EXHIBIT 10.2
INDEMNITY AGREEMENT
This agreement is made as of the ____ day of _____________, 19__,
between Fleetwood Enterprises, Inc., a Delaware corporation (the
"Corporation"), and the undersigned ("Agent"), with reference to the
following facts:
RECITALS
A. The Agent is currently serving as an Officer of the Corporation and
the Corporation wishes the Agent to continue in such capacity.
The Agent is willing under certain circumstances, to continue in such
capacity.
B. The Corporation and the Agent are of the belief that the indemnities
available under the Corporation's bylaws and available insurance may
not be adequate to protect the Agent against the risks associated with
the Agent's service to the Corporation.
AGREEMENT
In order to induce the Agent to continue to serve as an Officer of the
Corporation and in consideration for his continued service, the Corporation
hereby agrees to indemnify the Agent as follows:
1. The Corporation will pay on behalf of the Agent, and his
executors, administrators or assigns, any amount which he
is or becomes legally obligated to pay because of any claim or
claims made against him because of any act or omission or
neglect or breach of duty, including any actual or alleged
error or misstatement or misleading statement, which he commits
or suffers while acting in his capacity as an Officer of the
Corporation and solely because of his being an Officer. The
payments which the Corporation will be obligated to make
hereunder shall include, inter alia, damages, judgments,
settlements and costs, cost of investigation (excluding
salaries of officers or employees of the Corporation) and costs
of defense of legal actions, claims or proceedings and appeals
therefrom, and costs of attachment or similar bonds; provided
however, that the Corporation shall not be obligated to pay
fines or obligations or fees imposed by law or otherwise made
any payments hereunder which it is prohibited by applicable law
from paying as indemnity or for any other reason.
2. If a Claim under this Agreement is not paid by the Corporation,
or on its behalf, within ninety days after a written claim has
been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and if successful in whole or in
part, the claimant shall be entitled to be paid also the
expense of prosecuting such claim.
3. In the event of payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the
rights of recovery of the Agent, who shall execute all papers
required and shall do everything that may be necessary to secure
such rights, including the execution of such documents necessary
to enable the Corporation effectively to bring suit to enforce
such rights.
4. The Corporation shall not be liable under this Agreement to make
any payment in connection with any claim made against the Agent:
(a) for which payment is actually made to the Agent under a
valid and collective insurance policy, except in respect of
any excess beyond the amount of payment under such
insurance;
(b) for which the Agent is entitled to indemnity and/or payment
by reason of having given notice of any circumstance which
might give rise to a claim under any policy of insurance,
the terms of which have expired prior to the effective date
of this Agreement;
(c) for which the Agent is indemnified by the Corporation
otherwise than pursuant to this Agreement;
(d) based upon or attributable to the Agent gaining in fact any
personal profit or advantage to which he was not legally
entitled;
(e) for an accounting of profits made from the purchase or sale
by the Agent of securities of the Corporation within the
meaning of Section 16(b) of the Securities Exchange Act of
1934 and amendments thereto or similar provisions of any
state statutory law or common law; or
(f) brought about or contributed to by the dishonesty of the
Agent seeking payment hereunder; however, notwithstanding
the foregoing, the Agent shall be protected under this
Agreement as to any claims upon which suit may be brought
against him by reason of any alleged dishonesty on his
part, unless a judgment or other final adjudication thereof
adverse to the Agent shall establish that he committed (i)
acts of active and deliberate dishonesty (ii) with actual
dishonest purpose and intent, which acts were material to
the cause of action so adjudicated.
5. No costs, charges or expense for which indemnity shall be sought
hereunder shall be incurred without the Corporation's consent,
which consent shall not be unseasonably withheld.
6. The Agent, as a condition precedent to his right to be
indemnified under this Agreement, shall give the Corporation
notice in writing as soon as practicable for any claim made
against him for which indemnity will or could be sought under
this Agreement. Notice to the Corporation shall be directed to
the Corporation at its Corporate Headquarters, attention: The
Corporate Secretary (or such address as to the Corporation shall
designate in writing to the Agent); notice shall be deemed
received if sent by prepaid mail properly addressed, the date of
such notice being the date postmarked. In addition, the Agent
shall give the Corporation such information and cooperation as
it may reasonably require and as shall be within the Agent's
power.
7. Costs and expenses (including attorney's fees) incurred by the
Agent in defending or investigating any action, suit, proceeding
or investigation shall be paid by the Corporation in advance of
the final disposition of such matter, if the Agent shall
undertake in writing to repay any such advances in the event
that it is ultimately determined that the Agent is not entitled
to indemnification under the terms of this Agreement.
Notwithstanding the foregoing or any other provision of this
Agreement, no advance shall be made by the Corporation if a
determination is reasonably and promptly made by the board of
directors by a majority vote of a quorum of disinterested
directors, or (if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs) by
independent legal counsel, that, based upon the facts known to
the board of counsel at the time such determination is made, (a)
the Agent
acted in bad faith or deliberately breached his duty to the
corporation or its stockholders, and (b) as a result of such
actions by the Agent, it is more likely than not that it will
ultimately be determined that the Agent is not entitled to
indemnification under the terms of this Agreement.
8. Nothing herein shall be deemed to diminish or otherwise restrict
the Agent's right to indemnification under any provision of the
certificate of incorporation or bylaws of the Corporation or
under Delaware law.
9. This Agreement shall be governed by and construed in accordance
with Delaware law.
10. This Agreement shall be binding upon all successors and assigns
of the Corporation (including any transferee of all or
substantially all of its assets and any successor by merger or
operation of law) and shall inure to the benefit of the heirs,
personal representatives and estate of the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
FLEETWOOD ENTERPRISES, INC.
By: ________________________________
________________________________
Agent