Exhibit 10.1
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this
___ day of ______, 2002, between Covalent Group, Inc., a Delaware corporation
(the "Company") and [insert name of director/officer of Covalent Group, Inc.]
(the "Indemnitee").
BACKGROUND
Indenitee performs a valuable service for the Company. To
induce Indemnitee to continue to serve as a director and/or officer of the
Company, the Company has determined and agreed to enter into this Agreement with
Indemnitee.
AGREEMENT
NOW, THEREFORE, in consideration of the promises contained in
this Agreement and Indemnitees's agreement to continue service as a director
and/or officer of the Company, the parties hereto, intending to be legally
bound, agree as follows:
1. Certain Definitions. Capitalized terms used in this
Agreement shall have the meanings set forth on Appendix A to this Agreement.
Other terms are defined where appropriate in this Agreement.
2. Scope of Indemnity. The Company shall hold harmless and
indemnify Indemnitee from any action described in Sections 3 and 4 of this
Agreement to the fullest extent permitted by Delaware law, now in effect or as
may hereafter be in effect, including any changes after the date of the
Agreement in any applicable law, statute, or rule which expands the right of a
Delaware corporation to indemnify its directors or officers. All such changes
shall be, ipso facto, within the purview of Indemnitee's rights and the
Company's obligations under this Agreement. In the event of any change in any
applicable law, statute, or rule which narrows the right of a Delaware
corporation to indemnify its directors or officers, such changes, to the extent
not otherwise required by such law, statute or rule to be applied to the
Agreement shall have no effect on this Agreement or the parties' rights and
obligations hereunder or to any matter that arose from circumstances that
occurred before the effective date of such change.
3. Indemnity. Subject only to the limitations contained in
Section 5 of this Agreement, the Company shall hold harmless and indemnify
Indemnitee to the fullest extent permitted by Delaware law if Indemnitee was or
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 any Proceeding, other than
an action by or in the right of the Company, by reason of (or arising in part or
in while out of) any event or occurrence related to the fact that Indemnitee is
or was a director, officer, employee or agent of the Company, or any subsidiary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or is or was serving in a fiduciary capacity
with respect to any profit sharing, pension, or other type of benefit plan or
trust for the benefit of employees of the Company, or any subsidiary of the
Company, against all Expenses and Liabilities actually and reasonably incurred
by Indemnitee in connection with the Proceeding, unless a final
adjudication establishes that Indemnitee's acts or omissions
involved intentional misconduct, fraud or a knowing violation of the law and was
material to the cause of action.
4. Proceeding by or in the Right of the Company. Subject only
to the limitations contained in Section 5 of this Agreement, the Company shall
hold harmless and indemnify Indemnitee to the fullest extent permitted by
Delaware law if Indemnitee was or 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 any Proceeding by or in the right of the Company or by or in the
right of any employee benefit plan or trust to procure a judgment in its favor,
by reason of (or arising in part or in while out of) any event or occurrence
related to the fact that Indemnitee is or was a director, officer, stockholder,
employee or agent of the Company, or any subsidiary of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
or is or was serving in a fiduciary capacity with respect to any profit sharing,
pension, or other type of benefit plan or trust for the benefit of employees of
the Company, or any subsidiary of the Company, against all Expenses actually and
reasonably incurred by Indemnitee in connection with the Proceeding, unless a
final adjudication establishes that Indemnitee's acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was material
to the cause of action.
5. Limitations on Indemnity.
(a) No indemnity pursuant to Sections 3 or 4 of this Agreement shall be
paid by the Company for any of the following:
(i) in respect of remuneration paid to Indemnitee if it shall be determined
by a final judgment or other final adjudication that such remuneration was in
violation of law;
(ii) on account of any Proceeding in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of Section 16
of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(iii) provided there has been no Change of Control, on account of or
arising in response to any Proceeding (other than a Proceeding referred to in
Section 12(b) hereof) initiated by Indemnitee or any of Indemnitee's affiliates
against the Company or against any officer, director or stockholder of the
Company unless such Proceeding was authorized by the Board of Directors of the
Company;
(iv) on account of any Proceeding to the extent that Indemnitee is a
plaintiff, a counter-complainant or a cross-complainant therein (other than an
action, suit or proceeding permitted by Section 5(a)(iii) or Section 12(b) of
this Agreement); or.
