MPS GROUP, INC.
DIRECTOR'S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of [Date], by and between MPS
GROUP, INC., a Florida corporation (the "Corporation"), and [Director] (the
"Indemnitee").
WHEREAS, the Indemnitee is a member of the Board of Directors of the
Corporation and in such capacity is performing a valuable service for the
Corporation; and
WHEREAS, Section 607.0850 of the Florida Business Corporation Act, as
amended to date (the "State Statute"), specifically contemplates that contracts
may be entered into between the Corporation and members of its Board of
Directors with respect to indemnification of such officers and directors; and
WHEREAS, in order to provide to the Indemnitee assurances with respect to
the protection provided against liabilities that he may incur in the performance
of his duties to the Corporation, and to thereby induce the Indemnitee to
continue to serve as a member of its Board of Directors, the Corporation has
determined and agreed to enter into this Agreement with the Indemnitee;
NOW, THEREFORE, in consideration of the premises and the Indemnitee's
continued service as a director after the date hereof, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Indemnification. Subject only to the exclusions set forth in Section 2
hereof, and in addition to any other indemnity to which the Indemnitee
may be entitled under the State Statute or any By-law, resolution, or
agreement (but without duplication of payments with respect to
indemnified amounts), the Corporation hereby agrees to hold harmless
and indemnify the Indemnitee to the full extent that the State
Statute, or any amendment thereof or other statutory provision adopted
after the date hereof, authorizes, including, but not limited to,
holding harmless and indemnifying the Indemnitee against any and all
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the Indemnitee
in connection with any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or
investigative (including an action by or in the right of the
Corporation), to which the Indemnitee is, was, or at any time becomes
a party, or is threatened to be made a party, by reason of the fact
that the Indemnitee is, was, or at any time becomes a director,
officer, employee or agent of the Corporation or any subsidiary of the
Corporation, or is or was serving or at any time serves at the request
of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise. The indemnification hereunder shall be broader than that
provided for in the Articles of Incorporation and Bylaws, and in
addition to any rights granted thereunder.
2. Limitations on Indemnity. Indemnification or advancement of expenses
shall not be made to or on behalf of the Indemnitee:
(a) If a judgment or other final adjudication establishes that his
actions, or omissions to act, were material to the cause of
action so adjudicated and constitute:
(i) a violation of the criminal law, unless the Indemnitee had
reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful;
(ii) a transaction from which the Indemnitee derived an improper
personal benefit;
(iii)a circumstance under which the liability provisions of
Section 607.0834 of the State Statute are applicable to the
Indemnitee; or
(iv) willful misconduct or a conscious disregard for the best
interests of the Corporation in a proceeding by or in the
right of the Corporation to procure a judgment in its favor
or in a proceeding by or in the right of a shareholder.
(b) With respect to any suit in which final judgment is rendered
against the Indemnitee for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the
Corporation, pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 or similar provisions of any
federal, state, or local statutory law, or on account of any
payment by the Indemnitee to the Corporation in respect of any
claim for such an accounting.
(c) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
3. Contribution. If the indemnification provided for in Section 1 hereof is
unavailable and may not be paid to the Indemnitee for any reason other than
those set forth in Section 2(b) hereof, then in respect of any threatened,
pending, or completed action, suit, or proceeding in which the Corporation
is jointly liable with the Indemnitee (or would be if joined in such
action, suit or proceeding), the Corporation shall contribute, to the
extent it is not prohibited from doing so, to the amount of expenses
judgments, fines, and settlements paid or payable by the Indemnitee in such
proportion as is appropriate to reflect (a) the relative benefits received
by the Corporation on the one hand and the Indemnitee on the other hand
from the transaction from which such action, suit, or proceeding arose, and
(b) the relative fault of the Corporation on the one hand and of the
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
corporation on the one hand and of the 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 Corporation agrees that it would not be just and
equitable if contribution pursuant to this Section 3 were determined by pro
rata allocation or any other method of allocation that does not take
account of the foregoing equitable considerations.
4. Continuation of Obligations. All agreements and obligations of the
Corporation contained herein shall continue during the period the
Indemnitee is a director, officer, employee, or agent of the Corporation
(or is serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise) and shall continue thereafter for so long as
the Indemnitee shall be subject to any possible claim or threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
or investigative, by reason of the fact that the Indemnitee was an officer
or a director of the Corporation or serving in any other capacity referred
to herein.
5. Notification and Defense of Claim.
(a) Promptly after receipt by the Indemnitee of notice of the commencement
of any action, suit, or proceeding, the Indemnitee will, if a claim in
respect thereof is to be made against the Corporation under this
Agreement, notify the Corporation of the commencement thereof, but the
omission to so notify the Corporation will not relieve the Corporation
from any liability which it may have to the Indemnitee otherwise than
under this Agreement.
(b) With respect to any such action, suit, or proceeding as to which the
Indemnitee so notifies the Corporation:
(i) the Corporation will be entitled to participate therein at its
own expense; and
(ii) subject to Section 6 hereof, and if the Indemnitee shall have
provided his written affirmation of his good faith belief that
his conduct did not constitute behavior of the kind described in
Section 2(a) hereof and that he is entitled to indemnification
hereunder, the Corporation may assume the defense thereof.
