EXHIBIT 10.16
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered into
as of the ____ day of _______________, 2006, by and between HealthSpring, Inc.,
a Delaware corporation (the "Company"), and the undersigned ("Indemnitee").
RECITALS
WHEREAS, it is essential to the Company that it attract and retain as
directors and officers the most capable persons available; and
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
public companies in the current environment; and
WHEREAS, Indemnitee is willing to serve as a director and/or officer of the
Company if Indemnitee is adequately and reasonably protected against the risks
associated with such service; and
WHEREAS, Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), under which law the Company is organized, empowers a
corporation to indemnify a person serving as a director or officer of the
Company and a person who serves at the request of the company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise, and Section 145 of the DGCL and the certificate of
incorporation of the Company specify that the indemnification set forth in
Section 145 and in the certificate of incorporation, respectively, shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any law (common or statutory), agreement, vote of stockholders
or disinterested directors or otherwise; and
WHEREAS, the Company and Indemnitee have concluded that the indemnities
available under the Company's certificate of incorporation, bylaws and any
insurance now or hereafter in effect need to be supplemented to more fully
protect the Indemnitee against the risks associated with the Indemnitee's
service to the Company; and
WHEREAS, in recognition of Indemnitee's need for additional protection
against personal liability in order to enhance and enable Indemnitee's service
to the Company in an effective manner, and in order to induce Indemnitee to
provide services to the Company as a director and/or officer thereof, the
Company wishes to provide in this Agreement for the indemnification of
Indemnitee to the fullest extent permitted by the DGCL and as set forth in this
Agreement.
NOW THEREFORE, in consideration of the foregoing, the covenants contained
herein and Indemnitee's continued service to the Company, the Company and
Indemnitee, intending to be legally bound, hereby agree as follows:
Section 1.Definitions. The following terms, as used herein, shall have the
following respective meanings:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings relative to the
foregoing.
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"Change in Control" shall be deemed to have taken place if: (i) any person
or group of persons (as such term is defined in Rule 13d-5(b)(1) promulgated
under the Securities Exchange Act of 1934, as amended to date the "Exchange
Act") acquires shares carrying more than thirty percent (30%) of the voting
rights at general meetings of the Company, (ii) the stockholders of the Company
approve a merger or consolidation of the Company with any other company, other
than (x) a merger or consolidation which actually results in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or (y) a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no person or group of persons acquires more
than fifty percent (50%) of the combined voting power of the Company's then
outstanding securities, (iii) the stockholders of the Company approve a plan of
complete liquidation of the Company or an arrangement for the sale or
disposition of the Company or all or substantially all of the Company's overall
assets or any transaction having a similar effect; or (iv) individuals who, as
of the date of this Agreement, constitute the Board of Directors of the Company
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the date of this Agreement whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Incumbent Board; provided, that no Change in Control shall be deemed to result
from any corporate changes to the Company's certificate of incorporation or
by-laws at the Company not resulting from one of the events specified above or
from any change in the relative rights and powers of one or more classes of the
Company's capital stock whether effected by contract or otherwise, in each case
to the extent that they result from or are related to the settlement of any
criminal or civil litigation or do not result in the occurrence of any of the
events specified in clauses (i) through (iv) of this definition.
"Claim" means (a) any threatened, pending or completed action, suit,
proceeding or arbitration or other alternative dispute resolution mechanism, or
(b) any inquiry, hearing or investigation, conducted by any third party, that
Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or arbitration or other alternative dispute resolution
mechanism, in each case whether civil, criminal, administrative or other
(whether or not the claims or allegations therein are groundless, false or
fraudulent) and includes, without limitation, those brought by or in the name of
the Company or any director or officer of the Company.
"Company Agent" means any director, officer, partner, employee, agent,
trustee or fiduciary of the Company, any Subsidiary or any Other Enterprise.
"Covered Event" means any event or occurrence on or after the date of this
Agreement related to the fact that Indemnitee is or was a Company Agent or
related to anything done or not done by Indemnitee in any such capacity, and
includes, without limitation, any such event or occurrence (a) arising from
performance of the responsibilities, obligations or duties imposed by ERISA or
any similar applicable provisions of state or common law; or (b) arising from
any merger, consolidation or other business combination involving the Company,
any Subsidiary or any Other Enterprise, including without limitation any sale or
other transfer of all or substantially all of the business or assets of the
Company, any Subsidiary or any Other Enterprise; provided, however, that in any
such case, Indemnitee acted in good faith and in a manner which such Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, and in the case of a criminal proceeding, in addition the Indemnitee
(x) had no
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reasonable cause to believe that such Indemnitee's conduct was unlawful and (y)
has not admitted that Indemnitee's conduct was unlawful.
