Exhibit 10(a)
INDEMNIFICATION
AGREEEMENT
THIS INDEMNIFICATION AGREEMENT,
dated as of
,
20 is made by and between TENET HEALTHCARE CORPORATION,
a Nevada corporation (the “Company”), and
(“Indemnitee”).
WHEREAS, it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS, Article X of the
Company’s Amended and Restated Bylaws authorizes the Company
to enter into agreements with directors and officers providing for
indemnification to the fullest extent permitted by Nevada
law;
WHEREAS, Section 78.752 of the
Nevada Revised Statutes authorizes the Company to purchase and
maintain insurance or make other financial arrangements on behalf
of any person who is or was a director, officer, employee or agent
of the Company, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
for any liability or expenses incurred by such person in such
capacity;
WHEREAS, Indemnitee is a director or
officer of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of
corporations; and
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability and in order to induce Indemnitee to serve or continue to
serve the Company, the Company wishes to provide Indemnitee with
the benefits contemplated by this Agreement including, without
limitation, the indemnification of and the payment of expenses in
advance of the final disposition of a potentially indemnifiable
claim to Indemnitee to the fullest extent permitted by law and as
set forth in this Agreement, and, to the extent insurance is
maintained, for the coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies.
NOW, THEREFORE, in consideration of
the above premises and intending to be legally bound hereby, the
parties agree as follows:
1.
Certain Definitions
(a) Board : the
Board of Directors of the Company.
(b) Change in
Control : shall be deemed to have occurred if (i) any
“person” (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)), other than a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or indirectly
by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company, becomes the
“Beneficial Owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing 20% or more of the total voting power
represented by the Company’s then outstanding Voting
Securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute
the Board and any new director whose election by the Board or
nomination for election by the Company’s shareholders was
approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of
the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute
a
majority thereof, or (iii) the shareholders
of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation
that would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 80% of the total
voting power represented by the Voting Securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of
transactions) of all or substantially all of the Company’s
assets.
(c) Disinterested
Director : a director of the Company who is not and was not a
party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(d) Expenses :
any expense, including without limitation, attorneys’ fees,
retainers, court costs, transcript costs, fees and expenses of
experts, including accountants and other advisors, travel expenses,
duplicating costs, postage, delivery service fees, filing fees, and
all other disbursements or expenses of the types typically paid or
incurred in connection with investigating, defending, being a
witness in, or participating in, or preparing for any of the
foregoing in, any Proceeding relating to an Indemnifiable Event,
and any expenses of establishing a right to indemnification under
this Agreement.
(e) Indemnifiable
Event : any event or occurrence that takes place either prior
to or after the execution of this Agreement, related to the fact
that Indemnitee is or was a director or officer of the Company, or
while a director or officer, is or was serving at the request of
the Company as a director, officer, employee, trustee, agent,
limited partner, member or fiduciary of another foreign or domestic
corporation, partnership, joint venture, employee benefit plan,
trust, or other enterprise, or was a director, officer, employee,
or agent of a foreign or domestic corporation that was a
predecessor corporation of the Company or of another enterprise at
the request of such predecessor corporation, or related to anything
done or not done by Indemnitee in any such capacity, whether or not
the basis of the Proceeding is an alleged action or inaction in an
official capacity as a director, officer, employee, or agent or in
any other capacity while serving as a director, officer, employee,
or agent of the Company, as described above.
(f) Independent
Counsel : the person or body appointed in connection with
Section 3.
(g) NRS : the
Nevada Revised Statutes, as amended from time to time.
(h) Potential Change
in Control : shall be deemed to have occurred if (i) the
Company enters into an agreement or arrangement, the consummation
of which would result in the occurrence of a Change in Control;
(ii) any person (including the Company) publicly announces an
intention to take or to consider taking actions that, if
consummated, would constitute a Change in Control; (iii) any
person (other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company acting in such
capacity or a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions
as their ownership of stock of the Company), who is or becomes the
Beneficial Owner, directly or indirectly, of securities of the
Company representing 10% or more of the combined voting power of
the Company’s then outstanding Voting Securities, increases
their beneficial ownership of such securities by 5% or more over
the percentage so owned by such person on the date hereof, or
(iv) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has
occurred.
