Exhibit 10.17
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of ________________, 2002, between VistaCare,
Inc., a Delaware corporation (the "Company"), and ___________________________
("Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as directors
and officers the most capable persons available;
WHEREAS, the Company wishes to retain the services of the Indemnitee as a
director and/or officer;
WHEREAS, lawsuits seeking significant money judgments against corporations
and their directors and officers have become commonplace in recent years and
uncertainties about the possible judicial interpretations of applicable
statutes, regulations and corporate charter and by-law provisions leave
corporate directors and officers with inadequate reliable knowledge of the legal
risks to which they may be exposed by such lawsuits;
WHEREAS, whether or not the case is meritorious, the cost of defending
such lawsuits is significant with few individual directors or officers having
the resources to sustain such legal costs and such lawsuits present individual
directors and officers with the risk of significant money judgments even in
cases where the defendant was neither culpable nor profited personally to the
detriment of the Company;
WHEREAS, the substantial financial risk to directors and officers of the
Company presented by the possibility of such lawsuits is excessively
disproportionate, in some cases, to the amount of compensation received by such
directors and officers for their service to the Company;
WHEREAS, the Indemnitee is unwilling to continue to serve the Company as a
director and/or officer without assurances that indemnification is and will
continue to be provided to the fullest extent possible; and
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
the Company in an effective manner and in part to provide Indemnitee with
specific contractual assurance that the indemnification protection provided by
the Certificate of Incorporation and Bylaws of the Company will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation of
such Certificate of Incorporation and Bylaws or any change in the composition of
the Company's Board of Directors (the "Board") or acquisition transaction
relating to the Company), and in order to induce Indemnitee to continue to
provide services to the Company as
a director and/or officer thereof, the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses to Indemnitee
to the fullest extent (whether partial or complete) permitted by law.
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company as a director and/or officer and intending to be
legally bound hereby, the parties agree as follows:
1. Certain Definitions.
(a) Change in Control: shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company 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,
becomes after the date hereof the "beneficial owner" (as defined in Rule 13d-3
under said Act) directly or indirectly of securities of the Company representing
35% or more of the total voting power represented by the Company's then
outstanding Voting Securities, (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board and any new
directors whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof or (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the Voting Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
the stockholders of the Company approve a plan of complete liquidation (as that
term is used in the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder) of the Company or an agreement for the sale
or disposition by the Company (in one transaction or a series of transactions)
of all or substantially all of the Company's assets (as that phrase is used in
the General Corporation Law of the State of Delaware).
(b) Claim: any threatened, pending or completed action, suit, proceeding
or alternative dispute resolution mechanism, or any inquiry, hearing or
investigation, whether conducted by the Company or any other party, that
Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or other.
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(c) D&O Insurance: the officers' and officers' liability insurance
issued by the insurer(s), and having the policy number(s), amount(s) and
deductible(s) set forth on Exhibit A hereto and any replacement or substitute
policies issued by one or more reputable insurers providing in all respects
coverage at least comparable to and in the same amount as that provided under
the policy or policies identified on Exhibit A.
(d) Expenses: include reasonable attorneys' fees, travel expenses, fees
of experts, transcript costs, filing fees, witness fees, telephone charges,
postage, delivery service fees, and all other expenses and obligations of any
nature whatsoever 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.
(e) Expense Advance: a payment to Indemnitee pursuant to Section 2(c) of
Expenses in advance of the settlement of or final judgment in any action, suit,
proceeding or alternative dispute resolution mechanism, hearing, inquiry or
investigation which constitutes a Claim.
(f) Indemnifiable Event: any event, occurrence or circumstance that
takes place either prior to or after the execution of this Agreement related to
the fact that 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, partner,
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 Indemnitee in any such capacity.
(g) Potential Change in Control: shall be deemed to have occurred if (i)
the Company enters into an agreement or arrangement, the consummation of which
would result in the occurrence of a Change in Control; (ii) any person
(including the Company) publicly announces an intention to take or consider
taking actions which if consummated would constitute a Change in Control; (iii)
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 10% or more of the combined voting power of the
Company's then outstanding Voting Securities, increases his beneficial ownership
of such securities by 5% or more over the percentage so owned by such person on
the date hereof; or (iv) the Board adopts a resolution to the effect that, for
purpose of this Agreement, a Potential Change in Control has occurred.