"D&O Insurance" means the directors' and officers' liability insurance of
the Company as of the date of this Agreement and any replacement or substitute
policies issued by one or more insurers rated "A" or better by A.M. Best
Company, Inc. providing, unless otherwise approved by the Board of Directors of
the Company, in all respects coverage at least comparable to and in the same
amount as that provided under the Company's existing policies.
"Determination" means a determination made by (a) a majority vote of
Disinterested Directors even if less than a quorum; (b) Independent Legal
Counsel, in a written opinion addressed to the Company and Indemnitee; (c) the
stockholders of the Company; or (d) a decision by a court of competent
jurisdiction not subject to further appeal.
"Disinterested Director" shall be a director of the Company who is not or
was not a party to the Claim giving rise to the subject matter of a
Determination.
"Expenses" includes the reasonable fees and expenses of one firm of
attorneys (and one local counsel in each relevant jurisdiction) and all other
costs, travel expenses, fees of experts, transcript costs, filing fees, witness
fees, telephone charges, postage, copying costs, delivery service fees and other
expenses and obligations of any nature whatsoever paid or incurred in connection
with investigating, prosecuting or defending, being a witness in or
participating in (including on appeal), or preparing to defend, be a witness in
or participate in any Claim, for which Indemnitee is or becomes legally
obligated to pay.
"Independent Legal Counsel" shall mean a law firm or a member of a law firm
that (a) neither is nor in the past three (3) years has been retained to
represent in any material matter the Company, any Subsidiary, Indemnitee or any
other party to the Claim, (b) under applicable standards of professional conduct
then prevailing would not have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee's rights to
indemnification under this Agreement and (c) is reasonably acceptable to the
Company and Indemnitee.
"Loss" means any amount which Indemnitee is legally obligated to pay as a
result of any Claim, including, without limitation (a) all judgments, penalties
and fines, and amounts paid or to be paid in settlement, (b) all interest,
assessments and other charges paid or payable in connection therewith and (c)
any federal, state, local or foreign taxes imposed (net of the value to
Indemnitee of any tax benefits resulting from tax deductions or otherwise as a
result of the actual or deemed receipt of any payments under this Agreement).
"Other Enterprise" means any corporation (other than the Company or any
Subsidiary), partnership, joint venture, association, employee benefit plan,
trust or other enterprise or organization to which Indemnitee renders service at
the request of the Company or any Subsidiary.
"Parent" shall have the meaning set forth in the regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as amended;
provided the term "Parent" shall not include the board of directors of a
corporation in its capacity as a board of directors, and provided further that
if the other party to any transaction referred to in Section 11.2 has no Parent
as so defined above, "Parent" shall mean such other party.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government (or any subdivision, department, commission
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or agency thereof), and includes without limitation any "person", as such term
is used in Sections 13(d) and 14(d) of the Exchange Act.
"Potential Change in Control" shall be deemed to have occurred if (a) the
Company enters into an agreement or arrangement the consummation of which would
result in the occurrence of a Change in Control, (b) any Person (including the
Company) publicly announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control or (c) the Board of
Directors of the Company adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change in Control has occurred.
"Subsidiary" means any entity of which more than fifty percent (50%) of the
outstanding securities having ordinary voting power to elect a majority of the
board of directors or managers, as applicable, of such entity is now or
hereafter owned, directly or indirectly, by the Company.
"Voting Securities" means any securities of the Company which vote
generally in the election of directors.
Section 2. Indemnification.
2.1. General Indemnity Obligation.
2.1.1. Subject to the remaining provisions of this Agreement, the
Company hereby indemnifies and holds Indemnitee harmless for any Losses or
Expenses arising from any Claims relating to (or arising in whole or in part out
of) any Covered Event, including without limitation, any Claim the basis of
which is any actual or alleged breach of duty, neglect, error, misstatement,
misleading statement, omission or other act done or attempted by Indemnitee in
the capacity as a Company Agent, whether or not Indemnitee is acting or serving
in such capacity at the date of this Agreement, at the time liability is
incurred or at the time the Claim is initiated.
