Exhibit 4.13
FORM OF
EMERGENCY MEDICAL SERVICES CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "AGREEMENT") is made as
of ____________ ___, 2005, by and between Emergency Medical
Services Corporation, a Delaware corporation
(the "COMPANY"), and ____________ (the "INDEMNITEE").
RECITALS
Highly competent persons are becoming more reluctant to serve corporations
as directors unless they are provided with reasonable protection through
insurance and/or indemnification against risks of claims and actions against
them arising out of their service to and activities on behalf of the
corporations.
The Board of Directors of the Company (the "BOARD") has determined that
the Company should act to assure such persons that there will be increased
certainty of such protection in the future.
It is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the Company free
from undue concern that they will not be so indemnified.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. INDEMNIFICATION.
(a) Third Party Proceedings. In the event that Indemnitee was or is made a
party to or witness or other participant in, or is threatened to be made a party
to or witness or other participant in, or is or was otherwise involved, in any
action, suit, proceeding, arbitration or alternate dispute resolution mechanism,
or any inquiry or investigation, whether civil, criminal, administrative or
investigative (hereinafter a "PROCEEDING"), by reason of the fact that the
Indemnitee is or was a director, officer, manager, employee or agent of the
Company or is or was serving at the request of the Company as a director,
officer, manager, employee or agent of another corporation or of a partnership,
joint venture, limited liability company, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such actual
or threatened Proceeding is alleged action in an official capacity as a
director, officer, manager, employee or agent or in any other capacity while
serving as a director, officer, manager, employee or agent, the Indemnitee shall
be indemnified and held harmless by the Company to the fullest extent a Delaware
corporation has the power or obligation to indemnify a person in accordance with
subsections (a) through (d) of Section 145 of the GCL, the Company's certificate
of incorporation or by-law as the same exist or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights than said law or
constating documents permitted the Company to provide prior to such amendment),
against all expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) (if such settlement is approved in advance by
the Company, which approval shall not be unreasonably withheld) reasonably
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incurred or suffered by Indemnitee in connection therewith, and such
indemnification shall continue as to Indemnitee if Indemnitee ceases to be a
director, officer, manager, employee or agent and shall inure to the benefit of
Indemnitee's heirs, executors and administrators; provided, however, that,
except as provided in Section 1(b) with respect to Proceedings seeking to
enforce rights to indemnification, the Company shall indemnify Indemnitee in
connection with a Proceeding (or part thereof) initiated by Indemnitee only if
such Proceeding (or part thereof) was authorized by the Board of Directors of
the Company.
(b) Proceedings By or in the Right of the Company. The Company shall
indemnify Indemnitee if Indemnitee was or is a party to or witness or other
participant in or is threatened to be made a party to or witness or other
participant in any threatened, pending or completed action or suit by or in the
right of the Company or any subsidiary of the Company to procure a judgment in
its favor by reason of the fact that Indemnitee is or was a director, officer,
manager, employee or agent of the Company, or any subsidiary 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, manager, employee or agent of another
corporation, partnership, joint venture, limited liability company, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by Indemnitee in connection with the defense or settlement
of such action or suit 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, except that no indemnification shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have been adjudged to be
liable to the Company, or any subsidiary of the Company, unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit is or was pending shall determine upon application that,
despite the adjudication or liability but 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 deem proper.
2. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) Advancement of Expenses. The Company shall advance any and all
expenses incurred by Indemnitee in connection with the investigation, defense,
settlement or appeal of any Proceeding in advance of its final disposition (but
not amounts actually paid in settlement of any such Proceeding). Indemnitee
hereby undertakes to repay such amounts advanced only if, and to the extent
that, it shall ultimately be determined that Indemnitee is not entitled to be
indemnified by the Company as authorized by this Agreement. The advances to be
made hereunder shall be paid by the Company to Indemnitee within 20 days
following delivery of a written request therefor by Indemnitee to the Company,
accompanied by such supporting documentation as may be reasonably requested by
the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition
precedent to his right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any claim made against Indemnitee
for which indemnification will or could be sought under this Agreement,
provided, that any delay in notifying the Company shall not relieve the Company
of its obligations under this Agreement except to the extent that such failure
shall have caused the expenses for which the Company is obligated to be greater
than such expenses would have been had Indemnitee given the Company proper
notice. In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power.
