PRA INERNATIONAL INDEMNIFICATION AGREEMENT
Exhibit
10.1
PRA INERNATIONAL
This Indemnification Agreement
(“Agreement”) is effective as of
, 20 ,
by and between PRA International, a Delaware corporation (the “Company”), and (“Indemnitee”).
WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and its related entities;
WHEREAS, in order to induce Indemnitee to provide services to the Company, the Company wishes
to provide for the indemnification of, and the advancement of expenses to, Indemnitee to the
maximum extent permitted by law;
WHEREAS, the Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the Company’s directors, officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the coverage of such
insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, agents and fiduciaries to
expensive litigation risks at the same time as the availability and coverage of liability insurance
has been severely limited; and
WHEREAS, the Company and Indemnitee desire to continue to have in place the additional
protection provided by an indemnification agreement and to provide indemnification and advancement
of expenses to the Indemnitee to the maximum extent permitted by Delaware law;
WHEREAS, in view of the considerations set forth above, the Company desires that Indemnitee
shall be indemnified and advanced expenses by the Company as set forth herein;
NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth below:
1. INDEMNITY. The Company hereby agrees to hold harmless and indemnify Indemnitee to
the full extent authorized or permitted by law and the Company’s Certification of Incorporation and
By-laws. In furtherance of the foregoing indemnification, and without limiting the generality
thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a) if, by reason of
Indemnitee’s Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be made,
a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or
in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified
against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal Proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to
the rights of indemnification provided in this Section 1(b) if, by reason of Indemnitee’s Corporate
Status, Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding
brought by or in the right of the Company to procure a judgment in its favor. Pursuant to this
Section 1(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, that, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim, issue or matter in
such Proceeding as to which Indemnitee shall have been finally adjudged to be liable to the Company
unless and to the extent that the Court of Chancery of the State of Delaware shall determine that
such indemnification may be made.
(c) Indemnification for Expenses if Indemnitee of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is successful, on the
merits or otherwise, in any Proceeding, Indemnitee shall be indemnified to the maximum extent
permitted by law against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
with each successfully resolved claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. ADDITIONAL INDEMNITY. In addition to, and without regard to any limitations on,
the indemnification provided for in Section 1, the Company shall and hereby does indemnify and hold
harmless Indemnitee against all Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf if, by reason
of Indemnitee’s Corporate Status
2
Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding
(including a Proceeding by or in the right of the Company). The only limitation that shall exist
upon the Company’s obligations pursuant to this Section 2 shall be that the Company shall not be
obligated to make any payment to Indemnitee that is finally determined (under the procedures, and
subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful.
3. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.
(a) Whether or not the indemnification provided in Sections 1 and 2 hereof is available, in
respect of any threatened, pending or completed action, suit or proceeding in which Company is
jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), Company
shall pay, in the first instance, the entire amount of any judgment, penalty, fine or settlement of
such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the
Company hereby waives and relinquishes any right of contribution it may have against Indemnitee.
The Company shall not enter into any settlement of any action, suit or proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding) unless such settlement provides for a full and final release of all claims asserted
against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding
subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion
of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in
which Company is jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), the Company shall contribute to the amount of Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee
in proportion to 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 or proceeding arose; provided, however, that the
proportion determined on the basis of relative benefit may, to the extent necessary to conform to
law, be further adjusted by reference to 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 Indemnitee, on the
other hand, in connection with the events that resulted in such Expenses, judgments, penalties,
fines or settlement amounts, as well as any other equitable considerations which the law may
require to be considered. 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 Indemnitee, on the other hand,
shall be determined by reference to, among other things, the degree to which their actions were
motivated by intent to gain personal profit or advantage, the degree to which their liability is
primary or secondary, and the degree to which their conduct is active or passive.
3
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution which may be brought by officers, directors or employees of the Company who may be
jointly liable with Indemnitee.
4. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a
witness in any Proceeding to which such Indemnitee is not a party, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith.
5. ADVANCEMENT OF EXPENSES. Notwithstanding any other provision of this Agreement,
the Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding by reason of Indemnitee’s Corporate Status within ten days after the
receipt by the Company of a statement or statements from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall
include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section
5 shall be unsecured and interest free, and all Expenses that are certified by Indemnitee’s counsel
as being reasonable shall be presumed conclusively to be reasonable. Notwithstanding the
foregoing, the obligation of the Company to advance Expenses pursuant to this Section 7 shall be
subject to the condition that, if, when and to the extent that the Company determines (in
accordance with the presumptions and procedures set forth herein) that Indemnitee would not be
permitted to be indemnified under applicable law, the Company shall be entitled to be reimbursed,
within thirty (30) days of such determination, by Indemnitee for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings to
secure a determination that Indemnitee should be indemnified under applicable law, any
determination made by the Company that Indemnitee would not be permitted to be indemnified under
applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company
for any advance of Expenses until a final judicial determination is made with respect thereto.
6. PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as
favorable as may be permitted under the law and public policy of the State of Delaware.
Accordingly, the parties agree that the following procedures and presumptions shall apply in the
event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification (including, but not limited to, the advancement of Expenses and
contribution by the Company) under this Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is
4
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.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 6(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following three methods, which
shall be at the election of Indemnitee: (1) by a majority vote of the disinterested directors,
even though less than a quorum, or (2) by independent legal counsel in a written opinion, or (3) by
the stockholders.
(c) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in
this Section 6(c). The Independent Counsel shall be selected by Indemnitee (unless Indemnitee
shall request that such selection be made by the Board of Directors). Indemnitee or the Company,
as the case may be, may, within 10 days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such
selection; provided, however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined
in Section 13(d) of this Agreement, and the objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and timely objection, the person so selected
shall act as Independent Counsel. If a written objection is made and substantiated, the
Independent Counsel selected may not serve as Independent Counsel unless and until such objection
is withdrawn or a court has determined that such objection is without merit. If, within 30 days
after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a)
hereof, no Independent Counsel shall have been selected and not objected to, either the Company or
Indemnitee may seek judicial resolution of any objection which shall have been made by the Company
or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any
and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable
fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in
which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume (unless there is clear and
convincing evidence to the contrary) that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 6(a)
of this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and
the burden of persuasion, by clear and convincing evidence.
5
(e) Indemnitee shall be presumed to have acted in good faith if Indemnitee’s action is based
on the records or books of account of the Company, including financial statements, or on
information supplied to Indemnitee by the officers of the Company in the course of their duties, or
on the advice of legal counsel for the Company or on information or records given or reports made
to the Company by an independent certified public accountant, by a financial advisor or by an
appraiser or other expert selected with reasonable care by the Company. In addition, the knowledge
and/or actions, or failure to act, of any director, officer, agent or employee of the Company shall
not be imputed to Indemnitee for purposes of determining the right to indemnification under this
Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in
any event be presumed (unless there is clear and convincing evidence to the contrary) that
Indemnitee has at all times acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion, by clear and convincing
evidence.
(f) The Company acknowledges that a settlement or other disposition short of final judgment
may be successful if it permits a party to avoid expense, delay, distraction, disruption and
uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without payment of money or
other consideration) it shall be presumed (unless there is clear and convincing evidence to the
contrary) that Indemnitee has been successful on the merits or otherwise in such action, suit or
proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion, by clear and convincing evidence.
(g) If the person, persons or entity empowered or selected under Section 6(b) to determine
whether Indemnitee is entitled to indemnification shall not have made a determination within sixty
(60) days after receipt by the Company of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled
to such indemnification, thereto; provided, however, that the foregoing provisions of this Section
6(g) shall not apply if the determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 6(b) of this Agreement and if within fifteen (15) days after
receipt by the Company of the request for such determination the Board of Directors resolve to
submit such determination to the stockholders for their consideration at the next annual meeting
thereof and such determination is made thereat.
(h) Indemnitee shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, and provide to such person, persons or
entity upon reasonable advance request any documentation or information which is reasonably
available to Indemnitee and reasonably necessary to such determination. Nothing in this Agreement
shall require Indemnitee to waive any of Indemnitee’s rights under the United States Constitution
or to provide information which is privileged or otherwise protected from disclosure. Any
Independent Counsel, member of the Board of Directors, or stockholder of the Company
6
shall act reasonably and in good faith in making a determination under the Agreement of
Indemnitee’s entitlement to indemnification. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making
such determination shall be borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
7. REMEDIES.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that
Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is
not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 6(b) of this Agreement within 90 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written
request therefor, or (v) payment of indemnification is not made within ten (10) days after a
determination has been made that Indemnitee is entitled to indemnification or such determination is
deemed to have been made pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to
an adjudication of Indemnitee’s entitlement to such indemnification. The Company shall not oppose
Indemnitee’s right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section 7 shall be conducted in all respects as a de novo trial, on the merits and
Indemnitee shall not be prejudiced in any way by reason of that adverse determination.
(c) If a determination shall have been made pursuant to Section 6(b) of 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 7, absent a prohibition of such
indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of
Indemnitee’s rights under, or to recover damages for breach of, this Agreement, or to recover under
any directors’ and officers’ liability insurance policies maintained by the Company, the Company
shall pay on Indemnitee’s behalf, in advance, any and all expenses (of the types described in the
definition of Expenses in Section 13 of this Agreement) actually and reasonably incurred by
Indemnitee in such judicial adjudication, regardless of whether Indemnitee ultimately is determined
to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate that the Company is bound by all the provisions of this
Agreement.
