EXHIBIT 10.50
FORM OF
INDEMNIFICATION AGREEMENT
(DIRECTORS AND/OR OFFICERS)
THIS INDEMNIFICATION AGREEMENT ("Agreement"), is made and entered into
as of the ____ day of ___________, 2004, by and between RADIATION THERAPY
SERVICES, INC., a Florida corporation (the "Company"), and ____________________,
(the "Indemnitee").
RECITALS
WHEREAS, it is essential to the Company to retain and attract highly
qualified individuals to serve as directors and officers;
WHEREAS, the Company desires to retain the services of the Indemnitee
as a director and/or officer of the Company;
WHEREAS, the Company recognizes that the increased risk of litigation
and other claims being asserted against directors and officers of public
companies in today's environment it is necessary to provide indemnification for
directors and officers to assure their services;
WHEREAS, the Company and Indemnitee recognize that the costs and
expense of defending against such litigation, whether or not meritorious, is
beyond the financial resources of many individuals; and
WHEREAS, the Company is willing to indemnify the Indemnitee to the
maximum extent permitted by law in order to retain the services of the
Indemnitee.
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, and other good and valuable considerations, the
receipt and adequacy of which are hereby acknowledged, the Company and the
Indemnitee intending to be legally bound, agree as follows:
1. MANDATORY INDEMNIFICATION IN THIRD PARTY PROCEEDINGS. The Company shall
indemnify and hold harmless the Indemnitee from and against any and all claims,
damages, expenses (including attorneys' and other professionals' fees and
costs), judgments, settlements, penalties, fines (including excise taxes
assessed with respect to an employee benefit plan), amounts paid in settlement
and all other liabilities actually and reasonably incurred or paid by him in
connection with the investigation, defense, prosecution, settlement or appeal of
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise (other than an action by or
in the right of the Company) and to which the Indemnitee was or is a party or is
threatened to be made a party by reason of the fact that the Indemnitee is or
was an officer, director, shareholder, employee or agent of the Company, or is
or was serving at the request of the Company as an officer, director, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise, or by reason of anything done
or not done by the
Indemnitee in any such capacity or capacities, provided that the Indemnitee
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
2. MANDATORY INDEMNIFICATION IN PROCEEDINGS BY OR IN THE NAME OF THE
COMPANY. The Company shall indemnify and hold harmless the Indemnitee from and
against any and all expenses (including attorneys' and other professionals' fees
and costs) and amounts paid in settlement actually and reasonably incurred or
paid by him in connection with the investigation, defense, prosecution,
settlement or appeal of any threatened, pending or completed action, suit or
proceeding by or in the right of the Company to procure a judgment in its favor,
whether civil, criminal, administrative, investigative or otherwise, and to
which the Indemnitee was or is a party or is threatened to be made a party by
reason of the fact that the Indemnitee is or was an officer, director,
shareholder, employee or agent of the Company, or is or was serving at the
request of the Company as an officer, director, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of anything done or not done by
the Indemnitee in any such capacity or capacities, provided that (i) the
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, and (ii) no indemnification
shall be made under this Section 2 in respect of any claim, issue or matter as
to which the Indemnitee shall have been adjudged to be liable to the Company for
misconduct in the performance of his duty to the Company unless and only to the
extent that the court in which such action, suit or proceeding was brought (or
any other court of competent jurisdiction) shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, the Indemnitee is fairly and reasonably entitled to indemnity for
such expenses which such court shall deem proper.
3. REIMBURSEMENT OF EXPENSES FOLLOWING ADJUDICATION OF NEGLIGENCE. The
Company shall reimburse the Indemnitee for any expenses (including attorneys'
and other professionals' fees and costs) and amounts paid in settlement actually
and reasonably incurred or paid by him in connection with the investigation,
defense, settlement or appeal of any action or suit described in Section 2
hereof that results in an adjudication that the Indemnitee was liable for
negligence, gross negligence or recklessness (but not willful misconduct) in the
performance of his duties to the Company; provided, however, that the Indemnitee
acted in good faith and in a manner he believed to be in the best interests of
the Company.
4. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under Sections 1
and 2 hereof (unless ordered by a court) and any reimbursement made under
Section 3 hereof shall be made by the Company only as authorized in the specific
case upon a determination (the "Determination") that indemnification or
reimbursement of the Indemnitee is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct set forth in Section 1, 2
or 3 hereof, as the case may be. Subject to Sections 5.6, 5.7, 5.8 and 8 of this
Agreement, the Determination shall be made in the following order of preference:
(1) first, by the Company's Board of Directors (the
"Board") by majority vote or consent of a quorum consisting of directors
("Disinterested Directors") who are not, at the time of the Determination, named
parties to such action, suit or proceeding; or
(2) next, if such a quorum of Disinterested Directors
cannot be obtained, by majority vote or consent of a committee duly designated
by the Board (in which designation all directors, whether or not Disinterested
Directors, may participate) consisting solely of two or more Disinterested
Directors; or
(3) next, if such a committee cannot be designated, by
any independent legal counsel (who may be any outside counsel regularly employed
by the Company).
4.1 No Presumptions. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Company, and with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
4.2 Benefit Plan Conduct. The Indemnitee's conduct with respect to
an employee benefit plan for a purpose he reasonably believed to be in the
interests of the participants in and beneficiaries of the plan shall be deemed
to be conduct that the Indemnitee reasonably believed to be not opposed to the
best interests of the Company. Employee benefits plans shall include, but not be
limited to, stock incentive plans, stock option plans, stock award plans, stock
purchase plans, 401(k) plans, pension plans, health and welfare plans,
retirement plans and the like.
4.3 Reliance as Safe Harbor. For purposes of any Determination
hereunder, the Indemnitee shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, or, with respect to any criminal action or proceeding, to have had
no reasonable cause to believe her conduct was unlawful, if his action is based
on (i) the records or books of account of the Company or another enterprise,
including financial statements, (ii) information supplied to him by the officers
of the Company or another enterprise in the course of their duties, (iii) the
advice of legal counsel for the Company or another enterprise, or (iv)
information or records given or reports made to the Company or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Company or another enterprise.
The term "another enterprise" as used in this Section 4.3 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise of which the Indemnitee is or was serving at the request of the
Company as an officer, director, partner, trustee, employee or agent. The
provisions of this Section 4.3 shall not be deemed to be exclusive or to limit
in any way the other circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in Sections 1, 2 or 3 hereof,
as the case may be.
4.4 Success on Merits or Otherwise. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described in Section 1 or 2 hereof, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal thereof. For
purposes of this Section 4.4, the term "successful on the merits or otherwise"
shall include, but not be limited to, (i) any termination, withdrawal, or
dismissal (with or without prejudice) of any claim, action, suit or proceeding
against the Indemnitee without any express finding of liability or guilt against
him, (ii) the expiration of 120 days after the making of any claim or threat of
an action, suit or proceeding without the institution of the same and without
any promise or payment made to induce a settlement, or (iii) the settlement of
any action, suit or proceeding under Section 1, 2 or 3 hereof pursuant to which
the Indemnitee pays less than $50,000.
4.5 Partial Indemnification or Reimbursement. If the Indemnitee is
entitled under any provision of this Agreement to indemnification and/or
reimbursement by the Company for some or a portion of the claims, damages,
expenses (including attorneys' and other professionals' fees and costs)
judgments, fines or amounts paid in settlement by the Indemnitee in connection
with the investigation, defense, settlement or appeal of any action specified in
Section 1, 2 or 3 hereof, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify and/or reimburse the Indemnitee for the
portion thereof to which the Indemnitee is entitled. The party or parties making
the Determination shall determine the portion (if less than all) of such claims,
damages, expenses (including attorneys' fees), judgments, fines or amounts paid
in settlement for which the Indemnitee is entitled to indemnification and/or
reimbursement under this Agreement.
