FORM OF INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of the ____ day of
_____________, 1997, by and between AmSurg Corp., a Tennessee corporation (the
"Company"), and the undersigned (the "Indemnitee").
WHEREAS, it is essential to the Company that it attract and retain as
directors and officers the most capable persons available; and
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
companies in the current environment; and
WHEREAS, the Company and the Indemnitee are also aware of conditions
in the insurance industry that have affected the Company's ability to obtain
adequate directors' and officers' liability insurance coverage on an
economically acceptable basis; and
WHEREAS, Sections 48-51-501 - 48-18-509 of the Tennessee Business
Corporation Act and Article 11 of the Company's Amended and Restated Charter
(the "Charter") provide for the indemnification of the Company's directors and
officers under certain circumstances; and
WHEREAS, the Company and the Indemnitee recognize the potential
inadequacy of the protection available to directors and officers under the
Business Corporation Act, the Company's Charter and director's and
officers' liability insurance; and
WHEREAS, Section 48-18-509 of the Tennessee Business Corporation Act
and the Company's Charter specifically contemplate that indemnification
agreements may be entered into between the Company and its directors and
WHEREAS, the Indemnitee currently is serving as a director and/or
officer of the Company, and the Company desires that the Indemnitee continue to
serve in such capacity. The Indemnitee is willing to continue to serve in such
capacity if the Indemnitee is adequately protected against the risks associated
with such service; and
[WHEREAS, the Company desires the Indemnitee to serve as an advisor to
the Company pursuant to an Advisory Agreement, dated as of __________, 1997, to
be entered into by the Company and the Indemnitee (the "Advisory Agreement")
and the Indemnitee is unwilling to serve in such capacity unless his service
under the Advisory Agreement is covered under this Agreement;] and
WHEREAS, the Company and the Indemnitee have concluded that the
indemnities available under the Company's charter, bylaws and any insurance now
or hereafter in effect need to be
supplemented to more fully protect the Indemnitee against the risks associated
with the Indemnitee's service to the Company; and
WHEREAS, in recognition of Indemnitee's need for additional protection
against personal liability in order to enhance Indemnitee's continued service
to the Company in an effective manner, and in order to induce Indemnitee to
continue to provide services to the Company as a director or officer thereof,
the Company wishes to provide in this Agreement for the indemnification of
Indemnitee to the fullest extent permitted by law and as set forth in this
NOW THEREFORE, in consideration of the foregoing, the covenants
contained herein and Indemnitee's continued service to the Company, the Company
and Indemnitee, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. The following terms, as used herein, shall
have the following respective meanings:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings relative to the
"Change in Control" shall be deemed to have taken place if: (i) any
person or entity, including a "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, other than the Company or a wholly-owned
subsidiary thereof or any employee benefit plan of the Company or any of its
subsidiaries, becomes the beneficial owner of the Company securities having 35%
or more of the combined voting power of the then outstanding securities of the
Company that may be cast for the election of directors of the Company (other
than as a result of an issuance of securities initiated by the Company in the
ordinary course of business); or (ii) as the result of, or in connection with,
any cash tender or exchange offer, merger or other business combination, sale
of substantially all of the assets or contested election, or any combination of
the foregoing transactions less than a majority of the combined voting power of
the then-outstanding securities of Company or any successor corporation or
entity entitled to vote generally in the election of the directors of the
Company or such other corporation or entity after such transaction is held in
the aggregate by the holders of the Company securities entitled to vote
generally in the election of directors of the Company immediately prior to such
transaction; or (iii) during any period of two consecutive years, individuals
who at the beginning of any such period constitute the Board of Directors of
the Company cease for any reason to constitute at least a majority thereof,
unless the election, or the nomination for election by the Company's
shareholders, of each director of the Company first elected during such period
was approved by a vote of at least two-thirds of the directors of the Company
then still in office who were directors of the Company at the beginning of any
"Claim" means (a) any threatened, pending or completed action, suit,
proceeding or arbitration or other alternative dispute resolution mechanism, or
(b) any inquiry, hearing or investigation,
whether conducted by the Company or any other Person, that Indemnitee in good
faith believes might lead to the institution of any such action, suit,
proceeding or arbitration or other alternative dispute resolution mechanism, in
each case whether civil, criminal, administrative or other (whether or not the
claims or allegations therein are groundless, false or fraudulent) and
includes, without limitation, those brought by or in the name of the Company or
any director or officer of the Company.
