EXHIBIT 10.3
FORM OF INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, made this ___ day of July, 1998, by
and between MedE America Corporation, a Delaware corporation (the
"Corporation"), and ___________________________("Indemnitee").
RECITALS
WHEREAS, Indemnitee is currently serving as, or is assuming
the position of, a director and/or officer of the Corporation and/or, at the
Corporation's request, a director, officer, employee and/or agent of another
Corporation, partnership, joint venture, trust or other enterprise, and the
Corporation wishes Indemnitee to continue in such capacity(ies);
WHEREAS, the Amended and Restated Certificate of Incorporation
of the Corporation (the "Certificate of Incorporation") and the By-laws of the
Corporation (the "By-laws") each provide that the Corporation shall indemnify,
to the fullest extent permitted by law, certain persons, including directors and
officers of the Corporation, against specified expenses and losses arising out
of certain threatened, pending or completed actions, suits or proceedings;
WHEREAS, Section 145(f) of the Delaware General Corporation
Law (the "DGCL") expressly recognizes that the indemnification provided by
Section 145 of the DGCL shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office;
WHEREAS, in recognition of Indemnitee's need for protection
against personal liability in order to induce Indemnitee to serve or continue to
serve the Corporation in an effective manner as a director and/or officer of the
Corporation and/or, at the Corporation's request, as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, and, in the case of directors and officers, to supplement or
replace the Corporation's directors' and officers' liability insurance coverage,
and to provide Indemnitee with specific contractual assurance that the
protection promised by the Certificate of Incorporation and By-laws will be
available to Indemnitee, the Corporation, with the prior approval of its
stockholders, wishes to provide Indemnitee with the benefits contemplated by
this Agreement;
WHEREAS, as a result of the provision of such benefits,
Indemnitee has indicated that he is willing to serve, or continue to serve, as a
director and/or officer of the Corporation
and/or, at the Corporation's request, as a director, officer, employee and/or
agent of another corporation, partnership, joint venture, trust or other
enterprise;
NOW, THEREFORE, , in consideration of the premises and mutual
covenants herein contained, the Corporation and Indemnitee hereby agrees as
follows:
1. Definitions.
(a) "Expenses" means, for the purposes of this Agreement, all
direct and indirect costs of any type or nature whatsoever (including, without
limitation, any fees and disbursements of Indemnitee's counsel, accountants
another experts and other out-of-pocket costs) actually and reasonably incurred
by Indemnitee in connection with the investigation, preparation, defense or
appeal of a Proceeding; provided, however, that Expenses shall not include
judgments, fines, penalties or amounts paid in settlement of a Proceeding unless
such matters may be indemnified under applicable provisions of the DGCL.
(b) "Proceeding" means, for the purposes of this Agreement,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including actions, suits or
proceedings brought by or in the right of the Corporation), in which Indemnitee
may be or may have been involved as a party or otherwise, by reason of the fact
that Indemnitee is or was a director or officer of the Corporation, by reason of
any action taken by him or of any inaction on his part while acting as such
director or officer or by reason of the fact that he is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, or was a director and/or officer of the foreign or domestic
corporation which was a predecessor corporation to the Corporation or of another
enterprise at the request of such predecessor corporation, whether or not he is
serving in such capacity at the time any liability or expense is incurred for
which indemnification or reimbursement can be provided under this Agreement.
2. Indemnification.
(a) Third Party Proceedings. To the fullest extent permitted
by law, the Corporation shall indemnify Indemnitee against Expenses and
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, penalties, and amounts paid in settlement (if the settlement is approved
in advance by the Corporation)) incurred by Indemnitee in connection with a
Proceeding (other than a Proceeding by or in the right of the Corporation) 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 Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
Indemnitee's conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that Indemnitee did
not act in good faith and in a manner that Indemnitee reasonably believed to be
in, or not opposed to, the best interests of
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the Corporation, or, with respect to any criminal Proceeding, had reasonable
cause to believe that Indemnitee's conduct was unlawful. Notwithstanding the
foregoing, no indemnification shall be made in any criminal proceeding where
Indemnitee has been adjudged guilty unless a disinterested majority of the
directors determines that Indemnitee did not receive, participate in or share in
any pecuniary benefit to the detriment of the Corporation and, in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for Expenses or liabilities.
