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EXHIBIT 10F
FORM OF INDEMNIFICATION AGREEMENT
AGREEMENT dated as of the 17th day of May, 1997 between ANALYSIS &
TECHNOLOGY, INC., a Connecticut corporation (the "Company"), and the person
named as Indemnitee on the signature page hereof (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, in recognition of the Indemnitee's need for substantial
protection against personal liability arising out of his service to the Company
and/or its subsidiaries and affiliates, and to induce the Indemnitee to continue
to serve as a director, officer, employee, agent or fiduciary of the Company
and/or various of its subsidiaries, affiliates and employee benefit plans, the
Company wishes to provide in this Agreement for the indemnification of, and the
advancing of expenses to, the Indemnitee as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
benefits to be derived from this Agreement, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Indemnification.
a) The Company hereby agrees to indemnify the Indemnitee in
the event the Indemnitee is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, any action, suit or proceedings (including any appeal), whether
civil, criminal, administrative, investigative or other, relating to any
occurrence or event before or after the date hereof, by reason of the fact that
the Indemnitee is or was a director, officer, employee, partner, trustee or
agent of the Company or any of its subsidiaries or affiliates, or is or was
serving at the request of the Company or any of its subsidiaries or affiliates
as a director, officer, employee, partner, trustee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, including but not limited to any such action, suit or proceeding
(including any appeal), whether civil, criminal, administrative, investigative
or other by any third party or by or in the right of the Company or any of its
subsidiaries or affiliates or any such other corporation, partnership, joint
venture, trust, employee
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benefit plan or enterprise (hereinafter called a "Claim"), for and against
expenses, including attorneys' fees, and all other costs, charges and expenses
paid, incurred by or assessable against the Indemnitee in connection with
investigating, defending, being a witness in or participating in, or preparing
to defend, be a witness in or participate in, any Claim (collectively,
"Expenses") and judgments, fines, penalties, taxes (including excise taxes), and
amounts paid or to be paid in settlement (including all interest, assessments
and other charges paid or payable in respect of the foregoing) incurred by the
Indemnitee in connection with any Claim (collectively, "Damages").
b) If requested by the Indemnitee, the Company shall, upon
presentation of bills, statements of account or invoices for Expenses relating
to a Claim, advance to or pay on behalf of the Indemnitee, within 30 days of
such request, any and all Expenses shown on such bills, statements or invoices
relating to such Claim (an "Expenses Advance"), upon (i) receipt of a written
affirmation of the Indemnitee's good faith belief that the Indemnitee conducted
himself in good faith and reasonably believed in the case of conduct in his
official capacity, that his conduct was in the Company's best interests, and in
all other cases, that his conduct was not opposed to its best interest; and in
the case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful; or that the proceeding involves conduct for which
liability has been eliminated under a provision of the Certificate of
Incorporation authorized by the Connecticut Business Corporation Act (the
"CBCA") (ii) receipt of a written undertaking by or on behalf of the Indemnitee
to repay such Expense Advance in the event of a final determination,
adjudication or judgment (as to which all rights of appeal have been exhausted
or have lapsed) that the Indemnitee is not entitled to indemnification pursuant
to this Agreement; and (iii) if required under applicable law, a determination
is made that the facts then known to those making the determination would not
preclude indemnification under the the CBCA.
c) In the event that the Indemnitee demands indemnification
hereunder as a result of any Claim, the Indemnitee shall provide the Company
with notice of such Claim and shall make available to the Company all
information in the Indemnitee's possession that reasonably relates to such
Claim. The Company shall have the right, but not the obligation, to control the
defense of the Indemnitee from such Claim at the Company's sole cost and expense
and by counsel mutually acceptable to the Company and the Indemnitee. In the
event that the Company shall elect to exercise such right to control such
defense, the
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Indemnitee shall have the right to participate in such defense at the
Indemnitee's sole expense and through counsel of its choice. No Claim shall be
settled or compromised without the consent of the Company, which shall not be
unreasonably withheld, unless the Company shall have failed, after the lapse of
a reasonable time, but in no event more than 30 days after notice to the Company
of such proposed settlement or compromise, to notify the Indemnitee of the
Company's reasonable objection thereto. The Indemnitee's failure to give timely
notice or to provide copies of documents or to furnish information in connection
with any Claim shall not constitute a defense to any claim for indemnification
by the Indemnitee hereunder except, and only to the extent, that the Company is
materially prejudiced thereby.
