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INDEMNIFICATION AGREEMENT
dated as of __________________________,
between
EXPRESS SCRIPTS, INC. (the
"Company"),
and
[Name] ("Indemnitee")
WHEREAS, the Board of Directors has determined
that it is in the best interests of the Company and the
Company’s stockholders to attract and retain the most capable
persons as directors and officers of the Company and that the
Company should act to assure such persons that there will be
adequate certainty of protection through insurance and
indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the
Company; and
WHEREAS, the Company has adopted provisions in
its current Amended and Restated Certificate of Incorporation, as
amended, and its Third Amended and Restated By-laws (collectively,
the "Charter Documents") providing for indemnification of its
officers and directors to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, and
the Company wishes to clarify and enhance the rights and
obligations of the Company and Indemnitee with respect to
indemnification; and
WHEREAS, in order to induce and encourage highly
experienced and capable persons such as Indemnitee to serve and
continue to serve as directors and officers of the Company and in
any other capacity with respect to the Company, and to otherwise
promote the desirable end that such persons will resist what they
consider unjustified lawsuits and claims made against them in
connection with the good faith performance of their duties to the
Company, with the knowledge that certain costs, judgments,
penalties, fines, liabilities and expenses incurred by them in
their defense of such litigation are to be borne by the Company and
they will receive the maximum protection against such risks and
liabilities as may be afforded by law, the Board of Directors of
the Company has determined that the following Agreement is
reasonable and prudent to promote and ensure the best interests of
the Company and its stockholders; and
WHEREAS, the Company desires to have Indemnitee
continue to serve as a director or officer of the Company and in
such other capacity with respect to the Company as the Company may
request, as the case may be, free from undue concern for
unpredictable, inappropriate or unreasonable legal risks and
personal liabilities by reason of Indemnitee acting in good faith
in the performance of Indemnitee's duty to the Company; and
Indemnitee desires to continue so to serve the Company, provided,
and on the express condition, that he or she is furnished with the
indemnity set forth hereinafter;
Now, therefore, in consideration of Indemnitee's
continued service as a director or officer of the Company, the
parties hereto agree as follows:
1. Service by
Indemnitee . Indemnitee will serve and/or continue to serve
as a director or officer of the Company or, at the Company's
request and the agreement of the Indemnitee, another enterprise,
faithfully and to the best of Indemnitee's ability so long as
Indemnitee is duly elected or appointed and until such time as
Indemnitee is removed as permitted by law or tenders a resignation
in writing.
2. Indemnification . The Company shall indemnify Indemnitee
to the fullest extent permitted by the Delaware General Corporation
Law (the "DGCL") in effect on the date hereof or as such law may
from time to time be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than said law
permitted the Company to provide prior to such amendment). Without
diminishing the scope of the indemnification provided by this
Section, the rights of indemnification of Indemnitee provided
hereunder shall include but shall not be limited to those rights
hereinafter set forth, except that no indemnification shall be paid
to Indemnitee:
(a) to the extent
expressly prohibited by the DGCL or the Charter
Documents;
(b) for which
payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable
indemnity clause, by-law or agreement of the Company or any other
company or organization on whose board Indemnitee serves at the
request of the Company, except in respect of any indemnity
exceeding the payment under such insurance, clause, by-law or
agreement;
(c) in connection
with an action, suit or proceeding, or part thereof (including
claims and counterclaims) initiated by Indemnitee, except a
judicial proceeding or arbitration pursuant to Section 10 below to
enforce rights under this Agreement, unless the action, suit or
proceeding (or part thereof) was authorized by the Board of
Directors of the Company;
(d) with respect to
any action, suit or proceeding brought by or on behalf of the
Company against Indemnitee that is authorized by the Board of
Directors of the Company, except as provided in Sections 4, 5 and 6
below.
3. Action or
Proceedings Other than an Action by or in the Right of the
Company . Except as limited by Section 2 above, Indemnitee
shall be entitled to the indemnification rights provided in this
Section if Indemnitee is a party or is threatened to be made a
party to any Proceeding (other than an action by or in the name of
the Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer,
employee or agent or fiduciary of any other entity (including, but
not limited to, another corporation, partnership, joint venture,
employee benefit plan or trust); or by reason of anything done or
not done by Indemnitee in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified against all costs,
judgments, penalties, fines, liabilities, amounts paid in
settlement by or on behalf of Indemnitee, and Expenses actually and
reasonably incurred by Indemnitee in connection with such
Proceeding, if Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company, and with respect to any criminal Proceeding, had no
reasonable cause to believe his or her conduct was
unlawful.
