EXHIBIT 10.33
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT (this "Agreement") is made and entered into
this ____ day of October, 2001, by and between The Advisory Board Company, a
Delaware corporation (the "Company"), and __________________________ (the
"Indemnitee").
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the inability to attract and retain qualified persons as
officers, employees and directors is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of protection through insurance and
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the Company;
WHEREAS, the Company has adopted provisions in its Certificate of
Incorporation and By-laws providing for indemnification of its officers,
employees and directors to the fullest extent permitted by applicable law, and
the Company wishes to clarify the rights and obligations of the Company and the
Indemnitee with respect to indemnification;
WHEREAS, Section 145 of the Delaware General Corporation Law, which
sets forth certain provisions relating to the mandatory and permissive
indemnification of officers, employees and directors of a Delaware corporation
by such corporation is specifically not exclusive of other rights to which those
indemnified thereunder may be entitled under any charter, by-law, agreement,
contract, vote of stockholders or disinterested directors, or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, and thus does not by itself limit the extent to which the Company may
indemnify persons serving as its officers, employees and directors;
WHEREAS, in order to induce and encourage highly experienced and
capable persons such as the Indemnitee to serve and continue to serve as
officers, employees and directors of the Company and in other capacities with
respect to the Company, and to otherwise promote the desirable end that such
persons will resist what they consider unjustified lawsuits and claims made
against them in connection with the good faith performance of their duties to
the Company, with the knowledge that certain expenses, judgments, penalties,
fines, liabilities and losses incurred by them in their defense of such
litigation are to be borne by the Company and they will receive the maximum
protection against such risks and liabilities as may be afforded by law, the
Board has determined, after due consideration and investigation of the terms and
provisions of this Agreement and the various other options available to the
Company and the Indemnitee in lieu hereof, that this Agreement is not only
reasonable and prudent but necessary to promote and ensure the best interests of
the Company and its stockholders; and
WHEREAS, the Company desires to have the Indemnitee continue to serve
as an officer, employee or director of the Company and in such other capacities
with respect to the Company as the Company may request, free from undue concern
for unpredictable, inappropriate or unreasonable legal risks and personal
liabilities by reason of his acting in good faith in the performance of his duty
to the Company; and the Indemnitee desires to continue so to serve the
Company, provided, and on the express condition, that he is furnished with the
indemnity set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and the Indemnitee do hereby covenant and agree as
follows:
SECTION 1. Service by the Indemnitee. During the term of the
Indemnitee's service to the Company as an officer, employee or director, he
shall perform the duties associated with such office, position or directorship
faithfully and to the best of his ability. Nothing in this Agreement shall
confer upon the Indemnitee the right to continue in any position with the
Company or affect any rights of the Company to terminate or remove the
Indemnitee from a position with the Company.
SECTION 2. Indemnification. The Company shall indemnify the Indemnitee
to the fullest extent permitted by applicable law in effect on the date hereof
or as such laws may from time to time be amended. Without diminishing the scope
of the indemnification provided by this Section 2, the rights of indemnification
of the Indemnitee provided hereunder shall include but shall not be limited to
those rights hereinafter set forth, except that no indemnification shall be paid
to the Indemnitee:
(a) on account of any Proceeding (defined below) in which judgment
is rendered against the Indemnitee for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law;
(b) on account of the Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately dishonest, or to
constitute willful misconduct;
(c) to the extent expressly prohibited by applicable law;
(d) for which payment is actually made to the Indemnitee under a
valid and collectible insurance policy or under a valid and enforceable
indemnity clause, by-law or agreement, except in respect of any indemnity
exceeding the payment under such insurance, clause, by-law or agreement; or
(e) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in this
respect, both the Company and the Indemnitee have been advised that the
Securities and Exchange Commission believes that (i) indemnification for
liabilities arising under the federal securities laws is against public policy
and is, therefore, unenforceable and (ii) claims for indemnification should be
submitted to the appropriate court for adjudication).
SECTION 3. Indemnification in Proceedings Other than those by or in the
Right of the Company. The Indemnitee shall be entitled to the indemnification
rights provided in this Section 3 if he is a party or is threatened to be made a
party to any Proceeding (other than an action by or in the right of the Company)
by reason of the fact that he is or was an officer, employee or director of the
Company, or is or was an officer, employee or director of the
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Company serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of anything done or not done by
him in any such capacity. Pursuant to this Section 3, the Indemnitee shall be
indemnified against all Expenses (defined below), judgments, penalties, Fines
(defined below), liabilities and losses actually and reasonably incurred by him
in connection with such Proceeding, if he acted in Good Faith (defined below)
and in a manner he 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 his conduct was unlawful.
