SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 1, 2005
RADIOSHACK CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-5571 75-1047710
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
Mail Stop CF3-203, 300 RadioShack Circle, Fort Worth, Texas 76102
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (817) 415-3700
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act
Item 1.01. Entry into a Material Definitive Agreement.
The Board of Directors of RadioShack Corporation ("RadioShack") has
authorized a form of Indemnification Agreement (the "Indemnification Agreement")
for each of the directors and certain of the officers of RadioShack, including
each of the senior executive officers of RadioShack. A copy of the form of
Indemnification Agreement is attached as Exhibit 10.1 and is incorporated by
reference.
The Indemnification Agreement provides that RadioShack is required to
indemnify the other party to the agreement and hold him or her harmless from and
against any and all Expenses and Liabilities (as those terms are defined in the
Indemnification Agreement) that are incurred by the other party or on the other
party's behalf, to the fullest extent permitted by applicable law, and to such
greater extent as applicable law may permit or authorize in the future. The
Indemnification Agreement also sets forth various procedures and other terms
regarding the indemnification process.
In addition, on June 1, 2005, in accordance with the current terms of the
RadioShack 2004 Deferred Stock Unit Plan for Non-Employee Directors (as amended,
the "Plan"), each non-employee director of RadioShack who had served as a
director for at least one year on that date was granted 3,500 deferred stock
units under the Plan. A form of agreement concerning grants of deferred stock
units is attached as Exhibit 10.2.
Item 9.01. Financial Statements and Exhibits.
Exhibit No.
10.1 Form of Indemnification Agreement.
10.2 Form of Notice of Grant of Deferred Stock Units and Deferred
Stock Unit Agreement under the RadioShack 2004 Deferred Stock
Unit Plan for Non-Employee Directors.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized this 6th day of June, 2005.
RADIOSHACK CORPORATION
/s/ David S. Goldberg
--------------------------------------------
David S. Goldberg
Vice President - Law, Corporate Secretary
and Acting General Counsel
EXHIBIT INDEX
Exhibit No.
10.1 Form of Indemnification Agreement.
10.2 Form of Notice of Grant of Deferred Stock Units and Deferred
Stock Unit Agreement under the RadioShack 2004 Deferred Stock
Unit Plan for Non-Employee Directors.
Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made and entered into
as of _________________, between RadioShack Corporation, a Delaware corporation
(the "Company"), and _________________ ("Indemnitee").
WHEREAS, Indemnitee is a director or an officer of the Company; and
WHEREAS, the Company is aware that because of the increased exposure to
litigation subjecting directors and officers to expensive litigation risks,
talented and experienced persons are increasingly reluctant to serve or continue
to serve as directors and officers of corporations unless they are appropriately
indemnified; and
WHEREAS, the Company is also aware that statutes and judicial decisions
regarding the duties of directors and officers are often difficult to apply,
ambiguous or conflicting and therefore fail to provide directors with adequate
guidance regarding the proper course of action; and
WHEREAS, the Company desires to attract and retain the services of highly
experienced and capable individuals, such as Indemnitee, to serve as directors
and officers of the Company and to indemnify its directors and officers to
provide them with the maximum protection permitted by law; and
WHEREAS, the Company believes that it is fair and proper to protect the
Company's directors and officers from the risk of judgments, settlements and
other expenses which may occur as a result of their service to the Company, even
in cases in which such persons received no personal profit or were not otherwise
culpable; and
WHEREAS, this Agreement is separate from and in addition to the Bylaws of
the Company and any resolutions adopted pursuant thereto, and shall not be
deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS, each of Section 145 of the General Corporation Law of the State of
Delaware ("DGCL") and the Bylaws of the Company is nonexclusive, and therefore
contemplates that contracts may be entered into with respect to indemnification
of directors, officers and employees;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Indemnitee, intending to be legally bound, hereby
agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
(a) "Change of Control" shall mean any of the following events:
(i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act")) immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated
under the 1934 Act) of fifteen percent (15%) or more of the combined voting
power of the Company's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting Securities which
are acquired in a Non-Control Acquisition (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control.
