INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this "Agreement")
is
made as of October ___, 2005, between Ventiv Health, Inc., a Delaware
corporation (the "Company"),
and
(the
"Indemnitee").
Recitals
A. The
Indemnitee is an executive officer of the Company and/or a member of the
Company's Board of Directors (the "Board")
and,
in such capacity, is performing valuable services for the Company.
B. The
Company has adopted By-Laws, as amended (the "By-Laws"),
providing for indemnification of the directors and officers of the Company
in
accordance with Section 145 of the Delaware General Corporation Law (the
"DGCL").
The
By-Laws and the DGLC specifically provide that they are not exclusive, and
contemplate that agreements may be entered into between the Company and
directors and officers with respect to indemnification of directors and
officers.
C. In
recognition of the need for corporations to be able to induce capable and
responsible persons to accept positions in corporate management, Delaware law
authorizes (and in some instances requires) corporations to indemnify their
directors and officers and further authorizes corporations to purchase and
maintain insurance for the benefit of their directors and officers.
D. The
Company and the Indemnitee further recognize that officers and directors may
be
exposed to certain risks including the increased risk of litigation and other
claims being asserted against directors and executive officers of public
companies in today's environment.
E. These
factors with respect to the coverage and cost to the Company of D&O
Insurance and issues concerning the scope of indemnity under the DGCL and
By-Laws generally have raised questions concerning the adequacy and reliability
of the protection presently afforded to directors and executive
officers.
F. There
are
at this time no threatened, pending or completed Proceedings (as defined in
this
Agreement) known to either the Company or the Indemnitee.
G. In
order
to address such issues and to further induce the Indemnitee to serve and
continue to serve as an executive officer and/or a member of the Board, the
Company and the Indemnitee desire to enter into this Agreement.
Statement
of Agreement
In
consideration of the Indemnitee's continued service as an executive officer
and/or a member of the Board after the date of this Agreement, the Company
and
the Indemnitee hereby agree as follows:
1. Indemnity
of the Indemnitee.
(a)
Subject only to the limitations set forth in Section 2 below, the Company shall
indemnify the Indemnitee to the full extent not otherwise prohibited by the
DGCL
or other applicable law, including without limitation indemnity,
(i)
against any and all costs, charges and expenses (including legal, expert, and
other professional fees and expenses paid or payable in connection with
investigating, defending, being a witness in or participating in (including
on
appeal), or preparing to investigate, defend, be a witness in or participate
in
(including on appeal), any Proceeding (defined below), judgments, damages,
fines
(including excise taxes with respect to employee benefit plans), penalties
(whether civil, criminal or other), and amounts paid in settlement actually
and
reasonably incurred by the Indemnitee (collectively, "Losses"),
in
connection with any threatened, pending, or completed claim, demand, action,
suit or proceeding (whether civil, criminal, administrative, arbitrative or
other, whether made pursuant to federal, state or other law, and including,
without limitation, an action by or in the right of the Company and any appeal
of or from any judgment or decision), or any threatened, pending or completed
inquiry or investigation, whether made, instituted or conducted by the Company
or any other person, including any federal, state or other governmental entity,
that the Indemnitee determines might lead to the institution of any such claim,
demand, action, suit or other proceeding (each a "Proceeding"),
in
any case to which the Indemnitee is or at any time becomes a party or witness,
or is threatened to be made a party or witness as a result, directly or
indirectly, of (A) serving at any time: (I) as a director, officer, employee,
or
agent of the Company; or (II) at the request of the Company as a director,
officer, employee, trustee, fiduciary, manager, member, or agent of a
corporation, partnership, trust, limited liability company, employee benefit
plan, or other enterprise or entity, (B) any actual, alleged or suspected act
or
failure to act by the Indemnitee in respect of any business, transaction,
communication, filing, disclosure or other activity of the Company or any other
entity or enterprise referred to in clause (A) of this sentence; and (ii)
otherwise to the fullest extent that the Indemnitee may be indemnified by the
Company under the Certificate of Incorporation of the Company, as amended (the
"Certificate
of Incorporation"),
the
By-Laws and the DGCL, including, without limitation, the non-exclusivity
provisions thereof. In addition to any service at the actual request of the
Company, for purposes of this Agreement, Indemnitee will be deemed to be serving
or to have served at the request of the Company as a director, officer,
employee, member, manager, trustee or agent of another entity or enterprise
if
Indemnitee is or was serving as a director, officer, employee, member, manager,
trustee or agent of such entity or enterprise and (A) such entity or
enterprise is or at the time of such service was a Controlled Affiliate,
(B) such entity or enterprise is or at the time of such service was
an
employee benefit plan (or related trust) sponsored or maintained by the Company
or a Controlled Affiliate, or (C) the Company or a Controlled Affiliate
directly or indirectly caused or authorized Indemnitee to be nominated, elected,
appointed, designated, employed, engaged or selected to serve in such capacity.
