EXHIBIT 10.6
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of the ____ day of ________,
200_, between PEDIATRIX MEDICAL GROUP, INC., a Florida corporation (the
"Company"), and __________________, (the "Indemnitee").
RECITALS
A. The Indemnitee is currently serving as a director and/or
executive officer of the Company and the Company desires to continue to retain
the services of the Indemnitee as a director and/or executive officer of the
Company.
B. The Company and the Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
public companies and the subsidiaries of such companies.
C. The Amended and Restated Articles of Incorporation (the
"Articles of Incorporation") of the Company provide for indemnification to its
directors and officers and eliminates or limits the liability of a director or
officer to the fullest extent permitted by the Florida Business Corporation Act
(the "Florida Act"), and the Indemnitee has been serving and continues to serve
as a director and/or officer of the Company, in part, in reliance on such
provisions of the Articles of Incorporation.
D. The Indemnitee has indicated that the Indemnitee does not
regard the indemnities available under the Company's Articles of Incorporation
and bylaws and available insurance, if any, as adequate to protect the
Indemnitee against the risks associated with services by the Indemnitee to the
Company. As a condition to the Indemnitee's agreement to continue to serve as
such, the Indemnitee requires that the Indemnitee be indemnified from liability
in accordance with the provisions of this Agreement to the fullest extent
permitted by law.
E. The Company recognizes that the Indemnitee needs substantial
protection against personal liability in order to maintain the Indemnitee's
continued service to the Company in an effective manner and is willing to
indemnify the Indemnitee in accordance with the provisions of this Agreement to
the fullest extent permitted by law in order to continue to retain the services
of the Indemnitee.
F. The Company desires to provide in this Agreement for
indemnification of, and the advance of expenses to, Indemnitee to the fullest
extent (whether partial or complete) permitted by law, as set forth in this
Agreement and, to the extent officers' and directors' liability insurance is
maintained by the Company, to provide for the continued coverage of the
Indemnitee under the Company's officers' and directors' liability insurance
policies, in part to provide the Indemnitee with specific contractual assurance
that the protection promised by the indemnification provisions of the Articles
of Incorporation will be available to the Indemnitee
(regardless of, among other things, any amendment to or revocation of such
provisions of the Articles of Incorporation or any change in the composition of
the Company's Board of Directors or any acquisition transaction relating to the
Company).
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and the Indemnitee's past and continued service to
the Company, the Company and the Indemnitee agree as follows:
SECTION 1. INDEMNIFICATION IN PROCEEDINGS OTHER THAN THOSE BY OR IN THE
RIGHT OF THE COMPANY. Subject to Sections 4 and 13 hereof, the Company shall
indemnify and hold harmless the Indemnitee from and against any and all claims,
damages, expenses, costs (including attorneys' fees and costs of other
professionals), judgments, penalties, fines (including excise taxes assessed
with respect to an employee benefit plan), settlements, and all other
liabilities incurred or paid by the Indemnitee in connection with the
investigation, defense, prosecution, settlement or appeal of, or being or
preparing to be a witness in, or participating in, any threatened, pending or
completed action, suit, investigation that the Indemnitee in good faith believes
might lead to the institution of such action, or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Company) and to which the Indemnitee was or is a party or is
threatened to be made a party or was or is a witness or participates or may
participate in by reason of the fact that the Indemnitee is or was an officer,
director, manager, consultant, stockholder, employee or agent of the Company or
any of its subsidiaries, or is or was serving at the request of the Company or
any of its subsidiaries as an officer, director, consultant, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, or by reason of anything done or not
done by the Indemnitee in any such capacity or capacities, provided that the
Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
that the Indemnitee's conduct was unlawful.