A "Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (A) the
Company or (B) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned, directly or
indirectly, by the Company (for purposes of this definition, a "Subsidiary"),
(ii) the Company or its Subsidiaries, or (iii) any Person in connection with a
Non-Control Transaction (as hereinafter defined);
(ii) The individuals who, as of May 19, 2005, are members of the Board
of Directors (the "Incumbent Board"), cease for any reason to constitute at
least two-thirds of the Board of Directors; provided, however, that if the
election, or nomination for election by the Company's stockholders, of any new
director was approved by a vote of at least two-thirds of the Incumbent Board,
such new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the 1934 Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board of Directors (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy Contest; or
(iii) The consummation of:
(A) A merger, consolidation, reorganization or other
business combination with or into the Company or in which securities of the
Company are issued, unless
(i) the stockholders of the Company, immediately before
such merger, consolidation, reorganization or other business combination, own
directly or indirectly immediately following such merger, consolidation,
reorganization or other business combination, at least sixty percent (60%) of
the combined voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation, reorganization or other
business combination (the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities immediately before such
merger, consolidation, reorganization or other business combination,
(ii) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement providing for such
merger, consolidation, reorganization or other business combination constitute
at least two-thirds of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially directly or indirectly owning a
majority of the combined voting power of the outstanding voting securities of
the Surviving Corporation, or
(iii) no Person other than (a) the Company, (b) any
Subsidiary, (c) any employee benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation, reorganization or other
business combination was maintained by the Company, the Surviving Corporation,
or any Subsidiary, or (d) any Person who, immediately prior to such merger,
consolidation, reorganization or other business combination had Beneficial
Ownership of fifteen percent (15%) or more of the then outstanding Voting
Securities, has Beneficial Ownership of fifteen percent (15%) or more of the
combined voting power of the Surviving Corporation's then outstanding voting
securities, and
A transaction described in clauses (i) through (iii) shall
herein be referred to as a "Non-Control Transaction."
(B) A complete liquidation or dissolution of the Company; or
(C) The sale or other disposition of all or substantially all
of the assets of the Company to any Person (other than (i) any such sale or
disposition that results in at least fifty percent (50%) of the Company's assets
being owned by one or more Subsidiaries or (ii) a distribution to the Company's
stockholders of the stock of a Subsidiary or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the then outstanding Voting Securities (X)
as a result of the acquisition of Voting Securities by the Company which, by
reducing the number of Voting Securities outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this subsection (X)) as
a result of the acquisition of Voting Securities by the Company, and after such
share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur, or (Y) and such Subject Person (1) within
fourteen (14) Business Days (or such greater period of time as may be determined
by action of the Board of Directors) after such Subject Person would otherwise
have caused a Change in Control (but for the operation of this clause (Y)), such
Subject Person notifies the Board of Directors that such Subject Person did so
inadvertently, and (2) within seven (7) Business Days after such notification
(or such greater period of time as may be determined by action of the Board of
Directors), such Subject Person divests itself of a sufficient number of Voting
Securities so that such Subject Person is no longer the Beneficial Owner of more
than the permitted amount of the outstanding Voting Securities.
(b) "Enterprise" means any Person of which Indemnitee is or was a
Fiduciary.
(c) "Expenses" means 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 all other
disbursements or out-of-pocket expenses) actually, reasonably and customarily
incurred in connection with (i) any Proceeding, (ii) establishing or enforcing
any right to indemnification for Liabilities and expenses or advancement of
expenses under this Agreement, applicable law, any other agreement or provision
of the Company's Certificate of Incorporation or Bylaws now or hereafter in
effect or otherwise, or (iii) the review and preparation of this Agreement on
behalf of Indemnitee; provided, however, that "Expenses" shall not include any
Liabilities.
(d) "Fiduciary" means an individual serving as a director, officer,
trustee, general partner, managing member, fiduciary, board of directors'
committee member (including, without limitation, a committee chairman), employee
or agent of (i) the Company or any Subsidiary, (ii) any resulting corporation in
connection with a consolidation or merger to which the Company or any Subsidiary
is a party, or (iii) any other Person (including an employee benefit plan) at
the request of the Company or any Subsidiary, including any service with respect
to an employee benefit plan, its participants or its beneficiaries.
