EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, is made as of ________________, 199_ by and
between ProVantage Health Services, Inc., a Delaware corporation (the
"Company"), and ______________________ ("Indemnitee").
WHEREAS, Indemnitee is a member of the Board of Directors and/or an
executive officer of the Company; and
WHEREAS, it will be difficult to retain directors and executive officers of
the Company unless such persons are adequately indemnified against liabilities
incurred and claims made in performance of their duties as directors and/or
executive officers of the Company; and
WHEREAS, Article VIII of the Company's Bylaws (the "Bylaws") provides for
the indemnification by the Company of the officers and directors of the Company
and, as additional consideration for the services of Indemnitee, the Company has
obtained at its expense directors' and officers' liability insurance ("D & O
Insurance") covering Indemnitee with respect to Indemnitee's position with the
Company; and
WHEREAS, to induce Indemnitee to continue to serve as a member of the Board
of Directors and/or as an executive officer of the Company, the Company has
determined that it is in its best interests to assure Indemnitee of the
protection currently provided by the Bylaws and D & O Insurance and to indemnify
Indemnitee to the fullest extent permitted by the Delaware General Corporation
Law (the "DGCL").
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Indemnification. The Company agrees to indemnify and hold Indemnitee
harmless from and against any and all claims, liabilities, damages, judgments,
penalties, fines, settlements, disbursements or expenses of any type whatsoever
(including, without limitation, reasonable attorneys' fees) incurred by
Indemnitee in or arising out of (A) the status, capacities or activities of
Indemnitee as a director and/or an executive officer of the Company, or (B) the
status, capacities or activities of Indemnitee with any Subsidiary (as
hereinafter defined) which status, capacities or activities with such Subsidiary
were undertaken in connection with the Indemnitee's position with the Company as
a director and/or an executive officer, in each case to the maximum extent
permitted under Section 145 of the DGCL and Article VIII of the Bylaws as in
effect on the date hereof and as either may be amended to provide more
advantageous rights to the Indemnitee. For purposes hereof, "Subsidiary" means
any corporation, joint venture, limited liability company, or other business
entity in which the Company has a significant direct or indirect equity
interest.
2. Advances of Expenses. Upon written request by Indemnitee and subject to
the requirements of the DGCL, the Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense, settlement or appeal
of any proceeding, action or investigation to which Indemnitee is a party or is
threatened to be made a party arising out of any matter for which the Indemnitee
is entitled to indemnification pursuant to Section 1 hereof to the maximum
extent permitted under Section 145 of the DGCL and Article VIII of the Bylaws as
in effect on the date of this Agreement and as either may be amended to provide
more advantageous rights to the Indemnitee. The indemnification provisions
contained in Section 145 of the DGCL and Article VIII of the Bylaws, as in
effect on the date hereof and as either may be amended to provide more
advantageous indemnification rights to Indemnitee, shall be deemed to be a
contract between the Company and Indemnitee and any amendment, modification,
revocation or repeal of any such provisions of Section 145 of the DGCL or
Article VIII of the Bylaws shall not limit any rights of Indemnitee hereunder to
indemnification or the allowance of expenses.
3. Other Rights of Indemnitee. The right of Indemnitee to indemnification
or advance of expenses pursuant to this Agreement shall not be exclusive of
other rights Indemnitee may have (i) under applicable law, (ii) pursuant to
other agreements between the Company and Indemnitee or the Bylaws (subject to
Section 16 hereof), or (iii) pursuant to any agreement with a third party (by
way of insurance, indemnification or otherwise).
4. Absolute Right to Indemnification and Advancement of Expenses. The
Company agrees that it shall not, and the Company hereby waives all rights that
it has or may have to refuse to indemnify, or withhold payment of amounts for
which Indemnitee is indemnified hereunder, based on any breach or alleged breach
of any of the provisions of this Agreement by Indemnitee or for any other reason
whatsoever; provided, however, that the Agreement shall not require the Company
to make any payment prohibited by law, or to advance expenses contrary to the
provisions hereof. In the event Indemnitee is required to bring any action to
enforce Indemnitee's rights or to collect monies due to Indemnitee under this
Agreement, and is successful in such action, the Company shall reimburse
Indemnitee for all of Indemnitee's legal fees and expenses in bringing and
pursuing such action.
5. Amendments to the DGCL or Company's Charter or Bylaws. The Company shall
not amend its Certificate of Incorporation ("Charter") or Bylaws to reduce or
eliminate the Indemnitee's right to indemnification or advances provided for
under this Agreement. Any amendments to the Charter or Bylaws made subsequent to
the date of this Agreement which reduce or eliminate rights of persons entitled
to indemnification or advances under such Charter or Bylaws shall not limit the
rights of Indemnitee pursuant to this Agreement. If the DGCL, the Charter or the
Bylaws are amended so as to provide for greater indemnification rights or
benefits, Indemnitee shall be entitled to such greater rights and benefits
immediately upon such amendment. Subsequent amendments to the DGCL or other
applicable law shall in no way reduce Indemnitee's rights under this Agreement.
