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EXHIBIT 10.7(B)
INDEMNIFICATION AGREEMENT
This Agreement made as of March 5, 2001, between PracticeWorks, Inc., a
Delaware corporation (the "Company") and Xxxxx X. Xxxxx, a director, officer,
employee or agent of the Company (the "Indemnitee");
WHEREAS, the Company and the Indemnitee are each aware of conditions in
the insurance industry that have affected and may continue to affect the
Company's ability to obtain appropriate directors' and officers' liability
insurance on an economically acceptable basis;
WHEREAS, the Company and the Indemnitee are also aware of the exposure
to litigation of officers, directors, employees and agents of corporations as
such persons exercise their duties to the Company;
WHEREAS, the Company desires to continue to benefit from the services
of highly qualified and experienced persons such as the Indemnitee;
WHEREAS, the Indemnitee desires to serve or to continue to serve the
Company as a director, officer, employee or agent, including service at the
request of the Company as a director, officer or trustee of another corporation,
joint venture, trust or other enterprise, for so long as the Company continues
to provide on an acceptable basis indemnification against certain liabilities
and expenses which may be incurred by the Indemnitee.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. INDEMNIFICATION. The Company shall indemnify the Indemnitee with
respect to his activities as a director, officer or employee of the Company or
as a person who is serving or has served at the request of the Company ("Agent")
as a director, officer or trustee of another corporation, joint venture, trust
or other enterprise against expenses (including attorneys' fees, judgments,
fines, and amounts paid in settlement) actually and reasonably incurred by him
("Expenses") in connection with any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), to which he was, is, or is threatened to be made a party by
reason of facts which include his being or having been such a director, officer,
employee or agent to the extent of the highest and most advantageous to the
Indemnitee, as determined by the Indemnitee, of one or any combination of the
following:
(a) The benefits provided by the Company's Certificate of
Incorporation or By-Laws in effect on the date hereof, a copy of the relevant
portions of which are attached hereto as Exhibit I;
(b) The benefits provided by the Company's Certificate of
Incorporation or By-Laws or their equivalent in effect at the time Expenses are
incurred by Indemnitee;
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(c) The benefits allowable under Delaware law in effect at the
date hereof;
(d) The benefits allowable under the law of the jurisdiction under
which the Company exists at the time Expenses are incurred by the Indemnitee;
(e) The benefits available under liability insurance obtained by
the Company; and
(f) Such other benefits as may be otherwise available to
Indemnitee under then existing practices of the Company.
A combination of two or more of the benefits provided by (a) through
(f) shall be available only to the extent that the Applicable Document, as
hereafter defined, does not require that the benefits provided therein must be
exclusive of other benefits. The document or law providing for the benefits
listed in items (a) through (f) above is called the "Applicable Document" in
this Agreement. The Company hereby undertakes to assist Indemnitee, in all
proper and legal ways, to obtain the benefits selected by Indemnitee under items
(a) through (f) above.
2. INSURANCE. The Company shall maintain directors' and officers'
liability insurance for so long as Indemnitee's services are covered hereunder,
provided and to the extent that such insurance is available on a commercially
reasonable basis. In the event the Company maintains directors' and officers'
liability insurance, Indemnitee shall be named as an insured in such manner as
to provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company's officers or directors. However, the Company
agrees that the provisions hereof shall remain in effect regardless of whether
liability or other insurance coverage is at any time obtained or retained by the
Company; except that any payments made under an insurance policy shall reduce
the obligations of the Company hereunder.
3. PAYMENT OF EXPENSES. At Indemnitee's request, the Company shall pay the
Expenses when incurred by Indemnitee upon receipt of an undertaking in the form
of Exhibit II attached hereto by or on behalf of Indemnitee to repay such
amounts so paid on his behalf if it shall ultimately be determined under the
Applicable Document that he is not entitled to be indemnified by the Company for
such Expenses. That portion of Expenses which represents attorneys' fees and
other costs incurred in defending any Proceeding shall be paid by the Company
within thirty (30) days of its receipt of such request, together with such
reasonable documentation evidencing the amount and nature of such Expenses as
the Company shall require, subject to its also receiving such undertaking.
4. ADDITIONAL RIGHTS. The indemnification provided in this Agreement shall
not be deemed exclusive of any other indemnification or rights to which
Indemnitee may be entitled and shall continue after Indemnitee has ceased to
occupy a position as an officer, director, employee or agent as described in
Paragraph 1 above with respect to Proceedings relating to or arising out of
Indemnitee's acts or omissions during his service in such position.