For purposes hereof, "Controlled
Affiliate"
means
any corporation, limited liability company, partnership, joint venture, trust
or
other entity or enterprise, whether or not for profit, that is directly or
indirectly controlled by the Company. For purposes of this definition, "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of an entity or enterprise, whether
through the ownership of voting securities, through other voting rights, by
contract or otherwise; provided that direct or indirect beneficial ownership
of
capital stock or other interests in an entity or enterprise entitling the holder
to cast 20% or more of the total number of votes generally entitled to be cast
in the election of directors (or persons performing comparable functions) of
such entity or enterprise will be deemed to constitute control for purposes
of
this definition. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any Loss,
but not for all of the total amount thereof, the Company will nevertheless
indemnify the Indemnitee for the portion thereof to which the Indemnitee is
entitled.
2. Limitations
on Indemnity.
No
indemnity pursuant to Section 1 will be paid by the Company:
(a) Except
to
the extent that the aggregate amount of Losses to be indemnified exceed the
aggregate amount of such Losses for which the Indemnitee is actually paid or
reimbursed pursuant to directors’ and officers’ liability insurance, if any,
which may be purchased and maintained by the Company or any of its subsidiaries
or pursuant to the Certificate of Incorporation, the By-Laws or
otherwise;
(b) To
the
extent determined by a court having jurisdiction in the matter, in a final
adjudication from which there is no further right of appeal, that the Indemnitee
actually realized a personal gain or profit to which the Indemnitee was not
legally entitled, including profit from the purchase and sale by the Indemnitee
of equity securities of the Company which are recoverable by the Company
pursuant to Section 16(b) of the Securities Exchange Act of 1934, as
amended;
(c) On
account of the Indemnitee's conduct if it is proven by clear and convincing
evidence in a court of competent jurisdiction that the Indemnitee's action
or
failure to act involved an act or omission undertaken with deliberate intent
to
cause injury to the Company or undertaken with reckless disregard for the best
interests of the Company, except to the extent such indemnity is otherwise
permitted under the DGCL;
(d) With
respect to any remuneration paid to the Indemnitee determined, by a court having
jurisdiction in the matter in a final adjudication from which there is no
further right of appeal, to have been in violation of law;
(e) If
it
shall have been determined by a court having jurisdiction in the matter, in
a
final adjudication from which there is no further right of appeal, that
indemnification is not lawful;
(f) On
account of the Indemnitee's conduct to the extent it relates to any matter
that
occurred prior to the time such individual became an executive officer or a
director of the Company; provided,
however,
that
this limitation will not apply to the extent such matter occurred while the
Indemnitee was a director, officer, employee or agent of the Company or its
subsidiaries (other than prior to the time such entity became a subsidiary
of
the Company); or
(g) No
indemnity pursuant to Section 1 shall be paid by the Company with respect to
Proceedings initiated or brought voluntarily by the Indemnitee and not by way
of
defense, except pursuant to Section 7 with respect to proceedings brought to
enforce rights or to collect money due under this Agreement; provided,
however,
that
indemnity may be provided by the Company in specific cases if
(i) authorized by another agreement to which the Company is a party
whether
heretofore or hereafter entered, (ii) otherwise ordered by the court in which
the Proceeding is brought, or (iii) the Board finds it to be
appropriate.