(e) "Independent Counsel" means a nationally recognized law firm, or a
member of a nationally recognized law firm, that is experienced in matters of
corporate law and neither currently is, nor in the five years previous to its
selection or appointment has been, retained to represent (i) the Company or the
Indemnitee in any matter material to either such party (other than with respect
to matters concerning the rights of Indemnitee under this Agreement or of other
indemnitees under similar indemnification agreements) or (ii) any other party to
the Proceeding giving rise to a claim for indemnification hereunder. For the
avoidance of doubt, any law firm or member of a law firm that shall have advised
either party with respect to the review and preparation of this Agreement shall
not be Independent Counsel for the purposes of this Agreement.
(f) "Liabilities" means liabilities of any type whatsoever incurred by
reason of (i) the fact that Indemnitee is or was a Fiduciary, or (ii) any action
taken (or failure to act) by him or on his behalf in his capacity as a
Fiduciary, including, but not limited to, any judgments, fines (including any
excise taxes assessed on Indemnitee with respect to an employee benefit plan),
ERISA excise taxes and penalties, and penalties and amounts paid in settlement
of any Proceeding (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).
(g) "Person" means any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust, estate, governmental
unit or other enterprise or entity, or as the term person is used for purposes
of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act").
(h) "Proceeding" means any overtly threatened, pending or completed
investigation, civil or criminal action, third-party action, derivative action,
claim, suit, arbitration, counterclaim, cross claim, alternative dispute
resolution mechanism, inquiry, administrative hearing or any other proceeding
whether civil, criminal, administrative, legislative or investigative, including
any appeal therefrom, in any such case in which Indemnitee was involved as a
party, potential party, non-party witness or otherwise by reason of (i) the fact
that Indemnitee is or was a Fiduciary, or (ii) any action taken (or failure to
act) by him or on his behalf in his capacity as a Fiduciary.
(i) "Subsidiary" means any Person of which a majority of the outstanding
voting securities or other voting equity interests are owned, directly or
indirectly, by the Company.
Section 2. Services by the Indemnitee. The Indemnitee agrees to serve as a
director or an officer of the Company at the will of the Company for so long as
the Indemnitee is duly elected and qualified, appointed or until such time as
the Indemnitee tenders a resignation or is removed as a director or an officer.
This Agreement shall not be deemed to be an employment contract between the
Company (or any Subsidiary of the Company) and Indemnitee, and the Indemnitee
may at any time and for any reason resign from such position.
Section 3. Indemnification.
(a) Indemnification. Subject to the further provisions of this Agreement,
the Company shall indemnify Indemnitee and hold him harmless from and against
any and all Expenses and Liabilities incurred by Indemnitee or on Indemnitee's
behalf, to the fullest extent permitted by applicable law in effect on the date
hereof, and to such greater extent as applicable law may thereafter permit or
authorize.
(b) Presumptions.
(i) Upon making any request for indemnification for Expenses and
Liabilities, or advancement of Expenses under this Agreement, Indemnitee
shall be presumed to be entitled to such indemnification for Expenses and
Liabilities or advancement of Expenses, as the case may be, under this
Agreement and, in connection with any determination with respect to
entitlement to indemnification under Section 4(c) below, the Company shall
have the burdens of coming forward with evidence and by a preponderance of
the evidence to overcome that presumption in connection with the making by
any Person of any determination contrary to that presumption. It shall not
be a defense or admissible as evidence in any such action by Indemnitee,
nor shall it create a presumption that Indemnitee has not met the
applicable standard of conduct, if (i) any Person fails to have made such
determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, or (ii) any Person
fails to make an actual determination that Indemnitee has not met any
applicable standard of conduct.
(ii) For purposes of any determination of good faith, Indemnitee shall
be deemed to have acted in good faith if Indemnitee's action is based on
(x) the records or books of account of any Enterprise, including, without
limitation, financial statements, (y) information supplied to Indemnitee by
the officers, employees or other appropriate agents of such Enterprise in
the course of their duties, or (z) the advice of legal counsel for such
Enterprise or on information or records given or reports made to such
Enterprise by an independent certified public accountant or by an appraiser
or other expert selected by such Enterprise. The provisions of this Section
3(b) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this Agreement.
