INDEMNITY AGREEMENT OF DIRECTOR
Exhibit
99.1
This
INDEMNITY
AGREEMENT
(this
“Agreement”)
is
effective as of __________ ___, 2___, between Interface, Inc., a Georgia
corporation (the “Company”),
and
__________________________ (“Indemnitee”).
WHEREAS,
it is
essential to the Company to retain and attract as directors the most capable
persons available; and
WHEREAS,
both
the Company and Indemnitee recognize the increased risk of litigation and
other
Claims being asserted against directors of public companies in today’s
environment (note that certain capitalized terms used herein are defined
in
Section
17
of this
Agreement); and
WHEREAS,
damages
sought by class action plaintiffs in some cases amount to tens of millions
of
dollars and, whether or not the case is meritorious, the cost of defending
them
can be enormous with few individual directors having the resources to sustain
such legal costs, not to mention the risk of a judgment running into millions
even in cases where the defendant was neither culpable nor profited personally
to the detriment of the corporation; and
WHEREAS,
Section
14-2-851 of the Georgia Business Corporation Code (the “Code”),
under
which the Company is organized, empowers corporations to indemnify persons
serving as a director of the corporation or a person who serves at the request
of the corporation as a director, trustee, officer, partner, employee or
agent
of another corporation, partnership, joint venture, trust, employee benefit
plan
or other enterprise; and
WHEREAS,
the
Bylaws of the Company permit the Company to indemnify any person who was
or is a
party or is threatened to be made a party to a proceeding by reason of the
fact
that he is or was a director or officer of the Company to the maximum extent
permitted by, and in the manner provided by, the Code; and
WHEREAS,
Section
14-2-859 of the Code empowers the Company to adopt resolutions or enter into
a
contract approved by the Company’s Board of Directors obligating the Company to
provide indemnification, advance funds or pay for or reimburse expenses prior
to
any act or omission giving rise to a proceeding pursuant to which
indemnification is permitted; and
WHEREAS,
on
October 27, 1998 the Company’s Board of Director adopted resolutions (the
“Resolutions”)
obligating the Company to indemnify directors and officers of the Company
to the
fullest extent permitted by law, to advance funds for expenses incurred and
to
take certain related actions; and
WHEREAS,
in
recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s service to the Company in an
effective manner, the increasing difficulty in obtaining satisfactory directors’
and officers’ liability insurance coverage, and in part, to provide Indemnitee
with additional contractual assurances that indemnification protection provided
under the Company’s Bylaws and the Resolutions will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of the
Articles of Incorporation (“Articles”)
or
Bylaws (“Bylaws”)
of the
Company or any change in the composition of the Company’s Board of Directors or
acquisition transaction relating to the Company), the Company wishes to provide
in this Agreement for the indemnification of and the advancing of expenses
to
Indemnitee to the fullest extent (whether partial or complete) authorized
or
permitted by law and as set forth in this Agreement, and for the continued
coverage of Indemnitee under the Company’s directors’ and officers’ liability
insurance policies; and
WHEREAS,
in
order to induce Indemnitee to serve or continue to serve as a director, the
Company has agreed to provide Indemnitee with the benefits contemplated by
this
Agreement; and
WHEREAS,
the
Company’s Board of Directors is making no determination by this Agreement that
indemnification of Indemnitee for any particular act or omission giving rise
to
a proceeding is permissible;
NOW,
THEREFORE,
in
consideration of the premises and of Indemnitee agreeing to serve or to continue
to serve the Company directly or, at its request, another enterprise, and
intending to be legally bound hereby, the parties hereto agree as
follows:
| 1. |
Basic
Indemnification Arrangement and Advances for Expenses.
