EXHIBIT 10.80
STAFF BUILDERS, INC. (a Delaware corporation)
INDEMNIFICATION AGREEMENT
with
XXXXXX XXXXXX
THIS AGREEMENT, made and entered into as of May 2, 1995
("Agreement"), by and between STAFF BUILDERS, INC., a Delaware
corporation (the "Company"), and XXXXXX XXXXXX ("Indemnitee"):
WHEREAS, highly competent persons are becoming more
reluctant to serve publicly-held corporations as officers or in
other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out
of their service to and activities on behalf of the corporation;
and
WHEREAS, the current impracticability of obtaining
adequate insurance and the uncertainties relating to
indemnification have increased the difficulty of attracting and
retaining such persons; and
WHEREAS, the Board of Directors of the Company (the
"Board of Directors") has determined that the inability to
attract and retain such persons is detrimental to the best
interests of the Company's stockholders and that the Company
should act to assure such persons that there will be increased
certainty of such protection in the future; and
WHEREAS, 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; and
WHEREAS, Indemnitee is willing to serve, continue to
serve and to take on additional service for or on behalf of the
Company on the condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and
the covenants contained herein, the Company and Indemnitee do
hereby covenant and agree as follows:
Section 1. Services by Indemnitee. Indemnitee agrees
to continue to serve as a director of the Company subject to the
terms and conditions of his employment agreement, dated as of
April 15, 1991, as such agreement may be amended, renewed or
extended from time to time.
Section 2. Indemnification -- General. The Company
shall indemnify, and advance Expenses (as hereinafter defined) to
Indemnitee as provided in this Agreement and to the fullest
extent permitted by applicable law in effect on the date hereof
and to such greater extent as applicable law may thereafter from
time to time permit. The rights of Indemnitee provided under the
preceding sentence shall include, but shall not be limited to,
the rights set forth in the other Sections of this Agreement.
Section 3. Proceedings Other Than Proceedings by or in
the Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 3 if, by
reason of his Corporate Status (as hereinafter defined), he is,
or is threatened to be made, a party to any threatened, pending,
or completed Proceeding (as hereinafter defined), other than a
Proceeding by or in the right of the Company. Pursuant to this
Section 3, Indemnitee shall be indemnified against Expenses,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him on his behalf in
connection with such Proceeding or any claim, issue or matter
therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal Proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 4. Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the rights of
indemnification provided in this Section 4 if, by reason of his
Corporate Status, he is, or is threatened to be made, a party to
any threatened, pending or completed Proceeding brought by or in
the right of the Company to procure a judgment in its favor.
Pursuant to this Section, Indemnitee shall be indemnified against
Expenses actually and reasonably incurred by him or on his behalf
in connection with such Proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company
if applicable law prohibits such indemnification; provided,
however, that if applicable law so permits, indemnification
against Expenses shall nevertheless be made by the Company in
such event if and only to the extent that the Court of Chancery
of the State of Delaware, or the Court in which such Proceeding
shall have been brought or is pending, shall determine.
Section 5. 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 all Expenses actually and reasonably incurred
by him or on his 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 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. For purposes of
this Section, and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as
to such claim, issue or matter.
Section 6. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness in any Proceeding, he shall be indemnified against all
expenses actually and reasonably incurred by him or on his behalf
in connection therewith.
Section 7. Advancement Of Expenses. The Company shall
advance all reasonable Expenses incurred by or on behalf of
indemnitee in connection with any Proceeding within twenty days
after the receipt by the Company of a statement or statements
from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or
be preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it shall ultimately
be determined that Indemnitee is not entitled to be indemnified
against such Expenses.
Section 8. Procedure for Determination of Entitlement
to Indemnification.
(a) To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request,
including therein or therewith such documentation and information
as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The 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.
(b) Upon written request by Indemnitee for
indemnification pursuant to the first-sentence of Section 8(a)
hereof, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall be made in the
specific case: (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as
hereinafter defined) (unless Indemnitee shall request that such
determination be made by the Board of Directors or the
stockholders, in which case by the person or persons or in the
manner provided for in clause (ii) or (iii) of this Section 8(b))
in a written opinion to the Board of Directors, a copy of which
shall be delivered to Indemnitee; (ii) if a Change of Control
shall not have occurred, (A) by the Board of Directors by a
majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (B) if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board
of Directors, a copy of which shall be delivered to Indemnitee,
or (C) by the stockholders of the Company; or (iii) as provided
in Section 9(b) of this Agreement; and, if it is so determined
that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten (10) days after such
determination. 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 costs or expenses (including attorneys, fees
and disbursements) 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 indemnities and agrees to hold Indemnitee harmless
therefrom.
