Exhibit 99.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT, is
made as of
, 2006 by and between Manpower Inc., a Wisconsin corporation (the
“Company”), and [Insert Name]
(“Indemnitee”).
WHEREAS, Indemnitee is a member of
the Board of Directors of the Company; and
WHEREAS, directors, in connection
with the performance of their duties as such, are increasingly
being subjected to costly and time-consuming liabilities and claims
relating to, among other things, matters that traditionally would
have been brought only against the corporation itself;
and
WHEREAS, it will be difficult to
attract and retain directors of the Company unless such persons are
adequately indemnified against liabilities incurred and claims made
in connection with performance of their duties as directors of the
Company; and
WHEREAS, it is in the best interests
of the Company and its shareholders that the Company take such
actions as are reasonable, prudent and necessary to attract and
retain highly competent directors; and
WHEREAS, Article VII of the
Company’s Amended and Restated By-laws (the
“By-laws”) provides for the indemnification by the
Company of directors of the Company and, as additional
consideration for the services of Indemnitee, the Company has
obtained at its expense directors’ and officers’
liability insurance (“D&O Insurance”) covering
Indemnitee with respect to Indemnitee’s position with the
Company; and
WHEREAS, the Company recognizes that
certain limitations and uncertainties exist with respect to the
indemnification protection provided under the By-laws and the
D&O Insurance; and
WHEREAS, to induce Indemnitee to
continue to serve as a member of the Board of Directors of the
Company, the Company has determined that it is in its best
interests to assure Indemnitee of the protection currently provided
by the By-laws and D&O Insurance and to provide certain
enhancements to such protection to the extent permitted by the
Wisconsin Business Corporation Law (the “WBCL”);
and
WHEREAS, Section 180.0858 of
the WBCL provides that directors of a Wisconsin corporation can,
subject to certain limitations, be granted indemnification rights
in addition to those provided in the WBCL pursuant to a written
agreement between a director and the Wisconsin
corporation;
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1.
Indemnification . The Company agrees to indemnify and hold
Indemnitee harmless to the fullest extent permitted under the WBCL
and the By-laws as in effect on the date hereof and as either may
be amended to provide more advantageous rights to Indemnitee. In
furtherance of the foregoing indemnification, and without limiting
the generality thereof:
(a) The Company
shall indemnify and hold harmless Indemnitee to the extent that he
or she has been successful on the merits or otherwise in the
defense of a Proceeding (including, but not limited to, termination
of any Proceeding by dismissal, with or without prejudice) for all
Expenses incurred in the Proceeding (i) if Indemnitee was a
Party to the Proceeding because he or she is a Director or Officer
of the Company or (ii) if the Proceeding arises out of any
action taken by, or alleged to have been taken by, or inaction, or
alleged inaction, on the part of, Indemnitee in his or her capacity
as a Director or Officer of the Company. If Indemnitee is
successful on the merits or otherwise as to one or more but less
than all claims, issues or matters in any Proceeding, the Company
shall indemnify Indemnitee for all Expenses incurred by Indemnitee
or on his or her behalf in connection with each successfully
resolved claim, issue or matter and any claim, issue or matter
related to such successfully resolved claim, issue or
matter.
(b) In cases not
included in Clause (a), above, the Company shall indemnify and hold
harmless Indemnitee for all Liabilities and Expenses incurred in a
Proceeding (i) if Indemnitee was a Party to the Proceeding
because he or she is a Director or Officer of the Company or
(ii) if the Proceeding arises out any action taken by, or
alleged to have been taken by, or inaction, or alleged inaction, on
the part of, Indemnitee in his or her capacity as a Director or
Officer of the Company, unless and only to the extent that the
Liabilities and Expenses were incurred because of a Breach of Duty
by Indemnitee.
(c) Notwithstanding
any other provision in this Agreement, to the extent that
Indemnitee is, because he or she is a Director or Officer of the
Company, a witness in any Proceeding to which he or she is not a
Party, Indemnitee shall be indemnified against all Expenses
incurred by him or her or on his or her behalf in connection
therewith.
2.
Contribution .
(a) Whether or not
the indemnification provided in Section 1 hereof is available,
nothing in this Agreement shall be construed as a limitation on
Indemnitee’s statutory, common-law or other legal rights to
contribution from the Company, or from its directors, officers,
employees and/or shareholders where otherwise appropriate and to
the extent permitted by law.
