Exhibit 10.2
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the
“Agreement”) is made and entered into as of this
day of ,
2005, by and between GEORGIA-PACIFIC CORPORATION, a Georgia
corporation (the “Company”), and
(“Indemnitee”). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in
Section 16.
RECITALS :
WHEREAS , Indemnitee performs a valuable service for the
Company;
NOW, THEREFORE
, in consideration of
Indemnitee’s service as a director after the date hereof, the
parties hereto agree as follows:
1. Indemnification of
Indemnitee . Subject to Section 5, the Company hereby
agrees to hold harmless and indemnify Indemnitee if Indemnitee is a
party to a Proceeding by reason of his Corporate Status to the
maximum extent not prohibited by the GBCC, as the same now exists
or may hereafter be amended (but only to the extent any such
amendment permits the Company to provide broader indemnification
rights than the GBCC permitted the Company to provide prior to such
amendment); provided, however, that except as provided in
Section 6, Indemnitee shall not be entitled to indemnification
pursuant to this Agreement 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.
2. Advancement of Expenses
.
(a) Procedure for Advancement of
Expenses . The Company shall pay for or reimburse the Expenses
incurred by Indemnitee if Indemnitee was or is a party to a
Proceeding because of his Corporate Status in advance of final
disposition of the Proceeding if:
(i) Indemnitee furnishes the Company
a written affirmation, in a form reasonably acceptable to the
Company, of his good faith belief that he has met the standard of
conduct set forth in the GBCC or that the Proceeding involves
conduct for which liability has been eliminated under a provision
of the Articles of Incorporation as authorized by
Section 14-2-202(b)(4) of the GBCC; and
(ii) Indemnitee furnishes the
Company a written undertaking, in a form reasonably satisfactory to
the Company, to repay any advances if it is ultimately determined
that he is not entitled to indemnification under this Agreement.
Such undertaking must be an unlimited general obligation of
Indemnitee but need not be secured and may be accepted without
reference to the financial ability of Indemnitee to make
repayment.
(b) Notwithstanding any other
provision of this Agreement, the Company shall advance any and all
Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding to which Indemnitee is a party by reason of
Indemnitee’s Corporate Status within fifteen
(15) business days after Indemnitee has presented the
affirmation and undertaking required pursuant to Section 2(a).
Any advances and undertakings to repay pursuant to this
Section 2 shall be unsecured and interest free.
Notwithstanding the foregoing, the obligation of the Company to
advance Expenses pursuant to this Section 2 shall be subject
to the condition that, if, when and to the extent that the Company
determines that Indemnitee would not be permitted to be indemnified
under applicable law, the Company shall be reimbursed, within
thirty (30) days of such determination, by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however , that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made
by the Company that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any
advance of Expenses until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom
have been exhausted or lapsed).
3. Indemnification for Expenses
of a Party Who is Wholly or Partly Successful . Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is
successful on the merits or otherwise in any Proceeding, he shall
be indemnified against reasonable Expenses incurred by him in
connection with the Proceeding, regardless of whether Indemnitee
has met the standards set forth in the GBCC and without any action
or determination in accordance with Section 5. 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 Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved
claim, issue or matter.
4. Partial Indemnification .
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any costs,
claims or losses but not for the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.
5. Procedures and Presumptions
for Determination of Entitlement to Indemnification . It is the
intent of this Agreement to secure for Indemnitee rights of
indemnification that are as favorable as may be permitted under the
law and public policy of the State of Georgia. Accordingly, the
parties agree that the following procedures and presumptions shall
apply in the event of any question as to whether Indemnitee is
entitled to indemnification under this Agreement ( provided
, however , in the event the procedures for determination of
entitlement to indemnification as currently set forth in the GBCC
are amended to create any material inconsistency between such
procedures in the GBCC and the procedures set forth in paragraph
(b) below, the procedures set forth in paragraph
(b) 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):
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(a) To obtain indemnification
(including, but not limited to, the advancement of Expenses) under
this Agreement, Indemnitee shall submit to the Company a written
request 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. 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 in writing that Indemnitee has requested indemnification.
Any Expenses incurred by Indemnitee in connection with
Indemnitee’s request for indemnification hereunder shall be
borne by the Company. The Company hereby indemnifies and agrees to
hold Indemnitee harmless for any Expenses incurred by Indemnitee
under the immediately preceding sentence irrespective of the
outcome of the determination of Indemnitee’s entitlement to
indemnification.
