INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “Agreement”) is made
and entered into effective as of ___, 200_, by and between
Resources Connection, Inc., a Delaware corporation (the
“Company”), and ___(the “Indemnitee”), a
director and/or officer of the Company.
A. The
Indemnitee has been selected to serve or is currently serving as a
director and/or officer of the Company and in such capacity is
expected to render or has rendered valuable services to the
Company.
B. The
Company has investigated the availability and sufficiency of
liability insurance and Delaware statutory indemnification
provisions to provide its directors and officers with adequate
protection against various legal risks and potential liabilities to
which directors and officers are subject due to their position with
the Company and has concluded that insurance and statutory
provisions may provide inadequate and unacceptable protection to
certain individuals requested to serve as its directors and
officers.
C. In
recognition of past services and in order to induce and encourage
highly experienced and capable persons such as the Indemnitee to
serve as directors and officers of the Company, the Board of
Directors has determined, after due consideration and investigation
of the terms and provisions of this Agreement and the various other
options available to the Company and the Indemnitee in lieu of this
Agreement, that this Agreement is not only reasonable and prudent,
but necessary to promote and ensure the best interests of the
Company and its stockholders.
In
consideration of the services and continued services of the
Indemnitee and in order to induce the Indemnitee to serve or to
continue to serve as a director and/or officer of the Company, the
Company and the Indemnitee agree as follows:
1. Indemnity of the Indemnitee. The Company hereby
agrees to hold harmless and indemnify the Indemnitee to the full
extent authorized or permitted by the provisions of
Section 145 of the Delaware General Corporation Law, as such
may be amended from time to time, and Article XI of the Bylaws
of the Company, as such may be amended from time to time. In
furtherance of the foregoing indemnification, and without limiting
the generality thereof:
(a) Other Than Proceedings by or in the Right of
the Company . The Indemnitee shall be entitled to the
rights of indemnification provided in this Section l(a) if, by
reason of the Indemnitee’s Corporate Status (as hereinafter
defined), the Indemnitee is, or is threatened to be made, a party
to or participant in any Proceeding (as hereinafter defined) other
than a Proceeding by or in the right of the Company. Pursuant to
this Section 1(a), the Indemnitee shall be indemnified against
all Expenses (as hereinafter defined), judgments, penalties, fines
and
amounts paid in
settlement actually and reasonably incurred by the Indemnitee or on
the Indemnitee’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if the Indemnitee acted in good
faith and in a manner the Indemnitee 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 the Indemnitee’s conduct was unlawful.
(b) Proceedings by or in the Right of the
Company . The Indemnitee shall be entitled to the rights
of indemnification provided in this Section 1(b) if, by reason of
the Indemnitee’s Corporate Status, the Indemnity is, or is
threatened to be made, a party to or participant in any Proceeding
brought by or in the right of the Company. Pursuant to this
Section 1(b), the Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by the Indemnitee or on
the Indemnitee’s behalf in connection with such Proceeding if
the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company; provided, however, that, if applicable law so
provides, no indemnification against such Expenses shall be made in
respect of any claim, issue or matter in such Proceeding as to
which the Indemnitee shall have been adjudged to be liable to the
Company unless and to the extent that a court of competent
jurisdiction shall finally determine that such indemnification may
be made.
(c) Indemnification for Expenses of a Party who is
Wholly or Partly Successful. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee is,
by reason of the Indemnitee’s Corporate Status, a party to
and is successful, on the merits or otherwise, in any Proceeding,
the Indemnitee shall be indemnified to the maximum extent permitted
by law against all Expenses actually and reasonably incurred by the
Indemnitee or on the Indemnitee’s behalf in connection
therewith. If the 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 the Indemnitee against all
Expenses actually and reasonably incurred by the Indemnitee or on
the Indemnitee’s 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.
2. Additional Indemnity. In addition to, and without
regard to any limitations on, the indemnification provided for in
Section 1, the Company shall and hereby does indemnify and
hold harmless the Indemnitee against all Expenses, judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by the Indemnitee or on the Indemnitee’s
behalf if, by reason of the Indemnitee’s Corporate Status,
the Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding (including a Proceeding by or in the
right of the Company), including, without limitation, all liability
arising out of the negligence or active or passive wrongdoing of
the Indemnitee. The only limitation that shall exist upon the
Company’s obligations pursuant to this Agreement shall be
that the Company shall not be obligated to make any payment to the
Indemnitee that is finally determined (under the procedures, and
subject to the presumptions, set forth in Sections 7, 8 and 9
hereof) to be unlawful under Delaware law.
3. Partial Indemnity . If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Company for some or a portion of, but not the total
amount
of, the
Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by the Indemnitee in
the investigation, defense, appeal or settlement of any Proceeding,
the Company shall nevertheless indemnify the Indemnitee for the
portion of the Expenses, judgments, penalties, fines and amounts
paid in settlement to which the Indemnitee is entitled.
4. Contribution in the Event of Joint Liability
.
(a) Whether or not the indemnification provided in
Sections 1 and 2 hereof is available, in respect of any
threatened, pending or completed Proceeding in which the Company is
jointly liable with the Indemnitee (or would be if joined in such
Proceeding), the Company shall pay, in the first instance, the
entire amount of any judgment or settlement of such Proceeding
without requiring the Indemnitee to contribute to such payment and
the Company hereby waives and relinquishes any right of
contribution it may have against the Indemnitee. The Company shall
not enter into any settlement of any Proceeding in which the
Company is jointly liable with the Indemnitee (or would be if
joined in such Proceeding) unless such settlement provides for a
full and final release of all claims asserted against the
Indemnitee.