SECTION 2. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. Subject to Sections 4 and 13 hereof, the Company shall indemnify and
hold harmless the Indemnitee from and against any and all expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably incurred
by the Indemnitee in connection with the investigation, defense, prosecution,
settlement or appeal of, or being or preparing to be a witness in, or
participating in, any threatened, pending or completed action, suit,
investigation that the Indemnitee in good faith believes might lead to the
institution of such action, or proceeding by or in the right of the Company to
procure a judgment in its favor, whether civil, criminal, administrative or
investigative, and to which the Indemnitee was or is a party or is threatened to
be made a party or was or is a witness or participate or may participate in by
reason of the fact that the Indemnitee is or was an officer, director, manager,
consultant, stockholder, employee or agent of the Company or any of its
subsidiaries, or is or was serving at the request of the Company or any of its
subsidiaries as an officer, director, consultant, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of anything done or not done by
the Indemnitee in any such capacity or capacities, provided that (i) the
Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, (ii)
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indemnification for amounts paid in settlement shall not exceed the estimated
expense of litigating the proceeding to conclusion and (iii) no indemnification
shall be made under this Section 2 in respect of any claim, issue or matter as
to which the Indemnitee shall have been adjudged to be liable unless, and only
to the extent that, the court in which such proceeding was brought (or any other
court of competent jurisdiction) shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, the Indemnitee is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
SECTION 3. REIMBURSEMENT OF EXPENSES FOLLOWING ADJUDICATION OF
NEGLIGENCE. Subject to Sections 4 and 13 hereof, the Company shall reimburse the
Indemnitee for any expenses (including attorney's fees) and amounts paid in
settlement actually and reasonably incurred by the Indemnitee in connection with
the investigation, defense, settlement or appeal of any action, suit or
proceeding described in Section 2 hereof that results in an adjudication that
the Indemnitee was liable, other than for willful misconduct in the performance
of his duty to the Company; provided, however, that the Indemnitee acted in good
faith and in a manner the Indemnitee believed to be in the best interests of the
Company.
SECTION 4. AUTHORIZATION OF INDEMNIFICATION OR REIMBURSEMENT. Any
indemnification under Sections 1 and 2 hereof (unless ordered by a court) and
any reimbursement made under Section 3 hereof shall be made by the Company only
as authorized in the specific case upon a determination (the "Determination")
that indemnification or reimbursement of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct
set forth in Section 1, 2 or 3 hereof, as the case may be. Subject to Sections
5.5, 5.6 and 8 of this Agreement, the Determination shall be made in the
following order of preference:
(1) first, by the Company's Board of Directors (the
"Board") by majority vote or consent of a quorum consisting of directors
("Disinterested Directors") who are not, at the time of the Determination, named
parties to such action, suit or proceeding; or
(2) next, if such a quorum of Disinterested Directors
cannot be obtained, by majority vote or consent of a committee duly designated
by the Board (in which designation all directors, whether or not Disinterested
Directors, may participate) consisting solely of two or more Disinterested
Directors; or
(3) next, if such a committee cannot be designated,
by any independent legal counsel selected in accordance with Section 5.5.
4.1. No Presumptions. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner that the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, knew that the
Indemnitee's conduct was unlawful.
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4.2. Benefit Plan Conduct. The Indemnitee's conduct with respect to
an employee benefit plan for a purpose the Indemnitee reasonably believed to be
in the interests of the participants in and beneficiaries of the plan shall be
deemed to be conduct that the Indemnitee reasonably believed to be not opposed
to the best interests of the Company.
4.3. Reliance as Safe Harbor. For purposes of any Determination
hereunder, the Indemnitee shall be deemed to have acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal action or proceeding,
to have had no reasonable cause to believe or did not know the Indemnitee's
conduct was unlawful, if the Indemnitee's action is based on (i) the records or
books of account of the Company or another enterprise, including financial
statements, (ii) information supplied to the Indemnitee by the officers of the
Company or another enterprise in the course of their duties, (iii) the advice of
legal counsel for the Company or another enterprise, or (iv) information or
records given or reports made to the Company or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or another enterprise. The term
"another enterprise" as used in this Section 4.3 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise of which the Indemnitee is or was serving at the request of the
Company or any of its subsidiaries as an officer, director, consultant, partner,
trustee, employee or agent. The provisions of this Section 4.3 shall not be
deemed to be exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed to have met the applicable standard of conduct set
forth in Sections 1, 2 or 3 hereof, as the case may be.