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(c) Procedure. Any indemnification provided for in Section 1 shall be made
no later than 30 days after receipt of the written request of Indemnitee made
following final disposition of the Proceeding to which such indemnification
relates. If a claim under this Agreement, under any statute, or under any
provision of the Company's certificate of incorporation or by-laws providing for
indemnification, is not paid in full by the Company within 30 days after a
written request for payment thereof has first been received by the Company,
Indemnitee may, but need not, at any time thereafter bring an action against the
Company to recover the unpaid amount of the claim and, subject to Section 5 of
this Agreement, Indemnitee shall also be entitled to be paid for the expenses
(including reasonable attorneys' fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in connection with any action or Proceeding in advance of its
final disposition) that Indemnitee has not met the standards of conduct which
make it permissible under applicable law for the Company to indemnify Indemnitee
for the amount claimed, but the burden of proving such defense shall be on the
Company, and Indemnitee shall be entitled to receive interim payments of
expenses pursuant to Section 2(a) unless and until such defense may be finally
adjudicated by court order or judgment from which no further right of appeal
exists. It is the parties' intention that if the Company contests Indemnitee's
right to indemnification, the question of Indemnitee's right to indemnification
shall be for the court to decide, and neither the failure of the Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, Independent Legal Counsel or its stockholders) to have made a
determination that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Company (including its Board
of Directors, any committee or subgroup of the Board of Directors, Independent
Legal Counsel or its stockholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee has or has not
met the applicable standard of conduct.
(d) Indemnification for Actual Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including reasonable attorneys' fees)
and, if requested by Indemnitee, shall (within ten business days of such
request) advance such expenses to Indemnitee, which are incurred by Indemnitee
in connection with any Proceeding brought by Indemnitee for (i) indemnification
or advance payment of expenses by the Company under this Agreement or any other
agreement or the Company's certificate of incorporation or by-laws now or
hereafter in effect relating to claims and/or (ii) recovery under any directors'
and officers' liability insurance policies maintained by the Company; provided,
however, that the payment of expenses incurred by Indemnitee in advance of the
final disposition of such action will be made only upon receipt by the Company
of an undertaking by Indemnitee to repay all amounts advanced if it should be
ultimately determined that Indemnitee is not entitled to be indemnified under
this Agreement or otherwise.
(e) Notice to Insurers. If, at the time of the receipt of a notice of a
claim pursuant to Section 2(b), the Company has director and officer liability
insurance that may cover the claim in effect, the Company shall give prompt
notice of the commencement of such Proceeding to the insurers in accordance with
the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of Indemnitee, all amounts payable as a result of such Proceeding in
accordance with the terms of such policies in partial or complete satisfaction
of the Company's obligations hereunder.
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(f) Selection of Counsel. In the event the Company shall be obligated
under Section 2(a) hereof to pay the expenses of any Proceeding against
Indemnitee, the Company shall be entitled to assume the defense of such
Proceeding, with counsel approved by Indemnitee, which approval shall not be
unreasonably withheld, upon the delivery to Indemnitee of written notice of its
election so to do. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same Proceeding,
provided, that (i) Indemnitee shall have the right to employ his own counsel in
any such Proceeding at Indemnitee's expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such defense
or (C) the Company shall not, in fact, have employed counsel to assume the
defense of such Proceeding, then the fees and expenses of Indemnitee's counsel
shall be at the expense of the Company.
3. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) Scope. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by
law (other than Section 145(f) of the Delaware General Corporation Law or any
successor non-exclusivity provision), notwithstanding that such indemnification
is not specifically authorized by the other provisions of this Agreement, the
Company's certificate of incorporation, the Company's by-laws or by statute. In
the event of any change, after the date of this Agreement, in any applicable
law, statute or rule which expands the right of a Delaware corporation to
indemnify a member of its board of directors or an officer, such changes shall
be, ipso facto, within the purview of Indemnitee's rights and the Company's
obligations, under this Agreement. In the event of any change in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its Board of Directors or an officer, such changes, to the
extent not otherwise required by such law, statute or rule to be applied to this
Agreement shall have no effect on this Agreement or the parties' rights and
obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which Indemnitee may be entitled under
the Company's certificate of incorporation, its by-laws, any agreement, any vote
of stockholders or disinterested directors, the Delaware General Corporation Law
or otherwise, both as to action in Indemnitee's official capacity and as to
action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though he may
have ceased to serve in such capacity at the time of any action or other covered
Proceeding.
4. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
expenses (including attorneys' fees), judgments, fines, penalties and amounts
paid in settlement [(if such settlement is approved in advance by the Company,
which approval shall not be unreasonably withheld)] actually and reasonably
incurred by Indemnitee in connection with a Proceeding, but not, however, for
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement to which Indemnitee is entitled.
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5. BURDEN OF PROOF. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
6. NO PRESUMPTIONS. For purposes of this Agreement, the termination of any
claim, action, suit or Proceeding, by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of a Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by a Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any
particular belief.
7. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge
that, in certain instances, Federal law or applicable public policy may prohibit
the Company from indemnifying its directors and officers under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee.