(h) Reviewing Party: any appropriate person or body consisting of a
member or members of the Board or any other person or body appointed by the
Board who is not a party to the particular Claim for which Indemnitee is seeking
indemnification, or Independent Legal Counsel.
(i) Independent Legal Counsel: shall refer to an attorney, selected in
accordance with the provisions of Section 3 hereof, who shall not have otherwise
performed services for the Company or Indemnitee within the last five years
(other than in connection with seeking
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indemnification under this Agreement). Independent Legal Counsel shall not be
any person who, under the applicable standards of professional conduct then
prevailing, would have conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement, nor shall Independent Legal Counsel be any person who has been
sanctioned or censured for ethical violations of applicable standards of
professional conduct.
(j) Voting Securities: any securities of the Company which vote
generally in the election of directors.
2. Basic Indemnification Agreement.
(a) In the event 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 Indemnitee to the fullest
extent permitted by law as soon as practicable but in any event no later than
thirty 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 and any federal, state, local or
foreign taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement (including the creation of the
trust referred to in Section 4 hereof). Notwithstanding anything in this
Agreement to the contrary and except as provided in Section 6, prior to a Change
in Control, Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with any Claim initiated by 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.
(b) Notwithstanding the foregoing, (i) the obligations of the Company
under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the
Independent Legal Counsel referred to in Section 3 hereof is involved) that
Indemnitee would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance pursuant to
Section 2(c) shall be subject to the condition that, if, when and to the extent
that the Reviewing Party determines that Indemnitee would not be permitted to be
so indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if Indemnitee has
commenced legal proceedings to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that Indemnitee shall not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial 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, the Reviewing
Party shall be selected by the Board, and if there has been such a Change in
Control, (other than a Change in Control which has been approved by a majority
of the Board who were
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directors immediately prior to such Change in Control) the Reviewing Party shall
be the Independent Legal Counsel referred to in Section 3 hereof. If there has
been no appointment or no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively would not be permitted
to be indemnified in whole or in part under applicable law, Indemnitee shall
have the right to commence litigation seeking an initial determination by the
court or challenging any such determination by the Reviewing Party or any aspect
thereof, or the legal or factual bases 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
Indemnitee.
(c) The Company, within two business days of a request by Indemnitee,
shall make Expense Advances for reasonable Expenses to Indemnitee. The parties
agree that for the purposes hereof all Expenses included in an Expense Advance
request that are certified by affidavit of Indemnitee's counsel as being
reasonable shall be presumed conclusively to be reasonable. Indemnitee's
obligation to reimburse the Company for Expense Advances shall be unsecured and
no interest shall be charged thereon.
3. Change in Control. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been approved
by a majority of the Board who were directors immediately prior to such Change
in Control) then Independent Legal Counsel shall be selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld) and
such Independent Legal Counsel shall determine whether the Indemnitee is
entitled to indemnity payments and Expense Advances under this Agreement or any
other agreement or Certificate of Incorporation or Bylaws of the Company now or
hereinafter in effect relating to Claims for Indemnifiable Events. Such
Independent Legal Counsel, among other things, shall render its written opinion
to the Company and Indemnitee as to whether and to what extent the Indemnitee
will be permitted to be indemnified. The Company agrees to pay the reasonable
fees of the Independent Legal Counsel and to indemnify fully such Independent
Legal Counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement.
4. Establishment of Trust. In the event of a Potential Change in
Control, the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written request of
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 the Reviewing Party, in any
case in which the Independent Legal 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 Indemnitee, (ii) the trustee shall advance, within two business days
of a request by Indemnitee, any and all Expenses to Indemnitee (and Indemnitee
hereby agrees to reimburse the trust under the circumstances under which
Indemnitee
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would be required to reimburse the Company under Section 2(b) of this Agreement,
(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
Indemnitee all amounts for which Indemnitee shall be entitled to indemnification
pursuant to this Agreement or otherwise, and (v) all unexpended funds in such
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 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 approved by the Company. Nothing in this Section 4 shall relieve
the Company of any of its obligations under this Agreement. All income earned on
the assets held in the trust shall be reported as income by the Company for
federal, state, local and foreign tax purposes.