4.6 Limitations on Indemnification. No indemnification pursuant to
Sections 1 or 2 hereof shall be paid by the Company if a judgment (after
exhaustion of all appeals) or other final adjudication determines that the
Indemnitee's actions, or omissions to act, were material to the cause of action
so adjudicated and constitute:
(a) a violation of criminal law, unless the Indemnitee
had reasonable cause to believe his conduct was lawful or had no reasonable
cause to believe his conduct was unlawful;
(b) a transaction from which the Indemnitee derived an
improper personal benefit within the meaning of Section 607.0850(7) of the
Florida Business Corporation Act;
(c) in the event that the Indemnitee is a director of the
Company, a circumstance under which the liability provisions of Section 607.0834
of the Florida Business Corporation Act are applicable; or
(d) willful misconduct or conscious disregard for the
best interests of the Company in a proceeding by or in the right of the Company
to procure a judgment in its favor or in a proceeding by or in the right of a
shareholder of the Company.
Furthermore, the Company shall not be obligated to indemnify the
Indemnitee for:
(e) expenses or liabilities of any type whatsoever to the
extent that Indemnitee has otherwise actually received full payment (under any
insurance policy, provision of the
Company's articles of incorporation, bylaws or otherwise) of the amounts
otherwise payable hereunder;
(f) expenses and the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 16(b) of
the Securities Exchange Act or any similar successor statute;
(g) claims initiated or brought voluntarily by the
Indemnitee and not by way of defense, except with respect to proceedings brought
to establish or enforce a right to indemnification, unless the Board of
Directors has specifically approved the initiation or bringing of such suit.
5. PROCEDURES FOR DETERMINATION OF WHETHER STANDARDS HAVE BEEN SATISFIED.
5.1 Costs. All costs of making the Determination required by
Section 4 hereof shall be borne solely by the Company, including, but not
limited to, the costs of legal counsel, and judicial determinations. The Company
shall also be solely responsible for paying (i) all reasonable expenses incurred
by the Indemnitee to enforce this Agreement, including, but not limited to, the
costs incurred by the Indemnitee to obtain court-ordered indemnification
pursuant to Section 8 hereof, regardless of the outcome of any such application
or proceeding, and (ii) all costs of defending any suits or proceedings
challenging payments to the Indemnitee under this Agreement.
5.2 Timing of the Determination. The Company shall use its best
efforts to make the Determination contemplated by Section 4 hereof promptly. In
addition, the Company agrees:
(a) if the Determination is to be made by the Board or a
committee thereof, such Determination shall be made not later than 15 days after
a written request for a Determination (a "Request") is delivered to the Company
by the Indemnitee; and
(b) if the Determination is to be made by independent
legal counsel, such Determination shall be made not later than 30 days after a
Request is delivered to the Company by the Indemnitee.
The failure to make a Determination within the above-specified
time period shall constitute a Determination approving full indemnification or
reimbursement of the Indemnitee. Notwithstanding anything herein to the
contrary, a Determination may be made in advance of (i) the Indemnitee's payment
(or incurring) of expenses with respect to which indemnification or
reimbursement is sought, and/or (ii) final disposition of the action, suit or
proceeding with respect to which indemnification or reimbursement is sought.
5.3 Reasonableness of Expenses. The evaluation and finding as to
the reasonableness of expenses incurred by the Indemnitee for purposes of this
Agreement shall be made (in the following order of preference) within 15 days
after the Indemnitee's delivery to the Company of a Request that includes a
reasonable accounting of expenses incurred:
(a) first, by the Board by majority vote or consent of a
quorum consisting of Disinterested Directors; or
(b) next, if such a quorum cannot be obtained, by
majority vote or consent of a committee duly designated by the Board (in which
designation all directors, whether or not Disinterested Directors, may
participate), consisting solely of two or more Disinterested Directors; or
(c) next, if such a committee cannot be designated, by
any independent legal counsel (who may be any outside counsel regularly employed
by the Company).
All expenses shall be considered reasonable for purposes of
this Agreement if the finding contemplated by this Section 5.3 is not made
within the prescribed time. The finding required by this Section 5.3 may be made
in advance of the payment (or incurring) of the expenses for which
indemnification or reimbursement is sought.
