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EXHIBIT
10.36
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT
(this "Agreement") is entered into as of this
day of
, 2006, between GEVITY HR, INC., a Florida corporation (the
"Company"), and
, an individual resident of the State of
("Indemnitee").
WHEREAS, the Third Articles of
Amendment and Restatement of the Articles of Incorporation of the
Company (the "Articles") and Section 607.0850(7)
(Indemnification of Officers, Directors, Employees and Agents) of
the Florida Business Corporation Act, as amended (the "FBCA"), by
their nonexclusive nature, permit the Company to enter into
contracts between the Company and the directors and officers of the
Company with respect to indemnification and reimbursement of
related expenses of such directors and officers;
WHEREAS, this Agreement is a
supplement to the provisions of the FBCA and the Articles and any
resolutions adopted pursuant thereto and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder;
WHEREAS, Indemnitee performs a
valuable service for the Company, the Company desires to provide
Indemnitee with specific contractual assurance of his or her rights
to full indemnification against litigation risks and expenses
associated with their service as a director or officer of the
Company and in other related capacities regardless of, among other
things, any amendment to or revocation of the Articles, the Third
Amended and Restated Bylaws of the Company (the "Bylaws") or any
change in the ownership of the Company or in the composition of the
Board, the Company desires to enter into this Agreement with
Indemnitee; and
WHEREAS, capitalized terms used
herein and not otherwise defined shall have the meanings set forth
in Section 14;
NOW, THEREFORE, in consideration
of Indemnitee’s service, or continued service, as a director
or officer of the Company after the date hereof, the parties hereto
agree as follows:
1. Right to
Indemnification .
(a) Indemnification in
Proceedings Other Than Those By or in the Right of the Company
. Subject to this Section and Section 2, the Company shall
indemnify and hold harmless Indemnitee from and against any and all
Liabilities in any Proceeding to which Indemnitee was or is a party
or is threatened to be made a party or was or is a witness or
participates or may participate in by reason of Indemnitee’s
Corporate Status or by reason of action taken or not taken by
Indemnitee in any such capacity or capacities, provided
that, Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the Company or, with respect to any criminal
action or proceeding, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(b) Indemnification in
Proceedings By or in the Right of the Company . Subject to this
Section and Section 2, the Company shall indemnify and hold
harmless Indemnitee from and against any and all Liabilities in any
Proceeding by or in the right of the Company to procure a judgment
in its favor, whether civil, criminal, administrative or
investigative, and to which Indemnitee was or is a party or is
threatened to be made a party or was or is a witness or participant
or may participate in by reason of the fact of Indemnitee’s
Corporate Status or by reason of any action taken or not taken by
Indemnitee in any such capacity or capacities, provided
that , (i) Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in, or not opposed to,
the best interests of the Company, (ii) indemnification for
amounts paid in settlement shall not exceed the estimated expense
of litigating the Proceeding to conclusion and (iii) no
indemnification shall be made under this Section in respect of any
claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable unless, and only to the extent that, the
court in which such Proceeding was brought (or any other court of
competent jurisdiction), shall determine upon application that,
despite the adjudication of any such liability but in view of all
of the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c) Bases for Determining
Indemnitee Not Entitled to Indemnification . Notwithstanding
the foregoing, Indemitee shall not be entitled to indemnification
pursuant to this Agreement:
(1) if (i) a judgment or
other final adjudication in a Proceeding (as to which all rights of
appeal therefrom have been exhausted or lapsed) establishes that
Indemnitee’s actions, or omissions to act, were material to
the cause of action in such Proceeding and constitutes or
constituted (a) a violation of criminal law, unless Indemnitee
had reasonable cause to believe his conduct was lawful or no reason
to believe it was unlawful, (b) a transaction from which
Indemnitee derived an improper personal benefit, (c) a
circumstance under which the liability provisions of
Section 607.0834 of the FBCA are applicable (in the case of a
director only), or (d) willful misconduct or conscious
disregard of the Company’s best interest in a proceeding by
or in the right of the Company or a shareholder of the Company or
(ii) such indemnification or advancement of expenses is
prohibited by law; and
(2) in connection with a
Proceeding initiated by Indemnitee (other than in a Corporate
Status capacity) against the Company or any director or officer of
the Company unless the Company has joined in or consented in
writing to the initiation of such action.