2.1.2. The obligations of the Company under this Agreement shall apply
to the fullest extent authorized or permitted by the provisions of applicable
law, as presently in effect or as changed after the date of this Agreement,
whether by statute or judicial decision (but, in the case of any subsequent
change, only to the extent that such change permits the Company to provide
broader indemnification than permitted prior to giving effect thereto).
2.1.3. Indemnitee shall not be entitled to indemnification pursuant to
this Agreement in connection with any Claim initiated by Indemnitee against the
Company or any director or officer of the Company, unless the Company has joined
in or consented to the initiation of such Claim; provided, the provisions of
this Section 2.1.3 shall not apply (i) following a Change in Control to Claims
seeking enforcement of this Agreement, the certificate of incorporation or
bylaws of the Company or any other agreement now or hereafter in effect relating
to indemnification for Covered Events or (ii) absent a Change in Control, to
Claims seeking enforcement of this Agreement, the certificate of incorporation
or bylaws of the Company or any other agreement now or hereafter in effect
relating to indemnification for Covered Events, but only if the Indemnitee is
ultimately determined to be entitled to indemnification.
2.1.4. If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Company for some or a portion of the Losses or
Expenses paid with respect to a Claim but not, however, for the total amount
thereof, the Company shall nevertheless indemnify and hold Indemnitee harmless
against the portion thereof to which Indemnitee is entitled.
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2.1.5. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any or all Claims relating to (or arising in whole or in part out of) a
Covered Event or in defense of any issue or matter therein, including dismissal
without prejudice, the Company shall indemnify and hold Indemnitee harmless
against all Expenses incurred in connection therewith.
2.2. Indemnification for Serving as Witness and Certain Other Claims.
Notwithstanding any other provision of this Agreement, the Company hereby
indemnifies and holds Indemnitee harmless for all Expenses in connection with
(a) the preparation to serve or service as a witness in any Claim in which
Indemnitee is not a party, if such actual or proposed service as a witness arose
by reason of Indemnitee having served as a Company Agent on or after the date of
this Agreement and (b) any Claim initiated by Indemnitee on or after the date of
this Agreement (i) for recovery under any D&O Insurance maintained by the
Company; (ii) following a Change in Control, for enforcement of the
indemnification obligations of the Company under this Agreement, the Certificate
of Incorporation or Bylaws of the Company or any other agreement now or
hereafter in effect relating to indemnification for Covered Events, regardless
of whether Indemnitee ultimately is determined to be entitled to such insurance
recovery or indemnification, as the case may be; or (iii) absent a Change in
Control, for enforcement of this Agreement, the Certificate of Incorporation or
Bylaws of the Company or any other agreement now or hereafter in effect relating
to indemnification for Covered Events, but only if the Indemnitee is ultimately
determined to be entitled to indemnification.
Section 3. Limitation on Indemnification.
3.1. Coverage Limitations. No indemnification is available pursuant to the
provisions of this Agreement:
3.1.1. If such indemnification is not lawful;
3.1.2. If Indemnitee's conduct giving rise to the Claim with respect
to which indemnification is requested was knowingly fraudulent, a knowing
violation of law, deliberately dishonest or in bad faith or constituted willful
misconduct;
3.1.3. In respect of any Claim based upon or attributable to
Indemnitee gaining in fact any personal profit or advantage to which Indemnitee
was not legally entitled;
3.1.4. In respect of any Claim based upon or in connection with a
proceeding by or in the right of the Company in which Indemnitee was adjudged
liable to the Company unless and only to the extent that the Court of Chancery
of Delaware shall determine upon application that, despite the adjudication of
such liability but in view of all circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such expenses (including
attorney's fee) which the Court of Chancery of Delaware shall deem proper; or
3.1.5. In respect of any Claim for an accounting of profits made from
the purchase or sale by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Exchange Act; or
3.1.6. With respect to any related Claim or Expense, if Indemnitee
does not cooperate fully with any investigation or inquiry, whether
governmental, regulatory or otherwise, which cooperation includes, but is not
limited to, providing complete and prompt access to all information requested,
and to comply with all interview requests. This provision applies to all
investigations, regardless of whether they are conducted by the Company, any of
its agents or its counsel, or any outside regulator or prosecutor, including but
not limited to, the Department of Justice, the Securities and Exchange
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Commission, the Federal Bureau of Investigation, or any state or local law
enforcement or regulatory authority.
