EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered into
as of ________________, 199___, by and between ProxyMed, Inc. a Florida
corporation (the ____ "Company") and ________________________________ (the
"Indemnitee").
RECITALS:
WHEREAS, the Board of Directors of the Company (the "Board of Directors")
has reviewed and analyzed the protection from liability available to Directors
and Officers of the Company and its subsidiaries under the Company's existing
corporate documents, applicable law and liability insurance; and
WHEREAS, the Board of Directors has determined that the risks of
litigation and possible liability for Directors and Officers arising out of the
performance of their duties have substantially increased, and that the
protection offered by the Company's existing corporate documents, applicable
law, and liability insurance is not sufficient to fully protect Directors and
Officers from liability; and
WHEREAS, the Board of Directors has determined that highly competent
persons will be difficult to attract and retain as Directors and/or Officers
unless the are adequately protected against liabilities incurred in performance
of their duties in such capacity; and
WHEREAS, the Board of Directors has determined that the use of
indemnification agreements will allow the Company to offer some protection from
liability to its Directors and Officers; and
WHEREAS, the Indemnitee is a Director and/or Officer of the Company; and
WHEREAS, Article VII of the Company Articles of Incorporation and
Article VII of the Company's Bylaws provide for indemnification of Directors
and Officers acting on behalf of the Company; and
WHEREAS, SSC607.0850(7) of the Florida Business Corporation Act (the
"Statute") specifically provides that the indemnification provided by the
Statute is not exclusive;
NOW THEREFORE, in consideration of the Indemnitee's past and continued
services to the Company, the mutual agreements and covenants contained herein,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. INDEMNIFICATION. The Company agree to indemnify the Indemnitee to the
fullest extent now or hereafter permitted by applicable law (including, without
limitation, the indemnification permitted by the Statute) in the event that the
Indemnitee was or is made or is threatened to be made a party to or a witness in
any threatened, pending or completed action, suit, proceeding or appeal, whether
civil, criminal, administrative or investigative, by reason of the fact that the
Indemnitee was or is a Director and/or Officer of the Company or any of its
subsidiaries, both as to action in his official capacity and as to action in
another capacity while holding such directorship or office, where he acts or
acted in that capacity at the Company's request, against all reasonable expenses
(including attorneys' fees and disbursements) judgments, fines (including excise
taxes and penalties) and amounts paid in settlement actually and reasonably
incurred by the Indemnitee in connection with such action, suit, proceeding or
appeal. This Agreement is intended to cover all actions, suits, proceedings and
appeals arising out of or connected with the Indemnitee's service as a Director
and/or Officer which are currently pending or threatened or which arise in the
future, even if the Indemnitee is no longer a Director and/or Officer when such
action, suite, proceeding or appeal arises or is threatened.
2. ADVANCE PAYMENT OF EXPENSES. Expenses incurred by the Indemnitee in
connection with any action, suit, proceeding or appeal, as described herein,
shall be paid by the Company in advance of the final disposition of such action,
suit, proceeding or appeal within thirty (30) days of Company's receipt of any
invoice for reasonable and actual expenses incurred by Indemnitee;
provided however, Indemnitee has within ten (10) days after the Company's
request, executed a written agreement satisfactory to the Company's counsel to
repay all such amounts it if is ultimately determined that he is not entitled to
be indemnified by the Company under applicable law. Notwithstanding the
foregoing, the Company shall not be required to advance expenses for the defense
of Indemnitee for any cause of action that relate to activities that the Company
in its good faith determines are outside the scope of the duties required of
Indemnitee under this Agreement, including without limitation, causes of action
such as sexual harassment, personal torts and the like.
3. CHANGES IN THE LAW; PARTIAL INDEMNIFICATION.
a. In the event of any changes after the date of this Agreement in any
applicable law, statute or rule (including judicial interpretation thereof)
which expand the right of the Company to indemnify its Directors and Officers,
the Indemnitee's rights and the Company's obligations under this Agreement shall
be expanded to include such changes in applicable law, statute or rule. In the
event of any changes in any applicable law, statute or rule (including judicial
interpretation thereof) which narrow the right of the Company to indemnify its
Directors and Officers, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement, shall have no effect
on this Agreement or the parties' rights and obligations hereunder.
b. The indemnification provided by this Agreement shall not be deemed
exclusive of any rights to which the Indemnitee may be entitled under the
Company's Articles of Incorporation, its Bylaws, any agreement, any vote of
shareholders or Directors, applicable law or otherwise, both as to action in the
Indemnitee's official capacity and as to action in another capacity while
holding such directorship or office, where he acts or acted in that capacity at
the Company's request.
c. If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the expenses, judgments,
fines or penalties actually or reasonable incurred by the Indemnitee in the
preparation, investigation defense, appeal or settlement of any civil or
criminal action, suit, proceeding or appeal, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify the Indemnitee for the
portion of such expenses, judgments, fines or penalties to which the Indemnitee
is entitled.