(b) The Company shall not indemnify
Indemnitee under Section 1 unless a determination has been
made for a specific Proceeding that indemnification of Indemnitee
is permissible because Indemnitee has met the standards set forth
in the GBCC. The determination shall be made:
(i) If there are two or more
Disinterested Directors, by the Board of Directors by a majority
vote of all the Disinterested Directors (a majority of whom shall
for such purpose constitute a quorum) or by a majority of the
members of a committee of two or more Disinterested Directors
appointed by such a vote;
(ii) By special legal
counsel
(A) selected in the manner
prescribed in paragraph (i) of this subsection; or
(B) if there are fewer than two
Disinterested Directors, selected by the Board of Directors (in
which selection directors who do not qualify as Disinterested
Directors may participate); or
(iii) By the shareholders, but the
shares owned by or voted under the control of the officers and
directors who are at the time parties to the Proceeding may not be
voted on the determination;
provided, however, that following a
Change of Control of the Company, with respect to all matters
thereafter arising out of acts, omissions or events prior to the
Change of Control of the Company concerning the rights of
Indemnitee to seek indemnification under this Section 5, such
determination shall be made by special legal counsel nominated by
Indemnitee and selected by the Board of Directors or its committee
in the manner described in Section 5(b)(ii) above (which
selection shall not be unreasonably withheld), which counsel has
not otherwise performed services (other than in connection with
similar matters) within the five
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years preceding its engagement to
render such opinion for Indemnitee or for the Company 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)
(“Independent Counsel”). If Indemnitee fails to
nominate Independent Counsel within ten (10) business days
following written request by the Company to nominate Independent
Counsel, legal counsel selected by a resolution or resolutions of
the Board of Directors of the Company prior to a Change of Control
of the Company shall be deemed to have been selected by the Company
as required. Such Independent Counsel shall determine as promptly
as practicable whether and to what extent Indemnitee would be
permitted to be indemnified under applicable law and shall render
his written opinion to the Company and to Indemnitee to such
effect. The Company agrees to pay the reasonable fees of the
Independent Counsel referred to above and to fully indemnify such
Independent Counsel against any and all expenses, claims,
liabilities and damages arising out of or relating to this
Section 5 or its engagement pursuant hereto.
(c) If the person, persons or entity
empowered or selected under Section 5(b) to determine whether
Indemnitee is entitled to indemnification shall not have made a
determination within thirty (30) days after receipt by the
Company of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made
and 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 thirty (30) day period may be extended for a
reasonable time, not to exceed an additional thirty (30) days,
if the person, persons or entity making the determination with
respect to entitlement to indemnification in good faith requires
such additional time for the obtaining or evaluating documentation
and/or information relating thereto; and provided, further ,
that the foregoing provisions of this Section 5(c) shall not
apply if the determination of entitlement to indemnification is to
be made by the shareholders pursuant to Section 5(b)(iii) of
this Agreement and if within fifteen (15) days after receipt
by the Company of the request for such determination (A) the
Board of Directors or the Disinterested Directors, if appropriate,
resolve to submit such determination to the shareholders for their
consideration at an annual meeting thereof to be held within ninety
(90) days after such receipt and such determination is made
thereat, or (B) a special meeting of shareholders is called
for the purpose of making such determination, the meeting is held
for such purpose within ninety (90) days after having been so
called and the determination is made at the meeting.
(d) Indemnitee shall cooperate with
the person, persons or entity making such determination with
respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity 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 Independent Counsel, member of the Board of
Directors, or shareholder of the Company
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shall act reasonably and in good faith in making
a determination under the Agreement of Indemnitee’s
entitlement to indemnification. Any Expenses incurred by Indemnitee
in so cooperating with the person, persons or entity 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.
6. Remedies of Indemnitee; Legal
Fees and Expenses .
(a) If (i) a determination is
made pursuant to Section 5 of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement,
(ii) advancement of Expenses is not timely made pursuant to
Section 2 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to
Section 5(b) of this Agreement within one hundred twenty
(120) days after receipt by the Company of the request for
indemnification, or (iv) payment of indemnification is not
made within fifteen (15) busi
