Exhibit 10.1
FORM OF
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated
as of
,
2005 between
Watson Wyatt & Company
Holdings
(the “Company”), and
(“Indemnitee”)
WHEREAS, the Board of Directors has
determined that the inability to attract and retain qualified
persons as directors and officers is detrimental to the best
interests of the Company’s stockholders and that the Company
should act to assure such qualified persons that there will be
adequate certainty of protection through insurance and
indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the
Company; and
WHEREAS, the Company has adopted
provisions in its By-laws providing for indemnification of its
officers and directors to the fullest extent permitted by
applicable law, and the Company wishes to clarify and enhance the
rights and obligations of the Company and Indemnitee with respect
to indemnification; and
WHEREAS, in order to induce and
encourage highly experienced and capable persons such as Indemnitee
to serve and continue to serve as directors and officers of the
Company and in any other capacity 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 costs,
judgments, penalties, fines, liabilities and expenses 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 of
Directors of the Company has determined that the following
Agreement is reasonable and prudent to promote and ensure the best
interests of the Company and its stockholders; and
WHEREAS, the Company desires to have
Indemnitee continue to serve as a director or officer of the
Company and in such other capacity with respect to the Company as
the Company may request, as the case may be, free from undue
concern for unpredictable, inappropriate or unreasonable legal
risks and personal liabilities by reason of Indemnitee acting in
good faith in the performance of Indemnitee’s duty to the
Company; and Indemnitee desires to continue so to serve the
Company, provided, and on the express condition, that he or she is
furnished with the indemnity set forth hereinafter;
Now, therefore, in consideration of
Indemnitee’s continued service as a director or officer of
the Company, the parties hereto agree as follows:
1.
Service by Indemnitee . Indemnitee will serve and/or
continue to serve as a director or officer of the Company
faithfully and to the best of Indemnitee’s ability so long as
Indemnitee is duly elected or appointed and until such time as
Indemnitee is removed as permitted by law or tenders a resignation
in writing.
2.
Indemnification . The Company shall indemnify
Indemnitee to the fullest extent permitted by the Delaware General
Corporation law in effect on the date hereof or as such law may
from time to time be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than said law
permitted the Company to
provide prior to such amendment). Without
diminishing the scope of the indemnification provided by this
Section, the rights of indemnification of Indemnitee provided
hereunder shall include but shall not be limited to those rights
hereinafter set forth, except that no indemnification shall be paid
to Indemnitee:
(a)
to the extent expressly prohibited by Delaware law or the By-laws
of the Company;
(b)
for which payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable
indemnity clause, by-law or agreement of the Company or any other
company or organization on whose board Indemnitee serves at the
request of the Company, except in respect of any indemnity
exceeding the payment under such insurance, clause, by-law or
agreement;
(c)
in connection with an action, suit or proceeding, or part thereof
(including claims and counterclaims) initiated by Indemnitee,
except a judicial proceeding or arbitration pursuant to
Section 10 to enforce rights under this Agreement, unless the
action, suit or proceeding (or part thereof) was authorized by the
Board of Directors of the Company;
(d)
with respect to any action, suit or proceeding brought by or on
behalf of the Company against Indemnitee that is authorized by the
Board of Directors of the Company, except as provided in Sections
4, 5 and 6 below.
3.
Action or Proceedings Other than an Action by or in the Right of
the Company . Except as limited by Section 2 above,
Indemnitee shall be entitled to the indemnification rights provided
in this Section if Indemnitee is a party or is threatened to
be made a party to any Proceeding (other than an action by or in
the name of the Company) by reason of the fact that Indemnitee is
or was a director, officer, employee or agent of the Company, or is
or was serving at the request of the Company as a director,
officer, employee or agent or fiduciary of any other entity
(including, but not limited to, another corporation, partnership,
joint venture or trust); or by reason of anything done or not done
by Indemnitee in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all costs, judgments,
penalties, fines, liabilities, amounts paid in settlement by or on
behalf of Indemnitee, and Expenses (defined below) actually and
reasonably incurred by Indemnitee in connection with such
Proceeding, if Indemnitee acted in good faith 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 Proceeding, had no
reasonable cause to believe his or her conduct was
unlawful.
