INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated September 1, 1999 (the
"Agreement"), by and among GRC International, Inc., a Delaware corporation
("Parent"), MAC Merger Corporation, a Virginia corporation ("Merger Sub"),
Management Consulting & Research, Inc., a Virginia corporation (the "Company"),
and Gerald R. McNichols, the major stockholder of the Company (the "Major
Stockholder").
WHEREAS, the Parent, Merger Sub, the Company and the Major Stockholder
have entered into an Agreement and Plan of Merger, dated as of August 5, 1999
(the "Merger Agreement"), providing for the merger of the Company with and into
Merger Sub (the "Merger") (Merger Sub, as the surviving corporation in the
Merger, sometimes referred to herein as the "Surviving Corporation");
WHEREAS, the parties hereto desire to provide for indemnification for
breaches of representations, warranties and covenants and for certain other
matters under the Merger Agreement;
WHEREAS, one of the conditions to the consummation of the Merger is the
execution and delivery of this Agreement; and
WHEREAS, the Major Stockholder will receive substantial direct and
indirect benefits as a result of the Merger, and in consideration of such
benefits, is executing and delivering this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. Definitions.
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Capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Merger Agreement.
2. Indemnification.
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(a) Indemnification by the Major Stockholder. Subject to Section 2(e),
the Major Stockholder shall indemnify the Parent Companies, their respective
directors, officers, employees and agents, and their respective successors and
assigns (collectively, the "Parent Company Indemnified Parties") from and
against and in respect of any and all losses, costs, fines, liabilities, claims,
penalties, interest, damages and expenses (including reasonable legal fees and
expenses incurred in the investigation, defense and settlement of claims and
actions) (collectively "Losses") that may be suffered or incurred by any of them
resulting from, in connection with or arising out of:
(i) any breach or inaccuracy of any representation or warranty made
by the Major Stockholder in the Merger Agreement;
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(ii) any breach of any covenant or agreement made by the Major
Stockholder in the Merger Agreement;
(iii) any breach or inaccuracy of any representation or warranty
made by the Company in the Merger Agreement or in any closing
certificate executed and delivered by, or on behalf of, the Company in
connection with the Merger Agreement;
(iv) any breach at or prior to the Effective Time of any covenant
or agreement made by the Company in the Merger Agreement;
(v) any Taxes imposed on or incurred by the Company or any of its
subsidiaries for any taxable period ending on or before the Effective
Time (or portion, determined as described in Section 2(c)(ix), of any
Taxes imposed on or incurred by the Company or any of its subsidiaries
for any taxable period beginning before and ending after the Effective
Time which is allocable to the portion of such taxable period occurring
on or before the Effective Time (the "Pre-Closing Period")), to the
extent such Taxes exceed the amount of estimated payments made prior to
the Effective Time;
(vi) the action pending in the Circuit Court for Fairfax County,
Virginia, styled HomeVision USA, L.L.C. v. Realty Media, L.C. et al.,
In Chancery No. 161784, the matters alleged therein or any other claim
or allegation relating thereto;
(vii) the sponsorship, formation, operation and qualification of
the ESOP or the Management Consulting & Research, Inc. Profit Sharing
Plan (the "Profit Sharing Plan"), any transaction or condition
occurring or existing on or prior to the Closing Date with respect to
the Plans, including any such Losses suffered or incurred in connection
with the operation, continuance and qualification of such Plans from
and after the Closing Date to the extent such Losses result from any
transaction or condition occurring or existing on or prior to the
Closing Date and any such Losses incurred as a result of actions taken
by Parent, the Major Stockholder, the Company or the Surviving
Corporation, or any representative thereof, in accordance with the
provisions of Section 6 of this Agreement. The indemnification provided
under this Section 2(a)(vii) shall include in the determination of
Losses arising from such matters the amount of any income Tax, together
with any interest and penalties thereon payable by any employees prior
to a distribution to such employees of Plan assets in accordance with
the terms of the Plans or prior to the completion of the merger of the
Plans with, or transfer of Plan assets to other qualified retirement
plans sponsored by the Parent Companies; or
(viii) any action, suit or proceeding relating to any of the
foregoing or to the enforcement of Section 2 of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary,
Major Stockholder will have no liability to Parent Companies with
respect to Losses arising solely as a result of the failure to obtain a
consent of a lessor under a real property lease listed under item 3 on
Schedule 3.18(a) of the Merger Agreement prior to the Effective Time.
