Exhibit 10.2
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of September,
1996 between HEALTHDESK CORPORATION, a California corporation ("Corporation"),
and ________ ("Indemnitee") with reference the following:
1. Indemnitee is an officer and/or director of Corporation who
performs a valuable service for Corporation.
2. The Restated Articles of Incorporation of Corporation
authorize and permit contracts between Corporation and agents
of the Corporation with respect to indemnification of such
agents.
3. Pursuant to the California General Corporation Law, as amended
("Code"), Corporation may obtain Directors and Officers
Liability Insurance ("D & O Insurance"), covering certain
liabilities which may be incurred by its directors and
officers.
4. As a result of recent developments affecting the terms, scope
and availability of D & O Insurance, the extent of protection
afforded officers and directors by such D & O Insurance and by
statutory and bylaw indemnification provisions is uncertain.
5. In order to induce Indemnitee to continue to serve as an
officer and/or director of Corporation, Corporation has
determined and agreed to enter into this agreement with
Indemnitee.
The parties agree as follows:
1. Indemnity. Corporation hereby agrees to hold harmless and
indemnify Indemnitee to the fullest extent authorized by the provisions of the
Code, as it may be amended from time to time.
2. Additional Indemnity. Subject only to the limitations set
forth in Section 3 hereof, Corporation hereby further agrees to hold harmless
and indemnify Indemnitee:
(a) against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Indemnitee in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of Corporation) to which Indemnitee is,
was or at any time becomes a party, or is threatened to be made a party, by
reason of the fact that Indemnitee is, was or at any time becomes a director,
officer employee or agent of Corporation, or is or was serving or at any time
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serves at the request of Corporation as director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise; and
(b) otherwise to the fullest extent as may be provided to
Indemnitee by Corporation under the non-exclusivity provision of the Articles of
Incorporation of Corporation and the Code.
3. Limitations on Additional Indemnity.
(a) No indemnity pursuant to Section 2 hereof shall be paid
by Corporation:
(i) except to the extent the aggregate of losses to be
indemnified under Section 2 exceeds the sum of such losses for which the
Indemnitee is indemnified pursuant to Section 1 or pursuant to any D & O
Insurance purchased and maintained by Corporation;
(ii) in respect to remuneration paid to Indemnitee if
it shall be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(iii) on account of any suit in which judgment is
rendered against Indemnitee for an accounting of profits made from the purchase
or sale by Indemnitee of Securities of Corporation pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law;
(iv) on account of Indemnitee's acts or omissions that
involve intentional misconduct or a knowing and culpable violation of law;
(v) on account of any proceeding (other than a
proceeding referred to in Section 8(b) hereof) initiated by the Indemnitee
unless such proceeding was authorized by the directors of the Corporation;
(vi) if a final decision by a Court having jurisdiction
in the matter shall determine that such indemnification is not lawful; or
(vii) on account of any action, suit or proceeding
commenced by the Indemnitee against the Corporation or against any officer,
director or shareholder of the Corporation unless authorized in the specific
case by action of the Board of Directors;
(b) In addition to those limitations set forth above in
paragraph (a) of this Section 3, no indemnity pursuant to Section 2 hereof in an
action by or in the right of Corporation shall be paid by Corporation:
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(i) on account of acts or omissions that Indemnitee
believes to be contrary to the best interests of the Corporation or its
shareholders or that involve the absence of good faith on the part of the
Indemnitee;
(ii) with respect to any transaction from which
Indemnitee derived an improper personal benefit;
(iii) on account of acts or omissions that show a
reckless disregard for Indemnitee's duty to Corporation or its shareholders in
circumstances in which Indemnitee was aware, or should have been aware, in the
ordinary course of performing an officer's duties, of a risk of serious injury
to Corporation or its shareholders;
(iv) on account of acts or omissions that constitute
an unexcused pattern of inattention and that amount to an abdication of
Indemnitee's duty to Corporation or its shareholders;
(v) to the extent prohibited by Section 310 of the
Code;
(vi) to the extent prohibited by Section 316 of the
California Corporations Code;
(vii) in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged by a court of competent jurisdiction
to be liable to Corporation in the performance of Indemnitee's duty to
Corporation and its shareholders, unless and only to the extent that the court
in which such proceeding is or was pending shall determine upon application
that, in view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for expenses and then only to the extent that
the court shall determine;
(viii) with respect to amounts paid in settling or
otherwise disposing of a pending action without court approval; or
(ix) with respect to expenses incurred in defending a
pending action which is settled or otherwise disposed of without court approval.