7
8. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled under applicable law, the
Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution of
directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnity under this Agreement in respect of any action
taken or omitted by Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration
or repeal. To the extent that a change in the law, whether by statute or judicial decision,
permits greater indemnification than would be afforded currently under this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy herein conferred is intended to be exclusive of any
other right or remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent or later assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or
of any other corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the Company, Indemnitee shall be covered by
such policy or policies in accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy or policies.
(c) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.
9. EXCEPTION TO RIGHT OF INDEMNIFICATION. Notwithstanding any other provision of this
Agreement, Indemnitee shall not be entitled to indemnification under this Agreement with respect to
any Proceeding brought by Indemnitee, or any claim therein (except claims by way of defense,
counterclaim or crossclaim), unless (a) the bringing of such Proceeding or making of such claim
shall have been approved by the Board of Directors, (b) such Proceeding is being brought by
Indemnitee to assert Indemnitee’s rights under this Agreement, or (c) as otherwise required under
Section 145 of the General Corporation Law of the State of Delaware, regardless of whether
Indemnitee is determined to be entitled to such indemnification or insurance recovery as the case
may be.
10. DURATION OF AGREEMENT. All agreements and obligations of the Company contained
herein shall continue during the period Indemnitee is serving as an officer or director of the
Company (or is or was serving at the request of the Company as
8
a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise) and shall continue thereafter so long as Indemnitee shall be subject to
any Proceeding (or any proceeding commenced under Section 6 hereof) by reason of Indemnitee’s
Corporate Status, whether or not Indemnitee is acting or serving in any such capacity at the time
any liability or expense is incurred for which indemnification can be provided under this
Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the business or assets
of the Company), assigns, spouses, heirs, executors and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an
officer or director of the Company or any other enterprise at the Company’s request.
11. SECURITY. To the extent requested by Indemnitee and approved by the Board of
Directors, the Company shall at any time and from time to time provide security to Indemnitee for
the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or
other collateral. Any such security, once provided to Indemnitee, may not be revoked or released
without the prior written consent of Indemnitee.
12. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a member of
the Board of Directors, and the Company acknowledges that Indemnitee is relying upon this Agreement
in serving as a member of the Board of Directors.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof.
(c) The Company and the Indemnitee agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that they each will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the
terms and provisions of this Agreement in any court of the United States located in the State of
Delaware or in Delaware state court, this being in addition to any other remedy to which they are
entitled at Law or in equity. In addition, each of the Company and the Indemnitee (a) consents to
submit itself to the personal jurisdiction of any federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave
from any such court and (c) agrees that it will not bring any action relating to this Agreement in
any court other than a federal or state court sitting in the State of Delaware.
9
13. DEFINITIONS. For purposes of this Agreement:
(a) “Company” shall include any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the express written
request of the Company as a director, officer, employee, agent or fiduciary.
(b) “Corporate Status” describes the status of a person who is or was a director, officer,
employee or agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person is or was serving at
the express written request of the Company.
(c) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating, or being or preparing to be a witness in a
Proceeding, and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the
actual or deemed receipt of any payments under this Agreement.
(d) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation 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 any Indemnitee under this Agreement), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent 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 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.
(e) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is
or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was a
member of the Company or Indemnitee of the Company, by reason of any action taken by Indemnitee or
of any inaction on Indemnitee’s part while acting as a member of the Company, or by reason of the
fact that Indemnitee is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise; in
each case whether or not Indemnitee is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification can be
provided under this Agreement; and excluding one initiated by Indemnitee pursuant to Section 6
of this Agreement to enforce Indemnitee’s rights under this Agreement.
10
14. SEVERABILITY. If any provision or provisions of this Agreement shall be held by a
court of competent jurisdiction to be invalid, void, illegal or otherwise unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
15. MODIFICATION AND WAIVER. No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
16. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be subject to indemnification covered
hereunder. The failure to so notify the Company shall not relieve the Company of any obligation
which it may have to Indemnitee under this Agreement or otherwise.
17. NOTICES. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if (i) delivered by and receipted for by
the party to whom said notice or other communication shall have been directed or if (ii) mailed by
certified or registered mail with postage prepaid, on the third business day after the date on
which it is so mailed:
| (a) | If to Indemnitee, to: |
| (b) | If to the Company, to: | ||
| PRA International 00000 Xxxxxx Xxxxx Xxxx Xxxxx 000 |
| Xxxxxx, Xxxxxxxx 00000 Attention: Office of the Chief Executive Officer Office of the Chief Financial Officer |
11
18. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.
19. HEADINGS. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
20. GOVERNING LAW. The parties agree that this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware without application of
the conflict of laws principles thereof.
[Signature Page Follows]
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| PRA INTERNATIONAL |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Indemnitee | ||||
13
