INDEMNITY AGREEMENT
Exhibit
10.1
THIS
INDEMNITY AGREEMENT is made and entered into as of __________, 2007, by and
between Sierra Health Services, Inc., a Nevada corporation (the “Company”),
and
__________ (the “Indemnitee”),
as an
“Agent” (as defined herein) of the Company.
RECITALS
A. The
Company recognizes that competent and experienced individuals are reluctant
to
serve as directors or officers of corporations unless they are protected by
comprehensive liability insurance or indemnification, or both, due to increased
exposure to litigation costs and risks resulting from their service to such
corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and
officers;
B. The
Company and Indemnitee are aware of the substantial growth in the number of
lawsuits filed against corporate officers and directors in connection with
their
activities in such capacities and by reason of their status as
such;
C. The
statutes and judicial decisions regarding the duties of directors and officers
are often difficult to apply, ambiguous or conflicting, and therefore fail
to
provide such directors and officers with adequate or reliable advance knowledge
or guidance with respect to the legal risks and potential liabilities to which
they may become personally exposed or information regarding the proper course
of
action to take in performing their duties in good faith for the
Company;
D. The
Company and Indemnitee recognize that plaintiffs often seek damages in such
large amounts and the costs of litigation may be so enormous (whether or not
the
case is meritorious), that the defense and/or settlement of such litigation
is
often beyond the financial resources of officers and directors;
E. The
Company believes that it is unfair for its directors and officers and the
directors and officers of its subsidiaries to assume the risk of huge judgments
and other Expenses (as defined herein) which may occur in cases in which the
director or officer received no personal profit and in cases where the director
or officer was not culpable;
F. The
Company, after reasonable investigation, has determined that the liability
insurance coverage presently available to the Company and its subsidiaries
may
prove to be inadequate and/or unreasonably expensive. The Company believes
that
the interests of the Company and its stockholders would best be served by a
combination of such insurance as the Company or its subsidiaries may hereafter
obtain and the indemnification by the Company of the directors and officers
of
the Company and its subsidiaries;
G. Section
78.751 of the Nevada Revised Statutes, as amended (“NRS”),
empowers the Company to indemnify its officers, directors, employees and agents
by agreement and to indemnify
persons who serve, at the request of the Company, as the directors, officers,
employees or agents of another corporation, partnership, joint venture, trust
or
other enterprise, and expressly provides that the indemnification provided
by
NRS 78.751 is not exclusive of other rights to which those indemnified
thereunder may be entitled under the articles of incorporation or any bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise;
H. In
order
to induce and encourage highly experienced and capable individuals to serve
as
an officer or director of the Company, to take the business risks necessary
for
the success of the Company and its subsidiaries and to otherwise promote the
desirable end that such persons will resist what they consider unjustifiable
lawsuits and claims made against them in connection with good faith performance
of their duties to the Company, secure in the knowledge that certain expenses,
costs and liabilities incurred by them in their defense of such litigation
will
be borne by the Company and that they will receive the maximum protection
against such risks and liabilities as may be afforded by law, the Board of
Directors of the Company (the “Board
of Directors”)
has
determined, after due consideration and investigation of the terms and
provisions of this Agreement and the various other options available to the
Company and Indemnitee in lieu hereof, that contractual indemnification as
set
forth herein is not only reasonable and prudent but necessary to promote and
ensure the best interests of the Company, its stockholders and its
subsidiaries;
I. The
Company desires and has requested Indemnitee to serve or continue to serve
as a
director or officers of the Company and/or one or more subsidiaries of the
Company, as the case may be, free from undue concern for unpredictable,
inappropriate or unreasonable legal risks and personal liabilities arising
out
of or related to such services to the Company and/or one or more of its
subsidiaries; and
J. Indemnitee
has served or is willing to serve, or continue to serve, the Company and/or
one
or more of its subsidiaries provided that he or she is furnished the indemnity
provided for herein;
K. Certain
indemnitees have recently served as an Agent (as defined herein) in reliance
of
the Company’s promise to enter into this Agreement upon the Company’s ability to
do so as a Nevada corporation.
