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Exhibit 10(a)
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered
into this
day of
,
, between Cerner Corporation, a Delaware corporation
("Corporation"), and
("Indemnitee").
WITNESSETH:
WHEREAS, Indemnitee is a member of
the board of directors of the Corporation and as such is performing
a valuable service for the Corporation; and
WHEREAS, although Indemnitee has
certain rights to indemnification under the Bylaws and Certificate
of Incorporation of the Corporation, such Bylaws and Certificate of
Incorporation specifically provide that they are not exclusive and
thereby contemplate that the Corporation may enter into agreements
with its officers and directors; and
WHEREAS, the Corporation and
Indemnitee desire to enter into this Agreement to provide to
Indemnitee additional rights to indemnification in consideration of
Indemnitee’s acceptance of his/her position with and his/her
continued service to the Corporation as a director;
NOW, THEREFORE, inconsideration of
Indemnitee’s acceptance of his/her position with and his/her
continued service as a director of the Corporation after the date
hereof and for and in consideration of the premises and the
covenants contained herein, the Corporation and Indemnitee do
hereby promise and agree as follows:
1. Indemnification. The
Corporation hereby agrees to hold harmless and indemnify Indemnitee
to the fullest extent permitted by Section 145, Title 8 of the
Delaware Code, as in effect on the date of the execution of this
Agreement and as it may hereafter be amended, or any other
statutory provision permitting or authorizing such indemnification
which is adopted subsequent to the execution of this Agreement.
2. Maintenance of Insurance.
So long as Indemnitee shall continue to serve as a director of the
Corporation (or shall continue at the request of the Corporation or
on behalf of the Corporation to serve as a director, officer,
employee or agent to any Other Enterprise) and thereafter so long
as Indemnitee shall be subject to any possible claim or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, investigative or appellate by reason of the fact
that Indemnitee is or was a director of the Corporation (or is or
was serving in any of said other capacities at the request of the
Corporation), the Corporation may maintain director liability
insurance if such insurance becomes reasonably available and if, in
the business judgment of the board of directors of the Corporation
as it may exist from time to time, both (i) the premium cost
for such insurance is reasonable, and (ii) the coverage
provided by such insurance is not so limited by exclusions that
there is insufficient benefit provided by such director liability
insurance.
3. Additional
Indemnification. Subject only to the provisions in Sections 4,
5, 6 and 7 of this Agreement, the Corporation hereby further agrees
to hold harmless and indemnify Indemnitee:
Exhibit 10(a)
(a) Against any and all
liabilities and expenses, including without limitation, judgments,
amounts paid in settlement (provided that such settlement and all
amounts paid in connection therewith are approved in advance by the
Corporation, which approval shall not be unreasonably withheld),
attorneys’ fees, ERISA excise taxes or penalties, fines and
other expenses actually and reasonably incurred by Indemnitee in
connection with any threatened, pending or completed action, suit
or proceeding (including without limitation the investigation,
defense, settlement or appeal of such action, suit or proceeding),
whether civil, criminal, administrative, investigative or appellate
(including an action by or in the right of the Corporation) to
which Indemnitee is, was or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that
Indemnitee is, was or at any time becomes a director of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, agent or employee of any Other Enterprise;
and
(b) Otherwise to the fullest
extent as may be provided to Indemnitee by the Corporation pursuant
to the non-exclusivity provisions of paragraph 28 of the
Corporation’s Bylaws and subsection (f) of
Section 145, Title 8 of the Delaware Code relating to
indemnification.
4. Limitations on Additional
Indemnification. (a) The Corporation will not hold Indemnitee
harmless or provide indemnification pursuant to Section 3
hereof:
(1) except to the extent that the aggregate amount of
losses to be indemnified thereunder exceeds the amount of such
losses for which Indemnitee is indemnified either pursuant to (i)
the Corporation’s Certificate of Incorporation, Bylaws, vote
of stockholders or disinterested directors or other agreement,
(ii) Sections 1 or 2 hereof, (iii) pursuant to any
director liability insurance purchased and maintained by or on
behalf of Indemnitee by the Corporation, or (iv) otherwise
than pursuant to this Agreement;
(2) in respect of remuneration paid to Indemnitee if it
shall be determined by a final judgment or other final adjudication
that such remuneration was in violation of law;
(3) on account of any suit for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the
Corporation pursuant to Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any
federal, state or local law;
(4) on account of Indemnitee’s conduct which is
finally adjudged by a court to have been knowingly fraudulent,
deliberately dishonest or willful misconduct; or
(5) if a final adjudication by a court having jurisdiction
in the matter shall determine that such indemnification is not
lawful.
(c) Notwithstanding any other
provisions of this Agreement, if the Indemnitee is or was serving
as a director of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or
agent of any Other Enterprise, and has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to in Section 3 of this Agreement (including the
dismissal of any such action, suit or proceeding without
prejudice), or in defense of any claim, issue or matter therein,
he/she shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by him/her
in connection therewith to the extent he/she has not been fully
indemnified therefor otherwise than pursuant to this Agreement.
2
Exhibit 10(a)
5. Advancement of Expenses.
Expenses (including attorneys’ fees) actually and reasonably
incurred by an Indemnitee who may be entitled to indemnification
hereunder in defending an action, suit or proceeding, whether
civil, criminal, administrative, investigative or appellate, shall
be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Indemnitee to repay such amount if it shall
ultimately be determined that the Indemnitee is not entitled to
indemnification by the Corporation. Notwithstanding the foregoing,
no advance shall be made by the Corporation if a determination is
reasonably and promptly made by (i) the board of directors by
a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding from which the
advancement is requested, or (ii) if a quorum is not
obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that, based upon the facts
known to the board, counselor stockholders at the time such
determination is made, such Indemnitee acted in bad faith and in a
manner that such Indemnitee did not believe
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