EXHIBIT 10.10
AGREEMENT
This Agreement, dated as of December _____, 1996, but effective as of
______________, 19____, is by and between MedicalControl, Inc., a Delaware
corporation ("MedicalControl"), and ______________________ ("Director").
WHEREAS, MedicalControl desires to have qualified Directors serving on its
Board of Directors who are willing to make decisions that in their judgment are
in MedicalControl's best interest without any undue threat of personal
liability;
WHEREAS, the Amended and Restated Certificate of Incorporation of
MedicalControl ("Certificate of Incorporation") and MedicalControl's Amended and
Restated Bylaws ("Bylaws") require indemnification of each Director or officer
of MedicalControl in his capacity as a Director or officer against any and all
liability and reasonable expense that may be incurred by him in connection with
or resulting from any threatened, pending or completed action, claim, suit or
proceeding, whether civil, criminal, administrative or investigative
(collectively, a "Proceeding"), to the fullest extent permitted by the Delaware
General Corporation Law ("Act"), as the same exists or may be hereafter amended;
WHEREAS, MedicalControl desires to grant to Director the maximum
indemnification for any Loss (hereinafter defined) permitted by the Certificate
of Incorporation and Bylaws;
WHEREAS, developments with respect to the terms and availability of
Directors' and officers' liability insurance and with respect to the
application, amendment and enforcement of statutory, charter and bylaw
indemnification provisions generally have raised questions concerning the
adequacy and reliability of the protection afforded to persons intended to be
protected thereunder; and
WHEREAS, in order to resolve such questions and thereby induce Director to
consent to serve, to serve, and to continue serving as a Director of
MedicalControl, MedicalControl has agreed to enter into this Agreement with
Director;
NOW, THEREFORE, in consideration of the forgoing recitals and of the mutual
covenants set forth below, and certain other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Indemnity of Director. MedicalControl shall indemnify Director in his
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capacity as director of MedicalControl against any and all liability and
reasonable expense that may be incurred by Director in connection with or
resulting from (a) any Proceeding, (b) an appeal in such a Proceeding or (c)
any inquiry or investigation that could lead to such a Proceeding, all to the
fullest extent permitted by Section 145 of the Act.
2. Continuation of Indemnity. All agreements and obligations of
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MedicalControl contained herein shall continue during the period Director is a
director of MedicalControl, shall be retroactive to the effective date of this
Agreement, covering all periods of service from time to time, and shall continue
thereafter so long as Director shall be subject to any possible claim or
threatened, pending or completed Proceeding any appeal in a Proceeding and any
inquiry or investigation that could lead to a Proceeding, by reason of the fact
that Director was serving or had consented to serve, in any capacity referred to
herein.
3. Notification and Defense of Claim. Promptly after receipt by
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Director of notice of any claim against Director or the commencement of any
Proceeding, Director will, if a claim in respect thereof is to be made against
MedicalControl under this Agreement, notify MedicalControl of the assertion of
any such claim or the commencement thereof; but the omission to so notify
MedicalControl will not relieve it from any liability under this Agreement
unless such delay in notification actually prejudiced MedicalControl (and then
only to the extent MedicalControl was actually prejudiced thereby). With
respect of any such Proceeding as to which Director notifies MedicalControl of
the commencement thereof the following shall apply:
(a) MedicalControl will be entitled to participate therein at its own
expense;
(b) Except as otherwise provided below, to the extent that it may wish,
MedicalControl jointly with any other indemnifying party similarly notified will
be entitled to assume the defense thereof, with counsel satisfactory to
Director. After notice from MedicalControl to Director of its election to
assume the defense thereof, MedicalControl will not be liable to Director under
this Agreement for any legal or other expenses subsequently incurred by Director
in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Director shall have the right to
employ his own counsel in such Proceeding, but the fees and expenses of such
counsel incurred after notice from MedicalControl of its assumption of the
defense thereof shall be at the expense of Director unless (i) the employment of
counsel by Director has been authorized by MedicalControl, (ii) Director shall
have reasonably concluded that there may be a conflict of interest between
MedicalControl and Director in the conduct of the defense of such action, or
(iii) MedicalControl shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of counsel
shall be at the expense of MedicalControl. MedicalControl shall not be entitled
to assume the defense of any Proceeding brought by or on behalf of
MedicalControl or as to which Director shall have made the conclusion provided
for in (ii) above.
