Exhibit 10.1
INDEMNIFICATION
AGREEMENT
This Agreement is made as of
, 2005, between Science Applications International Corporation, a
Delaware corporation (the “ Company ”), and
(the “ Indemnitee ”).
RECITALS
A. The Company and Indemnitee
recognize that 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/or adequate indemnification against
inordinate risks of claims and actions against them arising out of
their service to, and activities on behalf of, those
corporations.
B. In recognition of
(1) Indemnitee’s need for substantial protection against
personal liability in order to enhance Indemnitee’s continued
and effective service to the Company and
(2) Indemnitee’s reliance on the provisions of the
Company’s Restated Certificate of Incorporation (“
Certificate of Incorporation ”) requiring
indemnification of the Indemnitee to the fullest extent permitted
by law, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by the Certificate of
Incorporation will be available to Indemnitee (regardless of, among
other things, any amendment to or revocation of the Certificate of
Incorporation, any change in the composition of the Company’s
Board of Directors or an acquisition transaction relating to the
Company), the Company wishes to provide in this Agreement for the
indemnification of, and the advancing of expenses to, Indemnitee to
the fullest extent permitted by law and as set forth in this
Agreement.
C. The Certificate of Incorporation
and the General Corporation Law of the State of Delaware (“
DGCL ”) expressly provide that the indemnification
provisions set forth therein are not exclusive and contemplate that
contracts may be entered into between the Company and members of
the Board of Directors, officers and other persons with respect to
indemnification.
D. It is reasonable, prudent and
necessary for the Company to obligate itself contractually to
indemnify, and to advance expenses on behalf of, 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.
E. This Agreement is a supplement
to, and in furtherance of, the Certificate of Incorporation and any
resolutions adopted pursuant thereto and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.
AGREEMENT
In consideration of the premises and
of Indemnitee’s agreeing to serve or continuing to serve the
Company directly or, at its request, with another enterprise, and
intending to be legally bound hereby, the parties hereto agree as
follows:
1. Basic Indemnification
Agreement .
(a) General Indemnity and
Exceptions .
(1) Indemnity . In the
event Indemnitee was, 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, a Claim (as defined in Section 9(b))
by reason of (or arising in part out of) an Indemnifiable Event (as
defined in Section 9(d)), the Company shall indemnify
Indemnitee to the fullest extent permitted by law, against:
(i) any and all Expenses (as defined in Section 9(c)),
judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or
payable in connection therewith) of such Claim actually and
reasonably incurred by or on behalf of Indemnitee in connection
with such Claim; and (ii) any federal, state, local or foreign
taxes imposed on Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement. Such indemnification
shall be made as soon as practicable but in any event no later than
30 days after written demand is presented to the
Company.
(2) Indemnity Exceptions Prior
to Change in Control . Notwithstanding anything in this
Agreement to the contrary, prior to a Change in Control (as defined
in Section 9(a)) and except as set forth in Sections 1(b), 3
and 7, Indemnitee shall not be entitled to indemnification pursuant
to this Agreement in connection with any Claim: (i) initiated
by Indemnitee against the Company or any director or officer of the
Company, unless the Company has joined in or consented to the
initiation of such Claim; (ii) made on account of
Indemnitee’s conduct which constitutes a breach of
Indemnitee’s duty of loyalty to the Company or its
stockholders or is an act or omission not in good faith or involves
intentional misconduct or a knowing violation of the law; or
(iii) arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”).
(b) Reviewing Party
Determination of Indemnification . The indemnification
obligations of the Company under Section 1(a) shall not be
applicable if the Reviewing Party (as defined in Section 9(f))
has determined (in a written opinion, in any case in which the
special independent counsel referred to in Section 2 is
involved) that Indemnitee would not be permitted to be indemnified
under applicable law; provided , however , that if
Indemnitee has commenced legal proceedings in the Court of Chancery
of the State of Delaware (the “ Delaware Court
”) to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the
Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding until a final
judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or lapsed). If
there has not been a Change in Control, the Reviewing Party shall
be selected by the Board of Directors, and if there has been such a
Change in Control, the Reviewing Party shall be the special
independent counsel referred to in Section 2. If there has
been no determination by the Reviewing Party or if the Reviewing
Party determines that Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable
law, Indemnitee shall have the right to commence litigation in the
Delaware Court seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any
aspect thereof and the Company hereby consents to service of
process
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and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise
shall be conclusive and binding on the Company and Indemnitee. The
Company shall indemnify Indemnitee for Expenses incurred by
Indemnitee in connection with the successful establishment or
enforcement, in whole or in part, by Indemnitee of
Indemnitee’s right to indemnification or advances.