6. Maintenance of Insurance. The Company represents that it presently has
in force and effect directors and officers insurance under a directors' and
officers' liability insurance policy covering certain liabilities which may be
incurred by its officers and directors. The Company
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agrees to purchase and maintain in effect, for the benefit of Indemnitee, D & O
Insurance providing, in all respects, coverage not less favorable than that
presently provided pursuant to said policy for so long as Indemnitee shall serve
as director and/or executive officer and until the later of (i) three years
after Indemnitee ceases to be a director and/or executive officer, as the case
may be, for any reason, or (ii) for so long as Indemnitee shall be subject to
any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative, by reason of the fact that
Indemnitee was a member of the Board of Directors and/or an executive officer,
as the case may be. The unavailability or subsequent exclusions, limitations or
deductibles contained in coverage provided by such D & O Insurance shall in no
way limit the obligations of the Company to insure and indemnify Indemnitee to
the full extent required by this Agreement.
7. Effect of Certain Proceedings. The termination of any proceeding or of
any claim, issue or matter therein, by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, does not of itself
adversely affect the right of Indemnitee to indemnification hereunder or create
a presumption that indemnification is not required. The knowledge and/or
actions, or failure to act, of any director, officer, agent or employee of the
Company shall not be imputed to Indemnitee for purposes of determining the right
to indemnification under this Agreement.
8. Notification. Promptly after receipt by Indemnitee or the Company of any
notice or document respecting the commencement of any action, suit, proceeding
or investigation naming or involving Indemnitee and relating to any matter
concerning which Indemnitee may be entitled to indemnification or advances
pursuant to this Agreement, the party receiving notice will notify the other of
the receipt of same, but the failure by Indemnitee to so notify the Company
shall not relieve the Company from any obligation under this Agreement or
otherwise.
9. Amendment. This Agreement may be amended at any time by written
instrument executed by the Company and Indemnitee.
10. Notices. All notices and other communications between the parties with
respect to this Agreement must be made in writing and shall be deemed to have
been fully delivered as of the date on which they are hand delivered or
deposited in the United States mail for delivery by registered or certified
mail, postage and fees prepaid.
11. Binding Effect. Due to the personal nature of the services to be
rendered by Indemnitee, Indemnitee may not assign this Agreement. Subject to the
foregoing, the provisions of this Agreement are binding upon and inure to the
benefit of (i) Indemnitee and Indemnitee's respective heirs, legal
representatives and administrators, and (ii) the Company and its successors,
transferees and assigns.
12. Term of Agreement. This Agreement shall continue and terminate upon the
later of: (i) 10 years after the date that Indemnitee shall have ceased to serve
as a director and/or executive officer of the Company; or (ii) the final
termination of all pending proceedings in respect of which Indemnitee is granted
rights of indemnification or advancement of expenses
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hereunder and of any proceeding commenced by Indemnitee pursuant to Section 14
of this Agreement relating thereto.
13. Validity. The invalidity or unenforceability of any provision of the
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
14. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be discussed between the parties in a good faith
effort to arrive at a mutual settlement of any such controversy. If,
notwithstanding the parties' good faith efforts, a dispute remains unresolved
for a period of 45 days after initial notice from one party to the other of the
dispute, the parties shall submit such dispute to arbitration in accordance with
the rules of the American Arbitration Association, and judgment upon the award
may be entered in any court having jurisdiction over the controversy. The costs
of the proceedings shall be paid by the Company. Unless otherwise agreed upon,
the place of arbitration proceedings shall be Milwaukee County, Wisconsin.
15. Subrogation. In the event of payment by the Company to Indemnitee under
this Agreement, the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, and Indemnitee shall execute all
documents and shall do all things necessary to enable the Company effectively to
bring suit to enforce such rights.
16. Effectiveness. The provisions of this Agreement (i) shall supersede the
provisions of any agreement between the Indemnitee and the Company entered into
prior to the date hereof which provides for the indemnification of the
Indemnitee by the Company for the matters covered by Section 1 hereof, and (ii)
shall be retroactive to cover any and all matters which may have taken place
prior to the date hereof for which the Indemnitee is entitled to indemnification
pursuant to Section 1 hereof. By way of example but not of limitation, this
Agreement shall apply to matters for which the Indemnitee is entitled to
indemnification pursuant to Section 1 hereof, regardless of whether such matters
relate to activities of Indemnitee or the Company preceding or subsequent to the
date of this Agreement.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PROVANTAGE HEALTH SERVICES, INC.
_____________________________ By:______________________________
Indemnitee Its
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