4.4. Success on Merits or Otherwise. To the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding described in Section 1 or 2 hereof, or in defense of
any claim, issue or matter therein, the Indemnitee shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense, settlement or appeal
thereof. For purposes of this Section 4.4, the term "successful on the merits or
otherwise" shall include, but not be limited to, (i) any termination,
withdrawal, or dismissal (with or without prejudice) of any claim, action, suit
or proceeding against the Indemnitee without any express finding of liability or
guilt against the Indemnitee, (ii) the expiration of 120 days after the making
of any claim or threat of an action, suit or proceeding without the institution
of the same and without any promise or payment made to induce a settlement, or
(iii) the settlement of any action, suit or proceeding under Section 1, 2 or 3
hereof pursuant to which the Indemnitee pays less than $25,000.
4.5. Partial Indemnification or Reimbursement. If the Indemnitee is
entitled under any provision of this Agreement to indemnification and/or
reimbursement by the Company for some or a portion of the claims, damages,
expenses (including attorneys' fees and costs of other professionals),
judgments, fines or amounts paid in settlement by the Indemnitee in connection
with the investigation, defense, settlement or appeal of any action specified in
Section 1, 2 or 3 hereof, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify and/or reimburse the Indemnitee for the
portion thereof to which the Indemnitee is entitled. The party or parties making
the Determination shall determine the portion (if less than all) of such claims,
damages, expenses (including attorneys' fees), judgments, fines or amounts paid
in
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settlement for which the Indemnitee is entitled to indemnification and/or
reimbursement under this Agreement.
SECTION 5. PROCEDURES FOR DETERMINATION OF WHETHER STANDARDS HAVE BEEN
SATISFIED.
5.1. Costs. All costs of making any Determination required by
Section 4 or 5 hereof shall be borne solely by the Company, including, but not
limited to, the costs of legal counsel and judicial determinations. The Company
shall also be solely responsible for paying (i) all reasonable expenses incurred
by the Indemnitee to enforce this Agreement, including, but not limited to, the
costs incurred by the Indemnitee to obtain court-ordered indemnification
pursuant to Section 8 hereof, regardless of the outcome of any such application
or proceeding, and (ii) all costs of defending any suits or proceedings
challenging payments to the Indemnitee under this Agreement.
5.2. Timing of the Determination. The Company shall use its best
efforts to make the Determination contemplated by Section 4 or 5 hereof
promptly. In addition, the Company agrees:
(a) if the Determination is to be made by the Board or a
committee thereof, such Determination shall be made not later than 15 days after
a written request for a Determination (a "Request") is delivered to the Company
by the Indemnitee; and
(b) if the Determination is to be made by independent legal
counsel, such Determination shall be made not later than 30 days after a Request
is delivered to the Company by the Indemnitee.
The failure to make a Determination within the above-specified time period shall
constitute a Determination approving full indemnification or reimbursement of
the Indemnitee. Notwithstanding anything herein to the contrary, the
Determination may be made in advance of (i) the Indemnitee's payment (or
incurring) of expenses with respect to which indemnification or reimbursement is
sought, and/or (ii) final disposition of the action, suit or proceeding with
respect to which indemnification or reimbursement is sought.
5.3. Reasonableness of Expenses. The evaluation and finding as to
the reasonableness of expenses incurred by the Indemnitee for purposes of this
Agreement shall be made (in the following order of preference) within 15 days of
the Indemnitee's delivery to the Company of a Request that includes a reasonable
accounting of expenses incurred:
(a) first, by the Board by a majority vote of a quorum
consisting of Disinterested Directors; or
(b) next, if a quorum of Disinterested Directors cannot
be obtained by majority vote or consent of a committee duly designated by the
Board (in which designation all directors, whether or not Disinterested
Directors, may participate), consisting solely of two or more Disinterested
Directors; or
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(c) next, if such a committee cannot be designated, by
any independent legal counsel selected in accordance with Section 5.5; provided,
that, if the determination for authorization of Indemnification was made by
independent counsel pursuant to Section 4(3) hereof, then the evaluation and
finding of reasonableness shall in all events be made by independent legal
counsel.