(b) Parent Companies' Indemnification. Subject to Section 2(e), Parent
Companies shall indemnify and hold the Major Stockholder harmless from and
against and in respect of any
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and all Losses that may be suffered or incurred by any of them resulting from,
in connection with or arising out of:
(i) any breach or inaccuracy of any representation or warranty made
by the Parent Companies in the Merger Agreement or in any closing
certificate executed and delivered by, or on behalf of, the Parent
Companies in connection with the Merger Agreement;
(ii) any breach of any covenant or agreement made by the Parent
Companies in the Merger Agreement; or
(iii) any action, suit or proceeding relating to any of the
foregoing or to the enforcement of Section 2 of this Agreement.
(c) Indemnification Procedures. All claims for indemnification under
this Agreement shall be asserted and resolved as follows:
(i) A party claiming indemnification under this Agreement (an
"Indemnified Party") shall promptly (A) notify the party from whom
indemnification is sought (the "Indemnifying Party") of any third-party
claim or claims ("Third Party Claim") asserted against the Indemnified
Party which could give rise to a right of indemnification under this
Agreement and (B) transmit to the Indemnifying Party a written notice
("Claim Notice") describing in reasonable detail the nature of the
Third Party Claim, a copy of all papers served with respect to such
claim (if any), an estimate of the amount of damages attributable to
the Third Party Claim, if reasonably possible, and the basis of the
Indemnified Party's request for indemnification under this Agreement.
(ii) Within thirty (30) days after receipt of any Claim Notice (the
"Election Period"), the Indemnifying Party shall notify the Indemnified
Party (A) whether the Indemnifying Party disputes its potential
liability to the Indemnified Party under this Agreement with respect to
such Third Party Claim and (B) whether the Indemnifying Party desires,
at the sole cost and expense of the Indemnifying Party, to defend the
Indemnified Party against such Third Party Claim.
(iii) If the Indemnifying Party notifies (a "Defense Notice") the
Indemnified Party within the Election Period that the Indemnifying
Party does not dispute its potential liability to the Indemnified Party
under this Agreement and that the Indemnifying Party elects to assume
the defense of the Third Party Claim, then the Indemnifying Party shall
have the right to defend, at its sole cost and expense, such Third
Party Claim by all appropriate proceedings, which proceedings shall be
prosecuted diligently by the Indemnifying Party to a final conclusion
or settled at the discretion of the Indemnifying Party in accordance
with this Section 2(c). When the Indemnifying Party conducts the
defense, the Indemnified Party shall have the right to approve the
defense counsel representing the Indemnifying Party in such defense,
which approval shall not be unreasonably withheld or delayed, and in
the event the Indemnifying Party and the Indemnified Party cannot agree
upon such counsel within ten (10) days after the Defense Notice is
provided, then the Indemnifying Party shall propose an alternate
defense counsel, which shall be subject again to the Indemnified
Party's approval, which approval
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shall not be unreasonably withheld or delayed. The Indemnifying Party
shall have full control of such defense and proceedings including any
compromise or settlement thereof; provided, that without the prior
written consent of the Indemnified Party (which shall not be
unreasonably withheld or delayed), the Indemnifying Party shall not
enter into any settlement of any Third Party Claim if pursuant to or as
a result of such settlement, such settlement would result in any
liability or other obligation on the part of the Indemnified Party for
which the Indemnified Party is not entitled to indemnification
hereunder or which is non-monetary in nature. The Indemnified Party is
hereby authorized, at the sole cost and expense of the Indemnifying
Party (but only if the Indemnified Party is actually entitled to
indemnification hereunder or if the Indemnifying Party assumes the
defense with respect to the Third Party Claim), to file, during the
Election Period, any motion, answer or other pleadings which the
Indemnified Party shall deem necessary or appropriate to protect its
interests or those of the Indemnifying Party. If requested by the
Indemnifying Party, the Indemnified Party shall, at the sole cost and
expense of the Indemnifying Party, cooperate with the Indemnifying
Party and its counsel in contesting any Third Party Claim which the
Indemnifying Party elects to contest. The Indemnified Party may
participate in, but not control, any defense or settlement of any Third
Party Claim controlled by the Indemnifying Party pursuant to this
Section 2(c) and, except as permitted above, shall bear its own costs
and expenses with respect to such participation.
