INDEMNIFICATION AGREEMENT
Exhibit 10.1
INDEMNIFICATION AGREEMENT (this “Agreement”) dated as of January [ ], 2008, between MATRIA
HEALTHCARE, INC., a Delaware corporation (the “Company”), and [ ], a member of the Board of
Directors of the Company (“Indemnitee”).
W I T N E S S E T H:
WHEREAS, the Company is contemplating entering into an Agreement and Plan of Merger with
[ ] (the “Acquiror”) whereby the Acquiror shall acquire all of the issued and outstanding
capital stock of the Company at a price of $[ ] per share (the “Acquisition”);
WHEREAS, both the Company and the Indemnitee recognize the increased risk of litigation and
other claims being asserted against directors of public companies in today’s environment;
WHEREAS, the Company’s Certificate of Incorporation requires the Company to indemnify its
directors as set forth therein and expressly authorizes the Company to enter into agreements with
its directors for the purpose of providing for such indemnification, and the Indemnitee has agreed
to serve as a director of the Company in part in reliance on such provisions;
WHEREAS, in recognition of the Indemnitee’s need for substantial protection against personal
liability in order to enhance the Indemnitee’s continued service to the Company in an effective
manner, the difficulty of finding adequate director and officer liability insurance coverage and
the Indemnitee’s reliance on the aforesaid provisions in the Company’s Certificate of
Incorporation, and, in part to provide the Indemnitee with specific contractual assurance that the
protection promised by such provisions will be available to the Indemnitee (regardless of, among
other things, the consummation of the Acquisition, any amendment to or revocation of such
provisions of the Certificate of Incorporation, future financial difficulties of the Company, any
change in the composition of the Company’s board of directors or the occurrence of any other
acquisition transaction relating to the Company); and
WHEREAS, the Company wishes to provide in this Agreement for the effective indemnification of
and the advancing of expenses to the Indemnitee as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the Indemnitee agreeing to continue to
serve as a member of the Company’s Board of Directors, and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this Agreement:
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(a) Change in Control: shall be deemed to have occurred if (i) any “person” (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other
than a trustee or other fiduciary holding securities under an employee benefit plan of the Company
or a corporation owned directly or indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the
Company representing twenty-five percent (25%) or more of the total voting power represented by the
Company’s then outstanding Voting Securities, or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to constitute a majority
thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the surviving entity) at
least fifty percent (50%) of the total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of transactions) all
or substantially all the Company’s assets.
(b) Claim: means any threatened, asserted, pending or completed action, suit or
proceeding, or appeal thereof, or any inquiry or investigation, whether instituted by the Company
or any governmental agency or any other party, that Indemnitee in good faith believes might lead to
the institution of any such action, suit or proceeding, whether civil, criminal, administrative,
investigative or other, including any arbitration or other alternative dispute resolution
mechanism.
(c) Expenses: include attorneys’ fees and all other costs, charges, expenses and
obligations (including, without limitation, experts’ fees, court costs, retainers, transcript fees,
duplicating, printing and binding costs, as well as telecommunications, postage and courier
charges) paid or incurred in connection with investigating, defending, being a witness in or
participating in, or preparing to investigate, defend, be a witness in or participate in, any Claim
relating to any Indemnifiable Event.
(d) Indemnifiable Amounts: means any and all Expenses, liabilities, losses, damages,
judgments, fines, penalties, excise taxes and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect of such
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Expenses, judgments, fines, penalties, excise taxes (including ERISA excise taxes) or amounts paid
in settlement) arising out of or resulting from any Claim relating to an Indemnifiable Event.
(e) Indemnifiable Event: means any event or occurrence, whether occurring before, on
or after the date of this Agreement, related to the fact that Indemnitee is or was a director
and/or officer or fiduciary of the Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another
corporation, limited liability
company, partnership, joint venture, employee benefit plan, trust or other entity or enterprise, or
by reason of anything done or not done by Indemnitee in any such capacity.
(f) Independent Legal Counsel: means an attorney or firm of attorneys, selected in
accordance with the provisions of Section 3 hereof, who is experienced in matters of corporate law
and who shall not have otherwise performed services for the Company, any affiliate of the Company,
or Indemnitee within the last five years (other than with respect to matters concerning the rights
of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(g) Reviewing Party: means any appropriate person or body consisting of a member or
members of the Company’s Board of Directors or any other person or body appointed by the Board who
is not a party to the particular Claim for which Indemnitee is seeking indemnification, or
Independent Legal Counsel.
(h) Voting Securities: means any securities of the Company which vote generally in the
election of directors.