"Company Agent" means any director, officer, medical director,
associate medical director, partner, employee, advisor, consultant, agent,
trustee or fiduciary of the Company, any Subsidiary or any Other Enterprise.
"Covered Event" means any event or occurrence on or after the date of
this Agreement related to the fact that Indemnitee is or was a Company Agent or
related to anything done or not done by Indemnitee in any such capacity, and
includes, without limitation, any such event or occurrence (a) arising from
performance of the responsibilities, obligations or duties imposed by ERISA or
any similar applicable provisions of state or common law, or (b) arising from
any merger, consolidation or other business combination involving the Company,
any Subsidiary or any Other Enterprise, including without limitation any sale
or other transfer of all or substantially all of the business or assets of the
Company, any Subsidiary or any Other Enterprise.
"Determination" means a determination made by (a) a majority vote of a
quorum of Disinterested Directors; (b) Independent Legal Counsel, in a written
opinion addressed to the Company and Indemnitee; (c) the shareholders of the
Company; or (d) a decision by a court of competent jurisdiction not subject to
"Disinterested Director" shall be a director of the Company who is not
or was not a party to the Claim giving rise to the subject matter of a
"Expenses" includes attorneys' fees and all other costs, travel
expenses, fees of experts, transcript costs, filing fees, witness fees,
telephone charges, postage, copying costs, delivery service fees and other
expenses and obligations of any nature whatsoever paid or incurred in
connection with investigating, prosecuting or defending, being a witness in or
participating in (including on appeal), or preparing to prosecute or defend, be
a witness in or participate in any Claim, for which Indemnitee is or becomes
legally obligated to pay.
"Independent Legal Counsel" shall mean a law firm or a member of a law
firm that (a) neither is nor in the past five years has been retained to
represent in any material matter the Company, any Subsidiary, Indemnitee or any
other party to the Claim, (b) under applicable standards of professional
conduct then prevailing would not have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee's rights
to indemnification under this Agreement and (c) is reasonably acceptable to the
Company and Indemnitee.
"Loss" means any amount which Indemnitee is legally obligated to pay
as a result of any Claim, including, without limitation (a) all judgments,
penalties and fines, and amounts paid or to be paid in settlement, (b) all
interest, assessments and other charges paid or payable in connection
therewith and (c) any federal, state, local or foreign taxes imposed (net of
the value to Indemnitee of any tax benefits resulting from tax deductions or
otherwise as a result of the actual or deemed receipt of any payments under
this Agreement, including the creation of the Trust).
"Other Enterprise" means any corporation (other than the Company or
any Subsidiary), partnership, joint venture, association, employee benefit
plan, trust or other enterprise or organization to which Indemnitee renders
service at the request of the Company or any Subsidiary.
"Parent" shall have the meaning set forth in the regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as
amended; provided the term "Parent" shall not include the board of directors of
a corporation in its capacity as a board of directors, and provided further
that if the other party to any transaction referred to in Section 11.1.2 has no
Parent as so defined above, "Parent" shall mean such other party.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government (or any subdivision, department, commission or agency thereof),
and includes without limitation any "person", as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended.
"Potential Change in Control" shall be deemed to have occurred if (a)
the Company enters into an agreement or arrangement the consummation of which
would result in the occurrence of a Change in Control, (b) any Person
(including the Company) publicly announces an intention to take or to consider
taking actions which if consummated would constitute a Change in Control or (c)
the Board of Directors of the Company adopts a resolution to the effect that,
for purposes of this Agreement, a Potential Change in Control has occurred.
"Subsidiary" means any corporation of which more than 50% of the
outstanding stock having ordinary voting power to elect a majority of the board
of directors of such corporation is now or hereafter owned, directly or
indirectly, by the Company.
