INDEMNIFICATION AGREEMENT
Exhibit 99.1
THIS
AGREEMENT is made and entered into this ___ day of ___, 20___, between Cerner Corporation,
a Delaware corporation (“Corporation”), and [Director or Executive Officer Name] (“Indemnitee”).
WITNESSETH:
WHEREAS, Indemnitee is a member of the board of directors or a Section 16 Officer (“Executive
Officer”) of the Corporation and as such is performing a valuable service for the Corporation; and
WHEREAS, although Indemnitee has certain rights to indemnification under the Bylaws and
Certificate of Incorporation of the Corporation, such Bylaws and Certificate of Incorporation
specifically provide that they are not exclusive and thereby contemplate that the Corporation may
enter into agreements with its officers and directors; and
WHEREAS, the Corporation and Indemnitee desire to enter into this Agreement to provide to
Indemnitee additional rights to indemnification in consideration of Indemnitee’s acceptance of
his/her position with and his/her continued service to the Corporation as a director or an
Executive Officer;
NOW, THEREFORE, in consideration of Indemnitee’s acceptance of his/her position with and
his/her continued service as a director or an Executive Officer of the Corporation after the date
hereof and for and in consideration of the premises and the covenants contained herein, the
Corporation and Indemnitee do hereby promise and agree as follows:
1. Indemnification. The Corporation hereby agrees to hold harmless and indemnify Indemnitee
to the fullest extent permitted by Section 145, Title 8 of the Delaware Code, as in effect on the
date of the execution of this Agreement and as it may hereafter be amended, or any other statutory
provision permitting or authorizing such indemnification which is adopted subsequent to the
execution of this Agreement.
2. Maintenance of Insurance. So long as Indemnitee shall continue to serve as a director or
an Executive Officer of the Corporation (or shall continue at the request of the Corporation or on
behalf of the Corporation to serve as a director, officer, employee or agent to any Other
Enterprise) and thereafter so long as Indemnitee shall be subject to any possible claim or is a
party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, investigative or appellate by reason of the
fact that Indemnitee is or was a director or an Executive Officer of the Corporation (or is or was
serving in any of said other capacities at the request of the Corporation), the Corporation may
maintain Director & Officer (D&O) liability insurance if such insurance becomes reasonably
available and if, in the business judgment of the board of directors of the Corporation as it may
exist from time to time, both (i) the premium cost for such insurance is reasonable, and (ii) the
coverage provided by such insurance is not so limited by exclusions that there is insufficient
benefit provided by such D&O liability insurance.
3. Additional Indemnification. Subject only to the provisions in Sections 4, 5, 6 and 7 of
this Agreement, the Corporation hereby further agrees to hold harmless and indemnify Indemnitee:
(a) Against any and all liabilities and expenses, including without limitation,
judgments, amounts paid in settlement (provided that such settlement and all amounts paid in
connection therewith are approved in advance by the Corporation, which approval shall not be
unreasonably withheld), attorneys’ fees, ERISA excise taxes or penalties, fines and other
expenses actually and reasonably incurred by Indemnitee in connection with any threatened,
pending or completed action, suit or proceeding (including without limitation the
investigation, defense, settlement or appeal of such action, suit or proceeding), whether
civil, criminal, administrative, investigative or appellate (including an action by or in
the right of the Corporation) to which Indemnitee is, was or at any time becomes a party, or
is threatened to be made a party, by reason of the fact that Indemnitee is, was or at any
time becomes a director or an Executive Officer of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, agent or employee of any Other
Enterprise; and
(b) Otherwise to the fullest extent as may be provided to Indemnitee by the Corporation
pursuant to the non-exclusivity provisions of paragraph 28 of the Corporation’s Bylaws and
subsection (f) of Section 145, Title 8 of the Delaware Code relating to indemnification.
(c) The termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal proceeding, had reasonable cause to believe that Indemnitee’s conduct was
unlawful.
4. Limitations on Additional Indemnification. (a) The Corporation will not hold Indemnitee
harmless or provide indemnification pursuant to Section 3 hereof:
(a) except to the extent that the aggregate amount of losses to be indemnified
thereunder exceeds the amount of such losses for which Indemnitee is indemnified either
pursuant to (i) the Corporation’s Certificate of Incorporation, Bylaws, vote of stockholders
or disinterested directors or other agreement, (ii) Sections 1 or 2 hereof, (iii) pursuant
to any D&O liability insurance purchased and maintained by or on behalf of Indemnitee by the
Corporation, or (iv) otherwise than pursuant to this Agreement;
(b) in respect of remuneration paid to Indemnitee if it shall be determined by a final
judgment or other final adjudication that such remuneration was in violation of law;
(c) on account of any suit for an accounting of profits made from the purchase or sale
by Indemnitee of securities of the Corporation pursuant to Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or
local law;
(d) on account of Indemnitee’s conduct which is finally adjudged by a court to have
been knowingly fraudulent, deliberately dishonest or willful misconduct; or
(e) if a final adjudication by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
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Notwithstanding any other provisions of this Agreement, in the case of any proceeding by or in the
right of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee
is or was a director or Executive Officer of the Corporation, or is or was serving at the
Corporation’s request as a director, officer, employee or agent of any Other Enterprise, no
indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Corporation unless, and only to the extent that, the
Delaware Court of Chancery or the court in which such proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem proper.