TERMS
AND CONDITIONS
NOW,
THEREFORE, in consideration of the above premises and the mutual covenants
and
agreements set forth herein, the parties hereby agree as follows:
1. Definitions.
As used
in this Agreement:
(a) The
term
“Agent”
of
the
Company shall include any person who is or was a director, officer, employee
or
other agent of the Company or was a director, officer, employee or agent of
a
predecessor corporation of the Company or was a member, manager or managing
member of a predecessor limited liability company or affiliate of such limited
liability company or
is or
was serving in any capacity at the request of the Company as a director,
officer, employee, agent, partner, member, manager or fiduciary of, or in any
other capacity for, another corporation or any partnership, joint venture,
limited liability company, trust, or other enterprise.
(b) The
term
“Proceeding”
shall
include any threatened, pending or completed action, suit or proceeding, whether
brought by or in the name of the Company or otherwise, and whether of a civil,
criminal, administrative or investigative nature including, but not limited
to,
actions, suits or proceedings brought under and/or predicated upon the
Securities Act of 1933, as amended, and/or the Securities Exchange Act of 1934,
as amended, and/or their respective state counterparts and/or any rule or
regulation promulgated thereunder, in which Indemnitee may be or may have been
involved as a party or otherwise, by reason of the fact that Indemnitee is
or
was an Agent of the Company, by reason of any action taken by him or of any
inaction on his or her part while acting as an Agent whether or not he or she
is
serving in such capacity at the time any liability or expense is incurred for
which indemnification or reimbursement can be provided under this
Agreement.
(c) The
term
“Expenses”
shall
be broadly construed and shall include all direct and indirect costs incurred,
paid or accrued of any type or nature whatsoever including, without limitation,
(i) all attorneys’ fees, retainers, court costs, transcripts, fees of
experts, witness fees, travel expenses (including food and lodging expenses
while traveling), duplicating costs, printing and binding costs, telephone
charges, postage, delivery service, freight or other transportation fees and
expenses and related disbursements; (ii) all other disbursements and
out-of-pocket costs; (iii) reasonable compensation for time spent by
Indemnitee for which he or she is not otherwise compensated by the Company
or
any third party (provided the rate of compensation and estimated time involved
is approved in advance by the Board of Directors), actually and reasonably
incurred by Indemnitee in connection with either the investigation, defense
or
appeal of a Proceeding or establishing or enforcing a right to indemnification
under this Agreement, NRS 78.751 or otherwise; and (iv) amounts paid in
settlement by or on behalf of Indemnitee to the extent permitted by Nevada
law;
provided, however, that “Expenses”
shall
not include any judgments, fines, penalties or excise taxes imposed under the
Employee Retirement Income Security Act of 1974, as amended, or other excise
taxes or penalties actually levied against Indemnitee.
(d) References
to “other
enterprise”
shall
include employee benefit plans; references to “fines”
shall
include any excise tax assessed with respect to any employee benefit plan;
and
any service as an Agent with respect to any employee benefit plan, its
participants or beneficiaries, and a person who acts in good faith and in a
manner he or she reasonably believes to be in the interest of the participants
and beneficiaries of an employee benefit plan, shall be deemed to have acted
in
a manner “not opposed to the best interests of the Company” as referred to in
this Agreement.
(e) “Independent
Legal Counsel”
means
a
law firm, member of a law firm, or attorney that is experienced in matters
of
corporate law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any matter material
to either such party (other than with respect to matters concerning Indemnitee
under this Agreement, or of other indemnitees under similar indemnification
or
indemnity agreements); or (ii) 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
either the Company or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement. The Company agrees to pay the reasonable fees of the
Independent Legal Counsel referred to above and to fully indemnify such counsel
against any and all expenses, claims, liabilities and damages arising out of
or
relating to this Agreement or its engagement pursuant hereto.
2. Agreement
to Serve.
Unless
Indemnitee is no longer an Agent, Indemnitee agrees to serve and/or continue
to
serve as an Agent of the Company, at his or her will or under separate
agreement, as the case may be, in the capacity Indemnitee currently serves
as an
Agent of the Company, for so long as he or she is duly appointed or elected
and
qualified in accordance with the applicable provisions of the Bylaws of the
Company until such time as he or she tenders his or her resignation in writing;
provided, however, that nothing contained in this Agreement is intended to
create any right or obligation to continued employment by Indemnitee in any
capacity.