5. Maintenance of D&O Insurance.
(a) The Company hereby represents and warrants that Exhibit A contains a
complete and accurate description of the policies of officers' and officers'
liability insurance maintained by the Company and that such policies are in full
force and effect.
(b) The Company hereby covenants and agrees that, so long as Indemnitee
shall continue to serve as an officer of the Company and thereafter for a period
of three years, the Company, subject to Section 5(d), shall maintain in full
force and effect D&O Insurance.
(c) In all policies of D&O Insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and benefits,
subject to the same limitation, as are accorded to the Company's officers or
officers most favorably insured by such policies.
(d) The Company shall have no obligation to maintain D&O Insurance if
the Company 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.
(e) Upon receipt by the Company of notice of a Claim, the Company shall
give prompt notice of the commencement of such Claim to its liability insurers
in accordance with the procedures set forth in the respective D&O Insurance
policies. The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such Claim in accordance with the terms of such policies.
6. Indemnification for Additional Expenses. To the fullest extent
permitted by law, the Company shall indemnify Indemnitee against any and all
Expenses (including attorneys' fees) and, if requested by Indemnitee, shall
(within two business days of such request) make Expense Advances to Indemnitee
for Expenses which are incurred by Indemnitee in connection with any claim
asserted against or in connection with any action brought by Indemnitee for (i)
indemnification or advance payment of Expenses by the Company under this
Agreement or any other agreement or Certificate of Incorporation or Bylaws of
the Company now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii) recovery under any director and
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officer liability insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be.
7. Partial Indemnity, Etc. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgment, fines, penalties and amounts paid in
settlement of a Claim but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits
otherwise in defense of any or 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, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
8. Defense to Indemnification, Burden of Proof and Presumptions. It
shall be a defense to any action brought by Indemnitee against the Company to
enforce this Agreement (other than an action brought to enforce a claim for
expenses incurred in defending a Claim in advance of its final disposition where
the required undertaking has been tendered to the Company) that Indemnitee has
not met the standards of conduct that make it permissible under the Delaware
General Corporation Law for the Company to indemnify Indemnitee for the amount
claimed. 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 Indemnitee is not
so entitled. Neither the failure of any Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct nor an actual determination by any Reviewing Party that Indemnitee has
not met such standard of conduct, prior to the commencement of legal proceedings
by Indemnitee to secure a judicial determination that Indemnitee should be
indemnified under the Agreement under applicable law, shall be a defense to
Indemnitee's claim or create a presumption that Indemnitee has not met any
particular standard of conduct. For purposes of this Agreement, 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 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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9. Non-exclusivity, Etc. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Certificate of
Incorporation or Bylaws of the Company or the Delaware General Corporation law
or otherwise. To the extent that a change in the Delaware General Corporation
Law (whether by stature or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Certificate of
Incorporation and Bylaws of the Company and this Agreement, it is the intent of
the parties hereto that 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 Indemnitee. In the event of any
change in any applicable law, statute or rule which narrows the right of a
Delaware corporation to indemnify a member of its board of directors or an
officer, employee, agent or fiduciary, such change, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or the parties' rights and obligations
hereunder.
10. 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 Indemnitee, Indemnitee's spouse, heirs, executors,
administrators or personal or legal representatives after the expiration of two
years from the date of accrual of such cause of action, and any claim or cause
of action of the Company or its affiliate shall be extinguished and deemed
released unless asserted by the timely filling of a legal action within such
two-year period; provided however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.
11. Amendments, Etc. No supplement, modification nor amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
12. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of 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.
13. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, Certificate of Incorporation or Bylaws of the
Company or otherwise) of the amounts otherwise indemnifiable hereunder.
14. Binding Effects, Etc. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, and personal and
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legal representatives. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all, or a substantial part, or the business and/or assets of
the Company, by written agreement in form and substance satisfactory to
indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as officer of the Company or
of any other enterprise at the Company's request.
15. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.
16. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including without limitations, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
17. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.
18. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day of , 2002.
VISTACARE, INC.
By:
-----------------------------
Title:
---------------------------
0000 X. Xxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
---------------------------------
[Director or Officer]
[Director's or Officer's address]
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EXHIBIT A
Schedule of Director and Officer Liability Insurance Policies
Name of Insurer Policy Number Coverage Amount Deductible
--------------- ------------- --------------- ----------
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