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Exhibit 10.16
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made as of this _____ day of April,
2000, by and between _____________________ (the "Indemnitee") and AMERIGROUP
CORPORATION, a Delaware corporation with a principal place of business at 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxx, Xxxxxxxx 00000 (the "Company").
RECITALS:
A. It is essential that the Company retain and attract as directors and
officers the most capable persons available.
B. The Indemnitee is a director and/or officer of the Company.
C. Both the Company and the Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
public companies.
D. The Bylaws of the Company require the Company to indemnify
directors, officers and certain other persons to the full extent permitted by
law, and Indemnitee has been serving and continues to serve as a director and/or
officer of the Company, in part, in reliance on such Bylaws.
E. In recognition of the Indemnitee's need for substantial protection
against personal liability in order to maintain the Indemnitee's continued
service to the Company in an effective manner and the Indemnitee's reliance on
the aforesaid Bylaws and, in part, to provide the Indemnitee with specific
contractual assurance that the protection promised by such Bylaws will be
available to the Indemnitee (regardless of, among other things, any amendment to
or revocation of, such Bylaws or any change in the composition of the Company's
Board of Directors or any acquisition transaction relating to the Company), the
Company desires to provide in this Agreement for the indemnification of and the
advance of expenses to the Indemnitee to the full extent (whether partial or
complete) permitted by law, as set forth in this Agreement and, to the extent
officers' and directors liability insurance is maintained by the Company, to
provide for the continued coverage of the Indemnitee under the Company's
directors and officers liability insurance policies.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings specified below:
(A) "Change in Control". Any of the following:
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(i) The acquisition by any "person" or "group" (as
defined in or pursuant to Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (other than the Company, any
subsidiary thereof or any employee benefit plan of the Company or a subsidiary),
directly or indirectly, as "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act) of securities of the Company representing twenty percent (20%)
or more of either the then outstanding shares or the combined voting power of
the then outstanding securities of the Company;
(ii) Either a majority of the directors of the
Company elected at the Company's annual stockholders meeting shall have been
nominated for election other than by or at the direction of the "incumbent
directors" of the Company, or the "incumbent directors" shall cease to
constitute a majority of the directors of the Company. The term "incumbent
director" shall mean any director who was a director of the Company on the date
hereof and any individual who becomes a director of the Company subsequent to
the date hereof and who is elected or nominated by or at the direction of at
least two-thirds (2/3) of the then incumbent directors;
(iii) The shareholders of the Company approve (x) a
merger, consolidation or other business combination of the Company with any
other "person" or "group" (as defined in or pursuant to Sections 13(d) and 14(d)
of the Exchange Act) or affiliate thereof, other than a merger or consolidation
that would result in the outstanding common stock of the Company immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into common stock of the surviving entity or a parent or
affiliate thereof) more than fifty percent (50%) of the outstanding common stock
of the Company or such surviving entity or a parent or affiliate thereof
outstanding immediately after such merger, consolidation or other business
combination, or (y) a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets; or
(iv) Any other event or circumstance which is not
covered by the foregoing subsections but which the Board of Directors of the
Company determines to affect control of the Company and with respect to which
the Board of Directors adopts a resolution that the event or circumstance
constitutes a Change of Control for purposes of this Agreement.
(v) The date of a Change of Control under this
Section 1(A) above is the date on which an event described in Sections 1(A)(i),
1(A)(ii), 1(A)(iii), or 1(A)(iv) above occurs.
(vi) If, following a Change of Control and a dispute
with the Company regarding the terms of this Section 1(A) and any related
provision of this Agreement, the Indemnitee collects any part or all of the
severance pay provided under this Section 1(A) by or through the assistance of
legal counsel, the Company will pay all costs of any such collection or
enforcement, including reasonable attorneys' fees and other out of pocket
expenses incurred by the Indemnitee, up to that point when the Company offered
to settle the dispute for an amount
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equal to the amount that the Indemnitee is entitled to recover.
(vii) The payments described in this Section 1(A)
will be due the Indemnitee regardless of any subsequent employment obtained by
the Indemnitee.
(B) "Claim". Any threatened, pending or completed action,
suit, investigation or proceeding, and any appeal thereof, whether civil,
criminal, administrative or investigative and/or any inquiry or investigation,
whether conducted by the Company or any other party that the Indemnitee in good
faith believes might lead to the institution of any such action.
(C) "Expenses". Include attorneys' fees and all other costs,
expenses, and obligations paid or incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in any Claim relating to any
Indemnifiable Event.