d) If there has not been a Change in Control (as defined in
Section 2(b) hereof), the determination that indemnification of the Indemnitee
is permissible in the circumstances shall be made by the Company's Board of
Directors, a committee of the Board of Directors, special legal counsel or the
Company's shareholders (the "Reviewing Party") in accordance with the CBCA, with
the method of determination to be chosen by the Board of Directors. If there has
been a Change in Control, the Reviewing Party shall be the special legal counsel
selected by the Company in accordance with the CBCA and approved by the
Indemnitee (which approval shall not be unreasonably withheld) unless (i) the
Change in Control has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in Control and
(ii) the individuals who were directors prior to the Change in Control
constitute at least two-thirds of the members of the Board of Directors of the
Company as of the date of the determination. If there has been no determination
by the Reviewing Party or if the Reviewing Party determines that the Indemnitee
would not be permitted to be indemnified in whole or in part under applicable
law, the Indemnitee shall have the right to commence litigation in any court in
the State of Connecticut having subject matter jurisdiction thereof and in which
venue is proper seeking an initial determination by the court or challenging any
such determination by the Reviewing Party or any aspect thereof, or the legal or
factual bases therefor, and the Company hereby consents to service of process
and to appear in any such proceeding. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Company and the Indemnitee.
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2. Change in Control.
a) If there has been a Change in Control, except as otherwise
provided in Section 1(d) of this Agreement, special legal counsel shall be
selected by the Company in accordance with the CBCA and approved by the
Indemnitee (which approval shall not be unreasonable withheld) and such special
legal counsel shall determine whether the officer or director is entitled to
indemnity payments and Expense Advances under this Agreement or any other
agreement or Certificate of Incorporation or Bylaws of the Company now or
hereafter in effect relating to Claims for Indemnifiable Events. Such special
legal counsel, among other things, shall render its written opinion to the
Company and the Indemnitee as to whether and to what extent the Indemnitee will
be permitted to be indemnified. The Company agrees to pay the reasonable fees of
the special legal counsel and to indemnify fully such special legal counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or the engagement of
special legal counsel pursuant hereto.
b) For purposes of this Agreement, a "Change in Control" shall
mean any of the following events:
(1) 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 "Exchange Act") except
that a Person shall not include any employee benefit plan maintained by the
Corporation, immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
twenty-five percent (25%) or more of the combined voting power of the Company's
then outstanding Voting Securities;
(2) The individuals who, as of the date of this
Agreement are members of the Board of Directors (the "Incumbent Board"), cease
for any reason to constitute at least two-thirds of the members of the Board;
provided, however, that if the election, or nomination for election by the
Company's common shareholders, 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
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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
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Company's Board of Directors (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) Approval by shareholders of the Company of:
(i) A merger, consolidation or reorganization
involving the Company, unless such merger, consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization of the Company where: (a) the shareholders of
the Company, immediately before such merger, consolidation or reorganization,
own directly or indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting power of the
outstanding voting securities of the corporation resulting from such merger or
consolidation or reorganization (the "Surviving Corporation") in substantially
the same proportion as their ownership of the Voting Securities immediately
before such merger, consolidation or reorganization; (b) the individuals who
were members of the Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or reorganization constitute
at least two-thirds of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning directly or indirectly a
majority of the Voting Securities of the Surviving Corporation; and (c) no
Person other than (i) the Company, (ii) any subsidiary, (iii) any employee
benefit plan (or any trust forming a part thereof) maintained by the Company,
the Surviving Corporation, or any Subsidiary, or (iv) any Person who,
immediately prior to such merger, consolidation or reorganization had Beneficial
Ownership of twenty-five percent (25%) or more of the then outstanding Voting
Securities) has Beneficial Ownership of twenty-five percent (25%) or more of the
combined voting power of the Surviving Corporation's then outstanding voting
securities;
(ii) A complete liquidation or dissolution of
the Company; or
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(iii) An agreement for the sale or other
disposition of all or substantially all of the assets of the Company to any
Person (other than a transfer to a Subsidiary).