(iii) If the Person empowered or selected under Section 4(c) below to
determine whether Indemnitee is entitled to indemnification for Liabilities
and Expenses or advancement of Expenses shall not have made a determination
within twenty (20) calendar days after receipt by the Company of the
request therefor, the requisite determination of entitlement to
indemnification for Liabilities and Expenses or advancement of Expenses
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification for Liabilities and Expenses or advancement of Expenses,
absent (A) a misstatement by Indemnitee to the Company of a material fact,
in connection with the request for indemnification for Liabilities and
Expenses or advancement of Expenses, or (B) a prohibition of such
indemnification for Liabilities and Expenses or advancement of Expenses
under applicable law; provided that such 20-day period may be extended for
a reasonable time, not to exceed an additional 20 days, if the Person
empowered or selected under Section 4(c) below to determine whether
Indemnitee is entitled to indemnification for Liabilities and Expenses or
advancement of Expenses in good faith requests in writing such additional
time for the obtaining or evaluating of documentation and/or information
relating thereto.
(iv) The knowledge and/or actions, or failure to act, of any other
Fiduciary shall not be imputed to Indemnitee for purposes of determining
any right to indemnification for Liabilities and Expenses or advancement of
Expenses under this Agreement.
(c) Effect of Certain Proceedings. The termination of any Proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendre or its
equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner reasonably believed to be in or not opposed to
the best interests of the Company, and with respect to any criminal Proceeding,
that Indemnitee had reason to believe his conduct was unlawful.
Section 4. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance or reimburse
Indemnitee for all Expenses incurred by Indemnitee or on Indemnitee's behalf,
without regard to Indemnitee's ultimate entitlement to indemnification under the
other provisions of this Agreement. Indemnitee hereby undertakes to repay such
amounts advanced if, and only to the extent that, it shall be determined by a
final judgment or other final adjudication, not subject to further appeal or
review, that Indemnitee is not entitled to be indemnified by the Company as
authorized hereby, or under applicable law or otherwise. The advances to be made
hereunder shall be paid by the Company to Indemnitee within twenty (20) calendar
days following delivery of any written request, which shall reasonably evidence
the Expenses incurred or to be incurred, from time to time, by Indemnitee to the
Company. Advances payable hereunder shall include any and all reasonable
Expenses incurred pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding any statements to the
Company to support the advances claimed.
(b) Notice by Indemnitee. Indemnitee shall, as promptly as reasonably
practicable under the circumstances, notify the Company in writing upon being
served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or any other matter which may be
subject to indemnification for Liabilities and Expenses or advancement of
Expenses covered by this Agreement; provided, however, that any delay or failure
to so notify the Company shall relieve the Company of its obligations hereunder
only to the extent, if at all, that the Company is actually and materially
prejudiced by reason of such delay or failure.
(c) Determination of Entitlement to Indemnification. Upon the receipt of
any notice pursuant to Section 4(b) hereof, a determination with respect to
Indemnitee's entitlement to indemnification for Liabilities and Expenses or
advancement of Expenses hereunder shall be made within twenty (20) calendar days
by (i) a majority vote of the Board of Directors who are not parties to the
Proceeding in respect of which indemnification for Liabilities and Expenses or
advancement of Expenses is sought by Indemnitee, even though less than a quorum,
or (ii) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by Independent Counsel in a written
opinion to the Board of Directors (a copy of which opinion shall be delivered to
Indemnitee); provided, however, that if there has been a Change of Control at or
prior to the time of such notice by Indemnitee, Indemnitee's entitlement to
indemnification for Liabilities and Expenses or advancement of Expenses shall be
determined within the foregoing time period by Independent Counsel selected by
Indemnitee, such determination to be set forth in a written opinion to the Board
of Directors (a copy of which opinion shall be delivered to Indemnitee). The
Company agrees to pay the reasonable fees of any Independent Counsel and to
fully indemnify such Independent Counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto. If, pursuant to the foregoing, it is determined that
Indemnitee is entitled to indemnification for Liabilities and Expenses or
advancement of Expenses, payment to Indemnitee shall be made within twenty (20)
calendar days from the date of notice by Indemnitee pursuant to Section 4(b)
hereof. Indemnitee shall reasonably cooperate in the making of such
determination, including providing upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from
disclosure (excluding any information that counsel for Indemnitee advises
Indemnitee not to disclose) and which is reasonably available to Indemnitee and
reasonably necessary to such determination. For the avoidance of doubt, any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the Person making such determination shall be
included as Expenses for the purposes of this Agreement, regardless of the
ultimate determination of Indemnitee's entitlement to indemnification for
Liabilities and Expenses or advancement of Expenses regarding the underlying
matter. Nothing in this Section 4(c) shall be construed to limit or modify the
presumptions in favor of Indemnitee set forth in Section 3(b).
