FORM OF BOOZ ALLEN HAMILTON HOLDING CORPORATION DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
Exhibit 10.23
This INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of this ___ day of ____________,
20__, by and between Booz Xxxxx Xxxxxxxx Holding Corporation, a Delaware corporation (the
“Company”), and ___________________ (“Indemnitee”).
RECITALS:
The Company and Indemnitee recognize the substantial increase in corporate litigation in
general, subjecting corporate directors to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited. The Company desires to
attract and retain the services of highly qualified individuals, such as Indemnitee, to serve as
directors and officers of the Company and to indemnify its directors and officers so as to provide
them with the maximum protection permitted by law.
The Company and Indemnitee, intending to be legally bound, hereby agree as follows:
1. INDEMNIFICATION.
(a) Third Party Proceedings. The Company shall indemnify Indemnitee if Indemnitee was
or is a party to or witness in or is threatened to be made a party to or witness in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Company, or any subsidiary of
the Company, or by reason of the fact that Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys’ fees), losses,
liabilities, judgments, fines, penalties and amounts paid in settlement (including all interest,
assessments and other charges in connection therewith, and if such settlement is approved in
advance by the Company, which approval shall not be unreasonably withheld) actually incurred by
Indemnitee in connection with such action, suit or proceeding if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful. The termination of any action 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 (i) Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company, and (ii) with
respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(b) Proceedings By or in the Right of the Company. The Company shall indemnify
Indemnitee if Indemnitee was or is a party to or witness in or is threatened to be made a party to
or witness in to any threatened, pending or completed action or suit by or in the right of the
Company or any subsidiary of the Company to procure a judgment in its favor by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of the Company, or any subsidiary
of the Company, or by reason of the fact that Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys’ fees) actually incurred
by Indemnitee in connection with the defense or settlement of such action or suit if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, except that no indemnification shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Company,
or any subsidiary of the Company, unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit is or was pending shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the
extent that the court shall deem proper.
(c) Successful Defense. To the extent Indemnitee has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 1(a) or (b) hereof,
Indemnitee shall be indemnified against expenses (including attorney fees) actually incurred by
Indemnitee in connection therewith.
2. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) Advancement of Expenses. The Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense, settlement or appeal of any civil or
criminal action or proceeding referenced in Section 1(a) or (b) hereof (but not amounts actually
paid in settlement of any such action or proceeding). Indemnitee hereby undertakes to repay such
amounts advanced only if, and to the extent that, it shall ultimately be determined that Indemnitee
is not entitled to be indemnified by the Company as authorized hereby. The advances to be made
hereunder shall be paid by the Company to Indemnitee within twenty (20) days following delivery of
a written request therefor by Indemnitee to the Company, accompanied by such supporting
documentation as may be reasonably requested by the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition precedent to
his right to be indemnified under this Agreement, give the Company notice in writing as soon as
practicable of any claim made against Indemnitee for which indemnification will or could be sought
under this Agreement, provided that any failure or delay in giving such notice shall not
relieve the Company of its obligations under this Agreement unless and to the extent that
(i) none of the Company and its subsidiaries are party to or aware of such Proceeding and
(ii) the Company is materially prejudiced by such failure. In
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addition, Indemnitee shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s power.
(c) Procedure. Subject to Section 2(d) hereof, any indemnification provided for in
Section 1 shall be made no later than forty-five (45) days after receipt of the written request of
Indemnitee made following final disposition of the action or proceeding to which such
indemnification relates. Subject to Section 2(d) hereof, if a claim by Indemnitee under this
Agreement, under any statute, or under any provision of the Company’s Certificate of Incorporation
or Bylaws providing for indemnification, is not paid in full by the Company within forty-five (45)
days after a written request for payment thereof has first been received by the Company, Indemnitee
may, but need not, at any time thereafter bring an action against the Company to recover the unpaid
amount of the claim and, subject to Section 14 hereof, Indemnitee shall also be entitled to be paid
for the expenses (including reasonable attorneys’ fees) of bringing such action.
(d) Determination of Right to Entitlement.
