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EXHIBIT 10.23
INDEMNIFICATION AGREEMENT
AGREEMENT,
effective as of ______, 2006 (the "Effective Date"), between
Spheris Inc., a Delaware corporation (the "Company"), and
_______________
("Indemnitee").
WHEREAS,
it is essential to the Company to retain and attract as
directors
and executive officers the most capable persons available;
WHEREAS,
Indemnitee is a director and/or executive officer of the
Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and
executive
officers of corporations in today's environment;
WHEREAS,
the Certificate of Incorporation, as amended, of the Company
(the
"Certificate") and the Bylaws of the Company (the "Bylaws") require
the Company
to indemnify its directors and executive officers to the fullest
extent
permitted by law and Indemnitee has agreed to serve as a director
and/or
executive officer of the Company in part in reliance on such
Certificate and
Bylaws;
WHEREAS,
in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's service
to the
Company in an effective manner, the increasing difficulty in
obtaining
satisfactory director and officer liability insurance coverage and
Indemnitee's
reliance on the aforesaid Certificate and Bylaws, and in part to
provide
Indemnitee with specific contractual assurance that the protection
afforded by
such Certificate and Bylaws will be available to Indemnitee
(regardless of,
among other things, any amendment to or revocation of the
Certificate and Bylaws
or any change in the composition of the Company's Board of
Directors or
management or acquisition transaction relating to the Company), the
Company
wishes to provide in this Agreement for the indemnification of and
the advancing
of expenses to Indemnitee to the fullest extent (whether partial or
complete)
permitted by law and as set forth in this Agreement, and, to the
extent
insurance is maintained, for the continued coverage of Indemnitee
under the
Company's directors' and officers' liability insurance
policies;
NOW,
THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request,
another enterprise,
and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Certain
Definitions:
(a) Change in Control: shall mean any transactions or series of
related
transactions pursuant to which any person(s) or entity(ies) (other
than the
stockholders of the Designated Person and their respective
affiliates
immediately following the Effective Date), in the aggregate,
directly or
indirectly, acquires beneficially or of record, (i) Voting Equity
of a
Designated Person (whether by merger, consolidation,
reorganization,
combination, sale or transfer of equity, stockholder or voting
agreement, proxy,
power of attorney or otherwise); provided, however, that if
immediately
following such transaction or series of transactions, the
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stockholders of the Designated Person and their respective
affiliates
immediately following the Effective Date, hold, in the aggregate,
equity
securities holding voting power in excess of any other single
holder (together
with any affiliates of such single holder), such transaction or
series of
transactions shall not constitute a Change in Control hereunder; or
(ii) all or
substantially all of a Designated Person's assets.
(b) Claim: any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether instituted by
the Company
or any other party, that Indemnitee in good faith believes might
lead to the
institution of any such action, suit or proceeding, whether civil,
criminal,
administrative, investigative or other.
(c) Designated Person: any of Spheris Operations, Inc., Spheris
Holding
II, Inc., Spheris Holding III, Inc. or the Company.
(d) Expenses: include reasonable attorneys' fees and all other
reasonable costs, expenses and obligations paid or incurred in
connection with
investigating, defending, being a witness in or participating in
(including on
appeal), or preparing to defend, be a witness in or participate in
any Claim
relating to any Indemnifiable Event.
(e) Indemnifiable Event: any event or occurrence related to the
fact
that Indemnitee is or was a director, officer, employee, agent or
fiduciary of
the Company, or is or was serving at the request of the Company or
any
subsidiary of the Company as a director, officer, employee,
trustee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit
plan, trust or other enterprise, or by reason of anything done or
not done by
Indemnitee in any such capacity.
(f) Independent Legal Counsel: an attorney or firm of
attorneys,
selected in accordance with the provisions of Section 3, who shall
not have
otherwise performed services for the Company, any of its
subsidiaries or
Indemnitee within the last two years (other than with respect to
matters
concerning the rights of Indemnitee under this Agreement, or of
other
indemnitees under similar indemnity agreements).
(g) Person: any individual, firm, corporation, partnership,
limited
liability company, trust or other entity, and any successor (by
merger or
otherwise) of such entity.
(h) Reviewing Party: any appropriate person or body consisting of
a
member or members of the Company's Board of Directors or any other
person or
body appointed by the Board who is not a party to the particular
Claim for which
Indemnitee is seeking indemnification, or Independent Legal
Counsel.
(i) Voting Equity: any equity securities of a Designated Person
possessing the voting power to elect the Designated Person's
governing body.
2. Basic
Indemnification Arrangement.
(a) 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 Claim by
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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 any event no later than thirty days after
written demand is
presented to the Company, against any and all Expenses, judgments,
fines,
penalties and amounts paid in settlement (including all interest,
assessments
and other charges paid or payable in connection with or in respect
of such
Expenses, judgments, fines, penalties or amounts paid in
settlement) of such
Claim. If so requested by Indemnitee, the Company shall advance
(within five
business days of such request and of Indemnitee providing
reasonable detail of
the expenses that have been incurred or will be incurred by
Indemnitee) any and
all Expenses to Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing, the obligations of the Company
under
Section 2(a) shall be subject to the condition that the Reviewing
Party shall
not have determined (in a written opinion, in any case in which the
Independent
Legal Counsel referred to in Section 3 hereof is involved) that
Indemnitee would
not be permitted to be indemnified under applicable law; provided,
however, that
if Indemnitee has commenced or thereafter commences legal
proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee
should be
indemnified under applicable law, any determination made by the
Reviewing Party
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 Advance until a final judicial
determination is made
with respect thereto (as to which all rights of appeal therefrom
have been
exhausted or lapsed). If there has not been a Change in Control,
the Reviewing
Party shall be selected by the Board of Directors, and, if there
has been such a
Change in Control (other than a Change in Control which has been
approved by a
majority of the Company's Board of Directors who were directors
immediately
prior to such Change in Control), the Reviewing Party shall be the
Independent
Legal Counsel referred to in Section 3 hereof. If there has been
no
determination by the Reviewing Party or if the Reviewing Party
determines that
Indemnitee substantively would not be permitted to be indemnified
in whole or in
part under applicable law, Indemnitee shall have the right to
commence
litigation in any court in the State of Delaware having subject
matter
jurisdiction thereof and in which venue is proper seeking an
initial
determination by the court or challenging any such determination by
the
Reviewing Party or any aspect thereof, including the legal or
factual bases
therefor, and the Company hereby consents to service of process and
to appear in
any such proceeding. Any determination by the Reviewing Party
otherwise shall be
conclusive and binding on the Company and Indemnitee.
(c) Notwithstanding anything to the contrary herein, no
indemnification
shall be paid to any Indemnitee in connection with any action, suit
or
proceeding by the Indemnitee against the Company or any of its
direct or
indirect subsidiaries or the directors, officers, employees or
other Indemnitees
of the Company or any of its direct or indirect subsidiaries, (i)
unless such
indemnification is expressly required to be made by law, (ii)
unless the
proceeding was authorized by the Board of Directors of the Company,
(iii) unless
such indemnification is provided by the Company, in its sole
discretion,
pursuant to the powers vested in the Company under applicable law,
or (iv)
except as provided in Section 10 hereof.
3. Change
in Control. The Company agrees that, if there is a Change in
Control of the Company (other than a Change in
