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EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this ___ day of _______________, 1997 by and
between BINGHAM FINANCIAL SERVICES CORPORATION, a Michigan corporation (the
"Company"), and ____________________ (the "Indemnitee").
RECITALS:
A. Indemnitee is both a member of the Board of Directors and/or an
executive officer of the Company, and in such capacities is performing a
valuable service for the Company.
B. The Company has adopted Restated Articles of Incorporation (the
"Articles") and Amended and Restated Bylaws (the "Bylaws") authorizing and
directing the Company to indemnify the directors, officers, agents and
employees of the Company to the maximum extent authorized by the Michigan
Business Corporation Act, as amended to date (the "Act").
C. The Act specifically provides that it is not exclusive, and thereby
contemplates that contracts may be entered into between the Company and its
directors, officers, agents and employees with respect to the indemnification
of such persons.
D. Recent developments with respect to the terms and availability of
directors and officers liability insurance ("D&O Insurance") and the
application, amendment and enforcement of statutory and other indemnification
provisions generally have raised questions concerning the adequacy and
reliability of the protection afforded to directors and officers thereby.
E. To resolve such questions and thereby induce Indemnitee to continue to
serve as a member of the Board of Directors of the Company or as an officer, or
both, the Company desires to enter into this contract with Indemnitee.
AGREEMENT
NOW, THEREFORE, in consideration of Indemnitee's continued service with
the Company after the date hereof, the parties agree as follows:
1. D&O Insurance. The Company shall evaluate whether to procure D&O
Insurance, and if it, in its discretion, procures such insurance, it shall
maintain D&O Insurance so long as, in the reasonable business judgment of the
then directors of the Company, both (i) the premium cost for such insurance is
reasonably related to the amount of coverage provided, and (ii) the coverage
provided by such insurance is not so limited by exclusions that insufficient
benefit may be derived therefrom.
2. Indemnity. Subject only to the exclusions set forth in Section 3
hereof, the Company hereby agrees to hold harmless and indemnify Indemnitee, on
demand and as such expenses are incurred, against any and all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee in connection with any
threatened, pending or completed action, suit or proceedings, whether civil,
criminal, administrative or investigative (including an action by or in the
right of the Company) to which Indemnitee is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact that
Indemnitee is, was or at any time becomes a director, officer, employee or
agent of the Company, or is or was serving or at any time serves at the request
of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise to the
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fullest extent authorized and permitted by the provisions of the Act, or by any
amendment thereof or other statutory provisions authorizing or permitting such
indemnification which is adopted after the date hereof.
3. Limitations on Indemnity. No indemnity pursuant to Section 2 hereof
shall be paid by the Company:
(a) except to the extent the aggregate of losses to be indemnified
hereunder exceed the amount of such losses for which Indemnitee is
indemnified pursuant to any D&O Insurance purchased and maintained by the
Company;
(b) in respect to remuneration paid to Indemnitee if a final
decision by a court having jurisdiction in the matter shall determine
that such remuneration was in violation of law;
(c) on account of any suit in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any federal, state or local statutory
law;
(d) if a final decision by a court having jurisdiction in the matter
shall determine that Indemnitee's act or omission involved an act or
omission undertaken with deliberate intent to cause injury to the Company
or undertaken with reckless disregard for the best interests of the
Company;
(e) if a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful; or
(f) if otherwise prohibited by the Act.
4. Continuation of Indemnity. All agreements and obligations of the
Company contained herein shall continue during the period Indemnitee is a
director, officer, employee or agent of the Company (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) and shall
continue thereafter so long as Indemnitee shall be subject to any possible
claim or threatened, pending or completed action, suit or proceeding, whether
civil, criminal or investigative, by reason of the fact that Indemnitee was a
director of the Company or serving in any other capacity referred to herein.
5. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee will, if a claim in respect thereof is to be made against the
Company under this Agreement, notify the Company in writing of the commencement
thereof; but the omission so to notify the Company will not relieve it from any
liability which it may have to Indemnitee otherwise than under this Agreement.
With respect to any such action, suit or proceeding as to which Indemnitee
notifies the Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense.
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(b) Except as otherwise provided below, to the extent that it may
wish, the Company, jointly with any other indemnifying party similarly
notified, will be entitled to assume the defense thereof, with counsel
selected by the Company and reasonably satisfactory to Indemnitee. After
notice from the Company to Indemnitee of its election so to assume the
defense thereof, the Company will not be liable to Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall
have the right to employ counsel in such action, suit or proceeding but
the fees and expenses of such counsel incurred after notice from the
Company of its assumption of the defense thereof shall be at the expense
of Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by 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 or (iii) the
Company shall not in fact have employed counsel to assume the defense of
such action, 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 Indemnitee shall have made
the conclusion provided for in (ii) above and notified the Company or as
to which Indemnitee shall have made the conclusion provided for in (ii)
above and notified the Company of such decision in writing specifying the
reasons therefore.
(c) The Company shall not be liable to indemnify Indemnitee under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any
action or claim in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee's prior written consent.
Neither the Company nor Indemnitee will unreasonably withhold their
consent to any proposed settlement.
6. Repayment of Expenses. Indemnitee agrees that Indemnitee will
reimburse the Company for all reasonable fees and expenses paid by the Company
in defending any civil or criminal action, suit or proceeding against
Indemnitee if and only to the extent that a final decision by a court having
jurisdiction in the matter shall determine that Indemnitee is not entitled to
be indemnified by the Company for such fees and expenses under the provisions
of the Act, the Articles, the Bylaws, this Agreement or otherwise.
7. Enforcement.
(a) The Company expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on the Company
hereby to induce Indemnitee to continue as a director or as an executive
officer of the Company or any of its subsidiaries or an affiliated
company as directed by the Company, and acknowledges that Indemnitee is
relying upon this Agreement in continuing in such capacity.
(b) If Indemnitee is required to bring any action to enforce rights
or to collect moneys due under this Agreement and is successful in such
action, the Company shall reimburse Indemnitee for all of Indemnitee's
reasonable fees and expenses in bringing and pursuing such action.
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8. Severability. Each of the provisions of this Agreement is a separate
and distinct agreement, independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
9. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Michigan applicable to contracts made and
to be wholly performed in such state.
(b) This Agreement shall be binding upon Indemnitee and upon the
Company, its successors and assigns, and shall inure to the benefit of
Indemnitee, his/her heirs, personal representatives and assigns and to
the benefit of the Company, its successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties
hereto.
10. Counterparts. This document may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as of
the day and year first above written.
BINGHAM FINANCIAL SERVICES
CORPORATION, a Michigan corporation
By:______________________________________
Jeffrey P. Jorissen, President
_________________________________________
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