5.4 Payment of Indemnified Amount. Immediately following a
Determination that the Indemnitee has met the applicable standard of conduct set
forth in Section 1, 2 or 3 hereof, as the case may be, and the finding of
reasonableness of expenses contemplated by Section 5.3 hereof, or the passage of
time prescribed for making such determination(s), the Company shall pay to the
Indemnitee in cash the amount to which the Indemnitee is entitled to be
indemnified and/or reimbursed, as the case may be, without further authorization
or action by the Board; provided, however, that the expenses for which
indemnification or reimbursement is sought have actually been incurred by the
Indemnitee.
5.5 Selection of Independent Legal Counsel. If the Determination
required under Section 4 is to be made by independent legal counsel, the
Indemnitee with the approval of the Board, which approval shall not be
unreasonably withheld, shall select such counsel. The fees and expenses incurred
by counsel in making any Determination (including Determinations pursuant to
Section 5.8 hereof) shall be borne solely by the Company regardless of the
results of any Determination and, if requested by counsel, the Company shall
give such counsel an appropriate written agreement with respect to the payment
of their fees and expenses and such other matters as may be reasonably requested
by counsel.
5.6 Right of Indemnitee To Select Forum For Determination. If, at
any time subsequent to the date of this Agreement, "Continuing Directors" do not
constitute a majority of the members of the Board, or there is otherwise a
change in control of the Company (as contemplated by Item 403(c) of Regulation
S-K), then upon the request of the Indemnitee, the Company shall cause the
Determination required by Section 4 hereof to be made by independent legal
counsel selected by the Indemnitee and approved by the Board (which approval
shall not be unreasonably withheld), which counsel shall be deemed to satisfy
the requirements of clause (3) of Section 4 hereof. If none of the legal counsel
selected by the Indemnitee are willing and/or able to make the Determination,
then the Company shall cause the Determination to be made by a majority vote or
consent of a Board committee consisting solely of Continuing Directors. For
purposes of this Agreement, a "Continuing Director" means either a member of the
Board at the
date of this Agreement or a person nominated to serve as a member of the Board
by a majority of the then Continuing Directors.
5.7 Access by Indemnitee to Determination. The Company shall
afford to the Indemnitee and his representatives ample opportunity to present
evidence of the facts upon which the Indemnitee relies for indemnification or
reimbursement, together with other information relating to any requested
Determination.
5.8 Judicial Determinations in Derivative Suits. In each action or
suit described in Section 2 hereof, the Company shall cause its counsel to use
its best efforts to obtain from the Court in which such action or suit was
brought (i) an express adjudication whether the Indemnitee is liable for
negligence or misconduct in the performance of her duty to the Company, and, if
the Indemnitee is so liable, (ii) a determination whether and to what extent,
despite the adjudication of liability but in view of all the circumstances of
the case (including this Agreement), the Indemnitee is fairly and reasonably
entitled to indemnification.
6. SCOPE OF INDEMNITY. The actions, suits and proceedings described in
Sections 1 and 2 hereof shall include, for purposes of this Agreement, any
actions that involve, directly or indirectly, activities of the Indemnitee both
in his official capacities as a Company director or officer and actions taken in
another capacity while serving as director or officer, including, but not
limited to, actions or proceedings involving (i) compensation paid to the
Indemnitee by the Company, (ii) activities by the Indemnitee on behalf of the
Company, including actions in which the Indemnitee is plaintiff, (iii) actions
alleging a misappropriation of a "corporate opportunity," (iv) responses to a
takeover attempt or threatened takeover attempt of the Company, (v) transactions
by the Indemnitee in Company securities, and (vi) the Indemnitee's preparation
for and appearance (or potential appearance) as a witness in any proceeding
relating, directly or indirectly, to the Company. In addition, the Company
agrees that, for purposes of this Agreement, all services performed by the
Indemnitee on behalf of, in connection with or related to any subsidiary of the
Company, any employee benefit plan established for the benefit of employees of
the Company or any subsidiary, any corporation or partnership or other entity in
which the Company or any subsidiary has a 5% ownership interest, or any other
affiliate of the Company, shall be deemed to be at the request of the Company.