4. Indemnity in
Proceedings by or in the Name of the Company . Except as
limited by Section 2 above, Indemnitee shall be entitled to the
indemnification rights provided in this Section if Indemnitee was
or is a party or is threatened to be made a party to any Proceeding
brought by or in the name of the Company to procure a judgment in
its favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent or fiduciary of the Company,
or by reason of anything done or not done by Indemnitee in any such
capacity. Pursuant to this Section, Indemnitee shall be indemnified
against all costs, judgments, penalties, fines, liabilities,
amounts paid in settlement by or on behalf of Indemnitee, and
Expenses actually and reasonably incurred by Indemnitee in
connection with such Proceeding if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company; provided, however,
that no such indemnification shall be made in respect of any claim,
issue, or matter as to which the DGCL expressly prohibits such
indemnification by reason of any adjudication of liability of
Indemnitee to the Company, unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is entitled to
indemnification for such costs, judgments, penalties, fines,
liabilities and Expenses as such court shall deem proper.
5. Indemnification for Costs, Charges and Expenses of Successful
Party . Notwithstanding the limitations of Section 2(d), 3
and 4 above, to the extent that Indemnitee has been successful, on
the merits or otherwise, in whole or in part, in defense of any
action, suit or proceeding (including an action, suit or proceeding
brought by or on behalf of the Company) or in defense of any claim,
issue or matter therein, including, without limitation, the
dismissal of any action without prejudice, or if it is ultimately
determined that Indemnitee is otherwise entitled to be indemnified
against Expenses, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred in connection
therewith.
6. Partial
Indemnification . If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of the costs, judgments, penalties, fines,
liabilities or Expenses actually and reasonably incurred in
connection with any action, suit or proceeding (including an
action, suit or proceeding brought by or on behalf of the Company),
but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such
costs, judgments, penalties, fines, liabilities and Expenses
actually and reasonably incurred to which Indemnitee is
entitled.
7. Indemnification for Expenses of a Witness .
Notwithstanding any other provision of this Agreement, to the
maximum extent permitted by applicable law, Indemnitee shall be
entitled to indemnification against all Expenses actually and
reasonably incurred or suffered by Indemnitee or on Indemnitee's
behalf if Indemnitee appears as a witness or otherwise incurs legal
or other Expenses as a result of or related to Indemnitee's service
as a director or officer of the Company, in any threatened, pending
or completed legal, administrative, investigative or other
proceeding or matter to which Indemnitee neither is, nor is
threatened to be made, a party.
8. Determination
of Entitlement to Indemnification . Upon written request by
Indemnitee for indemnification pursuant to Sections 3, 4, 5, 6 or 7
the entitlement of Indemnitee to indemnification, to the extent not
provided pursuant to the terms of this Agreement, shall, other than
in case of a Change of 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), be determined by the following person or persons who
shall be empowered to make such determination: (a) the Board of
Directors of the Company by a majority vote of Disinterested
Directors, whether or not such majority constitutes a quorum; (b) a
committee of Disinterested Directors designated by a majority vote
of such directors, whether or not such majority constitutes a
quorum; (c) if there are no Disinterested Directors, or if the
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee; or (d) the stockholders of the Company.
Other than in case of a Change of 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), such Independent Counsel shall be selected by
the Board of Directors and approved by Indemnitee. Upon failure of
the Board so to select such Independent Counsel or upon failure of
Indemnitee so to approve, such Independent Counsel shall be
selected upon application to a court of competent jurisdiction.
Such determination of entitlement to indemnification shall be made
not later than 30 calendar days after receipt by the Company of a
written request for indemnification. Such request shall include
documentation or information which is necessary for such
determination and which is reasonably available to Indemnitee. Any
Expenses incurred by Indemnitee in connection with a request for
indemnification or payment of Expenses hereunder, under any other
agreement, any provision of the Charter Documents or any directors'
and officers' liability insurance, shall be borne by the Company.
The Company hereby indemnifies Indemnitee for any such Expense and
agrees to hold Indemnitee harmless therefrom irrespective of the
outcome of the determination of Indemnitee’s entitlement to
indemnification. If the person making such determination shall
determine that Indemnitee is entitled to indemnification as to part
(but not all) of the application for indemnification, such person
shall reasonably prorate such partial indemnification among the
claims, issues or matters at issue at the time of the
determination.
The Company agrees that if there is a Change in
Control of the Company (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) then
the entitlement of Indemnitee with respect to all matters
thereafter arising concerning the rights of Indemnitee to indemnity
payments under this Agreement or any other agreement or Charter
Document now or hereafter in effect relating to events
indemnifiable under this Agreement, shall be determined by
Independent Counsel in a written opinion. In case of a Change of
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), Independent Counsel
shall be selected by Indemnitee and approved by the Company (which
appr
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