In
no
event will the Company be obligated to indemnify the Indemnitee pursuant to
this
Agreement to the extent such indemnification is prohibited by applicable law.
A
determination as to whether the Indemnitee will be entitled to indemnification
under Section 1 will be made in accordance with Section 3(a)
hereof.
3. Advancement
of Losses.
Losses
reasonably incurred by the Indemnitee in connection with any Proceeding will
be
promptly reimbursed or paid by the Company as they become due in advance of
the
final disposition of such Proceeding under the procedures set forth in Section
3(b) below. The Indemnitee's right to such advancement is not subject to the
satisfaction of any standard of conduct.
4. Certain
Procedures Relating to Indemnification.
(a) For
purposes of pursuing the Indemnitee's rights to indemnification under Section
1
hereof, the Indemnitee shall (i) submit to the Board a sworn statement of
request for indemnification substantially in the form of Exhibit 1 attached
hereto and made a part hereof (the “Request
for Indemnification”)
averring that the Indemnitee is entitled to indemnification hereunder; and
(ii) present to the Company reasonable evidence of all amounts for which
indemnification is requested. Without limiting Section 3(c), submission of
a
Request for Indemnification to the Board shall create a presumption that the
Indemnitee is entitled to indemnification hereunder, and the Company shall,
within 30 calendar days after submission of the Request for Indemnification,
make the payments requested in the Request for Indemnification to or for the
benefit of the Indemnitee, unless (A) within such 30-calendar-day period
the Board shall resolve by vote of a majority of the Directors at a meeting
at
which a quorum is present that the Indemnitee is not entitled to indemnification
under Section 1 hereof, (B) such vote shall be based upon clear and convincing
evidence (sufficient to rebut the foregoing presumption), and (C) the Board
shall notify the Indemnitee within such period of such vote, which notice will
disclose with particularity the evidence upon which the vote is based. The
foregoing notice shall be sworn to by all persons who participated in the vote
and voted to deny indemnification. The provisions of this Section 3 are intended
to be procedural only and will not affect the right of the Indemnitee to
indemnification under Section 1 of this Agreement so long as the Indemnitee
follows the prescribed procedure, and any determination by the Board that the
Indemnitee is not entitled to indemnification and any failure to make the
payments requested in the Request for Indemnification will be subject to
judicial review by any court of competent jurisdiction.
(b) For
purposes of obtaining payments of Losses in advance of final disposition
pursuant to Section 2, the Indemnitee shall submit to the Company a
sworn
request for advancement of Losses substantially in the form of Exhibit 2
attached hereto and made a part hereof (the “Undertaking
and Request for Payment”),
averring that the Indemnitee has reasonably incurred or will reasonably incur
actual Losses in defending a Proceeding referred to in Section 1, or pursuant
to
Section 6 hereof. The Indemnitee shall execute the Undertaking and Request
for Payment by which the Indemnitee undertakes to: (A) repay such amount if
it
is ultimately determined that the Indemnitee is not entitled to be indemnified
by the Company under this Agreement or otherwise; and (B) reasonably cooperate
with the Company concerning the Proceeding. In the event that the Indemnitee
executes the Undertaking and Request for Payment, the Losses which are paid
by
the Company pursuant thereto will be required to be repaid by the Indemnitee
only if the Indemnitee is required to do so under the terms of the Undertaking
and Request for Payment. Upon receipt of the Undertaking and Request for
Payment, the Company shall thereafter within five business days pay
such
Losses of the Indemnitee as are noticed to the Company in reasonable detail
arising out of the matter described in the Undertaking and Request for Payment.
No security will be required in connection with any Undertaking and Request
for
Payment.
(c) In
making
any determination under Section 3(a), the Board will presume that Indemnitee
has
satisfied the applicable standard of conduct, and the Company may overcome
such
presumption only by its adducing clear and convincing evidence to the contrary.
No determination by the Company (including by its Board) that the Indemnitee
has
not satisfied any applicable standard of conduct will be a defense to any
Proceeding by the Indemnitee for indemnification or reimbursement or advance
payment of expenses by the Company hereunder or create a presumption that the
Indemnitee has not met any applicable standard of conduct.
