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Exhibit 99.1
INDEMNITY AGREEMENT [FORM FOR OFFICERS]
THIS AGREEMENT
is made and entered into this ___ day of ___________, 2007
("Agreement"), by and between HERMAN MILLER, INC., a Michigan
corporation ("Company"), and _____________
("Indemnitee").
RECITALS
Competent and
experienced persons are increasingly reluctant to serve
publicly-held corporations as officers unless they are protected
through adequate insurance or indemnification against risks of
claims and actions against them arising out of their service to the
corporation.
Obtaining
adequate insurance has become impractical and the uncertainties
relating to indemnification have increased the difficulty of
attracting and retaining such persons as officers.
The
Company’s Board of Directors (the “Board”) has
determined that it would be detrimental to the best interests of
the Company’s stockholders if it were unable to attract and
retain such persons as officers, and that the Company should act to
assure them that they will be provided with adequate
protection.
The Board has
further concluded that, to retain and attract such persons as
officers and to encourage them to take the business risks necessary
for the success of the Company, it is reasonable, prudent and
necessary for the Company to obligate itself contractually to
indemnify them and to assume for itself the liability for expenses
and damages in connection with claims against them arising out of
their service to the Company.
The Company has
also determined that the liability insurance coverage available to
the Company is inadequate or unreasonably expensive, and the
interests of the Company and its stockholders will best be served
by protecting officers by a combination of such insurance as the
Company may elect to obtain and by the indemnification provided in
this Agreement.
Indemnitee is
willing to serve and continue to serve the Company as an officer,
provided that he is indemnified as provided herein.
NOW, THEREFORE,
in consideration of the promises and the covenants contained
herein, the Company and the Indemnitee agree as follows:
1.
Definitions . For purposes of this
Agreement:
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(a)
“Change in Control” means a change in control of the
Company after the Effective Date of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar
schedule or form) promulgated under the Securities Exchange Act of
1934 (the “Act”), whether or not the Company is then
subject to such reporting requirement; provided, however, that,
without limitation, such a Change in Control shall be deemed to
have occurred if after the Effective Date (i) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Act) is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Act), directly or indirectly,
of securities of the Company representing 20 percent or more of the
combined voting power of the Company’s then outstanding
securities without the prior approval of at least two-thirds of the
members of the Board in office immediately prior to such person
attaining such percentage interest; (ii) the Company is a party to
a merger, consolidation, sale of assets or other reorganization, or
a proxy contest, as a consequence of which members of the Board in
office immediately prior to such transaction or event constitute
less than a majority of the Board thereafter; or (iii) during any
period of two consecutive years, individuals who at the beginning
of such period constituted the Board (including for this purpose
any new director whose election or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors
at the beginning of such period) cease for any reason to constitute
at least a majority of the Board.
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(b)
“Corporate Position” means the position of a person as
a director, officer, employee, agent or fiduciary of the Company or
as a director, officer, partner, trustee, employee or agent of any
other foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, whether for
profit or not, which such person is or was serving at the request
of the Company.
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(c)
“Disinterested Director” means a director of the
Company who is not a party, or threatened to be made a party, to
the Proceeding in respect of which indemnification is sought by
Indemnitee.
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(d)
“Effective Date” means the date of this
Agreement.
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(e)
“Expenses” shall include all reasonable attorney fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, or being or preparing to be a witness in
a Proceeding.
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(f)
“Independent Counsel” means a law firm, or a member of
a law firm, that is (i) experienced in matters of corporation law;
(ii) is selected as set forth in Section 9(c) of this Agreement;
and (iii) neither presently is, nor in the past five years has
been, retained to represent (x) the Company or Indemnitee in any
matter material to either such party, or (y) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
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(g)
“Independent Director” means a director who meets all
the following requirements:
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(i)
is elected by the
shareholders of the Company;
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(ii)
is designated as an independent director by the Board or the
shareholders of the Company;
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(iii)
has at least five years of business, legal or financial experience
or other equivalent experience as a senior executive, director, or
attorney for a corporation with securities registered under Section
12 of the Act;
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(iv)
is not and during the three years prior to being designated as an
independent director has not been any of the following:
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x)
an officer or employee of
the Company or any affiliate of the Company;
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y)
engaged in any business
transaction for profit or series of transactions for profit,
including banking, legal or consulting services, involving more
than $10,000 with the Company or any affiliate of the Company;
or
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z)
an affiliate, executive
officer, general partner or member of the immediate family of any
person that had the status or engaged in a transaction described in
subparagraphs x) or y);
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(v)
does not propose to enter into a relationship or transaction
described in subdivision (iv) x) through z); and
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(vi)
does not have an aggregate of more than three years of service as a
director of the Company, whether or not as an independent
director.
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(h)
“Proceeding” includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative and whether formal or
informal, except one initiated by an Indemnitee pursuant to Section
11 of this Agreement to enforce his rights under this
Agreement.
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2.
Agreement to Serve . Indemnitee agrees to serve or
continue to serve as an officer of or in other Corporate Positions
with the Company. Indemnitee may at any time and for any reason
resign from such position(s), subject to any other contractual
obligation or any obligation imposed by operation of law. Nothing
in this Agreement is intended to create any right in the Indemnitee
to continue in any Corporate Position with the Company.
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3.
Indemnification — General . The Company shall
advance Expenses to and indemnify the Indemnitee as provided in
this Agreement and to the fullest extent permitted by applicable
law in effect on the date hereof and to such greater extent as
applicable law may thereafter from time to time permit.
4.
Proceedings Other Than Proceedings by or in the Right of the
Company . Indemnitee shall be entitled to the rights of
indemnification provided herein if, by reason of his Corporate
Position, he is, or is threatened to be made, a party to any
threatened, pending or completed Proceeding, other than a
Proceeding by or in the right of the Company. Pursuant to this
Section 4, Indemnitee shall be indemnified against Expenses,
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection with
such Proceeding or any claim, issue or matter therein.
5.
Proceedings by or in the Right of the Company .
Indemnitee shall be entitled to the rights of indemnification
provided herein if, by reason of his Corporate Position, he is, or
is threatened to be made, a party to any threatened, pending or
completed Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 5,
Indemnitee shall be indemnified against Expenses and amounts paid
in settlement actually and reasonably incurred by him or on his
behalf in connection with such Proceeding, and, with respect to
amounts paid in settlement provided that he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Company or its shareholders. Notwithstanding
the foregoing, no indemnification against Expenses or amounts paid
in settlement shall be made in respect of any claim, issue or
matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company; provided, however, that
indemnification against Expenses shall nevertheless be made by the
Company in such event if and only to the extent that the Court in
which such Proceeding shall have been brought or is pending, or
another court of competent jurisdiction, shall
determine.
6.
Indemnification for Expenses of a Party Who is Wholly or
Partly Successful . Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Position, a party to and is successful, on the merits or
otherwise, in defense of any Proceeding, he shall be indemnified
against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly
successful in defense of such Proceeding, but is successful, on the
merits or otherwise, in defense of one or more but less than all
claims, issues or matters in such Proceeding, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behal
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