EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made on this ____ day of February, 1998,
between MANHATTAN ASSOCIATES, INC., a Georgia corporation ("Manhattan") and
_______________ ("Indemnitee").
W I T N E S S E T H:
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WHEREAS, Indemnitee is a member of the Board of Directors of Manhattan and
in such capacity performs a valuable service for Manhattan;
WHEREAS, Manhattan's Bylaws authorize Manhattan to indemnify its directors
in accordance with Section 14-2-851 of the Official Code of Georgia Annotated
(the "Statute");
WHEREAS, the Statute contemplates that contracts may be entered into
between Manhattan and each of the members of its Board of Directors with respect
to indemnification; and
WHEREAS, in order to encourage Indemnitee to continue to serve as a member
of the Board of Directors and to perform other designated services for Manhattan
at its request, Manhattan has determined and agreed to enter into this Agreement
with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued service as a
director of Manhattan and the performance of such other services as requested by
Manhattan, the parties hereby agree as follows:
1. INDEMNITY OF INDEMNITEE. Manhattan shall defend, hold harmless and
indemnify Indemnitee to the full extent permitted by the provisions of the
Statute, as currently in effect or as it may hereafter be amended, or by the
provisions of any other statute authorizing or permitting such indemnification,
whether currently in effect or hereafter adopted.
2. ADDITIONAL INDEMNITY. Subject to the provisions of Section 3 hereof,
Manhattan shall defend, hold harmless and indemnify Indemnitee in the event
Indemnitee was, is or is threatened to be made a named defendant or respondent
in any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative and whether formal or informal
(including any such action, suit or proceeding brought by or in the right of
Manhattan), by reason of the fact that he is or was a director of Manhattan, or
is or was serving at the request of Manhattan as a director, officer, employee,
agent or consultant of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against any obligation to pay a
judgment, settlement, penalty, fine (including an excise tax assessed with
respect to an employment benefit plan), expenses (including attorneys' fees) and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding. For purposes of this Section 2,
Indemnitee shall be considered to be serving under an employee benefit plan at
the request of Manhattan if his duties to Manhattan also impose duties on, or
otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to Section
2 hereof shall be paid by Manhattan to the extent of any liabilities incurred in
a proceeding in which Indemnitee is adjudged liable to Manhattan or is subjected
to injunctive relief in favor of Manhattan:
(1) for any appropriation in violation of his duties, of any business
opportunity of Manhattan;
(2) for acts or omissions which involve intentional misconduct or a
knowing violation of law;
(3) for the types of liability set forth in O.C.G.A. (S)14-2-832; or
(4) for any transaction from which Indemnitee received any improper
personal benefit.
4. NOTIFICATION AND DEFENSE OF CLAIM.
(a) Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee will, if a claim in
respect thereto is to be made against Manhattan under this Agreement, notify
Manhattan of the commencement thereof, but the failure to so notify Manhattan
will not relieve it from any liability which it may have to Indemnitee otherwise
under this Agreement. With respect to any such action, suit or proceeding as to
which Indemnitee so notifies Manhattan:
(i) Manhattan will be entitled to participate therein at its own
expense; and
(ii) except as otherwise provided below, to the extent that it
may desire, Manhattan may assume the defense thereof.
(b) After notice from Manhattan to Indemnitee of its election to
assume the defense thereof, Manhattan 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 of his choosing in such action, suit or proceeding but the fees
and expenses of such counsel incurred after notice from Manhattan 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 in writing by
Manhattan, (ii) Manhattan and Indemnitee shall reasonably conclude that there
may be a conflict of interest between Manhattan and Indemnitee in the conduct of
the defense of such action, or (iii) Manhattan shall not in fact have employed
counsel to assume the defense of such action, in each of which case the
reasonable fees and expenses of Indemnitee's counsel shall be paid by Manhattan.
(c) Manhattan shall not be liable to Indemnitee under this Agreement
for any amounts paid in settlement of any threatened or pending action, suit or
proceeding without its prior written consent. Manhattan shall not settle any
such action, suit or proceeding in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee's prior written consent. Neither
Manhattan nor Indemnitee will unreasonably withhold its or his consent to any
proposed settlement.
5. PREPAYMENT OF EXPENSES. Unless Indemnitee otherwise elects, expenses
incurred in defending any civil or criminal action, suit or proceeding shall be
paid by Manhattan in advance of the final disposition of such action, suit or
proceeding upon receipt by Manhattan of a written affirmation of Indemnitee's
good faith belief that his conduct does not constitute behavior of the kind
described in Section 3 of this Agreement and Indemnitee furnishes Manhattan a
written undertaking,
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executed personally or on his behalf, to repay any advances if it is ultimately
determined that he is not entitled to be indemnified by Manhattan under this
Agreement.
6. CONTINUATION OF INDEMNITY. All agreements and obligations of
Manhattan contained in this Agreement shall continue during the period in which
Indemnitee is a member of the Board of Directors of Manhattan and shall continue
thereafter so long as Indemnitee shall be subject to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether formal or informal, by reason of the fact that
Indemnitee was a director of Manhattan or is or was serving at the request of
Manhattan as a director, officer, employee, agent or consultant of another
corporation, partnership, joint venture, trust or other enterprise.
7. RELIANCE. Manhattan has entered into this Agreement in order to
induce Indemnitee to continue as a member of the Board of Directors of Manhattan
and acknowledges that Indemnitee is relying upon this Agreement in continuing in
such capacity.
8. SEVERABILITY. 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.
9. GENERAL.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia.
(b) Neither this Agreement nor any rights or obligations hereunder
shall be assigned or transferred by Indemnitee.
(c) This Agreement shall be binding upon Indemnitee and upon
Manhattan, its successors and assigns, including successors by merger or
consolidation, and shall inure to the benefit of Indemnitee, his heirs, personal
representatives and permitted assigns and to the benefit of Manhattan, its
successors and assigns.
(d) No amendment, modification or termination of this Agreement shall
be effective unless in writing signed by both parties hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
INDEMNITEE: MANHATTAN ASSOCIATES, INC.
By:__________________________________ By:___________________________________
Name (Print):________________________ Title:________________________________
Date:________________________________ Date:_________________________________
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