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a)
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In
the event Indemnitee was, is, or becomes a party to or witness
or other
participant in, or is threatened to be made a party to or witness
or other
participant in, a Claim by reason of (or arising in part out of)
an
Indemnifiable Event, the Company shall indemnify Indemnitee to
the fullest
extent a Georgia corporation is authorized or permitted by law,
without
shareholder approval as provided in Section 14-2-856 of the Code,
to
indemnify its officers and directors, as soon as practicable but
in any
event no later than thirty (30) days after written demand is presented
to
the Company, against any and all Expenses, judgments, fines, penalties
(whether civil, criminal or other) and amounts paid in settlement
(including all interest, assessments and other charges paid or
payable in
connection with or in respect of such Expenses, judgments, fines,
penalties or amounts paid in settlement) of such Claim; provided,
however,
that, except for proceedings to enforce rights to indemnification,
the
Company shall not be obligated to indemnify Indemnitee in connection
with
a proceeding (or part thereof) initiated by Indemnitee unless such
proceeding (or part thereof) was authorized in advance, or unanimously
consented to, by the Company’s Board of Directors. If so
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2
requested
by Indemnitee, the Company shall, before final disposition of a Claim, advance
(within five (5) business days of such request) any and all Expenses to
Indemnitee to the fullest extent a Georgia corporation is authorized or
permitted, without shareholder approval as provided in Section 14-2-856 of
the
Code, to advance Expenses to its officers and directors (an “Expense
Advance”).
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b)
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Notwithstanding
the foregoing, (i) the obligations of the Company under Section
1(a)
shall be subject to the condition that the Reviewing Party shall
not have
determined (in a written opinion, in any case in which the Independent
Legal Counsel referred to in Section
2
hereof is involved) that Indemnitee would not be permitted to be
indemnified under applicable law; provided,
however,
that no entitlement decision need be made prior to an Expense Advance,
and
(ii) the obligation of the Company to make an Expense Advance pursuant
to
Section
1(a)
shall be subject to the condition that Indemnitee delivers to the
Company:
(A) a written affirmation of his or her good faith belief that
he or she
has met the relevant standard of conduct under the Code or that
the Claim
involves conduct for which such Indemnitee’s liability has been eliminated
under the Articles; and (B) his or her written undertaking to repay
any
Expense Advance if it is ultimately determined that Indemnitee
is not
entitled to indemnification under this Agreement, the Resolutions,
Articles or the Code, which must be an unlimited general obligation
of
Indemnitee but need not be secured and may be accepted without
reference
to the financial ability of Indemnitee to make repayment. Notwithstanding
the foregoing, if Indemnitee has commenced or thereafter commences
legal
proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee would
not be
permitted to be indemnified under applicable law shall not be binding
and
Indemnitee shall not be required to reimburse the Company for any
Expense
Advance until a final judicial determination is made with respect
thereto
(as to which all rights of appeal therefrom have been exhausted
or
lapsed). If there has not been a Change in Control, the Reviewing
Party
shall be selected by the Company’s Board of Directors, and if there has
been such a Change in Control, the Reviewing Party shall be the
Independent Legal Counsel referred to in Section
2
hereof. If there has been no determination by the Reviewing Party
or if
the Reviewing Party determines that Indemnitee substantively would
not be
permitted to be indemnified in whole or in part under applicable
law,
Indemnitee shall have the right to commence litigation in any court
in the
State of Georgia having subject matter jurisdiction thereof and
in which
venue is proper seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any
aspect
thereof, including the legal or factual bases therefor, and the
Company
hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise
shall be
conclusive and binding on the Company and
Indemnitee.
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c)
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No
change in the Articles, Bylaws or Resolutions or in the Code subsequent
to
the date of this Agreement shall have the effect of limiting or
eliminating the indemnification available under this Agreement
as to any
act, omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or capacity.
If any
change after the date of this Agreement in any applicable law,
statute or
rule expands the power of the Company to indemnify Indemnitee,
such change
shall to the same extent expand Indemnitee’s rights and the Company’s
obligations under this Agreement. If any change in any applicable
law,
statute or rule diminishes the power of the Company to Indemnify
Indemnitee, such change, except to the extent otherwise required
by law,
statute or rule to be applied to this Agreement, shall have no
effect on
this Agreement or the parties’ rights and obligations
hereunder.