(D) "Indemnifiable Event". Any event, occurrence or
circumstance related to the fact that the Indemnitee is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
by reason of anything done or not done by the Indemnitee in any such capacity.
(E) "Potential Change in Control". Shall be deemed to have
occurred if (a) the Company enters into an agreement or arrangement, the
consummation of which would result in the occurrence of a Change in Control; (b)
any person (including the Company) publicly announces an intention to take or to
contemplate taking actions which if consummated would constitute a Change in
Control; (c) any person (other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company acting in such capacity
or a corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the
Company), who is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing ten percent (10%) or more of the combined
voting power of the Company's then outstanding Voting Securities increases his
beneficial ownership of such securities by five percent (5%) or more over the
percentage so owned by such person on the date hereof; or (d) the Board of
Directors adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
(F) "Reviewing Party". Any appropriate person or body
consisting of a member or members of the Company's Board of Directors, including
the Special Independent Counsel referred to in Section 2(C) (or, to the fullest
extent permitted by law, any other person or body appointed by the Board of
Directors), who is not a party to the particular claim for which the Indemnitee
is seeking indemnification.
(G) "Voting Securities". Any securities of the Company which
vote generally in the election of directors.
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2. Indemnification.
(A) Non-Exclusivity. The rights of the Indemnitee hereunder
shall be in addition to any other rights the Indemnitee may have under the
Company's Certificate of Incorporation or Bylaws or the Delaware General
Corporation law or otherwise. To the extent that a change in the Delaware
General Corporation Law (whether by statute or judicial decision) permits
greater indemnification by agreement than would be afforded currently under the
Company's Certificate of Incorporation or Bylaws or this Agreement, to the
fullest extent permitted by law it is the intent of the parties hereto that the
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change immediately upon the occurrence of such change without further
action by the Company or the Indemnitee.
(B) Basic Indemnification Agreement.
(i) In the event the 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 by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify the Indemnitee to
the fullest extent not prohibited by law, as soon as practicable but in any
event no later than thirty (30) days after written demand is presented to the
Company, against any and all Expenses, judgments, fines, penalties and amounts
paid in settlement (including all interest, assessments and other charges paid
or payable in connection with or in respect of such Expenses, judgments, fines,
penalties or amounts paid in settlement) of such Claim. Notwithstanding anything
in this Agreement to the contrary, prior to a Change in Control the Indemnitee
shall not be entitled to indemnification pursuant to this Agreement in
connection with any Claim initiated by the 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. If so requested by the Indemnitee, the Company
shall advance to the Indemnitee (within twenty (20) days of such request) any
and all Expenses (an "Expense Advance").
(ii) Notwithstanding the foregoing, (a) the
obligations of the Company under Section 2(B)(i) shall be subject to the
condition that any Reviewing Party shall not have determined (in a written
opinion, in any case in which the Special Independent Counsel referred to in
Section 2(C) below is involved) that the Indemnitee would not be permitted to be
indemnified under applicable law, and (b) the obligation of the Company to make
an Expense Advance pursuant to Section 2(B)(i) shall be subject to the condition
that if, when and to the extent that any Reviewing Party determines that the
Indemnitee would not be permitted to be so indemnified under applicable law, the
Company shall be entitled to be reimbursed by the Indemnitee (who hereby agrees
to reimburse the Company) for all such amounts theretofore paid; provided,
however, that if the Indemnitee has commenced legal proceedings in a court of
competent jurisdiction to secure a determination that the Indemnitee should be
indemnified under applicable law, any determination made by a Reviewing Party
that the Indemnitee would not be permitted to be indemnified under applicable
law shall not be binding and the Indemnitee shall not be required to reimburse
the Company for any Expense Advance until a final judicial
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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, a Reviewing Party shall be selected by the Board of Directors, and if
there has been such a Change in Control, a Reviewing Party shall be the Special
Independent Counsel referred to in Section 2(C) below. If there has been no
appointment or no determination by a Reviewing Party or if a Reviewing Party
determines that the Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, the Indemnitee shall have
the right to commence litigation in any court in the Commonwealth of Virginia
having subject matter jurisdiction thereof and in which venue is proper seeking
an initial determination by the court or challenging any such determination by
the court or challenging any such determination by the Reviewing Party or any
aspect thereof, including the legal or factual basis therefor, and the Company
hereby consents to service of process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and the Indemnitee.