7. ADVANCE FOR EXPENSES.
7.1 Mandatory Advance. Expenses (including attorneys' fees, court
costs, judgments, fines, amounts paid in settlement and other payments) incurred
by the Indemnitee in investigating, defending, settling or appealing any action,
suit or proceeding described in Section 1 or 2 hereof shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding.
The Company shall promptly pay the amount of such expenses to the Indemnitee,
but in no event later than 10 days following the Indemnitee's delivery to the
Company of a written request for an advance pursuant to this Section 7, together
with a reasonable accounting of such expenses.
7.2 Undertaking to Repay. The Indemnitee hereby undertakes and
agrees to repay to the Company any advances made pursuant to this Section 7 if
and to the extent that it shall
ultimately be found that the Indemnitee is not entitled to be indemnified by the
Company for such amounts.
7.3 Miscellaneous. The Company shall make the advances
contemplated by this Section 7 regardless of the Indemnitee's financial ability
to make repayment, and regardless whether indemnification of the Indemnitee by
the Company will ultimately be required. Any advances and undertakings to repay
pursuant to this Section 7 shall be unsecured and interest-free.
8. COURT-ORDERED INDEMNIFICATION. Regardless whether the Indemnitee has
met the standard of conduct set forth in Sections 1, 2 or 3 hereof, as the case
may be, and notwithstanding the presence or absence of any Determination whether
such standards have been satisfied, the Indemnitee may apply for indemnification
(and/or reimbursement pursuant to Section 3 or 12 hereof) to the court
conducting any proceeding to which the Indemnitee is a party or to any other
court of competent jurisdiction. On receipt of an application, the court, after
giving any notice the court considers necessary, may order indemnification
(and/or reimbursement) if it determines the Indemnitee is fairly and reasonably
entitled to indemnification (and/or reimbursement) in view of all the relevant
circumstances (including this Agreement).
9. NONDISCLOSURE OF PAYMENTS. Except as expressly required by Federal
securities laws, neither party shall disclose any payments under this Agreement
unless prior approval of the other party is obtained. Any payments to the
Indemnitee that must be disclosed shall, unless otherwise required by law, be
described only in Company proxy or information statements relating to special
and/or annual meetings of the Company's shareholders, and the Company shall
afford the Indemnitee the reasonable opportunity to review all such disclosures
and, if requested, to explain in such statement any mitigating circumstances
regarding the events reported.
10. COVENANT NOT TO XXX, LIMITATION OF ACTIONS AND RELEASE OF CLAIMS. No
legal action shall be brought and no cause of action shall be asserted by or on
behalf of the Company (or any of its subsidiaries) against the Indemnitee, his
spouse, heirs, executors, personal representatives or administrators after the
expiration of two years following the date the Indemnitee ceases (for any
reason) to serve as either an executive officer or director of the Company, and
any and all such claims and causes of action of the Company (or any of its
subsidiaries) shall be extinguished and deemed released unless asserted by
filing of a legal action within such two-year period.
11. INDEMNIFICATION OF INDEMNITEE'S ESTATE. Notwithstanding any other
provision of this Agreement, and regardless whether indemnification of the
Indemnitee would be permitted and/or required under this Agreement, if the
Indemnitee is deceased, the Company shall indemnify and hold harmless the
Indemnitee's estate, spouse, heirs, administrators, personal representatives and
executors (collectively the "Indemnitee's Estate") against, and the Company
shall assume, any and all claims, damages, expenses (including attorneys' and
other professionals' fees and costs), penalties, judgments, fines and amounts
paid in settlement actually incurred by the Indemnitee or the Indemnitee's
Estate in connection with the investigation, defense, settlement or appeal of
any action described in Section 1 or 2 hereof. Indemnification of the
Indemnitee's Estate pursuant to
this Section 11 shall be mandatory and not require a Determination or any other
finding that the Indemnitee's conduct satisfied a particular standard of
conduct.