(c) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 8(b) hereof, Independent Counsel shall be selected as
provided in this Section 8(c). If a Change of Control shall not
have occurred, Independent Counsel shall be selected by the Board
of Directors, and the Company shall give written notice to
Indemnitee advising him of the identity of Independent Counsel so
selected. If a Change of Control shall have occurred,
Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board
of Directors, in which event the preceding sentence shall apply),
and Indemnitee shall give written notice to the Company advising
it of the identity of Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may, within
7 days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case may
be, a written objection to such selection. Such objection may be
asserted only on the ground that Independent Counsel so selected
does not meet the requirements of "Independent Counsel" as
defined in Section 17 of this Agreement, and the objection shall
set forth with particularity the factual basis of such assertion.
If such written objection is made, Independent Counsel so
selected may not serve as Independent Counsel unless and until a
court has determined that such objection is without merit. if,
within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 8(a) hereof, no
Independent Counsel shall have been selected and not objected to,
either the Company or indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent
jurisdiction for resolution of any objection which shall have
been made by the Company or Indemnitee to the other's selection
of Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the Court or by such other person
as the Court shall designate, and the person with respect to whom
an objection is so resolved or the person so appointed shall act
as Independent Counsel under Section 8(b) hereof. The Company
shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with
acting pursuant to Section 8(b) hereof, and the Company shall pay
all reasonable fees and expenses incident to the procedures of
this Section 8(c), regardless of the manner in which such
Independent Counsel was selected or appointed. Upon the due
commencement of any judicial proceeding or arbitration pursuant
to Section 10(a)(iii) of this Agreement, Independent Counsel
shall be discharged and relieved of any further responsibility in
such capacity (subject to the applicable standards of
professional conduct then prevailing).
Section 9. Presumptions and Effect of Certain
Proceedings.
(a) If a Change of Control shall have occurred, in
making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making
such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted
a request for indemnification in accordance with Section B(a) of
this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that
presumption.
(b) If the person, persons or entity empowered or
selected under Section 8 of this Agreement to determine whether
Indemnitee is entitled to indemnification shall not have made a
determination within 60 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 60-day period
may be extended for a reasonable time, not to exceed an
additional 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 of documentation and/or information relating thereto;
and provided, further, that the foregoing provisions of this
Section 9(b) shall not apply (i) if the determination of
entitlement to indemnification is to be made by the stockholders
pursuant to Section B(b) of this Agreement and if (A) within 15
days after receipt by the Company of the request for such
determination the Board of Directors has resolved to submit such
determination to the stockholders for their consideration at an
annual meeting thereof to be held within 75 days after such
receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within 15 days after such
receipt for the,purpose of making such determination, such
meeting is held within 60 days after having been so called and
such determination is made thereat, or (ii) if the determination
of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 8(b) of this Agreement:.
(c) The termination of any Proceeding or of any claim,
issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contenders or its equivalent,
shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company or,
with respect to any criminal proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
Section 10. Remedies of Indemnitee.
(a) In the event that (i) a determination is made
pursuant to Section 8 of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement, (ii) advance-
ment of Expenses is not timely made pursuant to Section 7 of this
Agreement, (iii) the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 8(b) of this Agreement and such determination shall not
have been made and delivered in a written opinion within 90 days
after receipt by the Company of the request for indemnification,
or (iv) payment of indemnification is not made pursuant to
Section 6 of this Agreement within ten (10) days after receipt by
the Company of a written request therefor, or (v) payment of
indemnification is not made within ten (10) days after a
determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made
pursuant to Section 8 or 9 of this Agreement, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State
of Delaware, or in any other court of competent jurisdiction, of
his entitlement to such indemnification or advancement of
Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association.
Indemnitee shall commence such proceeding seeking an adjudication
or an award in arbitration within 180 days following the date on
which Indemnitee first has the right to commence such proceeding
pursuant to this Section 10(a). The Company shall not oppose
Indemnitee's right to seek adjudication or award in arbitration.
(b) In the event that a determination shall have been
made pursuant to Section 8 of this Agreement that Indemnitee is
not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 10 shall be
conducted in all respects as a de novo trial, or arbitration, on
the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. If a Change of Control shall have
occurred, in any judicial proceeding or arbitration commenced
pursuant to this Section 10 the Company shall have the burden of
proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed
to have been made pursuant to Section 8 or 9 of this Agreement
that Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 10, 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.
(d) The Company shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this
Section 10 that the procedures and presumptions of this Agreement
are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement.
(e) In the event that Indemnitee, pursuant to this
Section 10, seeks a judicial adjudication of or an award in
arbitration to enforce his rights under, or to recover damages
for breach of, this Agreement, Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company
against, any and all expenses (of the types described in the
definition of Expenses in Section 17 of this Agreement) actually
and reasonably incurred by him in such judicial adjudication or
arbitration, but only if he prevails therein. If it shall be
determined in such judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the expenses
incurred by indemnitee in connection with such judicial
adjudication or arbitration shall be appropriately prorated.