2. Basic Indemnification Arrangement; Advancement of Expenses.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in,
or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or
arising in part out of) an Indemnifiable Event, the Company agrees to indemnify Indemnitee to the
fullest extent permitted by law as soon as practicable but in any event no later than thirty days
after written demand is presented to the Company, against any and all Indemnifiable Amounts;
provided that, no indemnification shall be made in respect of any Claim as to which Indemnitee has
been adjudged to be liable to the Company by a court of competent jurisdiction (as to which all
rights of appeal therefrom have been exhausted or lapsed) unless and only to the extent a court of
competent jurisdiction determines upon application that, despite the adjudication of liability but
in view of all circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification for such Expenses.
(b) If so requested by Indemnitee, the Company shall advance (within five (5) business days of
such request) any and all Expenses incurred by Indemnitee (an “Expense
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Advance”). The Company shall, in accordance with such request (but without duplication), either (i)
pay such Expenses on behalf of Indemnitee, or (ii) reimburse Indemnitee for such Expenses. Subject
to the limitations contained in Sections 2(c) and (d) below, Indemnitee’s right to an Expense
Advance is absolute and shall not be subject to any prior determination by the Reviewing Party or
any other person, that the Indemnitee has satisfied any applicable standard of conduct for
indemnification.
(c) Indemnitee shall not be entitled to indemnification or advancement of Expenses pursuant to
this Agreement in connection with any Claim initiated by Indemnitee unless (i) the Company’s Board
of Directors has authorized or consented to the initiation of such Claim or (ii) the Claim is one
to enforce Indemnitee’s rights under this Agreement.
(d) As to each Claim or Indemnifiable Event, (i) the indemnification obligations of the
Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not
have determined (in a written opinion, in any case in which the Independent Legal Counsel referred
to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to
Section 2(b) shall be subject to the condition that, if, when and to the extent that the Reviewing
Party determines that Indemnitee would not be permitted to be so indemnified under applicable law,
the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid (it being understood and agreed that the foregoing
agreement by Indemnitee shall be deemed to satisfy any requirement that Indemnitee provide the
Company with an undertaking to repay any Expense Advance if it is ultimately determined that the
Indemnitee is not entitled to indemnification under applicable law); provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law,
any determination made by the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and Indemnitee shall not be required to
reimburse the Company for any Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed).
Indemnitee’s undertaking to repay such Expense Advances shall be unsecured and interest-free. If
there has not been a Change in Control, the Reviewing Party shall be selected by the Company’s
Board of Directors, and if there has been such a Change in Control, the Reviewing Party shall be
the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination
by the Reviewing Party within thirty days after written demand is presented to the Company or if
the Reviewing Party determines that Indemnitee would not be permitted to be indemnified in whole or
in part under applicable law, Indemnitee shall have the right to commence litigation in any court
in the States of Georgia or Delaware having subject matter jurisdiction thereof and in which venue
is proper seeking an initial determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, including the
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legal or factual bases therefor, and the Company hereby consents to service of process and to
appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the
Company, then the Reviewing Party shall be Independent Legal Counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably delayed, conditioned or
withheld). In a written opinion taking into account Sections 6, 7, and 8 hereof, such counsel
shall determine, as to each Claim or Indemnifiable Event, whether and to what extent the Indemnitee
would not be permitted to be indemnified under applicable law. The Company agrees to pay the
reasonable fees and disbursements of the Independent Legal Counsel and to indemnify fully such
counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Indemnification for Additional Expenses. The Company shall indemnify Indemnitee
against any and all Expenses and, if requested by Indemnitee, shall advance such Expenses to
Indemnitee subject to and in accordance with Section 2(b), which are incurred by Indemnitee in
connection with any action brought by Indemnitee for (i) indemnification or an Expense Advance by
the Company under this Agreement or any provision of the Company’s Certificate of Incorporation or
Amended Bylaws now or hereafter in effect and/or (ii) recovery under any directors’ and officers’
liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, Expense Advance or insurance recovery, as the
case may be.
5. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses or other
Indemnifiable Amounts in respect of a Claim but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating
in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses
incurred in connection therewith.
6. Burden of Proof. In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder the Reviewing Party or
court shall presume that the Indemnitee has satisfied the applicable standard of conduct and is
entitled to indemnification, and the burden of proof shall be on the Company to establish, by clear
and convincing evidence, that Indemnitee is not so entitled.
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7. Reliance as Safe Harbor. For purposes of this Agreement, Indemnitee shall be deemed
to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Company if Indemnitee’s actions or omissions to act are taken in good
faith reliance upon the records of the Company, including its financial statements, or upon
information, opinions, reports or statements furnished to Indemnitee by the officers or employees
of the Company in the course of their duties, or by committees of the Company’s Board of Directors,
or by any other person (including legal counsel, accountants, consultants and financial advisors)
as to matters Indemnitee reasonably believes are within such other person’s professional or expert
competence and who has been selected with reasonable care by or on behalf of the Company. In
addition, the knowledge and/or actions, or failures to act, of any director, officer, agent or
employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to
indemnity hereunder.