(iv) If the Indemnifying Party fails to notify the Indemnified
Party within the Election Period that the Indemnifying Party elects to
defend the Indemnified Party pursuant to this Section 2(c), or if the
Indemnifying Party elects to defend the Indemnified Party pursuant to
this Section 2(c) but fails to diligently and promptly prosecute or
settle the Third Party Claim, then the Indemnified Party shall have the
right to defend, at the sole cost and expense of the Indemnifying
Party, the Third Party Claim by all appropriate proceedings. The
Indemnified Party shall have full control of such defense and
proceedings; provided, however, that the Indemnified Party may not
enter into, without the Indemnifying Party's consent, which shall not
be unreasonably withheld or delayed, any compromise or settlement of
such Third Party Claim. The Indemnifying Party may participate in, but
not control, any defense or settlement controlled by the Indemnified
Party pursuant to this Section 2(c), and the Indemnifying Party shall
bear its own costs and expenses with respect to such participation.
(v) Any judgment entered or settlement agreed upon in the manner
provided herein shall be binding upon the Indemnifying Party and shall
be conclusively deemed to be an obligation with respect to which the
Indemnified Party is entitled to prompt indemnification hereunder,
subject to the Indemnifying Party's right to appeal an appealable
judgment or order.
(vi) For purposes of this Section 2, any assertion of fact and/or
law by a third party that, if true, would constitute a breach of a
representation or warranty made by a party to this Agreement or make
operational an indemnification obligation hereunder, shall, on the date
that such assertion is made, immediately invoke that party's obligation
to protect, defend, hold harmless and indemnify the other party to this
Agreement pursuant to this Section 2.
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(vii) The failure to provide notice as provided in this Section 2
shall not excuse any party from its continuing obligations hereunder;
however, any claim shall be reduced by the Losses resulting from such
party's delay or failure to provide notice as provided in this Section
2.
(viii) Notwithstanding anything to the contrary in this Section 2,
should any Third Party Claim hereunder involve a situation where the
Indemnified Party reasonably anticipates that part of the claim will be
borne by it and part of the claim will be borne by the Indemnifying
Party due to the existence of the limitations in Section 2(e), the
parties shall jointly consult and proceed as to any such Third Party
Claim.
(ix) Whenever it is necessary for purposes of Section 2(a)(v) to
determine the portion of any Taxes imposed on or incurred by the
Company or its subsidiaries for a taxable period beginning before and
ending after the Effective Time which is allocable to the Pre-Closing
Period, the determination shall be made, in the case of property, ad
valorem or franchise Taxes, on a per diem basis and, in the case of
other Taxes, by assuming that the Pre-Closing Period constitutes a
separate taxable period of the Company and the subsidiaries (and any
tax partnerships in which the Company or its subsidiaries has an
interest) and by taking into account the actual taxable events
occurring during such period (except that exemptions, allowances and
deductions for a taxable period beginning before and ending after the
Effective Time that are calculated on an annual or periodic basis shall
be apportioned to the Pre-Closing Period ratably on a per diem basis).
(d) Nature of Other Liabilities. In the event any Indemnified Party
should have a claim against any Indemnifying Party hereunder which does not
involve a Third Party Claim, the Indemnified Party shall promptly transmit a
written notice (the "Indemnity Notice") to the Indemnifying Party, describing in
reasonable detail the nature of the claim and the basis of the Indemnified
Party's request for indemnification under this Agreement. If the Indemnifying
Party does not notify the Indemnified Party within thirty (30) days from its
receipt of the Indemnity Notice that the Indemnified Party disputes such claim,
the claim specified by the Indemnified Party in the Indemnity Notice shall be
deemed a liability of the Indemnifying Party hereunder.
