INDEMNIFICATION AGREEMENT dated as of _________ ___, 1998, between COGNIZANT
TECHNOLOGY SOLUTIONS CORPORATION, a Delaware corporation (the "Company"), and
_________________ (the "Director/Executive Officer").
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers corporations to indemnify persons serving as a director, officer,
employee or agent of such corporation or persons who serve at the request of
such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, and Section
145(f) of the DGCL further specifies that the indemnification set forth in said
Section shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
The Company desires to have the Director/Executive Officer serve
or continue to serve as an executive officer and/or director of the Company free
from undue concern for unpredictable, inappropriate or unreasonable claims for
damages by reason of his or her decisions or actions on its behalf; and the
Director/Executive Officer desires to serve, or to continue to serve, in such
capacity. Accordingly, in consideration of the Director/Executive Officer's
serving continuing to serve as an executive officer and/or director of the
Company, the parties agree as follows:
1. Indemnification. The Company shall indemnify, defend and hold
harmless the Director/Executive Officer against all expenses, losses, claims,
damages and liabilities, including, without limitation, attorneys' fees,
judgments, fines and amounts paid in settlement (all such expenses,
collectively, "Costs"), actually and reasonably incurred by him or her in
connection with the investigation, defense or appeal of any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, to which the Director/Executive Officer is a party or
threatened to be made a party (all such actions, collectively, "Proceedings")
(i) by reason of the fact that the Director/Executive Officer is or was a
director, officer, employee or agent of the Company or of any other corporation,
partnership, joint venture, trust or other enterprise (collectively,
"Affiliates") of which he or she has been or is serving at the request of, for
the convenience of or to represent the interest of the Company or (ii) by reason
of anything done or not done by the Director/Executive Officer in any such
capacity referred to in the foregoing clause (i).
2. Culpable Action. (a) Notwithstanding the provisions of Section 1,
the Director/Executive Officer shall not be entitled to indemnification if (i)
the Company is prohibited from paying such indemnification under applicable law,
(ii) the Director/Executive Officer breached his or her duty of loyalty to the
Company or its stockholders or any Affiliate or its stockholders, (iii) the
Director/Executive Officer's actions or omissions were not in good faith or
involved intentional misconduct or a knowing violation of law or (iv) the
Director/Executive Officer derived an improper personal benefit from any
transaction which is a subject of the applicable Proceeding (any existence or
occurrence described in the foregoing clauses (i) - (iv), individually, a
"Culpable Action").
(b) The existence or occurrence of a Culpable Action shall be
conclusively determined by (i) a non-appealable, final decision of the court
having jurisdiction over the applicable Proceeding or (ii) a non-appealable,
final decision of the Court of Chancery of the State of Delaware (or if such a
decision is appealable, by the court in such State which has jurisdiction to
render a non-appealable, final decision). Such determination shall be final and
binding upon the parties hereto.
(c) The existence or occurrence of a Culpable Action may also be
determined by (i) the Board of Directors of the Company, by a majority vote of a
quorum consisting of directors who were not parties to the applicable Proceeding
(the "Disinterested Directors"), (ii) the stockholders of the Company, by a
majority vote of a quorum consisting of stockholders who were not parties to the
applicable Proceeding (the "Disinterested Stockholders"), or (iii) any other
entity to which the Disinterested Directors or the Disinterested Stockholders
shall have delegated the authority to make such a determination; provided,
however, that such determination shall be binding upon the parties hereto only
if a determination shall not have been made or shall not be subsequently made
pursuant to Subsection (b) above.
(d) If a Proceeding involves more than one claim, issue or matter,
the determination as to whether there exists or has occurred a Culpable Action
shall be severable as to each and every claim, issue and matter.
(e) The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo
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contendere or its equivalent, does not change the presumption of Section 1 that
the Director/Executive Officer is entitled to indemnification hereunder and does
not create a presumption that there exists a Culpable Action.
3. Payment of Costs. The Costs incurred by the Director/Executive
Officer in connection with any Proceeding, including any Proceeding brought
pursuant to Section (2)(b), shall be paid by the Company on an "as incurred"
basis; provided, however, that if it shall ultimately be determined that there
exists or has occurred a Culpable Action with respect to such Proceeding, the
Director/Executive Officer shall repay to the Company the amount (or the
appropriate portion thereof as contemplated by Section 2(d)) so advanced,
including the costs of obtaining a determination pursuant to Section 2(b).
4. Severability. If any provision of this Agreement shall be determined
to be illegal and unenforceable by any court of law, the remaining provisions
shall be severable and enforceable in accordance with their terms.
5. No Right to Employment or Directorship. This Agreement shall not
entitle the Director/Executive Officer to any right or claim to be retained as
an employee and/or director of the Company or limit the right of the Company to
terminate the employment and/or directorship of the Director/Executive Officer
or to change the terms of such employment and/or directorship.
6. Other Rights and Remedies. This Agreement shall not be deemed
exclusive as to any other non-contractual rights to indemnification to which the
Director/Executive Officer may be entitled under any provision of law, the
Restated Certificate of Incorporation of the Company, any By-law of the Company
or otherwise.
7. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
8. Descriptive Headings. Descriptive headings are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
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9. Modification. This Agreement shall not be altered or otherwise
amended except pursuant to an instrument in writing signed by each of the
parties.
10. Notice to the Company by the Director/Executive Officer. The
Director/Executive Officer, as a condition precedent to his or her right to be
indemnified under this Agreement, shall give to the Company notice in writing as
soon as practicable of any Proceeding for which indemnity will or could be
sought under this Agreement.
11. Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or by facsimile transmission with
electronic confirmation of receipt or if sent by nationally recognized overnight
courier or first class certified mail, postage prepaid, return receipt
requested, addressed to such party at the address set forth below or such other
address as may hereafter be designated in writing by notice given pursuant to
this Section 11:
if to the Company, to:
Cognizant Technology Solutions Corporation
1700 Broadway, 26th Floor
New York, New York 10019
Attention: Chief Executive Officer
Telecopier: (212) 887-2450; and
if to the Director/Executive Officer, to:
the Director/Executive Officer's name and
address as it appears in the records of the
Company.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and performed wholly therein.
13. Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of the
Director/Executive Officer and his or her spouse, heirs, executors and
administrators.
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\ IN WITNESS WHEREOF, each of the undersigned have duly executed
this Indemnification Agreement as of the date first above written.
COGNIZANT TECHNOLOGY SOLUTIONS CORPORATION
By:
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Name:
Title:
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Director/Executive Officer