Exhibit 10.73
FORM OF
DIRECTOR INDEMNIFICATION AGREEMENT
This Agreement, dated as of _____________, ____, is entered into
between Andrx Corporation, a corporation organized under the laws of the State
of Delaware (the "Company"), and _______________ (the "Director").
RECITALS
A. Highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors or as executive officers unless they are
provided with adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising out of their
service to, and activities on behalf of, the corporation.
B. The current impracticability of obtaining adequate insurance and the
uncertainties relating to indemnification have increased the difficulty of
attracting and retaining such persons.
C. The Bylaws of the Company presently provide, among other things,
that the Company shall indemnify its directors and officers to the full extent
permitted by law.
D. The Board of Directors of the Company (the "Board") has determined
that the difficulty in attracting and retaining highly competent persons is
detrimental to the best interests of the Company's stockholders and that the
Company should act to assure such persons that there will be increased certainty
of protection against risks of such claims and actions against them in the
future.
E. It is reasonable, prudent, and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified.
F. The Director is willing to serve or continue to serve as a director
of the Company on the condition that the Director be so indemnified.
AGREEMENT
In consideration of the recitals and the covenants contained herein,
the Company and the Director covenant and agree as follows:
1. DEFINITIONS. As used in this Agreement the following terms shall
have the meanings indicated below:
(a) A "Change of Control" shall be deemed to have occurred if
(A) any "Person" (as that term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), but excluding the Company and any
of its wholly-owned subsidiaries, is or becomes (except in a transaction
approved in advance by the Board) the beneficial owner (as defined in Rule 13d-3
under such Act), directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined voting power of the
Company's then outstanding securities or (B) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board cease for any reason to constitute at least a majority thereof unless
the election, or the nomination for election by the Company's stockholders, of
each new director was approved by a vote of at least two-thirds of the directors
still in office who were directors at the beginning of the period, or (C) the
stockholders of the Company should approve any one of the following
transactions: (x) any consolidation or merger of the Company in which the
Company is not the surviving corporation, other than a merger of the Company in
which the holders of the Company's common stock immediately prior to the merger
have the same proportionate ownership of the surviving corporation immediately
after the merger; or (y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
the assets of the Company.
(b) "Expenses" shall refer to all disbursements, costs or
expenses of any nature reasonably incurred by the Director directly or
indirectly in connection with any Indemnified Event, or Witness Liabilities,
including, but not limited to, fees and disbursements of counsel, accountants or
other experts employed by the Director in connection with any Indemnified Event,
including all such expenses, disbursements and costs of investigation in
connection with or prior to the initiation of any Proceeding relating to an
Indemnified Event.
(c) "Final Disposition" shall refer to any judgment, order or
award rendered in any Proceeding after the expiration of all rights of appeal.
(d) "Indemnification Amount" shall refer to the amount of
losses, claims, demands, costs, damages, liabilities (joint and several),
judgments, fines (including any excise tax assessed with respect to an employee
benefit plan), settlements, and other amounts (including Witness Liabilities),
including interest on any of the foregoing, which the Director is liable to pay
or has paid in connection with an Indemnified Event and amounts proposed to be
paid in settlement by the Director in connection with any Indemnified Event.
(e) "Indemnified Event" shall mean any claim asserted against
the Director, whether civil, criminal, administrative or investigative in
nature, for monetary or other relief; or any Proceeding to which the Director is
named as a party or is a subject of or witness in, or with respect to which he
or she is threatened to be named as a party, subject or witness, brought against
the Director by reason of his or her serving or acting in any Indemnified
Position or arising or allegedly arising directly or indirectly out of, or
otherwise relating to, any action, omission, occurrence or event involving the
Director in any
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Indemnified Position, including any Proceeding, formal or informal or otherwise,
conducted or brought by the Securities and Exchange Commission or other
governmental agency, or The National Association of Securities Dealers, Inc., a
national stock exchange or similar organization.
(f) "Indemnified Position" shall refer to any position held by
the Director, or pursuant to which the Director acts, as an officer, director,
employee, partner, trustee, fiduciary, administrator or agent of the Company or
a Related Party.
