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EXHIBIT 10.6
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of the ____ day of
________,
200_, between PEDIATRIX MEDICAL GROUP,
INC., a Florida corporation (the
"Company"), and __________________, (the
"Indemnitee").
RECITALS
A. The
Indemnitee is currently serving as a director and/or
executive officer of the Company and the
Company desires to continue to retain
the services of the Indemnitee as a
director and/or executive officer of the
Company.
B. The
Company and the Indemnitee recognize the increased risk of
litigation and other claims being asserted
against directors and officers of
public companies and the subsidiaries of
such companies.
C. The
Amended and Restated Articles of Incorporation (the
"Articles of Incorporation") of the Company
provide for indemnification to its
directors and officers and eliminates or
limits the liability of a director or
officer to the fullest extent permitted by
the Florida Business Corporation Act
(the "Florida Act"), and the Indemnitee has
been serving and continues to serve
as a director and/or officer of the
Company, in part, in reliance on such
provisions of the Articles of
Incorporation.
D. The
Indemnitee has indicated that the Indemnitee does not
regard the indemnities available under the
Company's Articles of Incorporation
and bylaws and available insurance, if any,
as adequate to protect the
Indemnitee against the risks associated
with services by the Indemnitee to the
Company. As a condition to the Indemnitee's
agreement to continue to serve as
such, the Indemnitee requires that the
Indemnitee be indemnified from liability
in accordance with the provisions of this
Agreement to the fullest extent
permitted by law.
E. The
Company recognizes that the Indemnitee needs substantial
protection against personal liability in
order to maintain the Indemnitee's
continued service to the Company in an
effective manner and is willing to
indemnify the Indemnitee in accordance with
the provisions of this Agreement to
the fullest extent permitted by law in
order to continue to retain the services
of the Indemnitee.
F. The
Company desires to provide in this Agreement for
indemnification of, and the advance of
expenses to, Indemnitee to the fullest
extent (whether partial or complete)
permitted by law, as set forth in this
Agreement and, to the extent officers' and
directors' liability insurance is
maintained by the Company, to provide for
the continued coverage of the
Indemnitee under the Company's officers'
and directors' liability insurance
policies, in part to provide the Indemnitee
with specific contractual assurance
that the protection promised by the
indemnification provisions of the Articles
of Incorporation will be available to the
Indemnitee
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(regardless of, among other things, any
amendment to or revocation of such
provisions of the Articles of Incorporation
or any change in the composition of
the Company's Board of Directors or any
acquisition transaction relating to the
Company).
NOW, THEREFORE, for and in consideration of the premises and the
mutual
covenants contained herein and the
Indemnitee's past and continued service to
the Company, the Company and the Indemnitee
agree as follows:
SECTION 1. INDEMNIFICATION IN PROCEEDINGS OTHER THAN THOSE BY OR IN
THE
RIGHT OF THE COMPANY. Subject to Sections 4
and 13 hereof, the Company shall
indemnify and hold harmless the Indemnitee
from and against any and all claims,
damages, expenses, costs (including
attorneys' fees and costs of other
professionals), judgments, penalties, fines
(including excise taxes assessed
with respect to an employee benefit plan),
settlements, and all other
liabilities incurred or paid by the
Indemnitee in connection with the
investigation, defense, prosecution,
settlement or appeal of, or being or
preparing to be a witness in, or
participating in, any threatened, pending or
completed action, suit, investigation that
the Indemnitee in good faith believes
might lead to the institution of such
action, or proceeding, whether civil,
criminal, administrative or investigative
(other than an action by or in the
right of the Company) and to which the
Indemnitee was or is a party or is
threatened to be made a party or was or is
a witness or participates or may
participate in by reason of the fact that
the Indemnitee is or was an officer,
director, manager, consultant, stockholder,
employee or agent of the Company or
any of its subsidiaries, or is or was
serving at the request of the Company or
any of its subsidiaries as an officer,
director, consultant, partner, trustee,
employee or agent of another corporation,
partnership, joint venture, trust,
employee benefit plan or other enterprise,
or by reason of anything done or not
done by the Indemnitee in any such capacity
or capacities, provided that the
Indemnitee acted in good faith and in a
manner the Indemnitee reasonably
believed to be in or not opposed to the
best interests of the Company and, with
respect to any criminal action or
proceeding, had no reasonable cause to believe
that the Indemnitee's conduct was
unlawful.