(v) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
(b) In addition to those limitations set forth above in paragraph (a) of
this Section 5, no indemnity pursuant to Section 4 of this Agreement in an
action by or in the right of the Company shall be paid by the Company for any of
the following:
(i) with respect to any transaction from which Indemnitee derived an
improper personal benefit, if so established by an Adverse Judgment;
(ii) on account of acts or omissions that show a reckless disregard for
Indemnitee's duty to the Company or its stockholders in circumstances in which
Indemnitee was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the Company or
its stockholders, if so established by an Adverse Judgment; and
(iii) Liabilities and Expenses paid or incurred in settlement of a pending
Proceeding without the approval of the Company, which approval shall not be
unreasonably withheld.
6. Procedure for Determination of Entitlement to Indemnification.
(a) Whenever Indemnitee believes that he is entitled to indemnification
pursuant to this Agreement, Indemnitee shall submit a written request for
indemnification to the Company. A request for indemnification shall include
sufficient documentation or information reasonably available to Indemnitee to
support his claim for indemnification. Indemnitee shall submit his claim for
indemnification within a reasonable time not to exceed three years after any
judgment, order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere or its equivalent, final termination or
other disposition or partial disposition of any Proceeding, whichever is the
later date for which Indemnitee requests indemnification. The president or the
secretary or other appropriate officer of the Company shall, promptly upon
receipt of Indemnitee's request for indemnification, advise the Board of
Directors in writing that Indemnitee has made such a request. Determination of
Indemnitee's entitlement to indemnification shall be made not later than 90 days
after the Company's receipt of his written request for such indemnification.
(b) Indemnitee shall be entitled to select the forum in which Indemnitee's
request for indemnification will be heard, which selection shall be included in
the written request for indemnification required in Section 6(a). If Indemnitee
fails to make such designation, his or her claim shall be determined by the
forum selected by the Company. The forum shall be one of the following:
(i) A quorum of the Board of Directors consisting of Disinterested
Directors; or
(ii) Independent Legal Counsel, who shall make the determination in a
written opinion.
7. Presumptions and Effect of Certain Proceedings. Upon making a request
for indemnification, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the burden of
proof to overcome that presumption in reaching any contrary determination. The
termination of any Proceeding by judgment, order, settlement, arbitration award
or conviction, or upon a plea of nolo contendere or its equivalent shall not
affect this presumption or establish a presumption with regard to any factual
matter relevant to determining Indemnitee's rights to indemnification under this
Agreement. If the person or group so empowered to make a determination pursuant
to Section 6(b) hereof fails to make the requested
determination within 90 days after receipt of the written request required by
Section 6(a) hereof, the determination that Indemnitee is entitled to
indemnification shall be deemed to have been made.
8. Contribution. If the indemnification provided in Sections 2, 3 and 4 is
unavailable and may not be paid to Indemnitee for any reason other than those
set forth in Section 5 (excluding subsection 5(b)(iii)), then in respect of any
Proceeding in which the Company is or is alleged to be jointly liable with
Indemnitee, the Company shall contribute to the amount of Expenses and
Liabilities actually incurred and paid or payable by Indemnitee in such
proportion as is appropriate to reflect:
(i) the relative benefits received by the Company on the one hand and
Indemnitee on the other hand from the transaction or events that form the basis
of the Proceeding giving rise to Indemnitee's Expenses and Liabilities, and
(ii) the relative fault of the Company on the one hand and of Indemnitee on
the other in connection with the events that resulted in such Expenses and
Liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of 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 and Liabilities. The Company agrees
that it would not be just and equitable if contribution pursuant to this Section
8 were determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
9. Continuation of Obligations. All obligations of the Company contained
herein shall continue during the period Indemnitee is a director, officer,
employee or agent of the Company (or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Indemnitee shall be subject to any possible claim or
threatened, pending or completed Proceeding, by reason of the fact that
Indemnitee was serving the Company or any such other entity in any capacity
referred to herein.
10. Notification and Defense of Claim.
(a) Promptly after receipt by Indemnitee of notice of the commencement of
any Proceeding, Indemnitee shall,
if a claim in respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement thereof; but the failure so to
notify the Company will not relieve the Company from any liability which it may
have to Indemnitee under this Agreement, unless and only to the extent that the
failure to provide notice results in prejudice to the Company.
(b) With respect to any such Proceeding as to which Indemnitee notifies the
Company of the commencement thereof, the Company shall be entitled to
participate in the Proceeding at its own expense and 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 the
defense thereof, with counsel reasonably satisfactory to Indemnitee. After
notice from the Company to Indemnitee of its election to assume the defense of
any Proceeding, the Company shall not be liable to Indemnitee under this
Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in
connection with the defense of such Proceeding other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall have the
right to employ his or her own counsel in such Proceeding, but all Expenses
related thereto incurred after notice from the Company of its assumption of the
defense shall be at Indemnitee's expense unless:
(i) the employment of counsel by Indemnitee has been authorized by the
Company,
(ii) counsel to the Company reasonably concludes and notifies Indemnitee
that there may be a conflict of interest between the Company and Indemnitee in
the conduct of the defense of such action, and Indemnitee notifies the Company
after receiving such notice from the Company that he or she is engaging counsel,
or
(iii) the Company shall not in fact have employed counsel to assume the
defense of such action.
