EXHIBIT 10.13
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of this
6th day of August, 2001, by and between VCA ANTECH, INCORPORATED, a Delaware
corporation (the "Company"), and ___________, an individual ("Indemnitee").
RECITALS
A. The Company and Indemnitee recognize the substantial increase in
corporate litigation in general, subjecting directors, officers, employees and
agents to expensive litigation risk at the same time that the availability and
coverage of liability insurance has been severely limited.
B. The Company's Bylaws permit contracts between the Company and the
directors, officers, employees and agents of the Company with respect to
indemnification of such directors, officers, employees and agents.
C. Indemnitee does not regard the current protection available as
adequate under the present circumstances, and Indemnitee and other directors,
officers, employees and agents of the Company may not be willing to continue to
serve as directors, officers, employees and agents without additional
protection.
D. The Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as directors, officers,
employees and agents of the Company and to indemnify its directors, officers,
employees and agents so as to provide them with the maximum protection permitted
by law.
AGREEMENT
The Company and Indemnitee hereby agree as follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve and/or continue to serve
the Company, in the capacity Indemnitee currently serves the Company. However,
this Agreement shall not impose any obligation on Indemnitee or the Company to
continue Indemnitee's service to the Company beyond any period otherwise
required by law or by other agreements or commitments of the parties, if any.
Nothing contained in this Agreement is intended to or shall create any right
(express or implied) to continued employment by Indemnitee.
2. INDEMNIFICATION.
2.1 THIRD PARTY PROCEEDINGS. The Company shall indemnify Indemnitee if
Indemnitee is or was a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, whether formal or informal (a
"PROCEEDING") (other than an action by or in the right of the Company) by reason
in whole or in part of: (i) the fact that Indemnitee is or was a director,
officer, employee or agent of the Company, or any subsidiary of the Company,
(ii) any action or inaction on the part of Indemnitee while a director, officer,
employee or agent of the Company, or any subsidiary of the Company, or (iii) the
fact that Indemnitee is or was serving at the request
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of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(subsections (i), (ii) and (iii) together, the Indemnitee's "CORPORATE STATUS"),
against all expenses (including, without limitation, attorneys' fees,
disbursements and retainers, accounting and witness fees, court costs, expenses
of investigation, transcript costs, fees of experts, travel and deposition
costs, printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, participating or being or preparing to be a witness in a
Proceeding (collectively, "EXPENSES")), judgments, penalties, fines and amounts
paid in settlement (if such settlement is approved in advance by the Company
which approval shall not be unreasonably withheld) and other amounts actually
and reasonably incurred by Indemnitee, in connection with such Proceeding, to
the fullest extent permissible under Delaware Law as currently in effect and as
may be expanded in the future if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company and, with respect to any criminal proceeding, had no reasonable
cause to believe the conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE or
its equivalent, shall not, of itself, create a presumption that indemnification
is unavailable under this Agreement.
2.2 PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall
indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made
a party to any Proceeding by or in the right of the Company or any subsidiary of
the Company arising in whole or in part out of Indemnitee's Corporate Status
against Expenses, judgments, penalties, fines and amounts paid in settlement, in
each case to the extent actually and reasonably incurred by Indemnitee in
connection with such Proceeding, to the fullest extent permissible under
Delaware Law as currently in effect and as may be expanded in the future if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company.
2.3 MANDATORY PAYMENT OF EXPENSES. Notwithstanding any limitations or
conditions upon the Company's indemnification obligations set forth in SECTIONS
2.1 and 2.2 above, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any Proceeding referred to in SECTIONS 2.1 and
2.2 or in defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against Expenses actually and reasonably incurred by Indemnitee in
connection therewith.
2.4 INDEMNIFICATION FOR SERVING AS A WITNESS. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a witness in any Proceeding, Indemnitee shall be
indemnified against Expenses actually and reasonably incurred by Indemnitee in
connection therewith.
