EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this
“Agreement”) is made and entered into on the dates
signified on the signature page hereto and is to be effective on
, 200___, by and between Affiliated Computer Services, Inc., a
Delaware corporation (the “Company”), and
, a director of the Company (the “Indemnitee”).
W I T
N E S S E T H:
WHEREAS, the Indemnitee is presently
serving as a director of the Company, and the Company desires the
Indemnitee to continue in such capacity.
NOW, THEREFORE, in order to induce
the Indemnitee to continue to serve in his present capacity, the
Company and Indemnitee hereby agree as follows:
1. Continued Service .
The Indemnitee will continue to serve as a director of the Company
so long as he is duly elected and qualified in accordance with the
bylaws of the Company (the “Bylaws”) or until he
resigns in writing in accordance with applicable law.
2. Initial Indemnity .
(a) The Company shall indemnify the Indemnitee when he was or
is a party or is threatened to be made a party to any pending,
threatened or completed action, suit or proceeding, whether civil,
administrative, investigative or criminal (other than an action by
or in the name of the Company), by reason of the fact that he is or
was or had agreed to become a director or officer of the Company,
or is or was serving or had agreed to serve at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in
such capacity, against any and all costs, charges and expenses,
including without limitation, attorneys’ and others’
fees and expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection
therewith and any appeal therefrom if the 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 action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contender or its equivalent shall not, of
itself, create a presumption that the Indemnitee did not satisfy
the foregoing standard of conduct to the extent applicable
thereto.
(b) The Company shall indemnify
the Indemnitee when he was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding 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 or
had agreed to become a director or officer of the Company, or is or
was serving or had agreed to serve at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
costs, charges and expenses (including attorneys’ and
others’ fees and expenses) actually and reasonably incurred
by him in connection with the defense or settlement thereof or any
appeal therefrom 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
INDEMNIFICATION AGREEMENT — PAGE 1
and
except that no indemnification shall be made in respect of any
claim, issue or matter as to which the Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent
that the Court of Chancery or the court in which such action, suit
or 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 indemnity for such expenses that the Court of Chancery
or such other court shall deem proper.
(c) To the extent that the
Indemnitee has been successful on the merits or otherwise,
including without limitation the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to
in Sections 2(a) or 2(b) hereof or in defense of any claim, issue
or matter therein, he shall be indemnified against costs, charges
and expenses (including attorneys’ and others’ fees and
expenses) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under
Sections 2(a) or 2(b) (unless ordered by a court) shall be made by
the Company only as authorized in the specific case upon a
determination in accordance with Section 4 hereof or any
applicable provision of the certificate of incorporation of the
Company (the “Certificate”), Bylaws, other agreement,
resolution or otherwise. Such determination shall be made
(i) by the Board of Directors of the Company (the
“Board”), by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding,
or (ii) if such a quorum of disinterested directors is not
available or so directs, by independent legal counsel (designated
in the manner provided below in this Section 2(d)) in a
written opinion, or (iii) by the stockholders of the Company
(the “Stockholders”). Independent legal counsel shall
be designated by vote of a majority of the disinterested directors;
provided, however, that if the Board is unable or fails to so
designate, such designation shall be made by the Indemnitee subject
to the approval of the Company (which approval shall not be
unreasonably withheld). Independent legal counsel shall not be any
person or firm who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in
representing either the Company of the Indemnitee in an action to
determine the Indemnitee’s rights under this Agreement. The
Company agrees to pay the reasonable fees and expenses of such
independent legal counsel and to indemnify fully such counsel
against costs, charges and expenses (including attorneys’ and
others’ fees and expenses) actually and reasonably incurred
by such counsel in connection with this Agreement or the opinion of
such counsel pursuant hereto.
(e) All expenses (including
attorneys’ and others’ fees and expenses) incurred by
the Indemnitee in his capacity as a director or officer of the
Company in defending a civil or criminal action, suit or
proceedings shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding in the manner
prescribed by Section 4(b) hereof.
(f) The Company shall not adopt
any amendment to the Certificate or Bylaws the effect of which
would be to deny, diminish or encumber the Indemnitee’s
rights to indemnity pursuant to the Certificate, Bylaws, the
General Corporation Law of the State of Delaware (the
“DGCL”) or any other applicable law as applied to any
act or failure to act occurring in whole or in part prior to the
date (the “Effective Date”) upon which the amendment
was approved by the Board or the Stockholders, as the case may be.
In the event that the Company shall adopt any amendment to the
Certificate or Bylaws the effect of which is to so deny, diminish
or encumber the Indemnitee’s rights to indemnity, such
amendment shall apply only to acts or failures to act occurring
entirely after the Effective Date thereof unless the Indemnitee
shall have voted in favor of such adoption as a director
INDEMNIFICATION AGREEMENT — PAGE 2
or
holder of record of the Company’s voting stock, as the case
may be.
3. Additional
Indemnification . (a) Pursuant to Section 145(f) of the
DGCL, without limiting any right which the Indemnitee may have
pursuant to Section 2 hereof, the Certificate, the Bylaws, the
DGCL, any policy of insurance or otherwise, but subject to the
limitations on the maximum permissible indemnity that may exist
under applicable law at the time of any request for indemnity
hereunder determined as contemplated by Section 3(a) hereof, the
Company shall indemnify the Indemnitee against any amount that he
is or becomes legally obligated to pay relating to or arising out
of any claim made against him because of any act, failure to act or
neglect or breach of duty, including any actual or alleged error,
misstatement or misleading statement, which he commits, suffers,
permits or acquiesces in while acting in his capacity as a director
of the Company, or, at the request of the Company, as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. The payments that the
Company is obligated to make pursuant to this Section 3 shall
include without limitation damages, judgments, settlements and
charges, costs, expenses, expenses of investigation and expenses of
defense of legal actions, suits, proceedings or claims and appeals
therefrom, and expenses of appeal, attachment or similar bonds;
provided, however, that the Company shall not be obligated under
this Section 3(a) to make any payment in connection with any claim
against the Indemnitee to the extent (i) of any fine or
similar governmental imposition that the Company is prohibited by
applicable law from paying that results in a final, nonappealable
order, or (ii) based upon or attributable to the Indemnitee
gaining in fact a personal profit to which he was not legally
entitled, including without limitation profits made from the
purchase and sale by the Indemnitee of equity securities of the
Company that are recoverable by the Company pursuant to Section
16(b) of the Securities Exchange Act of 1934, as amended (the
“Exchan
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