EXHIBIT 10.45
INDEMNIFICATION AGREEMENT
This Agreement is made between CareCentric, Inc., a Delaware corporation
(the "Corporation") and Xxxx X. Xxxxx ("Officer") dated January 23, 2002.
RECITALS
WHEREAS, Officer is the president and chief executive officer and a
director of the Corporation and in that capacity is performing a valuable
service for the Corporation; and
WHEREAS, the by-laws of the Corporation (the "By-laws") provide for the
indemnification of the directors and officers of the Corporation to the maximum
extent authorized under law; and
WHEREAS, Section 145(f) of the Delaware General Corporation Law
specifically provides that such indemnification is not exclusive, and
contemplates that contracts may be entered into between the Corporation and its
officers and members of its Board of Directors with respect to indemnification
of the officers and directors; and
WHEREAS, in order to induce Officer to continue to serve as an officer and
director of the Corporation, the Corporation has determined and agreed to enter
into this Agreement with Officer.
AGREEMENT
NOW, THEREFORE, in consideration of Officer's continued service as an
officer and director of the Corporation after the date of this Agreement, the
parties agree as follows:
1. INDEMNITY OF OFFICER. The Corporation agrees to indemnify and hold
harmless Officer, his heirs, successors and estate, to the full extent
authorized or permitted by the provisions of the Delaware General Corporation
Law, or by any amendment of it or other statutory provisions authorizing or
permitting such indemnification which is adopted after the date of this
Agreement.
2. ADDITIONAL INDEMNITY. Without limiting the generality of Section 1
hereof, and subject only to the exclusions set forth in Section 3 hereof, the
Corporation further agrees to hold harmless and indemnify Officer, his heirs,
successors and estate:
(a) Against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Officer, his heirs, successors and estate in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in the name or right
of the Corporation) to which Officer is, was or at any time becomes, or his
heirs, successors and estate are, were, or at any time become, a party, or is
threatened to be made a party, by reason of the fact that Officer is, was or at
any time becomes a director, officer or
employee of the Corporation or any of its affiliates, or is or was serving or at
any time serves at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, limited liability company,
trust or other enterprise, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; and
(b) To the fullest extent as may be provided to Officer by the
Corporation under the nonexclusivity provisions of the Delaware General
Corporation Law.
The indemnities granted herein shall apply to acts and omissions as a
director of the Corporation, as limited herein, in the certificate of
incorporation and By-laws of the Corporation or pursuant to applicable law.
3. LIMITATIONS OF INDEMNITY. No indemnity pursuant to Section 2 hereof
shall be paid by the Corporation:
(a) For acts or omissions of Officer which involve Officer's
fraudulent, dishonest or willful misconduct;
(b) For any transaction from which Officer derived material improper
personal benefit;
(c) For any unlawful payment of dividends or unlawful stock purchase
or redemption as provided pursuant to Section 174 of the Delaware General
Corporation Law;
(d) In respect of the amount of such losses which are actually paid
pursuant to the terms of any directors' and officers' liability insurance policy
purchased and maintained by the Corporation;
(e) On account of any suit in which judgment is rendered against
Officer for an accounting of profits made from the purchase or sale by Officer
of securities of the Corporation pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934 and its amendments or similar provisions of
any federal, state or local statutory law; or
(f) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
4. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Officer serves as
a director or officer of the Corporation or any of its affiliates (or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Officer shall be subject to any possible claim or
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threatened, pending or completed action, suit or proceeding, whether, civil,
criminal or investigative, by reason of the fact that officer was serving in any
capacity referred to herein.
5. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by Officer of
notice of the commencement of any action, suit or proceeding for which a claim
of indemnification may be made under this Agreement ("Action"), Officer will
notify the Corporation of such commencement; but the omission so to notify the
Corporation will not relieve the Corporation from any liability which it may
have to Officer otherwise than under this Agreement so long as the rights of the
Corporation in the defense of its rights in the Action have not been materially
compromised. With respect to an Action as to which officer notifies the
Corporation of its commencement:
(a) The Corporation will be entitled to participate in an Action at
its own expense;
(b) Except as otherwise provided below, to the extent that it may
wish, the Corporation, jointly with any other indemnifying party similarly
notified, will be entitled to assume the defense of an Action, with counsel
satisfactory to Officer. After notice from the Corporation to Officer of its
election so to assume the defense of an Action, the Corporation will not be
liable to Officer under this Agreement for any legal or other expenses
subsequently incurred by Officer in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided below. Officer
shall have the right to employ his counsel in such Action, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of Officer unless (i)
the employment of counsel by Officer has been authorized by the Corporation,
such authorization to be conclusively established by action of a majority of
disinterested members of the Board of Directors though less than a quorum, (ii)
Officer and the Corporation shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Officer in the conduct of the
defense of such Action, such conflict of interest to be conclusively established
by an opinion of the Corporation's outside counsel to such effect, or (iii) the
Corporation shall not in fact have employed counsel to assume the defense of
such Action. In each of the foregoing cases the fees and expenses of counsel
shall be at the expense of the Corporation. Notwithstanding the foregoing, and
subject to the governing instruments of applicable insurance coverages, if an
insurance company has supplied directors' and officers' liability insurance
covering an Action, then such insurance company must approve and may employ
counsel to conduct the defense of such Action unless Officer and the Corporation
reasonably concur in writing that such counsel is unacceptable;
(c) The Corporation shall not be liable to indemnify Officer under
this Agreement for any amounts paid in settlement of any Action effected without
the Corporation's written consent. The Corporation shall not settle any action
or claim in any manner which would impose any penalty or limitation on Officer
without Officer's written consent. Neither the Corporation nor Officer will
unreasonably withhold their consent to any proposed settlement.