3. Indemnification
and Contribution.
The
Company shall indemnify Indemnitee to the fullest extent permitted by Nevada
law, the Articles of Incorporation of the Company, as amended to date (the
“Articles”)
and
the Bylaws of the Company, as amended to date (the “Bylaws”),
or as
such Nevada law, the Articles and/or the Bylaws may from time to time be amended
(but, in the case of any such amendment, only to the extent such amendment
permits the Company to provide broader indemnification rights than Nevada law,
the Articles and the Bylaws permitted the Company to provide before such
amendment). Such indemnification shall include, without limitation, the
following:
(a) Indemnity
in Third Party Proceedings.
The
Company shall indemnify Indemnitee if Indemnitee is a party to or is threatened
to be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the name of the Company to procure a judgment in its favor)
by reason of the fact that he or she is or was an Agent of the Company or by
reason of any act or inaction by him in any such capacity, against all Expenses,
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of such Proceeding, if he or she either is not liable pursuant to
NRS
78.138 or acted in good faith and in a manner he or she 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 had no reasonable cause to believe that his
or
her conduct was unlawful. The termination of any such Proceeding by judgment,
order of court, settlement, conviction or upon a plea of nolo
contendere,
or its
equivalent, does not, of itself, create a presumption that Indemnitee is liable
pursuant to NRS 78.138 or did not act in good faith in a manner which he or
she
reasonably believed to be in or not opposed to the best interest of the Company,
and with respect to any criminal Proceeding, that such person had reasonable
cause to believe that his or her conduct was unlawful.
(b) Indemnity
in Derivative Actions.
The
Company shall indemnify Indemnitee if Indemnitee is a party to or threatened
to
be made a party to or otherwise involved in any Proceeding by or in the name
of
the Company to procure a judgment in its favor by reason of
the
fact that Indemnitee was or is an Agent of the Company or by reason of any
act
or inaction by him in any such capacity, against all Expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by Indemnitee
in
connection with the investigation, defense, settlement or appeal of such
Proceeding, but only if Indemnitee is not liable pursuant to NRS 78.138 or
acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interest of the Company, except that no indemnification
under this Section 3 shall be made for any claim, issue or matter to which
Indemnitee has been adjudged by a court of competent jurisdiction, after the
exhaustion of all appeals therefrom, to be liable to the Company or for amounts
paid in settlement to the Company, unless and only to the extent that any court
in which such Proceeding is brought or other court of competent jurisdiction
determines upon application that, in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses
as
the court shall deem proper.
(c) Indemnification
of Expenses of Successful Party.
Notwithstanding any other provisions of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter therein, including the
dismissal of an action without prejudice, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him in connection
with
the investigation, defense or appeal of such Proceeding.
(d) Indemnification
for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, the Company will
indemnify Indemnitee if and whenever he or she is a witness or is threatened
to
be made a witness to any Proceeding to which Indemnitee is not a party, by
reason of the fact that he or she is or was an Agent or by reason of anything
done or not done by him in such capacity, against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf of in connection
therewith.
(e) Contribution.
If the
indemnification provided in this Agreement is unavailable and may not be paid
to
Indemnitee for any reason other than statutory limitations set forth in
applicable law, then in respect of any threatened, pending or completed
Proceeding in which the Company is jointly liable with Indemnitee (or would
be
if joined in such action, suit, arbitration, proceeding, inquiry or
investigation), the Company shall contribute to the amount of Expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
and paid or payable by Indemnitee in such proportion as is appropriate to
reflect (i) the relative benefits received by the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, from the
transaction from which such action, suit, arbitration, proceeding, inquiry
or
investigation arose, and (ii) the relative fault of the Company and all
officers, directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such action, suit
or
proceeding), on the one hand, and of Indemnitee, on the other, in connection
with the events which resulted in such Expenses, judgments, fines and amounts
paid in settlement, as well as any other relevant equitable considerations.
The
relative fault referred to above 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,
judgments, fines and amounts paid in settlement. The Company agrees that it
would not be just and equitable
if contribution pursuant to this subsection were determined by pro rata
allocation or any other method of allocation that does not take account of
the
foregoing equitable considerations.
