INDEMNIFICATION AGREEMENT
Exhibit 10(a)
THIS AGREEMENT is made and entered into this day of , , between Cerner
Corporation, a Delaware corporation (“Corporation”), and (“Indemnitee”).
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.
Exhibit 10(a)
(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 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.
(1) 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 director liability insurance purchased and maintained by or on behalf of Indemnitee by
the Corporation, or (iv) otherwise than pursuant to this Agreement;
(2) 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;
(3) 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;
(4) on account of Indemnitee’s conduct which is finally adjudged by a court to have been
knowingly fraudulent, deliberately dishonest or willful misconduct; or
(5) if a final adjudication by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful.
(c) Notwithstanding any other provisions of this Agreement, if the Indemnitee is or was
serving as a director of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of any Other Enterprise, and has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred
to in Section 3 of this Agreement (including the dismissal of any such action, suit or
proceeding without prejudice), or in defense of any claim, issue or matter therein, he/she
shall be indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by him/her in connection therewith to the extent he/she has not been fully
indemnified therefor otherwise than pursuant to this Agreement.
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Exhibit 10(a)
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, counselor 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.
(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 so 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 his/her 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 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 |
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Exhibit 10(a)
(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. |
9. Continuation and Enforcement of Indemnification.
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Exhibit 10(a)
(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 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 of the Corporation and such rights shall continue after Indemnitee has ceased to be a director 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). |
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Exhibit 10(a)
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 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.
CERNER CORPORATION, a Delaware corporation |
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[SEAL] |
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ATTEST: |
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