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EXHIBIT 10.17
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this _____ day of ________________, ____ between
Birman Managed Care, Inc., a Delaware corporation (the "Company") and
____________________ ("Indemnitee").
Recitals.
1. Indemnitee is a member of the Board of Directors or is an executive
officer of the Company and in such capacity is performing valuable services for
the Company.
2. The Bylaws of the Company provide for the indemnification of its
officers and directors as permitted by the General Corporation Law of the State
of Delaware (the "Delaware Law"). Such Bylaws and the Delaware Law specifically
provide that they are not exclusive, and thereby contemplate that contracts may
be entered into between the Company and members of its Board of Directors and
its executive officers with respect to indemnification of such directors and
officers.
To induce Indemnitee to continue to serve as a member of the Board of
Directors and/or an executive officer of the Company, the parties hereto hereby
agree as follows:
1. Indemnity of Indemnitee. The Company agrees to hold harmless and
indemnify Indemnitee to the fullest extent permitted by Section 145 of the
Delaware Law, any amendment thereof and other statutory provisions permitting
such indemnification that may be adopted after the date of this Agreement.
2. Additional Indemnity. Subject to the exclusions set forth in Section
3 of this Agreement, the Company further agrees to hold harmless and indemnify
the Indemnitee 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 brought in the right of the Company) 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 the Company, or is or was serving or at any time
serves at the request of the Company as a director, officer, partner, manager,
employee or agent of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise.
3. Limitations on Additional Indemnity. No indemnity pursuant to
Section 2 of this Agreement shall be paid by the Company:
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(a) if Indemnitee is indemnified for such losses pursuant to
the Bylaws of the Company, or pursuant to any policy of directors and
officers liability insurance purchased and maintained by the Company;
(b) 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;
(c) on account of any suit in which judgment is rendered
against a Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to
the provisions of securities of the Company pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules promulgated thereunder or similar
provisions of any other federal, state or local statutory law;
(d) on account of any liability derived from a failure of the
Indemnitee to timely file with the U.S. Securities and Exchange
Commission any reports and notices under Sections 13 or 16(a) of the
Exchange Act;
(e) on account of Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent, deliberately dishonest or
willful misconduct; or
(f) if a final decision by a Court having jurisdiction in the
matter shall determine that such indemnification is unlawful.
4. Continuation of Indemnity. All agreements and obligations of the
Company contained herein shall continue during the period Indemnitee is a
director, officer, employee or agent of the Company (or is or was serving at the
request of the Company as a director, officer, partner, manager, employee or
agent of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise) and shall continue thereafter so long as
Indem- nitee shall be subject to any possible claim or threatened, pending or
completed action, suit, proceeding, whether civil, criminal or investigative, by
reason of the fact that Indemnitee was a director of the Company or serving in
any other capacity referred to herein.
5. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee shall, if a claim in respect thereof is to be made against the
Company under this Agreement, notify the Company of the commencement thereof;
but the omission so to notify the Company 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
the Company of the commencement thereof:
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(a) The Company shall be entitled to participate therein at
its own expense; and
(b) Except as otherwise provided below, to the extent that it
may wish, the Company jointly with any other indemnifying party
similarly notified will be entitled to assume the defense thereof, with
counsel reasonably acceptable to Indemnitee. After notice from the
Company to Indemnitee of its election so to assume the defense thereof,
the Company will not be liable to Indemnitee under this Agreement for
any legal or other expense 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 counsel of his own choice in such action, suit or
proceeding, provided that the fees and expenses of any such counsel
incurred after notice from the Company of its assumption of the defense
thereof shall be the sole obligation of Indemnitee unless (i) the
employment of such counsel by Indemnitee has been authorized by the
Company, (ii) Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action, or (iii) the Company shall not
have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of such counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of
the Company or as to which Indemnitee shall have made the conclusion
provided for in (ii) above.
(c) The Company 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. The Company 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 the Company nor Indemnitee will unreasonably withhold their
consent to any proposed settlement.
6. Advancement and Repayment of Expenses. Expenses incurred by
Indemnitee in defending any action, suit or proceeding referred to in Sections 1
or 2 of this Agreement shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the Indemnitee to repay such amount if it shall ultimately be
determined that the Indemnitee is not entitled to indemnification by the Company
for such expenses under provisions of the Delaware Law, the Bylaws of the
Company, this Agreement, or otherwise. Indemnitee agrees to reimburse the
Company in accordance with any such undertaking.
7. Enforcement
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Company hereby in order to
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induce Indemnitee to continue as a director or officer of the Company,
and acknowledges that Indemnitee is relying upon this Agreement in
continuing in such capacity.
(b) In the event Indemnitee is required to bring any action to
enforce rights or to collect monies due under this Agreement and is
successful in such action, the Company shall reimburse Indemnitee for
all of Indemnitee's reasonable fees and expenses in bringing and
pursuing such action (including attorneys' fees at any stage including
on appeal).
8. Severability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others. If any provisions 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.
9. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
(b) This Agreement shall be binding upon Indemnitee and upon
the Company, its successors and assigns, and shall inure to the benefit
of Indemnitee, his or her heirs, personal representatives and assigns
and to the benefit of the Company, its successors and assigns.
(c) No amendment, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by both
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
BIRMAN MANAGED CARE, INC.: INDEMNITEE:
By:
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President
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