EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into as of August 22, 2002, by and between GEVITY HR, INC., a corporation duly
incorporated and existing under the laws of the State of Florida (the
"Corporation"), and Officer and/or Director of the Company ("Indemnitee").
WHEREAS, the Indemnitee is an officer and/or a director of the
Corporation; and
WHEREAS, in its Articles of Incorporation, the Corporation has
obligated itself to provide indemnification to its officers and directors; and
WHEREAS, the parties believe it appropriate to further memorialize and
reaffirm the Corporation's obligation to indemnify the Indemnitee as set forth
in the Articles of Incorporation and as authorized and permitted by law;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. AGREEMENT TO INDEMNIFY.
(a) Except as provided in subsection 1(b) and Section 10
below, the Corporation shall indemnify the Indemnitee against any and
all loss, judgments, fines, bonds, and expenses (including attorney's
fees) and amounts paid in settlement actually and reasonably incurred
by the Indemnitee in connection with any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and whether formal or informal
("Proceeding"), including any appeal therefrom, in which the Indemnitee
was or is or is threatened to be made a party because he or she is or
was an officer and/or a director of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee, agent, member or trustee of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan
or other enterprise, and such indemnification shall be made to the
fullest extent permitted by law, as it may be amended to increase, but
not reduce the measure of indemnification permitted.
(b) Notwithstanding anything to the contrary set forth in
subsection l(a) above and Section 3 below, unless hereafter permitted
by law, indemnification or advancement of expenses shall not be made to
or on behalf of the Indemnitee if a judgment or other final
adjudication establishes that his or her actions or omissions to act
were material to the cause of action so adjudicated and constitute:
(i) A violation of the criminal law, unless the director or
officer had reasonable cause to believe that his or her
conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful;
(ii) A transaction from which the director or officer
derived an improper personal benefit;
(iii) In the case of a director, a circumstance under which
the liability provisions of Section 607.0834 of the
Florida Business Corporation Act are applicable; or
(iv) Willful misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or
in the right of the corporation to procure a judgment
in its favor or in a proceeding by or in the right of a
shareholder.
For purposes of this subsection 1(b), the determination of whether such
a judgment or other final adjudication has been rendered shall be made
after exhaustion of any and all appeals or other review from the
Proceeding in which it was rendered. Adjudications within the meaning
of this subsection 1(b) shall include arbitration awards and decisions
rendered in formal administrative proceedings before a state or federal
administrative law judge.
2. DETERMINATION OF RIGHT OF INDEMNIFICATION. Any indemnification under
Section 1 above (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that no
adjudication or final judgment described in subsection 1(b) has been entered.
Such determination shall be made (i) by the Board of Directors by a majority
vote of a quorum consisting of directors who are not or were not parties to such
Proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable,
if a quorum of disinterested directors so directs, by independent legal counsel
in a written opinion, or (iii) by the shareholders of the Corporation.
3. ADVANCES OF EXPENSES. The Corporation shall pay or reimburse, in
advance of the final disposition of a Proceeding, the reasonable expenses,
including attorney's fees, that the Indemnitee incurs in connection with the
investigation or defense of the Proceeding, if the Corporation has received an
undertaking by the Indemnitee, substantially in the form attached hereto as
Annex I, to repay such amount in the event that it is ultimately determined, as
provided herein, that the Indemnitee is not entitled to indemnification. The
Corporation shall make such reimbursement or payment to the Indemnitee without
need for any action or decision by the Board of Directors. Provided, however,
that the Corporation shall not be required to advance such expenses with respect
to a Proceeding brought by the Corporation against the Indemnitee or a criminal
proceeding brought against the Indemnitee if a determination is reasonably and
promptly made either by the Board of Directors acting by a majority vote of a
quorum of disinterested directors, or (if such quorum is not obtainable or, even
if obtainable, a quorum of disinterested directors so directs) by independent
legal counsel in a written opinion, that, upon reasonable inquiry and based upon
the facts known to the Board of Directors or such counsel at the time such
determination is made, the Indemnitee's actions or omissions to act in fact
constitute conduct that is not or will not be indemnifiable under subsection
1(b).
4. PROCEDURE FOR MAKING DEMANDS. Any indemnification or advance of
expenses hereunder shall be made promptly, and in any event within forty-five
(45) days, upon the written request or demand by the Indemnitee, unless a
determination is reasonably and promptly made by a majority vote of a quorum of
disinterested directors, independent legal counsel or the shareholders that,
according to the standards set forth with respect to indemnification in Sections
1(b) and with respect to advancement in Section 3 hereof, the Indemnitee is not
entitled to indemnification or advancement of expenses. The failure of the
Corporation to make a determination regarding to the Indemnitee's entitlement to
indemnification or advancement within forty-five (45) days shall not constitute
a waiver of the Corporation's rights or defenses, but shall entitle the
Indemnitee to seek to enforce his or her rights to indemnification or
advancement.
5. ENFORCEMENT. The right to indemnification or advances hereunder
shall be enforceable by the Indemnitee in any court of competent jurisdiction if
the Board of Directors or independent legal counsel denies the claim, in whole
or in part, or makes no disposition of such claim forty-five (45) days after the
Indemnitee's application for indemnification or advance of expenses.