(d) Non-exclusive
Criteria for Determining Good Faith . Indemnitee shall be
deemed to have acted in good faith if such person acted in reliance
(i) on information, opinions, reports or statements, including
financial statements and other financial data, prepared or
presented by one or more officers or employees of the Company whom
Indemnitee reasonably believed to be reliable and competent in the
matters presented, legal counsel, public accountants or other
person as to matters Indemnitee reasonably believed are within the
persons’ professional or expert competence or a committee of
the Board of which he or she is not a member if Indemnitee
reasonably believes the committee merits confidence,
(ii) otherwise, on the advice of legal counsel, independent
certified public accountant or by an appraiser or other expert of
the
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Company or (iii) a
committee of the Board on which Indemnitee does not serve if
Indemnitee reasonably believes such committee merits confidence. A
person who acted in a manner he reasonably believed to be in the
best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in good faith. The
knowledge or actions, or failure to act, of any director, officer,
agent or employee of the Company shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this
Agreement. The termination of any Proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere
or its equivalent does not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which he or
she reasonably believed to be in, or not opposed to, the best
interests of the Company, or, with respect to a criminal
Proceeding, that Indemnitee had reasonable cause to believe his or
her conduct was unlawful. To avoid ambiguity, this paragraph
contains a non-exclusive list of criteria regarding whether
Indemnitee acted in good faith; the person determining Indemnitee
rights under this Agreement may find other facts and circumstances
upon which to conclude that Indemnitee acted in good faith,
including by reference to Section 607.0830 (General Standards
of Directors) of the FBCA.
(e) Right to Partial
Indemnification . If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of any Liabilities, but not for the total amount thereof,
the Company shall indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.
(f) No Implied Rights,
etc. Indemnitee may, at any time and for any reason, resign
from any position he or she currently holds with the Company
(subject to any other contractual obligation or any obligation
imposed by operation of law), in which event the Company shall have
no obligation under this Agreement to continue to employ Indemnitee
in any such position or have Indemnitee serve as a director, as the
case may be, and this Agreement shall no longer apply for the
benefit of Indemnitee with respect to any future Proceeding unless
it relates to Indemnitee’s service to the Company in his or
her Corporate Status as contemplated by Section 13. This
Agreement shall not be deemed an employment contract between
Indemnitee and the Company.
2. Procedures for
Determination of Entitlement to Indemnification .
(a) Indemnitee
Submission; Notice . In order to be indemnified under this
Agreement, Indemnitee shall submit to the Company a written request
therefor in form reasonably satisfactory to the Company, including
therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary, in
the Company’s opinion, to determine whether and to what
extent Indemnitee is entitled to indemnification under this
Agreement. In addition, Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter which may be subject to
indemnification covered hereunder; provided that , the
failure to so notify the Company shall not relieve the Company of
any obligation which it may have to Indemnitee under this Agreement
or otherwise unless and only to the extent that such failure or
delay materially prejudices the Company.
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(b) Notice to Board of
Directors . The General Counsel of the Company (or in the
absence of the General Counsel, the Corporate Secretary of the
Company) shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors of the Company (the
"Board") in writing that Indemnitee has requested
indemnification.
(c) Basis for
Determination of Entitlement to Indemnification . The
determination of Indemnitee’s entitlement to indemnification
under Sections 1 and 2, unless pursuant to a determination by
a court, shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of
Indemnitee is proper in the circumstances because he or she has met
the applicable standards of conduct set forth in
Section 1.
(d) Persons Making
Determination . Such determination as to whether Indemnitee is
entitled to indemnification under this Agreement shall be made by
the following person(s):
(1) If a Change of Control has not
occurred:
(A) by the Board by a majority
vote of a quorum of Disinterested Directors;
(B) if such a quorum is not
obtainable or, even if obtainable, by majority vote of a committee
duly designated by the Board (in which all directors may
participate) consisting solely of two or more directors not at the
time parties to the Proceeding;
(C) by Independent Counsel
selected in the manner prescribed in subsection 2(d)(3); or
(D) by the shareholders of the
Company by a majority vote of a quorum consisting of shareholders
were not parties to the Proceeding or, if not such quorum is
obtainable, by a majority vote of shareholders who were not parties
to such Proceeding.