5. Advancement of Expenses. Expenses (including attorneys’ fees) actually and reasonably
incurred by an Indemnitee who may be entitled to indemnification hereunder 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 such Indemnitee to repay such amount if it shall
ultimately be determined that the Indemnitee 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, such Indemnitee acted in bad faith and in a manner that such
Indemnitee did not believe to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal proceeding, that such Indemnitee believed or had reasonable cause to
believe his/her conduct was unlawful. In no event shall any advance be made in instances where the
board, stockholders or independent legal counsel reasonably determines that such Indemnitee
deliberately breached his/her duty to the Corporation or its stockholders.
6. Notification and Defense of Claim. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee will, if a claim in respect thereof is
to be made against the Corporation under this Agreement, notify the Corporation of the commencement
thereof; but the omission to notify the Corporation will not relieve it from any liability which it
may have to Indemnitee otherwise than under this Agreement. With respect to any such action, suit
or proceeding as to which Indemnitee notifies the Corporation of the commencement thereof:
| (a) | The Corporation will be entitled to participate therein 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 thereof, with counsel satisfactory to Indemnitee. After notice from the Corporation to Indemnitee of its election to assume the defense thereof, the Corporation will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ its own counsel in such action, suit or proceeding 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 |
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| Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the Corporation, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnitee in the conduct of the defense of such action, or (iii) the Corporation 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 the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall have made the conclusion provided for in (ii) above; and |
| (c) | The Corporation shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without its prior written consent. The Corporation shall not settle any action or claim in any manner which would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Corporation nor Indemnitee will unreasonably withhold their consent to any proposed settlement. |
7. Determination of Right to Indemnification. Prior to indemnifying an Indemnitee pursuant to
this Agreement, unless ordered by a court, the Corporation shall determine that such Indemnitee is
entitled thereto under the terms of this Agreement. Any determination that a person shall or shall
not be indemnified under this Agreement shall be made by the board of directors by a majority vote
of a quorum consisting of directors who were not parties to the action, suit or proceeding, or if
such 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 by the stockholders, and such
determination shall be final and binding upon the Corporation; provided, however, that in the event
such determination is adverse to the Indemnitee, such Indemnitee shall have the right to maintain
an action in any court of competent jurisdiction against the Corporation to determine whether or
not such Indemnitee is entitled to such indemnification hereunder. If such court action is
successful and the Indemnitee is determined to be entitled to such indemnification, such Indemnitee
shall be reimbursed by the Corporation for all fees and expenses (including attorneys’ fees)
actually and reasonably incurred in connection with any such action (including without limitation
the investigation, defense, settlement or appeal of such action). This Agreement shall be
applicable to any claim asserted after the date hereof whether such claim arises from acts or
omissions occurring before or after the date hereof.
8. Certain Definitions. For purposes of this Agreement, references to “Other Enterprise”
shall include without limitation any other corporation, partnership, joint venture, trust or
employee benefit plan; references to “fine” or “fines” shall include any excise taxes assessed on
Indemnitee with respect to any employee benefit plan; references to “defense” shall include
investigations of any action, suit or proceeding as well as appeals in any threatened, pending or
completed action, suit or proceeding and shall also include any defensive assertion of a cross
claim or counterclaim; and references to “serving at the request of the Corporation” shall include
any service as a director or Executive Officer of the Corporation which imposes duties on, or
involves services by, Indemnitee with respect to an employee benefit plan, its participants or
beneficiaries; and if Indemnitee acted in good faith and in a manner he/she reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit plan he/she shall
be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as
referred to in this Agreement. For the purpose of this Agreement, unless the board of directors of
the Corporation shall determine otherwise, any Indemnitee who shall serve as an officer or director
of any Other Enterprise of which the Corporation, directly or indirectly, is a stockholder or
creditor, or in which
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the Corporation is in any way interested, shall be presumed to be serving as such director or
officer at the request of the Corporation. In all other instances where any Indemnitee shall serve
as a director, officer, employee or agent of an Other Enterprise, if it is not otherwise
established that such Indemnitee is or was serving as such director, officer, employee or agent at
the request of the Corporation, the board of directors of the Corporation shall determine whether
such Indemnitee is or was serving at the request of the Corporation, and it shall not be necessary
to show any actual or prior request for such service, which determination shall be final and
binding on the Corporation and the Indemnitee seeking indemnification.