(d) Notice to Insurers. If, at the time of the receipt of any notice of any
Proceeding pursuant to Section 4(b) hereof, the Company has directors' and
officers' liability insurance in effect, then the Company shall give prompt
notice of the commencement of such Proceeding to the directors' and officers'
liability insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or appropriate action
to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such Proceeding in accordance with the terms of such policies. The
failure or refusal of the Company to provide such notice to such insurers or the
failure or refusal of such insurers to pay any such amount shall not affect or
impair the obligations of the Company under this Agreement.
(e) Control of Defense; Counsel Costs. In connection with paying the
Expenses of Indemnitee under Section 4(a), the Company shall be entitled to
elect to assume the defense of such Proceeding, with counsel experienced in
matters that are the subject of the Proceeding and practicing in the applicable
jurisdiction where the Proceeding is pending and approved by Indemnitee, which
approval shall not be unreasonably withheld, by the delivery to Indemnitee of
written notice of its election to do so. After delivery of such notice, approval
of such counsel by Indemnitee and the retention of such counsel by the Company,
the Company shall not be liable to Indemnitee under this Agreement for any fees
of separate counsel subsequently incurred by Indemnitee with respect to the same
Proceeding; provided, that (i) Indemnitee shall have the right to employ counsel
in any such Proceeding at Indemnitee's sole expense and (ii) if (A) the
employment of counsel by Indemnitee has been authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there is an actual conflict of
interest between the Company and Indemnitee in the conduct of any such defense,
or (C) the Company shall not have employed counsel to assume the defense of such
Proceeding, then in any such event the fees and expenses of Indemnitee's counsel
shall be at the expense of the Company. The Company shall not be entitled to
assume the defense of any Proceeding brought in the name of or on behalf of the
Company or as to which Indemnitee shall have made the conclusion provided for in
(B) above. Notwithstanding the foregoing, if at any time the Company fails to
pay any Expenses with respect to any Proceeding in accordance with Section 4(a)
hereof, Indemnitee shall immediately be entitled to assume and control his own
defense in such Proceeding with counsel of his own choice (by notice to the
Company), and will have all rights to indemnification of such Expenses of
counsel hereunder.
(f) Settlement. The Company shall not be liable to indemnify Indemnitee
under this Agreement or otherwise for any amounts paid in settlement of any
Proceeding effected without the Company's prior written consent; provided that
if a Change of Control has occurred, the Company shall be liable for
indemnification of Indemnitee for amounts paid in settlement if an Independent
Counsel selected by Indemnitee has approved the settlement. The Company shall
not settle any Proceeding in any manner that would impose any penalty, liability
or limitation on Indemnitee without Indemnitee's prior written consent; provided
that the Company shall not be required to obtain the consent of Indemnitee to
the settlement of any Proceeding the Company has undertaken to defend if the
settlement grants Indemnitee a complete and unqualified release in respect of
the potential liability. Neither the Company nor Indemnitee will unreasonably
withhold their consent to any proposed settlement.
Section 5. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 4(c)
of this Agreement that Indemnitee is not entitled to indemnification for
Liabilities and Expenses or advancement of Expenses under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 4(a) hereof,
(iii) no determination of entitlement to indemnification for Liabilities and
Expenses or advancement of Expenses shall have been made pursuant to Section
4(c) hereof within twenty (20) calendar days after receipt by the Company of
notice pursuant to Section 4(b) hereof, or (iv) payment of indemnification is
not made pursuant to the fourth to last sentence of Section 4(c) hereof within
twenty (20) calendar days after the date of notice by Indemnitee pursuant to
Section 4(b) hereof, Indemnitee shall be entitled to an adjudication by the
Delaware Court of Chancery or other court of competent jurisdiction of his
entitlement to such indemnification, advancement of Expenses, or to recover
damages for breach of this Agreement.