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6. ADVANCEMENT OF EXPENSES. Expenses (including attorneys' fees) actually
and reasonably incurred by Officer in defending an action, suit or proceeding,
whether civil, criminal administrative, investigative or appellate, shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of Officer to repay
such amount if it shall ultimately be determined that Officer is not entitled to
indemnification by the Corporation. Notwithstanding the foregoing, no advance
shall be made by the Corporation if a determination is reasonably and promptly
made by (i) the board of directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding from which the
advancement is requested, or (ii) if a quorum is not obtainable, or even if
obtainable, if a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders, that, based
upon the facts known to the board, counsel or stockholders at the time such
determination is made, Officer acted in bad faith and in a manner that Officer
did not believe to be in the best interest of the Corporation, or, with respect
to any criminal proceeding, that Officer believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any advance be made in
instances where the board, stockholders or independent legal counsel reasonably
determines that Officer deliberately breached his duty to the Corporation or its
stockholders.
7. D&O INSURANCE.
(a) The Corporation hereby represents and warrants that it has
provided to Officer a complete and accurate description of the policies of
directors' and officers' liability insurance purchased by the Corporation ("D&O
Insurance") and that such policies are in full force and effect.
(b) The Corporation hereby covenants and agrees that, so long as
Officer shall continue to serve as a director, officer or employee of the
Corporation and thereafter so long as Officer 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 Officer was a
director, officer or employee of the Corporation, the Corporation, subject to
Section 7(d), shall maintain in full force and effect D&O Insurance.
(c) In all policies of D&O Insurance, Officer shall be named as an
insured in such a manner as to provide Officer the same rights and benefits,
subject to the same limitations, as are accorded to the Corporation's directors
or officers most favorably insured by such policy.
(d) The Corporation shall have no obligation to maintain D&O Insurance
if the Corporation determines in good faith that such insurance is not
reasonably available, the premium costs for such insurance is disproportionate
to the amount of coverage provided, or the coverage provided by such insurance
is limited by exclusions so as to provide an insufficient benefit.
8. ENFORCEMENT. The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Corporation hereby in order to induce Officer to continue as a Officer of the
Corporation, and acknowledges that Officer is relying on this Agreement in
continuing in such capacity. In the event Officer is required to bring any
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action to enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Corporation shall reimburse Officer for all of
Officer 's reasonable fees and expenses in bringing and pursuing such action.
9. SEVERABILITY. Each of the provisions of this Agreement is a separate and
distinct agreement and independent of the others, so that if any provision shall
be held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions.
10. GOVERNING LAW; BINDING EFFECT; AMENDMENT AND TERMINATION.
(a) This Agreement sets forth the entire integrated understanding and
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements whether written or verbal; however, it is
expressly understood that this Agreement supplements rights authorized in the
Articles and set forth in the By-laws pursuant to the Delaware General
Corporation Law.
(b) This Agreement shall be binding on Officer and on the Corporation,
its successors and assigns, and shall inure to the benefit of Officer, his
heirs, personal representatives and assigns and to the benefit of the
Corporation, its successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
(d) All notices, requests, demands, claims and other communications
hereunder will be in writing and shall be deemed to have been duly given if
delivered personally, mailed by certified mail, return receipt requested, sent
by overnight delivery service, or by facsimile transmission, to the parties at
the following addresses or at such other addresses as shall be specified by the
parties:
If to Officer: Xxxx X. Xxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
with a copy to: Xxxx Xxxxx, Esq.
Xxxxxx Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
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If to Corporation: CareCentric, Inc.
0000 Xxxxxxxxxx Xxxxxxx - Xxxxx 000
Xxxxxxx, XX 00000
Attention: Vice President Human Resources
Telefax: (000) 000-0000
with a copy to: Xxxxxx Xxxxxx Xxxxxxx, LLP
2800 One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Notice so given shall, in the case of notice given by mail, be deemed to be
given and received on the third calendar day after posting, in the case of
notice given by overnight delivery service, on the date of actual delivery, and
in the case of notice given by facsimile transmission or personal delivery, upon
transmission and receipt.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as of
the date first above written.
CARECENTRIC, INC.
By: /s/ X.X. Xxxxx
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Name: X.X. Xxxxx
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Its: Vice Chairman
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OFFICER
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
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