Furthermore, notwithstanding the failure of the Corporation to provide
indemnification, and despite any contrary determination of the Board of
Directors or of the Shareholders in the specific case, nothing in this Agreement
shall prevent or prohibit the Indemnitee, from applying to a court of competent
jurisdiction for indemnification or advancement of expenses under Section
607.0850(9) of the Florida Business Corporation Act. The Indemnitee's expenses
incurred in connection with successfully establishing the Indemnitee's right to
indemnification or advance of expenses, in whole or in part, in any such
proceedings shall also be indemnified by the Corporation.
6. SUCCESSORS. This Agreement establishes contract rights which shall
be binding upon, and shall inure to the benefit of, the successors, assigns,
heirs and legal representatives of the parties hereto.
7. CONTRACT RIGHTS NOT EXCLUSIVE. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other right which
the Indemnitee may have or may hereafter acquire under any statute, the Articles
of Incorporation, any agreement by the vote of shareholders or disinterested
directors of the Corporation, or otherwise.
8. INDEMNIFICATION AGAINST EXPENSES. Notwithstanding the other
provisions of this Agreement, to the extent that the 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 a
Proceeding without
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prejudice or the settlement of a Proceeding without either payment or admission
of liability, the Corporation shall indemnify the Indemnitee against all
expenses (including attorneys' fees) actually and reasonably incurred by the
Indemnitee in achieving such successful result.
9. INDEMNITEE'S OBLIGATIONS. The Indemnitee shall promptly advise the
Corporation in writing of the institution of any Proceeding which is or may be
subject to this Agreement and keep the Corporation generally informed of, and
consult with the Corporation with respect to, the status of any such Proceeding.
Notices to the Corporation shall be directed to Gevity HR, Inc., 600 000
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx 00000, Attn: President (or such
other address as the Corporation shall designate in writing to the Indemnitee),
and shall be given by personal delivery or by mailing the same by United States
Postal Service, postage prepaid, certified or registered mail, with return
receipt requested. In addition, the Indemnitee shall give the Corporation such
information and cooperation as it may reasonably require and as shall be within
the Indemnitee's power. The failure of the Indemnitee to give such notice and
provide such cooperation shall not bar the Indemnitee's rights to
indemnification or advancement of expenses unless it causes material prejudice
to the Corporation's rights under this Agreement.
10. SETTLEMENTS AND JUDGMENTS. In the case of Proceedings brought
against the Indemnitee by or on behalf of third parties, the Corporation shall
be obligated to indemnify the Indemnitee with regard to amounts paid, or agreed
to be paid, in settlement only if the Indemnitee obtains the Corporation's
consent to the settlement in advance, which consent shall not unreasonably be
withheld. The Corporation shall have no obligation to indemnify the Indemnitee
for any settlement or judgment with regard to Proceedings brought by the
Corporation against the Indemnitee.
11. SEVERABILITY. Should any provision of this Agreement, or any clause
hereof, be held to be invalid, illegal or unenforceable, in whole or in part,
the remaining provisions and clauses of this Agreement shall remain fully
enforceable and binding on the parties.
12. MODIFICATION AND WAIVER. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
13. CHOICE OF LAW. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
GEVITY HR, INC.
By:
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Name:
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Title:
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INDEMNITEE
By:
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Name:
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Title: Officer [AND/OR DIRECTOR]
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ANNEX I
UNDERTAKING
This UNDERTAKING is made to GEVITY HR, INC., a Florida corporation (the
"Corporation"), by the undersigned officer [AND/OR A MEMBER OF THE BOARD OF
DIRECTORS] of the Corporation ("Indemnitee").
WHEREAS, Indemnitee has become involved in an investigation, claim,
action, suit or proceeding which has arisen as a result of Indemnitee's service
to the Corporation or as a result of the Indemnitee's service, at the request of
the Corporation, as a director, officer, employee, agent, member or trustee of
another corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise; and
WHEREAS, Indemnitee desires that the Corporation pay or reimburse the
Indemnitee for any and all expenses (including, but not limited to, attorneys'
fees and court costs) actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in defending or investigating any such suits or claims and
that such payment be made in advance of the final disposition of such
investigations, claims, actions, suits or proceedings to the extent that
Indemnitee has not been previously reimbursed by insurance; and
WHEREAS, the Corporation has agreed, pursuant to the terms of the
Indemnification Agreement dated as of August 22, 2002, between the
Corporation and Indemnitee, to make such payments but, in accordance with
Section 607.0850 of the Florida Business Corporation Act, the Corporation may
make such payments only if it receives an undertaking to repay from Indemnitee;
and
WHEREAS, Indemnitee is willing to give such an undertaking.
NOW, THEREFORE, in consideration of the premises and for the payments
or reimbursements advanced to or on behalf of Indemnitee:
1. In the event that it is ultimately determined that Indemnitee is not
entitled to indemnification, Indemnitee hereby undertakes and agrees to repay to
the Corporation any payments or reimbursements of expenses advanced by the
Corporation to or on behalf of Indemnitee. Indemnitee undertakes and agrees to
make such repayment promptly and in any event within thirty (30) days after the
disposition, including any appeals, of such determination; provided, however,
that Indemnitee shall not be required to repay any amount as to which he or she
is determined to be entitled to be indemnified by the Corporation under Section
607.0850 of the Florida Business Corporation Act or other applicable law.
2. This Agreement shall not affect in any manner the rights which
Indemnitee may have against the Corporation, any insurer or any other person to
seek indemnification for or reimbursement of any expenses referred to herein or
any judgment which may be rendered in any litigation or proceeding.
This 22 day of August, 2002.
INDEMNITEE:
By: (SEAL)
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Name:
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