ACSYS, INC.
DIRECTOR'S AND OFFICER'S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of ________________ 1997, between ACSYS, Inc., a
Georgia corporation (the "Corporation"), and _____________________________ (the
"Executive").
WHEREAS, the Executive is a member of the Board of Directors and/or an
executive officer of the Corporation and in such capacity is performing a
valuable service to the Corporation; and
WHEREAS, the Corporation's Bylaws (the "Bylaws") provide for the
indemnification of the directors and executive officers of the Corporation
pursuant to Sections 14-2-850 through 14-2-856 of the Georgia Business
Corporation Code, as amended to date (the "State Statute"); and
WHEREAS, the Bylaws and the State Statute specifically contemplate that
contracts may be entered into between the Corporation and its executive
officers and members of its Board of Directors with respect to indemnification
of such individuals; and
WHEREAS, in order to provide to the Executive 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
Executive to serve as a member of the Board of Directors or as an executive
officer, the Corporation has determined and agreed to enter into this contract
with the Executive.
NOW, THEREFORE, in consideration of the premises and the Executive's
continued service as a director and/or an executive officer after the date
hereof, the parties agree as follows:
1. BOARD-AUTHORIZED INDEMNIFICATION. The Corporation hereby agrees to hold
harmless and indemnify the Executive to the full extent that the State Statute,
or any amendment thereof or other statutory provision adopted after the date
hereof, authorizes such indemnification by action of the Board of Directors
without shareholder approval. Such indemnification, and the conditions and
limitations thereon set forth in the State Statute, shall not in any respect
limit, condition or otherwise restrict the indemnification set forth in
Section 2 hereof.
2. SHAREHOLDER-AUTHORIZED INDEMNIFICATION. Subject only to the exclusions
set forth in Section 3 hereof, and in addition to the indemnity specified in
Section 1 hereof (but without duplication of payments with respect to
indemnified amounts), the Corporation hereby further agrees to hold harmless
and indemnify the Executive against any and all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the Executive 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 Executive is, was, or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that the Executive is,
was, or at any time becomes a director, officer, employee or agent 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.
3. LIMITATIONS ON SHAREHOLDER-AUTHORIZED INDEMNITY. No indemnity pursuant to
Section 2 hereof shall be paid by the Corporation:
(a) With respect to any proceeding in which the Executive is adjudged, by
final judgment not subject to further appeal, liable to the Corporation or
is subjected to injunctive relief in favor of the Corporation:
(i) for any appropriation, in violation of his duties, of any
business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional misconduct
or a knowing violation of law;
(iii) for the types of liabilities set forth in Section 14-2-832
of the Georgia Business Corporation Code; or
(iv) for any transaction from which the Executive received an
improper personal benefit;
(b) With respect to any suit in which final judgment is rendered against
the Executive for an accounting of profits, made from the purchase or sale
by the Executive 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 Executive to the Corporation in respect of
any claim for such an accounting; or
(c) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
4. CONTRIBUTION. If the indemnification provided in Sections 1 and 2 is
unavailable and may not be paid to the Executive for any reason other than
those set forth in paragraph (a) or (b) of Section 3, then in respect of any
threatened, pending, or completed action, suit, or proceeding in which the
Corporation is jointly liable with the Executive (or would be if joined in such
action, suit or proceeding), the Corporation shall contribute, to the extent it
is not lawfully prohibited from doing so, to the amount of expenses, judgments,
fines, and settlements paid or payable by the Executive in such proportion as
is appropriate to reflect (i) the relative benefits received by the Corporation
on the one hand and the Executive on the other hand from the transaction from
which such action, suit, or proceeding arose, and (ii) the relative fault of
the Corporation on the one hand and of the Executive 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 Executive 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 4 were determined by pro
rata allocation or any other method of allocation that does not take account of
the foregoing equitable considerations.
5. CONTINUATION OF OBLIGATIONS. All agreements and obligations of the
Corporation contained herein shall continue during the period the Executive 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 Executive 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 Executive was a director of the Corporation or serving in any other
capacity referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Executive of notice of the commencement of any action, suit, or proceeding, the
Executive will, if a claim in respect thereof is to be made against the
Corporation under this Agreement (other than under Section 2 hereof), 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 Executive otherwise than under this Agreement. With respect to any
such action, suit, or proceeding as to which the Executive so notifies the
Corporation:
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) Subject to Section 7 hereof, and if the Executive shall have provided
his written affirmation of his good faith belief that his conduct did not
constitute behavior of the kind described in paragraph 3(a) hereof and
that he is entitled to indemnification hereunder, the Corporation may
assume the defense thereof.
After notice from the Corporation to the Executive of its election so to
assume such defense, the Corporation will not be liable to the Executive under
this Agreement for any legal or other expenses subsequently incurred by the
Executive in connection with the defense thereof, other than reasonable costs
of investigation or as otherwise provided below. The Executive 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 Executive unless (i) the employment of counsel by the Executive has been
authorized by the Corporation, (ii) counsel designated by the Corporation to
conduct such defense shall not be reasonably satisfactory to the Executive, or
(iii) the Corporation shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of such
counsel shall be at the expense of the Corporation. For the purposes of clause
(ii) above, the Executive shall be entitled to determine that counsel
designated by the Corporation is not reasonably satisfactory if, among other
reasons, the Executive shall have been advised by qualified counsel that,
because of actual or potential conflicts of interest in the matter between the
Executive, other officers or directors similarly indemnified by the
Corporation, and/or the Corporation, representation of the Executive by counsel
designated by the Corporation is likely to materially and adversely affect the
Executive's interest or would not be permissible under applicable canons of
legal ethics.