3.2. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment otherwise due and payable to the extent Indemnitee
has otherwise actually received payment (whether under the certificate of
incorporation or the bylaws of the Company, the D&O Insurance or otherwise) of
any amounts otherwise due and payable under this Agreement.
Section 4. Payments and Determinations.
4.1. Advancement and Reimbursement of Expenses. If requested by Indemnitee,
the Company shall advance to Indemnitee, no later than ten (10) business days
following any such request, any and all Expenses for which indemnification is
available under Section 2 (after giving effect to Section 3). In order to obtain
such advancement or reimbursement, the Indemnitee must also furnish to the
Company a written affirmation of his good faith belief that he has conducted
himself in good faith and that he reasonably believed that: (1) In the case of
conduct in his official capacity with the corporation, that his conduct was in
its best interest; and (2) in all other cases, that his conduct was at least not
opposed to its best interests; and (3) in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful and has not
admitted that his conduct was unlawful. In addition, Indemnitee must furnish to
the Company a written undertaking, executed personally or on his behalf, to
repay the advance if it is ultimately determined that he is not entitled to
indemnification. Upon any Determination that Indemnitee is not permitted to be
indemnified for any Expenses so advanced, Indemnitee hereby agrees to reimburse
the Company for all such amounts previously paid. Such obligation of
reimbursement shall be unsecured and no interest shall be charged thereon.
4.2. Payment and Determination Procedures.
4.2.1. To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, together with such documentation
and information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board of Directors in writing
that Indemnitee has requested indemnification.
4.2.2. Upon written request by Indemnitee for indemnification pursuant
to Section 4.2.1, a Determination with respect to Indemnitee's entitlement
thereto shall be made in the specific case (a) if a Change in Control shall have
occurred, as provided in Section 4.2.3; and (b) if a Change in Control shall not
have occurred, by (i) the Board of Directors by a majority vote of Disinterested
Directors, (ii) Independent Legal Counsel, if either (A) there are no
Disinterested Directors or (B) a majority vote of Disinterested Directors
otherwise so directs or (iii) the stockholders of the Company (if submitted by
the Board of Directors) but shares of stock owned by or voted under the control
of any Indemnitee who is at the time party to the proceeding may not be voted.
If a Determination is made that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within ten (10) days after such
Determination.
4.2.3. If there is a Change in Control, any Determination to be made
under Section 4 shall be made by Independent Legal Counsel selected by
Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld).
4.2.4. If no Determination is made within sixty (60) days after
receipt by the Company of a request for indemnification by Indemnitee pursuant
to Section 4.2.1, a Determination shall be deemed to have been made that
Indemnitee is entitled to the requested indemnification (and the Company shall
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pay the related Losses and Expenses no later than ten (10) days after the
expiration of such 60-day period), except where such indemnification is not
lawful; provided, however, that (a) such 60-day period may be extended for a
reasonable time, not to exceed an additional thirty (30) days, if the Person or
Persons making the Determination in good faith require such additional time for
obtaining or evaluating the documentation and information relating thereto; and
(b) the foregoing provisions of this Section 4.2.4 shall not apply (i) if the
Determination is to be made by the stockholders of the Company and if (A) within
fifteen (15) days after receipt by the Company of the request by Indemnitee
pursuant to Section 4.2.1 the Board of Directors has resolved to submit such
Determination to the stockholders at an annual meeting of the stockholders to be
held within seventy-five (75) days after such receipt, and such Determination is
made at such annual meeting, or (B) a special meeting of stockholders is called
within fifteen (15) days after such receipt for the purpose of making such
Determination, such meeting is held for such purpose within sixty (60) days
after having been so called and such Determination is made at such special
meeting, or (ii) if the Determination is to be made by Independent Legal
Counsel.
Section 5. D & O Insurance.
5.1. Continued Coverage. The Company shall maintain, to the extent
practicable, the D&O Insurance for so long as this Agreement remains in effect.