In each of the foregoing three cases, the Company shall reimburse Indemnitee for
all Expenses incurred by him or her. The Company shall not be entitled to assume
the defense of any Proceeding brought by or on behalf of the Company or as to
which Indemnitee shall have made the conclusion referred to in (ii) above.
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement or otherwise for any amounts paid in settlement of any Proceeding
effected without the Company's written consent, provided, however, that if a
Change of Control has occurred, the Company shall be liable for indemnification
of Indemnitee for amounts paid in settlement if the Independent Counsel has
approved the settlement. The Company shall not settle any Proceeding in any
manner which would impose any penalty or limitation on Indemnitee without
Indemnitee's prior written consent.
11. Advancement and Repayment of Expenses.
(a) If Indemnitee employs his own counsel pursuant to Section 10(b)(i)
through (iii) above, the Company shall advance to Indemnitee, prior to any final
disposition of any Proceeding, all Expenses incurred in investigating or
defending any Proceeding within 30 days after receiving copies of invoices
presented to Indemnitee for such Expenses.
(b) Indemnitee shall reimburse the Company for all Expenses paid by the
Company in defending any Proceeding against Indemnitee if, and only to the
extent that, it is ultimately determined by a final judicial decision (from
which there is no right of appeal) that Indemnitee is not entitled, under
applicable law, the Company's certificate of incorporation or bylaws, this
Agreement or otherwise, to be indemnified by the Company for such Expenses.
12. Remedies of Indemnitee.
(a) If (i) a determination pursuant to Section 6 hereof is made that
Indemnitee is not entitled to indemnification, (ii) advances of Expenses are not
made pursuant to this Agreement, (iii) payment has not been timely made
following a determination of entitlement to indemnification pursuant to this
Agreement, or (iv) Indemnitee otherwise seeks enforcement of this Agreement,
Indemnitee shall be entitled to a final adjudication of his rights in an
appropriate court. The Company shall not oppose Indemnitee's right to seek any
such adjudication.
(b) If a determination that Indemnitee is not entitled to indemnification,
in whole or in part, has been made pursuant to Section 6 hereof, the decision in
the judicial proceeding provided in paragraph (a) of this Section 12 shall be
made de novo and Indemnitee shall not be prejudiced by reason of a determination
that he is not entitled to indemnification.
(c) If a determination that Indemnitee is entitled to indemnification has
been made pursuant to Section 6 hereof or otherwise pursuant to the terms of
this Agreement, the Company shall be bound by such determination in the absence
of (i) a misrepresentation of a material fact by Indemnitee or (ii) a specific
finding (which has become final) by a court that all or any part of such
indemnification is prohibited by law.
(d) In any Proceeding brought by Indemnitee under this Section 12, the
Company shall be precluded from asserting that the procedures and presumptions
of this Agreement are not valid, binding and enforceable. The Company shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement and is precluded from making any assertion to the contrary.
(e) The Company acknowledges that a monetary remedy for breach of this
Agreement, at some later date, will be inadequate, impracticable and difficult
to prove, and further acknowledges that such breach would cause Indemnitee
irreparable harm. Accordingly, Indemnitee shall be entitled to temporary and
permanent injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, without the necessity of posting bond or
other undertaking in connection therewith. Any such requirement of bond or
undertaking is hereby waived by the Company, and the Company acknowledges that
in the absence of such a waiver, a bond or undertaking may be required by the
court.
13. Enforcement.
(a) The Company acknowledges that it has entered into this Agreement and
assumed the obligations imposed on the Company hereby in order to induce
Indemnitee to continue as a director and/or officer of the Company, and
acknowledges that Indemnitee is relying upon this Agreement in continuing in
such capacity.
(b) If Indemnitee is required to bring any action to enforce rights or to
collect moneys due under this Agreement and is successful in such action, the
Company shall reimburse Indemnitee for all of Indemnitee's Expenses incurred in
bringing and pursuing such action.
14. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying Indemnitee under this Agreement or otherwise. For
example, the Company and Indemnitee acknowledge that the Securities and Exchange
Commission (the "SEC") has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws, and
federal legislation prohibits indemnification for certain ERISA violations.