Section 11. Non-Exclusivity; Survival of Rights;
Insurance; Subrogation.
(a) The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may
at any time be entitled under applicable law, the Certificate of
Incorporation, the By-Laws, any agreement, a vote of stockholders
or a resolution of directors, or otherwise. No amendment,
alteration or termination of this Agreement or any provision
hereof shall be effective as to any Indemnitee with respect to
any action taken or omitted by such Indemnitee in his Corporate
Status prior to such amendment, alteration or termination.
(b) To the extent that the Company maintains an
insurance policy or policies providing liability insurance for
directors, officers, employees, agents or fiduciaries of the
Company or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, Indemnitee shall be
covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for
any such director, officer, employee or agent under such policy
or policies.
(c) In the event of any payment under this Agreement,
the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall execute
all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that Indemnitee has otherwise
actually received such payment under any insurance policy,
contract, agreement or otherwise.
Section 12. Duration of Agreement. This Agreement
shall continue until and terminate upon the later of: (a) 10
years after the date that Indemnitee shall have ceased to serve
as a director of the Company, or (b) the final termination of all
pending Proceedings in respect of which Indemnitee is granted
rights of indemnification or advancement of Expenses hereunder
and of any proceeding commenced by Indemnitee pursuant to Section
10 of this Agreement relating thereto. This Agreement shall be
binding upon the Company and its successors and assigns and shall
inure to the benefit of Indemnitee and his heirs, executors and
administrators.
Section 13. Severability. If any provision or
provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any
Section of this Agreement contain any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision
held invalid, illegal or unenforceable.
Section 14. Exception to Right of Indemnification or
Advancement of Expenses. Notwithstanding any other provision of
this Agreement, Indemnitee shall not be entitled to
indemnification or advancement of Expenses under this Agreement
with respect to any proceeding, or any claim therein, brought or
made by him against the Company.
Section 15. Identical Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall
for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability
is sought needs to be produced to evidence the existence of this
Agreement.
Section 16. Headings. The headings of the paragraphs
of this Agreement are inserted for convenience only and shall not
be deemed to constitute part of this Agreement or to affect the
construction thereof.
Section 17. Definitions. For purposes of this
Agreement:
(a) "Change in Control" means a change in control of
the Company occurring after the Effective Date of a nature that
would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A (or in response to any similar
item on any-similar schedule or form) promulgated under the
Securities Exchange Act of 1934 (the "Act"), whether or not the
Company is then subject to such reporting requirement; provided,
however, that, without limitation, such a Change in Control shall
be deemed to have occurred if after the Effective Date (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of
the Company representing 25% or more of the combined voting power
of the Company's then outstanding securities without the prior
approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person attaining
such percentage interest; (ii) the Company is a party to a
merger, consolidation, sale of assets or other reorganization, or
a proxy contest, as a consequence of which members of the Board
of Directors in office immediately prior to such transaction or
event constitute less than a majority of the Board of Directors
thereafter; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the
Board of Directors (including for this purpose any new director
whose election or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors.
(b) "Corporate Status" describes the status of a
person who is or was a director, officer, employee, agent or
fiduciary of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of
the Company.
(c) "Disinterested Director" means a director of the
Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(d) "Effective Date" means May 2, 1995.
(e) "Expenses" shall include all reasonable attorneys'
fees, retainers, court costs, transcript costs, 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 of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a
witness in a Proceeding.
(f) "Independent Counsel" means a law firm, or a
member of a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past five
years has been, 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 hereunder. 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 under this Agreement.
(g) "Proceeding" includes any action, suit,
arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other proceeding
whether civil, criminal, administrative or investigative, except
one initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce his rights under this Agreement.
Section 18. Modification and Waiver. No supplement,
modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a
continuing waiver.
Section 19. Notice by Indemnitee. Indemnitee agrees
promptly to notify the Company in writing upon being served with
any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding or
matter which may be subject to indemnification or advancement of
Expenses covered hereunder.
Section 20. Notices. All notices, request, demands
and other communications hereunder shall be in writing and shall
be deemed to have been duly given if (i) delivered by hand and
receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:
(a) If to Indemnitee, to:
his address indicated on
the signature page hereto
(b) If to the Company, to:
Staff Builders, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
or such other address as may have been furnished to Indemnitee by
the Company or to the Company by Indemnitee, as the case may be.
Section 21. Governing Law. The parties agree that
this Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware.
Section 22. Miscellaneous. Use of the masculine
pronoun shall be deemed to include usage of the feminine pronoun
where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year first above written.
STAFF BUILDERS, INC.
(a Delaware corporation)
By:/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx,
President
INDEMNITEE
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Address:_________________
_________________
scs:indemn:mey
