Exhibit 10.19
INDEMNIFICATION
AGREEMENT
This Agreement is made as of
, , between
Exponent, Inc., a Delaware corporation (the “Company”),
and
(the “Indemnitee”).
RECITALS
Both the Company and Indemnitee
recognize that highly competent persons have become more reluctant
to serve publicly-held corporations as directors 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.
In recognition of Indemnitee’s
need for substantial protection against personal liability in order
to enhance Indemnitee’s continued service to the Company in
an effective manner and Indemnitee’s reliance on the
provisions of the Company’s Certificate of Incorporation
(“Certificate of Incorporation”) and the
Company’s Bylaws (the “Bylaws”) requiring
indemnification of the Indemnitee to the fullest extent permitted
by law, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such Certificate of
Incorporation and Bylaws will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation
of such Certificate of Incorporation or Bylaws 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) permitted by law and as set forth in
this Agreement.
The Certificate of Incorporation,
the Bylaws and the General Corporation Law of the State of Delaware
(“DGCL”) expressly provide that the indemnification
provisions set forth therein are not exclusive and thereby
contemplate that contracts may be entered into between the Company
and members of the board of directors, officers and other persons
with respect to indemnification.
It is reasonable, prudent and
necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, 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.
This Agreement is a supplement to
and in furtherance of the Certificate of Incorporation and Bylaws
and any resolutions adopted pursuant thereto and shall not be
deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder.
AGREEMENT
In consideration of the premises and
of Indemnitee agreeing to serve or continuing to serve the Company
directly or, at its request, with another enterprise, and intending
to be legally bound hereby, the parties hereto agree as
follows:
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1.
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Basic
Indemnification Agreement .
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(a) 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 (as defined in Section 9(b)) by reason of (or
arising in part out of) an Indemnifiable Event (as defined in
Section 9(d)), the Company shall indemnify Indemnitee to the
fullest extent permitted by law as soon as practicable but in any
event no later than 30 days after written demand is presented to
the Company, against any and all Expenses (as defined in
Section 9(c)), judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges
paid or payable in connection therewith) of such Claim actually and
reasonably incurred by or on behalf of Indemnitee in connection
with such Claim and any federal, state, local or foreign taxes
imposed on Indemnitee as a result of the actual or deemed receipt
of any payments under this Agreement. If requested by Indemnitee in
writing, the Company shall advance (within ten business days of
such written request) any and all Expenses to Indemnitee (an
“Expense Advance”). Notwithstanding anything in this
Agreement to the contrary, prior to a Change of Control (as defined
in Section 9(a)) and except as set forth in Sections 1(b), 3
and 7, Indemnitee shall not be entitled to indemnification pursuant
to this Agreement in connection with any Claim (i) initiated
by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the
initiation of such Claim; (ii) made on account of
Indemnitee’s conduct which constitutes a breach of
Indemnitee’s duty of loyalty to the Company or its
stockholders or is an act or omission not in good faith or which
involves intentional misconduct or a knowing violation of the law;
or (iii) arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”).
(b) Notwithstanding the foregoing,
(i) the indemnification obligations of the Company under
Section 1(a) shall not be applicable if the Reviewing Party
(as defined in Section 9(f)) has determined (in a written
opinion, in any case in which the special independent counsel
referred to in Section 2 is involved) that Indemnitee would
not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance
pursuant to Section 1(a) shall be subject to the condition
that the Company receives an undertaking that, if, when and to the
extent that the Reviewing Party determines that Indemnitee would
not be permitted to be so indemnified under applicable law, the
Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has
commenced legal proceedings in the Court of Chancery of the State
of Delaware (the “Delaware Court”) 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
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thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). Indemnitee’s
obligation to reimburse the Company for Expense Advances shall be
unsecured and no interest shall be charged thereon. If there has
not been a Change in Control, the Reviewing Party shall be selected
by the Board of Directors, and if there has been such a Change in
Control, the Reviewing Party shall be the special independent
counsel referred to in Section 2. 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 the Delaware Court
seeking an initial determination by the court or challenging any
such determination by the Reviewing Party or any aspect thereof 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. The Company shall indemnify Indemnitee for Expenses
incurred by Indemnitee in connection with the successful
establishment or enforcement, in whole or in part, by Indemnitee of
Indemnitee’s right to indemnification or advances.
2. Change in Control .
The Company agrees that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by
two- thirds or more of the Company’s Board of Directors who
were directors immediately prior to such 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 or any other agreement, the Bylaws or
Certificate of Incorporation now or hereafter in effect relating to
Claims for Indemnifiable Events, the Company shall seek legal
advice only from special independent counsel selected by Indemnitee
and approved by the Company (which approval shall not be
unreasonably withheld or delayed) and who has not otherwise
performed services for the Company within the last five years
(other than in connection with such matters) or for Indemnitee. In
the event that Indemnitee and the Company are unable to agree on
the selection of the special independent counsel, such special
independent counsel shall be selected by lot from among at least
five law firms with offices in the State of Delaware having more
than fifty attorneys, having a rating of “av” or better
in the then current Martindale Hubbell Law Directory and having
attorneys which specialize in corporate law. Such selection shall
be made in the presence of Indemnitee (and his legal counsel or
either of them, as Indemnitee may elect). Such counsel, among other
things, shall, within 90 days of its retention, render its written
opinion to the Company and Indemnitee as to whether and to what
extent Indemnitee would be permitted to be indemnified under
applicable law. The Company agrees to pay the reasonable fees of
the special independent counsel referred to above and to fully
indemnify such counsel against any and all expenses (including
attorneys’ fees), claims, liabilities, and damages arising
out of or relating to this Agreement or its engagement pursuant
hereto.
3. Indemnification for
Additional Expenses . The Company shall indemnify
Indemnitee against any and all expenses (including attorneys’
fees) and, if requested by Indemnitee in writing, shall (within ten
business days of such written request) advance 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
Company under this Agreement or any other agreement, the Bylaws or
Certificate of Incorporation now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii)
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recovery under any directors’ and
officers’ liability insurance policies maintained by the
Company, regardless of whether the Company believes that Indemnitee
is entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be. The Indemnitee shall
qualify for advances solely upon the execution and delivery to the
Company of an undertaking providing that the Indemnitee undertakes
to repay the advance to the extent that it is ultimately determined
that the Indemnitee is not entitled to be indemnified by the
Company.
4. Partial Indemnity .
If Indemnitee is entitled under any provisions of this Agreement to
indemnification by the Company of some but not all of the Expenses,
liabilities, judgments, fines, penalties and amounts paid in
settlement of a Claim, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to
the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
5. No Presumption .
For purposes of this Agreement, the termination of any action, suit
or proceeding by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have
any particular belief.
6. Notific
