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Exhibit 10.2
FORM OF INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this 10th day of August 1999, between INTERIM SERVICES
INC., a Delaware corporation (the "Company"), and ____________________(the
"Director").
WITNESSETH THAT:
WHEREAS, the Director is a member of the Board of Directors of the
Company and in such capacity is performing a valuable service for the
Company; and
WHEREAS, Section 145 of the Delaware General Corporation Law, as
amended to date (the "State Statute"), contemplates that contracts may
be entered into between the Company and the members of its Board of
Directors with respect to indemnification of such directors; and
WHEREAS, in order to induce the Director to serve and continue to serve
as a member of the Board of Directors of the Company, the Company has
determined and agreed to enter into this Agreement with the Director;
NOW THEREFORE, in consideration of the Director's service and continued
service as a director of the Company after the date hereof, the parties
hereto agree as follows:
1. INDEMNITY OF THE DIRECTOR. Subject only to the exclusions set forth in
Section 3 hereof, the Company hereby agrees as follows:
(a) To hold harmless and indemnify the Director against any and all
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the Director in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) to which
the Director is, was or at any time becomes a party, or is threatened
to be made a party, by reason of the fact that the Director 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, if
the Director acted in good faith and in a manner the Director
reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding
had no reasonable cause to believe the Director's conduct was unlawful;
except that no indemnification shall be made in respect of any claim,
issue or matter as to which the Director shall have been adjudged to be
liable to the Company unless (and only to the extent that) the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, the Director is
fairly and reasonably
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entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(b) Otherwise to hold harmless and indemnify the Director to the
fullest extent as may be provided to the Director by the Company under
the provisions of the State Statute.
(c) To pay the Director, or such person or entity as the Director may
designate, on a continuing and current basis (and in any event not
later than thirty (30) business days following receipt by the Company
of the Director's request for reimbursement) all expenses (including
attorneys' fees), costs, fines, etc. actually and reasonably incurred
by or levied upon the Director in connection with any action, suit or
proceeding that is indemnifiable under the provisions of this
Agreement.
2. MAINTENANCE OF INSURANCE AND SELF INSURANCE. The Company may, but shall not
be required to, purchase or maintain policies of directors' and officers'
insurance. The maintenance of such insurance shall not diminish, relieve or
replace the Company's liability for indemnification under the provisions of the
State Statute, the Company's Certificate of Incorporation, By-Laws or this
Agreement. The Director's claim for reimbursement in advance of final
disposition of an action, suit or proceeding, of expenses which may be
indemnifiable under the provisions of the State Statute, the Company's
Certificate of Incorporation, By-Laws or this Agreement and payable in advance
of final disposition of an action pursuant to Subsection (e) of the State
Statute, the Company's Certificate of Incorporation, By-Laws, or Section 1(c) of
this Agreement shall not be denied on the basis that such amount may or will be
covered by any policy of insurance, if such payments from the insurance company
will not be made to the Director within ten (10) business days of such
Director's claim for reimbursement.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. The Company shall be entitled to
reimbursement from the Director for all monies paid to the Director as
indemnification pursuant to this Agreement under the following circumstances:
(a) To the extent of any costs or expenses the Director is actually
reimbursed pursuant to any Insurance Policies purchased and maintained
by the Company pursuant to Section 2 hereof;
(b) If it is determined by a final judgment or other final adjudication
by a court of competent jurisdiction considering the question of
indemnification of the Director that such payment of indemnification is
or would be in violation of applicable law or the Company's Certificate
of Incorporation;
(c) On account of any suit in which judgment is rendered against the
Director for any accounting profits made from the purchase and sale or
sale and purchase by the Director of securities of the Company pursuant
to the provisions of Section 16(b) of the Securities Exchange of 1934,
as amended;
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(d) If the Director's conduct is finally adjudged by a court of
competent jurisdiction to have been knowingly fraudulent, deliberately
dishonest or to constitute willful misconduct; and
(e) If it is finally determined by a court of competent jurisdiction
considering the question that the Director's decision to employ
independent legal counsel, pursuant to Section 5(b)(ii) hereof, was not
based on a "reasonable" conclusion that there was a conflict of
interest between the Company and the Director.
4. CONTINUATION OF INDEMNITY. All agreements and obligations of the Company
contained herein shall continue during the period the Director 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 the Director is 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 the Director 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 the Director of
notice of the commencement of any action, suit or proceeding, the Director will,
if a claim in respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement thereof; the failure to
promptly notify the Company will not relieve the Company from any liability that
it may have to the Director hereunder, except to the extent the Company is
prejudiced in its defense of such claim as a result of such failure. Unless
otherwise requested by the Company's Board of Directors (the "Board"), written
notification shall not be necessary if the Director informs a majority of the
Board of the commencement of any such action, or, independent of such
notification by the Director, a majority of the Board has reason to believe such
action has been initiated or threatened. With respect to any such action, suit
or proceeding as to which the Director notifies (or is deemed to have notified)
the Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense;
(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
reasonably satisfactory to the Director. Subject to the provision
below, after notice from the Company to the Director of its election to
assume the defense thereof, the Company will not be liable to the
Director under this Agreement for any legal or other expenses
subsequently incurred by the Director in connection with the defense
thereof other than reasonable costs of investigation or as otherwise
provided below. The Director shall have the right to employ his or her
own 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 the
Director unless (i) the employment of counsel by the Director has been
authorized by the Company, (ii) the Director reasonably concludes that
there may be
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a conflict of interest between the Company and the Director in the
conduct of the defense of such action and that such conflict may lead
to liability for the Director not otherwise indemnifiable under the
provisions of this Agreement and notifies the Company of such
conclusion and decision to employ separate counsel, or (iii) the
Company fails to employ counsel to assume the defense of such action,
in each case 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 the Director reasonably makes the conclusion
provided for in (ii) above; and
(c) The Company shall not be liable to indemnify the Director 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 the Director without the Director's written consent.
Neither the Company nor the Director will unreasonably withhold their
consent to any proposed settlement.
6. REPAYMENT OF EXPENSES. The Director agrees that he or she will reimburse the
Company for all reasonable expenses paid by the Company in defending any civil
or criminal action, suit or proceeding against him or her in the event and only
to the extent that it is ultimately determined by a court of competent
jurisdiction considering the question that the Director is not entitled to be
indemnified by the Company for such expenses under the provisions of the State
Statute, the Company's Certification of Incorporation, By-Laws, 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 in order to induce the Director to serve or continue to serve as
a director of the Company, and acknowledges that the Director is
relying upon this Agreement in continuing in such capacity.
(b) In the event the Director 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 the Director for
all of the Director's reasonable fees and expenses (including
attorneys' fees) in bringing and pursuing such action.
8. SEPARABILITY. Each of the provisions of this Agreement is a separate and
distinct agreement and 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.
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9. MISCELLANEOUS.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Delaware.
(b) This Agreement shall be binding upon the Director and upon the
Company, its successors and assigns, and shall inure to the benefit of
the Director, the Director's heirs, personal representatives and
assigns and to the benefit of the Company, its successor and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties
hereto.
(d) This Agreement shall supersede all prior agreements regarding the
same subject matter effective beginning on the date hereof.
IN WITNESS WHEREOF, the parties hereto executed this Agreement on and as of the
day and year first above written.
COMPANY:
DIRECTOR: INTERIM SERVICES INC.
By:
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President and CEO
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