SECTION 4. Indemnification in Proceedings by or in the Right of the
Company. The Indemnitee shall be entitled to the indemnification rights provided
in this Section 4 if he was or is a party or is threatened to be made a party to
any Proceeding brought by or in the right of the Company to procure a judgment
in its favor by reason of the fact that he is or was an officer, employee or
director of the Company, or is or was an officer, employee or director of the
Company serving at the request of the Company as a director or officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of anything done or not done by
him in any such capacity. Pursuant to this Section 4, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by him in
connection with the defense or settlement of such Proceeding if he acted in Good
Faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, that no such indemnification shall
be made in respect of any claim, issue, or matter as to which the Indemnitee has
been adjudged to be liable to the Company, unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to Indemnification for such
Expenses as the court shall deem proper.
SECTION 5. Indemnification in Proceedings Against the Company.
(a) Notwithstanding anything to the contrary in this Agreement,
the Company shall not be obligated to indemnify Indemnitee with respect to any
Expenses, judgments, penalties, Fines, liabilities and losses or to pay or to
advance Expenses with respect to any claim asserted by the Indemnitee initially
or by cross-claim, counter-claim, or third-party claim, in any Proceeding
against the Company, except for Proceedings to enforce rights to indemnification
(including rights to advancement of Expenses), unless, prior to the initiation
of such Proceeding, the initiation of such Proceeding is approved by the Board
by a majority vote of a quorum of Disinterested Directors (defined below), or,
if such quorum cannot be obtained, by a majority vote of a committee duly
designated by the Board (in which designation all directors may participate),
consisting solely of two or more Disinterested Directors.
(b) Proceedings to enforce rights to indemnification (including
rights to advancement of Expenses), shall be governed by the procedures set
forth in Section 10 of this Agreement.
SECTION 6. Partial Indemnification. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses,
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judgments, penalties, Fines, liabilities or losses actually and reasonably
incurred by him in connection with a Proceeding described in Section 3 or 4, but
not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion of such Expenses,
judgments, penalties, Fines, liabilities and losses actually and reasonably
incurred by him to which the Indemnitee is entitled.
SECTION 7. Determination of Entitlement to Indemnification.
(a) Any indemnification under Section 3 or 4 of this Agreement
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination (in accordance with this Section 7) that
indemnification of the Indemnitee is proper in the circumstances because he has
met the applicable standard of conduct set forth in Section 3 or 4, as the case
may be; provided, however, that to the extent that the Indemnitee has been
successful, on the merits or otherwise, in defense of any Proceeding referred to
in Section 3 or 4, or in defense of any claim, issue or matter therein,
including, without limitation, the dismissal of any action without prejudice, or
if it is ultimately determined that the Indemnitee is otherwise entitled to be
indemnified against Expenses, the Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by him in connection therewith,
without the necessity of authorization in the specific case.
(b) A determination of entitlement to indemnification shall be
made by (i) the Board by a majority vote of Disinterested Directors, whether or
not such majority constitutes a quorum; (ii) if the Board, by the majority vote
of Disinterested Directors, so directs or if there are no Disinterested
Directors, by Independent Counsel (defined below) in a written opinion to the
Board, a copy of which shall be delivered to the Indemnitee; or (ii) the
stockholders of the Company. The Independent Counsel shall be selected by the
Board and approved by the Indemnitee. Upon failure of the Board so to select
such Independent Counsel or upon failure of the Indemnitee so to approve, such
Independent Counsel shall be selected upon application of Indemnitee by the
Chancellor of the State of Delaware or such other person as the Chancellor shall
designate to make such selection.
(c) A determination of entitlement to indemnification shall be
made by written request of the Indemnitee. The request shall include
documentation or information which is necessary for such determination and which
is reasonably available to the Indemnitee, and shall include a statement that
the Indemnitee has met the applicable standard of conduct set forth in Section 3
or 4 of this Agreement, as the case may be. Promptly upon receipt of the
Indemnitee's request for indemnification, the Secretary of the Company shall
advise in writing the Board or such other person or persons empowered to make
the determination of entitlement to indemnification that the Indemnitee has made
a written request for indemnification. A determination of entitlement to
indemnification shall be made promptly thereafter and not later than 65 days
after receipt by the Company of a written request.