(C) Change in Control. The Company agrees that if there is a
Change in Control, then with respect to all matters thereafter arising
concerning the rights of the Indemnitee to indemnity payments and Expense
Advances under this Agreement, the Company's Certificate of Incorporation or
Bylaws, or any other agreement now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from "Special
Independent Counsel" selected by the Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld), and who has not otherwise
performed services for the Company or the Indemnitee within the last five (5)
years (other than in connection with such matters). Such Special Independent
Counsel, among other things, shall render its written opinion to the Company and
the Indemnitee as to whether and to what extent the Indemnitee would be
permitted to be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the Special Independent Counsel referred to above and may
fully indemnify such Special Independent Counsel against any and all expenses
(including attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
(D) Establishment of Trust. In the event of a Potential Change
in Control or a Change in Control, the Company shall, upon written request by
the Indemnitee, create a "Trust" for the benefit of the Indemnitee and from time
to time upon written request of the Indemnitee shall fund such Trust in an
amount sufficient to satisfy any and all Expenses reasonably anticipated at the
time of each such request to be incurred in connection with investigating,
preparing for and defending any Claim relating to an Indemnifiable Event, and
any and all judgments, fines, penalties and settlement amounts of any and all
Claims relating to an Indemnifiable Event from time to time actually paid or
claimed, reasonably anticipated or proposed to be paid. The amount or amounts to
be deposited in the Trust pursuant to the foregoing funding obligation shall be
determined by a Reviewing Party in any case in which the Special Independent
Counsel referred to above is involved. The terms of the Trust shall provide that
upon a Change in Control (i) the Trust shall not be revoked or the principal
thereof invaded without the written consent of the Indemnitee, (ii) the Trustee
shall advance, within two (2) business days of a request by the Indemnitee, any
and all Expenses to the Indemnitee (and the
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Indemnitee hereby agrees to reimburse the Trust under the circumstances under
which the Indemnitee would be required to reimburse the Company under Section
2(B)(ii) above), (iii) the Trust shall continue to be funded by the Company in
accordance with the funding obligation set forth above, (iv) the Trustee shall
promptly pay to the Indemnitee all amounts for which the Indemnitee shall be
entitled to indemnification pursuant to this Agreement or otherwise, and (v) all
unexpended funds in the Trust shall revert to the Company upon a final
determination by the Reviewing Party or a court of competent jurisdiction, as
the case may be, that the Indemnitee has been fully indemnified under the terms
of this Agreement. The Trustee shall be a bank or trust company or other
individual or entity chosen by the Indemnitee and acceptable to and approved of
by the Company. Nothing in this Section 2(D) shall relieve the Company of any of
its obligations under this Agreement.
(E) Indemnification for Additional Expenses. To the fullest
extent not prohibited by law, the Company shall indemnify the Indemnitee against
any and all Expenses and, if requested by the Indemnitee, shall (within two (2)
business days of such request) advance to the Indemnitee such Expenses as are
incurred by the Indemnitee in connection with any Claim asserted against or
action brought by the Indemnitee for (i) indemnification or an advance payment
of Expenses by the Company under this Agreement, the Company's Bylaws or
Certificate of Incorporation or any other agreement now or hereafter in effect
relating to Claims for Indemnifiable Events, and/or (ii) recovery under any
directors' and officers' liability insurance policies maintained by the Company,
regardless of whether the Indemnitee ultimately is determined to be entitled to
such indemnification, advance payment of Expenses or insurance recovery, as the
case may be.
(F) Partial Indemnity. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion, but not all, of any Expenses, judgments, fines, penalties or amounts
paid in settlement of a Claim, the Company shall nevertheless indemnify the
Indemnitee for that portion thereof to which the Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to the extent
that the Indemnitee is or has been successful on the merits or otherwise in
defense of any and 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, the 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 the Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Company to establish that the
Indemnitee is not so entitled.
(G) No Presumption. For purposes of this Agreement, to the
fullest extent permitted by law, the termination of any Claim, 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 the Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has determined
that indemnification is not permitted by applicable law.
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(H) Liability Insurance. To the extent the Company shall
maintain an insurance policy or policies providing directors' and officers'
liability insurance, the Indemnitee shall be covered by such policy or policies,
in accordance with its or their terms, to the maximum extent of the coverage
available for any director or officer of the Company.
(I) Period of Limitations. No legal action shall be brought
and no cause of action shall be asserted by or in the right of the Company or
any affiliate of the Company against the Indemnitee, the Indemnitee's spouse,
heirs, executors or personal or legal representatives after the expiration of
two (2) years from the date of accrual of such cause of action, and any claim or
cause of action of the Company or its affiliates shall be extinguished and
deemed released unless asserted by the timely filing of a legal action within
such two (2) year period.