5. Continuation
of Obligations.
All
obligations of the Company under this Agreement will apply retroactively
beginning on the date the Indemnitee commenced as, and will continue during
the
period that the Indemnitee remains, a director or executive officer of the
Company or is, as described above, a director, officer, employee, trustee,
fiduciary, manager, member, or agent of another corporation, partnership,
limited liability company, trust, employee benefit plan, or other enterprise
and
will continue thereafter as long as the Indemnitee may be subject to any
possible claim or any threatened, pending or completed Proceeding as a result,
directly or indirectly, of being such a director, officer, employee, trustee,
fiduciary, manager, member, or agent.
6. Notification
and Defense of Claim.
Promptly
after receipt by the Indemnitee of notice of the commencement of any Proceeding,
if a claim is to be made against the Company under this Agreement, the
Indemnitee shall notify the Company of the commencement thereof, but the delay
or omission to so notify the Company will not relieve the Company from any
liability which it may have to the Indemnitee under this Agreement, except
to
the extent the Company is materially prejudiced by such delay or omission.
With
respect to any such Proceeding of which the Indemnitee notifies the Company
of
the commencement:
(a) The
Company will be entitled to participate therein at its own expense;
(b) The
Company will be entitled to assume the defense thereof, jointly with any other
indemnifying party similarly notified, with counsel selected by the Company
and
approved by the Indemnitee, which approval will not unreasonably be withheld.
After notice from the Company to the Indemnitee of the Company's election to
assume such defense, the Company will not be liable to the Indemnitee under
this
Agreement for any legal or other Losses subsequently incurred by the Indemnitee
in connection with the defense thereof except as otherwise provided below.
The
Indemnitee will have the right to employ the Indemnitee's own counsel in such
Proceeding, but the fees and expenses of such counsel incurred after notice
from
the Company of its assumption of such defense will be the expenses of the
Indemnitee unless (i) the employment of such counsel by the Indemnitee has
been
authorized by the Company, (ii) the Indemnitee, upon the advice of counsel,
shall have reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee in the conduct of such defense, or (iii) the
Company has not in fact employed counsel to assume such defense, in any of
which
cases the fees and expenses of such counsel will be the expenses of the Company.
The Company will not be entitled to assume the defense of any Proceeding brought
by or on behalf of the Company or as to which the Indemnitee, upon the advice
of
counsel, shall have made the conclusion described in (ii), above. In the event
the Company assumes the defense of any Proceeding as provided in this Section
5(b), the Company may defend or settle such Proceeding as it deems appropriate;
provided,
however,
the
Company will not settle any Proceeding in any manner which would impose any
penalty or limitation on the Indemnitee without the Indemnitee's written
consent, which consent will not be unreasonably withheld.
(c) The
Company will not be required to indemnify the Indemnitee under this Agreement
for any amounts paid in settlement of any Proceeding without the Company's
written consent, which consent will not be unreasonably withheld.
(d) The
Indemnitee shall cooperate with the Company in all ways reasonably requested
by
it in connection with the Company fulfilling its obligations under this
Agreement.
7. Enforcement.
The
Company expressly confirms that it has entered into this Agreement and has
assumed the obligations of this Agreement in order to induce the Indemnitee
to
serve or continue to serve as an executive officer and a director of the Company
and acknowledges that the Indemnitee is relying upon this Agreement in
continuing in such capacities. It is the intent of the Company that the
Indemnitee not be required to incur the expenses associated with the enforcement
of the Indemnitee's rights under this Agreement by litigation or other legal
action because the cost and expense thereof would substantially detract from
the
benefits intended to be extended to the Indemnitee hereunder. Accordingly,
if it
should appear to the Indemnitee that the Company has failed to comply with
any
of its obligations under this Agreement or in the event that the Company or
any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any action, suit or proceeding to deny or to recover from, the
Indemnitee the benefits intended to be provided to the Indemnitee hereunder,
the
Company irrevocably authorizes the Indemnitee from time to time to retain
counsel of his choice, at the expense of the Company as hereafter provided,
to
represent the Indemnitee in connection with the initiation or defense of any
litigation or other legal action, whether by or against the Company or any
director, officer, shareholder, or other person affiliated with the Company,
in
any jurisdiction. Regardless of the outcome thereof, the Company shall pay
and
be solely responsible for any and all costs, charges, and expenses, including
fees and expenses of attorneys and others, reasonably incurred by the Indemnitee
pursuant to this Section 6.