All expenses shall be considered reasonable for purposes of this Agreement if
the finding contemplated by this Section 5.3 is not made within the prescribed
time. The finding required by this Section 5.3 may be made in advance of the
payment (or incurring) of the expenses for which indemnification or
reimbursement is sought.
5.4. Payment of Indemnified Amount. Immediately following a
Determination that the Indemnitee has met the applicable standard of conduct set
forth in Section 1, 2 or 3 hereof, as the case may be, and the finding of
reasonableness of expenses contemplated by Section 5.3 hereof, or the passage of
time prescribed for making such determination(s), the Company shall pay to the
Indemnitee in cash the amount to which the Indemnitee is entitled to be
indemnified and/or reimbursed, as the case may be, without further authorization
or action by the Board; provided, however, that the expenses for which
indemnification or reimbursement is sought have actually been incurred by the
Indemnitee.
5.5. Selection of Independent Legal Counsel. If the Determination
required under Section 4 or 5 is to be made by independent legal counsel, such
counsel shall be selected by the Board described in Section 4(1) hereof or the
committee of the Board described in Section 4(2) hereof. The fees and expenses
incurred by counsel in making any Determination (including Determinations
pursuant to Section 5.7 hereof) shall be borne solely by the Company regardless
of the results of any Determination and, if requested by counsel, the Company
shall give such counsel an appropriate written agreement with respect to the
payment of their fees and expenses and such other matters as may be reasonably
requested by counsel.
5.6. Right of Indemnitee to Appeal an Adverse Determination by
Board. If a Determination is made by the Board or a committee thereof that the
Indemnitee did not meet the applicable standard of conduct set forth in Section
1, 2 or 3 hereof or that the Indemnitee's expenses are not reasonable as set
forth in Section 5.3 hereof, upon the written request of the Indemnitee and the
Indemnitee's delivery of $5,000 to the Company, the Company shall cause a new
Determination to be made by independent legal counsel, which independent legal
counsel shall be selected in accordance with Section 5.5. Subject to Section 8
hereof, such Determination by such independent legal counsel shall be binding
and conclusive for all purposes of this Agreement.
5.7. Right of Indemnitee To Select Forum For Determination. If, at
any time subsequent to the date of this Agreement, "Continuing Directors" do not
constitute a majority of the members of the Board, or there is otherwise a
change in control of the Company (as contemplated by Item 403(c) of Regulation
S-K), then the Determination required by Section 4 or 5 hereof shall be made by
independent legal counsel selected by the Indemnitee and approved by the Board
(which approval shall not be unreasonably withheld), which counsel shall be
deemed to satisfy the requirements of clause (3) of Section 4 and clause (c) of
Section 5.3 hereof. If none of the legal counsel selected by the Indemnitee are
willing and/or able to make the
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Determination, then the Company shall cause the Determination to be made by a
majority vote or consent of a Board committee consisting solely of Continuing
Directors. For purposes of this Agreement, a "Continuing Director" means either
a member of the Board at the date of this Agreement or a person nominated to
serve as a member of the Board by a majority of the then Continuing Directors.
5.8. Access by Indemnitee to Determination. The Company shall
afford to the Indemnitee and the Indemnitee's representatives ample opportunity
to present evidence of the facts upon which the Indemnitee relies for
indemnification or reimbursement, together with other information relating to
any requested Determination.
5.9. Judicial Determinations in Derivative Suits. In each action or
suit described in Section 2 hereof, the Company shall cause its counsel to use
its best efforts to obtain from the Court in which such action or suit was
brought (i) an express adjudication whether the Indemnitee is liable for
negligence or misconduct in the performance of his duty to the Company, and, if
the Indemnitee is so liable, (ii) a determination whether and to what extent,
despite the adjudication of liability but in view of all the circumstances of
the case (including this Agreement), the Indemnitee is fairly and reasonably
entitled to indemnification.
5.10. Burden of Proof. In the event of any claim by the Indemnitee
for indemnification hereunder, there shall be a presumption that the Indemnitee
is entitled to indemnification hereunder and the Company shall have the burden
of proving that the Indemnitee is not entitled to such indemnification.