4. Advancement
of Expenses.
Subject
to Section 10(a) hereof, the Company shall advance all Expenses incurred by
or
on behalf of Indemnitee in connection with the investigation, defense,
settlement or appeal of any Proceeding to which Indemnitee is a party or is
threatened to be made a party by reason of the fact that Indemnitee is or was
an
Agent of the Company. Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be determined
by a
court of competent jurisdiction that Indemnitee is not entitled to be
indemnified by the Company as authorized by this Agreement. The advances to
be
made hereunder shall be paid by the Company to or on behalf of Indemnitee within
ten calendar days following delivery of a written request therefor by Indemnitee
to the Company. The request shall reasonably evidence the Expenses incurred
by
Indemnitee in connection therewith. Indemnitee’s entitlement to advancement of
Expenses shall include those incurred in connection with any Proceeding by
Indemnitee seeking a determination, adjudication or award in arbitration
pursuant to this Agreement.
5. Procedure
for Indemnification.
(a) Promptly
after receipt by Indemnitee of the commencement of or the threat of commencement
of any Proceeding, including the service upon or receipt by Indemnitee of any
summons, citation, complaint, indictment, information or other document relating
to any matter, whether civil, criminal, administrative, or investigative, which
might give rise to a right of indemnification under this Agreement, Indemnitee
shall promptly notify the Company in writing thereof. The notice shall include
documentation or information which is necessary for the determination of
entitlement to indemnification and which is reasonably available to Indemnitee.
The failure or delay to so notify the Company shall not constitute a waiver
or
release by Indemnitee of any rights hereunder and will not relieve the Company
from any liability that it may have to Indemnitee if such failure or delay
does
not prejudice the Company’s rights. If such failure or delay does prejudice the
Company’s rights, the Company will be relieved from liability only to the extent
of such prejudice and such failure or delay will not relieve the Company from
any liability that it may have to Indemnitee otherwise under this
Agreement.
(b) Any
indemnification requested by Indemnitee under Section 3 hereof shall be made
no
later than 60 calendar days after receipt of the written request of Indemnitee,
unless a determination is made within said 60-day period in accordance with
Section 3 that Indemnitee is not entitled to indemnification (i) by the
Board of Directors by a majority vote of a quorum thereof consisting of
directors who are not parties to such Proceedings, or (ii) in the event
such a quorum is not obtainable, at the election of the Company, either by
Independent Legal Counsel (selected by the Company and approved by Indemnitee,
such approval not to be unreasonably withheld) in a written opinion, by the
stockholders or by a panel of arbitrators, one of whom is selected by the
Company, another of whom is selected by Indemnitee and the last of whom is
selected by the first two arbitrators so selected, that Indemnitee has not
met
the relevant standards for indemnification set forth in Section 3 hereof. 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.
(c) Notwithstanding
a determination under Section 5(b) above that Indemnitee is not entitled to
indemnification with respect to any specific Proceeding, Indemnitee shall have
the right to apply to any court of competent jurisdiction in the State of Nevada
for the purpose of enforcing Indemnitee’s right to indemnification pursuant to
this Agreement, which determination shall be made de
novo
and
Indemnitee shall not be prejudiced by reason of a determination that he or
she
is not entitled to indemnification. The burden of proving that indemnification
or advances are not appropriate shall be on the Company. Neither the failure
of
the Company (including the Board of Directors, the Company’s stockholders,
Independent Legal Counsel or the panel of arbitrators) to have made a
determination prior to the commencement of such action that indemnification
or
advances are proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company
(including the Board of Directors, the Company’s stockholders, Independent Legal
Counsel or the panel of arbitrator) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create any presumption
that Indemnitee has not met the applicable standard of conduct.
(d) If
an
initial determination is made or deemed to have been made pursuant to the terms
of this Agreement that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in the absence of (i) a
misrepresentation of a material fact by Indemnitee in the request for
indemnification or (ii) a specific finding (which has become final) by a
court of competent jurisdiction that all or any part of such indemnification
is
expressly prohibited by law.