"Trust" has the meaning set forth in Section 8.2.
"Voting Securities" means any securities of the Company which vote
generally in the election of directors.
Section 2. Indemnification
2.1. General Indemnity Obligation.
2.1.1. Subject to the remaining provisions of this Agreement,
the Company hereby indemnifies and holds Indemnitee harmless for any Losses or
Expenses arising from any Claims relating to (or arising in whole or in part
out of) any Covered Event, including without limitation, any Claim the basis of
which is any actual or alleged breach of duty, neglect, error, misstatement,
misleading statement, omission or other act done or attempted by Indemnitee in
the capacity as a
Company Agent, whether or not Indemnitee is acting or serving in such capacity
at the date of this Agreement, at the time liability is incurred or at the time
the Claim is initiated.
2.1.2. The obligations of the Company under this Agreement
shall apply to the fullest extent authorized or permitted by the provisions of
applicable law, as presently in effect or as changed after the date of this
Agreement, whether by statute or judicial decision (but, in the case of any
subsequent change, only to the extent that such change permits the Company to
provide broader indemnification than permitted prior to giving effect thereto).
2.1.3. Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with any Claim initiated by Indemnitee
against the Company or any director or officer of the Company, unless the
Company has joined in or consented to the initiation of such Claim; provided,
the provisions of this Section 2.1.3 shall not apply following a Change in
Control to Claims seeking enforcement of this Agreement, the Charter or Bylaws
of the Company or any other agreement now or hereafter in effect relating to
indemnification for Covered Events.
2.1.4. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Losses
or Expenses paid with respect to a Claim but not, however, for the total amount
thereof, the Company shall nevertheless indemnify and hold Indemnitee harmless
against the portion thereof to which Indemnitee is entitled.
2.1.5. Notwithstanding any other provision of this Agreement,
to the extent that Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating to (or arising in whole or in part out
of) a Covered Event or in defense of any issue or matter therein, including
dismissal without prejudice, the Company shall indemnify and hold Indemnitee
harmless against all Expenses incurred in connection therewith.
2.2. Indemnification for Serving as Witness and Certain Other Claims.
Notwithstanding any other provision of this Agreement, the Company hereby
indemnifies and holds Indemnitee harmless for all Expenses in connection with
(a) the preparation to serve or service as a witness in any Claim in which
Indemnitee is not a party, if such actual or proposed service as a witness
arose by reason of Indemnitee having served as a Company Agent on or after
the date of this Agreement and (b) any Claim initiated by Indemnitee on or
after the date of this Agreement (i) for recovery under any directors' and
officers' liability insurance maintained by the Company or (ii) following a
Change in Control, for enforcement of the indemnification obligations of the
Company under this Agreement, the Charter or Bylaws of the Company or any
other agreement now or hereafter in effect relating to indemnification for
Covered Events, regardless of whether Indemnitee ultimately is determined to
be entitled to such insurance recovery or indemnification, as the case may be.
Section 3. Limitation on Indemnification.
3.1. Coverage Limitations. No indemnification is available pursuant
to the provisions of this Agreement:
3.1.1. If such indemnification is not lawful;
3.1.2. If Indemnitee's conduct giving rise to the Claim with
respect to which indemnification is requested was knowingly fraudulent, a
knowing violation of law, deliberately dishonest or in bad faith or constituted
3.1.3. In respect of any Claim based upon or attributable to
Indemnitee gaining in fact any personal profit or advantage to which Indemnitee
was not legally entitled;
3.1.4. In respect of any Claim based upon or in connection
with a proceeding by or in the right of the Company in which the director was
adjudged liable to the Company;
3.1.5. In respect of any Claim for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Company
within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as
3.1.6. If Indemnitee's conduct giving rise to the Claim with
respect to which indemnification is requested constituted a breach of the duty
of loyalty to the corporation or its shareholders.
3.1.7. In respect of any Claim based upon any violation of
Section 48-18-304 of the Tennessee Business Corporation Act, as amended.