(b) Without
diminishing or impairing the rights set forth in Clause (a), above,
if, for any reason, Indemnitee shall elect or be required to pay
all or any portion of any Liabilities or Expenses in any Proceeding
in which the Company is jointly liable with Indemnitee, the Company
shall contribute to the amount of Liabilities and Expenses incurred
and paid or payable by Indemnitee in proportion to the relative
benefits received by the Company and all Directors and Officers of
the Company and employees and agents of the Company, other than
Indemnitee, who are jointly liable with Indemnitee, on the one
hand, and Indemnitee, on the other hand, from the event(s) or
transaction(s), the action or inaction, or alleged action or
inaction, from which the Proceeding arose; provided, however, that
the proportion determined on the basis of relative benefit may, to
the extent necessary to conform to law, be further adjusted by
reference to the
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relative fault of the Company and all Directors
and Officers of the Company and employees and agents of the
Company, other than Indemnitee, who are jointly liable with
Indemnitee, on the one hand, and Indemnitee, on the other hand, in
connection with the event(s) or transaction(s), action or inaction,
or alleged action or inaction, from which the Proceeding arose, as
well as any other equitable considerations which may be required to
be considered under applicable law. The relative fault of the
Company and all Directors and Officers of the Company and employees
and agents of the Company, other than Indemnitee, who are jointly
liable with Indemnitee, on the one hand, and Indemnitee, on the
other hand, shall be determined by reference to, among other
things, the degree to which the event(s) or transaction(s), their
action or inaction, or their alleged action or inaction, was
motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary and the
degree to which their conduct was active or passive.
3.
Defense of Claims .
(a) The Company
will be entitled to participate in the defense of any Proceeding at
its own expense. The Company will not settle any Proceeding (in
whole or in part) which would impose any Expense, Liability or
limitation on Indemnitee without Indemnitee’s prior written
consent, such consent not to be unreasonably withheld nor, where
applicable, without the consent of the Company’s D&O
Insurance carriers. Indemnitee will not settle any Proceeding (in
whole or in part) which would impose any Expense, Liability or
limitation on the Company without the Company’s prior written
consent, such consent not be unreasonably withheld nor, where
applicable, without the consent of the Company’s D&O
Insurance carriers.
(b) Notwithstanding
the provisions set forth in Clause (a) above, the defense of
any Proceeding shall be conducted in all respects in accordance
with the terms of the Company’s D&O Insurance policy in
effect at the time such Proceeding takes place.
4.
Allowance of Expenses as Incurred . Within 20 days after
receipt of a written request therefor by Indemnitee, the Company
shall pay or reimburse Indemnitee for all Expenses as incurred by
or on behalf of Indemnitee in connection with the investigation,
defense, settlement or appeal of any Proceeding to which Indemnitee
is a Party or is threatened to be made a Party. The request by
Indemnitee pursuant to this Section 4 must include all of the
following: (i) a written affirmation of Indemnitee’s
good faith belief that he or she has not engaged in a Breach of
Duty; and (ii) a written undertaking, executed personally or
on Indemnitee’s behalf, to repay the Expenses, without
interest, to the extent that there is a final determination
hereunder (as to which all rights of appeal have been exhausted or
lapsed) that indemnification under Section 1 is not required
and that indemnification is not ordered by a court under
Section 180.0854(2)(b) of the WBCL. Indemnitee shall not be
required to repay Expenses until such final determination (as to
which all rights of appeal have been exhausted or lapsed) has been
made. The undertaking under this Section 4 shall be an
unlimited general obligation of Indemnitee, shall be accepted
without reference to Indemnitee’s ability to repay the
Expenses and shall be unsecured.
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5.
Request for and Determination of Right to Indemnification
.
(a) Indemnitee
shall notify the Company in writing as soon as reasonably
practicable (i) after being served with any summons, citation,
subpoena, complaint, indictment, information or other document
relating to any Proceeding or (ii) if the Company has not been
previously notified, after receipt of written notice of any other
matter with respect to which Indemnitee intends to seek
indemnification or advancement of expenses under Section 1 and
Section 4. The omission by Indemnitee to so notify the Company
will not relieve the Company from any liability which it may have
to Indemnitee (i) under this Agreement except and only to the
extent the Company can establish that such omission to notify
resulted in actual material prejudice to the Company or
(ii) otherwise than under this Agreement.
(b) Indemnitee
may thereafter deliver to the Company a written request for
indemnification pursuant to this Agreement at such time and from
time to time as Indemnitee deems appropriate in his sole
discretion, which request shall also be deemed a request for
advancement of expenses under Section 4.
