Indemnification
Agreement
This Indemnification Agreement is entered into,
effective as of the _____day of September 2004 between Raymond
James Financial, Inc., a Florida corporation (the
“Company”) and
________________________(“Indemnitee”).
A.
It is essential to the Company that
it attracts and retains capable persons as directors, including
directors who are also officers.
B.
Both the Company and Indemnitee
recognize that given the uncertainties of the business, corporate
governance and legal climate, directors and officers of publicly
held corporations face greater risks of personal liability in the
current business climate arising from their service as directors or
officers of such corporations.
C.
Indemnitee is a director of the
Company, member of various committees of the Board of Directors of
the Company, and presently serves as and as such is performing a
valuable service to or on behalf of the Company.
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D.
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In recognition
of Indemnitee’s need for protection against personal
liability, and in order to enhance Indemnitee’s continued and
effective service to or for the Company, in whatever capacity he
may serve from time to time, whether:
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(1) at the request of the Company, as a member
of the Board of Directors, a member or officer of any committee of
the Board of Directors, an officer, fiduciary, employee, agent or
advisor of the Company, as a director, officer, fiduciary,
employee, agent or advisor of another corporation, partnership,
joint venture, or other enterprise that is an Affiliate of the
Company or any employee benefit plan or trust sponsored by the
Company or any such Affiliate; or
(2) at the written request of the Company, as a
member of the board of directors, a member of any committee of the
board of directors, an officer, fiduciary employee, agent or
advisor of any corporation, partnership, joint venture or other
enterprise that is not an Affiliate of the Company;
the Company
wishes to provide in this Agreement, in addition to indemnification
for which Indemnitee is entitled under the Company’s articles
or incorporation or bylaws, for the indemnification of and the
advancement of expenses to Indemnitee, and other rights, to the
fullest extent permitted by applicable law.
In consideration of the above recitals and of
Indemnitee’s continuing to serve the Company directly or, at
its request, another enterprise, and intending to be legally bound
hereby, the parties agree as follows:
“ Affiliate ”: (a) any entity
which, directly or indirectly, controls, is controlled by, or is
under common control with, the referenced individual or entity, or
(b) any individual who, directly or indirectly, controls the
referenced entity. For purposes of this definition, the terms
“control”, "controlled by" and “under common
control with” mean the power, directly or indirectly, to: (i)
vote 10% or more of the securities (including, without limitation,
convertible securities) having ordinary voting power; or (ii)
direct or cause the direction of the management or policies of an
entity whether by contract or otherwise.
Applicable Expenses : any expense, including, without limitation,
reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees and expenses of experts, including, without
limitation, accountants and other advisors, travel expenses,
duplicating costs, postage, delivery service fees, filing fees, and
all other disbursements or expenses reasonably paid or incurred in
connection with investigating, defending, being a witness in, or
participating in (including, without limitation, on appeal), or
preparing for any of the foregoing in, any Proceeding relating to
an Indemnifiable Event, and any such expenses reasonably paid or
incurred in establishing a right to indemnification under Sections
2, 4 or 5 of this Agreement.
Board : the Board of Directors of the
Company.
Change in Control : shall be deemed to have occurred if: (i) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act, other than any one or more of the
Excluded Persons, is or becomes the Beneficial Owner (as defined in
Rule 13d-3 under such Act), directly or indirectly, of securities
of the Company representing 20% or more of the total voting power
represented by the Company’s then outstanding Voting
Securities; or (ii) during any period of 25 consecutive calendar
months, beginning on the date of this Agreement, those individuals
(the “Continuing Directors”), who (A) were directors of
the Company on the first day of any such period or (B) subsequently
became directors of the Company and whose initial election or
initial nomination for election subsequent to that date was
approved by a majority of the Continuing Directors then on the
Board, cease to constitute a majority of the Board; or (iii) the
shareholders of the Company approve a merger or consolidation of
the Company with any other corporation or entity, other than a
merger or consolidation that would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation; or (iv) the shareholders of the Company
approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially
all of the Company’s assets; or (v) a liquidator, trustee or
other similar person is appointed for all, or substantially all, of
the assets of the Company.
Company : Raymond James Financial, Inc. and any of its
successors or permitted assigns under this Agreement.
Disinterested Director : a director of the Company who is not an
employee of the Company or any of its Affiliates and who, in the
event that a Proceeding has been initiated, is not a party to the
Proceeding in respect of which indemnification is sought by
Indemnitee.
Exchange Act : the Securities Exchange Act of 1934, as
amended.
