Exhibit
99.2
INDEMNITY AGREEMENT OF
OFFICER
This INDEMNITY AGREEMENT (this
“ Agreement ”) is effective as of ____________
___, 2___, between Interface, Inc., a Georgia corporation (the
“ Company ”), and _____________
_____________________________ (“ Indemnitee
”).
WHEREAS , it is essential to the Company to retain and
attract as officers the most capable persons available;
and
WHEREAS , both the Company and Indemnitee recognize the
increased risk of litigation and other Claims being asserted
against officers of public companies in today’s environment
(note that certain capitalized terms used herein are defined in
Section 17 of this Agreement; and
WHEREAS , damages sought by class action plaintiffs in
some cases amount to tens of millions of dollars and, whether or
not the case is meritorious, the cost of defending them can be
enormous with few individual officers having the resources to
sustain such legal costs, not to mention the risk of a judgment
running into millions even in cases where the defendant was neither
culpable nor profited personally to the detriment of the
corporation; and
WHEREAS , Section 14-2-857 of the Georgia Business
Corporation Code (the “ Code ”) empowers
corporations to indemnify their officers to the same extent that a
director may be indemnified under the Code; and
WHEREAS , the Bylaws of the Company permit the Company
to indemnify any person who was or is a party or is threatened to
be made a party to a proceeding by reason of the fact that he is or
was a director or officer of the Company to the maximum extent
permitted by, and in the manner provided by, the Code;
and
WHEREAS , Section 14-2-859 of the Code empowers the
Company to adopt resolutions or enter into a contract approved by
the Company’s Board of Directors obligating the Company to
provide indemnification, advance funds or pay for or reimburse
expenses prior to any act or omission giving rise to a proceeding
pursuant to which indemnification is permitted; and
WHEREAS , on October 27, 1998 the Company’s Board
of Director adopted resolutions (the “ Resolutions
”) obligating the Company to indemnify directors and officers
of the Company to the fullest extent permitted by law, to advance
funds for expenses incurred and to take certain related actions;
and
WHEREAS , in recognition of Indemnitee’s need for
substantial protection against personal liability in order to
enhance Indemnitee’s service to the Company in an effective
manner, the increasing difficulty in obtaining satisfactory
directors’ and officers’ liability
insurance
coverage, and in part, to provide Indemnitee with additional
contractual assurances that indemnification protection provided
under the Company’s Bylaws and the Resolutions will be
available to Indemnitee (regardless of, among other things, any
amendment to or revocation of the Articles of Incorporation
(“ Articles ”) or Bylaws (“ Bylaws
”) of the Company or any change in the composition of the
Company’s Board of Directors or acquisition transaction
relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses
to Indemnitee to the fullest extent (whether partial or complete)
authorized or permitted by law and as set forth in this Agreement,
and for the continued coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies; and
WHEREAS , in order to induce Indemnitee to serve or
continue to serve as an officer, the Company has agreed to provide
Indemnitee with the benefits contemplated by this Agreement;
and
WHEREAS , the Company’s Board of Directors is
making no determination by this Agreement that indemnification of
Indemnitee for any particular act or omission giving rise to a
proceeding is permissible;
NOW, THEREFORE , in consideration of the premises and of
Indemnitee agreeing to serve or to continue to serve the Company
directly or, at its request, another enterprise, and intending to
be legally bound hereby, the parties hereto agree as
follows:
1. Basic
Indemnification Arrangement and Advances for Expenses
.
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a)
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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 Claim by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent a Georgia corporation is
authorized or permitted by law, without shareholder approval as
provided in Section 14-2-856 of the Code, to indemnify its officers
and directors, as soon as practicable but in any event no later
than thirty (30) days after written demand is presented to the
Company, against any and all Expenses, judgments, fines, penalties
(whether civil, criminal or other) and amounts paid in settlement
(including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) of such
Claim; provided , however , that, except for
proceedings to enforce rights to indemnification, the Company shall
not be obligated to indemnify Indemnitee in connection with a
proceeding (or part thereof) initiated by Indemnitee unless such
proceeding (or part thereof) was authorized in advance, or
unanimously consented to, by the Company’s Board of
Directors. If so requested by Indemnitee, the Company shall, before
final disposition of a Claim, advance (within five (5) business
days of such request) any and all Expenses to Indemnitee to the
fullest extent a Georgia corporation is
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authorized or
permitted, without shareholder approval as provided in Section
14-2-856 of the Code, to advance Expenses to its officers and
directors (an “ Expense Advance ”).