12. REIMBURSEMENT OF ALL LEGAL EXPENSES. Notwithstanding any other
provision of this Agreement, and regardless of the presence or absence of any
Determination, the Company promptly (but not later than 30 days following the
Indemnitee's submission of a reasonable accounting) shall reimburse the
Indemnitee for all attorneys' fees and related court costs and other expenses
incurred by the Indemnitee (but not for judgments, penalties, fines or amounts
paid in settlement) in connection with the investigation, defense, settlement or
appeal of any action described in Section 1 or 2 hereof (including, but not
limited to, the matters specified in Section 6 hereof).
13. 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 their
terms and to the maximum extent of insurance coverage available for any director
and/or officer of the Company.
14. MISCELLANEOUS.
14.1 Notice Provision. Any notice, payment, demand or communication
required or permitted to be delivered or given by the provisions of this
Agreement shall be deemed to have been effectively delivered or given and
received on the date personally delivered to the respective party to whom it is
directed, or when deposited by registered or certified mail, with postage and
charges prepaid and addressed to the parties at the respective addresses set
forth below opposite their signatures to this Agreement, or to such other
address as to which notice is given.
14.2 Entire Agreement. Except for any additional indemnification
set forth in Company's articles of incorporation or bylaws, this Agreement
constitutes the entire understanding of the parties and supersedes all prior
understandings, whether written or oral, between the parties with respect to the
subject matter of this Agreement.
14.3 Severability of Provisions. If any provision of this Agreement
is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of each such illegal, invalid, or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid, and enforceable.
14.4 Applicable Law. This Agreement shall be governed by and
construed under the laws of the State of Florida.
14.5 Execution in Counterparts. This Agreement and any amendment
may be executed simultaneously or in two or more counterparts, each of which
together shall constitute one and the same instrument.
14.6 Cooperation and Intent. The Company shall cooperate in good
faith with the Indemnitee and use its best efforts to ensure that the Indemnitee
is indemnified and/or reimbursed for liabilities described herein to the fullest
extent permitted by law.
14.7 Amendment. No amendment, modification or alteration of the
terms of this Agreement shall be binding unless in writing, dated subsequent to
the date of this Agreement, and executed by the parties.
14.8 Binding Effect. The obligations of the Company to the
Indemnitee hereunder shall survive and continue as to the Indemnitee even if the
Indemnitee ceases to be a director, officer, employee and/or agent of the
Company. Each and all of the covenants, terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the successors to the Company
and, upon the death of the Indemnitee, to the benefit of the estate, heirs,
executors, administrators and personal representatives of the Indemnitee.
14.9 Gender and Number. Wherever the context shall so require, all
words herein in the male gender shall be deemed to include the female or neuter
gender, all singular words shall include the plural and all plural words shall
include the singular.
14.10 Nonexclusivity. The rights of indemnification and
reimbursement provided in this Agreement shall be in addition to any rights to
which the Indemnitee may otherwise be entitled by statute, articles of
incorporation, bylaw, agreement, or otherwise.
14.11 Effective Date. The provisions of this Agreement shall cover
claims, actions, suits and proceedings whether now pending or hereafter
commenced and shall be retroactive to cover acts or omissions or alleged acts or
omissions which heretofore have taken place.
14.12 Changes in the Law. If any change after the date of this
Agreement in any applicable law, statute or the Company's articles of
incorporation or bylaws expand the power of the Company to indemnify its
directors and/or officers, this Agreement shall be deemed amended to include
such provisions herein.
14.13 Agreement to Serve. Indemnitee agrees to serve or continue to
serve as a director and/or officer of the Company at the will of the Company or
under separate contract or agreement, as the case may be, for so long as
Indemnitee is duly elected or appointed or until such time Indemnitee resigns in
writing.
14.14 Duration of Agreement. This Agreement shall continue until and
terminate upon the later of five (5) years after the date that Indemnitee ceased
to serve as a director and/or officer of the date of the final termination of
any proceedings subject to this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
THE COMPANY:
RADIATION THERAPY SERVICES, INC.
By:
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THE INDEMNITEE:
Name:
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