(g) "Indemnify" or "Indemnification" shall refer to the
obligation of the Company herein to pay Expenses or Indemnification Amounts.
(h) "Proceeding" shall mean any pending, threatened or
completed action, suit, investigation, inquiry, arbitration, alternative dispute
resolution mechanism or any other proceeding (or any appeals therefrom), whether
civil, criminal, administrative or investigative in nature and whether in a
court or arbitration, or before or involving a governmental, administrative or
private entity (including, but not limited to, an investigation initiated by the
Company, any Related Party or any affiliate thereof, or the board of directors,
fiduciaries or partners of any thereof).
(i) "Related Party" shall refer to (i) any other corporation
in which the Company has an equity interest of at least fifty percent (50%) and
(ii) any other corporation or any limited liability company, partnership, joint
venture, trust, employee benefit plan or any other enterprise or association in
which the Director has served in any Indemnified Position, at the request of the
Company or for the convenience of the Company or to represent the Company's
interest. Any entity or plan described in Section l(a)(ii) in which the Company
has any interest or which is established in whole or in part for the benefit of
the Company or any other Related Party or the Company or Related Party's
employees shall be presumed to be a Related Party.
(j) "Witness Liabilities" shall mean all Indemnification
Amounts incurred by the Director in connection with his or her preparation to
serve or service as a witness in any Proceeding in any way relating to the
Company, any Related Party or any affiliate (as defined in Rule 405 under the
Securities Act of 1933, as amended) of any of them (a "Securities Act
Affiliate"), any associate (as defined in such Rule 405) of any of them or of
any Securities Act Affiliate, or any Indemnified Event (including, but not
limited to, the investigation, defense or appeal in connection with any such
Proceeding).
2. SERVICES TO THE COMPANY. The Director will serve, and/or continue to
serve, as a director of the Company, so long as he or she is duly elected and
qualified in accordance with the provisions of the Certificate of Incorporation
and Bylaws of the Company, or in any other Indemnified Position, at the will of
the Company (or under separate contract, if any); provided that the Director may
at any time and for any reason resign from such Indemnified Position (subject to
any contractual obligations which the
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Director shall have assumed apart from this Agreement) but the obligations
provided for herein shall continue after such termination.
3. INDEMNITY. The Company hereby agrees to indemnify the Director and
hold the Director harmless to the full extent permitted or authorized by the
provisions of current Delaware legislation (including Section 145 of the
Delaware General Corporation Law) or future Delaware legislation or, if broader
indemnification is available, by current or future judicial or administrative
decisions (but, in the case of any such future legislation or decisions, only to
the extent that it permits the Company to provide broader indemnification rights
than permitted prior to such legislation or decisions), and such Indemnification
shall be made unless prohibited by Delaware law. Without limiting the generality
of the foregoing, the Company agrees to indemnify the Director and hold the
Director harmless from and against, and pay any and all, Expenses and
Indemnification Amounts, including Witness Liabilities.
Notwithstanding the foregoing, except with respect to the
indemnification specified in the second and third sentences of Section 7 or in
Section 10 or Section 13(b) of this Agreement, the Company shall indemnify the
Director in connection with a Proceeding (or part thereof) initiated by the
Director only if authorization for the Proceeding (or part thereof) was not
denied by the Board prior to the earlier of (i) sixty (60) days after receipt of
notice thereof from the Director and (ii) a Change of Control.
4. PAYMENT OF EXPENSES. The Company shall advance all Expenses within
thirty (30) days after the receipt by the Company of a statement or statements
from the Director requesting such advance payment or payments from time to time.
Such statement or statements shall identify the nature and amount of the
Expenses to be advanced with reasonable specificity. The Director agrees to
repay any Expenses advanced if it shall ultimately be determined (which shall
only be made after the Final Disposition of the Proceeding related to an
Indemnified Event, as hereinafter provided) that the Director was not entitled
to reimbursement of Expenses in connection with the Indemnified Event for which
such Expenses were made.