(b) Proceedings by or in the Right of the Corporation. To the
fullest extent permitted by law, the Corporation shall indemnify Indemnitee
against Expenses incurred by Indemnitee in connection with the defense or
settlement of a Proceeding by or in the right of the Corporation to procure a
judgment in its favor if Indemnitee acted in good faith and in a manner
Indemnitee reason ably believed to be in, or not opposed to, the best interests
of the Corporation. Notwithstanding the foregoing, 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 Corporation in the performance of Indemnitee's
duty to the Corporation 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.
(c) Scope. Notwithstanding any other provision of this
Agreement other than Section 3, the Corporation shall indemnify Indemnitee to
the fullest extent permitted by law, notwith standing that such indemnification
is not specifically authorized by other provisions of this Agreement, the
Certificate of Incorporation, the By-laws or statute.
3. Limitations on Indemnification. Any other provision herein
to the contrary notwithstanding, the Corporation 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 Section 102(b)(7) of the DGCL; 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 DGCL, but such indemnification or advancement of Expenses may
be provided by the Corporation in specific cases if a majority of the
disinterested directors has approved the initiation or bringing of such
proceeding or claim; or
(c) Lack of Good Faith. To indemnify Indemnitee for any
Expenses incurred by Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
in such proceeding was not made in good faith or was frivolous; or
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(d) Insured Claims. To indemnify Indemnitee for Expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines or penalties, and amounts paid in settlement) which have been paid
directly to or on behalf of Indemnitee by an insurance carrier under a policy of
directors' and officers' liability insurance maintained by the Corporation or
another policy of insurance maintained by the Corporation or Indemnitee; or
(e) 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.
4. Determination of Right to Indemnification. Upon receipt of
a written claim addressed to the Board of Directors for indemnification pursuant
to Section 2 of this Agreement, the Corporation shall determine by any of the
methods set forth in Section 145(d) of the DGCL whether Indemnitee has met the
applicable standards of conduct that make it permissible under applicable law to
indemnify Indemnitee. If a claim under Section 2 of this Agreement is not paid
in full by the Corporation within ninety days after such written claim has been
received by the Corporation, Indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, unless
such action is dismissed by the court as frivolous or brought in bad faith,
Indemnitee shall be entitled to be paid also the expense of prosecuting such
claim. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) to make a determination prior to
the commencement of such action that indemnification of Indemnitee is proper in
the circumstances because Indemnitee has met the applicable standard of conduct
under applicable law, nor an actual determination by the Corporation (including
its 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 not met the applicable standard of conduct. The
court in which such action is brought shall determine whether Indemnitee or the
Corporation shall have the burden of proof concerning whether Indemnitee has or
has not met the applicable standard of conduct.
5. Advancement and Repayment of Expenses. The Expenses
incurred by Indemnitee in defending and investigating any Proceeding shall be
paid by the Corporation prior to the final disposition of such Proceeding within
thirty days after receiving from Indemnitee copies of invoices presented to
Indemnitee for such Expenses and an undertaking by or on behalf of Indemnitee to
the Corporation to repay such amount to the extent it is ultimately determined
that Indemnitee is not entitled to indemnification. In determining whether or
not to make an advance hereunder, the ability of Indemnitee to repay shall not
be a factor. Notwithstanding the foregoing, in a proceeding brought by the
Corporation directly, in its own right (as distinguished from an action brought
derivatively or by any receiver or trustee), the Corporation shall not be
required to make the advances called for hereby if a majority of the
disinterested directors determines that (i) it does not appear that Indemnitee
has met the standards of conduct that made it permissible under applicable law
to indemnify Indemnitee and (ii) the advancement of Expenses would not be in the
best interests of the Corporation and its stockholders.
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6. Partial Indemnification. If Indemnitee is entitled under
any provision of this Agreement to indemnification or advancement by the
Corporation of some or a portion of any Expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, penalties, and
amounts paid in settlement) incurred by him in the investigation, defense,
settlement or appeal of a Proceeding, but is not entitled to indemnification or
advancement of the total amount thereof, the Corporation shall nevertheless
indemnify or pay advancements to Indemnitee for the portion of such Expenses or
liabilities to which Indemnitee is entitled.