(J) Subrogation. In the event of payment by the Company under
this Agreement, the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of the Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
(K) No Duplication of Payments. The Company shall not be
liable under this Agreement to make any payment in connection with any Claim
made against the Indemnitee to the extent the Indemnitee has otherwise received
payment (under any insurance policy, the Bylaws of the Company or otherwise) in
respect of such Claim.
3. Consent and Waiver by Third Parties. The Indemnitee hereby
represents and warrants that he has obtained all waivers and/or consents from
third parties which are necessary for his employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Indemnitee represents that he is not bound by any
agreement or any other existing or pervious business relationship which
conflicts with, or may conflict with, the performance of his obligations
hereunder or prevent the full performance of his duties and obligations
hereunder.
4. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Virginia, except for
the rights, privileges and obligations with respect to the indemnity provisions
set forth in Section 2 which shall be governed by and construed in accordance
with the internal laws of the State of Delaware.
5. Severability. In case any one or more of the provisions contained in
this Agreement for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed and reformed to the maximum extent permitted by law.
6. Waivers and Modifications. This Agreement may be modified, and the
rights,
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remedies and obligations contained in any provision hereof may be waived, only
in accordance with this Section 6. No waiver by either party of any breach by
the other or any provision hereof shall be deemed to be a waiver of any later or
other breach thereof or as a waiver of any other provision of this Agreement.
This Agreement sets forth all of the terms of the understanding between the
parties hereto with reference to the subject matter set forth herein and may not
be waived, changed, discharged or terminated orally or by any course of dealing
between the parties, but only by an instrument in writing signed by the party
against whom any waiver, change, discharge or termination is sought. No
modification or waiver by the Company shall be effective without the consent of
at least two-thirds (2/3) of the members of the Board of Directors then in
office at the time of such modification or waiver.
7. Assignment. The Indemnitee acknowledges that the services to be
rendered by him hereunder are unique and personal in nature. Accordingly, the
Indemnitee may not assign any of his rights or delegate any of his duties or
obligations under this Agreement. The rights and obligations of the Company
under this Agreement shall inure to the benefit of, and shall be binding upon,
the successors and assigns of the Company.
8. Entire Agreement. This Agreement constitutes the entire
understanding of the parties relating to the subject matter hereof and
supersedes and cancels all agreements, written or oral, made prior to the date
hereof between the Indemnitee and the Company relating to the subject matter
hereof or thereof.
9. Notices. All notices hereunder shall be in writing and shall be
delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as set forth on the signature page hereto.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11. Section Headings. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
12. Arbitration. The parties shall submit any dispute relating to this
Agreement to arbitration by notifying the other party hereto, in writing, of
such dispute. Within ten (10) days after receipt of such notice, the parties
shall designate in writing one arbitrator to resolve the dispute; provided, that
if the parties cannot agree on an arbitrator within such 10-day period, the
arbitrator shall be selected by the American Arbitration Association. The
arbitrator so designated shall not be an employee, consultant, officer, director
or stockholder of any party hereto or any affiliate of any party to this
Agreement. The arbitration shall be governed by the rules of the American
Arbitration Association; provided, that the arbitrator shall have sole
discretion with regard to the admissibility of evidence. The arbitrator shall
rule on each disputed issue. All
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rulings of the arbitrator shall be in writing and shall be delivered to the
parties hereto. Any arbitration pursuant to this Section 12 shall be conducted
in Virginia Beach, Virginia. Any arbitration award may be entered in and
enforced by any court having jurisdiction thereover and the parties hereby
consent and commit themselves to the jurisdiction of the courts of the
Commonwealth of Virginia for purposes of the enforcement of any arbitration
award. The arbitrator may proceed to an award notwithstanding the failure of the
other party to participate in the proceedings. The prevailing party shall be
entitled to an award of reasonable attorneys' fees incurred in connection with
the arbitration in such amount as may be determined by the arbitrators. The
award of the arbitrator shall be the sole and exclusive remedy of the parties
and shall be enforceable in any court of competent jurisdiction. Notwithstanding
the foregoing, the parties shall be entitled to seek injunctive relief or other
equitable remedies from any court of competent jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written as an instrument
under seal.
AMERIGROUP CORPORATION
By: [SEAL]
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Xxxxxxx X. XxXxxxxx
President
INDEMNITEE:
[SEAL]
---------------------------------
Print Name:
----------------------------
Address for Notices:
AMERIGROUP Corporation
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
Sr. Vice President and General Counsel
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