5. INTERVAL PROTECTION. During the interval between the Company's
receipt of the Director's request for indemnification or advances and the latest
to occur of (a) payment in full to the Director of the indemnification or
advances to which he or she is entitled hereunder, or (b) a final adjudication
that the Director is not entitled to indemnification hereunder, the Company
shall provide "Interval Protection" which, for purposes of this Agreement, shall
mean the taking of the necessary steps (whether or not such steps require
expenditures to be made by the Company at that time) to stay, pending a final
determination of the Director's entitlement to indemnification (and, if the
Director is so entitled, the payment thereof), the execution, enforcement or
collection of any Indemnified Amount or Expenses or any other amounts for which
the Director may be liable (and as to which the Director has requested
indemnification hereunder) in order to avoid the Director's being or becoming in
default with respect to any such amounts (such necessary steps to include, but
not be limited to, the procurement of a surety bond to achieve such stay or the
loan to the
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Director (unsecured and with interest payable at the prime rate) of amounts
necessary to satisfy the Indemnified Amount or Expenses or other amounts for
which the Director may be liable and as to which a stay of execution as
aforesaid cannot be obtained, the Company by executing this Agreement having
made the judgment that, in general, such loan or similar assistance may
reasonably be expected to benefit the Company), within three days after receipt
of the Director's written request therefor, together with a written undertaking
by the Director to repay, no later than one hundred twenty (120) days following
receipt of a statement therefor from the Company, amounts (if any) expended by
the Company for such purpose, if it is ultimately determined in a final
adjudication that the Director is not entitled to be indemnified against such
Indemnified Amounts or Expenses or other amounts.
6. INDEMNIFICATION BY COURT. Notwithstanding any other provision of
this Agreement including without limitation the fourth sentence of Section 7,
indemnification and advances shall also be made to the extent a Delaware Court
of Chancery, or another court of competent jurisdiction, or the court in which a
Proceeding was brought, shall determine that the Director, in view of all the
circumstances of the case, is fairly and reasonably entitled to indemnification
and/or advances for such Expenses as such court shall deem proper.
7. INDEMNIFICATION PROCEDURE. Any Indemnification or advance under this
Agreement (other than Interval Protection) shall be made promptly and in any
event within thirty (30) days upon the written request of the Director delivered
to the Company. The right to Indemnification or advances as granted under this
Agreement shall be enforceable by the Director in any court of competent
jurisdiction if the Company denies such request, in whole or in part, or if no
disposition thereof is made within thirty (30) days. The Director's costs and
expenses incurred in connection with successfully establishing his or her right
to indemnification or advances, in whole or in part, in any such action shall
also be indemnified by the Company. It shall be a defense to any such action
that there has been a judgment or other final adjudication adverse to the
Director which established that the Director failed to meet the standard of
conduct, if any, required for indemnification by current legislation or, if
applicable in accordance with Section 3 hereof, future legislation or current or
future judicial or administrative decisions, but the burden of proving such
defense shall be on the Company. Neither the failure of the Company (including
the Board or any committee thereof, its independent counsel and its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the Director is proper in the circumstances
because he or she has met the applicable standard of conduct described in the
preceding sentence, if any, nor the fact that there has been an actual
determination by the Company (including the Board or any committee thereof, its
independent counsel and its stockholders) that the Director has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
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8. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) The Director shall be presumed entitled to Indemnification
hereunder unless clearly not entitled to such Indemnification by clear and
convincing proof that such payment shall be unlawful.
(b) If the Company shall not have responded to the Director's
request for Indemnification pursuant to Section 7 hereof within thirty (30) days
after receipt by the Company of such request therefor, the Director shall be
deemed to be entitled to such Indemnification.
(c) The termination of any Proceeding relating to an
Indemnified Event or of any claim, issue, or matter therein by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent,
shall not of itself adversely affect the right of the Director to
Indemnification or create a presumption that the Director did not meet any
applicable standard of conduct.