7. Notice to Corporation by Indemnitee. Indemnitee shall
notify the Corporation in writing of any matter with respect to which Indemnitee
intends to seek indemnification hereunder as soon as reasonably practicable
following the receipt by Indemnitee of written notice thereof; provided that any
delay in so notifying Corporation shall not constitute a waiver by Indemnitee of
his rights hereunder. The written notification to the Corporation shall be
addressed to the Board of Directors and shall include a description of the
nature of the Proceeding and the facts underlying the Proceeding and be
accompanied by copies of any documents filed with the court, if any, in which
the Proceeding is pending. In addition, Indemnitee shall give the Corporation
such information and cooperation as it may reasonably require and as shall be
within Indemnitee's power.
8. Defense of Claim. In the event that the Corporation shall
be obligated under Section 5 hereof to pay the Expenses of any Proceeding
against Indemnitee, the Corporation, if appropriate, 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 to do so. After delivery of such notice, approval
of such counsel by Indemnitee and the retention of such counsel by the
Corporation, the Corporation 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 or her 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 Corporation, (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Corporation and
Indemnitee in the conduct of such defense or (C) the Corporation 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 paid by the Corporation.
9. Attorneys' Fees. If any legal action is necessary to
enforce the terms of this Agreement, the prevailing party shall be entitled to
recover, in addition to other amounts to which the prevailing party may be
entitled, actual attorneys' fees and court costs as may be awarded by the court.
10. Continuation of Obligations. All agreements and
obligations of the Corporation contained herein shall continue during the period
Indemnitee is a director or officer of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, fiduciary, employee or
agent of another corporation, partnership, joint venture, trust or other
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enterprise, and shall continue thereafter so long as Indemnitee shall be subject
to any possible proceeding by reason of the fact that Indemnitee served in any
capacity referred to herein.
11. Successors and Assigns. This Agreement establishes
contract rights that shall be binding upon, and shall inure to the benefit of,
the successors, assigns, heirs and legal representatives of the parties hereto.
12. Non-exclusivity.
(a) The provisions for indemnification and advancement of
expenses set forth in this Agreement shall not be deemed to be exclusive of
another rights that Indemnitee may have under any provision of law, the
Certificate of Incorporation or By-laws, the vote of the Corporation's
stockholders or disinterested directors, other agreements or otherwise, both as
to action in his official capacity and action in another capacity while
occupying his position as a director or officer of the Corporation.
(b) In the event of any changes after the date of this
Agreement in any applicable law, statute, or rule that expand the right of
Delaware corporation to indemnify its directors and officers, Indemnitee's
rights and the Corporation's obligations under this Agreement shall be expanded
to the fullest extent permitted by such changes. In the event of any changes in
any applicable law, statute or rule that narrow the right of a Delaware
corporation to indemnify a director and 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.
13. 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 that occurred prior to such date if Indemnitee was a
director or officer of the Corporation or its predecessor, or was serving at the
request of the Corporation or its predecessor as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, at the time such act or omission occurred.
14. Severability. Nothing in this Agreement is intended to
require or shall be construed as requiring the Corporation to do or omit to do
any act or thing in violation of applicable law. The Corporation's inability,
pursuant to court order, to perform its obligations under this Agreement shall
not constitute a breach of this Agreement. If this Agreement or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify Indemnitee to
the fullest 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.
15. Governing Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Delaware. To the extent
permitted by applicable law, the
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parties hereby waive any provisions of law that render any provision of this
Agreement unenforceable in any respect.
16. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed duly
given (i) if delivered by hand or by nationally recognized overnight courier and
receipted for by the party addressed, on the date of such receipt, or (ii) if
delivered by facsimile transmission to the recipient followed by a copy sent by
mail, on the date of such transmission, or (iii) if mailed by certified or
registered mail with postage prepaid to the following address, on the third
business day after the mailing date:
If to the Corporation:
MedE America Corporation
90 Merrick Avenue, Suite 501
East Meadow, New York 11554
Facsimile: 516-542-4508
Attn.: General Counsel
If to Indemnitee:
or to such other address as either party shall have notified the other party in
accordance with this Section 16.
17. Mutual Acknowledgment. Both the Corporation and Indemnitee
acknowledge that in certain instances, federal law or applicable public policy
may prohibit the Corporation from indemnifying its directors and officers under
this Agreement or otherwise. Indemnitee understands and acknowledges that the
Corporation 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 Corporation's
right under public policy to indemnify Indemnitee.
18. Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original.
19. Amendment and Termination. 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 have executed this Agreement
as of the day and year first set forth above.
MEDE AMERICA CORPORATION
By
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Indemnitee
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