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5. NOTICE TO COMPANY. Indemnitee shall provide to the Company prompt
written notice of any proceeding brought, threatened, asserted or commenced
against Indemnitee with respect to which Indemnitee may assert a right to
indemnification hereunder. Indemnitee shall not make any admission or effect any
settlement without the Company's written consent unless Indemnitee shall have
determined to undertake his own defense in such matter and has waived the
benefits of this Agreement. The Company shall not settle any Proceeding to which
Indemnitee is a party in any manner which would impose any penalty on Indemnitee
without his written consent. Neither Indemnitee nor the Company will
unreasonably withhold consent to any proposed settlement. Indemnitee shall
cooperate to the extent reasonably possible with the Company and/or its
insurers, in attempts to defend and/or settle such Proceeding.
6. ASSUMPTION OF DEFENSE. Except as otherwise provided below, to the
extent that it may wish, the Company jointly with any other indemnifying party
similarly notified will be entitled to assume Indemnitee's defense in any
Proceeding, with counsel mutually satisfactory to Indemnitee and the Company.
After notice from the Company to Indemnitee of the Company's election so to
assume such defense, the Company will not be liable to Indemnitee under this
Agreement for 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 counsel in such
Proceeding, but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall be at Indemnitee's
expense unless:
(a) The employment of counsel by Indemnitee has been authorized by
the Company;
(b) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between Indemnitee and the Company in the conduct of the
defense of such Proceeding; or
(c) The Company shall not in fact have employed counsel to assume
the defense of such Proceeding, in each of which cases the fees and expenses of
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of Indemnitee in any Proceeding brought by or on
behalf of the Company or as to which Indemnitee shall have made the conclusion
provided for in clause (b) above.
7. ARBITRATION AND ENFORCEMENT.
(a) In the event that any dispute or controversy shall arise
between Indemnitee and the Company with respect to whether the Indemnitee is
entitled to indemnification in connection with any Proceeding or with respect to
the amount of Expenses incurred, such dispute or controversy shall be submitted
by the parties to binding arbitration before a single arbitrator at Atlanta,
Georgia. If the parties cannot agree on a designated arbitrator fifteen (15)
days after arbitration is requested in writing by either of them, the
arbitration shall proceed before an arbitrator appointed by, and in accordance
with the rules then in effect of, one of the following bodies, which shall be
chosen by the initiator of such arbitration:
(i) the American Arbitration Association;
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(ii) the CPR Institute for Dispute Resolution; or
(iii) Judicial Arbitration and Mediation Services, Inc.
The award shall be rendered in such form that judgment may be entered
thereon in any court having jurisdiction thereof.
(b) Reasonable expenses incurred by Indemnitee in connection with
his request for indemnification hereunder shall be borne by the Company, unless
Indemnitee is determined according to the preceding paragraph of this Section 7
not to be entitled to indemnification for any liability or expense hereunder. In
the event that Indemnitee is a party to or intervenes in any proceeding in which
the validity of this Agreement is at issue or seeks an award in arbitration
pursuant to the preceding paragraph of this Section 7 to enforce his rights
under, or to recover damages for breach of, this Agreement, Indemnitee, if he
prevails in whole or in part in such action, shall be entitled to recover from
the Company and shall be indemnified by the Company against any expenses
actually and reasonably incurred by him.
(c) In any proceeding in which the validity or enforceability of
this Agreement is at issue, or in which Indemnitee seeks an award in arbitration
to enforce his rights hereunder, the Company shall have the burden of proving
that Indemnitee is not entitled to indemnification hereunder.
8. EXCLUSIONS. No indemnification, reimbursement or payment shall be
required of the Company hereunder:
(a) With respect to any claim as to which Indemnitee shall have
been adjudged by a court of competent jurisdiction to have acted with bad faith,
willful misfeasance, or willful disregard of his duties, except to the extent
that such court shall determine upon application that, despite the adjudication
of liability, but in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnify for such expenses as the court shall
deem proper; or
(b) With respect to any obligation of Indemnitee under Section
16(b) of the Exchange Act.
