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EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into as of _____
day
of ___________________, 20__, between
PRG-SCHULTZ INTERNATIONAL, INC., a Georgia
corporation (the "Corporation"), and
________________ (the "Indemnitee").
W I T N E S S E T H:
WHEREAS Indemnitee is a director of the Corporation, and in
such
capacity is performing a valuable service
for the Corporation; and
WHEREAS Indemnitee is willing to serve, continue to serve, and take
on
additional service for or on behalf of the
Corporation on the condition that he
be indemnified as herein provided; and
WHEREAS it is intended that Indemnitee shall be paid promptly by
the
Corporation all amounts necessary to
effectuate in full the indemnity provided
herein:
NOW, THEREFORE, in consideration of the premises and the covenants
in
this Agreement, the parties hereto,
intending to be legally bound hereby, agree
as follows:
1.
CERTAIN DEFINITIONS.
(a) References
to the "Corporation" shall include any corporation
which is a parent corporation or a
subsidiary corporation with respect to
PRG-Schultz International, Inc. within the
meaning of Section 425(e) or (f) of
the Internal Revenue Code of 1986, as
amended, and shall also include, in
addition to the resulting corporation, any
constituent corporation (including
any constituent of a constituent) absorbed
in a consolidation or merger which,
if its separate existence had continued,
would have had power and authority to
indemnify its directors, officers, and
employees or agents, so that any person
who is or was a director, officer, employee
or agent of such constituent
corporation, or is or was serving at the
request of such constituent corporation
as a director, officer, employee or agent
of another corporation, partnership,
joint venture, trust or other enterprise,
shall stand in the same position under
this Agreement with respect to the
resulting or surviving corporation as he
would have with respect to such constituent
corporation if its separate
existence had continued.
(b)
"Disinterested Director" shall mean a director of the
Corporation who is not a party to the
Proceeding in respect of which
indemnification is being sought by
Indemnitee.
(c) "Expenses"
shall mean all direct and indirect costs
(including, without limitation, attorneys'
fees, retainers, court costs,
transcripts, fees of experts, witness fees,
travel expenses, duplicating costs,
printing and binding costs, telephone
charges, postage, delivery service fees,
and
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all other disbursements or out-of-pocket
expenses) actually and reasonably
incurred in connection with a Proceeding or
establishing or enforcing a right to
indemnification under this Agreement,
applicable law or otherwise; provided,
however, that "Expenses" shall not include
any Liabilities.
(d)
"Indemnification Period" shall mean the period of time during
which Indemnitee shall continue to serve as
a director or as an officer of the
Corporation, and thereafter so long as
Indemnitee shall be subject to any
possible Proceeding arising out of acts or
omissions of Indemnitee as a director
or as an officer of the Corporation.
(e)
"Liabilities" shall mean liabilities of any type whatsoever
including, but not limited to, any
judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in
settlement (including all interest
assessments and other charges paid or
payable in connection with or in respect
of such judgments, fines, penalties or
amounts paid in settlement) of any
Proceeding.
(f)
"Nonreimbursable Liability" shall mean any expenses or
liability incurred in a proceeding in which
Indemnitee is adjudged 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 liability set forth in Georgia
Business Corporation Code Section 14-2-832; and
(iv)
for any transaction from which he received an
improper personal benefit.
(g)
"Proceeding" shall mean any threatened, pending or completed
action, claim, suit, arbitration, alternate
dispute resolution mechanism,
investigation, administrative hearing or
any other proceeding whether civil,
criminal, administrative or investigative,
whether formal or informal, including
any appeal therefrom.
(h) For
purposes of this Agreement, references to "other
enterprises" shall include employee benefit
plans; references to "fines" shall
include any excise taxes assessed on a
person with respect to any employee
benefit plan; and references to "serving at
the request of the Corporation"
shall include any service as a director,
officer, employee or agent of the
Corporation which imposes duties on, or
involves services by, such director,
officer, employee, or agent with respect to
an employee benefit plan, its
participants or beneficiaries; and a person
who acted in good faith and in a
manner he reasonably believed to be in the
interest of the participants and
beneficiaries of an employee benefit plan
shall be deemed to have acted in a
manner "not opposed to the best interests
of the Corporation" as referred to in
this Agreement.
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2.
SERVICES BY INDEMNITEE. Indemnitee agrees to serve as a
director or officer of the Corporation so
long as he is duly appointed or
elected and qualified in accordance with
the applicable provisions of the
Articles of Incorporation and By-laws of
the Corporation or any subsidiary of
the Corporation and until such time as he
resigns or fails to stand for election
or is removed from his position. Indemnitee
may at any time and for any reason
resign or be removed from such position
(subject to any other contractual
obligation or other obligation imposed by
operation of law), in which event the
Corporation shall have no obligation under
this Agreement to continue Indemnitee
in any such position.
3.
INDEMNIFICATION.
(a) The
Corporation shall indemnify Indemnitee whenever he is or
was a party or is threatened to be made a
party to any Proceeding, including
without limitation any such Proceeding
brought by or in the right of the
Corporation, because he is or was a
director or officer of the Corporation or is
or was serving at the request of the
Corporation as a director or officer of
another corporation, partnership, joint
venture, trust or other enterprise, or
because of anything done or not done by
Indemnitee in such capacity, against
Expenses and Liabilities (including the
costs of any investigation, defense,
settlement or appeal) actually and
reasonably incurred by Indemnitee 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 Corporation, and, with respect to any
criminal action or proceeding, had no
reasonable cause to believe his conduct was
unlawful. The termination of any
action, suit or proceeding by judgment,
order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent,
shall not, of itself, 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
Corporation, and, with respect to any
criminal action or proceeding, had
reasonable cause to believe that his
conduct was unlawful. The foregoing
notwithstanding, in no event shall the
Corporation indemnify Indemnitee against
any Nonreimbursable Liability.
(b) To the
extent that Indemnitee has been successful on the
merits or otherwise in defense of any
Proceeding, he shall be indemnified
against Expenses and Liabilities actually
and reasonably incurred by him in
connection therewith.
4.
MANDATORY ADVANCEMENT OF EXPENSES. If in the judgment of the
Board of Directors of the Corporation
Indemnitee is reasonably likely to be
entitled to indemnification pursuant to
Section 3, all reasonable Expenses
incurred by or on behalf of Indemnitee
shall be advanced from time to time by
the Corporation to Indemnitee within thirty
(30) days after the Corporation's
receipt of a written request for an advance
of Expenses by Indemnitee, whether
prior to or after final disposition of a
Proceeding. The written request for an
advancement of any and all Expenses under
this Section shall contain reasonable
detail of the Expenses incurred by
Indemnitee. The foregoing notwithstanding,
the Corporation shall not be obligated to
advance Expenses hereunder unless it
shall have received from Indemnitee (a) a
written affirmation of Indemnitee's
good faith belief that his conduct did not
constitute behavior which could
result in Nonreimbursable
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Liability and (b) a written undertaking to
repay any advances if it is
ultimately determined that he is not
entitled to indemnification pursuant to
this Agreement.
5.
LIMITATIONS. The foreg