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d)
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If
the indemnification provided in Section
1(a)
is
unavailable or may not be paid to Indemnitee for any reason, then
in
respect of any threatened, pending or completed Claim in which
the Company
is jointly liable with Indemnitee (or would be if joined in such
action,
suit or proceeding) other than any Claim in which final 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 Exchange Act or similar
provisions
of any federal, state or local statutory law, or on account of
any payment
by Indemnitee to the Company in respect of any claim for such an
accounting, the Company shall contribute to the amount of expenses,
judgments, fines and settlements paid or payable by Indemnitee
in such
proportion as is appropriate to reflect (i) the relative benefits
received
by the Company on the one hand and Indemnitee on the other hand
from the
transaction from which such action, suit or proceeding arose, and
(ii) the
relative fault of the Company on the one hand and of Indemnitee
on the
other in connection with the events which resulted in such expenses,
judgments, fines or settlement amounts, as well as any other relevant
equitable considerations. The relative fault of the Company on
the one
hand and of Indemnitee on the other shall be determined by reference
to,
among other things, the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances
resulting in such expenses, judgments, fines or settlement amounts.
The
Company agrees that it would not be just and equitable if contribution
pursuant to this Section
1(d)
were determined by pro rata allocation or any other method of allocation
that does not take account of the foregoing equitable
considerations.
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2. Change
in Control.
The
Company agrees that if there is a Change in Control, then with respect to
all
matters thereafter arising concerning the rights of Indemnitee to indemnity
payments and Expense Advances under this Agreement, the Resolutions or any
other
agreement, or any Article or Bylaw provision now or hereinafter in effect
relating to Claims
4
for
Indemnifiable Events, any determinations to be made by a Reviewing Party
pursuant to the Resolutions or Section 14-2-855 of the Code, shall be made
on
behalf of the Company by Independent Legal Counsel selected by the Company
in
accordance with Section 14-2-855 from a list of at least three attorneys
or
firms of attorneys qualified to serve as Independent Legal Counsel provided
by
Indemnitee; provided, however, that in the event there are multiple officers
and
directors seeking indemnification with respect to a matter (the “indemnified
parties”), the Company shall be obligated to select only one Independent Legal
Counsel which shall be (i) selected from the aggregate of all lists of attorneys
or firms submitted by the indemnified parties involved in such matter and
(ii)
not objected to in writing by any such indemnified party within ten (10)
days of
written notice of the identity of such Independent Legal Counsel to all such
indemnified parties on any reasonable basis set forth in such notice of
objection. Such counsel, among other things, shall render its written opinion
to
the Company and Indemnitee as to whether and to what extent Indemnitee would
be
permitted to be indemnified under this Agreement, the Resolutions and applicable
law. The Company agrees to pay the reasonable fees of the Independent Legal
Counsel referred to above and to fully indemnify such counsel against any
and
all expenses (including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant
hereto.
3. Indemnification
for Additional Expenses.
The
Company shall indemnify Indemnitee against any and all expenses (including
attorneys’ fees) and, if requested by Indemnitee, shall (within five (5)
business days of such request) advance such expenses to Indemnitee, which
are
incurred by Indemnitee in connection with any action brought by Indemnitee
for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement, the Resolutions, or any other agreement, or any Article or
Bylaw
provision now or hereafter in effect relating to Claims for Indemnifiable
Events
and/or (ii) recovery under any directors’ and officers’ liability insurance
policies maintained by the Company; provided,
however,
that if
there is a final judicial determination (as to which all rights of appeal
therefrom have been exhausted or lapsed) that Indemnitee is not entitled
to such
indemnification, advance payment of expenses or insurance recovery, Indemnitee
shall reimburse the Company for all such expenses theretofore paid under
this
Section
3.
4. Partial
Indemnity.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Expenses, judgments, fines,
penalties and amounts paid in settlement of a Claim but not, however, for
all of
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
or
all Claims relating in whole or in part to an Indemnifiable Event or in defense
of any issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
with
such Claims as to which Indemnitee has been successful.
5
5. Burden
of Proof.