8. DIRECTORS' AND OFFICERS' LIABILITY INSURANCE. The Company shall at all
times maintain a policy or policies of insurance with reputable insurance
companies providing the officers and directors of the Company with coverage (in
an amount not less than $__,000,000) for losses from wrongful acts, or to ensure
the Company's performance of its indemnification obligations under this
Agreement, unless the maintenance of any such policy or policies becomes
prohibitively expensive. In all policies of directors' and officers' liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company's directors, if Indemnitee is a director; or of
the Company's officers, if Indemnitee is not a director of the Company but is an
officer.
9. SEVERABILITY. Nothing in this Agreement is intended to require or shall
be construed as requiring the Company to do or fail to do any act in violation
of applicable law. The Company's inability, pursuant to court order, to perform
its obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 9. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
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10. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Excluded Acts. To indemnify Indemnitee for any acts or omissions or
transactions from which a director may not be relieved of liability under the
Delaware General Corporation Law; or
(b) Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 145 of the Delaware General Corporation Law, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the
Board of Directors has approved the initiation or bringing of such suit; or
(c) Insured Claims. To indemnify Indemnitee for expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, Employee
Retirement Income Security Act of 1974 excise taxes or penalties, and amounts
paid in settlement) which have been paid directly to Indemnitee by an insurance
carrier under a policy of directors' and officers' liability insurance
maintained by the Company; or
(d) Claims Under Section 16(b). To indemnify Indemnitee for expenses and
the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
11. EFFECTIVENESS OF AGREEMENT. This Agreement shall be effective as of
the date set forth on the first page and may apply to acts or omissions of
Indemnitee which occurred prior to such date if Indemnitee was an officer,
director, manager, employee or other agent of the Company, or was serving at the
request of the Company as a director, officer, manager, employee or agent of
another corporation, partnership, joint venture, limited liability company,
trust or other enterprise, at the time such act or omission occurred.
12. CONSTRUCTION OF CERTAIN PHRASES.
For purposes of this Agreement:
(a) "COMPANY" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that if Indemnitee is or was a director, officer, manager, employee
or agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, manager, employee or agent
of another corporation, partnership, joint venture, limited liability company,
trust or other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued;
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(b) "EXPENSES" shall include all reasonable attorneys' fees and costs,
retainers, court costs, transcripts, 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
customarily incurred in connection with asserting or defending a Proceeding;
(c) "OTHER ENTERPRISES" shall include employee benefit plans; references
to "FINES" shall include any excise taxes assessed on Indemnitee with respect to
any employee benefit plan; and references to "SERVING AT THE REQUEST OF THE
COMPANY" shall include any service as a director, officer, manager, employee or
agent of the Company which imposes duties on, or involves services by, such
director, officer, manager, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries;
(d) "REVIEWING PARTY" of the Company shall mean any person or group of
persons consisting of a member or members of the Company's Board of Directors or
any other person or body appointed by the Board of Directors who is not a party
to the particular Proceeding for which Indemnitee is seeking indemnification, or
Independent Legal Counsel, who shall determine whether Indemnitee is entitled to
be indemnified hereunder; and
(e) "INDEPENDENT LEGAL COUNSEL" shall mean an attorney or firm of
attorneys who shall not have otherwise performed services for the Company or
Indemnitee within the last three years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
15. ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
except to the extent that, as a part of such action, the court of competent
jurisdiction determines that the material assertions made by Indemnitee as a
basis for such action were not made in good faith or were frivolous. In the
event of an action instituted by or in the name of the Company under this
Agreement or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee in defense of such action (including
with respect to Indemnitee's counterclaims and cross claims made in such
action), except to the extent that, as a part of such action, the court
determines that Indemnitee's material defenses to such action were made in bad
faith or were frivolous.
16. NOTICES. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (a) if
delivered by hand and receipted for by the party addressee, on the date of such
receipt, (b) if mailed by domestic certified or registered mail with postage
prepaid, on the date of such receipt, or (iii) if sent by
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telecopier or overnight courier (with receipt confirmed), on the date of such
receipt. Any notice given after 5:00 p.m. local time or on a day that is not a
business day shall be deemed to be given on the next following business day.
Addresses for notice to either party are as shown on the signature page of this
Agreement, or as subsequently modified by written notice and, in the case of
notices to the Company, shall be marked for the attention of the Chief Executive
Officer.
17. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent 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 agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
18. CHOICE OF LAW. This Agreement shall be governed by and its provisions
construed in accordance with the laws of the State of Delaware as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EMERGENCY MEDICAL SERVICES CORPORATION
By:
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Name:
Title:
AGREED TO AND ACCEPTED:
INDEMNITEE:
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Address:
[Signature page to Indemnification Agreement]
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