(d) Notwithstanding any other provision of this Agreement, the
Director shall in no event be required to repay any Expense payments advanced to
the Director and no defense can or shall be raised by the Company to a request
for Indemnification pursuant to Section 7 to the extent the Director has been
successful on the merits or otherwise in defense of any Proceeding related to an
Indemnified Event, or in defense of any claim, issue or matter involved in any
Indemnified Event therein, whether as a result of the initial adjudication or on
appeal or the abandonment thereof by a party.
9. NON-EXCLUSIVITY; DURATION OF AGREEMENT; INSURANCE; SUBROGATION.
(a) The rights of Indemnification and to receive advancement
of Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which the Director may at any time be entitled under applicable
law, the Certificate of Incorporation, the Bylaws, any other agreement, or any
vote or consent of directors or stockholders or otherwise.
(b) This Agreement shall continue until and terminate upon the
later of: (i) ten (10) years after the date that the Director shall have ceased
to serve in any Indemnified Position; or (ii) the Final Disposition of all
Indemnified Events.
(c) This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of the Director and his or
her heirs, devisees, executors, and administrators or other legal
representatives.
(d) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors or executive
officers of the Company or for any person serving in any other Indemnified
Position, the Director shall be covered by such policy or policies in accordance
with its or their terms to the maximum extent of the
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coverage available for any such director or executive officer or person serving
in such position under such policy or policies.
10. PROCEEDINGS.
(a) The parties hereto agree that except as otherwise provided
for herein, any disputes arising with respect to the interpretation or
enforcement of any provision hereof shall be submitted, at the sole election of
the Director, either to arbitration or to judicial determination. Any
arbitration shall be conducted in Broward County, Florida in accordance with the
then existing rules of the American Arbitration Association ("AAA"). In any
arbitration pursuant to this Agreement, the award or decision shall be rendered
by a majority of the members of an arbitration panel consisting of three members
chosen in accordance with the then existing rules of the AAA. The award or
decision of the arbitration panel pursuant to this Section 10 shall be binding
and conclusive on the parties, provided that enforcement of such award or
decision may be obtained in any court having jurisdiction over the party against
whom such enforcement is sought. The Company hereby agrees to bear all fees,
costs and expenses imposed by the AAA, in connection with the arbitration,
irrespective of the determination thereof. The provisions of Section 10(c) shall
govern with respect to the proceedings referred to therein.
(b) In the event that, for any reason, the Company fails to
pay any Indemnification or advance demanded, or the Company requests repayment
of any Expenses advanced, the Director shall nevertheless be entitled, at his or
her sole option, to a final judicial determination or may seek arbitration of
his or her entitlement to Indemnification hereunder in respect of such claim. In
the event the Director seeks a judicial determination, the Director shall
commence an action in a court located in Broward County, Florida. In the event
the Director seeks an award in arbitration, (i) such arbitration shall be
conducted in Broward County, Florida pursuant to Section 10(a), and (ii) the
arbitrator shall notify the parties of his or her decision within sixty (60)
days following the initiation of such arbitration (or such other period
proscribed by the rules of AAA). The Company further agrees that its execution
of this Agreement shall constitute a stipulation by which it shall be bound in
any court or arbitration in which such proceeding shall have been commenced,
continued or appealed that (i) it shall not oppose the Director's right to seek
any such adjudication or award in arbitration or any other claim by reason of
any prior determination made by the Company with respect to the Director's right
to Indemnification under this Agreement on such claim or any other claim, or,
except in good faith, raise any objections not specifically relating to the
merits of the Director's claim; and (ii) for purposes of this Agreement any such
adjudication or arbitration shall be conducted DE NOVO and without prejudice by
reason of any prior determination that the Director is not entitled to
Indemnification.
(c) Whether or not the court or arbitrators shall determine
that the Director is entitled to payment of Indemnification Amounts or has to
return the payment of Expenses or otherwise finds against the Director, the
Company shall within thirty (30) days after written request therefor (and
submission of reasonable evidence of the nature and
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amount thereof), and unless there is a specific judicial finding that the
Director's suit or arbitration was frivolous, pay all Expenses incurred by the
Director in connection with such adjudication or arbitration (including, but not
limited to, any appellate proceedings).
11. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal, or unenforceable for any reason
whatsoever: (a) the validity, legality, and enforceability of the remaining
provisions of this Agreement (including without limitation, each portion of any
Section, paragraph or clause of this Agreement containing any such provision
held to be invalid, illegal, or unenforceable, that is not itself invalid,
illegal, or unenforceable) shall not in any way be affected or impaired thereby;
and (b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section, paragraph or clause
of this Agreement containing any such provision held to be invalid, illegal, or
unenforceable, that is not itself invalid, illegal, or unenforceable) shall be
deemed revised, and shall be construed, so as to give effect to the intent
manifested by this Agreement (including the provision held invalid, illegal, or
unenforceable).
12. MERGER OR CONSOLIDATION OF THE COMPANY. In the event that the
Company shall be a constituent corporation in a consolidation or merger, whether
or not the Company is the resulting or surviving corporation, the Director shall
stand in the same position under this Agreement with respect to the Company if
its separate existence had continued.
13. ENFORCEMENT.
(a) The Company unconditionally and irrevocably stipulates and
agrees that its execution of this Agreement shall also constitute a stipulation
by which it shall be bound in any court or arbitration in which a proceeding by
the Director for enforcement of his or her rights shall have been commenced,
continued or appealed, that the obligations of the Company set forth herein are
unique and special, and that failure of the Company to comply with the
provisions of this Agreement will cause irreparable and irremediable injury to
the Director, for which a remedy at law will be inadequate. As a result, in
addition to any other right or remedy he or she may have at law or in equity
with respect to a violation of this Agreement, the Director shall be entitled to
injunctive or mandatory relief directing specific performance by the Company of
its obligations under this Agreement.
(b) In the event that the Director is subject to or intervenes
in any legal action in which the validity or enforceability of this Agreement is
at issue or institutes any legal action, for specific performance or otherwise,
to enforce his or her rights under, or to recover damages for breach of, this
Agreement, the Director shall, within thirty (30) days after written request to
the Company therefor (and submission of reasonable evidence of the amount
thereof), and unless there is a specific judicial finding that the Director's
suit was frivolous, be indemnified by the Company against all Expenses incurred
by him or her in connection therewith.
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14. NOTIFICATION AND DEFENSE OF CLAIM. The Director agrees to promptly
notify the Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding involving an Indemnification Event; provided, however, that the
failure of the Director to give such notice to the Company shall not adversely
affect the Director's rights under this Agreement except to the extent the
Company shall have been materially prejudiced by such failure. Nothing in this
Agreement shall constitute a waiver of the Company's right to seek
participation, at its own expense, in any Proceeding which may give rise to
Indemnification hereunder.
15. HEADINGS. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
16. MODIFICATION AND WAIVER. No supplement, modification, or 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 provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
17. NOTICES. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand, or sent via telecopy or facsimile transmission, in each case
receipted for by the party to whom said notice or other communication shall have
been directed or transmitted, or (ii) mailed by certified or registered mail
with postage prepaid, on the third business day after the date on which it is so
mailed, or (iii) delivered by overnight courier service:
(a) If to the Director, then to:
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(b) If to the Company, then to:
Andrx Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx,
Executive Vice President
and General Counsel
or to such other address as may have been furnished to either party by the other
party.
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18. ENTIRE AGREEMENT. All prior and contemporaneous agreements and
understandings between the parties with respect to the subject matter of this
Agreement are superseded by this Agreement, and this Agreement constitutes the
entire understanding between the parties. This Agreement may not be modified,
amended, changed or discharged except by a writing signed by the parties hereto,
and then only to the extent therein set forth.
19. NONASSIGNMENT. This Agreement may not be assigned by either of the
parties hereto.
20. GOVERNING LAW. This Agreement, including its validity,
interpretation and effect, and the relationship of the parties shall be governed
by, and construed in accordance with, the laws of the State of Florida.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first above written.
ANDRX CORPORATION
By:
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Name:
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Title:
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DIRECTOR
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