In
connection with any determination by the Reviewing Party or otherwise as
to
whether Indemnitee is entitled to be indemnified hereunder, the burden of
proof
shall be on the Company to establish that Indemnitee is not so
entitled.
6. No
Presumptions.
For
purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon
a
plea of nolo
contendere,
or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court
has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a determination as
to
whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by a Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law shall be a defense to Indemnitee’s claim for indemnification or
reimbursement or advance payment of Expenses hereunder by the Company, or
create
a presumption that Indemnitee has not met any particular standard of conduct
or
did not have any particular belief or is otherwise not entitled to
indemnification hereunder.
7. Nonexclusivity.
The
rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Resolutions, Articles, Bylaws or the Code or
otherwise. To the extent that a change in the Code (whether by statute or
judicial decision) permits greater indemnification by agreement than would
be
afforded currently under the Resolutions, Articles, Bylaws and this Agreement,
it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change.
8. Liability
Insurance.
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a)
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The
Company hereby represents and warrants that the Company has purchased
and
maintains directors’ and officers’ liability insurance consisting of the
following policies providing for an aggregate of $60,000,000 in
coverage
(collectively, the “D&O
Insurance”):
(a) a primary policy issued by Chubb Group Insurance Companies
providing
$15,000,000 in coverage; (b) an excess policy issued by The Hartford
providing $15,000,000 in coverage; (c) an excess policy issued
by Liberty
International Underwriters providing $10,000,000 in coverage; (d)
a Side A
policy issued by St. Xxxx Travelers providing $10,000,000 in coverage
and
(e) a Side A policy issued by Axis providing $10,000,000 in
coverage.
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b)
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The
Company hereby covenants and agrees that, so long as Indemnitee
shall
continue to serve as a director of the Company and 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, the Company shall maintain in full force and effect the
D&O
Insurance, or
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6
substantially
equivalent insurance coverage; provided,
however,
that
the Company shall not be obligated hereunder to pay annual premiums for
directors’ and officers’ liability insurance in excess of one hundred fifty
percent (150%) of the annualized rate of premiums paid by the Company for
D&O Insurance in Fiscal Year 2004 (the “Increased
Rate”),
and
if the premiums for such insurance coverage would exceed the Increased Rate
in
any fiscal year, and the Company determines not to spend in excess of the
Increased Rate, the Company shall endeavor to retain such type of coverage
by
amending the levels of self-insured retention and/or limits of liability
of such
insurance coverage so as not to exceed the Increased Rate.
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c)
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In
all policies of D&O Insurance, Indemnitee shall be named as an insured
in such manner as to provide Indemnitee the same rights and benefits,
subject to the same limitations, as are accorded to the Company’s
directors or officers most favorably insured by such
policy.
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9. Period
of Limitations.
No
legal action shall be brought and no cause of action shall be asserted by
or in
the right of the Company against Indemnitee, Indemnitee’ s spouse, heirs,
executors or personal or legal representatives after the expiration of two
(2)
years from the date of accrual of such cause of action, and any Claim or
cause
of action of the Company shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two (2) year
period;
provided,
however,
that if
any shorter period of limitations is otherwise applicable to any such cause
of
action such shorter period shall govern.
10. Notices.
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a)
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Indemnitee
shall give to the Company notice in writing as soon as practicable
of any
Claim made against him for which indemnification will or could
be sought
under this Agreement. Failure to give such notice shall not be
cause for
the Company not to indemnify Indemnitee or advance Expenses unless
the
Company can demonstrate that it was prejudiced by such
failure.
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b)
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All
communications, including without limitation notices, consents,
requests
or approvals, required or permitted to be given hereunder, shall
be in
writing and shall be either personally delivered or sent by Federal
Express or other reputable overnight courier for next business
day
delivery, or sent by certified mail, return receipt requested,
addressed
as follows:
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If
to the
Company:
Interface,
Inc.