4. CONTRIBUTION. If the indemnification provided in Paragraph 1 hereof may
not be paid to the Indemnitee under applicable law, then in any threatened,
pending or completed action, suit, proceeding or appeal in which the Company is
jointly liable with the Indemnitee, the Company shall contribute to the amount
of reasonable expenses (including attorneys' fees and disbursements), judgments,
fines (including expense taxes and penalties) and amounts paid in settlement
actually and reasonably incurred and paid or payable by the Indemnitee in such
proportion as is appropriate to reflect (a) the relative benefits received by
the Company on the one hand and the Indemnitee on the other hand from the
transaction from which such action, suit, proceeding or appeal arise, and (b)
the relative fault of the Company on the one hand and of the Indemnitee on the
other in connection with the events which resulted in such expenses, judgments,
fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Indemnitee on the other shall be determined by reference to, among other things,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts. The Company agrees that it would not be just and
equitable if contribution pursuant to this Paragraph 4 were determined by pro
rata allocation or any other method of allocation which does not take account of
the foregoing equitable considerations.
5. EXCLUSIONS.
a. The Company shall not be liable to make any payment hereunder (whether
in the nature of indemnification or contribution) to the extent payment is
actually made to the Indemnitee under an insurance policy (an "Insurance
Policy") or any other method outside of this Agreement. Before payment is
reasonable expended to be made under an Insurance Policy or such other method,
if the Indemnitee is required to pay any amount that the Company would otherwise
be obligated to pay except for the exclusion in this Subparagraph (a), the
Company shall promptly advance the amount the Indemnitee is required to pay for
which the Company is liable hereunder. In the event that the Company makes any
advance to the Indemnitee under this Subparagraph (1), the Indemnitee shall
promptly execute an assignment, if a form satisfactory to the Company's counsel,
under which the funds the Indemnitee later receives under such Insurance Policy
or such other method are assigned to the Company in an amount not to exceed the
amount which the Company advanced pursuant to this Subparagraph (a).
b. The Company shall not be liable hereunder for any amounts paid in
settlement of a proceedings effected without its prior written consent, which
shall not be unreasonably withheld.
6. TERM. All obligations of the Company contained herein shall continue
during the period the Indemnitee is a Director and/or Officer of the Company and
shall continue thereafter (a) until both parties agree in writing to terminate
this Agreement, or (b) as long as the Indemnitee remains subject to any possible
claim or threatened, pending or completed action, suit, proceeding or appeal,
whether civil, criminal, administrative or investigative, arising out of the
Indemnitee's service as a Director or Officer or in any other capacity in which
he served at the Company's request while a Director of Officer.
7. ENFORCEMENT. In the event the Indemnitee is required to bring any action
to enforce rights or to collect funds due under this Agreement and is successful
in such action, the Company shall reimburse the Indemnitee for all of the
Indemnitee's reasonable expenses (including
attorneys' fees and disbursements) in bringing and pursuing such action. The
burden of proving that indemnification or advances are not reasonable shall be
on the Company.
8. OBLIGATIONS OF THE INDEMNITEE.
a. Promptly after receipt by the Indemnitee of notice of the commencement
of any action, suit, proceeding or appeal in which the Indemnitee is made or is
threatened to be made a part or a witness, the Indemnitee shall notify the
Company in writing of the commencement of such action, suit, proceeding or
appeal, but the Indemnitee's failure to notify the Company shall not relieve the
Company from any obligation to indemnify or advance expenses to the Indemnitee
under this Agreement, except to the extent such delay in providing notice has
caused actual damages to the Company through prejudice to the Company's rights
or its ability to defend the action, suit, proceeding or appeal.
b. The Indemnitee shall reimburse the Company for all or an appropriate
portion of the expenses advanced to the Indemnitee pursuant to Paragraph 2
hereof if it is finally judicially adjudicated that the Indemnitee is not
entitled to be indemnified, or not entitled to be fully indemnified because of
indemnification in the particular circumstances is not permitted under
applicable law.
would impose on the Company any penalty, constraint, or obligation to hold
harmless or indemnify the Indemnitee pursuant to this Agreement without the
Company's prior written consent, which shall not be unreasonably withheld.
