Exhibit 10.1
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as
of
,
2009, by and among The PBSJ Corporation, a Florida corporation (the
“Company”), and the director and/or officer of the
Company whose name appears on the signature page of this Agreement
(“Indemnitee”).
RECITALS
A. Highly competent persons are
becoming more reluctant to serve publicly-held corporations as
directors or officers or in other capacities unless they are
provided with reasonable protection through insurance or
indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the
corporations.
B. The Board of Directors of the
Company (the “Board”) has determined that the Company
should act to assure its directors and officers that there will be
increased certainty of such protection in the future.
C. It is reasonable, prudent and
necessary for the Company contractually to obligate itself to
indemnify such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so
indemnified.
D. Indemnitee is willing to serve,
to continue to serve and to take on additional service for or on
behalf of the Company on the condition that Indemnitee be so
indemnified.
E. In consideration of the benefits
received and to be received by the Company in connection with
actions taken and to be taken by the Board and by the officers of
the Company, the Company has determined that it is in its best
interests for the reasons set forth above to be a party to this
Agreement and to provide indemnification to the directors and
officers of the Company in connection with their service to and
activities on behalf of the Company.
AGREEMENT
In consideration of the premises and
the covenants contained herein, the Company and Indemnitee do
hereby covenant and agree as follows:
1. Definitions .
(a) For purposes of this
Agreement:
(i) “Affiliate” shall
mean any corporation, partnership, joint venture, trust or other
enterprise in respect of which Indemnitee is or was or will be
serving as a director or officer directly or indirectly at the
request of the Company and including, but not limited to, service
with respect to an employee benefit plan.
(ii) “Disinterested
Director” shall mean a director of the Company who is not or
was not a party to the Proceeding in respect of which
indemnification is being sought by Indemnitee.
(iii) “Expenses” shall
include all attorneys’ fees and costs, retainers, court
costs, transcripts, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or
expenses incurred in connection with asserting or defending
claims.
(iv) “fines” shall
include any excise taxes assessed on Indemnitee with respect to any
employee benefit plan.
(v) “Independent
Counsel” shall mean a law firm or lawyer that neither is
presently nor in the past year has been retained to represent:
(i) the Company or Indemnitee in any matter material to any
such party or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder in any matter
material to such other party. Notwithstanding the foregoing, the
term “Independent Counsel” shall not include any firm
or person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in
representing any of the Company or Indemnitee in an action to
determine Indemnitee’s right to indemnification under this
Agreement. All Expenses of the Independent Counsel incurred in
connection with acting pursuant to this Agreement shall be borne by
the Company.
(vi) “Losses” shall mean
all expenses, liabilities, losses and claims (including
attorneys’ fees, judgments, fines, excise taxes under the
Employee Retirement Income Security Act of 1974, as amended from
time to time, penalties and amounts to be paid in settlement)
incurred in connection with any Proceeding.
(vii) “Proceeding” shall
include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative.
(b) For purposes of this Agreement,
a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement; the term
“serving at the request of the Company” shall include
any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and references to
the “Company” shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had
power and authority to indemnify Indemnitee in its capacity as a
director, officer, or employee or agent, so that Indemnitee shall
stand in the same position under this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with
respect to such constituent corporation if its separate existence
had continued.
2. Service by Indemnitee .
Indemnitee agrees to begin or continue to serve the Company or any
Affiliate as a director and/or officer. Notwithstanding anything
contained herein, this Agreement shall not create a contract of
employment between the Company and Indemnitee, and the termination
of Indemnitee’s relationship with the Company or an Affiliate
by either party hereto shall not be restricted by this
Agreement.
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3. Indemnification . The
Company agrees to indemnify Indemnitee for, and hold Indemnitee
harmless from and against, any Losses or Expenses at any time
Incurred by or assessed against Indemnitee arising out of or in
connection with the service of Indemnitee as a director or officer
of the Company or of an Affiliate (collectively referred to as an
“Officer or Director of the Company”) to the fullest
extent permitted by the laws of the State of Florida in effect on
the date hereof or as such laws may from time to time hereafter be
amended to increase the scope of such permitted indemnification.
Without diminishing the scope of the indemnification provided by
this Section, the rights of indemnification of Indemnitee provided
hereunder shall include but shall not be limited to those rights
set forth hereinafter.
4. Action or Proceeding Other
Than an Action by or in the Right of the Company . Indemnitee
shall be entitled to the indemnification rights provided herein if
Indemnitee is a person who was or is made a party or is threatened
to be made a party to or is involved (including, without
limitation, as a witness) in any Proceeding (other than an action
by or in the name of the Indemnitee (unless approved in advance in
writing by the Company’s Board of Directors), or the Company,
as the case may be) by reason of (a) the fact that Indemnitee
is or was an Officer or Director of the Company or any other entity
which Indemnitee is or was or will be serving at the request of the
Company, or (b) anything done or not done by Indemnitee in any
such capacity.
5. Actions by or in the Right of
the Company . Indemnitee shall be entitled to the
indemnification rights provided herein if Indemnitee is a person
who was or is a party or is threatened to be made a party to or is
involved (including, without limitation, as a witness) in any
Proceeding brought by or in the right of the Company to procure a
judgment in its favor by reason of (a) the fact that
Indemnitee is or was an Officer or Director of the Company or any
Affiliate, or (b) anything done or not done by Indemnitee in
any such capacity. Pursuant to this Section, Indemnitee shall be
indemnified against Losses or Expenses incurred or suffered by
Indemnitee or on Indemnitee’s behalf in connection with the
defense or settlement of any Proceeding if 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. Notwithstanding
the foregoing provisions of this Section, no such indemnification
shall be made in respect of any claim, issue or matter as to which
Florida law expressly prohibits such indemnification by reason of
an adjudication of liability of Indemnitee to the Company unless
and only to the extent that the court in which such action or suit
was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to indemnity
for such Losses and Expenses which such court shall deem
proper.
6. Indemnification for Losses and
Expenses of Party Who is Wholly or Partly Successful .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been wholly successful on the merits or
otherwise in any Proceeding referred to in Sections 3, 4 or 5
hereof on any claim, issue or matter therein, Indemnitee shall be
indemnified against all Losses and Expenses incurred by Indemnitee
or on Indemnitee’s behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less
than all claims, issues or matters in such Proceeding,
the
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Company agrees to indemnify Indemnitee to the
maximum extent permitted by law against all Losses and Expenses
incurred by Indemnitee in connection with each successfully
resolved claim, issue or matter. In any review or Proceeding to
determine the extent of indemnification, the Company shall bear the
burden of proving any lack of success and which amounts sought in
indemnity are allocable to claims, issues or matters which were not
successfully resolved. For purposes of this Section and without
limitation, the termination of any such claim, issue or matter by
dismissal with or without prejudice shall be deemed to be a
successful resolution as to such claim, issue or matter.
7. Payment for Expenses of a
Witness . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of the fact
that Indemnitee is or was an Officer or Director of the Company or
any Affiliate, as the case may be, a witness in any
Proceeding