(e) The
Company shall indemnify Indemnitee against all Expenses incurred in connection
with any hearing or proceeding under this Section 5 unless a court of competent
jurisdiction finds that each of the claims and/or defenses of Indemnitee in
any
such proceeding was frivolous or made in bad faith.
6. Indemnity
Hereunder Not Exclusive.
The
provisions for indemnification and advancement of Expenses contained in this
Agreement shall not be deemed exclusive of any other rights which Indemnitee
may
have under any provision of law, the Articles or the Bylaws, any vote of
stockholders or disinterested directors, other agreements, insurance, or other
financial arrangements or otherwise, both as to action in his or her official
capacity and as to action in another capacity while occupying his or her
position as an Agent of the Company, except that indemnification, unless ordered
by a court pursuant to Section 3 hereof or for the advancement of Expenses
pursuant to Section 4 hereof, may not be made to or on behalf of Indemnitee
if a
final adjudication establishes that his or her acts or omissions involved
intentional misconduct, fraud or knowing violation of the law and was material
to the cause of action. Indemnitee’s rights hereunder shall continue after
Indemnitee has ceased acting as an Agent of the Company and shall inure to
the
benefit of the heirs and personal representative of Indemnitee.
7. Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Expenses, judgments or fines
incurred by him in the investigation, defense, settlement or appeal of a
Proceeding but not entitled, however, to indemnification for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
8. Assumption
of Defense.
In the
event the Company shall be obligated to pay the Expenses of any Proceeding
against Indemnitee, the Company, if appropriate, shall be entitled to assume
the
defense of such Proceeding, with counsel approved by Indemnitee, upon the
delivery to Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of other counsel subsequently
incurred by Indemnitee with respect to the same proceeding, provided that
(i) Indemnitee shall have the right to employ his or her counsel in such
Proceeding at Indemnitee’s expense; and (ii) if (a) the employment of
counsel by Indemnitee has been previously authorized in writing by the Company,
(b) the Company shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense or (c) the Company shall not, in fact, have employed counsel
to assume the defense of such Proceeding, the fees and expenses of Indemnitee’s
counsel shall be at the expense of the Company. In the event the Company assumes
the defense of any Proceeding, the Company may settle such Proceeding in any
reasonable manner, which may impose any penalty or limitation on Indemnitee
with
Indemnitee’s written consent, which consent shall not be unreasonably
withheld.
9. Insurance.
The
Company shall obtain and maintain a policy or policies of D&O Insurance (as
defined herein) with reputable insurance carriers providing the officers and
directors of the Company with coverage for liabilities arising out of their
acts
and/or omissions as Agents and/or to ensure the Company’s performance of its
indemnification obligations under this Agreement, in such amounts as the Company
reasonably believes are adequate (collectively, “D&O
Insurance”).
Indemnitee shall be covered by such D&O Insurance in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company’s directors in their capacity as directors.
Notwithstanding the foregoing, the Company shall have no obligation to obtain
or
maintain such insurance if (a) the Company determines in good faith that
(i) such insurance is not reasonably available, (ii) the premium costs
for such insurance are substantially disproportionate to the amount of coverage
provided or (iii) the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit, or (b) Indemnitee is
covered by substantially similar insurance maintained by a subsidiary or parent
of the Company. Notwithstanding any other provision of the Agreement, the
Company shall not be obligated to indemnify Indemnitee for Expenses, judgments,
fines, or amounts paid in settlement, which have been paid directly to
Indemnitee by D&O Insurance. If the Company has D&O Insurance in effect
at the time the Company receives from Indemnitee any notice of the commencement
of a Proceeding, the Company shall give prompt notice of the commencement of
such Proceeding to the insurers in accordance with the procedures set forth
in
the policy. The Company shall thereafter take all necessary or desirable action
to cause such insurers to pay, on behalf of Indemnitee, all amounts payable
as a
result of such Proceeding in accordance with the terms of such
policy.
10. Exceptions
to Indemnification.