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b)
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Notwithstanding
the foregoing, (i) the obligations of the Company under Section
1(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in
which the Independent Legal Counsel referred to in Section 2
hereof is involved) that Indemnitee would not be permitted to be
indemnified under applicable law; provided , however
, that no entitlement decision need be made prior to an Expense
Advance, and (ii) the obligation of the Company to make an Expense
Advance pursuant to Section 1(a) shall be subject to the
condition that Indemnitee delivers to the Company: (A) a written
affirmation of his or her good faith belief that he or she has met
the relevant standard of conduct under the Code; and (B) his or her
written undertaking to repay any Expense Advance if it is
ultimately determined that Indemnitee is not entitled to
indemnification under this Agreement, the Resolutions, Articles or
the Code, which 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.
Notwithstanding the foregoing, 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
Reviewing Party 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
Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed). If there has not been a Change in
Control, the Reviewing Party shall be selected by the
Company’s Board of Directors, and if there has been such a
Change in Control, the Reviewing Party shall be the Independent
Legal Counsel referred to in Section 2 hereof. If there has
been no determination by the Reviewing Party or if the Reviewing
Party determines that Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable
law, Indemnitee shall have the right to commence litigation in any
court in the State of Georgia having subject matter jurisdiction
thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, including the legal or
factual bases therefor, and the Company hereby consents to service
of process and to appear in any such proceeding. Any determination
by the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
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c)
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No change in
the Articles, Bylaws or Resolutions or in the Code subsequent to
the date of this Agreement shall have the effect of limiting or
eliminating the indemnification available under this Agreement as
to any act, omission or
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capacity for
which this Agreement provides indemnification at the time of such
act, omission or capacity. If any change after the date of this
Agreement in any applicable law, statute or rule expands the power
of the Company to indemnify Indemnitee, such change shall to the
same extent expand Indemnitee’s rights and the
Company’s obligations under this Agreement. If any change in
any applicable law, statute or rule diminishes the power of the
Company to Indemnify Indemnitee, such change, except to the extent
otherwise required by law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the
parties’ rights and obligations hereunder.
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d)
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If the
indemnification provided in Section 1(a) is unavailable or
may not be paid to Indemnitee for any reason, then in respect of
any threatened, pending or completed Claim in which the Company is
jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding) other than any Claim in which final
judgment is rendered against Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities
of the Company, pursuant to the provisions of Section 16(b) of the
Exchange Act or similar provisions of any federal, state or local
statutory law, or on account of any payment by Indemnitee to the
Company in respect of any claim for such an accounting, the Company
shall contribute to the amount of expenses, judgments, fines and
settlements paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the
Company on the one hand and Indemnitee on the other hand from the
transaction from which such action, suit or proceeding arose, and
(ii) the relative fault of the Company on the one hand and of
Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts,
as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of Indemnitee on
the other shall be determined by reference to, among other things,
the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances
resulting in such expenses, judgments, fines or settlement amounts.
The Company agrees that it would not be just and equitable if
contribution pursuant to this Section 1(d) were determined
by pro rata allocation or any other method of allocation that does
not take account of the foregoing equitable
considerations.
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2. Change
in Control . The Company agrees that if there is a Change in
Control, then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and
Expense Advances under this Agreement, the Resolutions or any other
agreement, or any Article or Bylaw provision now or hereinafter in
effect relating to Claims for Indemnifiable Events, any
determinations to be made by a Reviewing Party pursuant to the
Resolutions or Section 14-2-855 of the Code, shall be made on
behalf of the Company by Independent Legal Counsel selected by the
Company in accordance with Section 14-2-855 from a list of at least
three attorneys or firms of attorneys qualified to serve as
Independent
Legal Counsel
provided by Indemnitee; provided, however, that in the event there
are multiple officers and directors seeking indemnification with
respect to a matter (the “indemnified parties”), the
Company shall be obligated to select only one Independent Legal
Counsel which shall be (i) selected from the aggregate of all lists
of attorneys or firms submitted by the indemnified parties involved
in such matter and (ii) not objected to in writing by any such
indemnified party within ten (10) days of written notice of the
identity of such Independent Legal Counsel to all such indemnified
parties on any reasonable basis set forth in such notice of
objection. Such counsel, among other things, shall render its
written opinion to the Company and Indemnitee as to whether and to
what extent Indemnitee would be permitted to be indemnified under
this Agreement, the Resolutions and applicable law. The Company
agrees to pay the reasonable fees o