(2) If a Change of Control has
occurred, by Independent Counsel in a written opinion to the
Company and Indemnitee.
(3) For purposes of this
subsection 2(c), an Independent Counsel shall be (A) nominated
by Indemnitee and selected by the Board as prescribed in clause
(1)(A) above or (B) by the committee as prescribed in clause
(1)(B) above or (C), if a quorum of the directors cannot be
obtained for clause (1)(A) and the committee cannot be designated
under clause (1)(B), selected by majority vote of the full Board
(in which directors who are parties to the Proceeding may
participate), or (D) by the shareholders by a majority vote of
a quorum consisting of shareholders who were not parties to such
Proceeding, or if no such quorum is obtainable, by a majority vote
of shareholders who were not parties to such proceeding;
provided , however , if Indemnitee fails to nominate
Independent Counsel within 10 business days following written
request by the Company to do so, the Board may select Independent
Counsel without a nomination by Indemnitee.
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To
be eligible for nomination, the "Independent Counsel" must be a law
firm, or a member of a law firm, that is experienced in matters of
corporation law and that neither presently is, nor in the past five
years has been, retained to represent any of the following:
(i) the Company or Indemnitee in any matter material to either
such party or any affiliates (as such term is defined in
Rule 405 under the Securities Act of 1933, as amended) of the
Company (whether or not they were affiliates when services were so
performed), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent 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.
(e) Consequences of
Delay . If the person(s) empowered or selected under Section
2(c) to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within 30 days after
receipt by the Company of the request therefor, Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially
misleading in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable
law; provided , however , that such 30 day
period may be extended for up to an additional 30 days, if the
person(s), making the determination in good faith requests such
additional time for the obtaining or evaluating documentation
and/or information relating thereto; and provided ,
further , that the foregoing provisions shall not apply if
the determination is to be made by the shareholders pursuant to
Section 2(d)(1)(D) of this Agreement.
(f) Indemnitee
Cooperation; Indemnitee Access . Indemnitee shall cooperate
with the person, persons or entity making such to determination
with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity, upon
reasonable request made in advance, any documentation or
information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to make such determination. The Company shall
afford to Indemnitee and Indemnitee’s representatives ample
opportunity to present evidence of the facts upon which Indemnitee
relies for indemnification, reimbursement or advancement together
with other information relating to any requested determination.
(g) Interpretation in
Case of FBCA Amendment . In the event the procedures for
determination of entitlement to indemnification as currently set
forth in the FBCA are amended to create any material inconsistency
between such procedures in the FBCA and the procedures set forth
herein, the procedures set forth herein shall also be deemed to be
amended in the same manner to the extent necessary to remove the
inconsistency without any further action on the part of the Company
or Indemnitee. To the extent that a change in the FBCA permits
greater indemnification or advancement of Expenses than would be
afforded currently under the FBCA, this Agreement shall also be
deemed to be amended in the same manner to the extent necessary to
afford Indemnitee the greater benefits of such change without any
further action on the part of the Company or Indemnitee.
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(h) Presumption in Favor
of Indemnification . In making a determination of entitlement
to indemnification under this Agreement, as a matter of intent and
to assist in any interpretation of the meaning of this Agreement,
it shall be presumed that indemnification is permissible unless
clearly precluded by this Agreement or the applicable provisions of
the FBCA, and the Company shall, to the fullest extent permitted by
applicable law, have the burden to overcome that
presumption.
3. Right to Advancement
of Expenses.
(a) General Right to
Advancement of Expenses; Company Right to Reimbursement . The
Company shall pay, in cash, Expenses incurred by Indemnitee in
investigating, defending, settling or appealing, or being or
preparing to be a witness in, any Proceeding in advance of the
final disposition of such Proceeding, without the need for any
action or decision by the Board, within 5 business days after
Indemnitee has complied with Section 4. If, and to the extent
that the Company determines pursuant to Sections 1 and 2 that
Indemnitee would not be permitted to be indemnified under the FBCA
or other applicable law, the Company shall be reimbursed, w
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