INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “ Agreement
”) is made and entered into as of this
day of
, by and between Alion Science and Technology Corporation, a
Delaware corporation (the “Company”), and
(“Indemnitee”).
WHEREAS ,
highly competent persons have become more reluctant to serve
publicly-held corporations as directors or in other capacities
unless they are provided with adequate protection through insurance
and adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities
on behalf of the corporation;
WHEREAS ,
the Board has determined that the increased difficulty in
attracting and retaining such persons 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 such protection in the future;
WHEREAS ,
it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the
fullest extent permitted by applicable law so that they will serve
or continue to serve the Company free from undue concern that they
will not be so indemnified; and
WHEREAS,
Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition
that he be so indemnified.
NOW,
THEREFORE , in consideration of the premises and the covenants
contained herein, the Company and Indemnitee, intending to be
legally bound, do hereby covenant and agree as follows:
Section 1 . Definitions . For purposes of this
Agreement:
(a) “
Board ” means the board of directors of the
Company.
(b) “
Change in Control ” means a change in control of the
Company occurring after the Effective Date of a nature that would
be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any
similar item on any similar schedule or form) promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), whether or not the Company is then subject to such
reporting requirement; provided, however , that, without
limitation, such a Change in Control shall be deemed to have
occurred if after the Effective Date: (i) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting
power of the Company’s then outstanding securities; or
(ii) the
Company is a
party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization as a consequence of which
members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the Board
thereafter.
(c) “
Corporate Status ” describes the status of a person
who is or was a director, officer, employee or agent of the Company
or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person is or
was serving at the request of the Company.
(d) “
Disinterested Director ” means a director of the
Company who is not and was not a party to a Proceeding in respect
of which indemnification is sought by Indemnitee.
(e) “
Effective Date ” means
,
.
(f) “
Expenses ” shall include all reasonable
attorneys’ fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees, and all other reasonable disbursements or expenses of
the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in, or otherwise participating in, a
Proceeding.
(g) “
Independent Counsel ” means a law firm, or a member of
a law firm, that is experienced in matters of corporate law and
neither presently is, nor in the past five (5) years has been,
retained to represent: (i) the Company or Indemnitee in any
matter material to either such party; or (ii) any other party
to a 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 Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
(h) “
Proceeding ” includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative, except one
(i) initiated by Indemnitee pursuant to Section 11 of
this Agreement to enforce his rights under this Agreement or
(ii) pending on or before the Effective Date.
Section 2 . Services by Indemnitee . Indemnitee
agrees to serve as a director, officer, employee and/or agent of
the Company, as applicable. Indemnitee may, at any time and for any
reason, resign from such position(s) (subject to any other
contractual obligation or any obligation imposed by operation of
law), in which event the Company shall have no obligation under
this Agreement to continue Indemnitee in such position. This
Agreement shall not be deemed an employment contract between the
Company (or any of its subsidiaries) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee’s employment with
the Company (or any of its subsidiaries), if any, is at will, and
the Indemnitee may be discharged at any time for any reason, with
or without cause, except as may be otherwise provided in any
written employment contract between
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Indemnitee and
the Company (or any of its subsidiaries), other applicable formal
severance policies duly adopted by the Board, or, with respect to
service as a director of the Company, by the Company’s
Certificate of Incorporation, Bylaws, and the General Corporation
Law of the State of Delaware. The foregoing notwithstanding, this
Agreement shall continue in force after Indemnitee has ceased to
serve as an officer, director, agent and/or employee of the
Company.
Section 3 . Indemnification — General .
The Company shall indemnify, and advance Expenses to, Indemnitee
(a) as provided in this Agreement and (b) (subject to the
provisions of this Agreement) to the fullest extent permitted by
applicable law in effect on the date hereof and as amended from
time to time. The rights of Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set
forth in the other sections of this Agreement.
Section 4 . Proceedings Other Than Proceedings by or
in the Right of the Company . Indemnitee shall be entitled to
the rights of indemnification provided in this Section 4 if,
by reason of his Corporate Status, he is, or is threatened to be
made, a party to or a participant in any threatened, pending or
completed Proceeding, other than a Proceeding by or in the right of
the Company. Pursuant to this Section 4, Indemnitee shall be
indemnified against all Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him
or on his behalf in connection with such Proceeding or any claim,
issue or matter therein, 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 and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 5 . Proceedings by or in the Right of the
Company . Indemnitee shall be entitled to the rights of
indemnification provided in this Section 5 if, by reason of
his Corporate Status, he is, or is threatened to be made, a party
to or a participant in any threatened, pending or completed
Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 5, Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with 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, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company
unless and to the extent that the court in which such Proceeding
shall have been brought or is pending shall determine that such
indemnification may be made.
Section 6 . Indemnification for Expenses of a Party
Who is Wholly or Partly Successful . In addition to
indemnification authorized under any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a party to (or a participant in) and is
successful, on the merits or otherwise, in defense of any
Proceeding, he shall be indemnified against all Expenses actually
and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in defense of
such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall
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indemnify
Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved
claim, issue or matter. The parties hereto shall make a reasonable
allocation of those Expenses that relate to each such claim, issue
or matter. For purposes of this section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
Section 7 . Indemnification for Expenses of a
Witness . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in
connection therewith.
Section 8 . Advancement of Expenses . The
Company shall advance all reasonable Expenses incurred by or on
behalf of Indemnitee in connection with any Proceeding within ten
(10) days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall evidence the
Expenses reasonably incurred by Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified
against such Expenses.
Section 9 . Procedure for Determination of
Entitlement to Indemnification .
(a) To obtain
indemnification under this Agreement, Indemnitee shall submit to
the Company a written request, including therein or therewith such
documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the
first sentence of Section 9(a) hereof, a determination, if required
by applicable law, with respect to Indemnitee’s entitlement
thereto shall be made in the specific case: (i) if a Change in
Control shall have occurred, by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to
Indemnitee; or (ii) if a Change of Control shall not have
occurred, (A) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, or
(B) if there are no such Disinterested Directors or, if such
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered to
Indemnitee; and, if it is so determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall cooperate
with the pers
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