Excluded Persons : shall consist of Thomas A. James, the wife,
children and grandchildren of Thomas A. James, the Robert A. and
Helen James’ Children Annuity Trust, any estate planning
trust established by Thomas A. James as the grantor, or any trustee
or other fiduciary holding securities under an employee benefit
plan of the Company
Indemnifiable Event : any event or occurrence that takes place
either prior to or after the execution of this Agreement that is:
(i) related to the fact that Indemnitee is or was serving (A) at
the request of the Company, as a member of the Board of Directors,
a member or officer of any committee of the Board of Directors, an
officer, fiduciary, employee, agent or advisor of the Company, as a
director, officer, fiduciary, employee, agent or advisor of another
corporation, partnership, joint venture, or other enterprise that
is an Affiliate of the Company or any employee benefit plan or
trust sponsored by the Company or any such Affiliate; or (B) at the
written request of the Company, as a member of the board of
directors, a member of any committee of the board of directors, an
officer, fiduciary employee, agent or advisor of any corporation,
partnership, joint venture or other enterprise that is not an
Affiliate of the Company, or (ii) related to any act or omission,
or alleged act or omission, by Indemnitee in any capacity described
in clause (i) of this definition, whether or not any basis of the
Proceeding is the acts or omissions or alleged acts or omissions of
Indemnitee, and whether or not such acts or omissions were, or are
alleged to have been, committed in any official capacity described
in clause (i) of this definition); provided, however, that an
Indemnifiable Event shall not mean any claim against Indemnitee for
an accounting of profits made for the purchase or sale by
Indemnitee of securities of the Corporation in violation of the
provisions of Section 16(b) of the Exchange Act or similar
provisions of any federal, state or local statutory law.
Indemnitee : shall be as defined in the opening paragraph
of this Agreement.
Independent Counsel : a law firm, or a member of a law firm, that is
experienced in matters of corporation and securities law and
neither at the time of designation is, nor in the three years
immediately preceding such designation was, retained to represent:
(i) the Company or Indemnitee in any matter material to either such
party; or (ii) any other party to the Proceeding giving rise to a
claim for indemnification under this Agreement. 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 to indemnification
under this Agreement, regardless of when Indemnitee’s act or
failure to act occurred or is alleged to have occurred.
Proceeding : any threatened, pending, or completed action,
suit, arbitration, alternative dispute mechanism, administrative or
legislative hearing, inquiry or investigation including, without
limitation, any appeal, whether conducted by or on behalf of the
Company or by or on behalf of any other party, whether civil,
criminal, administrative, investigative, or other, and whether or
not commenced prior to, on or after the date of this Agreement,
that relates to an Indemnifiable Event.
Reviewing Party : the person or body making the determination,
under Section 3(a) or 3(b), as to Indemnitee’s entitlement to
indemnification.
Voting Securities : any securities of the Company that vote
generally in the election of directors.
2.
Agreement to Indemnify
.
(a)
General Agreement
. In the event Indemnitee was, is,
or becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, a Proceeding by reason of (or arising in whole or in part out
of) an Indemnifiable Event, the Company shall indemnify Indemnitee
against any and all Applicable Expenses, liabilities, losses,
judgments, fines, ERISA excise taxes and penalties, amounts paid or
to be paid in settlement, and any interest, assessments, or other
charges imposed thereon, to the fullest extent permitted by
applicable law to be indemnified by agreement, as such applicable
law exists or may hereafter be amended or interpreted (but in the
case of any such amendment or interpretation, only to the extent
that such amendment or interpretation permits the Company to
provide broader indemnification rights than were permitted prior
thereto). The parties hereto intend that this Agreement shall
provide for indemnification in excess of that expressly permitted
by statute in the absence of an agreement.
(b)
Expense Advances
. If so requested by Indemnitee,
the Company shall advance to Indemnitee any and all Applicable
Expenses incurred by Indemnitee (an “Expense Advance”)
within thirty (30) calendar days after the receipt by the Company
of a statement or statements from Indemnitee requesting such
Expense Advance (together with reasonable supporting documentation
in the possession of Indemnitee or available to Indemnitee with
respect to the Applicable Expenses incurred), whether prior to or
after final disposition of any Proceeding. Any Expense Advance
shall be made without regard to Indemnitee’s ability to repay
the amount of the Expense Advance and without regard to
Indemnitee’s ultimate entitlement to indemnification under
the provisions of this Agreement. Indemnitee hereby agrees to repay
the Expense Advance if and to the extent that it is ultimately
determined by a final judicial determination (as to which all
rights of appeal therefrom have been exhausted or have lapsed) that
Indemnitee is not entitled to indemnification by the Company under
this Agreement. If Indemnitee has commenced legal proceedings in a
court of competent jurisdiction to secure a determination that
Indemnitee is entitled, under applicable law, to be indemnified
under this Agreement, as provided in Section 4, any determination
made by the Reviewing Party that Indemnitee is not entitled, under
applicable law, to be indem
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