(i) In the event that Indemnitee incurs liability for any fines, judgments, liabilities,
penalties or amounts paid in settlement, and indemnification is sought under this Agreement, the
Company shall pay (or provide for payment if so required by the terms of any judgment or
settlement) such amounts within forty-five (45) days of Indemnitee’s written request therefor
unless a determination is made within such forty-five (45) days that the claims giving rise to such
request are excluded or indemnification is otherwise not due under this Agreement. Such
determination, and any determination required by applicable law as to whether Indemnitee has met
the standard of conduct required to qualify and entitle Indemnitee, partially or fully, to
indemnification under Section 2 of this Agreement, shall be made as follows:
(A) If no change in control has occurred, (w) by a majority vote of
the directors of the Company who are not parties to such action, suit or proceeding
even though less than a quorum, with the advice of independent legal counsel, or
(x) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, with the advice of independent legal
counsel, or (y) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion to the Company and
Indemnitee.
(B) If a change in control has occurred, by independent legal counsel in a
written opinion to the Company and Indemnitee.
The term “independent legal counsel” shall mean for this purpose an attorney or firm of attorneys
experienced in matters of corporation law that is not now nor has within the previous three years
been retained to represent Indemnitee, the Company or any other party to the proceeding giving rise
to the claim for indemnification hereunder; provided that “independent legal counsel” shall not
include any person who under applicable standards of professional conduct would have a conflict of
interest in representing Indemnitee or the Company in an action to determine Indemnitee’s rights
under this Agreement. The term “change of control” shall mean for this purpose, and shall be
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deemed to have occurred if, on or after the date of this Agreement, (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended),
other than (A) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any of its subsidiaries acting in such capacity, or (B) an entity
owned directly or indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing more than thirty-five percent (35%) of the total voting power represented by the
Company’s then outstanding voting securities, (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the board of directors of the
Company and any new director whose election by the board of directors of the Company or nomination
for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation other than a merger or consolidation that
would result in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least sixty-five percent (65%) of the total voting power
represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, (iv) the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the sale or disposition
by the Company of (in one transaction or a series of related transactions) all or substantially all
of its assets, or (v) the Company shall file or have filed against it, and such filing
shall not be dismissed, any bankruptcy, insolvency or dissolution proceedings, or a trustee,
administrator or creditors committee shall be appointed to manage or supervise the affairs of the
Company.
(ii) The Company shall be bound by and shall have no right to challenge a determination made
as provided above in favor of Indemnitee. Indemnitee may within forty-five (45) days after a
determination adverse to Indemnitee has been made as provided above, or if no determination has
been made within forty-five (45) days of Indemnitee’s written request for payment, petition the
Court of Chancery of the State of Delaware or any other court of competent jurisdiction, or may
seek an award in arbitration to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association, which award shall be deemed final, unappealable and binding, to
determine whether Indemnitee is entitled to indemnification under this Agreement, and such court or
arbitrator, as the case may be, shall thereupon have the exclusive authority to make such
determination unless and until such court or arbitrator dismisses or otherwise terminates such
action without having made a determination. The court or arbitrator, as the case may be, shall
make an independent determination of entitlement in accordance with Section 2(e) below,
irrespective of any prior determination made by the Board of Directors, independent legal counsel
or stockholders. All fees and expenses of any arbitrator pursuant to this provision shall be paid
by the Company.
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(e) Presumptions; Burden and Standard of Proof. In connection with any determination,
or any review of any determination, by any person, including a court:
(i) It shall be a presumption that a determination is not required to be made under Section
2(d) hereof.
(ii) It shall be a presumption that Indemnitee has met the applicable standard of conduct and
that indemnification of Indemnitee is proper in the circumstances.
(iii) The burden of proof shall be on the Company to overcome the presumptions set forth in
the preceding clauses (i) and (ii), and each such presumption shall only be overcome if the Company
establishes that there is no reasonable basis to support it.
(iv) The termination of any proceeding by judgment, order, finding, 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 indemnification is not proper or that Indemnitee did not meet
the applicable standard of conduct or that a court has determined that indemnification is not
permitted by this Agreement or otherwise.
(v) Neither the failure of any person or persons to have made a determination nor an adverse
determination by any person or persons shall be a defense to Indemnitee’s claim or create a
presumption that Indemnitee did not meet the applicable standard of conduct, and any proceeding
commenced by Indemnitee pursuant to Section 2(d) shall be de novo with respect to all
determinations of fact and law.