3.2. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment otherwise due and payable to the
extent Indemnitee has otherwise actually received payment (whether under the
Charter or the Bylaws of the Company, the D&O Insurance or otherwise) of any
amounts otherwise due and payable under this Agreement.
Section 4. Payments and Determinations.
4.1. Advancement and Reimbursement of Expenses. If requested by
Indemnitee, the Company shall advance to Indemnitee, no later than two business
days following any such request, any and all Expenses for which indemnification
is available under Section 2. In order to obtain such advancement or
reimbursement, the Indemnitee must also furnish to the Company a written
affirmation of his good faith belief that he has conducted himself in good
faith and that he reasonably believed that: (1) in the case of conduct in his
official capacity with the corporation, that his conduct was in its best
interest; and (2) in all other cases, that his conduct was at least not opposed
to its best interests; and (3) in the case of any criminal proceeding, he had no
reasonable case to believe his conduct was unlawful. In addition, Indemnitee
must furnish to the Company a written undertaking, executed personally or on
his behalf, to repay the advance if it is ultimately determined that he is not
entitled to indemnification. Upon any Determination that Indemnitee is not
permitted to be indemnified for any Expenses so advanced, Indemnitee hereby
agrees to reimburse the Company (or, as appropriate, any Trust established
pursuant to Section 8.2) for all such amounts previously paid. Such obligation
of reimbursement shall be unsecured and no interest shall be charged thereon.
4.2. Payment and Determination Procedures.
4.2.1. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, together with such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors in
writing that Indemnitee has requested indemnification.
4.2.2. Upon written request by Indemnitee for indemnification
pursuant to Section 4.2.1, a Determination with respect to Indemnitee's
entitlement thereto shall be made in the specific case (a) if a Change in
Control shall have occurred, as provided in Section 8.1; and (b) if a Change in
Control shall not have occurred, by (i) the Board of Directors by a majority
vote of a quorum of Disinterested Directors, (ii) Independent Legal Counsel, if
either (A) a quorum of Disinterested Directors is not obtainable or (B) a
majority vote of a quorum of Disinterested Directors otherwise so directs or
(iii) the shareholders of the Company (if submitted by the Board of Directors)
but shares of stock owned by or voted under the control of any Indemnitee who
is at the time party to the proceeding may not be voted. If a Determination is
made that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within 10 days after such Determination.
4.2.3. If no Determination is made within 60 days after
receipt by the Company of a request for indemnification by Indemnitee pursuant
to Section 4.2.1, a Determination shall be deemed to have been made that
Indemnitee is entitled to the requested indemnification (and the Company shall
pay the related Losses and Expenses no later than 10 days after the expiration
of such 60-day period), except where such indemnification is not lawful;
provided, however, that (a) such 60-day period may be extended for a reasonable
time, not to exceed an additional 30 days, if the Person or Persons making the
Determination in good faith require such additional time for obtaining or
evaluating the documentation and information relating thereto; and (b) the
foregoing provisions of this Section 4.2.3 shall not apply (i) if the
Determination is to be made by the shareholders of the Company and if (A)
within 15 days after receipt by the Company of the request by Indemnitee
pursuant to Section 4.2.1 the Board of Directors has resolved to submit such
Determination to the shareholders at an annual meeting of the shareholders to
be held within 75 days after such receipt, and such Determination is made at
such annual meeting, or (B) a special meeting of shareholders is called within
15 days after such receipt for the purpose of making such Determination, such
meeting is held for such purpose within 60 days after having been so called and
such Determination is made at such special meeting, or (ii) if the
Determination is to be made by Independent Legal Counsel.
Section 5. Subrogation. In the event of any payment under this
Agreement to or on behalf of Indemnitee, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee against
any Person other than the Company or Indemnitee in respect of the Claim giving
rise to such payment. Indemnitee shall execute all papers reasonably required
and shall do everything reasonably necessary to secure such rights, including
the execution of such documents reasonably necessary to enable the Company
effectively to bring suit to enforce such rights.
Section 6. Notification and Defense of Claims.