3. EXPENSES; INDEMNIFICATION PROCEDURE.
3.1 ADVANCEMENT OF EXPENSES. The Company shall advance all Expenses
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of any Proceeding referenced in SECTIONS 2.1 or 2.2 hereof. The
advances to be made hereunder shall be paid by the Company to Indemnitee within
30 days following delivery of a written request
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therefor by Indemnitee to the Company. Such written request shall reasonably
evidence the Expenses incurred by Indemnitee. Indemnitee hereby undertakes to
repay such amounts advanced only if, and to the extent that, it shall ultimately
be determined that Indemnitee is not entitled to be indemnified by the Company
as authorized hereby. Indemnitee shall have 30 days following such determination
to reimburse the Company of any advances Indemnitee is not entitled to be
indemnified by the Company.
3.2 NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall, as a condition
precedent to his right to be indemnified under this Agreement, give the Company
prompt notice, in accordance with SECTION 14 hereof, of any claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the Chief Financial
Officer of the Company at the principal executive offices of the Company. In
addition, Indemnitee shall give the Company, at the Company's expense, such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
3.3 PROCEDURE. Any indemnification and advances provided for in SECTION 2
and this SECTION 3 shall be made no later than 30 days after receipt of the
written request of Indemnitee. If a claim under this Agreement is not paid in
full by the Company within 30 days after a written request for payment therefor
has first been received by the Company, Indemnitee may, but need not, at any
time thereafter bring an action against the Company to recover the unpaid amount
of the claim and, subject to SECTION 13 of this Agreement, Indemnitee shall also
be entitled to be paid for the Expenses for bringing such an action. It shall be
a defense to any such action (other than an action brought to enforce a claim
for Expenses incurred in connection with any Proceeding in advance of its final
disposition) that Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Company to indemnify Indemnitee, but
the burden of proving such defense shall be on the Company and Indemnitee shall
be entitled to receive interim payments of Expenses pursuant to SECTION 3.1
unless and until such defense is finally adjudicated by court order or judgment
from which no further right of appeal exists. It is the intention of the parties
that if the Company contests Indemnitee's right to indemnification under this
Agreement or applicable law, the question of Indemnitee's right to
indemnification shall be for the court to decide, and neither the failure of the
Company (including its officers, its Board, any committee or subgroup of its
Board, independent legal counsel, or its stockholders) to have made a
determination that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct required by this
Agreement or by applicable law, nor an actual determination by the Company
(including its officers, its Board, any committee or subgroup of its Board,
independent legal counsel, or its stockholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that Indemnitee has
not met the applicable standard of conduct.
3.4 NOTICE TO INSURERS. If, at the time of the receipt of a notice of a
claim pursuant to Section 3.2 hereof, the Company has director and officer
liability insurance in effect, the Company shall give prompt notice of receipt
of a claim or the commencement of a Proceeding to the insurers in accordance
with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such Proceeding
in accordance with the terms of such policies.
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3.5 SELECTION OF COUNSEL. In the event the Company shall be obligated under
SECTION 3.1 hereof to pay the Expenses of any Proceeding against Indemnitee, the
Company, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee
of written notice of its election so to do, provided, however, that (i) the
Company shall have no right to assume the defense of any Proceeding which seeks,
in whole or in part, any remedy other than monetary damages (e.g., injunction,
specific performance, criminal sanctions) or which could, if Indemnitee were not
to prevail therein, materially damage Indemnitee's personal or business
reputation, and (ii) the Company shall have no right to assume the defense of
any Proceeding unless the Company first agrees fully and unconditionally, in
writing, that the Company is obligated to indemnify Indemnitee in full with
respect thereto, and waives any and all defenses, counterclaims or set-offs
which might otherwise be asserted in limitation or mitigation of such
indemnification obligation. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same Proceeding,
provided that (i) Indemnitee shall have the right to employ separate counsel in
any such Proceeding at Indemnitee's expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such defense,
or (C) the Company shall not, in fact, have employed counsel to assume the
defense of such Proceeding, then the fees and expenses of Indemnitee's counsel
shall be at the expense of the Company.
4. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
4.1 SCOPE. Notwithstanding any other provision of this Agreement, in the
event of any change in any applicable law, statute or rule which narrows the
right of the Company to indemnify Indemnitee, such change, 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. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal.
