemnification or the elimination
or limitation of the Indemnified Party's personal liability. The Company further
agrees that in the event any such amendments are adopted, copies of same will be
provided to the Indemnified Party and the Indemnified Party shall be given an
opportunity to resign his or her position with the Company prior to a change in
the Company's Articles or Bylaws. Moreover, the Company shall provide notice to
the Indemnified Party in the event a change is adopted in the Minnesota Statutes
or other applicable law relating to indemnification or the elimination or
limitation of a director's personal liability. Any notice referenced above will
be provided to the Indemnified Party whether or not he or she is then serving as
a member of the Company's Board of Directors.
5. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of any and all successors, assigns, heirs, estates,
representatives and administrators of the parties hereto.
6. No Amendments. This Agreement may not be amended, modified or
terminated except by the express written consent thereto by both parties hereto.
7. Other Agreements. This Agreement is supplementary to and not
exclusive of other agreements between the Company and Indemnified Party which
may exist now or in the future, to the extent such agreements are not
inconsistent herewith.
8. Survival. The rights of Indemnified Party under this Agreement shall
survive and continue in effect after the termination of services to the Company
by Indemnified Party, whether by death, retirement or otherwise.
9. Savings. If any provision or application of this Agreement is held
unlawful or unenforceable in any respect, such illegality or unenforceability
shall not affect other provisions or applications which can be given effect, and
this Agreement shall be construed as if the unlawful or unenforceable provision
or application had never been contained herein or prescribed hereby.
10. Governing Law. This Agreement shall be interpreted and governed by
the internal laws of the State of Minnesota without regard to the principles of
conflict of laws of any jurisdiction.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date set forth above.
CHECK TECHNOLOGY CORPORATION
By
---------------------------- ----------------------------------
Indemnified Party
Its
---------------------------------
-2-