(e) Certain Limitations on Remedies. Notwithstanding any provision
herein or in the Merger Agreement to the contrary:
(i) The Parent Company Indemnified Parties shall not be entitled to
assert (subject to the proviso below) any claim or claims for
indemnification or reimbursement pursuant to Section 2(a) hereof until,
and only to the extent that, such claim or claims in the aggregate
exceed $100,000 (the "Basket"); provided, however, that any claim or
claims pursuant to Sections 2(a)(i) [representations and warranties of
the Major Stockholder], 2(a)(ii) [covenants and agreements of Major
Stockholder], 2(a)(iii) [representations and warranties of the Company]
(to the extent such claim relates to a breach of or representation or
warranty set forth in Section 3.15 [undisclosed brokers] of the Merger
Agreement), pursuant to Sections 2(a)(iv) [covenants and agreements of
the Company], 2(a)(v) [pre-closing taxes] 2(a)(vi) [pending litigation]
or 2(a)(vii) [ESOP and Profit Sharing Plan] or (to the extent it
relates to such claims) pursuant to Section 2(a)(viii) [enforcement
costs] hereof shall not be subject to such Basket.
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(ii) The Major Stockholder shall not be entitled to assert (subject
to the proviso below) any claim or claims for indemnification or
reimbursement pursuant to Section 2(b) hereof until, and only to the
extent that, such claim or claims in the aggregate exceed the Basket;
provided, however, that any claim or claims pursuant to Section 2(b)(i)
[representations and warranties of Parent Companies] (to the extent
such claim relates to a breach of a representation or warranty set
forth in Sections 5.1 [corporate organization], 5.3 [corporate
authority] or 5.8 [Parent shares] of the Merger Agreement), pursuant to
Section 2(b)(ii) [covenants of Parent Companies] or (to the extent it
relates to such claims) pursuant to Section 2(b)(iii) [enforcement
costs] hereof shall not be subject to such Basket.
(iii) No party may seek indemnification under this Section 2 after
the end of the month following the month in which Parent files with the
SEC its annual report on Form 10-K, for the fiscal year ending June 30,
2000 (the "Indemnity Expiration Date"), except for the following, with
respect to which a claim may be made until the third (3rd) anniversary
of the Closing Date (except as otherwise provided below):
(A) claims pursuant to Sections 2(a)(i) [representations and
warranties of Major Stockholder];
(B) claims pursuant to Section 2(a)(iii) [representations and
warranties of the Company] (to the extent such claim relates to a
breach of a representation or warranty set forth in Sections 3.3
[capitalization of the Company], 3.10(d), (e) or (l) [ERISA
matters], 3.13 [environmental matters], or 3.15 [undisclosed
brokers] of the Merger Agreement);
(C) claims pursuant to Section 2(a)(iii) [representations and
warranties of the Company] (to the extent such claim relates to a
breach of a representation or warranty set forth in Sections
3.10(d), (e) or (l) [ERISA matters], with respect to which a claim
may be made until ninety (90) days following the expiration of the
applicable statutory limitations period for bringing an action with
respect to such matters;
(D) claims pursuant to Section 2(a)(v) [pre-closing taxes],
with respect to which a claim may be made until ninety (90) days
following the expiration of the applicable statutory limitations
period for bringing an action with respect to such matters;
(E) claims pursuant to Section 2(a)(vii) [ESOP and Profit
Sharing Plan], with respect to which a claim may be made until
ninety (90) days following the expiration of the applicable
statutory limitations period for bringing an action with respect to
such matters;
(F) claims pursuant to Section 2(b)(i) (to the extent such
claim relates to a breach of a representation or warranty set forth
in Section 5.8 [Parent shares] of the Merger Agreement); and
(G) claims pursuant to Section 2(b)(ii).
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Notwithstanding the foregoing, the indemnification obligation of
the Major Stockholder with respect to claims pursuant to Section
2(a)(vi) [pending litigation] shall continue until the matters
described in such Section have been finally resolved.
(iv) The aggregate liability of the Major Stockholder for Losses
arising under Section 2(a) shall be limited to $2,710,000 (the "Maximum
Liability"), except for claims pursuant to Sections 2(a)(i)
[representations and warranties of the Major Stockholder], (a)(iii)
[representations and warranties of the Company] to the extent such
claim relates to a breach of a representation or warranty set forth in
3.3 [capitalization of the Company], or 3.4 [corporate authority of the
Company], of the Merger Agreement or claims pursuant to Section
2(a)(vi) [pending litigation]. Notwithstanding anything in this
Agreement or the Merger Agreement to the contrary, in no event shall
the Major Stockholder's aggregate liability exceed the amount of Merger
Consideration received by the Major Stockholder.