(c) MedicalControl shall not be liable to indemnify Director under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. MedicalControl shall not settle any action or
claim in any manner which would impose any penalty or limitation on Director
without Director's written consent. Neither MedicalControl nor Director will
unreasonably withhold their consent to any proposed settlement.
4. Advances of Expenses. Reasonable expenses (other than judgments,
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penalties, fines and settlements) incurred by Director that are subject to
indemnification under this Agreement (and not paid, reimbursed or advanced by
others) shall be paid or reimbursed by MedicalControl in advance of the final
disposition of the Proceeding within 30 days after MedicalControl receives a
written request by Director accompanied by substantiating documentation of such
expenses, a written affirmation by Director of his good faith belief that he has
met the standard of conduct necessary for indemnification under this Agreement
and a written undertaking by or on behalf of Director to repay the amount paid
or reimbursed if it is ultimately determined that he has not met those standards
or that such reasonable expenses do not constitute a Loss. The written
undertaking described above must be an unlimited general obligation of Director
but need not be secured.
5. Right of Director to Indemnification Upon Application: Procedure Upon
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Application. Upon the written request of Director to be indemnified pursuant
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to this Agreement (other than pursuant to Section 4 hereto), MedicalControl
shall cause the Reviewing Party (hereinafter defined) to determine, within 45
days, whether or not the Director has met the relevant standards for
indemnification required by this Agreement. The termination of a Proceeding by
judgment, order, settlement or conviction, or on a plea of nolo contendere or
its equivalent, shall not of itself create a presumption that Director did not
meet the requirements for indemnification required by this Agreement. If a
determination of indemnification is to be made by Independent Legal Counsel
(hereinafter defined), such Independent Legal Counsel shall render its written
opinion to MedicalControl and Director as to what extent Director will be
permitted to be indemnified. MedicalControl shall pay the reasonable fees of
Independent Legal Counsel.
6. Definitions. The terms defined in this Section 6 shall, for purposes
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of this Agreement, have the indicated meanings:
(a) "Loss" shall mean any and all judgments, penalties (including excise
and similar taxes), fines, settlements and reasonable expenses (including
attorneys' fees) actually incurred by Director, after realization of or giving
effect to all insurance, bonding, indemnification and other payments or
recoveries (i) actually received by or for the benefit of Director, directly or
indirectly, or (ii) to which Director is entitled, directly or indirectly.
(b) "Reviewing Party" means (i) a majority of a quorum of Directors, who at
the time of voting upon a determination of indemnification are neither officers
or employees of MedicalControl or members of the immediate family or an officer
or employee of MedicalControl ("Interested Parties") nor parties to that
particular Proceeding to which Director is seeking indemnification; or (ii)
Independent Legal Counsel selected by a majority of a quorum of Directors who at
the time of selecting such Independent Legal Counsel are neither interested
parties nor parties to that particular Proceeding to which Director is seeking
indemnification, or if such a quorum cannot be obtained, by a majority vote of a
committee of the Board of Directors of MedicalControl designated to select such
Independent Legal Counsel by a majority vote of all Directors of MedicalControl,
consisting solely of two or more Directors who at the time of such selection are
neither interested persons nor parties in that particular Proceeding to which
Director is seeking indemnification, or if such a quorum cannot be obtained and
such a committee cannot be established, by a majority vote of all Directors of
MedicalControl.