6.1. Notice by Indemnitee. Indemnitee shall give notice in writing
to the Company as soon as practicable after Indemnitee becomes aware of any
Claim with respect to which indemnification will or could be sought under this
Agreement; provided the failure of Indemnitee to give such notice, or any delay
in giving such notice, shall not relieve the Company of its obligations under
this Agreement except to the extent the Company is actually prejudiced to any
such failure or delay.
6.3.1. In the event any Claim relating to Covered Events is
by or in the right of the Company, the Indemnitee may, at the option of the
Indemnitee, either control the defense thereof or accept the defense provided,
however, that the amounts expended by the Company shall be reimbursed to the
Company by the Indemnitee if the standards and requirements of Sections
48-18-501 - 48-18-509 of the Tennessee Business Corporation Act so require.
6.3.2. In the event any Claim relating to Covered Events is
other than by or in the right of the Company, the Indemnitee may, at the option
of the Indemnitee, either control the defense thereof or require the Company to
defend. In the event that the Indemnitee requires the Company to do defend,
the Company shall promptly undertake to defend any such Claim, at the Company's
sole cost and expense, utilizing counsel of the Indemnitee's choice who has ben
approved by the Company. If appropriate, the Company shall have the right to
participate in the defense of any such Claim.
Section 7. Determinations and Related Matters.
7.1.1. If a Change in Control shall have occurred, Indemnitee
shall be entitled to a rebuttable presumption that Indemnitee is entitled to
indemnification under this Agreement and the Company shall have the burden of
proof in rebutting such presumption.
7.1.2. The termination of any claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere or its equivalent, shall not adversely affect either
the right of Indemnitee to indemnification under this Agreement or the
presumptions to which Indemnitee is otherwise entitled pursuant to the
provisions of this Agreement nor create a presumption that Indemnitee did not
meet any particular standard of conduct or have a particular belief or that a
court has determined that indemnification is not permitted by applicable law.
7.2. Appeals; Enforcement.
7.2.1. In the event that (a) a Determination is made that
Indemnitee shall not be entitled to indemnification under this Agreement, (b)
any Determination to be made by Independent Legal Counsel is not made within 90
days of receipt by the Company of a request for indemnification pursuant to
Section 4.2.1 or (c) the Company fails to otherwise perform any of its
this Agreement (including, without limitation, its obligation to make payments
to Indemnitee following any Determination made or deemed to have been made that
such payments are appropriate), Indemnitee shall have the right to commence a
Claim in any court of competent jurisdiction, as appropriate, to seek a
Determination by the court, to challenge or appeal any Determination which has
been made, or to otherwise enforce this Agreement. If a Change of Control
shall have occurred, Indemnitee shall have the option to have any such Claim
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association. Any such judicial proceeding challenging or appealing
any Determination shall be deemed to be conducted de novo and without prejudice
by reason of any prior Determination to the effect that Indemnitee is not
entitled to indemnification under this Agreement. Any such Claim shall be at
the sole expense of Indemnitee except as provided in Section 8.3.
7.2.2. If a Determination shall have been made or deemed to
have been made pursuant to this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such Determination in any
judicial proceeding or arbitration commenced pursuant to this Section 7.2,
except if such indemnification is unlawful.
7.2.3. The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 7.2 that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement. The Company
hereby consents to service of process and to appear in any judicial or
arbitration proceedings and shall not oppose Indemnitee's right to commence any
7.3. Procedures. Indemnitee shall cooperate with the Company and
with any Person making any Determination with respect to any Claim for which a
claim for indemnification under this Agreement has been made, as the Company
may reasonably require. Indemnitee shall provide to the Company or the Person
making any Determination, upon reasonable advance request, any documentation
or information reasonably available to Indemnitee and necessary to (a) the
Company with respect to any such Claim or (b) the Person making any
Determination with respect thereto.
Section 8. Change in Control Procedures.
8.1. Determinations. If there is a Change in Control, any
Determination to be made under Section 4 shall be made by Independent Legal
Counsel selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld). The Company shall pay the reasonable fees
of the Independent Legal Counsel and indemnify fully such Independent Legal
Counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or the
engagement of Independent Legal Counsel pursuant hereto.