(b) In the event that a determination shall have been made pursuant to
Section 4(c) of this Agreement that Indemnitee is not entitled to
indemnification for Liabilities and Expenses or advancement of Expenses, any
judicial proceeding commenced pursuant to this Section 5 shall be conducted in
all respects as a trial de novo, and Indemnitee shall not be prejudiced by
reason of that adverse determination. In any judicial proceeding commenced
pursuant to this Section 5, the Company shall have the burdens of coming forward
with evidence and proving by a preponderance of the evidence that Indemnitee is
not entitled to indemnification for Liabilities and Expenses or advancement of
Expenses, as the case may be, and the Company may not refer to or introduce into
evidence any determination pursuant to Section 4(c) of this Agreement adverse to
Indemnitee for any purpose. If a determination shall have been made pursuant to
Section 4(c) hereof that Indemnitee is entitled to indemnification for
Liabilities and Expenses or advancement of Expenses, the Company shall be bound
by such determination in any judicial proceeding commenced pursuant to this
Section 5, absent (i) a misstatement by Indemnitee to the Company of a material
fact, in connection with the request for indemnification, or (ii) a prohibition
of such indemnification for Liabilities and Expenses or advancement of Expenses
under applicable law.
(c) In the event that Indemnitee, pursuant to this Section 5, seeks a
judicial adjudication to enforce his rights under, or to recover damages for
breach of, this Agreement, Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses
actually and reasonably incurred by him in such judicial adjudication. If it
shall be determined in such judicial adjudication that Indemnitee is entitled to
receive part but not all of the indemnification for Liabilities and Expenses or
advancement of Expenses sought, the Indemnitee shall be entitled to recover from
the Company, and shall be indemnified by the Company against, any and all
Expenses reasonably incurred by Indemnitee in connection with such judicial
adjudication.
(d) The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 5 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement.
Section 6. Expansion of DGCL Indemnity Provisions; Nonexclusivity. The
indemnification provided by this Agreement shall be in addition to any rights to
which Indemnitee may be entitled under the Company's Certificate of
Incorporation, the Company's Bylaws, any agreement, any vote of stockholders or
disinterested directors, the DGCL or otherwise, both as to action in
Indemnitee's official capacity and as to action in another capacity while
holding such office. To the extent that a change in the DGCL or the manner in
which the DGCL is judicially construed permits greater indemnification for
Liabilities and Expenses or advancement of Expenses than would be afforded
currently under the Company's Certificate of Incorporation, Bylaws and this
Agreement, it is the agreement and intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change.
No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in
addition to every right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
Section 7. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses or Liabilities actually or reasonably incurred by
Indemnitee in investigation, defense, appeal or settlement of any Proceeding,
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses and Liabilities to which
Indemnitee is entitled.
Section 8. Mutual Acknowledgment. Each of the Company and Indemnitee
acknowledges that in certain instances, U.S. Federal law or applicable public
policy may prohibit the Company from advancing expenses or indemnifying its
directors under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification
to a court in certain circumstances for a determination of the Company's right
under public policy to indemnify Indemnitee. Any action taken pursuant to the
terms of this Section 8 shall not constitute a breach of this Agreement.
Section 9. Directors' and Officers' Liability Insurance. Upon a Change of
Control, the Company shall use its best efforts to obtain and maintain on an
ongoing basis a policy or policies of insurance on commercially reasonable terms
with reputable insurance companies providing liability insurance for
Fiduciaries, including Indemnitee, in respect of acts or omissions occurring
while serving in such capacity, and to ensure the Company's performance of its
indemnification obligations under this Agreement, on terms with respect to
coverage and amount (including with respect to the payment of Expenses) no less
favorable than those of such policy or policies of insurance in effect on the
date hereof. To the extent that the Company maintains a policy or policies of
insurance pursuant to this Section 9, Indemnitee shall be covered by such policy
or policies in accordance with its or their terms to the maximum extent of the
coverage available for any Fiduciary under such policy or policies.
Section 10. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law, (ii) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to give
the maximum effect to the intent of the parties hereto, and (iii) to the fullest
extent possible, the provisions of this Agreement (including without limitation
each portion of any Section of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
thereby.
Section 11. Duration of Agreement. The indemnification provided under this
Agreement shall continue as to the Indemnitee for any action taken or not taken
while serving as a Fiduciary even though Indemnitee may have ceased to serve in
such capacity at the time of any action or other covered proceeding.