(f) Selection of Counsel. In the event the Company shall be obligated under Section
2(a) hereof to pay the expenses of any proceeding against Indemnitee, the Company shall be entitled
to assume the defense of such proceeding, with counsel approved by Indemnitee, which approval shall
not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so
to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for
any fees of counsel subsequently incurred by Indemnitee with respect to the same proceeding,
provided that (i) Indemnitee shall have the right to employ his own counsel in any such proceeding
at Indemnitee’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and Indemnitee in the conduct of any such defense or
(C) the Company shall not, in fact, have employed counsel to assume the defense of such proceeding,
then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company.
(g) Settlement. The Company will not, without the prior written consent of Indemnitee,
which may be provided or withheld in Indemnitee’s sole discretion, effect any settlement of any
Proceeding against Indemnitee or which could have been brought against Indemnitee unless such
settlement solely involves the payment of money by
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persons other than Indemnitee and includes an unconditional release of Indemnitee from all
liability on any matters that are the subject of such Proceeding and an acknowledgment that
Indemnitee denies all wrongdoing in connection with such matters. The Company shall not be
obligated to indemnify Indemnitee against amounts paid in settlement of a Proceeding against
Indemnitee if such settlement is effected by Indemnitee without the Company’s prior written
consent, which shall not be unreasonably withheld.
3. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) Scope. Notwithstanding any other provision of this Agreement, the Company hereby
agrees to indemnify the Indemnitee to the fullest extent permitted by the Delaware General Corporation Law (other than Section 145(f) thereof or any successor non-exclusivity
provision), notwithstanding that such indemnification is not specifically authorized by the other
provisions of this Agreement, the Company’s Certificate of Incorporation, the Company’s Bylaws or
by statute. In the event of any change, after the date of this Agreement, in any applicable law,
statute or rule which expands the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, such changes shall be, ipso facto, within the purview of
Indemnitee’s rights and the Company’s obligations, under this Agreement. In the event of any change
in any applicable law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its Board of Directors, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement shall have no effect on this Agreement or
the parties’ rights and obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement shall not be deemed
exclusive of any rights to which Indemnitee may be entitled under the Company’s Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested directors, the
Delaware General Corporation Law, any other applicable law or any liability insurance policy, both
as to action in Indemnitee’s official capacity and as to action in another capacity while holding
such office, provided that to the extent that Indemnitee is entitled to be indemnified by
the Company under this Agreement and by any shareholder of the Company or any affiliate of any such
shareholder under any other agreement or instrument, the obligations of the Company hereunder shall
be primary, and the obligations of such shareholder or affiliate] secondary, and the Company shall
not be entitled to contribution or indemnification from or subrogation against such shareholder or
affiliate. The indemnification provided under this Agreement shall continue as to Indemnitee for
any action taken or not taken while serving in an indemnified capacity even though he may have
ceased to serve in such capacity at the time of any action or other covered proceeding.
4. 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 (including attorneys’ fees),
losses, liabilities, judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges in connection therewith, and if such settlement is approved
in advance by the Company,
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which approval shall not be unreasonably withheld) actually incurred by Indemnitee in
connection with an action, suit or proceeding described in Section 1(a), but not, however, for the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such
expenses (including attorneys’ fees), losses, liabilities, judgments, fines, penalties and amounts
paid in settlement to which Indemnitee is entitled.
5. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge that in certain
instances, Federal law or applicable public policy may prohibit the Company from indemnifying its
directors and officers 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.
6. SEVERABILITY. Nothing in this Agreement is intended to require or shall be construed as
requiring the Company to do or fail to do any act in violation of applicable law. The Company’s
inability, pursuant to court order, to perform its obligations under this Agreement shall not
constitute a breach of this Agreement. The provisions of this Agreement shall be severable as
provided in this Section 6. If this Agreement or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not
have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in
accordance with its terms.
7. EXCEPTIONS. Any other provision herein to the contrary notwithstanding, the Company shall
not be obligated pursuant to the terms of this Agreement:
(a) Excluded Acts. To indemnify Indemnitee for any acts or omissions or transactions
from which a director may not be relieved of liability under the Delaware General Corporation Law;
or
(b) Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee
with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way
of defense, except with respect to proceedings brought to establish or enforce a right to
indemnification as provided in Section 14 hereto, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board of Directors has approved
the initiation or bringing of such suit; or
(c) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by
Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret this
Agreement, to the extent that a court of competent jurisdiction determines that the material
assertions made by Indemnitee in such proceeding were not made in good faith or were frivolous; or
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(d) Insured Claims. To indemnify Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, Employee Retirement Income Security
Act of 1974 excise taxes or penalties, and amounts paid in settlement) which have been paid
directly to Indemnitee by an insurance carrier under a policy of directors’ and officers’ liability
insurance maintained by the Company or its affiliates.