The Company shall cause the D&O Insurance to cover Indemnitee, in accordance
with its terms and at all times such insurance is in effect, to the maximum
extent of the coverage provided thereby for any director or officer of the
Company.
5.2. Indemnification. In the event of any reduction in, or cancellation of,
the D&O Insurance (whether voluntary or involuntary on behalf of the Company),
the Company shall, and hereby agrees to, indemnify and hold Indemnitee harmless
against any Losses or Expenses which Indemnitee is or becomes obligated to pay
as a result of the Company's failure to maintain the D&O Insurance in effect in
accordance with the provisions of Section 5.2, to the fullest extent permitted
by applicable law, notwithstanding any provision of the certificate of
incorporation or the bylaws of the Company, or any other agreement now or
hereafter in effect relating to indemnification for Covered Events. The
indemnification available under this Section 5.2 is in addition to all other
obligations of indemnification of the Company under this Agreement and shall be
the only remedy of Indemnitee for a breach by the Company of its obligations set
forth in Section 5.2.
Section 6. Subrogation. In the event of any payment under this Agreement to
or on behalf of Indemnitee, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery of Indemnitee against any Person
other than the Company or Indemnitee in respect of the Claim giving rise to such
payment. Indemnitee shall execute all papers reasonably required and shall do
everything reasonably necessary to secure such rights, including the execution
of such documents reasonably necessary to enable the Company effectively to
bring suit to enforce such rights.
Section 7. Notification and Defense of Claims.
7.1. Notice by Indemnitee. Indemnitee shall give notice in writing to the
Company as soon as practicable after Indemnitee becomes aware of any Claim with
respect to which indemnification will or could be sought under this Agreement;
provided the failure of Indemnitee to give such notice, or any delay in giving
such notice, shall not relieve the Company of its obligations under this
Agreement except to the extent the Company is actually prejudiced by any such
failure or delay.
7.2. Insurance. The Company shall give prompt notice of the commencement of
any Claim relating to Covered Events to the insurers on the D&O Insurance, if
any, in accordance with the procedures set forth in the respective policies in
favor of Indemnitee. The Company shall thereafter take
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all necessary action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Claims in accordance with the terms of such
policies.
7.3. Defense.
7.3.1. In the event any Claim relating to Covered Events is by or in
the right of the Company, Indemnitee may, at the option of Indemnitee, either
control the defense thereof or accept the defense provided under the D&O
Insurance; provided, however, that Indemnitee may not control the defense if
such decision would jeopardize the coverage provided by the D&O Insurance, if
any, to the Company or the other directors and officers covered thereby, and
also provided that the amounts expended by the Company shall be reimbursed to
the Company by the Indemnitee if the standards and requirements of Section 145
of the DGCL so require.
7.3.2. In the event any Claim relating to Covered Events is other than
by or in the right of the Company, Indemnitee may, at the option of Indemnitee,
either control the defense thereof, require the Company to defend or accept the
defense provided under the D&O Insurance; provided, however, that Indemnitee may
not control the defense or require the Company to defend if such decision would
jeopardize the coverage provided by the D&O Insurance to the Company or the
other directors and officers covered thereby. In the event that Indemnitee
requires the Company to so defend, or in the event that Indemnitee proceeds
under the D&O Insurance but Indemnitee determines that such insurers under the
D&O Insurance are unable or unwilling to adequately defend Indemnitee against
any such Claim, the Company shall promptly undertake to defend any such Claim,
at the Company's sole cost and expense, utilizing counsel of Indemnitee's choice
who has been approved by the Company. If appropriate, the Company shall have the
right to participate in the defense of any such Claim.
7.3.3. In the event the Company shall fail, as required by any
election by Indemnitee pursuant to Section 7.3.2, timely to defend Indemnitee
against any such Claim, Indemnitee shall have the right to do so, including
without limitation, the right (notwithstanding Section 7.3.4) to make any
settlement thereof, and to recover from the Company, to the extent otherwise
permitted by this Agreement, all Expenses and Losses paid as a result thereof.
7.3.4. The Company shall have no obligation under this Agreement with
respect to any amounts paid or to be paid in settlement of any Claim without the
express prior written consent of the Company to any related settlement. In no
event shall the Company authorize any settlement imposing any liability or other
obligations on Indemnitee without the express prior written consent of
Indemnitee. Neither the Company nor Indemnitee shall unreasonably withhold
consent to any proposed settlement.