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(c) "Independent Legal Counsel" shall mean an attorney, selected in
accordance with the provisions of Section 6(b) hereof, who shall not have
otherwise performed services for Director, MedicalControl, any person that
controls MedicalControl or any of the Directors of MedicalControl, within five
years preceding the time of such selection (other than in connection with
seeking indemnification under this Agreement). Independent Legal Counsel shall
not be any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either
MedicalControl or Director in an action to determine Director'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.
(d) "Voting Securities" shall mean any securities of MedicalControl which
are voted generally in the election of Directors.
7. Repayment of Expenses. Director shall reimburse MedicalControl for
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all reasonable expenses paid by MedicalControl in defending any Proceeding
against Director in the event and only to the extent that it shall be ultimately
determined that Director is not entitled to be indemnified by MedicalControl for
such expenses under the provisions of this Agreement.
8. Consideration. MedicalControl expressly confirms and agrees that it
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has entered into this Agreement and assumed the obligations imposed on
MedicalControl hereby in order to induce Director to consent to serve, to serve
and to continue serving as a Director, and acknowledge that Director is relying
upon this Agreement in consenting to serve and serving in such capacity.
9. Insurance. MedicalControl hereby agrees to purchase and maintain for
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the benefit and on behalf of the Director insurance against any liability
asserted against the Director and incurred by the Director in his capacity as a
Director of MedicalControl or arising out of his status as a Director of
MedicalControl, without regard to the power of MedicalControl to indemnify the
Director against any such liability under the Act.
10. Confidentiality. The Director shall have and observe a fiduciary
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duty and duty of confidentiality with respect to the affairs of MedicalControl
to the extent required by the Act and Delaware law.
11. Indemnification Hereunder Not Exclusive. The indemnification and
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advancement of expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which Director may be entitled under any other agreement,
as a matter of law, or otherwise, but the indemnification provided for pursuant
to the Certificate of Incorporation or Bylaws of MedicalControl is limited to
any Loss.
12. Subrogation. If a payment is made under this Agreement,
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MedicalControl shall be surrogated to the extent of such payment to all of the
rights of recovery of such Director, who shall execute all papers required and
shall do everything that may be necessary to secure such rights.
13. Severability. Each of the provisions of this Agreement is a separate
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and distinct agreement and independent of the others, so that if any provision
thereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforeceability shall not affect the validity or enforceability
of the other provisions hereto.
14. Notice. Any notice, consent, or other communication to be given
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under this Agreement by any party to any other party shall be in writing and
shall be either (a) personally delivered, (b) mailed by registered or certified
mail, postage prepaid with return receipt requested, (c) delivered by overnight
express delivery service or same-day local courier service or (d) delivered by
telex or facsimile transmission to address set forth beneath the signature of
the parties below, or at such other address as may be designated by the parties
from time to time in accordance with this Section. Notices delivered
personally, by overnight express delivery service or by local courier service
shall be deemed given as of actual receipt. Mailed notices shall be deemed
given three business days after mailing. Notices delivered by telex or
facsimile transmission shall be deemed given upon receipt by the sender of the
answerback (in the case of the telex) or trasnsmission confirmation (in the case
of a facsimile transmission).
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15. Governing Law; Binding Effect; Amendment and Termination;
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Reimbursement.
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(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Delaware.
(b) This Agreement shall be binding upon Director and upon MedicalControl,
its successors, and assigns, and shall inure to the benefit of Director, his
heirs, executors, administrators, personal representatives, and assigns and to
the benefit of MedicalControl, 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) If Director is required to bring any action to enforce rights or to
collect moneys due under this Agreement and is successful in such action,
MedicalControl shall reimburse Director for all of Director's reasonable fees
and expenses in bringing and pursuing such action.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written, but effective for all purposes as of
__________________, 1996.
MedicalControl, Inc.
By:
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X. Xxxx Xxxx,
President and Chief Executive Officer
Address of MedicalControl, Inc.:
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
Director:
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Address of Director:
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