4.2 NONEXCLUSIVITY. The indemnification rights provided to Indemnitee by
this Agreement shall be in addition to, and not in lieu of, any rights to which
Indemnitee may be entitled under the Company's Certificate of Incorporation, its
Bylaws, any agreement, any vote of stockholders or disinterested directors,
applicable law or otherwise, both as to action in Indemnitee's official capacity
and as to action in another capacity while holding such office. The
indemnification provided under this Agreement shall continue as to Indemnitee
with respect to (i) any action taken or not taken while serving in an
indemnified capacity and (ii) any Proceeding arising out of or relating to the
period prior to the date upon which Indemnitee ceased to serve in an indemnified
capacity, even though he may have ceased to serve in such capacity at the time
of any covered Proceeding.
5. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
Expenses,
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judgments, fines or penalties actually and reasonably incurred by him in the
investigation, defense, appeal or settlement of any Proceeding, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses, judgments, fines or penalties to
which Indemnitee is entitled.
6. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge that
in certain instances, federal or state law or regulation may prohibit the
Company from indemnifying Indemnitee under this Agreement or otherwise. The
Company agrees to assert vigorously, in any such action pertaining to the
Company's right to indemnify Indemnitee, the position that the Company has the
full and unfettered right to so indemnify Indemnitee, and further agrees that
Indemnitee may, at any time and in Indemnitee's sole discretion, assume control
of the Company's defense of such right (including without limitation selection
of counsel and determination of strategy), with such defense nonetheless being
conducted at the Company's expense.
7. LIABILITY INSURANCE. The Company shall, from time to time, make the good
faith determination whether or not it is practicable for the Company to obtain
and maintain a policy or policies of insurance with reputable insurance
companies providing the directors, officers, employees and agents of the Company
with coverage for losses from wrongful acts, or to ensure the Company's
performance of its indemnification obligations under this agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. In all such policies
of liability insurance, Indemnitee shall be named as an insured in such a manner
as to provide Indemnitee the same rights and benefits as are accorded to the
most favorably insured of the Company's directors, if Indemnitee is a director;
or of the Company's officers, if Indemnitee is not a director of the Company but
is an officer; or of the Company's employees, if Indemnitee is not a director or
officer but is an employee; or of the Company's agents, if Indemnitee is not a
director, officer or employee but is an agent. Notwithstanding the foregoing,
the Company shall have no obligation to obtain or maintain such insurance if the
Company determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or if Indemnitee
is covered by similar insurance maintained by a subsidiary or parent of the
Company.
8. SEVERABILITY. Nothing in this Agreement is intended to require or shall
be construed as requiring the Company to do or fail to do any act in violation
of applicable law. The Company's inability, pursuant to law, regulation or court
order, to perform its obligations under this Agreement shall not constitute a
breach of this Agreement. The provisions of this Agreement shall be severable as
provided in this SECTION 8. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted by
any applicable portion of this entire Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.
9. EXCEPTIONS. Any other provision herein to the contrary notwithstanding,
the Company shall not be obligated pursuant to the terms of this Agreement:
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9.1 CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance Expenses to
Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
Proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or otherwise but such indemnification or
advancement of Expenses may be provided by the Company in specific cases if the
Board has approved the initiation or bringing of such suit;
9.2 FRIVOLOUS PROCEEDINGS. To indemnify Indemnitee for any Expenses
incurred by Indemnitee with respect to any Proceeding instituted by Indemnitee
to enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by Indemnitee in such
Proceeding were frivolous;
9.3 INSURED CLAIMS. To make any payment in connection with any claim made
against Indemnitee to the extent Indemnitee has otherwise received payment
(under any insurance policy, the Certificate of Incorporation or Bylaws of the
Company, contract or otherwise) of the amounts otherwise indemnifiable
hereunder. If the Company makes any indemnification payment to Indemnitee in
connection with any particular Expense indemnified hereunder and Indemnitee has
already received or thereafter receives, and is entitled to retain, duplicate
payments in reimbursement of the same particular expense, then Indemnitee shall
reimburse the Company in an amount equal to the lesser of (i) the amount of such
duplicate payment and (ii) the full amount of such indemnification payment made
by the Company;
9.4 UNLAWFUL CLAIMS. To indemnify Indemnitee in any manner which a court of
competent jurisdiction has finally determined to be unlawful;
9.5 FAILURE TO SETTLE PROCEEDING. In the event that Indemnitee Fails to