8. No Other Presumptions. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a
presumption that Indemnitee did not meet any particular standard of conduct or have any particular
belief or that a court has determined that indemnification is not permitted by applicable law. In
addition, neither the failure of the Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did
not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable law shall be a
defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular
standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to
any other rights Indemnitee may have under the Company’s Certificate of Incorporation or Amended
Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in
applicable law (whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company’s Certificate of Incorporation or
Amended Bylaws or this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or
policies providing directors’ and officers’ liability insurance, Indemnitee shall be covered by
such policy or policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse,
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heirs, executors or personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. 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.
13. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all papers reasonably required and shall do everything that may be reasonably necessary to
secure such rights, including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
14. No Duplication of Payments. 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, Certificate of Incorporation
or Amended Bylaws provision or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Defense of Claims. Within 20 business days of notice and provided that the Company
agrees in writing that the Claim or Indemnifiable Event would be permitted under applicable law and
Independent Legal Counsel has not rendered an opinion that the Claim or Indemnifiable Event is not
permitted to be indemnified under applicable law, the Company shall be entitled to assume the
defense of any Claim relating to an Indemnifiable Event, with counsel reasonably satisfactory to
the Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by
Indemnitee, that (i) the use of counsel chosen by the Company to represent Indemnitee would present
such counsel with an actual or potential conflict of interest, (ii) the named parties in any such
Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee
concludes that there may be one or more legal defenses available to him or her that are different
from or in addition to those available to the Company, or (iii) any such representation by such
counsel would be precluded under the applicable standards of professional conduct then prevailing,
then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus,
if applicable, local counsel in respect of any particular Claim) at the Company’s expense. The
Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement
of any Claim relating to an Indemnifiable Event effected without the Company’s prior written
consent; provided, however, that the consent of the Company is not required if the Company has
assumed the defense and the
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counsel that is defending the Claim recommends that the Indemnitee settle the claim for a specified
dollar amount. The Company shall not, without the prior written consent of the Indemnitee, effect
any settlement of any Claim relating to an Indemnifiable Event which the Indemnitee is or could
have been a party unless such settlement solely involves the payment of money and includes a
complete and unconditional release of Indemnitee from all liability on all claims that are the
subject matter of such Claim. Neither the Company nor Indemnitee shall unreasonably withhold its or
his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any
settlement that does not provide a complete and unconditional release of Indemnitee.
16. Indemnitee’s Obligations. Indemnitee shall promptly advise the Company in writing
of the institution of any Claim that is or may be subject to this Agreement and shall keep the
Company generally informed of and consult with the Company with respect to, the status and defense
of any such Claim; provided however, that the failure of Indemnitee to comply with the obligations
set forth in this Section 16 shall not relieve the Company from any liability that it may have to
Indemnitee under this Agreement.
17. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective successors, (including any direct
or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all
of the business and/or assets of the Company), assigns, spouses, heirs, executors, administrators,
and personal and legal representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation, or otherwise) to all or substantially all of
the business and/or assets of the Company, by written agreement in form and substance satisfactory
to Indemnitee and his or her counsel, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an officer and/or director of the Company or of any other entity
or enterprise at the Company’s request.
18. Security. To the extent requested by Indemnitee and approved by the Company’s
Board of Directors, the Company may at any time and from time to time provide security to
Indemnitee for the obligations of the Company hereunder through an irrevocable bank line of credit,
funded trust or other collateral or by other means. Any such security, once provided to Indemnitee,
may not be revoked or released without the prior written consent of such Indemnitee.
19. Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable in any respect, and the validity and enforceability of any such provision in every
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other respect and of the remaining provisions hereof shall not be in any way impaired and shall
remain enforceable to the fullest extent permitted by law.
20. Specific Performance, Etc. The parties recognize that if any provision of this
Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, Indemnitee shall be entitled, if Indemnitee so
elects, to institute proceedings, either in law or at equity, to obtain damages, to enforce
specific performance, to enjoin such violation, or to obtain any relief or any combination of the
foregoing as Indemnitee may elect to pursue.
21. Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (a) if delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed;
or (b) mailed by certified or registered mail with postage prepaid, on the third business day after
the date on which it is so mailed:
| (a) | If to Indemnitee, to him at: |
||
| (b) | If to the Company to: Matria Healthcare, Inc. Attention: General Counsel |
or to any other address as may have been furnished in writing by the Company to Indemnitee or by
the Indemnitee to the Company, as the case may be.
22. Counterparts. This Agreement may be executed in counterparts, each of which shall
for all purposes be deemed to be an original but all of which together shall constitute one and the
same agreement.
23. Headings. The headings of the sections and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this Agreement or to
affect the construction or interpretation thereof.
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24. 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.
25. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior understandings and
agreements between the parties, whether written or oral, with respect to the subject matter hereof.
[Signatures on next page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
written above.
| MATRIA HEALTHCARE, INC. |
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| By: | ||||
| INDEMNITEE |
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| By: | ||||
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