Section 8. Determinations and Related Matters.
8.1. Presumptions. The termination of any claim by judgment, order or
settlement (whether with or without court approval) or any conviction, guilty
plea or plea of nolo contendere or its equivalent, which such conviction or plea
does not establish (through the Executive's admission or otherwise) that the
Executive's conduct was not subject to indemnification hereunder, shall not
adversely affect either the right of Indemnitee to indemnification under this
Agreement or the presumptions to which Indemnitee is otherwise entitled pursuant
to the provisions of this Agreement nor create a presumption that Indemnitee did
not meet any particular standard of conduct or have a particular belief or that
a court has determined that indemnification is not permitted by applicable law.
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8.2. Appeals; Enforcement.
8.2.1. In the event that (a) a Determination is made that Indemnitee
shall not be entitled to indemnification under this Agreement, (b) any
Determination to be made by Independent Legal Counsel is not made within ninety
(90) days of receipt by the Company of a request for indemnification pursuant to
Section 4.2.1 or (c) the Company fails to otherwise perform any of its
obligations under this Agreement (including, without limitation, its obligation
to make payments to Indemnitee following any Determination made or deemed to
have been made that such payments are appropriate), Indemnitee shall have the
right to commence a Claim in any court of competent jurisdiction, as
appropriate, to seek a Determination by the court, to challenge or appeal any
Determination which has been made, or to otherwise enforce this Agreement. Any
such judicial proceeding challenging or appealing any Determination shall be
deemed to be conducted de novo and without prejudice by reason of any prior
Determination to the effect that Indemnitee is not entitled to indemnification
under this Agreement.
8.2.2. If a Determination shall have been made or deemed to have been
made pursuant to this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such Determination in any judicial proceeding
commenced pursuant to this Section 8.2, except if such indemnification is
unlawful.
8.2.3. The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 8.2 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such proceeding that the Company is bound by all the provisions
of this Agreement. The Company hereby consents to service of process and to
appear in any judicial proceedings and shall not oppose Indemnitee's right to
commence any such proceedings.
8.3. Procedures. Indemnitee shall cooperate with the Company and with any
Person making any Determination with respect to any Claim for which a claim for
indemnification under this Agreement has been made, as the Company may
reasonably require. Indemnitee shall provide to the Company or the Person making
any Determination, upon reasonable advance request, any documentation or
information reasonably available to Indemnitee and necessary to (a) the Company
with respect to any such Claim or (b) the Person making any Determination with
respect thereto.
Section 9. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company, any
Subsidiary, any Other Enterprise or any Affiliate of the Company against
Indemnitee or Indemnitee's spouse, heirs, executors, administrators or personal
or legal representatives after the expiration of two years from the date of
accrual of such cause of action, and any claim or cause of action of the
Company, any Subsidiary, any Other Enterprise or any Affiliate of the Company
shall be extinguished and deemed released unless asserted by the timely filing
of a legal action within such two-year period; provided, however, that if any
shorter period of limitations, whether established by statute or judicial
decision, is otherwise applicable to any such cause of action such shorter
period shall govern.
Section 10. Contribution. If the indemnification provisions of this
Agreement should be unenforceable under applicable law in whole or in part or
insufficient to hold Indemnitee harmless in respect of any Losses and Expenses
incurred by Indemnitee, then for purposes of this Section 10, the Company shall
be treated as if it were, or was threatened to be made, a party defendant to the
subject Claim and the Company shall contribute to the amounts paid or payable by
Indemnitee as a result of such Losses and Expenses incurred by Indemnitee in
such proportion as is appropriate to reflect the relative benefits accruing to
the Company on the one hand and Indemnitee on the other and the relative fault
of the Company on the one hand and Indemnitee on the other in connection with
such Claim, as well as any other relevant equitable considerations. For purposes
of this Section 10 the relative benefit of the
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Company shall be deemed to be the benefits accruing to it and to all of its
directors, officers, employees and agents (other than Indemnitee) on the one
hand, as a group and treated as one entity, and the relative benefit of
Indemnitee shall be deemed to be an amount not greater than the Indemnitee's
yearly base salary or Indemnitee's compensation from the Company during the
first year in which the Covered Event forming the basis for the subject Claim
was alleged to have occurred. The relative fault shall be determined by
reference to, among other things, the fault of the Company and all of its
directors, officers, employees and agents (other than Indemnitee) on the one
hand, as a group and treated as one entity, and Indemnitee's and such group's
relative intent, knowledge, access to information and opportunity to have
altered or prevented the Covered Event forming the basis for the subject Claim.