3. Establishment of Trust. Immediately prior to or upon a Change in
Control (as defined above), the Company shall, upon written request by the
Indemnitee promptly create a trust (the "Trust") for the benefit of the
Indemnitee and from time to time, upon written request of the Indemnitee to the
Company, shall fund the Trust in an amount, as set forth in such request,
sufficient to satisfy any and all Expenses reasonably anticipated at the time of
each such request to be incurred in connection with investigating, preparing for
and defending any Claim, and any and all judgments, fines, penalties and
settlement amounts of any and all Claims from time to time actually paid or
claimed, reasonably anticipated or proposed to be paid. The terms of the Trust
shall provide that (i) the Trust shall not be revoked or the principal thereof
invaded without the written consent of the Indemnitee; (ii) the trustee of the
Trust (the "Trustee") shall advance in accordance with Section 1(b) hereof,
within 30 days of a request by the Indemnitee, any and all Expenses to the
Indemnitee, not advanced directly by the Company to the Indemnitee (and the
Indemnitee hereby agrees to reimburse the Trust under the circumstances under
which the Indemnitee would be required to reimburse the Company under Section
1(b)); (iii) the Trust shall continue to be funded by the Company in accordance
with the funding obligation set forth above; (iv) the Trustee shall promptly pay
to the Indemnitee all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise; (v) the Company shall
pay all fees and expenses of the Trustee; and (vi) all unexpended funds in the
Trust shall revert to the Company upon a final determination by arbitration or
court of competent jurisdiction, as the case may be, that the Indemnitee has
been fully indemnified under the terms of this Agreement. The Trustee shall be
chosen by the Indemnitee.
4. Indemnification for Additional Expenses. The Company shall
indemnify the Indemnitee against any and all Expenses and, if requested by the
Indemnitee, shall, upon presentation of bills, statements of account or invoices
for Expenses, within 30 days of such request advance such Expenses shown on such
bills, statements or invoices to the Indemnitee, which are incurred by the
Indemnitee in connection with any claim asserted by or action brought by the
Indemnitee for (i) indemnification or advance payment of Expenses in accordance
with Section 1(b) hereof by the Company under this Agreement, any other
agreement to
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which the Company and the Indemnitee are parties, any provision of the Company's
Certificate of Incorporation or Bylaws now or hereafter in effect relating to
Claims and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Company relating to Claims, upon receipt of
a written undertaking by or on behalf of the Indemnitee to repay such expenses
in the event of a final determination, adjudication or judgment (as to which all
rights of appeal have been exhausted or have lapsed) that the Indemnitee is not
entitled to indemnification.
5. Partial Indemnity; Successful Defense; Burden of Proof. If the
Indemnitee is entitled under any provisions of this Agreement to indemnification
by the Company for some or a portion of the Expenses and Damages but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
the Indemnitee for the portion thereof to the maximum amount permitted under
applicable law. Moreover, notwithstanding any other provision of this Agreement,
to the extent that the Indemnitee has been successful on the merits or otherwise
in defense of any or all Claims or in defense of any issue or matter therein,
the Indemnitee shall be indemnified against any and all Expenses and Damages. In
connection with any determination by action of the Board of Directors of the
Company, arbitration agency or court of competent jurisdiction regarding whether
the Indemnitee is or is not entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish that the Indemnitee is not so
entitled.
6. No Presumption. For purposes of this Agreement, the termination
of any Claim by judgment, order or settlement (whether with or without court
approval), conviction or upon a plea of nolo contendere or its equivalent, shall
not create a presumption that the Indemnitee did not meet any particular
standard of conduct or had any particular belief or that a court has determined
that indemnification is not permitted by this Agreement or applicable law.