SECTION 6. SCOPE OF INDEMNITY. The actions, suits and proceedings
described in Sections 1 and 2 hereof shall include, for purposes of this
Agreement, any actions that involve, directly or indirectly, activities of the
Indemnitee both in his official capacities as a Company director or officer and
actions taken in another capacity while serving as director or officer,
including, but not limited to, actions or proceedings involving (i) compensation
paid to the Indemnitee by the Company, (ii) activities by the Indemnitee on
behalf of the Company, including actions in which the Indemnitee is plaintiff,
(iii) actions alleging a misappropriation of a "corporate opportunity," (iv)
responses to a takeover attempt or threatened takeover attempt of the Company,
(v) transactions by the Indemnitee in Company securities, and (vi) the
Indemnitee's preparation for and appearance (or potential appearance) as a
witness in any proceeding relating, directly or indirectly, to the Company. In
addition, the Company agrees that, for purposes of this Agreement, all services
performed by the Indemnitee on behalf of, in connection with or related to any
subsidiary of the Company, any employee benefit plan established for the benefit
of employees of the Company or any subsidiary, any corporation or partnership or
other entity in which the Company or any subsidiary has a 5% ownership interest,
or any other affiliate shall be deemed to be at the request of the Company.
SECTION 7. ADVANCE FOR EXPENSES.
7.1. Mandatory Advance. Expenses (including attorneys' fees)
incurred by the Indemnitee in investigating, defending, settling or appealing,
or being or preparing to be a witness in, any action, suit or proceeding
described in Section 1 or 2 hereof shall, subject to Section 13 hereof, be paid
by the Company in advance of the final disposition of such action, suit
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or proceeding. The Company shall promptly pay the amount of such expenses to the
Indemnitee, but in no event later than 5 days following the Indemnitee's
delivery to the Company of a written request for an advance pursuant to this
Section 7, together with a reasonable accounting of such expenses.
7.2. Undertaking to Repay. The Indemnitee hereby undertakes and
agrees to repay to the Company any advances made pursuant to this Section 7 if
and to the extent that a court of competent jurisdiction shall make a final
judgment (as to which all rights of appeal therefrom have been exhausted or
lapsed) that the Indemnitee is not entitled to be indemnified by the Company for
such amounts or such advances were in violation of Section 13 hereof.
7.3. Miscellaneous. The Company shall make the advances
contemplated by this Section 7 regardless of the Indemnitee's financial ability
to make repayment, and regardless whether indemnification of the Indemnitee by
the Company will ultimately be required. Any advances and undertakings to repay
pursuant to this Section 7 shall be unsecured and interest-free.
SECTION 8. COURT-ORDERED INDEMNIFICATION. Regardless of whether the
Indemnitee has met the standard of conduct set forth in Sections 1, 2 or 3
hereof, as the case may be, and notwithstanding the presence or absence of any
Determination whether such standards have been satisfied and notwithstanding any
other provision hereof, the Indemnitee may apply for indemnification (and/or
reimbursement pursuant to Section 3 or 12 hereof) to the court conducting any
proceeding to which the Indemnitee is a party or a witness or to any other court
of competent jurisdiction. On receipt of an application, the court, after giving
any notice the court considers necessary, may order indemnification (and/or
reimbursement) if it determines the Indemnitee is fairly and reasonably entitled
to indemnification (and/or reimbursement) in view of all the relevant
circumstances (including this Agreement).
SECTION 9. CONTRIBUTION. If and to the extent that a final adjudication
shall specify that the Company is not obligated to indemnify Indemnitee under
this Agreement for any reason (by reason of public policy, as a matter of law or
otherwise), then in respect of any threatened, pending or completed action, suit
or proceeding in which the Company is jointly liable with Indemnitee (or would
be so liable if joined in such action, suit or proceeding), the Company shall
contribute to the amount of expenses (including attorneys' fees and costs of
other professionals), judgments, penalties, fines (including excise taxes
assessed), settlements and all other liabilities incurred and paid or payable by
Indemnitee in connection with such action, suit or proceeding in such proportion
as is appropriate to reflect (i) the relative benefits received by the Company
on the one hand and Indemnitee on the other hand from the transaction with
respect to which such action, suit or proceeding arose, and (ii) the relative
fault of the Company on the one hand and of Indemnitee on the other hand in
connection with the circumstances which resulted in such expenses, judgments,
fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of
Indemnitee on the other hand 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 expense,
judgments, fines or settlement amounts. The Company agrees that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro
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rata allocation or any other method of allocation which does not take account of
the foregoing equitable considerations.