(d) If it is determined that the Indemnitee is entitled to all or
part of the indemnification with respect to which the Indemnitee has made a
request, the amount of the indemnification to which the Indemnitee is entitled
shall be paid in full within 90 days after receipt by the Company of the written
request for indemnification.
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(e) Any Expenses incurred by the Indemnitee in connection with his
request for indemnification hereunder shall be borne by the Company. The Company
hereby agrees to indemnify the Indemnitee for any such Expense and agrees to
hold the Indemnitee harmless therefrom irrespective of the outcome of the
determination of the Indemnitee's entitlement to indemnification. If the person
making such determination shall determine that the Indemnitee is entitled to
indemnification as to part (but not all) of the application for indemnification,
such person shall reasonably prorate such partial indemnification among such
claims, issues or matters.
SECTION 8. Presumptions and Effect of Certain Proceedings. Upon making
a written request for indemnification, the Indemnitee shall be presumed to be
entitled to indemnification hereunder and the Company shall have the burden of
proof in the making of any determination contrary to such presumption. The
person or persons empowered to make the determination of entitlement to
indemnification shall within 65 days after receipt by the Company of the
request, specifically determine that the Indemnitee is so entitled, unless it or
they make a determination that (i) sufficient evidence exists to rebut the
presumption that the Indemnitee has met the applicable standard of conduct set
forth in Section 3 or 4 hereof, as the case may be or (ii) that the request
relates to one of the matters with respect to which Section 2 of this Agreement
prohibits indemnification. The termination of any Proceeding described in
Section 3 or 4 by judgment, order, settlement conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not meet the applicable standard of conduct set forth in
Section 3 or 4 or otherwise adversely affect the rights of the Indemnitee to
indemnification except as may be provided herein.
SECTION 9. Advancement of Expenses.
(a) All Expenses incurred by the Indemnitee in defending or
investigating a Proceeding shall be paid by the Company, in advance of the final
disposition of the Proceeding, provided that the Company has approved in advance
the Indemnitee's selection of legal counsel, which approval shall not be
unreasonably withheld. Such Expenses shall be paid in full within 20 days after
the receipt by the Company of a statement or statements from the Indemnitee
requesting such advance or advances from time to time. Upon making a request for
advancement of expenses, the Indemnitee shall be presumed to be entitled to the
advancement hereunder and the Company shall have the burden of proof in the
making of any determination contrary to such presumption. The Indemnitee's
entitlement to such Expenses shall include those incurred in connection with any
Proceeding by the Indemnitee seeking an adjudication or award in arbitration
pursuant to this Agreement. Such statement or statements shall reasonably
evidence the Expenses incurred by him in connection therewith and shall include
or be accompanied by an undertaking by or on behalf of the Indemnitee to repay
such amount if it is ultimately determined that the Indemnitee is not entitled
to be indemnified against such Expenses by the Company as provided by this
Agreement or otherwise. Indemnitee's undertaking to repay any such amounts is
not required to be secured.
(b) In the case of a suit brought by the Company to recover an
advancement of expenses pursuant to the terms of an undertaking, the Company
shall have the burden of proof in showing that the Indemnitee is not entitled to
such advancement of expenses. The Company shall be entitled to recover such
Expenses upon a final adjudication that the Indemnitee (i) has
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not acted in Good Faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, or (ii) with respect to any
criminal action or Proceeding, had reasonable cause to believe his conduct was
unlawful.
SECTION 10. Remedies of the Indemnitee in Cases of Determination not to
Indemnify or to Advance Expenses.
(a) In the event that a determination is made under Section 7 of
this Agreement that the Indemnitee is not entitled to indemnification hereunder,
or if a request for indemnification is not paid in full within 90 days after
receipt by the Company of a written request for indemnification, or if Expenses
have not been paid in full within 20 days after receipt by the Company of a
statement requesting an advance of Expenses, the Indemnitee shall be entitled to
a final adjudication in any court of competent jurisdiction in the State of
Delaware of his entitlement to such indemnification or advance. Alternatively,
the Indemnitee at his option may seek an award in arbitration to be conducted by
a single arbitrator pursuant to the rules of the American Arbitration
Association, such award to be made within 60 days following the filing of the
demand for arbitration.