7. Contribution. In the event that the indemnification provided for
in this Agreement is unavailable to the Indemnitee for any reason whatsoever,
the Company, in lieu of indemnifying the Indemnitee, shall contribute to the
Expenses and Damages, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of the related Claim by the Board of Directors
of the Company or by the arbitrator, agency or court before which such Claim was
brought in order to reflect (i) the relative benefits received by the Company,
or any subsidiary or affiliate of the Company, and the Indemnitee as a result of
the events
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and/or transactions giving rise to such Claim and/or (ii) the relative fault of
the Company or any subsidiary or affiliate of the Company (and its directors,
officers, employees and agents other than the Indemnittee) and the Indemnitee in
connection with such events and/or transactions.
8. Interpretation of Indemnity. It is agreed between the parties
that, although the indemnities and other protections given by the Company to the
Indemnitee are considered necessary, fair and reasonable, if it should be found
that any of the provisions are void as going beyond that which is permitted by
law and if, by deleting part of the wording or by substituting a more restricted
indemnity or protection than that set out in Section 1, such provision would be
valid and enforceable, there shall be substituted such more restricted indemnity
or other provision or such deletions shall be made as shall render Section 1 or
such part thereof valid and enforceable; provided, however, that the terms of
such substituted indemnity or other provision or such deletions shall be
consistent with the provisions of Section 13.
9. Notices to the Company by the Indemnitee. The Indemnitee agrees
to notify the Company promptly in writing upon being served with or having
actual knowledge of any citation, summons, complaint, indictment or any other
similar document relating to any action which may result in a claim for
indemnification or contribution hereunder.
10. Non-exclusivity. The rights of the Indemnitee hereunder shall be
in addition to any other rights the Indemnitee may have under the Certificate of
Incorporation or Bylaws of the Company or of any subsidiary or affiliate of the
Company, or under applicable law or otherwise, and nothing herein shall be
deemed to diminish or otherwise restrict the Indemnitee's right to
indemnification under any such other provision. It is the intention of the
Company that the Indemnitee be indemnified hereunder to the maximum extent that
a corporation organized under the laws of Connecticut may indemnify its
officers, directors, employees and agents pursuant to the CBCA, or if applicable
law prohibits indemnification to such extent, to the maximum extent permitted
hereunder by causing any subsidiary or affiliate of the Company to satisfy such
obligation on behalf of the Company.
11. Amendments, Etc. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
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deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
12. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of and be enforceable against the parties hereto and, in the case
of the Company, its successors and 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) or, in the case
of the Indemnitee, his or her heirs and legal representative. This Agreement
shall continue in effect regardless of whether the Indemnitee continues to serve
as a director, officer, employee, agent or fiduciary of the Company, or any
subsidiary or affiliate of the Company, or any other enterprise at the Company's
request.
13. Severability. Subject to Section 5, if a court of competent
jurisdiction shall determine that any provision of this Agreement is void and of
no effect, the provisions of this Agreement shall be deemed amended to delete or
modify, as necessary, the offending provision, and this Agreement as so amended
or modified shall not be rendered unenforceable or impaired but shall remain in
force to the fullest extent possible in keeping with the intention of the
parties hereto.
14. Governing Law. The validity, interpretation and performance of
this Agreement shall be governed by the laws of the State of Connecticut
applicable to agreements made and to be performed entirely within such State.
15. Liability Insurance. To the extent the Company maintains at any
time an insurance policy or policies providing directors' and officers'
liability insurance, the Indemnitee shall be covered by such policy or policies,
in accordance with the terms of such policy or policies, to the maximum extent
of the coverage available for any other director or officer of the Company under
such insurance policy or policies. The purchase and maintenance of such
insurance shall not in any way limit or affect the rights and obligations of the
parties hereto, and the execution and delivery of this Agreement shall not in
any way be construed to limit or affect the rights and obligations of the
Company and/or of the other parties under any such insurance policy.
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 or seven business days
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after mailing by certified or registered mail, return receipt requested, with
postage prepaid:
(a) If to the Indemnitee:
At the address for the Indemnitee shown in the
Company's records
(b) If to the Company:
Xxxxx 0, X.X. Xxx 000
Xxxxxxxxxx Xxxx
Xxxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Executive Vice President, Chief Financial
and Administrative Officer
or to such other address as the Indemnitee or the Company shall designate in
writing pursuant to the above.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
ANALYSIS & TECHNOLOGY, INC.
By: _______________________________
Indemnitee:
____________________________________
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