8. Rights
Not Exclusive; Non-Transferable.
(a) The
indemnification provided by this Agreement will not be deemed exclusive of
any
other rights to which the Indemnitee may be entitled under the Certificate
of
Incorporation, the By-Laws, any insurance policy, any agreement, any vote of
the
shareholders or disinterested directors of the Company, the DGCL or applicable
law (whether by statute or judicial decision) or otherwise, both as to action
in
the Indemnitee's official capacity and as to action in another capacity while
holding such office and will continue after the Indemnitee has ceased to be
a
director or an officer, employee or agent of the Company or other entity for
which the Indemnitee's service gives rise to a right hereunder, and will inure
to the benefit of the Indemnitee's heirs, executors and
administrators.
(b) Except
as
provided in Section 7(a) above, the rights to indemnification provided by this
Agreement are personal to the Indemnitee and are non-transferable by the
Indemnitee, and no party other than the Indemnitee is entitled to
indemnification under this Agreement.
9. Subrogation.
In the
event of payment under this Agreement, the Company will be subrogated to the
extent of such payment to all of the rights of the recovery of the Indemnitee,
who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such
rights.
10. No
Construction as Employment Agreement.
Nothing
contained herein will be construed as giving the Indemnitee, if an employee
of
the Company or any of its related enterprises, any right to be retained in
the
employ of the Company or any of its related enterprises.
11. Separability.
Each of
the provisions of this Agreement is a separate and distinct Agreement and
independent of the others so that, if any provision of this Agreement shall
be
held to be invalid and unenforceable for any reason, such invalidity or
unenforceability will not affect the validity or enforceability of the other
provisions of this Agreement.
12. Modification
to Applicable Law; Amendments to Certification of Incorporation or
Bylaws.
(a) In
the
event there is a change, after the date of this Agreement, in any applicable
law
(including without limitation the DGCL (whether by statute or judicial
decision)) which: (i) expands the right of a Delaware corporation to indemnify
a
member of its board of directors or an officer, such change will be
automatically included within the scope of the Indemnitee's rights and Company's
obligations under this Agreement; or (ii) narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
such
change, to the extent not otherwise required by such law, will have no effect
on
this Agreement or the parties' rights and obligations hereunder.
(b) No
amendment to the Certificate of Incorporation or the By-Laws will deny,
diminish, or encumber the Indemnitee’s rights to indemnity pursuant to the
Certificate of Incorporation, the By-Laws, the DGCL, or any other applicable
law
as applied to any act or failure to act occurring in whole or in part prior
to
the date upon which the amendment was approved by the shareholders of the
Company (the “Effective
Date”).
The
Company shall not adopt any amendment to its Certificate of Incorporation or
By-Laws or take any other action the effect of which is to deny, diminish,
or
encumber the Indemnitee’s rights to indemnity pursuant to the Certificate of
Incorporation, the By-Laws, the DGCL, or any such other law.
13. Partial
Indemnity.
If the
Indemnitee is entitled under any provision of this Agreement to indemnity by
the
Company for some or a portion of the Losses actually or reasonably incurred
by
him or her in the investigation, defense, appeal, or settlement of any
Proceeding, but not for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Losses to which the Indemnitee
is entitled.
14. Governing
Law.
This
Agreement shall be interpreted and enforced in accordance with the laws of
the
State of Delaware, without regard to choice of law principles.
15. Successors.
This
Agreement will be binding upon, inure to the benefit of, and be enforceable
by
and against the Company and its successors and assigns (including those referred
to in the next sentence). The Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of the Company,
expressly, absolutely, and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be
required to perform it if no such succession or assignment had taken
place.