9. DEFENSE OF CLAIM.
a. Except as otherwise provided below, in the case of any action, suit,
proceeding or appeal commenced against the Indemnitee, the Company shall be
entitled to participate therein at its own expense and, to the extent that it
may wish, to assume the defense thereof. If the Company wishes to assume the
defense of any action, suit, proceeding or appeal hereunder, the Company
must give written notice to the Indemnitee of such assumption of defense and of
its choice of counsel. Such choice of counsel must be approved in writing by the
Indemnitee in his sole discretion, which will not be unreasonably withheld,
before the Company's assumption of defense hereunder may proceed. After notice
from the Company to Indemnitee of its election to assume the defense of any
action, suit, proceeding or appeal and the Indemnitee's approval of the
Company's choice of counsel, the Company shall not be obligated to the
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by the Indemnitee in connection with the defense thereof other than
reasonable costs of investigation, travel and lodging expenses arising out of
the Indemnitee's participation in such action, suit, proceeding or appeal,
except as otherwise provided herein. The Indemnitee shall have the right to
employ the Indemnitee's own counsel in such action, suit, proceeding or appeal,
but the fees and expenses of such counsel incurred after notice from the Company
to the Indemnitee of its assumption of the defense thereof shall be a the
Indemnitee's expense (i) unless the employment of such counsel has been
requested by the Indemnitee and authorized in writing by the Company, or (ii)
unless the Company shall not have employed counsel to assume the defense of such
action, suit, proceeding or appeal, in which case the reasonable fees and
expenses of the Indemnitee's counsel shall be at the expense of the Company, or
(iii) unless counsel for the Indemnitee shall have concluded that there may be a
conflict or interest between the Company and the Indemnitee in the defense of
such action, suit, proceeding or appeal; and (iv) except for reasonable costs
and expenses for counsel for Indemnitee to monitor proceedings (provided,
however, that such counsel for will not appear as counsel of record in any such
proceeding).
b. In the event that counsel for the Indemnitee concludes that there may
be a conflict of interest between the Company and the Indemnitee in the defense
of an action, suit, proceeding or appeal, (i) the Company shall not have the
right to assume and direct the defense of such action, suit, proceeding or
appeal on behalf of the Indemnitee, and (ii) the Company shall indemnify the
Indemnitee for all reasonable legal fees and other reasonable expenses, but the
Company shall not be liable for any settlement or negotiated disposition of such
action, suit, proceeding or appeal or any part thereof effected without the
written consent of the Company, which shall not be unreasonably withheld.
10. SEVERABILITY. In any provision of this Company shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
11. NOTICES. Any notices or other communications required or desired
hereunder shall be written and shall be given by (a) certified mail, return
receipt requested, (b) overnight courier service, or (c) personal delivery. Such
notice or communication shall be deemed to be given upon receipt or on the date
of courier or personal delivery, as applicable, and shall be given at the
following addresses:
the Company: ProxyMed, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Chief Legal Officer
Indemnitee: ______________________________
______________________________
______________________________
______________________________
or to such other address as either party may specify by written notice to the
other party.
12. MISCELLANEOUS.
a. This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida.
b. This Agreement shall be binding upon the Indemnitee, his heirs,
personal representatives and permitted assigns, and upon the Company, its
successors and assigns. This Agreement shall inure to the benefit of the
Indemnitee, his heirs, personal representatives and permitted assigns,
and to the benefit of the Company, its successors and assigns. No assignment of
this Agreement or of any duty or obligation hereunder shall be made by the
Indemnitee without the prior written consent of the Company, which shall not be
unreasonably withheld.
c. This Agreement supersedes any other oral or written agreements between
the Company and the Indemnitee which would restrict or lessen any of the rights
granted to the Indemnitee hereunder.
d. No amendment, modification, termination or claimed waiver of any of
the provisions hereof shall be valid unless in writing and signed by the party
or an authorized representative of the party against whom such modification is
sought to be enforced.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
PROXYMED, INC.
By:_______________________________________
Xxxxx X. Xxxxxxx, Executive Vice President
Chief Legal Officer and Secretary
[INDEMNITEE]
__________________________________________