(i)
Proceeding : any threatened, pending, or completed action,
suit, arbitration, alternative dispute mechanism, inquiry,
administrative or legislative hearing, or investigation or any
other actual, threatened or completed proceeding, including any and
all appeals, whether conducted by the Company or
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any other party, whether civil, criminal,
administrative, investigative, or other, and in each case whether
or not commenced prior to the date of this Agreement, that relates
to an Indemnifiable Event.
(j) Voting
Securities : any securities of the Company that vote generally
in the election of directors.
2.
Agreement to Indemnify .
(a) General
Agreement . In the event Indemnitee was, is, or becomes a party
to or witness or other participant in, or is threatened to be made
a party to or witness or other participant in a Proceeding by
reason of (or arising in part out of) an Indemnifiable Event, the
Company shall indemnify Indemnitee to the fullest extent permitted
by law as soon as practicable but in no event no later than thirty
(30) days after written demand to the Company in accordance with
Section 4, from and against any and all Expenses, liability or
loss, judgments, fines, ERISA excise taxes and penalties, amounts
paid or to be paid in settlement, any interest, assessments, or
other charges imposed thereon, and any federal, state, local, or
foreign taxes imposed as a result of the actual or deemed receipt
of any payments under this Agreement, to the fullest extent
permitted by applicable law, as the same exists or may hereafter be
amended or interpreted (but in the case of any such amendment or
interpretation, only to the extent that such amendment or
interpretation permits the Company to provide broader
indemnification rights than were permitted prior
thereto).
(b) Initiation of
Proceeding by Indemnitee . Notwithstanding anything in this
Agreement to the contrary, Indemnitee shall not be entitled to
indemnification or payment of expenses pursuant to this Agreement
in connection with any Proceeding initiated by Indemnitee
(including, without limitation, counterclaims) against the Company
or any director or officer of the Company unless (i) the
Company has joined in or the Board has consented to the initiation
of such Proceeding; (ii) the Proceeding is one to enforce
indemnification rights under Section 5; or (iii) the
Proceeding is instituted after a Change in Control.
(c) Payment of
Expenses in Advance of Final Disposition . If so requested by
Indemnitee, the Company shall pay any and all Expenses to
Indemnitee (an “Expense Payment”) within five
(5) business days after the receipt by the Company of a
statement or statements from Indemnitee requesting such payment or
payments. Expense Payments shall be made without regard to
Indemnitee’s ability to repay the Expenses and without regard
to Indemnitee’s ultimate entitlement to indemnification under
the provisions of this Agreement. Indemnitee shall qualify for the
payment of expenses solely upon the execution and delivery to the
Company of an undertaking in form and substance reasonably
satisfactory to the Company providing that Indemnitee undertakes to
repay the amount if it is ultimately determined by a court of
competent jurisdiction that Indemnitee is not entitled to be
indemnified by the Company. Payments shall include any and all
reasonable Expenses incurred pursuing an action to enforce this
right of payment. Any determination made by the Independent Counsel
that Indemnitee would not be permitted to be indemnified under
applicable law shall not be binding and Indemnitee shall not be
required to reimburse the Company for any Expense Payment until a
final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or
lapsed). Indemnitee’s obligation to reimburse the Company for
Expense Payments shall be unsecured and no interest shall be
charged thereon.
(d) Mandatory
Indemnification . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful (on
the merits or otherwise) in defense of any Proceeding relating in
whole or in part to an Indemnifiable Event or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified
against all Expenses incurred in connection therewith. For purposes
of this Section 2(d) and without limiting the foregoing,
the termination of any claim, issue or matter in any
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such Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
(e) Partial
Indemnification . If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of any Expenses, liability or loss, judgments, fines, ERISA
excise taxes and penalties, amounts paid or to be paid in
settlement, any interest, assessments, or other charges imposed
thereon, or any federal, state, local, or foreign taxes imposed as
a result of the actual or deemed receipt of any payments under this
Agreement, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
3.
Authorization of Indemnification; Independent Counsel . The
person, persons or entity (the “Independent Counsel”)
who shall determine whether indemnification is permissible under
applicable law shall be an attorney admitted to practice in the
State of Nevada, selected by Indemnitee and approved and appointed
by a majority vote of a quorum consisting of Disinterested
Directors. If no Disinterested Directors exist, then the Board
shall select a person, persons or entity otherwise capable of
acting as Independent Counsel to appoint the Independent Counsel.
The Independent Counsel shall not