(b) Notice of any application for indemnification pursuant to this
Section 10 shall be given to the Company promptly upon the filing of such
application. The Company shall not oppose the Indemnitee's right to seek any
such adjudication or award in arbitration. Such judicial proceeding or
arbitration shall be made de novo and neither an actual determination by the
Board under Section 7 of this Agreement that the Indemnitee has not met the
applicable standard of conduct for indemnification set forth in Section 3 or 4
of this Agreement, as the case may be, nor the absence of any determination
thereunder, shall be a defense to such application or create a presumption that
the Indemnitee has not met any applicable standard of conduct.
(c) If a determination is made or deemed to have been made
pursuant to the terms of Section 7 that the Indemnitee is entitled to
indemnification, the Company shall be bound by such determination and is
precluded from asserting that such determination has not been made or that the
procedure by which such determination was made is not valid, binding and
enforceable. The Company further agrees to stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertions to the contrary.
(d) If the court or arbitrator shall determine that the Indemnitee
is entitled to any indemnification hereunder, the Company shall pay all Expenses
actually and reasonably incurred by the Indemnitee in connection with such
adjudication or award in arbitration (including, but not limited to, any
appellate Proceedings).
SECTION 11. Notification and Defense of Claim. Promptly after receipt
by the Indemnitee of notice of any Proceeding, the Indemnitee shall, if a claim
in respect thereof is to be made against the Company under this Agreement,
notify the Company in writing of the commencement thereof; but the omission so
to notify the Company will not relieve the Company from any liability that it
may have to the Indemnitee. Notwithstanding any other provision of this
Agreement, with respect to any such Proceeding as to which the Indemnitee
notifies the Company:
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(a) the Company shall be entitled to participate therein at its
own expense; and
(b) except as otherwise provided in this Section 11(b), to the
extent that it may wish, the Company, jointly with any other indemnifying party
similarly notified, shall be entitled to assume the defense thereof, with
counsel satisfactory to the Indemnitee. After notice from the Company to the
Indemnitee of its election so to assume the defense thereof, the Company shall
not be liable to the Indemnitee under this Agreement for any Expenses
subsequently incurred by the Indemnitee in connection with the defense thereof
other than costs of investigation or as otherwise provided below. The Indemnitee
shall have the right to employ his own counsel in such Proceeding, but the fees
and expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Company, (ii) the Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and the Indemnitee in the conduct
of the defense of such action or (iii) the Company shall not in fact have
employed counsel to assume the defense of the action, in each of which cases 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 by or on behalf of the Company or as to which the Indemnitee
shall have made the conclusion provided for in (ii) above.
(c) The Company shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any Proceeding
effected without its written consent. The Company shall not settle any
Proceeding in any manner that would impose any penalty or limitation on or
disclosure obligation with respect to the Indemnitee without the Indemnitee's
written consent. Neither the Company nor the Indemnitee will unreasonably
withhold its consent to any proposed settlement.
SECTION 12. Other Rights to Indemnification. The indemnification and
advancement of Expenses provided by or granted pursuant to this Agreement shall
not be deemed exclusive of any other rights to which the Indemnitee may now or
in the future be entitled under the Company's Certificate of Incorporation or
any By-laws, agreement, contract, vote of stockholders or Disinterested
Directors, or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
SECTION 13. Expenses to Enforce Agreement. In the event that the
Indemnitee is subject to or intervenes in any Proceeding in which the validity
or enforceability of this Agreement is at issue or seeks an adjudication or
award in arbitration to enforce his rights under, or to recover damages for
breach of, this Agreement, the Indemnitee, if he prevails in whole or in part in
such action, shall be entitled to recover from the Company and shall be
indemnified by the Company against any actual Expenses incurred by him.
SECTION 14. Duration of Agreement. This Agreement shall terminate upon
the later of: (a) ten years after the Indemnitee has ceased to occupy any of the
positions or have any relationships described in Section 1, and (b) the final
termination of all pending or threatened Proceedings to which the Indemnitee may
be subject by reason of the fact that he is or was an officer, employee or
director of the Company or is or was an officer, employee or director of the
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Company serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of anything done or not done by
him in any such capacity. The indemnification provided under this Agreement
shall continue as to the Indemnitee even though he may have ceased to be an
officer, employee or director of the Company. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of the Indemnitee and his heirs, executors and administrators.
SECTION 15. Merger, Consolidation or Sale of Assets. In the event that
the Company shall be a constituent corporation in a consolidation or merger,
whether the Company is the resulting or surviving corporation or is absorbed,
the Indemnitee shall stand in the same position under this Agreement with
respect to the resulting or surviving corporation as he would have with respect
to the Company if its separate existence had continued. For purposes of this
Agreement, references to "the Company" shall include, in addition to the
resulting or surviving 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 officers, employees and directors.