Section 12. Exceptions. Notwithstanding any other provision to the contrary
herein, the Company shall not be obligated pursuant to the terms of this
Agreement to indemnify Indemnitee as follows:
(a) Excluded Acts. No indemnification shall be made for any acts or
omissions or transactions, if and to the extent that it shall be determined by a
final judgment or other final adjudication, not subject to further appeal or
review, that a director or officer may not be relieved of liability arising from
any such acts or omissions or transactions under the DGCL or applicable
securities laws;
(b) Indemnitee Liable to Company. No indemnification shall be made in
respect of any Proceeding, claim, issue or matter as to which it shall have been
determined by a final judgment or other final adjudication, not subject to
further appeal or review, that Indemnitee is liable to the Company unless and
only to the extent that such final judgment or other final adjudication shall
determine that, despite the adjudication of liability but in view of all of the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such Expenses as the court deems proper and then only to the
extent that the court shall determine;
(c) Claims Initiated by Indemnitee. No indemnification for Liabilities and
Expenses or advancement of Expenses to Indemnitee shall be made with respect to
Proceedings or claims initiated or brought voluntarily by Indemnitee and not by
way of defense, except with respect to such Proceedings brought to establish or
enforce a right to indemnification for Liabilities and Expenses or advancement
of Expenses under this Agreement or any other statute or applicable law or
otherwise as required under Section 145(c) of the DGCL or any other provision of
the Certificate of Incorporation or Bylaws of the Company, unless (i) the Board
of Directors has approved the initiation or bringing of such Proceeding (or any
part of any Proceeding) or (ii) the Company provides the indemnification, in its
sole discretion, pursuant to the powers vested in the Company under applicable
law;
(d) Lack of Good Faith. No indemnification shall be made to indemnify
Indemnitee for any Expenses or Liabilities incurred by Indemnitee with respect
to any Proceedings instituted by Indemnitee to enforce or interpret this
Agreement, if it shall be determined by a final judgment or other final
adjudication, not subject to further appeal or review, that each of the material
assertions made by Indemnitee in such proceeding was not made in good faith or
was frivolous;
(e) Insured Claims. No indemnification shall be made to indemnify
Indemnitee for Expenses or Liabilities of any type whatsoever if, but only to
the extent that, Indemnitee shall have actually received payment with respect to
any such Expenses or Liabilities from an insurer under any policy of directors'
and officers' liability insurance maintained by the Company, and any such
payment shall not be recovered (in whole or in part) from Indemnitee by such
insurer;
(f) Claims under Section 16(b). No indemnification shall be made under this
Agreement for Expenses, Liabilities and the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 16(b) of
the 1934 Act, or any similar state or local law with respect to the disgorgement
of "short swing" profits;
(g) Claims under Section 304 of the Sarbanes-Oxley Act. No indemnification
shall be made under this Agreement for Expenses, Liabilities, the reimbursement
of the Company of bonuses or other incentive-based or equity-based compensation,
and the reimbursement of the Company of profits realized from the sale of
securities of the Company incurred by Indemnitee, to the extent that such
Expenses, Liabilities and reimbursements directly arise from an accounting
restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of
2002 (the "Sarbanes-Oxley Act"); or
(h) Claims under Section 306 of the Sarbanes-Oxley Act. No indemnification
shall be made under this Agreement for Expenses, Liabilities and the payment of
profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 306 of the Sarbanes-Oxley Act.
Section 13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which shall
constitute one and the same agreement.
Section 14. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, and executors, administrators, personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all or
substantially all, or a substantial part of the business or assets of the
Company, by written agreement in the form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the
manner and to the same extent that the Company would be required to perform if
no such succession had taken place.
(b) The indemnification for Liabilities and Expenses or advancement of
Expenses provided by, or granted pursuant to this Agreement shall continue as to
a person who has ceased to be a Fiduciary. If the Indemnitee is deceased and is
entitled to indemnification for Liabilities and Expenses or advancement of
Expenses under any provision of this Agreement, when requested in writing by the
spouse of the Indemnitee, and/or the Indemnitee's heirs, executors,
administrators, legatees or assigns, the Company shall provide appropriate
evidence of the Company's agreement set out herein to indemnify the Indemnitee
against and to itself assume such Expenses.