4.
Indemnity in Proceedings by or in the Name of the Company
. Except as limited by Section 2 above, Indemnitee shall
be entitled to the indemnification rights provided in this
Section if Indemnitee was or is a party or is threatened to be
made a party to any Proceeding brought by or in the name 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 or
fiduciary of the Company, or by reason of anything done or not done
by Indemnitee in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all costs, judgments,
penalties, fines, liabilities, amounts paid in settlement by or on
behalf of Indemnitee, and Expenses actually and reasonably incurred
by Indemnitee in connection with such 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;
provided, however, that no such indemnification shall be made in
respect of any claim, issue, or matter as to which Delaware law
expressly prohibits such indemnification by reason of any
adjudication of liability of Indemnitee 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 action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is entitled to indemnification for such costs,
judgments, penalties, fines, liabilities and Expenses as such court
shall deem proper.
2
5.
Indemnification for Costs, Charges and Expenses of Successful
Party . Notwithstanding the limitations of
Section 2(d), 3 and 4 above, to the extent that Indemnitee has
been successful, on the merits or otherwise, in whole or in part,
in defense of any action, suit or proceeding (including an action,
suit or proceeding brought by or on behalf of the Company) 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 Indemnitee is otherwise entitled to
be indemnified against Expenses, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred in connection
therewith.
6.
Partial Indemnification . If Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Company for some or a portion of the costs, judgments, penalties,
fines, liabilities or Expenses actually and reasonably incurred in
connection with any action, suit or proceeding (including an
action, suit or proceeding brought by or on behalf of the Company),
but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such
costs, judgments, penalties, fines, liabilities and Expenses
actually and reasonably incurred to which Indemnitee is
entitled.
7.
Indemnification for Expenses of a Witness .
Notwithstanding any other provision of this Agreement, to the
maximum extent permitted by applicable law, Indemnitee shall be
entitled to indemnification against all Expenses actually and
reasonably incurred or suffered by Indemnitee or on
Indemnitee’s behalf if Indemnitee appears as a witness or
otherwise incurs legal expenses as a result of or related to
Indemnitee’s service as a director or officer of the Company,
in any threatened, pending or completed legal, administrative,
investigative or other proceeding or matter to which Indemnitee
neither is, nor is threatened to be made, a party.
8.
Determination of Entitlement to Indemnification . Upon
written request by Indemnitee for indemnification pursuant to
Sections 3, 4, 5, 6 or 7 the entitlement
of Indemnitee to indemnification, to the extent not provided
pursuant to the terms of this Agreement, shall be determined by the
following person or persons who shall be empowered to make such
determination: (a) the Board of Directors of the Company
by a majority vote of Disinterested Directors (defined below),
whether or not such majority constitutes a quorum; (b) a
committee of Disinterested Directors designated by a majority vote
of such directors, whether or not such majority constitutes a
quorum; (c) if there are no Disinterested Directors, or if the
Disinterested Directors so direct, by Independent Counsel (defined
below) in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee; or (d) the
stockholders of the Company. Such Independent Counsel shall
be selected by the Board of Directors and approved by
Indemnitee. Upon failure of the Board so to select such
Independent Counsel or upon failure of Indemnitee so to approve,
such Independent Counsel shall be selected upon application to a
court of competent jurisdiction. Such determination of
entitlement to indemnification shall be made not later than 30
calendar days after receipt by the Company of a written request for
indemnification. Such request shall include documentation or
information which is necessary for such determination and which is
reasonably available to Indemnitee. Any Expenses incurred by
Indemnitee in connection with a request for indemnification or
payment of Expenses hereunder, under any other agreement, any
provision of the Company’s By-laws or