(c) Except
as otherwise provided pursuant to Sections 1(a) or 1(c), upon the
final disposition of the matter that is the subject of the request
for indemnification delivered pursuant to Section 5(b), a
determination shall be made with respect to Indemnitee’s
entitlement thereto (including entitlement to payment or
reimbursement of Expenses under Section 4) in the specific
case. If a Triggering Event shall not have occurred, such
determination shall be made (i) by a majority vote of a quorum
of the members of the Board consisting of directors who are not at
the time parties to the same or related Proceedings
(“Disinterested Directors”) or of a committee of
Disinterested Directors designated by a majority vote of the
Disinterested Directors (in either case, even though less than a
quorum of the Board) or (ii) if there are no Disinterested
Director or the Disinterested Directors so direct, by Independent
Counsel (selected in accordance with Clause (d) below). If a
Triggering Event shall have occurred, such determination shall be
made by Independent Counsel. Any determination made by Independent
Counsel pursuant to this Clause (c) shall be in the form of a
written opinion to the Board, a copy of which shall be delivered to
Indemnitee. Indemnitee shall reasonably cooperate with the person
or persons making such determination including providing to such
person or persons upon reasonable advance request any documentation
or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or expenses
(including fees and expenses of counsel) incurred by Indemnitee in
so cooperating with the person or persons making such determination
shall be borne by the Company (irrespective of the determination as
to Indemnitee’s entitlement to indemnification), and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(d) If
the determination is to be made by Independent Counsel, such
Independent Counsel shall be selected as provided in this Clause
(d). If a Triggering Event shall not have occurred, the Independent
Counsel shall be selected by the Board, and the Company shall give
written notice to Indemnitee advising him of the identity of the
Independent Counsel so selected. If a Triggering Event shall have
occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the
Board, in which
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event the preceding sentence shall apply), and
Indemnitee shall give written notice to the Company advising it of
the identity of the Independent Counsel so selected within
10 days after the final disposition of the matter that is the
subject of the request for indemnification. In either case, the
party receiving the notice may, within 10 days after receipt
thereof, deliver to the other a written objection to such
selection; provided that such objection may be asserted only
on the ground that the Independent Counsel so selected does not
meet the requirements of “Independent Counsel” as
defined in Section 11, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected shall act as
Independent Counsel. If a proper and timely objection is made, the
counsel selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court of competent
jurisdiction (or, at Indemnitee’s option pursuant to
Section 6, an arbitration) has determined that such objection
is without merit. If, within 20 days after receipt by the Company
of a request for indemnification pursuant to Clause (b) above,
no Independent Counsel shall have been selected and not objected
to, either the Company or Indemnitee may petition a court of
competent jurisdiction (or, at Indemnitee’s option pursuant
to Section 6, an arbitration) for resolution of any objection
which shall have been made to the selection of Independent Counsel
and/or for the appointment of another person as Independent
Counsel, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent
Counsel. The Company agrees to pay the reasonable fees and expenses
of any Independent Counsel appointed pursuant to this Section and
to indemnify such person against any and all expenses, claims,
liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto except for gross
negligence or willful misconduct.
(e) If
it is determined that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within 10 days after such
determination.
(f) In
making any determination as to Indemnitee’s entitlement to
indemnification hereunder, Indemnitee shall be entitled to a
presumption that he is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification
in accordance with Clause (b) above, and the Company shall
have the burdens of coming forward with evidence and of persuasion
to overcome that presumption.
(g) The
termination of any Proceeding or of any claim, issue or matter
therein by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not of itself
create a presumption (i) that there was a Breach of Duty on
the part of the Indemnitee or (ii) that Indemnitee did not
otherwise satisfy the applicable standard of conduct to be
indemnified pursuant to this Agreement.
(h) The
knowledge or actions or failure to act of any other director,
officer, employee or agent of the Company, employee benefit plan or
other entity, as applicable, shall not be imputed to Indemnitee for
purposes of determining Indemnitee’s right to indemnification
under this Agreement.
(i) If
a determination as to Indemnitee’s entitlement to
indemnification shall not have been made pursuant to this Agreement
within 60 days after the final disposition of the matter that is
the subject of the request for indemnification, the requisite
determination of entitlement to
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indemnification shall be deemed to have been
made in favor of Indemnitee, and Indemnitee shall be entitled to
such indemnification, absent a misstatement of a material fact in
the information provided by Indemnitee pursuant to Clause
(b) and Clause (c) above or an omission of a material
fact necessary in order to make the information provided not
misleading; provided that such 60-day period will be extended for a
period up to an additional 30 days after the selection of
Independent Counsel pursuant to Clause (d) if such
determination is to be made by Independent Counsel and if the
Company has acted with diligence and in good faith in the process
of selecting Independent Counsel, and provided further that such
60-day period (as so extended) will be extended for a reasonable
time, not to exceed an additional 30 days, if the person or persons
making the determination in good faith requires such a