9. Continuation and Enforcement of Indemnification.
| (a) | The Corporation expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on the Corporation hereby in order to induce Indemnitee to continue as a director or Executive Officer of the Corporation and acknowledges that Indemnitee is relying upon this Agreement in continuing in such capacity. The rights to indemnification and advancement of expenses created by or provided pursuant to this Agreement are bargained-for conditions of Indemnitee’s acceptance and/or maintenance of his/her election or appointment as a director or Executive Officer of the Corporation and such rights shall continue after Indemnitee has ceased to be a director or Executive Officer of the Corporation or a director, officer, employee or agent of any Other Enterprise and shall inure to the benefit of Indemnitee’s heirs, executors, administrators and estate. | ||
| (b) | Indemnitee expressly confirms and agrees that under no circumstances shall the language or any of the promises and covenants contained in this Agreement be construed or interpreted as creating a contract of employment. | ||
| (c) | To the fullest extent permitted by the laws of the State of Delaware, Indemnitee shall have the right to maintain an action in any court of competent jurisdiction to enforce and/or recover damages for breach of the rights to indemnification created by or provided pursuant to the terms of this Agreement. If such court action is successful, Indemnitee shall be reimbursed by the Corporation for all fees and expenses (including attorneys’ fees) actually and reasonably incurred in connection with such action (including without limitation the investigation, defense, settlement or appeal of such action). |
10. Non-Exclusivity. The right to indemnification pursuant to this Agreement shall not be
deemed exclusive of any other rights of indemnification to which Indemnitee may be entitled under
any statute, other agreement, the Certificate of Incorporation, Bylaws, pursuant to a vote of
stockholders or disinterested directors, insurance policy or otherwise, both as to actions in
his/her official capacity and as to action in another capacity while holding his/her directorship
or Executive Officer position, and shall not limit in any way any right the Corporation may have to
create additional or independent or supplementary obligations to indemnify Indemnitee.
11. Severability. Each of the provisions of this Agreement is a separate and distinct
agreement independent of the others, and if any provision of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid, illegal or unenforceable by a
court for any reason whatsoever, the remaining provisions of this Agreement and the application of
such provision to other persons or circumstances shall not be affected thereby. The parties hereto
expressly agree that any provision hereof held invalid, illegal or unenforceable shall be construed
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and modified by the court finding such provision invalid, illegal or unenforceable to the
extent necessary so as to render such provision valid and enforceable as against all persons or
entities and to provide the maximum possible protection to the person subject to indemnification
hereunder within the bounds of validity, legality and enforceability. Without limiting the
generality of the foregoing, if the Indemnitee is entitled to indemnification under this Agreement
by the Corporation for some or a portion of the judgments, amounts paid in settlement, attorneys’
fees, ERISA excise taxes or penalties, fines or other expenses actually and reasonably incurred by
the Indemnitee in connection with any threatened, pending or completed action, suit or proceeding
(including without limitation, the investigation, defense, settlement or appeal of such action,
suit or proceeding), whether civil, criminal, administrative, investigative or appellate, but not,
however, for all of the total amount thereof, the Corporation shall nevertheless indemnify the
Indemnitee for the portion thereof to which such person is entitled.
12. Governing Law. This Agreement shall be governed, interpreted and construed in accordance
with the laws of the State of Delaware without regard to any of its conflict of law rules.
13. Modification; Survival. This Agreement constitutes the entire agreement of the parties
relating to the subject matter hereof and no amendment, modification, termination or cancellation
of this Agreement shall be effective unless in writing signed by both parties hereto. The
provisions of this Agreement shall survive the termination of Indemnitee’s service as a director
and/or Executive Officer of the Corporation with respect to actions, suits or proceedings brought
or instituted in respect of any action taken or the failure to take any action occurring prior to
such termination of service.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement and affixed their
signatures hereto as of the date first above written.
| [Name], Indemnitee | ||||
| CERNER CORPORATION, a Delaware corporation |
||||
| Xxxx X. Xxxxxxxx, Executive Vice President | ||||
| & Chief Financial Officer | ||||
| [SEAL] ATTEST: |
||||
| Xxxxx X. Xxxx, Secretary | ||||
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