SECTION 10. NONDISCLOSURE OF PAYMENTS. Except as required by law,
neither party shall disclose any payments under this Agreement unless prior
approval of the other party is obtained. Any payments to the Indemnitee that
must be disclosed shall, unless otherwise required by law, be described only in
Company proxy or information statements relating to special and/or annual
meetings of the Company's shareholders, and the Company shall afford the
Indemnitee the reasonable opportunity to review all such disclosures and, if
requested, to explain in such statement any mitigating circumstances regarding
the events reported.
SECTION 11. COVENANT NOT TO XXX, LIMITATION OF ACTIONS AND RELEASE OF
CLAIMS. No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Company (or any of its subsidiaries) against the
Indemnitee, the spouse, heirs, executors, personal representatives or
administrators of the Indemnitee after the expiration of five years from the
date the Indemnitee ceases (for any reason) to serve as either an officer or a
director of the Company, and any claim or cause of action of the Company (or any
of its subsidiaries) shall be extinguished and deemed released unless asserted
by filing of a legal action within such five year period.
SECTION 12. INDEMNIFICATION OF INDEMNITEE'S ESTATE; TERM OF AGREEMENT.
Notwithstanding any other provision of this Agreement, and regardless whether
indemnification of the Indemnitee would be permitted and/or required under this
Agreement, if the Indemnitee is deceased, the Company shall indemnify and hold
harmless the Indemnitee's estate, spouse, heirs, administrators, personal
representatives and executors (collectively the "Indemnitee's Estate") against,
and the Company shall assume, any and all claims, damages, expenses, costs
(including attorneys' fees and costs of other professionals), penalties,
judgments, fines and amounts paid in settlement actually incurred by the
Indemnitee or the Indemnitee's Estate in connection with the investigation,
defense, settlement or appeal of any action described in Section 1 or 2 hereof.
Indemnification of the Indemnitee's Estate pursuant to this Section 12 shall be
mandatory and not require a Determination or any other finding that the
Indemnitee's conduct satisfied a particular standard of conduct. This Agreement
shall continue until and terminate upon the later of: (i) ten (10) years after
the date that the Indemnitee shall have ceased to serve as an officer or
director of the Company; or (ii) the entry of a judgment, order or award, not
subject to appeal, in any claim asserted against the Indemnitee subject to this
Agreement.
SECTION 13. LIMITATION ON INDEMNIFICATION. Notwithstanding any other
provisions of this Agreement, but subject to the provisions of Section 15
hereof, the Indemnitee shall not be entitled to indemnification or advancement
of expenses if (i) a judgment or other final adjudication establishes that the
actions of the Indemnitee, or omissions to act, were material to the cause of
action so adjudicated and constitute: (a) a violation of the criminal law,
unless the Indemnitee had reasonable cause to believe the conduct of the
Indemnitee was lawful or had no reasonable cause to believe the conduct of the
Indemnitee was unlawful; (b) a transaction from which the Indemnitee derived an
improper personal benefit; (c) in the case of a director, a circumstance under
which the liability provisions relating to unlawful distributions under Section
607.0834 of the Florida Act are applicable; or (d) willful misconduct or a
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conscious disregard for the best interests of the Company in a proceeding by or
in the right of the Company to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder; or (ii) such indemnification or
advancement of expenses is prohibited by law.