Section 15. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. The observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term only by a writing
signed by the party against which such waiver is to be asserted. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
Section 16. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, by overnight express
delivery service, or when mailed by certified registered mail, return receipt
requested, with postage prepaid:
If to Indemnitee, to:
-------------------------
-------------------------
-------------------------
-------------------------
or to such other person or address which Indemnitee shall furnish to the Company
in writing pursuant to the above.
If to the Company, to
RadioShack Corporation
300 RadioShack Circle
MS CF4-101
Fort Worth, Texas 76102
Attention: Corporate Secretary
or to such person or address as the Company shall furnish to Indemnitee in
writing pursuant to the above.
Section 17. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall, at the Company's expense, execute all
documents reasonably required and do all acts that may be reasonably necessary
to secure such rights and to enable the Company effectively to bring suit to
enforce such rights.
Section 18. Evidence of Coverage. Upon request by Indemnitee, the Company
shall provide copies of any and all directors' and officers' liability insurance
policies obtained and maintained in accordance with Section 9 of this Agreement.
Section 19. Contribution. To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding in
order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving rise to such
Proceeding, and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s)
and/or transaction(s).
Section 20. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
Section 21. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction and venue of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement.
Section 22 No Third Party Beneficiary. Nothing contained in this Agreement,
express or implied, is intended to or shall confer upon any other Person (other
than the parties hereto) any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
Section 23. Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement between the parties hereto with respect
to the matters covered hereby, and any other prior or contemporaneous oral or
written understandings or agreements with respect to the matters covered hereby
are superseded by this Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
RADIOSHACK CORPORATION
By:
--------------------------------------------
Name: David J. Edmondson
Title: President and Chief Executive Officer
--------------------------------------------
Exhibit 10.2
NOTICE OF GRANT OF DEFERRED STOCK UNITS
and DEFERRED STOCK UNIT AGREEMENT
Pursuant to Article Six of the RadioShack Corporation 2004 Deferred Stock
Plan for Non-Employee Directors (the "Plan"), ______________________ (the
"Grantee"), who as of the date hereof is an Eligible Director of RadioShack
Corporation, a Delaware corporation (the "Company"), is hereby awarded
_____________ Deferred Stock Units (the "Deferred Stock Units"), effective
___________________, upon the terms and conditions of the Plan and as set forth
below. Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Plan.
1. Each Deferred Stock Unit represents a hypothetical share of Common Stock
in accordance with the Plan. The Deferred Stock Units shall be credited to the
Grantee in an account established for the Grantee, and an amount equal to the
amount of any dividend on the equivalent amount of Common Stock shall be paid to
the Grantee in accordance with the Plan.
2. The Deferred Stock Units shall vest in accordance with Section 6.3 of
the Plan and shall be paid in shares of Common Stock in accordance with Article
Eight of the Plan.
3. The Deferred Stock Units shall not be sold, assigned, exchanged,
pledged, hypothecated, transferred or otherwise disposed of (whether voluntarily
or by operation of law), other than in accordance with the Plan.
4. Grantee shall have no voting rights or any other rights as a Stockholder
with respect to the Deferred Stock Units, and Grantee shall have no rights as a
Stockholder with respect to any shares of Common Stock issuable pursuant to the
Deferred Stock Units until the date on which a stock certificate (or
certificates) representing such Common Stock is issued.
5. The number of shares of Common Stock issuable pursuant to the Deferred
Stock Units shall be subject to equitable adjustment as provided in Section 5.1
of the Plan.
6. The laws of the State of Texas shall govern this award and all matters
related hereto.
7. This award is subject to the terms of the Plan, and the Grantee is being
delivered a copy of the Plan with this Notice and Agreement.
8. On demand by the Company, Grantee shall pay to the Company (or,
alternatively, shall instruct the Company to withhold shares of Common Stock
issuable pursuant to the Deferred Stock Units) any taxes the Company reasonably
determines it is required to withhold under applicable tax laws, in accordance
with Section 8.2 of the Plan.
9. This Notice and Agreement cannot be changed or terminated orally. This
Notice and Agreement and the Plan contain the entire agreement between the
parties relating to the subject matter hereof.
--------------------------------------------------------------------------------
Unless you notify the Company in writing by ______________, that you do not
accept the terms of this Notice and Agreement, this Notice and Agreement shall
be deemed to be executed by you and the Company and you will be deemed to have
accepted, and to be bound by, the terms of this Notice and Agreement.
--------------------------------------------------------------------------------