(v) The aggregate liability of the Parent Companies for all Losses
arising under Section 2(b) after the Closing Date shall be limited to
the amount of the Maximum Liability, except for claims pursuant to
Section 2(b)(i) to the extent such claim relates to a breach of a
representation or warranty set forth in Sections 5.1, 5.3 or 5.8 of the
Merger Agreement.
(f) Indemnification Obligations. The indemnification obligations set
forth in Section 2 are made notwithstanding any investigation made by or on
behalf of any of the parties hereto or the results of any such investigation and
notwithstanding the participation of any party in the Closing.
(g) Waiver of Contribution. With respect to claims made under this
Agreement, the Major Stockholder hereby waives and agrees not to assert against
the Surviving Corporation, its officers, directors, shareholders, employees or
agents, any claims for contribution or indemnification with respect to the
representations, warranties and agreements made by the Company with respect
thereto.
(h) Payments. Payments of all amounts owing by an Indemnifying Party
pursuant to Sections 2(c)(iii) and 2(c)(iv) shall be made within thirty (30)
days after the latest of (i) the settlement of the Third Party Claim, (ii) the
expiration of the period for appeal of a final adjudication of such Third Party
Claim or (iii) the expiration of the period for appeal of a final adjudication
of the Indemnifying Party's liability to the Indemnified Party under this
Agreement. Payments of all amounts owing by an Indemnifying Party pursuant to
Section 2(d) shall be made within thirty (30) days after the later of (i) the
expiration of the thirty-day Indemnity Notice period or (ii) the expiration of
the period for appeal of a final adjudication of the Parent Company's liability
to the Indemnified Party under this Agreement. Any amounts payable by the Major
Stockholder may be paid, at the Major Stockholder's election, by tendering to
the Parent certificates representing a number of shares of Parent Common Stock
equal in value to the amount payable by the Major Stockholder as determined by
the closing price of Parent Stock on the New York Stock Exchange on the date of
such tender or, if there is no such closing price on such date, the closing
price on the last trading date preceding such tender, such certificate to be
properly endorsed, with signatures guaranteed, and otherwise in proper form for
transfer, with
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any transfer or other taxes required by reason of the transfer, fully paid or
provided for to the satisfaction of Parent and its transfer agent.
3. Exclusive Remedy.
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The sole recourse and exclusive remedy of the Parent Companies and the
Major Stockholder against each other after the Closing arising out of the Merger
Agreement or any certificate delivered in connection with the Merger Agreement,
or otherwise arising from the Merger, shall be to assert a claim for
indemnification under the indemnification provisions of this Agreement. Without
limiting the foregoing, the Parent and the Major Stockholder, each hereby
expressly waives, releases, disavows and repudiates, to the fullest extent
permitted by law, any right or remedy of recision, or similar right or remedy
granted or to be granted under any state or federal law, rule, regulation or
interpretation thereof, whether now in force or hereafter enacted, applicable
with respect to any of the transactions contemplated by the Merger Agreement or
otherwise with respect to the Parent's acquisition of the Company and the Major
Stockholder's acquisition of the Parent Stock.
4. Settlement of Disputes.
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Any and all controversies, disputes, or claims arising out of or
relating to this Agreement, or any part hereof, including, without limitation,
the meaning, applicability, or scope of this Section 4 and the performance,
breach, interpretation, meaning, construction, or enforceability of this
Agreement, or any portion hereof, and all claims for rescission or fraud in the
inducement of this Agreement, shall, at the request of any party, be settled or
resolved by binding arbitration pursuant to the commercial rules and regulations
of the American Arbitration Association (the "AAA") for the resolution of
commercial disputes. Any party requesting arbitration under this Agreement shall
make a demand on the other parties by registered or certified mail with a copy
to the AAA. The parties consent and agree to have any such arbitration
proceedings heard in Vienna, Virginia. The arbitration shall take place
regardless of whether any party to the dispute or controversy fails or refuses
to participate. The arbitrators shall apply Virginia substantive law and federal
substantive law where state law is preempted. The arbitrators shall have the
power to grant all legal and equitable remedies and award compensatory damages
provided by Virginia law. The arbitrators shall prepare in writing and provide
to the parties an award including factual findings and the reasons on which the
decision is based. Judgement upon any award may be entered in any court having
jurisdiction thereof.