SECTION 14. MAINTENANCE OF INSURANCE. The Company represents that a
copy of the policies of directors and officers liability insurance that are in
effect are set forth as Exhibit A hereto. The Company hereby agrees that during
the period commencing on the date hereof and ending five years from the date the
Indemnitee ceases to serve the Company, the Company shall purchase and maintain
in effect for the benefit of the Indemnitee such insurance providing coverage at
least as favorable to the Indemnitee as that presently provided, if such
insurance can be purchased for premiums not in excess of 150% of the amount of
the current premiums, adjusted from time to time in accordance with the Consumer
Price Index, or, if such coverage cannot be obtained, the maximum coverage that
can be obtained for 150% of the amount of the current premiums adjusted from
time to time in accordance with the Consumer Price Index.
SECTION 15. CHANGES IN THE LAW. If any change after the date of this
Agreement in any applicable law, statute or rule or the Company's Articles of
Incorporation expands the power of the Company to indemnify the Indemnitee, such
change shall be within the purview of the Indemnitee's rights and the Company's
obligations under this Agreement. If any change in any applicable law, statute
or rule or the Company's Articles of Incorporation narrows the right of the
Company to indemnify a person such as the Indemnitee, such change, to the extent
not otherwise required by such law, statute or rule or the Company's Articles of
Incorporation to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations thereunder.
SECTION 16. MISCELLANEOUS.
16.1. Notice Provision. Any notice, payment, demand or communication
required or permitted to be delivered or given by the provisions of this
Agreement shall be deemed to have been effectively delivered or given and
received on the date personally delivered to the respective party to whom it is
directed, or when deposited by registered or certified mail, with postage and
charges prepaid and addressed to the parties at the addresses set forth below
opposite their signatures to this Agreement.
16.2. Entire Agreement. Except for the Company's Articles of
Incorporation, this Agreement constitutes the entire understanding of the
parties and supersedes all prior understandings, whether written or oral,
between the parties with respect to the subject matter of this Agreement.
Nothing in this Agreement shall be deemed to limit any other indemnification to
which the Indemnitee may be entitled, including under the Company's Articles of
Incorporation, without duplication of payment.
16.3. Severability of Provisions. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect
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and shall not be affected by the illegal, invalid, or unenforceable provision or
by its severance from this Agreement. Furthermore, in lieu of each such illegal,
invalid, or unenforceable provision there shall be added automatically as a part
of this Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid, and enforceable.
16.4. Applicable Law. This Agreement shall be governed by and construed
under the laws of the State of Florida.
16.5. Execution in Counterparts. This Agreement and any amendment may
be executed simultaneously or in counterparts, each of which together shall
constitute one and the same instrument.
16.6. Cooperation and Intent. The Company shall cooperate in good faith
with the Indemnitee and use its best efforts to ensure that the Indemnitee is
indemnified and/or reimbursed for liabilities described herein to the fullest
extent permitted by law.
16.7. Amendment. No amendment, modification or alteration of the terms
of this Agreement shall be binding unless in writing, dated subsequent to the
date of this Agreement, and executed by the parties.
16.8. Binding Effect. The obligations of the Company to the Indemnitee
hereunder shall survive and continue as to the Indemnitee even if the Indemnitee
ceases to be a director, officer, consultant, employee and/or agent of the
Company. Each and all of the covenants, terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the successors to the Company
and, upon the death of the Indemnitee, to the benefit of the estate, heirs,
executors, administrators and personal representatives of the Indemnitee.
16.9. Nonexclusivity. The rights of indemnification and reimbursement
provided in this Agreement shall be in addition to any rights to which the
Indemnitee may otherwise be entitled by statute, bylaw, agreement, vote of
stockholders or otherwise.
16.10. Effective Date. The provisions of this Agreement shall cover
claims, actions, suits and proceedings whether now pending or hereafter
commenced and shall be retroactive to cover acts or omissions or alleged acts or
omissions which heretofore have taken place.
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EXECUTED AS OF THE DATE FIRST ABOVE WRITTEN.
ADDRESS: THE COMPANY:
0000 Xxxxxxx Xxxxxxx PEDIATRIX MEDICAL GROUP, INC.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: By: __________________________
Name: ________________________
Title: _______________________
ADDRESS: THE INDEMNITEE:
_______________________________ ______________________________
_______________________________ Name:
_______________________________
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