SECTION 16. Severability. If any provision or provisions of this
Agreement shall be held invalid, illegal or unenforceable for any reason
whatsoever (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, all portions of any
sections of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby, and (b) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifest by the provision held invalid, illegal or
unenforceable.
SECTION 17. Identical Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced as evidence of the existence of
this Agreement.
SECTION 18. Headings; References; Pronouns. The headings of the
sections of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
thereof. References herein to section numbers are to sections of this Agreement.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as appropriate.
SECTION 19. Definitions. For purposes of this Agreement:
(a) "Disinterested Director" means a director of the Company who
is not or was not a party to the Proceeding in respect of which indemnification
is being sought by the Indemnitee.
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(b) "Expenses" includes, without limitation, expenses of
investigations, judicial or administrative proceedings or appeals, amounts paid
in settlement by or on behalf of Indemnitee, attorneys' fees, witness fees and
expenses, fees and expenses of accountants and other advisors, retainers and
disbursements and advances thereon, and any expenses of establishing a right to
indemnification under Section 7 but shall not include the amount of judgments,
Fines or penalties actually levied against Indemnitee.
(c) "Fines" includes any excise taxes or penalties assessed on
Indemnitee with respect to any employee benefit plan.
(d) "Good Faith" means the good faith of the Indemnitee for
purposes of any determination required under Section 7 of this Agreement as to
the Indemnitee's Good Faith. The Indemnitee shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, or, with respect to any criminal action or
Proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Company or
another enterprise, or on information supplied to him by the officers of the
Company or another enterprise in the course of their duties, or on the advice of
legal counsel for the Company or another enterprise or on information or records
given or reports made to the Company or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Company or another enterprise. If the Indemnitee acted in
good faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, he shall be deemed
to have acted in a manner "not opposed to the best interests of the Company" as
referred to in this Agreement. The term "another enterprise" as used in this
definition means any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which the Indemnitee is or was
serving at the request of the Corporation as a director, officer, employee or
agent. This definition shall not be deemed to be exclusive or to limit in any
way the circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in Section 3 or 4 of this Agreement.
(e) "Independent Counsel" means a law firm or a member of a law
firm that neither is presently nor in the past five years has been retained to
represent (i) the Company or the Indemnitee in any matter material to either
such party, or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or the Indemnitee in an action to determine the
Indemnitee's right to indemnification under this Agreement.
(f) "Proceeding" includes any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the Company), and
including, but not limited to, actions, suits or proceedings brought under
and/or predicated upon the Securities Act of 1933, as amended, and/or the
Securities Exchange Act of 1934, as amended, and/or their respective state
counterparts and/or any rule or regulation promulgated thereunder, in which
Indemnitee may be or may have been involved as a party or otherwise, by reason
of the fact that he is or was an officer, employee or director of the
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Company, or is or was an officer, employee or director of the Company serving at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, or by reason of anything done or not done by him in any such
capacity, whether or not such service or action or inaction occurred or is
alleged to have occurred prior to or after the date of this Agreement and
whether or not he holds such position or is serving in such capacity at the time
any liability or expense is incurred for which indemnification or reimbursement
can be provided under this Agreement.
SECTION 19. Modification and Waiver. Subject to Section 12 hereof, this
Agreement contains the entire agreement of the parties relating to the subject
matter hereof and shall supersede all other agreements and understandings, if
any, between the parties with respect to the matters contemplated herein. This
Agreement may be modified only by an instrument in writing signed by both
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.
SECTION 20. Notices. All notices, requests, demands or other
communications hereunder shall be in writing and shall be deemed to have been
duly given and received (a) if delivered by hand, on the date so delivered, or
(b) if sent by overnight courier, on the next business day after being so sent,
or (c) if sent by facsimile, on the day so sent:
(i) If to the Indemnitee, to:
(ii) If to the Company, to: The Advisory Board Company
The Watergate
000 Xxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or to such other address as may be furnished to the Indemnitee by the Company or
to the Company by the Indemnitee, as the case may be.
SECTION 21. Governing Law. The parties hereto agree that this Agreement
shall be governed by, construed and enforced in accordance with, the laws of the
State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
THE ADVISORY BOARD COMPANY
By:
-------------------------------
Name:
Title:
INDEMNITEE
-----------------------------------
Name:
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