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EXHIBIT 10.1
HNI CORPORATION
AMENDED AND RESTATED INDEMNITY AGREEMENT
This
Amended and Restated Indemnity Agreement, effective as of
________________ (this "Agreement"), between HNI Corporation,
an Iowa corporation ("Corporation"), and _______________
("Indemnitee").
WITNESSETH:
WHEREAS,
the Corporation entered into an Indemnity Agreement, dated as
of __________ (the "Original Agreement"), with Indemnitee, and
the Corporation and Indemnitee desire to amend and restate the
Original Agreement in its entirety;
WHEREAS,
Indemnitee is a director or an officer of the Corporation and,
as such, is or will be performing valuable services for or on
behalf of the Corporation; and
WHEREAS,
Indemnitee is willing to continue to perform such services,
and may from time to time perform additional services, for or
on behalf of the Corporation on the condition that Indemnitee
is indemnified as provided in this Agreement; and
WHEREAS,
it is intended that Indemnitee shall be paid promptly by the
Corporation all amounts necessary to fully effectuate the
indemnity provided in this Agreement; and
WHEREAS,
all capitalized terms used in this Agreement are used herein
as defined in Section 15 hereof;
WHEREAS,
the terms of this Agreement are intended by the parties to be
the final expression of their agreement with respect to
indemnification and shall supercede and may not be
contradicted by evidence of any prior or contemporaneous
agreement, including, without limitation, the Original
Agreement;
NOW
THEREFORE, in order to induce Indemnitee to serve or continue
to serve the Corporation as a director or an officer and in
consideration of the mutual promises set forth herein and
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Corporation
and the Indemnitee hereby agree to amend and restate the
Original Agreement as follows:
1.
Services by Indemnitee.
Indemnitee agrees to serve as a director or an
officer of the Corporation for so long as Indemnitee is duly
appointed or elected and qualified in accordance with the
applicable provisions of the Articles of Incorporation, as
amended ("Articles of Incorporation"), and By-laws, as amended
("By-laws"), of the Corporation or until such time as
Indemnitee resigns or otherwise ceases to be a director or an
officer. Indemnitee may from time to time also
perform other services at the request or for the convenience
of the Corporation. Following the termination of
Indemnitee's service as a director or an officer of the
Corporation by reason of resignation or otherwise, the
Corporation shall continue to be obligated to indemnify
Indemnitee under this Agreement for acts occurring while
Indemnitee was serving as a director or an officer of the
Corporation, whether such acts occurred prior to or after the
date hereof. Nothing
in this Agreement shall confer upon the Indemnitee the right
to continue in the employ of the Corporation or affect the
right of the Corporation to terminate the Indemnitee's
employment at any time in the sole discretion of the
Corporation with or without cause.
2.
Indemnification. Subject to the
limitations set forth in this Section 2 and in Section 6 of
this Agreement, the Corporation hereby agrees to indemnify
Indemnitee to the fullest extent permitted by applicable law
and the Articles of Incorporation and the By-laws, as the same
may be amended from time to time, from and against any and all
Expenses and Liabilities 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, or otherwise with respect to any Proceeding
relating to or arising out of Indemnitee's being or having
been, at any time prior to or after the date hereof, a
director or an officer of the Corporation or as to action
taken in another capacity by or on behalf of the Corporation
while serving as such director or officer. The
right to indemnification conferred in this Agreement shall be
presumed to have been relied upon by Indemnitee in
Indemnitee's agreeing to serve, or serving, or continuing to
serve, or having served, as a director or an officer of the
Corporation and shall be enforceable as a contract
right. Without in any way limiting the scope of the
indemnification otherwise provided by this Section 2, if and
whenever Indemnitee is or was a party or is threatened to be
made a party to any Proceeding (including without limitation
any Proceeding brought by or in the right of the Corporation)
because Indemnitee is or was, at any time prior to or after
the date hereof, a director or an officer of the Corporation
or because of any act or omission by Indemnitee in any such
capacity by or on behalf of the Corporation, the Corporation
shall indemnify Indemnitee to the fullest extent permitted by
applicable law against all Expenses and Liabilities actually
and reasonably incurred by or on behalf of Indemnitee in
connection with the investigation, defense, settlement or
appeal of the Proceeding. In addition to the
foregoing, the rights of Indemnitee to indemnification
provided in this Agreement shall include those rights set
forth in Sections 3 and 8
hereof. Notwithstanding anything in this Agreement
to the contrary and prior to a Change in Control, Indemnitee
shall not be entitled to indemnification pursuant to this
Agreement in connection with any claim initiated by Indemnitee
against the Corporation or any director or officer of the
Corporation unless the Corporation has joined in or consented
to the initiation of such claim; provided, however, that the
Corporation shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee in writing, shall
advance, in accordance with the terms of this Agreement, such
Expenses to Indemnitee, which are incurred by Indemnitee in
connection with any claim asserted against or action brought
by Indemnitee for (i) indemnification or advance payment of
Expenses by the Corporation under this Agreement or any other
agreement, by-law or articles of incorporation now or
hereafter in effect and/or (ii) recovery under any directors'
and officers' liability insurance policies maintained by the
Corporation, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance
payment or insurance recovery, as the case may
be.