9. EXTRAORDINARY TRANSACTIONS The Company covenants and agrees that, in
the event of any merger, consolidation or reorganization in which the Company is
not the surviving entity, any sale of all or substantially all of the assets of
the Company or any liquidation of the Company (each such event is hereinafter
referred to as an "extraordinary transaction"), the Company shall use its best
efforts to:
(a) Obtain insurance in Indemnitee's favor from a reputable
insurance carrier in reasonable amounts (if such insurance is available at
commercially reasonable rates) for a period of not less than one (1) year from
the date of such extraordinary transaction against any liability to which the
indemnification provided in this Agreement relates;
(b) Have the obligations of the Company under this Agreement
expressly assumed by the survivor, purchaser or successor, as the case may be,
in such extraordinary transaction; or
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(c) Otherwise adequately provide for the satisfaction of the
Company's obligations under this Agreement, in a manner acceptable to
Indemnitee.
10. NO PERSONAL LIABILITY. Indemnitee agrees that neither the Directors,
nor any officer, employee, representative or agent of the Company shall be
personally liable for the satisfaction of the Company's obligations under this
Agreement, and Indemnitee shall look solely to the assets of the Company for
satisfaction of any claims hereunder.
11. SEVERABILITY. If any provision, phrase, or other portion of this
Agreement should be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable, in whole or in part, and such determination
should become final, such provision, phrase or other portion shall be deemed to
be severed or limited, but only to the extent required to render the remaining
provisions and portions of the Agreement enforceable, and the Agreement as thus
amended shall be enforced to give effect to the intention of the parties insofar
as that is possible.
12. GOVERNING LAW. The parties hereto agree that this Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of Delaware.
13. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be considered to have been duly given if
delivered by hand and receipted for by the party to whom the notice, request,
demand or other communication shall have been directed, or mailed by registered
mail with postage prepaid:
(a) If to the Company, to:
PracticeWorks, Inc.
0000 Xxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Secretary
(b) If to Indemnitee, to:
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
14. TERMINATION. This Agreement may be terminated by either party upon not
less than sixty (60) days prior written notice delivered to the other party, but
such termination shall not in any way diminish the obligations of Company
hereunder with respect to Indemnitee's activities prior to the effective date of
termination. Indemnitee's right to indemnification and advancement of expenses
pursuant to this Agreement shall continue regardless of whether Indemnitee has
ceased for any reason to be a director of the Company and shall inure to the
benefit of the heirs of Indemnitee and the executors and administrators of
Indemnitee's estate.
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This Agreement is and shall be binding upon and shall inure to the
benefits of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
INDEMNITEE PRACTICEWORKS, INC.
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer Chairman of the Board
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EXHIBIT I
CERTIFICATE OF INCORPORATION
ARTICLE XI.
A director of the Corporation shall not be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director
of the Corporation, except to the extent that such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation Law
as currently in effect or as the same may hereafter be amended.
BYLAWS
SECTION 7.4. INDEMNIFICATION.
(a) The Corporation shall indemnify to the full extent permitted
by law any person made or threatened to be made a party to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person or such person's testator or intestate is or was a
director or officer of the Corporation, is or was a director, officer, trustee,
member, stockholder, partner, incorporator or liquidator of a Subsidiary of the
Corporation, or serves or served at the request of the Corporation as a
director, officer, trustee, member, stockholder, partner, incorporator or
liquidator of or in any other capacity for any other enterprise. Expenses,
including attorneys' fees and expenses, incurred by any such person in defending
any such action, suit or proceeding shall be paid or reimbursed by the
Corporation promptly upon demand by such person and, if any such demand is made
in advance of the final disposition of any such action, suit or proceeding,
promptly upon receipt by the Corporation of an undertaking of such person to
repay such expenses if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation. The rights provided to any person
by this by-law shall be enforceable against the Corporation by such person, who
shall be presumed to have relied upon it in serving or continuing to serve as a
director or officer or in such other capacity as provided above. In addition,
the rights provided to any person by this by-law shall survive the termination
of such person as any such director, officer, trustee, member, stockholder,
partner, incorporator or liquidator and, insofar as such person served at the
request of the Corporation as a director, officer, trustee, member, stockholder,
partner, incorporator or liquidator of or in any other capacity for any other
enterprise, shall survive the termination of such request as to service prior to
termination of such request. No amendment of this by-law shall impair the rights
of any person arising at any time with respect to events occurring prior to such
amendment.
(b) Notwithstanding anything contained in this Section 7.4, except
for proceedings to enforce rights provided in this Section 7.4, the Corporation
shall not be obligated under this Section 7.4 to provide any indemnification or
any payment or reimbursement of expenses to any director, officer or other
person in connection with a proceeding (or part thereof) initiated by such
person (which shall not include counterclaims or cross-claims initiated by
others) unless the
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Board of Directors has authorized or consented to such proceeding (or part
thereof) in a resolution adopted by the Board.