Indemnitee understands and acknowledges that the Company has undertaken or may
be required in the future to undertake with the SEC to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company's ability under public policy to indemnify Indemnitee.
15. Separability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable to any extent for any
reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof, and the affected provision shall
be construed and enforced so as to effectuate the parties' intent to the maximum
extent possible.
16. Governing Law. This Agreement shall be governed by and interpreted and
enforced in accordance with the laws of the State of Delaware.
17. Consent To Jurisdiction. The Company and Indemnitee each irrevocably
consent to jurisdiction of the courts of the Commonwealth of Pennsylvania for
all purposes in connection with any 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 Commonwealth of Pennsylvania.
18. Binding Effect. This Agreement shall be binding upon Indemnitee and
upon the Company, its successors and assigns, and shall inure to the benefit of
Indemnitee, his heirs, personal representatives and assigns and to the benefit
of the Company, its successors and assigns.
19. Entire Agreement. This Agreement represents the entire agreement
between the parties hereto and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter of
this Agreement. Notwithstanding the foregoing, the rights conferred on
Indemnitee by this Agreement shall not be exclusive of any other right which
Indemnitee may have or hereafter acquire under any statute, provision of the
Company's certificate of incorporation or bylaws, vote of stockholders or
directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office or under any insurance policy
maintained by the Company.
20. Amendment and Termination. No amendment, modification, waiver,
termination or cancellation of this Agreement shall be effective for any purpose
unless set forth in writing signed by both parties hereto.
21. Subrogation. If the Company makes any payment under this
Agreement, it shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.
22. Survival Of Rights. The rights conferred on Indemnitee by this
Agreement shall continue after Indemnitee as ceased to be a director, officer,
employee or other agent of the Company and shall inure to the benefit of
Indemnitee's heirs, executors and administrators.
23. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be addressed to
Indemnitee or to the Company, as the case may be, at the address indicated on
the signature page below, or to such other address as may have been furnished by
either party to the other, and shall be deemed to have been duly given if (a)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, (b) delivered by a nationally recognized
overnight delivery service, on the first business after the date on which it is
delivered to or deposited with such service for overnight delivery, or (c)
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
INDEMNITEE: CORPORATION:
COVALENT GROUP, INC.
______________________________ By: __________________________________
Signature Signature
______________________________ ______________________________________
Print Name Print Name
______________________________________
Title
Address for Notices: Address for Notices:
______________________________ One Glenhardie Corporate Center
0000 Xxxxxxxx Xxxx
______________________________ Xxxxx, XX 00000
______________________________
Appendix A
Certain Defined Terms
1. "Adverse Judgment" means a judgment or final adjudication of a court
that contains findings of fact or conclusions of law adverse to Indemnitee's
interest.
2. "Change of Control" means the the acquisition in one or more
transactions by any "Person" (as the term person is used for purposes of
Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty-five percent (25%) or more of the
combined voting power of the Company's then outstanding voting securities (the
"Capital Stock"), provided that for purposes of this clause (a) Capital Stock
acquired directly from the Company by any Person shall be excluded from the
determination of such Person's Beneficial Ownership of Capital Stock (but such
Capital Stock shall be included in the calculation of the total number of
Capital Stock then outstanding).
3. "Disinterested Director" means a director of the Company who is not or
was not a party to the Proceeding in respect of which indemnification is being
sought by Indemnitee.
4. "Expenses" means all direct and indirect costs (including, without
limitation, reasonable attorneys' fees and costs, retainers, court costs,
transcripts, fees and costs of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, all other disbursements or out-of-pocket expenses)
actually and reasonably incurred in connection with a Proceeding or establishing
or enforcing a right to indemnification under this Agreement, applicable law or
otherwise. "Expenses" shall not include any Liabilities.
5. "Independent Legal Counsel" means a law firm or member of a law firm
selected by the Company and approved by Indemnitee (which approval shall not be
unreasonably withheld) and that neither is presently nor in the past five years
has been retained to represent:
(a) the Company, in any material matter, or
(b) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Legal Counsel" shall not include any person who, under the applicable standards
of professional conduct then prevailing, would have a conflict of interest in
representing Indemnitee in an action to determine Indemnitee's right to
indemnification under this Agreement.
6. "Liabilities" means liabilities of any type whatsoever including, but
not limited to, any judgments, fines, penalties and amounts paid in settlement
(including all interest assessments and other charges paid or payable in
connection with or in respect of such judgments, fines, penalties or amounts
paid in settlement) of any Proceeding.
7. "Proceeding" means any threatened, pending or completed action, claim,
suit, arbitration, alternative dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, including any appeal therefrom.