0000
Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000
Attn:
General Counsel
7
If
to
Indemnitee:
at
the
address set forth under Indemnitee’s name on the signature page
hereto
or
at
such other address as from time to time designated by written notice delivered
in accordance herewith. Any notice personally served shall be deemed delivered
on the date of such service. Any notice sent by overnight courier as provided
above shall be deemed delivered on the first business day after the date
such
notice was actually delivered by such overnight courier or refused. Any notice
sent by mail as provided above shall be deemed delivered on the date of actual
receipt or refusal thereof.
11. Amendments;
Waiver.
No
supplement, modification or amendment of this Agreement, or any waiver or
discharge of any provision 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.
12. Subrogation.
In the
event of payment under this Agreement, the Company shall be subrogated to
the
extent of such payment to all of the related rights of recovery of Indemnitee
against other persons or entities, and Indemnitee 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 Company
effectively to bring suit to enforce such rights, with all of Indemnitee’s
reasonable expenses, including attorney’s fees and charges, related thereto to
be reimbursed by, or at the option of Indemnitee, advanced by the
Company.
13. No
Duplication of Payments.
The
Company shall not be liable under this Agreement to make any payment in
connection with any Claim made against Indemnitee to the extent Indemnitee
has
otherwise actually received payment under any insurance policy, the Articles,
Bylaws or otherwise of the amounts otherwise indemnifiable
hereunder.
14. Successors;
Binding Effect; Assignment.
The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) to all or substantially
all
of the business or assets of the Company expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the Company
would be required to perform if no such succession had taken place. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors, assigns, including
any
direct or indirect successor by purchase, merger, consolidation or otherwise
to
all or substantially all of the business and/or assets of the Company (and
such
successor will thereafter be deemed the “Company”
for
purposes of this Agreement), spouses, heirs, executors, administrators,
distributees, legatees, and personal and legal representatives. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve
as
a director of the Company. This Agreement is personal in nature and neither
of
the parties hereto shall, without the consent of the other, assign or delegate
this Agreement or any rights or obligations hereunder except as
expressly
8
provided
in this Section 14. Without limiting the generality or effect of the foregoing,
Indemnitee’s right to receive payments hereunder shall not be assignable,
whether by pledge, creation of a security interest or otherwise, other than
by a
transfer by Indemnitee’s will or by the laws of descent and distribution, and,
in the event of any attempted assignment or transfer contrary to this
Section
14,
the
Company shall have no liability to pay any amount so attempted to be assigned
or
transferred.
15. Severability.
The
provisions of this Agreement shall be severable in the event that any of
the
provisions hereof (including any provision within a single section, paragraph
or
sentence) is held by a court of competent jurisdiction to be invalid, void
or
otherwise unenforceable in any respect, and the validity and enforceability
of
any such provision in every other respect and of the remaining provisions
hereof
shall not be in any way impaired and shall remain enforceable to the full
extent
permitted by law.
16. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Georgia applicable to contracts made and to be performed
in
such state without giving effect to the principles of conflicts of
laws.
17. Certain
Definitions.
For
purposes of this Agreement:
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a)
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a
“Change
in Control”
shall be deemed to have occurred if (i) there shall be consummated
(A) any
share exchange or merger of the Company in which the Company is
not the
continuing or surviving corporation or pursuant to which shares
of the
Company’s common stock (both Class A and Class B) would be converted into
cash, securities or other property, other than a merger of the
Company in
which the holders of the Company’s common stock (both Class A and Class B)
immediately prior to the merger have the same proportionate ownership
of
common stock of the surviving corporation immediately after the
merger, or
(B) any sale, lease, exchange or other transfer (in one transaction
or a
series of related transactions) of all, or substantially all, of
the
assets of the Company, or (ii) the shareholders of the Company
approve any
plan or proposal for the liquidation or dissolution of the Company,
or
(iii) any person (as such term is used in Section 13(d) and 14(d)(2)
of
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)),
shall become the beneficial owner (within the meaning of Rule 13d-3
under
the Exchange Act), directly or indirectly, of 30% of the Company’s
outstanding Voting Securities, or (iv) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Company’s Board of Directors shall cease for any reason to
constitute a majority thereof unless the election, or the nomination
for
election by the Company’s shareholders, of each new director was approved
by a vote of at least two-thirds of the directors then still in
office who
were directors at the beginning of the
period.