Afternotice from the Corporation to the Indemnitee of its election so
to assume such defense, the corporation will not be liable to the
Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by the Indemnitee in connection with the defense
thereof, other than reasonable costs of investigation or as otherwise
provided below. The Indemnitee shall have the right to employ its
separate counsel in such action, suit, or proceeding, but the fees and
expenses of such counsel incurred after notice from the Corporation of
its assumption of the defense thereof shall be at the expense of the
Indemnitee unless (x) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (y) counsel designated by the
Corporation to conduct such defense shall not be reasonably
satisfactory to the Indemnitee, or (z) the Corporation shall not in
fact have employed counsel to assume the defense of such action, in
each of which case the fees and expenses of such counsel shall be at
the expense of the Corporation. For the purposes of clause (y) above,
the Indemnitee shall be entitled to determine that counsel designated
by the Corporation is not reasonably satisfactory if, among other
reasons, the Indemnitee shall have been advised by qualified counsel
that, because of actual or potential conflicts of interest in the
matter between the Indemnitee, other officers or directors similarly
indemnified by the Corporation, and/or the Corporation, representation
of the Indemnitee by counsel designated by the Corporation is likely
to materially and adversely affect the Indemnitee's interest or would
not be permissible under applicable canons of legal ethics.
(c) The Corporation shall not be liable to indemnify the Indemnitee under
this Agreement for any amounts paid in settlement of any action or
claim effected without the Corporation's written consent. The
Corporation shall not settle any action or claim in any manner which
would impose any penalty or limitation on the Indemnitee without the
Indemnitee's written consent. Neither the Corporation nor the
Indemnitee will unreasonably withhold consent to any proposed
settlement.
6. Advancement and Repayment of Expenses. Upon request therefor accompanied by
reasonably itemized evidence of expenses incurred, and by the Indemnitee's
written affirmation of his good faith belief that his conduct met the
standard applicable to indemnification pursuant to Section 1 hereof and did
not constitute behavior of the kind described in Section 2(a) hereof, and
that he is entitled to indemnification hereunder, the Corporation shall
advance to the Indemnitee the reasonable expenses (including attorneys'
fees and costs of investigation and defense (including the fees of expert
witnesses, other professional advisors, and private investigators))
incurred by him in defending any civil or criminal suit, action, or
proceeding for which the Indemnitee is entitled (assuming an applicable
standard of conduct is met) to indemnification pursuant to this Agreement.
In the alternative, and in the Indemnitee's exclusive discretion, the
Corporation will assume direct responsibility for the payment of all such
expenses after the Indemnitee has provided the Corporation with a written
request to assume direct responsibility for such payment and after he has
complied with the affirmation requirements provided above. The Indemnitee
agrees to reimburse the Corporation for all reasonable expenses paid by the
Corporation, whether pursuant to this Section or Section 5 hereof, in
defending any action, suit, or proceeding against the Indemnitee in the
event and to the extent that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation for such
expenses under this Agreement. Any advances and the Indemnitee's agreement
to repay shall be unsecured and interest-free.
7. Agreement to Serve. The Indemnitee hereby agrees to continue to serve as a
director of the Corporation faithfully and to the best of his ability so
long as he is duly elected and qualified in accordance with the provisions
of the By-laws or until such time as he tenders his resignation in writing.
8. Enforcement.
(a) The Corporation expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in
order to induce the Indemnitee to serve as an officer or a director of
the Corporation and acknowledges that the Indemnitee will in the
future be relying upon this Agreement in continuing to serve in such
capacity.
(b) If the Indemnitee is required to bring any action to enforce rights or
to collect moneys due under this Agreement and is successful in such
action, the Corporation shall reimburse the Indemnitee for all of the
Indemnitee's reasonable fees and expenses in bringing and pursuing
such action.
9. Separability. Each of the provisions of this Agreement is a separate and
distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable in whole or in part for
any reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions hereof.
10. Governing Law; Successors; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Florida.
(b) This Agreement shall be binding upon the Indemnitee and the
Corporation and its successors and assigns (including any transferee
of all or substantially all of its assets and any successor by merger
or otherwise by operation of law), and shall inure to the benefit of
the Indemnitee, his heirs, personal representatives, and assigns, and
to the benefit of the Corporation and its successors and assigns.
(c) No amendment, modification, termination, or cancellation of this
Agreement shall be effective unless in writing signed by both parties
hereto.
11. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which shall constitute one and the
same instrument.
12. Notices. All notices, requests and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been
duly given and received when delivered in person, when delivered by
overnight delivery service, or three business days after being mailed by
registered or certified mail, postage prepaid, return receipt requested, to
the following addresses (or to such other address as one party may from
time to time designate in writing to the other party hereto):
If to the Corporation:
MPS Group, Inc.
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Attn: Chief Executive Officer
with a copy to its Chief Legal Officer
If to the Indemnitee:
[Director Name and Address]
or his then current address
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MPS GROUP, INC.
By:
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Title:
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INDEMNITEE
[Director]