5. Miscellaneous.
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(a) This Agreement shall be construed by and governed in accordance
with the laws of the Commonwealth of Virginia, without regard to such
jurisdiction's conflicts of laws principles.
(b) This Agreement shall be binding upon and shall inure to the benefit
of the heirs, executors, administrators, legal representatives, successors and
assigns of the parties hereto.
(c) This Agreement may be executed in one or more counterparts which
taken together shall constitute but one and the same instrument.
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(d) Section headings contained herein have been inserted for reference
purposes only and shall not be construed as part of this Agreement.
(e) This Agreement may be modified or amended only by a written
instrument duly executed by all parties hereto or their respective successors or
assigns.
(f) All notices, requests, consents and other communications hereunder
shall be deemed given (i) when delivered if delivered personally (including by
courier) (ii) on the third day after mailing, if mailed, postage prepaid, by
registered or certified mail (return receipt requested), (iii) on the day after
mailing if sent by a nationally recognized overnight delivery service which
maintains records of the time, place, and recipient of delivery; or (iv) upon
receipt of a confirmed transmission, if sent by telex, telecopy or facsimile
transmission, in each case to the parties at the following addresses or to other
such addresses as may be furnished in writing by one party to the others:
(i) If to the Parent Companies:
GRC International, Inc.
1900 Gallows Road
Vienna, Virginia 22182
Attn: Thomas E. McCabe, Senior Vice President, Director
of Corporate Development and General Counsel
Facsimile No.: (703) 448-6890
with a copy to:
Dickstein Shapiro Morin & Oshinsky LLP 2101 L Street, N.W.
Washington, DC 20037
Attn: Kenneth R. Morrow, Esq.
Facsimile No.: (202) 887-0689
(ii) If to the Major Stockholder:
Gerald R. McNichols, Ph.D.
23349 Parsons Road
Middleburg, VA 20117
with a copy to:
Jaeger & Teras, L.L.P.
1090 Vermont Avenue, N.W.
Suite 350
Washington, DC 20005
Attn: Philip W. Jaeger, Esq.
Facsimile No.: (202) 842-0748
or to such other addresses or persons as any party may have furnished to the
other parties in writing, in accordance herewith.
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(g) If any party hereto refuses to comply with, or at any time violates
or attempts to violate, any term, covenant or agreement contained in this
Agreement, any other party hereto may, by injunctive action, compel the
defaulting party to comply with, or refrain from violating, such term, covenant
or agreement, and may, by injunctive action, compel specific performance of the
obligations of the defaulting party.
(h) Except as provided herein, the rights and obligations of the
parties under this Agreement shall not be assigned to any person or entity,
without the written consent of the Major Stockholder and the Parent Companies.
6. ESOP and Profit Sharing Plan.
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As soon as practicable after the date hereof, the parties shall cause
an evaluation to be conducted of the ESOP and Profit Sharing Plans. In the event
that any defects are discovered in either Plan which are of a type correctable
under the Voluntary Compliance Resolution ("VCR") program or Walk-In Closing
Agreement Program ("Walk-In CAP") described in Rev. Procs. 99-31 and 98-22, then
the parties shall cause a submission (the "Submission") to be prepared, filed
and pursued under the VCR or Walk-In CAP program, as applicable. All of the
expenses incurred in connection with the evaluation of the Plans and the
preparation, review, filing and prosecution of any Submission, including the
reasonable fees of professionals, and any corrective action required pursuant
thereto, shall be borne equally by the Major Stockholder, on the one hand, and
the Parent Companies, on the other hand.
[The balance of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
GRC INTERNATIONAL, INC. MANAGEMENT CONSULTING &
RESEARCH, INC.
By: By:
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President President
MAC MERGER CORPORATION MAJOR STOCKHOLDER:
By: /s/ Gerald R. McNichols
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President Gerald R. McNichols
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