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b)
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a
“Claim”
means any threatened, asserted, pending or completed claim, demand,
action, suit or proceeding, or any inquiry or investigation, whether
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9
instituted
by or in the right of the Company or any other party, that Indemnitee in
good
faith believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, arbitrative, administrative, investigative
or other.
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c)
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“Expenses”
include attorneys’ and expert’s fees and expenses and all other costs,
expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in
or
participate in (including on appeal) any Claim relating to any
Indemnifiable Event.
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d)
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an
“Indemnifiable
Event”
means any event or occurrence related to the fact that Indemnitee
is or
was a director of the Company, or is or was serving at the request
of the
Company as a director, officer, manager, trustee, agent or fiduciary
of
another corporation, partnership, limited liability company, joint
venture, employee benefit plan, trust or other enterprise, or by
reason of
anything done or not done by Indemnitee in any such
capacity.
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e)
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“Independent
Legal Counsel”
means an attorney or firm of attorneys, selected in accordance
with the
provisions of Section
2,
that is experienced in matters of corporate law and neither presently
is,
nor in the past five years has been, retained to represent: (i)
the
Company or Indemnitee, or (ii) any other party to the Claim giving
rise to
a claim for indemnification hereunder. Notwithstanding the foregoing,
the
term “Independent Legal Counsel” shall not include any person who, under
the applicable standards of professional conduct then prevailing,
would
have a conflict of interest in representing either the Company
or
Indemnitee in an action to determine Indemnitee’s rights under this
Agreement.
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f)
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a
“Reviewing
Party”
means any appropriate person or body consisting of a member of
members of
the Company’s Board of Directors or any other person or body appointed by
the Company’s Board of Directors who is not a party to a particular Claim
for which Indemnitee is seeking indemnification, or Independent
Legal
Counsel.
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g)
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“Voting
Securities”
means any securities of the Company, which vote generally in the
election
of directors, including, without limitation, the Class A and Class
B
Common Stock.
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18. Notification
and Defense of Claim.
Promptly after receipt by Indemnitee of notice of the commencement of any
action, suit or proceeding which may constitute a Claim hereunder, Indemnitee
will, if a Claim in respect thereof is to be made against the Company under
this
Agreement, notify the Company of the commencement thereof,
whereupon:
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a)
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the
Company will be entitled to participate therein at its own
expense;
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b)
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except
as otherwise provided below, the Company will be entitled to assume
the
defense thereof, with counsel reasonably satisfactory to Indemnitee,
upon
written notice of its election to do so. After delivery of such
notice,
the Company will not be liable to Indemnitee under this Agreement
or the
Resolutions for any legal or other expenses subsequently incurred
by
Indemnitee in connection with the defense of such Claim, except
as
otherwise provided below. If Indemnitee elects to employ counsel
in
connection with such Claim, the fees and expenses of such counsel
incurred
after delivery of notice from the Company of its assumption shall
be at
the expense of Indemnitee, unless (i) the employment of counsel
by
Indemnitee has been authorized by the 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 Claim, in each of which cases the fees and expenses
of
counsel shall be at the expense of the Company; and
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c)
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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 written consent, unless such settlement solely
involves the payment of money and includes a complete and unconditional
release of Indemnitee from all liability on any claims that are
the
subject matter of such Claim. Neither the Company nor Indemnitee
will
unreasonably withhold their consent to any proposed
settlement.
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19. Miscellaneous;
Counterparts.
No
agreements or representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by either party that
are not
set forth expressly in this Agreement. References to Sections are references
to
Sections of this Agreement. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together shall constitute one and the same agreement.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement this ____ day of ____________,
2___.
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INTERFACE,
INC.
By:_________________________
Name:____________________
Title:_____________________
INDEMNITEE
__________________________
Name:_______________________
Address:_____________________
____________________________
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