16. Prior
Agreements.
This
Agreement will supersede any other agreements entered into prior to the date
of
this Agreement between the Company and the Indemnitee concerning the subject
matter of this Agreement.
17. Security.
To
ensure that the Company’s obligations pursuant to this Agreement can be enforced
by the Indemnitee, the Company may, at its option, establish a trust pursuant
to
which the Company’s obligations pursuant to this Agreement and other similar
agreements can be funded.
18. Notices.
All
notices and other communications hereunder shall be in writing and shall be
personally delivered or sent by recognized overnight courier service (a) if
to
the Company, to the then-current principal executive offices of the Company
(Attention: Chief Financial Officer) or (b) if to the Indemnitee, to the address
of the Indemnitee set forth on the signature page hereto. Either party may
change its address for the delivery of notices or other communications hereunder
by providing notice to the other party as provided in this Section 18. All
notices will be effective upon actual delivery by the methods specified in
this
Section 18.
19. Modification.
This
Agreement and the rights and duties of the Indemnitee and the Company hereunder
may be modified only by an instrument in writing signed by both parties
hereto.
20. Consent
to Jurisdiction.
The
Company and the Indemnitee each hereby irrevocably consents to the jurisdiction
of the courts of the State of Delaware for all purposes in connection with
any
action or proceeding which arises out of or relates to this Agreement and hereby
waives any objections or defenses relating to jurisdiction with respect to
any
lawsuit or other legal proceeding initiated in or transferred to such
courts.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first above written.
Ventiv
Health, Inc.
BY:
Name:
Title:
INDEMNITEE
Exhibit
1
REQUEST
FOR INDEMNIFICATION
STATE
OF )
) SS
COUNTY
OF )
I,
____________________, being first duly sworn, do depose and say as
follows:
1. This
Request for Indemnification is submitted pursuant to the Indemnification
Agreement, dated _______, 2005 (the “Indemnification
Agreement”),
between Ventiv
Health, Inc.,
a
Delaware corporation (the “Company”),
and
the undersigned.
2. I
am
requesting indemnification against costs, charges, expenses (which may include
fees and expenses of attorneys and/or others), judgments, fines, and amounts
paid in settlement (collectively, “Liabilities”),
which
have been actually and reasonably incurred by me in connection with a claim
referred to in Section 1 of the aforesaid Indemnification
Agreement.
3. With
respect to all matters related to any such claim, I am entitled to be
indemnified as herein contemplated pursuant to the aforesaid Indemnification
Agreement.
4. Without
limiting any other rights which I have or may have, I am requesting
indemnification against Liabilities which have or may arise out of .
[Signature
of Indemnitee]
Subscribed
and sworn to before me, a Notary Public in and for said County and State, this
_____ day of _____________, 20__.
[Seal]
My
commission expires the _____ day of __________, 20__.
Exhibit
2
UNDERTAKING
AND REQUEST FOR PAYMENT
STATE
OF )
) SS
COUNTY
OF )
I,
___________________, being first duly sworn do depose and say as
follows:
1. This
Undertaking is submitted pursuant to the Indemnification Agreement, dated
_______, 2005, between Ventiv
Health, Inc.,
a
Delaware corporation (the “Company”)
and
the undersigned (the “Indemnification
Agreement”).
2. I
am
requesting payment of costs, charges, and expenses that I have reasonably
incurred or will reasonably incur in defending an action, suit or proceeding,
referred to in Section 1, or pursuant to Section 7, of the aforesaid
Indemnification Agreement.
3. The
costs, charges, and expenses for which payment is requested are, in general,
all
expenses related to .
4. I
hereby
undertake to: (a) repay all amounts paid pursuant hereto if it ultimately is
determined that I am not entitled to be indemnified by the Company under the
aforesaid Indemnification Agreement or otherwise; and (b) reasonably
cooperate with the Company concerning the action, suit, proceeding or
claim.
[Signature
of Indemnitee]
Subscribed
and sworn to before me, a Notary Public in and for said County and State, this
_____ day of ____________, 20__.
[Seal]
My
commission expires the ____ day of ____________, 20__.
