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EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into as of __________________, 1997, by and between STAFF LEASING, INC., a
Delaware corporation (the "Corporation"), and ________________ ("Indemnitee").
WHEREAS, the Indemnitee is an officer [AND A DIRECTOR] of the
Corporation; and
WHEREAS, the Articles of Incorporation (the "Articles of
Incorporation") of the Corporation provide for indemnification of officers and
directors of the Corporation; 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;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. AGREEMENT TO INDEMNIFY.
(a) Subject to Section 2 hereof and except as provided in
subsection 1(b) below, the Corporation shall indemnify the Indemnitee
against expenses (including attorneys' fees), judgments, fines 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 is or was an officer [AND/OR A
DIRECTOR] of the Corporation or was serving at the request of the
Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise if (i) the Indemnitee acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and (ii) with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal Proceeding, that the
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
(b) Notwithstanding anything to the contrary set forth in
subsection 1(a) above, the Corporation shall not be required to
indemnify the Indemnitee in connection with any Proceeding by or in the
right of the Corporation in which the Indemnitee shall have been
adjudged to be liable to the Corporation unless and only to the extent
that the court in which the Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, the
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Indemnitee is fairly and reasonably entitled to indemnity of such
expenses which such court shall deem proper.
2. INDEMNIFICATION AGAINST EXPENSES. Notwithstanding the other
provisions of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise, including the dismissal of a Proceeding
without prejudice or the settlement of a Proceeding without admission of
liability, in defense of any Proceeding or in defense of any claim, issue or
matter therein, the Corporation shall indemnify the Indemnitee against all
expenses (including attorneys' fees) actually and reasonably incurred by the
Indemnitee in connection therewith.
3. 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 the
indemnification of the Indemnitee is proper in the circumstances because the
Indemnitee has met the applicable standards of conduct set forth in Section 1.
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.
4. ADVANCES OF EXPENSES. Except as limited by Section 5 hereof,
expenses incurred by the Indemnitee in defending or investigating any Proceeding
shall be paid by the Corporation in advance of the final disposition of such
matter if the Corporation has received an undertaking on behalf of 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. However, no advance of such
expenses 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 in a written opinion, that, based upon the facts known to the Board of
Directors or such counsel at the time such determination is made, the Indemnitee
acted in bad faith and in a manner that the Indemnitee believed not to be in or
opposed to the best interests of the Corporation, or, with respect to any
criminal Proceeding, that the Indemnitee believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any advance or expenses be
made in instances where the Board of Directors or such counsel reasonably
determines that such person deliberately breached such person's duty to the
Corporation or its shareholders.
5. 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 of the Indemnitee, unless (i) with respect
to indemnification under Section 1 hereof, a determination is reasonably and
promptly made by a majority vote of a quorum of disinterested
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directors, independent legal counsel or the shareholders, as provided in Section
3, that the applicable standards of conduct set forth in Section 1 have not been
met, and (ii) with respect to advance of expenses under Section 4 hereof, the
determination is made by a majority vote of a quorum of disinterested directors
or by independent legal counsel, as provided in Section 4, that no such advance
of expenses shall be made by the Corporation for the reasons stated in that
Section. 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
if no disposition of such claim is made within forty-five (45) days after
application by the Indemnitee for indemnification or advance of expenses. 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 proceeding 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. 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 Staff Leasing, 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.
9. 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.
10. 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.
11. CHOICE OF LAW. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Florida.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
STAFF LEASING, INC.
By:
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Title:
INDEMNITEE
By:
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Officer [AND DIRECTOR]
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ANNEX I
UNDERTAKING AGREEMENT
This UNDERTAKING AGREEMENT (this "Agreement") is made on
_______________, between STAFF LEASING, INC., a Florida corporation (the
"Corporation"), and ______________________, an officer [AND A MEMBER OF THE
BOARD OF DIRECTORS] of the Corporation ("Indemnitee").
WHEREAS, Indemnitee has become involved in investigations, claims,
actions, suits or proceedings which have arisen as a result of Indemnitee's
service to the Corporation; and
WHEREAS, Indemnitee desires that the Corporation pay 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 is willing 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 mutual promises contained
herein, the parties hereto agree as follows:
1. In regard to any payments made by the Corporation to Indemnitee
pursuant to the terms of the Indemnification Agreement dated as of
_________________, 1997, between the Corporation and Indemnitee, Indemnitee
hereby undertakes and agrees to repay to the Corporation any and all amounts so
paid promptly and in any event within thirty (30) days after the disposition,
including any appeals, of any litigation or threatened litigation on account of
which payments were made; provided, however, that Indemnitee shall not be
required to repay the amount as to which he 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first above written.
STAFF LEASING, INC.
By:
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Name:
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Title:
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INDEMNITEE
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Name:
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