8.2. Establishment of Trust. Following the occurrence of any
Potential Change in Control, the Company, upon receipt of a written request
from Indemnitee, shall create a Trust (the "Trust")
for the benefit of Indemnitee, the trustee of which shall be a bank or similar
financial institution with trust powers chosen by Indemnitee. From time to
time, upon the written request of Indemnitee, the Company shall fund the Trust
in amounts sufficient to satisfy any and all Losses and Expenses reasonably
anticipated at the time of each such request to be incurred by Indemnitee for
which indemnification may be available under this Agreement. The amount or
amounts to be deposited in the Trust pursuant to the foregoing funding
obligation shall be determined by mutual agreement of Indemnitee and the
Company or, if the Company and Indemnitee are unable to reach such an
agreement, or, in any event, a Change in Control has occurred by Independent
Legal Counsel (selected pursuant to Section 8.1). The terms of the Trust shall
provide that, except upon the prior written consent of Indemnitee and the
Company, (a) the Trust shall not be revoked or the principal thereof invaded,
other than to make payments to unsatisfied judgment creditors of the Company,
(b) the Trust shall continue to be funded by the Company in accordance with the
funding obligations set forth in this Section, (c) the Trustee shall promptly
pay or advance to Indemnitee any amounts to which Indemnitee shall be entitled
pursuant to this Agreement, and (d) all unexpended funds in the Trust shall
revert to the Company upon a Determination by Independent Legal Counsel
(selected pursuant to Section 8.1) or a court of competent jurisdiction that
Indemnitee has been fully indemnified under the terms of this Agreement. All
income earned on the assets held in the trust shall be reported as income by
the Company for federal, state, local and foreign tax purposes.
8.3. Expenses. Following any Change in Control, the Company shall be
liable for, and shall pay the Expenses paid or incurred by Indemnitee in
connection with the making of any Determination (irrespective of the
determination as to Indemnitee's entitlement to indemnification) or the
prosecution of any Claim pursuant to Section 7.2, and the Company hereby
agrees to indemnify and hold Indemnitee harmless therefrom. If requested by
counsel for Indemnitee, the Company shall promptly give such counsel an
appropriate written agreement with respect to the payment of its fees and
expenses and such other matters as may be reasonably requested by such counsel.
Section 9. Period of Limitations. No legal action shall be brought
and no cause of action shall be asserted by or in the right of the Company, any
Subsidiary, any Other Enterprise or any Affiliate of the Company against
Indemnitee or Indemnitee's spouse, heirs, executors, administrators or personal
or legal representatives after the expiration of two years from the date of
accrual of such cause of action, and any claim or cause of action of the
Company, any Subsidiary, any Other Enterprise or any Affiliate of the Company
shall be extinguished and deemed released unless asserted by the timely filing
of a legal action within such two-year period; provided, however, that if any
shorter period of limitations, whether established by statute or judicial
decision, is otherwise applicable to any such cause of action such shorter
period shall govern.
Section 10. Contribution. If the indemnification provisions of this
Agreement should be unenforceable under applicable law in whole or in part or
insufficient to hold Indemnitee harmless in respect of any Losses and Expenses
incurred by Indemnitee, then for purposes of this Section 10, the Company shall
be treated as if it were, or was threatened to be made, a party defendant to
the subject Claim and the Company shall contribute to the amounts paid or
payable by Indemnitee as a result of such Losses and Expenses incurred by
Indemnitee in such proportion as is appropriate to reflect the relative
benefits accruing to the Company on the one hand and Indemnitee on the other
relative fault of the Company on the one hand and Indemnitee on the other in
connection with such Claim, as well as any other relevant equitable
considerations. For purposes of this Section 10 the relative benefit of the
Company shall be deemed to be the benefits accruing to it and to all of its
directors, officers, employees and agents (other than Indemnitee) on the one
hand, as a group and treated as one entity, and the relative benefit of
Indemnitee shall be deemed to be an amount not greater than the Indemnitee's
yearly base salary or Indemnitee's compensation from the Company during the
first year in which the Covered Event forming the basis for the subject Claim
was alleged to have occurred. The relative fault shall be determined by
reference to, among other things, the fault of the Company and all of its
directors, officers, employees and agents (other than Indemnitee) on the one
hand, as a group and treated as one entity, and Indemnitee's and such group's
relative intent, knowledge, access to information and opportunity to have
altered or prevented the Covered Event forming the basis for the subject Claim.
