Exhibit 10.1
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and entered into as of
the 17th day of September, 1996, by and between INNOSERV Technologies, Inc.
- -Registered Trademark-, a California corporation (the "Corporation"), and
Thomas E. Carroll (the "Agent").
WHEREAS, the Agent is currently serving as a Director of the Corporation
and the Corporation wishes the Agent to continue in such capacity;
NOW, THEREFORE, in consideration of the foregoing recital and the mutual
agreements set forth herein, and in order to induce the Agent to continue to
serve as a Director of the Corporation and in consideration of his continued
service, the parties hereto hereby agree as follows:
1. The corporation will pay on behalf of the Agent, and his executors,
administrators or assigns, any amount which the Agent is or becomes legally
obligated to pay in connection with any claim or claims made against the
Agent because of any act or omission or neglect or breach of duty, including
any actual or alleged error or misstatement or misleading statement, which
the Agent commits or suffers while acting in his capacity as a Director of
the Corporation and solely because of being a Director. The payments which
the Corporation will be obligated to make hereunder shall include, INTER
ALIA, damages, judgments, settlements and costs, cost of investigation
(excluding salaries of officers or employees of the Corporation) and costs of
defense of legal actions, claims or proceedings and appeals therefrom, and
costs of attachment or similar bonds; provided however, that the Corporation
shall not be obligated to pay fines or other obligations or fees imposed by
law or otherwise make any payments hereunder which it is prohibited by
applicable law from paying as indemnity or for any other reason.
2. If a claim under this Agreement is not paid by the Corporation, or
on its behalf, within 90 days after a written claim has been received by the
Corporation, the claimant may at anytime thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and if successful in
whole or in part, the claimant also shall be entitled to be paid the expense
of prosecuting such claim.
3. In the event of payment under this Agreement, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery
of the Agent, who shall execute all papers required and shall do everything
that may be necessary or appropriate to secure such rights, including the
execution of such documents necessary or appropriate to enable the
Corporation effectively to bring suit to enforce such rights.
4. The Corporation shall not be liable under this Agreement to make
any payment in connection with any claim made against the Agent:
(a) for which payment is actually made to the Agent under a valid
and collectible insurance policy, except in respect of any excess beyond
the amount of payment under such insurance;
(b) for which the Agent is entitled to indemnity and/or payment by
reason of having given notice of any circumstance which might give rise
to a claim under any policy of insurance, the terms of which have expired
prior to the effective date of this Agreement;
(c) for which the Agent is indemnified by the Corporation otherwise
than pursuant to this Agreement;
(d) based upon or attributed to the Agent gaining in fact any
personal profit or advantage to which the Agent was not legally entitled;
(e) for an accounting of profits made from the purchase or sale by
the Agent of securities of the Corporation within the meaning of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar
provisions of any state statutory law or common law; or
(f) brought about or contributed to by the dishonesty of the Agent
seeking payment hereunder; however, notwithstanding the foregoing, the
Agent shall be protected under this Agreement to the fullest extent
permitted under law as to any claims upon which suit may be brought against
the Agent by reason of any alleged dishonesty on his part, unless a
judgment or other final adjudication thereof adverse to the Agent shall
establish that the Agent committed acts of active and deliberate dishonesty
with actual dishonest purpose and intent, which acts were material to the
cause of action so adjudicated.
5. No costs, charges or expenses for which indemnity shall be sought
hereunder shall be incurred without the Corporation's consent, which shall
not be unreasonably withheld.
6. The Agent, as a condition precedent to indemnification under this
Agreement, shall give to the Corporation notice in writing as soon as
practicable of any claim made against the Agent for which indemnity will or
could be sought under this Agreement. Notice to the Corporation shall be
directed to INNOSERV Technologies, Inc., 320 Westway, Suite 520, Arlington,
Texas 76018, Attention: President and Chief Executive Officer (or such other
address as the Corporation shall designate in writing to the Agent); notice
shall be deemed received if sent by prepaid mail properly addressed, the date
of such notice being the date postmarked. In addition, the Agent shall give
the Corporation such information and cooperation as it may reasonably require
and as shall be within the Agent's power.
7. Costs and expenses (including attorneys' fees) incurred by the
Agent in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake in writing to repay
any such advances in the event that it is ultimately determined that the Agent
is not entitled to indemnification under the terms of this Agreement.
Notwithstanding the foregoing or any other provision of this Agreement, no
advance shall be made by the Corporation if a determination is reasonable and
promptly made by the Board of Directors by a majority vote of a quorum of
disinterested directors, or (if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs) by independent
legal counsel, that, based upon the facts known to the Board of Directors or
counsel at the time such determination is made, (a) the Agent acted in bad
faith or deliberately breached his duty to the Corporation or its
stockholders, and (b) as a result of such actions by the Agent, it is more
likely than not that it will ultimately be determined that the Agent is not
entitled to indemnification under the terms of this Agreement.
8. Nothing herein shall be deemed to diminish or otherwise restrict
the Agent's right to indemnification under any provision of the articles of
incorporation or bylaws of the Corporation or under California law.
9. This Agreement shall be governed by and construed in accordance
with internal laws of the State of California.
10. This Agreement shall be binding upon all successors and assigns of
the Corporation (including any transferee of all or substantially all of its
assets and any successor by merger or operation of law) and shall inure to
the benefit of the heirs, personal representatives and estate of the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first written.
INNOSERV TECHNOLOGIES, INC.
By: /s/ MICHAEL G. PULS
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Michael G. Puls
Title: President and Chief
Executive Officer
AGENT:
/s/ THOMAS CARROLL
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Thomas E. Carroll, Director