(c) For purposes of this by-law, the term "Subsidiary" shall mean
any corporation, partnership, limited liability company or other entity in which
the Corporation owns, directly or indirectly, a majority of the economic or
voting ownership interest; the term "other enterprise" shall include any
corporation, partnership, limited liability company, joint venture, trust,
association or other unincorporated organization or other entity and any
employee benefit plan; the term "officer," when used with respect to the
Corporation, shall refer to any officer elected by or appointed pursuant to
authority granted by the Board of Directors of the Corporation pursuant to
Section 5.1 of these by-laws, when used with respect to a Subsidiary or other
enterprise that is a corporation, shall refer to any person elected or appointed
pursuant to the by-laws of such Subsidiary or other enterprise or chosen in such
manner as is prescribed by the by-laws of such Subsidiary or other enterprise or
determined by the Board of Directors of such Subsidiary or other enterprise, and
when used with respect to a Subsidiary or other enterprise that is not a
corporation or is organized in a foreign jurisdiction, the term "officer" shall
include in addition to any officer of such entity, any person serving in a
similar capacity or as the manager of such entity; service "at the request of
the Corporation" shall include service as a director or officer of the
Corporation which imposes duties on, or involves services by, such director or
officer with respect to an employee benefit plan, its participants or
beneficiaries; any excise taxes assessed on a person with respect to an employee
benefit plan shall be deemed to be indemnifiable expenses; and action by a
person with respect to an employee benefit plan which such person reasonably
believes to be in the interest of the participants and beneficiaries of such
plan shall be deemed to be action not opposed to the best interests of the
Corporation.
(d) To the extent authorized from time to time by the Board of
Directors, the Corporation may provide to (i) any one or more employees and
other agents of the Corporation, (ii) any one or more officers, employees and
other agents of any Subsidiary and (iii) any one or more directors, officers,
employees and other agents of any other enterprise, rights of indemnification
and to receive payment or reimbursement of expenses, including attorneys' fees,
that are similar to the rights conferred in this Section 7.4 on directors and
officers of the Corporation or any Subsidiary or other enterprise. Any such
rights shall have the same force and effect as they would have if they were
conferred in this Section 7.4.
(e) Nothing in this Section 7.4 shall limit the power of the
Corporation or the Board of Directors to provide rights of indemnification and
to make payment and reimbursement of expenses, including attorneys' fees, to
directors, officers, employees, agents and other persons otherwise than pursuant
to this Section 7.4.
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EXHIBIT II
FORM OF UNDERTAKING
THIS UNDERTAKING has been entered into by Xxxxx X. Xxxxx (hereinafter
"Indemnitee") pursuant to an Indemnification Agreement dated March 5, 2001 (the
"Indemnification Agreement") between PracticeWorks, Inc. (hereinafter
"Company"), a Delaware corporation and Indemnitee.
W I T N E S S E T H :
WHEREAS, pursuant to the Indemnification Agreement, Company agreed to
pay Expenses (within the meaning of the Indemnification Agreement) as and when
incurred by Indemnitee in connection with any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, to which indemnitee was, is, or is threatened to be made a party
by reason of facts which include Indemnitee's being or having been a director,
officer or employee of the Company or a person who is serving or has served at
the request of the Company as a director, officer, or trustee of another
corporation, joint venture, trust or other enterprise;
WHEREAS, a claim has been asserted against the Indemnitee and the
Indemnitee has notified the company thereof in accordance with the terms of
Section 6 of the Indemnification Agreement (hereinafter the "Proceeding");
WHEREAS, Indemnitee believes that Indemnitee should prevail in this
proceeding and it is in the interest of both the Indemnitee and company to
defend against the claim against Indemnitee thereunder.
NOW THEREFORE, Indemnitee hereby agrees that in consideration of
Company's advance payment of Indemnitee's Expenses incurred prior to a final
disposition of the proceeding, Indemnitee hereby undertakes to reimburse the
Company for any and all legal fees, costs and expenses paid by Company on behalf
of the Indemnitee prior to a final disposition of the Proceeding in the event
that Indemnitee is determined under the Applicable Document (within the meaning
of the Indemnification Agreement) not to be entitled to indemnification. Such
payments or arrangements for payments shall be consummated within ninety (90)
days after a determination that Indemnitee is not entitled to indemnification
and reimbursement pursuant to the Indemnification Agreement and applicable law.
IN WITNESS WHEREOF, the undersigned has set his/her hand this 5th day
of March, 2001.
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