Notwithstanding any provision herein to the contrary, the Company shall not
be
obligated pursuant to the term of this Agreement:
(a) To
indemnify or advance Expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of defense,
except with respect to Proceedings brought to establish or enforce a right
to
indemnification under this Agreement or any law or otherwise as required under
NRS 78.751, but such indemnification or advancement of Expenses may be provided
by the Company in specific cases if the Board of Directors finds it to be
appropriate; or
(b) To
indemnify Indemnitee for any Expenses incurred by Indemnitee with respect to
any
proceeding instituted by Indemnitee to enforce or interpret this Agreement,
if a
court of competent jurisdiction determines that each of the material assertions
made by Indemnitee in such proceeding was not made in good faith or was
frivolous; or
(c) To
indemnify Indemnitee under this Agreement for any amounts paid in settlement
of
a Proceeding effected within seven calendar days after delivery by Indemnitee
to
the Company of the notice provided for in Section 5(a) hereof unless the Company
consents to such settlement; or
(d) To
indemnify Indemnitee on account of any Proceeding with respect to
(i) remuneration paid to Indemnitee if it is determined by final judgment
or other final adjudication that such remuneration was in violation of law,
(ii) which final 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(b) of the Securities Exchange
Act of 1934, as amended, or similar provisions of any federal, state or local
statute, or (iii) which it is determined by final judgment or other final
adjudication that Indemnitee defrauded or stole from the Company or converted
to
his or her own personal use and benefit business or properties of the Company
or
was otherwise knowingly dishonest.
11. Duration
and Interpretation of Agreement.
It is
understood that the parties hereto intend this Agreement to be interpreted
and
enforced so as to provide indemnification to Indemnitee to the fullest extent
now or hereafter permitted by law. This Agreement shall continue so long as
Indemnitee shall be subject to any possible Proceeding by reason of the fact
that he or she is or was an Agent and shall be applicable to Proceedings
commenced or continued after execution of this Agreement, whether arising from
acts or omissions occurring before or after such execution.
12. Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without
limitation, all portions of any sections or paragraphs of this Agreement
containing any such provision held to be invalid, illegal or unenforceable,
that
are not themselves invalid, illegal or unenforceable) shall not in any way
be
affected or impaired thereby, and (ii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of
any
section or paragraph of this Agreement containing any such provision held to
be
invalid, illegal or unenforceable that are not themselves invalid, illegal
or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provisions held invalid, illegal or unenforceable and to give effect
to
Section 11 hereof.
13. 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 be deemed or shall constitute a waiver of
any
provision hereof (whether or not similar) nor shall such waiver constitute
a
continuing waiver.
14. Successor
and Assigns.
The
terms of this Agreement shall be binding upon the Company and its successors
and
assigns and shall inure to the benefit of Indemnitee and his or her spouse,
assigns, heirs, devisees, executors, administrators and other legal
representatives.
15. Notices.
All
notices or other communications provided for by this Agreement shall be made
in
writing and shall be deemed properly delivered when (i) delivered
personally or by messenger (including air courier), or (ii) by the mailing
of such notice to the party entitled thereto, registered or certified mail,
postage prepaid to the parties at the following addresses (or to such other
addresses designated in writing by one party to the other):
Company:
|
(hand
delivery address:)
|
Sierra
Health Services, Inc.
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0000
X. Xxxxxx Xxx
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|
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Xxx
Xxxxx, Xxxxxx 00000
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Attention:
General Counsel
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|
|
(mailing
address:)
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Sierra
Health Services, Inc.
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|
X.X.
Xxx 00000
|
|
|
Xxx
Xxxxx, Xxxxxx 00000-0000
|
|
|
Attention:
General Counsel
|
|
|
Indemnitee:
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______________________
|
|
______________________
|
|
|
______________________
|
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______________________
|
|
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______________________
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16. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Nevada.
17. Consent
of Jurisdiction.
The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction
of
the courts of the State of Nevada for all purposes in connection with any action
or Proceeding which arises out of or relates to this Agreement and agree that
any action instituted under this Agreement shall be brought only in the state
courts of the State of Nevada.
18. Subrogation.
In the
event of payment under this Agreement, the Company 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.
19. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original but both of which together will constitute one and the same
instrument.
[signatures
on following page]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Indemnity Agreement
as of the date first above written.
Company:
|
SIERRA
HEALTH SERVICES, INC.
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|
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By:
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_________________________
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Name:
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_________________________
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Title:
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_________________________
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Indemnitee:
|
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_______________________________________
|
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Name:
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_________________________
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