3.
Advancement of Expenses; Establishment of Trust;
Letter of Credit.
a.
Advancement of Expenses.
All reasonable Expenses incurred by or on behalf
of Indemnitee shall be advanced to Indemnitee from time to
time by the Corporation to the fullest extent permitted by
applicable law within 20 days after the receipt by the
Corporation of a written request for the advancement of any
such Expenses, whether before or after final disposition of
a
Proceeding
(except to the extent that there has been a Final Adverse
Determination that Indemnitee is not entitled to be
indemnified for any such Expenses), including without
limitation any Proceeding brought by or in the right of the
Corporation. The written request for an advancement
of Expenses under this Section 3(a) shall contain reasonable
details of the Expenses incurred by or on behalf of Indemnitee
for which advancement is thereby requested. By
executing such a request, Indemnitee shall be deemed to have
made such written affirmation of Indemnitee's good faith
belief that Indemnitee has met the standard of conduct
required by law to be met to entitle Indemnitee to such
advancement of Expenses (including, without limiting the
generality of the foregoing, Indemnitee's written affirmation
of Indemnitee's good faith belief that Indemnitee has met the
relevant standard of conduct described in Section 490.851 of
the Iowa Business Corporation Act (the "IBCA") or that the
Proceeding involved conduct for which Liability has been
eliminated under a provision of the Articles of Incorporation
as authorized by Section 490.202, subsection 2, part d of the
IBCA). Advancement of Expenses by the Corporation
in connection with any Proceeding shall be made only upon
delivery to the Corporation of a written undertaking to repay
any funds advanced if the Indemnitee is not entitled to
mandatory indemnification under Section 490.852 of the IBCA
and it is ultimately determined that the Indemnitee has not
met the relevant standard of conduct required for
indemnification under the IBCA. Such undertaking
must be an unlimited general obligation of Indemnitee that
need not be secured and may be accepted without reference to
financial ability to make repayment; provided, however, that
under no circumstances shall Indemnitee be deemed to have
undertaken to repay to the Corporation Expenses for which
Indemnitee has the right to be indemnified under this
Agreement or otherwise.
b.
Establishment of Trust.
Upon receipt of a written request from Indemnitee
for advancement of Expenses or indemnification pursuant to
this Agreement, the Corporation shall create a grantor trust
(the "Trust"), the trustee of which shall be chosen by
Indemnitee. Upon receipt of any such written
request from Indemnitee, the Corporation shall from time to
time fund the Trust in amounts sufficient to satisfy any and
all Expenses and Liabilities that are reasonably anticipated
at the time of such request and for which the Corporation may
indemnify Indemnitee under this Agreement. The
amount or amounts to be deposited in the Trust pursuant to
this funding obligation shall be determined by mutual
agreement of Indemnitee and the Corporation or, if Indemnitee
and the Corporation are unable to reach such agreement, by
Independent Legal Counsel selected by Indemnitee and shall be
used exclusively for the uses and purposes set forth in the
Trust. The terms of the Trust shall provide
that:
(1) the
Trust shall not be revoked or the principal thereof invaded
without the consent of Indemnitee and the
Corporation;
(2) Indemnitee
shall not have any preferred claim to, or any beneficial
ownership in, any assets of the Trust prior to the time that
such assets are paid to Indemnitee as provided in the
Trust;
(3) within
ten days of a request by Indemnitee, the trustee of the Trust
shall advance to Indemnitee amounts sufficient to satisfy any
and all Expenses, provided that Indemnitee shall have executed
and delivered to the Corporation the written affirmation and
the written undertaking required by Section 3(a) of this
Agreement;
(4) the
Trust shall continue to be funded by the Corporation in
accordance with the funding obligations set forth in this
Section 3(b);
(5) the
trustee of the Trust shall promptly pay to Indemnitee any
amounts to which Indemnitee shall be entitled pursuant to this
Agreement; and
(6) all
unexpended funds in the Trust shall revert to the Corporation
on a final determination either by Independent Legal Counsel
selected by Indemnitee or by a court of competent jurisdiction
that Indemnitee has been fully indemnified with respect to the
Proceeding giving rise to the establishment of the Trust under
the terms of this Agreement.
c.
Letter of Credit.