(e) Claims Under Section 16(b). To indemnify Indemnitee in any proceeding with respect
to which final judgment is rendered against Indemnitee for a payment or the accounting of profits
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, or any similar successor statute.
8. EFFECTIVENESS OF AGREEMENT. To the extent that the indemnification permitted under the
terms of certain provisions of this Agreement exceeds the scope of the indemnification provided for
in the Delaware General Corporation Law, such provisions shall not be effective unless and until
the Company’s Certificate of Incorporation authorizes such additional rights of indemnification. In
all other respects, the balance of this Agreement shall be effective as of the date set forth on
the first page hereof and may apply to acts or omissions of Indemnitee which occurred prior to such
date if Indemnitee was an officer, director, employee or other agent of the Company, or was serving
at the request of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, at the time such act or omission occurred.
9. AGREEMENT TO SERVE. Indemnitee agrees or has agreed to serve as a director of the Company
or one or more of its subsidiaries and in such other capacities as Indemnitee may serve at the
request of the Company from time to time, and by its execution of this Agreement the Company
confirms its request that Indemnitee serve as a director and in such other capacities. Indemnitee
shall be entitled to resign or otherwise terminate such service with immediate effect at any time,
and neither such resignation or termination nor the length of such service shall affect
Indemnitee’s rights under this Agreement. This Agreement shall not constitute an employment
agreement, supersede any employment agreement to which Indemnitee is a party or create any right of
Indemnitee to continued employment or appointment.
10. DIRECTORS AND OFFICERS LIABILITY INSURANCE.
(a) Maintenance of Insurance. So long as the Company or any of its subsidiaries
maintains liability insurance for any directors, officers, employees or agents of any such person,
the Company shall ensure that Indemnitee is covered by such insurance in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most favorably insured of
the Company’s and its subsidiaries’ then current directors and officers. If at any date (i) such
insurance ceases to cover acts and omissions occurring during all or any part of the period of
Indemnitee’s service as director or (ii) neither the Company nor any of its subsidiaries maintains
any such insurance, the Company shall ensure that Indemnitee is covered, with respect to acts and
omissions prior to such date, for at least six years (or such shorter period as is available on
commercially reasonable
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terms) from such date, by other directors and officers liability insurance, in amounts and on
terms (including the portion of the period of Indemnitee’s service as director covered) no less
favorable to Indemnitee than the amounts and terms of the liability insurance maintained by the
Company on the date hereof.
(b) Notice to Insurers. Upon receipt of notice of a proceeding pursuant to Section
2(b), the Company shall give or cause to be given prompt notice of such proceeding to all insurers
providing liability insurance in accordance with the procedures set forth in all applicable or
potentially applicable policies. The Company shall thereafter take all necessary action to cause
such insurers to pay all amounts payable in accordance with the terms of such policies.
11. CONSTRUCTION OF CERTAIN PHRASES.
(a) Company. For purposes of this Agreement, references to the “Company” shall
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,
employees or agents, so that if Indemnitee 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, Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee would have with
respect to such constituent corporation if its separate existence had continued.
(b) Other Enterprise, etc. For purposes of this Agreement, references to “other
enterprises” shall include employee benefit plans; references to “fines” shall include any excise
taxes assessed on Indemnitee with respect to any employee benefit plan; and references to “serving
at the request of the Company” shall include any service as a director, officer, employee or agent
of the Company 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.
12. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which
shall constitute an original. Any facsimile copies hereof or signature hereon shall, for all
purposes, be deemed originals.
13. SUCCESSORS
AND ASSIGNS. This Agreement shall be binding upon the Company and its successors and assigns, including without limitation any acquiror of all or
substantially all of the Company’s assets or business, any person (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) that acquires beneficial
ownership of securities of the Company representing more than thirty-five percent (35%) of the
total voting power represented by the Company’s then outstanding voting securities and any survivor
of any merger or consolidation to which the Company is party, and shall inure to the benefit of the
Indemnitee and shall inure to the benefit of Indemnitee and Indemnitee’s estate, spouses, heirs,
executors, personal or
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legal representatives, administrators and assigns. The Company shall require and cause any such
successor, by written agreement in form and substance satisfactory to Indemnitee, expressly to
assume and agree to perform this Agreement as if it were named as the Company herein, and the
Company shall not permit any such purchase of assets or business, acquisition of securities or
merger or consolidation to occur until such written agreement has been executed and delivered. No
such assumption and agreement shall relieve the Company of any of its obligations hereunder, and
this Agreement shall not otherwise be assignable by the Company.