Pursue a Recommended Settlement of a Qualifying Claim, to indemnify Indemnitee
(i) for amounts paid or payable in settlement of such Qualifying Claim in excess
of the amount of such Recommended Settlement thereof, or (ii) for any cost
and/or expenses directly related to such Qualifying Claim incurred by Indemnitee
following the date upon which Indemnitee Fails To Pursue such Recommended
Settlement. For purposes of this clause, "Qualifying Claim" shall mean any claim
the defense of which may be assumed by the Company under SECTION 3.5 above
(i.e., any claim that (A) is not described in the first clause (i) of said
SECTION 3.5 and (B) with respect to which the Company has acknowledged its
unconditional duty to indemnify as described in first clause (ii) of said
SECTION 3.5), "Recommended Settlement" shall mean a reasonable written
settlement proposal, in full and final executable form in all material respects,
and "Fails To Pursue" shall mean either (i) Indemnitee's failure to communicate
a Recommended Settlement to the principal adverse party in the subject matter
within 30 days after Indemnitee's receipt thereof from the Company, or (ii)
Indemnitee's failure to agree to any Recommended Settlement that has been
accepted by all adverse parties in the subject matter within 30 days after
receipt thereof, provided the Company has (A) irrevocably deposited all funds
necessary to satisfy all of Indemnitee's obligations under such Recommended
Settlement in an account subject to Indemnitee's or a third party's control and
(B) irrevocably taken all actions and given all instructions necessary or
appropriate to permit such funds to be applied in satisfaction of such
obligations of Indemnitee.
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9.6 BREACH OF EMPLOYMENT AGREEMENT. To indemnify Indemnitee for any breach
by Indemnitee of any employment agreement between Indemnitee and the Company or
any of its subsidiaries.
10. CONSTRUCTION OF CERTAIN PHRASES.
10.1 For purposes of this Agreement, references to the "COMPANY" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees and/or agents, so that
if Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
10.2 For purposes of this Agreement, references to "OTHER ENTERPRISES"
shall include employee benefit plans; references to "FINES" shall include any
excise taxes assessed on Indemnitee with respect to an employee benefit plan;
and references to "SERVING AT THE REQUEST OF THE COMPANY" shall include any
service as a director, officer, employee or agent of the Company or any
subsidiary of the Company which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants, or beneficiaries.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
13. ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee with
respect to such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were frivolous. In the event of an action instituted
by or in the name of the Company under this Agreement to enforce or interpret
any of the terms of this Agreement, Indemnitee shall be entitled to be paid all
Expenses incurred by Indemnitee in defense of such action (including with
respect to Indemnitee's counterclaims and cross-claims made in such action),
unless as a part of such action the court determines that each of Indemnitee's
material defenses to such action were frivolous.
14. NOTICE. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written notice.
All notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed duly given (i) if delivered by hand and
receipted for by the party addressee, on the date of such
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receipt, or (ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked if addressed as
provided for on the signature page of this Agreement, unless sooner received, or
as subsequently modified by written notice.
15. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of California
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of California,
or in federal courts located in such State.
16. CHOICE OF LAW. This Agreement shall be governed by and its provisions
construed in accordance with the laws of the State of Delaware, without regard
to conflicts of law principles of such state.
17. SUBROGATION. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of contribution or recovery of Indemnitee against other persons, and Indemnitee
shall take, at the request of the Company, all reasonable action necessary to
secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
18. ENFORCEMENT.
18.1 The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to serve as an officer or director of the Company, and the
Company acknowledges that Indemnitee is relying upon this Agreement in serving
as an officer or director of the Company.
18.2 This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties
hereto with respect to the subject matter hereof.
19. MODIFICATION AND WAIVER. No supplement, modification, termination 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.
20. HEADINGS. The headings of the 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 thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
VCA ANTECH, INCORPORATED,
a Delaware corporation
By:
----------------------------------------
Name:
Title:
Notice Address:
VCA Antech, Incorporated
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
AGREED TO AND ACCEPTED:
INDEMNITEE:
-------------------------------
(Signature)
-------------------------------
(Print Name)
Notice Address:
-------------------------------
-------------------------------
-------------------------------
(Print Address)
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