The Corporation shall not be liable to indemnify the Executive 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 Executive without the Executive's written consent. Neither the
Corporation nor the Executive will unreasonably withhold consent to any
proposed settlement.
7. ADVANCEMENT AND REPAYMENT OF EXPENSES. Upon request therefor accompanied
by reasonably itemized evidence of expenses incurred, and by the Executive's
written affirmation of his good faith belief that his conduct met the standard
applicable to Board-authorized indemnification pursuant to Section 1 hereof or
did not constitute behavior of the kind described in paragraph 3(a) hereof and
that he is entitled to indemnification hereunder, the Corporation shall advance
to the Executive 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 Executive is
entitled (assuming an applicable standard of conduct is met) to indemnification
pursuant to this Agreement. The Executive agrees to reimburse the Corporation
for all reasonable expenses paid by the Corporation, whether pursuant to this
Section or Section 6 hereof, in defending any action, suit, or proceeding
against the Executive in the event and to the extent that it shall ultimately
be determined that the Executive is not entitled to be indemnified by the
Corporation for such expenses under either Section 1 or Section 2 of this
Agreement. Any advances and the Executive's agreement to repay shall be
unsecured and interest-free.
8. AGREEMENT TO SERVE. The Executive hereby agrees to continue to serve as a
director and/or an executive officer 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 Corporation's bylaws or until such time as he
tenders his resignation in writing.
9. 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 Executive to serve as a director and/or an executive
officer of the Corporation and acknowledges that the Executive will in the
future be relying upon this Agreement in continuing to serve in such
capacity.
(b) In the event the Executive 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 Executive for all of the
Executive's reasonable fees and expenses in bringing and pursuing such
action.
10. MAINTENANCE OF LIABILITY INSURANCE.
(a) Subject to Section 10(c), the Corporation hereby covenants and agrees
that, so long as Executive shall continue to serve as a director and/or an
officer of the Corporation and thereafter so long as the agreements and
obligations of the Corporation shall continue in accordance with Section
5, the Corporation, in good faith, shall seek to obtain and maintain in
full force and effect a policy of director's and officer's liability
insurance (the "D&O Insurance") in reasonable amounts from established and
reputable insurers.
(b) In all policies of D&O Insurance, Executive shall be named as an
insured in such manner as to provide Executive the same rights and
benefits as are accorded to the most favorably insured of the
Corporation's officers or directors.
(c) Notwithstanding the foregoing, the Corporation shall have no
obligation to obtain or maintain D&O Insurance if the Corporation
determines in good faith that such insurance is not reasonably available,
the premium costs for such insurance are disproportionate to the amount of
coverage provided, or the coverage provided by such insurance is so
limited by exclusions that there is insufficient benefit from such
insurance.
11. 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.
12. VESTED RIGHTS, SPECIFIC PERFORMANCE. No amendment to the articles of
incorporation or bylaws of the Corporation or any other corporate action shall
in any way limit the Executive's rights under this Agreement. In any
proceeding brought by or on behalf of the Executive to specifically enforce the
provisions of this Agreement, the Corporation hereby waives the claim or
defense therein that the plaintiff or claimant has an adequate remedy at law,
and the Corporation shall not urge in any such proceeding the claim or defense
that such remedy at law exists. The provisions of this Section 12, however,
shall not prevent the Executive from seeking a remedy at law in connection with
any breach of this Agreement.
13. LIABILITY INSURANCE. In the event that the Corporation maintains an
insurance policy or policies providing directors' or officers' liability
insurance, the Executive shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
provided under such policy or policies in effect. Copies of all correspondence
between the Corporation and the company or companies providing such insurance
shall be promptly delivered to the Executive by the Corporation.
14. NON-EXCLUSIVITY, ETC. The rights of the Executive hereunder shall be in
addition to any other rights with respect to indemnification, advancement of
expenses or otherwise that the Executive may have under the Corporation's
bylaws or the Georgia Business Corporation Code or otherwise.
15. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Executive, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Corporation effectively to
bring suit to enforce such rights.
16. NO DUPLICATION OF PAYMENTS. The Corporation shall not be liable under
this Agreement to make any payment to the Executive hereunder to the extent the
Executive has otherwise actually received payment (under insurance policy,
bylaw or otherwise) of the amounts otherwise payable hereunder.
17. APPLICABILITY OF AGREEMENT. This Agreement shall apply only with respect
to acts or omissions of the Executive occurring on or after the effective date
hereof, and this Agreement shall continue in effect regardless of whether the
Executive continues to serve in such capacity, but only in respect of acts or
omissions occurring prior to the termination of the Executive's service in such
capacity.
18. GOVERNING LAW; SUCCESSORS; AMENDMENT AND TERMINATION.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Georgia.
(b) This Agreement shall be binding upon the Executive 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
Executive, 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.
19. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EXECUTIVE ACSYS, INC.
_______________________________ By:____________________________________
Name:
