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EXHIBIT 10.8
INDEMNIFICATION AGREEMENT
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AGREEMENT, effective as of ____________, between Omnicare, Inc., a Delaware
corporation (the "Company"), and _______________ (the "Indemnitee"), a director
or officer, or both, of the Company.
WHEREAS, in recognition of Indemnitee's need for protection against
personal liability, in order to enhance Indemnitee's continued service to the
Company and Indemnitee's reliance on the provisions of the Company's Restated
Certificate of Incorporation requiring indemnification under certain
circumstances, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such certificate will be available,
the Company wishes to provide in this Agreement for the indemnification of
Indemnitee to the full extent permitted by law, including the advancement of
expenses prior to a final disposition.
NOW THEREFORE, in consideration of the premises and with the intention to
be legally bound hereby, the parties hereto agree as follows:
SECTION 1. RIGHT TO INDEMNIFICATION. The Company shall to the full extent
permitted by applicable law, as in effect at the time indemnification is sought,
indemnify Indemnitee in the event he or she becomes involved in any manner
(including, without limitation, as a party or a witness) or is threatened to be
made so involved in any threatened, pending or completed investigation, claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including without limitation, any action, suit or proceeding by
or in the right of the Company to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that he or she is or was a director or
officer of the Company
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or is or was serving, at the request of the Company, as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise (including, without limitation, any employee benefit
plan) against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or by her in
connection with such Proceeding. Such indemnification shall be a contract right
and shall include the right to receive payment of any expenses incurred by
Indemnitee, as provided in Section 3 hereof, in connection with such Proceeding
prior to a final disposition with respect to such Proceeding, consistent with
the provisions of applicable law as then in effect.
SECTION 2. INDEMNIFICATION; NOT EXCLUSIVE RIGHT. The right of
indemnification provided in this Agreement shall not be exclusive of any other
rights to which Indemnitee may otherwise be entitled under any provision of the
Company's Restated Certificate of Incorporation or By-Laws or pursuant to any
vote of Disinterested Directors (hereinafter defined), or otherwise, and the
provisions of this Agreement shall inure to the benefit of the heirs and legal
representatives of Indemnitee and shall be applicable to Proceedings commenced
or continuing after execution of this Agreement, whether arising from acts or
omissions occurring before or after its execution. All agreements and
obligations of the Company contained herein shall continue during the period
this Agreement is in effect and Indemnitee is a director or officer of the
Company (whether or not Indemnitee remains in the same capacity held at the time
this Agreement was executed) and shall continue thereafter so long as Indemnitee
shall be subject to any possible Proceeding by reason of the fact that
Indemnitee was a
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director or officer of the Company or served in any other capacity referred to
herein.
SECTION 3. ADVANCEMENT OF EXPENSES; PROCEDURES; PRESUMPTIONS AND EFFECT OF
CERTAIN PROCEEDINGS; REMEDIES. In furtherance but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Agreement:
(a) ADVANCEMENT OF EXPENSES. All expenses reasonably incurred by
or on behalf of Indemnitee in connection with any Proceeding shall be
advanced from time to time to Indemnitee by the Company within 20 days
after receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances, whether prior to or
after final disposition of such Proceeding. Such statement or
statements shall describe in reasonable detail the expenses incurred
by Indemnitee, shall be accompanied by reasonable evidence thereof
and, if required by law at the time of such advance, shall include or
be accompanied by an undertaking by or on behalf of Indemnitee to
repay the amount advanced if it ultimately should be determined that
Indemnitee is not entitled to be indemnified against such expenses
pursuant to this Agreement or otherwise.
(b) PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION. (i) To obtain indemnification under this Agreement,
Indemnitee shall submit to the Secretary of the Company a written
request, including such documentation and information as is reasonably
available to Indemnitee and reasonably necessary to determine whether
and to what extent Indemnitee is entitled to indemnification (the
"Supporting Documentation"). The determination of Indemnitee's
entitlement
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to indemnification shall be made not later than 60 days after receipt
by the Company of the written request for indemnification together
with the Supporting Documentation. The Secretary of the Company shall,
promptly upon receipt of such a request for indemnification, advise
the Board of Directors in writing that Indemnitee has requested
indemnification.
(ii) Indemnitee's entitlement to indemnification under this
Agreement shall be determined in one of the following ways: (A)
by a majority vote of the Disinterested Directors, if they
constitute a quorum of the Board of Directors; (B) by a written
opinion of Independent Counsel (as hereinafter defined) if (1) a
Change of Control (as hereinafter defined) shall have occurred
and Indemnitee so requests or (2) a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, a majority of such Disinterested
Directors so directs; (C) by the stockholders of the Company (but
only if a majority of the Disinterested Directors, if they
constitute a quorum of the Board of Directors, presents the issue
of entitlement to indemnification to the stockholders for their
determination); or (D) as provided in Section 3(c).
(iii) In the event that determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 3(b)(ii)(B), a majority of the Disinterested Directors
shall select Independent Counsel, but
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only an Independent Counsel to which Indemnitee does not
reasonably object; provided, however, that if a Change of Control
shall have occurred, Indemnitee shall select such Independent
Counsel, but only an Independent Counsel to which the Board of
Directors does not reasonably object.
(c) PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. Except
as otherwise expressly provided in this Agreement, Indemnitee
shall be presumed to be entitled to indemnification under this
Agreement upon submission of a request for indemnification
together with the Supporting Documentation in accordance with
Section 3(b)(i), and thereafter the Company shall have the burden
of proof to overcome that presumption in reaching a contrary
determination. In any event, if the person or persons empowered
under Section 3(b) to determine entitlement to indemnification
shall not have been appointed or shall not have made a
determination within 60 days after receipt by the Company of the
request therefore, together with the Supporting Documentation,
Indemnitee shall be entitled to such indemnification unless (A)
Indemnitee misrepresented or failed to disclose a material fact
in making the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by law.
The termination of any Proceeding described in Section 1, 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 Indemnitee to indemnification or create a presumption that
Indemnitee did not act in good faith or in a manner which he or
she reasonably believed to be in or not opposed to the best
interests of the
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Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his or her
conduct was unlawful.
(d) REMEDIES OF INDEMNITEE. (i) In the event that a
determination is made pursuant to Section 3(b) that Indemnitee is
not entitled to indemnification under this Agreement, (A)
Indemnitee shall be entitled to seek an adjudication of his or
her entitlement to such indemnification either, at Indemnitee's
sole option, in (1) an appropriate court of the State of Delaware
or in any other court of competent jurisdiction or (2) an
arbitration to be conducted by a single arbitrator pursuant to
the commercial arbitration rules of the American Arbitration
Association; (B) any such judicial proceeding or arbitration
shall be DE NOVO and Indemnitee shall not be prejudiced by reason
of such prior adverse determination; and (C) in any such judicial
proceeding or arbitration, the Company shall have the burden of
proving that Indemnitee is not entitled to indemnification under
this Agreement.
(ii) If a determination shall have been made or deemed
to have been made pursuant to Section 3(b) or (c) that
Indemnitee is entitled to indemnification, the Company shall
be obligated to pay the amounts constituting such
indemnification within five days after such determination
has been made, whether by action or inaction, and shall be
conclusively bound by such determination unless (A)
Indemnitee misrepresented or failed to disclose a material
fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is
prohibited by law.
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In the event that (C) advancement of expenses is not timely
made pursuant to Section 3(a) or (D) payment of
indemnification is not made within five days after a
determination of entitlement to indemnification has been
made, whether by action or inaction, pursuant to Section
3(b) or (c), Indemnitee shall be entitled to seek judicial
enforcement of the Company's obligation to pay to Indemnitee
such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Company may bring an
action, in an appropriate court in the State of Delaware or
in any other court of competent jurisdiction, contesting the
right of Indemnitee to receive indemnification hereunder due
to the occurrence of an event described in subclause (A) or
(B) of this clause (ii) (a "Disqualifying Event"); provided,
however, that in any such action the Company shall have the
burden of proving the occurrence of such Disqualifying
Event.
(iii) The Company shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to
this Section 3(d) that the procedures and presumptions of
this Agreement are not valid, binding and enforceable and
shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions
of this Agreement.
(iv) In the event that Indemnitee, pursuant to Section
3(c) or (d), seeks a judicial
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adjudication of, or an award in arbitration to enforce his
or her rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from
the Company, and shall be indemnified by the Company
against, any expenses actually and reasonably incurred by
him or by her if Indemnitee prevails in such judicial
adjudication or arbitration. If it shall be determined in
such judicial adjudication or arbitration that Indemnitee is
entitled to receive part but not all of the indemnification
or advancement of expenses sought, the expenses incurred by
Indemnitee in connection with such judicial adjudication or
arbitration shall be prorated accordingly.
(e) DEFINITIONS. For purposes of this Section 3: (i) "Change
in Control" means a change in control of the Company of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A promulgated under the Securities Exchange Act of
1934 (the "Act"), whether or not the Company is then subject to
such reporting requirement; provided that, without limitation,
such a change in control shall be deemed to have occurred if (A)
any "person" (as such term is used in Sections 13(d) and 14(d) of
the Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power
of the Company's then outstanding securities without the prior
approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such acquisition; (B)
the Company
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is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which
members of the Board of Directors in office immediately prior to
such transaction or event constitute less than a majority of the
Board of Directors thereafter; or (C) during any period of two
consecutive years, individuals who at the beginning of such
period constituted the Board of Directors (including for this
purpose any new director whose election or nomination for
election by the Company's stockholders was approved by a vote of
at least a majority of the directors then still in office who
were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board of
Directors.
(ii) "Disinterested Director" means a director of the
Company who is not or was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(iii) "Independent Counsel" means a law firm or a
member of a law firm that neither presently is, nor in the
past five years has been, retained to represent: (a) the
Company or Indemnitee in any matter material to either such
party or (b) any other party to the Proceeding giving rise
to a claim for indemnification under this Agreement.
Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing
under the law of the State of Delaware, would have a
conflict of interest in representing either the Company or
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Indemnitee in an action to determine Indemnitee's rights under this
Agreement.
SECTION 4. 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, all portions of any paragraph of
this Agreement containing any such provisions held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the full extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
SECTION 5. CANCELLATION. The Company may cancel the provisions of this
Agreement prospectively only upon 30 days' written notice to Indemnitee, in
order to afford Indemnitee an opportunity to resign as a director and/or officer
rather than continue to serve without the rights to indemnification provided
herein.
SECTION 6. AMENDMENTS 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 provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
SECTION 7. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such
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payment to all of the rights of recovery of Indemnitee, who shall execute all
papers required and shall do everything that may be necessary to secure such
right, including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
SECTION 8. NO DUPLICATION OF PAYMENT. The Company shall not be liable under
this Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, By-Law or otherwise) of the amounts otherwise
indemnifiable hereunder.
SECTION 9. INSURANCE. If at any time the Company's insurance coverage with
respect to directors and officers liability is amended with respect to, among
other things, exceptions to coverage, amount of coverage or deductible amounts
or if such coverage is cancelled, or lapses, the Company shall notify existing
directors and officers of the occurrence of the amendment, cancellation or lapse
within 30 days of any such occurrence.
SECTION 10. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws. Executed this _____ day of _______________.
Omnicare, Inc.
By:
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"Indemnitee" Xxxx X. Xxxxxxxx
President
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