Section 11. Miscellaneous Provisions.
11.1. Successors and Assigns, Etc.
11.1.1. This Agreement shall be binding upon and inure to the
benefit of (a) the Company, its successors and assigns (including any direct or
indirect successor by merger, consolidation or operation of law or by transfer
of all or substantially all of its assets) and (b) Indemnitee and the heirs,
personal and legal representatives, executors, administrators or assigns of
11.1.2. The Company shall not consummate any consolidation,
merger or other business combination, nor will it transfer 50% or more of its
assets (in one or a series of related transactions), unless the ultimate Parent
of the successor to the business or assets of the Company shall have first
executed an agreement, in form and substance satisfactory to Indemnitee, to
expressly assume all obligations of the Company under this Agreement and agree
to perform this Agreement in accordance with its terms, in the same manner and
to the same extent that the Company would be required to perform this Agreement
if no such transaction had taken place; provided that, if the Parent is not the
Company, the legality of payment of indemnity by the Parent shall be determined
by reference to the fact that such indemnity is to be paid by the Parent rather
than the Company.
11.2. Severability. The provisions of this Agreement are severable.
If any provision of this Agreement shall be held by any court of competent
jurisdiction to be invalid, void or unenforceable, such provision shall be
deemed to be modified to the minimum extent necessary to avoid a violation of
law and, as so modified, such provision and the remaining provisions shall
remain valid and enforceable in accordance with their terms to the fullest
extent permitted by law.
11.3. Rights Not Exclusive; Continuation of Right of Indemnification.
Nothing in this Agreement shall be deemed to diminish or otherwise restrict
Indemnitee's right to indemnification pursuant to any provision of the Charter
or Bylaws of the Company, any agreement, vote of shareholders or Disinterested
Directors, applicable law or otherwise. This Agreement shall be effective as
of the date first above written and continue in effect until no Claims relating
Covered Event may be asserted against Indemnitee and until any Claims commenced
prior thereto are finally terminated and resolved, regardless of whether
Indemnitee continues to serve as a director of the Company, any Subsidiary or
any Other Enterprise.
11.4. No Employment Agreement. Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employ
of the Company, any Subsidiary or any Other Enterprise.
11.5. Subsequent Amendment. No amendment, termination or repeal of
any provision of the Charter or Bylaws of the Company, or any respective
successors thereto, or of any relevant provision of any applicable law, shall
affect or diminish in any way the rights of Indemnitee to indemnification, or
the obligations of the Company, arising under this Agreement, whether the
alleged actions or conduct of Indemnitee giving rise to the necessity of
such indemnification arose before or after any such amendment, termination or
11.6. Notices. Notices required under this Agreement shall be given
in writing and shall be deemed given when delivered in person or sent by
certified or registered mail, return receipt requested, postage prepaid.
Notices shall be directed to the Company at One Burton Hills Boulevard, Suite
350, Nashville, Tennessee 37215, Attention: President, and to Indemnitee at
_________________________ (or such other address as either party may designate
in writing to the other).
11.7. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Tennessee
applicable to contracts made and performed in such state without giving effect
to the principles of conflict of laws.
11.8. Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to discriminate part of
this Agreement or to affect the construction thereof.
11.9. Counterparts. This Agreement may be executed in any number of
counterparts all of which taken together shall constitute one instrument.
11.10. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall constitute, or be deemed to constitute, a waiver of any other provisions
hereof (whether or not similar) nor shall any such waiver constitute a
The parties hereto have caused this Agreement to be duly executed as
of the day and year first above written.