4. Contribution. If the indemnification provided in Sections 1
and 2 is unavailable and may not be paid to Indemnitee for any reason other
than those set forth in Section 3 (excluding subsections 3(b)(viii) and (ix)),
then in respect of any threatened, pending or completed action, suit or
proceeding in which Corporation is jointly liable with Indemnitee (or would be
if joined in such action, suit or proceeding), Corporation shall contribute to
the amount of expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred and paid or payable by
Indemnitee in such proportion as is appropriate to reflect (i) the relative
benefits received by Corporation on the one hand and Indemnitee on the other
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hand from the transaction from which such action, suit or proceeding arose, and
(ii) the relative fault of Corporation on the one hand and of Indemnitee on the
other in connection with the events which resulted in such expenses, judgments,
fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of Corporation on the one hand and of
Indemnitee on the other shall be determined by reference to, among other things,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts. Corporation agrees that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation or any other method of allocation which does not take account of the
foregoing equitable considerations.
5. Continuation of Obligations. All agreements and obligations of
Corporation contained herein shall continue during the period Indemnitee is a
director, officer, employee or agent of Corporation (or is or was serving at the
request of Corporation as 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 possible claim
or threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Indemnitee was an officer
of Corporation or serving in any other capacity referred to herein.
6. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee will, if a claim in respect thereof is to be made against Corporation
under this Agreement, notify Corporation of the commencement thereof; but the
omission so to notify Corporation will not relieve it from any liability which
it may have to Indemnitee otherwise than under this Agreement. With respect to
any such action, suit or proceeding as to which Indemnitee notifies Corporation
of the commencement thereof:
(a) Corporation will be entitled to participate therein at
its own expense;
(b) except as otherwise provided below, to the extent that
it may wish, Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee. After notice from Corporation to Indemnitee of its
election so as to assume the defense thereof, Corporation will not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ its counsel in such action, suit or proceeding
but the fees and expenses of such counsel incurred after notice from Corporation
of its assumption of the defense thereof shall be at the expense of Indemnitee
unless (i) the employment of counsel by Indemnitee has been authorized by
Corporation, (ii) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between Corporation and Indemnitee in the conduct of the
defense of such action, in each of which cases the fees and expenses of counsel
shall be at the expense of Corporation. Corporation shall not be entitled to
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assume the defense of any action, suit or proceeding brought by or on behalf of
Corporation or as to which Indemnitee shall have made the conclusion provided
for in (ii) above; and
(c) Corporation shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. Corporation shall not settle any action or
claim in any manner which would impose any penalty or limitation on Indemnitee
without Indemnitee's written consent. Neither Corporation nor Indemnitee will
unreasonably withhold its consent to any proposed settlement.
7. Advancement and Repayment of Expenses.
(a) In the event that Indemnitee employs his own counsel
pursuant to Section 6(b)(i) through (iii) above, Corporation shall advance to
Indemnitee, prior to any final disposition of any threatened or pending action,
suit or proceeding, whether civil, criminal, administrative or investigative,
any and all reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding within ten (10)
days after receiving copies of invoices presented to Indemnitee for such
expenses; and
(b) Indemnitee agrees that Indemnitee will reimburse
Corporation for all reasonable expenses paid by Corporation in defending any
civil or criminal action, suit or proceeding against Indemnitee in the event and
only to the extent it shall be ultimately determined by a final judicial
decision (from which there is no right of appeal) that Indemnitee is not
entitled, under applicable law, the Corporation's Bylaws, this Agreement or
otherwise, to be indemnified by Corporation for such expenses.
(c) Notwithstanding the foregoing, Corporation shall not be
required to advance such expenses to Indemnitee if Indemnitee (i) commences any
action, suit or proceeding as a plaintiff unless such advance is specifically
approved by a majority of the Board of Directors or (ii) is a party to an
action, suit or proceeding brought by Corporation and approved by a majority of
the Board which alleges willful misappropriation of Corporation assets by
Indemnitee, disclosure of confidential information in violation of Indemnitee's
fiduciary or contractual obligations to Corporation, or any other willful and
deliberate in bad faith of Indemnitee's duty to Corporation or its shareholders.
8. Enforcement.
(a) Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on Corporation
hereby in order to induce Indemnitee to continue as an officer and/or director
of Corporation, and acknowledges that Indemnitee is relying upon this Agreement
in continuing in such capacity.
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(b) In the event Indemnitee is required to bring any action
to enforce rights or to collect moneys due under this Agreement and is
successful in such action, Corporation shall reimburse Indemnitee for all of
Indemnitee's reasonable fees and expenses in bringing and pursuing such action.
9. Severability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
10. Governing Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of California.
11. Binding Effect. This Agreement shall be binding upon
Indemnitee and upon Corporation, its successors and assigns, and shall inure to
the benefit of Indemnitee, his heirs, personal representatives and assigns and
to the benefit of Corporation, its successors and assigns.
12. Amendment and Termination. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
HEALTHDESK CORPORATION
By: _____________________________________
INDEMNITEE:
_________________________________________
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