Exhibit 10.25
FORM OF
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT is
made on (DATE) between, Rotech Healthcare Inc., a Delaware
corporation, the successor to Rotech Medical Corporation, a Florida
corporation (collectively the “ Company ”), and
(collectively with such person’s heirs, executors,
administrators and other personal representatives, the “
Indemnitee ”), a
of the Company.
WHEREAS, the Board of Directors has
concluded that the Company’s officers, directors, employees
and agents should be provided with reasonable and appropriate
protection against inordinate risks in order to insure that the
most capable persons will be attracted to such positions; and,
therefore, has determined to contractually obligate itself to
indemnify in a reasonable and adequate manner its officers and
directors and certain of its employees and agents, and to assume
for itself liability for expenses and damages in connection with
claims asserted against such persons as a result of their services
in respect of the Company;
WHEREAS, applicable law empowers
corporations to indemnify a person who serves as a director or
officer of a corporation or a person who serves at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, or other
enterprise; and
WHEREAS, the parties believe it
appropriate to memorialize and reaffirm the Company’s
indemnification obligations to Indemnitee and, in addition, to set
forth the agreements contained herein.
NOW, THEREFORE, in consideration of
the mutual agreements herein contained and other consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Indemnification
. Indemnitee shall be indemnified and held harmless by the
Company from and against any judgments, penalties, fines, amounts
paid in settlement and Expenses (as hereinafter defined) incurred
in connection with any actual or threatened Proceeding (as
hereinafter defined) to the full extent permitted by the
Company’s Certificate of Incorporation (the “
Certificate ”) and bylaws (the “ Bylaws
”) and the General Corporation Law of the State of Delaware
(“ Delaware Law ”) as in effect on the date
hereof and to such greater extent as Delaware Law may hereafter
from time to time permit and to advance to Indemnitee Expenses
incurred in connection therewith. “ Proceeding ”
includes, without limitation, any action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other actual, threatened or completed
proceeding, whether civil, criminal, administrative or
investigative, whether by a third party, by or in the right of the
Company or by Indemnitee to enforce any rights under this Agreement
or otherwise against the Company or its affiliates.
2. Interim Expenses
. Expenses (including attorneys’ fees) incurred by
Indemnitee in defending any civil, criminal, administrative or
investigative action, suit or proceeding for which Indemnitee may
be entitled to indemnification hereunder shall be paid by the
Company in advance of the final disposition of such action, suit or
proceeding; provided that the Company shall be entitled to receive
an undertaking by or on behalf of Indemnitee to repay such amount
if it shall ultimately be determined that he or she is not entitled
to be indemnified by the Company hereunder. “ Expenses
” means all attorneys’ fees and expenses, retainers,
court costs, transcript costs, fees of experts, fees of witnesses,
travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage and delivery fees, service fees, all
other costs and expenses of the type customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating or being or preparing to be a witness in a
Proceeding.
3. Exceptions to
Indemnification . Notwithstanding the foregoing, no
indemnity pursuant to Sections 1 or 2 shall be paid by the
Company:
(a) on account of any suit in which
judgment is rendered against Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities
of the Company pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934, as amended, or similar
provisions of any federal, state or local statutory law;
1
(b) on account of Indemnitee’s
conduct which is finally adjudged to have been knowingly fraudulent
or deliberately dishonest, or to constitute willful
misconduct;
(c) on account of Indemnitee’s
conduct which is finally adjudged to have constituted a breach of
Indemnitee’