(b) Without diminishing or impairing the obligations
of the Company set forth in the preceding subparagraph, if, for any
reason, the Indemnitee shall elect or be required to pay all or any
portion of any judgment or settlement in any threatened, pending or
completed Proceeding in which the Company is jointly liable with
the Indemnitee (or would be if joined in such Proceeding), the
Company shall contribute to the amount of Expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by
the Indemnitee in proportion to the relative benefits received by
the Company and all officers, directors or employees of the Company
other than the Indemnitee who are jointly liable with the
Indemnitee (or would be if joined in such Proceeding), on the one
hand, and the Indemnitee, on the other hand, from the transaction
from which such Proceeding arose; provided, however, that the
proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Company and all officers,
directors or employees of the Company other than the Indemnitee who
are jointly liable with the Indemnitee (or would be if joined in
such Proceeding), on the one hand, and the Indemnitee, on the other
hand, in connection with the events that resulted in such Expenses,
judgments, fines or settlement amounts, as well as any other
equitable considerations which the law may require to be
considered. The relative fault of the Company and all officers,
directors or employees of the Company other than the Indemnitee who
are jointly liable with the Indemnitee (or would be if joined in
such Proceeding), on the one hand, and the Indemnitee, on the other
hand, shall be determined by reference to, among other things, the
degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability
is primary or secondary, and the degree to which their conduct is
active or passive.
(c) The Company hereby agrees to fully indemnify and
hold the Indemnitee harmless from any claims of contribution that
may be brought by officers, directors or employees of the Company
other than the Indemnitee who may be jointly liable with the
Indemnitee.
5. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the
extent that the Indemnitee is, by reason of the
Indemnitee’s
Corporate
Status, a witness in any Proceeding to which the Indemnitee is not
a party, the Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by the Indemnitee or on the
Indemnitee’s behalf in connection therewith.
6. Advancement of Expenses. Notwithstanding any other
provision of this Agreement, the Company shall advance all Expenses
incurred or reasonably anticipated to be incurred by or on behalf
of the Indemnitee in connection with any Proceeding by reason of
the Indemnitee’s Corporate Status within ten (10) days
after the receipt by the Company of a statement or statements from
the 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 or reasonably anticipated to be incurred by
the Indemnitee and shall include or be preceded or accompanied by
an undertaking by or on behalf of the Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified against such Expenses.
Any advances and undertakings to repay pursuant to this Section 6
shall be unsecured and interest free. Notwithstanding the
foregoing, the obligation of the Company to advance Expenses
pursuant to this Section 6 shall be subject to the condition
that, if, when and to the extent that the Company determines that
the Indemnitee would not be permitted to be indemnified under
applicable law, the Company shall be entitled to be reimbursed,
within thirty (30) days of such determination, by the
Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if the
Indemnitee has commenced or thereafter commences legal proceedings
in a court of competent jurisdiction to secure a determination that
the Indemnitee should be indemnified under applicable law, any
determination made by the Company that the Indemnitee would not be
permitted to be indemnified under applicable law shall not be
binding and the Indemnitee shall not be required to reimburse the
Company for any advance of Expenses until a final judicial
determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or lapsed).
7. Procedures and Presumptions for Determination of
Entitlement to Indemnification. It is the intent of this
Agreement to secure for the Indemnitee rights of indemnity that are
as favorable as may be permitted under the law and public policy of
the State of Delaware. Accordingly, the parties agree that the
following procedures and presumptions shall apply in the event of
any question as to whether the Indemnitee is entitled to
indemnification under this Agreement:
(a) To obtain indemnification (including, but not
limited to, the advancement of Expenses and contribution by the
Company) under this Agreement, the Indemnitee shall submit to the
Company a written request, including therein or therewith such
documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to
what extent the 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 the Indemnitee has requested
indemnification.
(b) Upon written request by the Indemnitee for
indemnification pursuant to the first sentence of Section 7(a)
hereof, a determination, if required by applicable law, with
respect to the Indemnitee’s entitlement thereto shall be made
in the specific case by one of the following four methods:
(i) by a majority vote of the Disinterested Directors, even
though less than a
quorum, or
(ii) by a committee of such Disinterested Directors designated
by majority vote of such Disinterested Directors, even though less
than a quorum, or (iii) if there are no such Disinterested
Directors, or if such Disinterested Directors so direct, by
Independent Counsel in a written opinion, or (iv) in the
absence of Disinterested Directors and at the election of the
Indemnitee, by the stockholders.
(c) If the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 7(b) hereof, the Independent Counsel shall be selected as
provided in this Section 7(c). Within 20 days of
receiving a written request for Indemnification, the Company shall
submit a list of three candidates from which the Indemnitee shall
have 10 days to select one or to request a second list of
three names, which the Company shall provide within 20 days of
notification. If, within 60 days after submission by the
Indemnitee of a written request for indemnification pursuant to
Section 7(a) hereof, no Independent Counsel shall have been
selected, either the Company or the Indemnitee may petition the
Court of Chancery of the State of Delaware or other court of
competent jurisdiction for the appointment as Independent Counsel
of a person selected by the court or by such other person as the
court shall designate, the person so appointed shall act as
Independent Counsel under Section 7(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 7(b) hereof, and the Company shall pay all
reasonable fees and expenses incident to the procedures of this
Section 7(c), regardless of the manner in which such
Independent Counsel was selected or appointed.
(d) In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or
entity making such determination shall presume that the Indemnitee
is entitled to indemnification under this Agreement if the
Indemnitee has submitted a request for indemnification in
accordance with Section 7(a) of this Agreement. Anyone seeking to
overcome this presumption shall have the burden of proof and the
burden of persuasion, by clear and convincing evidence.
(e) The Indemnitee shall be deemed to have acted in
good faith if the Indemnitee’s action is based on the records
or books of account of the Enterprise (as hereinafter defined),
including financial statements, or on information supplied to the
Indemnitee by the o
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