Section 11. Miscellaneous Provisions.
11.1. Successors and Assigns, Etc. This Agreement shall be binding upon and
inure to the benefit of (a) the Company, its successors and assigns (including
any direct or indirect successor by merger, consolidation or operation of law or
by transfer of all or substantially all of its assets) and (b) Indemnitee and
the heirs, personal and legal representatives, executors, administrators or
assigns of Indemnitee.
11.2. Assumption of Obligations. The Company shall not consummate any
consolidation, merger or other business combination, nor will it transfer fifty
percent (50%) or more of its assets (in one or a series of related
transactions), unless the ultimate Parent of the successor to the business or
assets of the Company shall have first executed an agreement, in form and
substance satisfactory to Indemnitee, to expressly assume all obligations of the
Company under this Agreement and agree to perform this Agreement in accordance
with its terms, in the same manner and to the same extent that the Company would
be required to perform this Agreement if no such transaction had taken place;
provided that, if the Parent is not the Company, the legality of payment of
indemnity by the Parent shall be determined by reference to the fact that such
indemnity is to be paid by the Parent rather than the Company.
11.3. Severability. The provisions of this Agreement are severable. If any
provision of this Agreement shall be held by any court of competent jurisdiction
to be invalid, void or unenforceable, such provision shall be deemed to be
modified to the minimum extent necessary to avoid a violation of law and, as so
modified, such provision and the remaining provisions shall remain valid and
enforceable in accordance with their terms to the fullest extent permitted by
law.
11.4. Rights Not Exclusive; Continuation of Right of Indemnification.
Nothing in this Agreement shall be deemed to diminish or otherwise restrict
Indemnitee's right to indemnification pursuant to any provision of the
certificate of incorporation or bylaws of the Company, any agreement, vote of
stockholders or Disinterested Directors, applicable law or otherwise. This
Agreement shall be effective as of the date first above written and continue in
effect until no Claims relating to any Covered Event may be asserted against
Indemnitee and until any Claims commenced prior thereto are finally terminated
and resolved, regardless of whether Indemnitee continues to serve as a director
of the Company, any Subsidiary or any Other Enterprise.
11.5. No Employment Agreement. Nothing contained in this Agreement shall be
construed as giving Indemnitee any right to be retained in the employ of the
Company, any Subsidiary or any Other Enterprise.
11.6. Subsequent Amendment. No amendment, termination or repeal of any
provision of the certificate of incorporation or bylaws of the Company, or any
respective successors thereto, or of any relevant provision of any applicable
law, shall affect or diminish in any way the rights of Indemnitee to
indemnification, or the obligations of the Company, arising under this
Agreement, whether the alleged
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actions or conduct of Indemnitee giving rise to the necessity of such
indemnification arose before or after any such amendment, termination or repeal.
11.7. Notices. Notices required under this Agreement shall be given in
writing and shall be deemed given when delivered in person or sent by certified
or registered mail, return receipt requested, postage prepaid. Notices shall be
directed to the Company at HealthSpring, Inc., 00 Xxxxxxx Xxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, Attention: General Counsel, and to Indemnitee at the
address set forth on the signature page hereto (or such other address as either
party may designate in writing to the other).
11.8. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and performed in such state without giving effect to the
principles of conflict of laws.
11.9. Headings. The headings of the Sections of this Agreement are inserted
for convenience only and shall not be deemed to constitute a substantive part of
this Agreement or to affect the construction thereof.
11.10. Counterparts. This Agreement may be executed in any number of
counterparts all of which taken together shall constitute one instrument.
11.11. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall
constitute, or be deemed to constitute, a waiver of any other provisions hereof
(whether or not similar) nor shall any such waiver constitute a continuing
waiver.
[Remainder of page intentionally left blank.]
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The parties hereto have caused this Agreement to be duly executed as of the
day and year first above written.
HEALTHSPRING, INC.
By:
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Name:
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Title:
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INDEMNITEE
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Name:
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Address:
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