In order to secure the obligations of
the Corporation to indemnify and advance Expenses to
Indemnitee pursuant to this Agreement, the Corporation shall
obtain at its expense at the time of any Change in Control an
irrevocable standby letter of credit naming Indemnitee as the
sole beneficiary ("Letter of Credit"). The Letter
of Credit shall be in an appropriate amount not less than
$1,000,000, shall be issued by a financial institution having
assets in excess of $100,000,000 and shall contain terms and
conditions reasonably acceptable to Indemnitee. The
Letter of Credit shall provide that Indemnitee may from time
to time draw certain amounts thereunder, upon written
certification by Indemnitee to the issuer of the Letter of
Credit that Indemnitee has made written request to the
Corporation for an amount not less than the amount Indemnitee
is drawing under the Letter of Credit, that the Corporation
has failed or refused to provide Indemnitee with such amount
in full within 20 days after receipt of such request, and that
Indemnitee believes that Indemnitee is entitled under the
terms of this Agreement to the amount that Indemnitee is
drawing under the Letter of Credit. The issuance of
the Letter of Credit shall not in any way diminish the
obligation of the Corporation to indemnify Indemnitee against
Expenses and Liabilities to the full extent required by this
Agreement or otherwise. Once the Corporation has
obtained the Letter of Credit, the Corporation shall at its
expense maintain and renew the Letter of Credit or a
substitute letter of credit meeting the criteria of this
Section 3(c) during the term of this Agreement, so that the
Letter of Credit shall have an initial term of five years,
shall be renewed for successive five-year terms, and shall
always have at least one year of its term remaining after the
termination of this Agreement.
4.
Presumptions and Effect of Certain
Proceedings.
a. Upon
making a request for indemnification, Indemnitee shall be
presumed to be entitled to indemnification under this
Agreement and the Corporation shall have the burden of proof
to overcome such presumption in reaching any contrary
determination. The partial or complete disposition
of any Proceeding by judgment, order, settlement, arbitration
award, conviction, dismissal, or acceptance of a plea of nolo
contendere or its equivalent, shall not affect such
presumption and, except as may be provided in Section 6 of
this Agreement, shall not be determinative that the Indemnitee
failed to meet any requisite standard of conduct and shall not
establish a presumption with regard to any other factual
matter relevant to determining the right of Indemnitee to
indemnification under this Agreement or
otherwise.
b. If
the person or persons empowered to make a determination
pursuant to Section 5 of this Agreement shall have failed to
make the requested determination within 30 days after any
judgment, order, settlement, arbitration award,
conviction,
dismissal,
acceptance of a plea of nolo contendere or its equivalent, or
other partial or complete disposition of any Proceeding or any
other event that could enable the Corporation to determine the
right of Indemnitee to be indemnified under this Agreement or
otherwise, the requisite determination that Indemnitee has the
right to such indemnification shall be deemed to have been
made, provided that such thirty-day period may be extended for
a reasonable time (not to exceed an additional 30 days), if
the person or persons so empowered to make such a
determination in good faith require such additional time to
obtain or evaluate documentation or information relating
thereto, and provided further that the foregoing provisions of
this Section 4(b) shall not apply if the determination of
entitlement to indemnification is to be made by the
shareholders of the Corporation pursuant to Section 5(b) of
this Agreement and (i) within 15 days after receipt by the
Corporation of the request for such determination, the Board
of Directors resolves to submit such determination to the
shareholders for their consideration at an annual meeting to
be held within 75 days after such receipt, and such
determination is made thereat, or (ii) a special meeting of
shareholders is called within 15 days after such receipt for
the purpose of making such determination and is held for such
purpose within 60 days after having been so called, and such
determination is made thereat.
5.
Procedure for Determination of Right of Indemnitee to
be Indemnified.
a. Whenever
Indemnitee believes that Indemnitee has a right to
indemnification pursuant to this Agreement, Indemnitee shall
submit a written request for indemnification to the
Corporation. Any request for indemnification shall
include sufficient documentation or information reasonably
available to Indemnitee for the determination of the right of
Indemnitee to be indemnified pursuant to this
Agreement. In any event, Indemnitee shall submit
such request for indemnification within a reasonable time,
which shall not exceed five years after any judgment, order,
settlement, arbitration award, conviction, dismissal,
acceptance of a plea of nolo contendere or its equivalent, or
other final disposition of any Proceeding. Upon
receipt of any such request for indemnification, the General
Counsel or other appropriate officer of the Corporation shall
promptly advise the Board of Directors in writing that
Indemnitee has made such request. Determination
that indemnification of the Indemnitee is permissible because
the Indemnitee has met the relevant standard of conduct
required by the IBCA shall be made not later than 30 days
after the receipt by the Corporation of such written request
for indemnification; provided, however, that any
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