14. ATTORNEYS’ FEES. In the event that any action is instituted by Indemnitee or the Company
or any of its subsidiaries to enforce or interpret any of the terms of this Agreement or any rights
of Indemnitee to indemnification or advancement of expenses (or related obligations of Indemnitee)
under the Company’s or any such subsidiary’s certificate of incorporation or bylaws, any other
agreement to which Indemnitee and the Company or any of its subsidiaries are a party, any vote of
stockholders or directors of the Company or any of its subsidiaries, the DGCL, any other applicable
law or any liability insurance policy, Indemnitee shall be entitled to be paid all court costs and
expenses, including reasonable attorneys’ fees, incurred by Indemnitee with respect to such action,
whether or not Indemnitee is successful in such action, except to the extent that, as a part of
such action, the court of competent jurisdiction determines that the material assertions made by
Indemnitee as a basis for such action were not made in good faith or were frivolous.
15. NOTICES. All notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed duly given (i) (b) if given by overnight courier or
personal delivery, on the date of receipt or (ii) if sent by telecopier (with receipt confirmed),
on the date of such receipt. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written notice and in the case of notices to
the Company shall be marked for the attention of the General Counsel.
16. CONSENT TO JURISDICTION. The parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in connection with,
this Agreement shall be brought in the Court of Chancery of the State of Delaware (or, in the case
of any claim as to which the federal courts have exclusive subject matter jurisdiction, the federal
court of the United States of America sitting in the State of Delaware), and each of the parties
hereby consents to the exclusive jurisdiction of those courts (and of the appropriate appellate
courts therefrom) in any suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying of the venue of
any suit, action or proceeding in any of those courts or that any suit, action or proceeding which
is brought in any of those courts has been brought in an inconvenient forum. Process in any suit,
action or proceeding may be served on any party anywhere in the world, whether within or without
the jurisdiction of any of the named courts.
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17. CHOICE OF LAW. This Agreement shall be construed in accordance with and governed by the
internal laws of the State of Delaware applicable to contracts executed and fully performed within
the State of Delaware, without regard to the conflict of law principles thereof.
18. 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 execute such documents and do such acts as the Company may reasonably request to secure such
rights and to enable the Company effectively to bring suit to enforce such rights, provided
that the Company shall not be subrogated to any claim of Indemnitee for indemnification from any
shareholder of the Company or any affiliate of any such shareholder.
19. AMENDMENT AND TERMINATION. No amendment, modification, termination or cancellation of
this Agreement shall be effective unless it is in writing signed by all the parties hereto. 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.
20. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company or any of its subsidiaries against Indemnitee
or Indemnitee’s estate, spouses, heirs, executors, personal or legal representatives,
administrators or assigns after the expiration of two years from the date of accrual of such cause
of action, and any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such two-year period,
provided that if any shorter period of limitations is otherwise applicable to any such
cause of action, such shorter period shall govern.
21. NON-CIRCUMVENTION. The Company shall not seek or agree to any order of any court or other
governmental authority that would prohibit or otherwise interfere, and shall not take or fail to
take any other action if such action or failure would reasonably be expected to have the effect of
prohibiting or otherwise interfering, with the performance of the Company’s indemnification,
advancement or other obligations under this Agreement.
21. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the entire understanding
between the parties hereto and supersedes and merges all previous written and oral negotiations,
commitments, understandings and agreements relating to the subject matter hereof between the
parties hereto, provided that the provisions hereof shall not supersede the provisions of
the Company’s certificate of incorporation, bylaws or other organizational agreement or instrument,
any other agreement, any vote of stockholders or directors, the DGCL or other applicable law, to
the extent any such provisions shall be more favorable to Indemnitee than the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| Booz Xxxxx Xxxxxxxx Holding Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
AGREED TO AND ACCEPTED:
INDEMNITEE:
INDEMNITEE:
Name: |
||
Address: |
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