(c) Advancement of
Expenses. If requested by Indemnitee in writing, the
Company shall advance (within ten business days of such written
request) any and all Expenses to Indemnitee (an “ Expense
Advance ”). The obligation of the Company to make an
Expense Advance shall be subject to the condition that the Company
receives an undertaking that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted
to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all such amounts theretofore paid;
provided , however , that if Indemnitee has commenced
legal proceedings in Delaware Court as provided in
Section 1(b), then Indemnitee shall not be required to
reimburse the Company for any Expense Advance until a final
judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or lapsed).
Indemnitee’s obligation to reimburse the Company for Expense
Advances shall be unsecured and no interest shall be charged
thereon.
2. Special Independent Counsel
after Certain Changes in Control.
(a) Role of Special
Counsel . If there is a Change in Control of the Company
(other than a Change in Control approved by two-thirds or more of
the Company’s Board of Directors who were directors
immediately prior to such Change in Control), then with respect to
all matters thereafter arising concerning the rights of Indemnitee
to indemnity payments and Expense Advances under this Agreement or
any other agreement, the Certificate of Incorporation or the
Company’s Bylaws (the “ Bylaws ”) now or
hereafter in effect relating to Claims for Indemnifiable Events,
the Company shall seek legal advice only from special independent
counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld or delayed) and who has
not otherwise performed services for the Company within the last
five years or for Indemnitee. Such special independent counsel,
among other things, shall, within 90 days of its retention, render
its written opinion to the Company and Indemnitee as to whether and
to what extent Indemnitee would be permitted to be indemnified
under applicable law.
(b) Selection of Special
Counsel. In the event that Indemnitee and the Company are
unable to agree on the selection of the special independent
counsel, such special independent counsel shall be selected by lot
from among at least five law firms with (i) offices in the
State of Delaware having more than fifty attorneys, (ii) a
rating of “av” or better in the then current Martindale
Hubbell Law Directory and (iii) attorneys specializing in
corporate law. Such selection shall be made in the presence of
Indemnitee (and his or her legal counsel or either of them, as
Indemnitee may elect).
(c) Payment for Special
Counsel . The Company agrees to pay the reasonable fees of
the special independent counsel referred to above and to fully
indemnify such counsel
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against any and all expenses
(including attorneys’ fees), claims, liabilities, and damages
arising out of or relating to this Agreement or to its engagement
pursuant hereto.
3. Indemnification for
Enforcement Expenses . The Company shall indemnify Indemnitee
against any and all expenses (including attorneys’ fees) and,
if requested by Indemnitee in writing, shall (within ten business
days of such written request) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any Claim
asserted or action brought by Indemnitee for
(a) indemnification or advance payment of Expenses by the
Company under this Agreement or any other agreement, Certificate of
Incorporation or the Bylaws now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (b) recovery under any
directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
The Indemnitee shall qualify for advances solely upon the execution
and delivery to the Company of an undertaking providing that the
Indemnitee undertakes to repay the advance to the extent that it is
ultimately determined that the Indemnitee is not entitled to be
indemnified by the Company.
4. Partial Indemnity . If,
under any provisions of this Agreement, Indemnitee is entitled to
indemnification by the Company of some, but not all, of the
Expenses, judgments, fines, penalties and amounts paid in
settlement of a Claim, the Company shall indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
5. No Presumption . For
purposes of this Agreement, the termination of any action, suit or
proceeding by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere,
or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any
particular belief.
6. Indemnification Procedures
.
(a) Notification of
Claim . Within 30 days after receipt by Indemnitee of
notice of the commencement of a Claim which may involve an
Indemnifiable Event, Indemnitee will, if a claim in respect thereof
is to be made against the Company under this Agreement, submit to
the Company a written notice identifying the Claim, but the
omission so to notify the Company will not relieve it from any
liability which it may have to Indemnitee under this Agreement
unless the Company is materially prejudiced by such lack of
notice.
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(b) Defense of Claim
.
(1) With respect to any such Claim
as to which Indemnitee notifies the Company of the commencement
thereof: (i) the Company will be entitled to participate
therein at its own expense; and (ii) except as otherwise
provided below, to the extent that it may wish, the Company
(jointly with any other indemnifying party similarly notified) will
be entitled to assume the defense thereof, with counsel selected by
the Board of Directors and reasonably satisfactory to
Indemnitee.
(2) After notice from the Company to
Indemnitee of its election to assume the defense of a Claim, the
Company wi
