EXHIBIT 10-L
INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
This Indemnification and Hold Harmless Agreement ("Agreement"), dated
as of September 30, 1997, is entered into by and between Bindley Western
Industries, Inc., an Indiana corporation ("BWI") and Priority Healthcare
Corporation, an Indiana corporation ("PHC").
RECITALS
WHEREAS, as of the date of this Agreement, PHC is a wholly-owned
subsidiary of BWI; and
WHEREAS, in connection with a proposed public offering by PHC of its
common stock and a contemplated spinoff of PHC by BWI at a later date, PHC and
BWI have determined that PHC should be treated as an entity separate and apart
from BWI; and
WHEREAS, effective as of September 13, 1993, BWI executed a Guaranty
in favor of Amgen, Inc., a Delaware corporation (the "Guaranty"), in which BWI
guaranteed certain obligations and indebtedness of PHC and Xxxxxxx Xxxxxxx,
Ltd., Inc. to Amgen, Inc.; and
WHEREAS, BWI entered into an Asset Purchase Agreement dated as of
February 26, 1993, by and between BWI, Xxxxxxx Xxxxxxx, Ltd., Inc., Xxxxxx X.
Xxxxxx and Xxxxxxxx X. Xxxxxx (the "Xxxxxxx Xxxxxxx Agreement"), pursuant to
which BWI agreed to certain indemnification and other obligations; and
WHEREAS, BWI entered into an Asset Purchase Agreement dated as of
October 5, 1993, by and between BWI, PRN Medical, Inc. and Xxxxxxx Xxxxx (the
"PRN Medical Agreement"), pursuant to which BWI agreed to certain
indemnification and other obligations; and
WHEREAS, BWI entered into a Plan and Agreement of Merger, dated as of
October 31, 1994, by and between BWI, PHC, 3C Medical, Inc. and Xxxxxx XxXxxxxxx
(the "3C Medical Agreement"), pursuant to which BWI agreed to certain
indemnification and other obligations; and
WHEREAS, BWI entered into a Stock Purchase Agreement dated February
24, 1995, by and among BWI, PHC, Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxx, relating to the purchase of the common stock of IV-1, Inc.
(the "IV-1 Agreement"), pursuant to which BWI agreed to certain indemnification
and other obligations; and
WHEREAS, PHC entered into an Asset Acquisition Agreement dated August
6, 1997, by and between PHC and Grove Way Pharmacy Corporation (the "Grove Way
Agreement"), pursuant to which PHC agreed to certain indemnification and other
obligations; and
WHEREAS, a lawsuit has been filed by Xx. Xxxxxx Xxxxx in the Xxxxxxxx
County, Indiana Superior Court against BWI and one of its subsidiaries (Xxxxxx
X. Xxxxx, M.D. vs. Bindley Western Industries, Inc., and National Infusion
Services, Inc., Cause No. 29D01-9610-CP483) (the "Xxxxx Lawsuit"), which
includes allegations that could possibly involve PHC; and
WHEREAS, each of BWI and PHC desire to indemnify and hold harmless the
other party from and against certain of such obligations and/or liabilities;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties to this Agreement hereby agree as
follows:
Section 1. Indemnification by PHC. PHC, for itself, its successors
and its assigns, does hereby agree to indemnify and hold harmless BWI and its
direct subsidiaries other than PHC from and against any and all claims, losses,
liabilities, costs, damages, demands, charges and expenses (including without
limitation legal and other professional fees) which they might incur or which
may be charged against them in any way based upon, connected with or arising out
of the Guaranty, the Xxxxxxx Xxxxxxx Agreement, the PRN Medical Agreement, the
3C Medical Agreement, the IV-1 Agreement and the Grove Way Agreement.
Section 2. Indemnification by BWI. BWI, for itself, its successors
and its assigns, does hereby agree to indemnify and hold harmless PHC and its
subsidiaries from and against any and all claims, losses, liabilities, costs,
damages, demands, charges and expenses (including without limitation legal and
other professional fees) which they might incur or which may be charged against
them in any way based upon, connected with or arising out of the Xxxxx Lawsuit.
Section 3. Notice of Claims. The party seeking indemnification under
any provision of this Agreement (the "Indemnified Party") shall notify the party
against whom indemnification is sought (the "Indemnifying Party") in writing of
any claim for indemnification, specifying in detail the basis of such claim, the
facts pertaining thereto and, if known, the amount, or an estimate of the
amount, of the liability arising therefrom; provided however, that failure to
give such notice shall not affect the indemnification provided hereunder except
to the extent the Indemnifying Party can demonstrate actual monetary prejudice
as a direct or indirect result of such failure. The Indemnified Party shall
provide to the Indemnifying Party as promptly as practicable thereafter all
information and documentation necessary to support and verify the claim asserted
and the Indemnifying Party shall be given reasonable access to all books and
records in the possession or control of the Indemnified Party or any of its
affiliates which the Indemnifying Party reasonably determines to be related to
such claim.
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Section 4. Defense. If the facts giving rise to a right to
indemnification arise out of the claim of any third party, or if there is any
claim against a third party, the Indemnifying Party may assume the defense or
the prosecution thereof, including the employment of counsel, at its cost and
expense. The Indemnified Party shall have the right to employ counsel separate
from counsel employed by the Indemnifying Party in any such action and to
participate therein, but the fees and expenses of such counsel employed by the
Indemnified Party shall be at its expense. The Indemnifying Party shall not be
liable for any settlement of any such claim effected without its prior written
consent which consent shall not be unreasonably withheld.
Section 5. Applicable Law. This Agreement shall be construed under
the laws of the State of Indiana and the rights and obligations of the parties
shall be determined under the substantive law of Indiana, without giving effect
to Indiana's conflict of law rules or principles.
Section 6. Notices. All notices and other communications hereunder
shall be in writing and shall be effective and deemed to have been properly
given when it is (i) mailed postage prepaid, by certified first class mail,
return receipt requested, addressed to a party and received by such party; (ii)
hand or courier delivered; or (iii) sent by telecopy with receipt confirmed, as
follows:
(a) If to BWI to:
Bindley Western Industries, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: President
(b) If to PHC to:
Priority Healthcare Corporation
000 Xxxx Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: President
Any party may from time to time designate another address to which notice or
other communication shall be addressed or delivered to such party and such new
designation shall be effective on the later of (i) the date specified in the
notice or (ii) receipt of such notice by the intended recipient.
Section 7. Assignability. Neither party hereto shall assign this
Agreement in whole or in part without the prior written consent of the other
party hereto, which consent shall not be unreasonably withheld.
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Section 8. Severability. If any term or condition of this Agreement
shall be held invalid in any respect, such invalidity shall not affect the
validity of any other term or condition hereof.
Section 9. Amendment or Modification. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties, or in the case of a waiver, by the party waiving compliance.
Section 10. Construction. Descriptive headings to sections are for
convenience only and shall not control or affect the meaning or construction of
any provisions of this Agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties as of the date first
written above.
BINDLEY WESTERN INDUSTRIES, INC.
By: /s/ Xxxxxxx X. XxXxxxxxx
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Xxxxxxx X. XxXxxxxxx
Executive Vice President
PRIORITY HEALTHCARE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
President and Chief Executive Officer
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