SECTION 2. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF
THE
COMPANY. Subject to Sections 4 and 13
hereof, the Company shall indemnify and
hold harmless the Indemnitee from and
against any and all expenses (including
attorneys' fees) and amounts paid in
settlement actually and reasonably incurred
by the Indemnitee in connection with the
investigation, defense, prosecution,
settlement or appeal of, or being or
preparing to be a witness in, or
participating in, any threatened, pending
or completed action, suit,
investigation that the Indemnitee in good
faith believes might lead to the
institution of such action, or proceeding
by or in the right of the Company to
procure a judgment in its favor, whether
civil, criminal, administrative or
investigative, and to which the Indemnitee
was or is a party or is threatened to
be made a party or was or is a witness or
participate or may participate in by
reason of the fact that the Indemnitee is
or was an officer, director, manager,
consultant, stockholder, employee or agent
of the Company or any of its
subsidiaries, or is or was serving at the
request of the Company or any of its
subsidiaries as an officer, director,
consultant, partner, trustee, employee or
agent of another corporation, partnership,
joint venture, trust, employee
benefit plan or other enterprise, or by
reason of anything done or not done by
the Indemnitee in any such capacity or
capacities, provided that (i) the
Indemnitee acted in good faith and in a
manner the Indemnitee reasonably
believed to be in or not opposed to the
best interests of the Company, (ii)
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indemnification for amounts paid in
settlement shall not exceed the estimated
expense of litigating the proceeding to
conclusion and (iii) no indemnification
shall be made under this Section 2 in
respect of any claim, issue or matter as
to which the Indemnitee shall have been
adjudged to be liable unless, and only
to the extent that, the court in which such
proceeding was brought (or any other
court of competent jurisdiction) shall
determine upon application that, despite
the adjudication of such liability but in
view of all the circumstances of the
case, the Indemnitee is fairly and
reasonably entitled to indemnity for such
expenses which such court shall deem
proper.
SECTION 3. REIMBURSEMENT OF EXPENSES FOLLOWING ADJUDICATION OF
NEGLIGENCE. Subject to Sections 4 and 13
hereof, the Company shall reimburse the
Indemnitee for any expenses (including
attorney's fees) and amounts paid in
settlement actually and reasonably incurred
by the Indemnitee in connection with
the investigation, defense, settlement or
appeal of any action, suit or
proceeding described in Section 2 hereof
that results in an adjudication that
the Indemnitee was liable, other than for
willful misconduct in the performance
of his duty to the Company; provided,
however, that the Indemnitee acted in good
faith and in a manner the Indemnitee
believed to be in the best interests of the
Company.
SECTION 4. AUTHORIZATION OF INDEMNIFICATION OR REIMBURSEMENT.
Any
indemnification under Sections 1 and 2
hereof (unless ordered by a court) and
any reimbursement made under Section 3
hereof shall be made by the Company only
as authorized in the specific case upon a
determination (the "Determination")
that indemnification or reimbursement of
the Indemnitee is proper in the
circumstances because the Indemnitee has
met the applicable standard of conduct
set forth in Section 1, 2 or 3 hereof, as
the case may be. Subject to Sections
5.5, 5.6 and 8 of this Agreement, the
Determination shall be made in the
following order of preference:
(1) first, by the Company's Board of Directors (the
"Board") by majority vote or consent of a
quorum consisting of directors
("Disinterested Directors") who are not, at
the time of the Determination, named
parties to such action, suit or proceeding;
or
(2) next, if such a quorum of Disinterested Directors
cannot be obtained, by majority vote or
consent of a committee duly designated
by the Board (in which designation all
directors, whether or not Disinterested
Directors, may participate) consisting
solely of two or more Disinterested
Directors; or
(3) next, if such a committee cannot be designated,
by any independent legal counsel selected
in accordance with Section 5.5.
4.1.
No Presumptions. The termination of any action, suit or
proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of
itself, create a presumption that
the Indemnitee did not act in good faith
and in a manner that the Indemnitee
reasonably believed to be in or not opposed
to the best interests of the
Company, and with respect to any criminal
action or proceeding, knew that the
Indemnitee's conduct was unlawful.
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4.2.
Benefit Plan Conduct. The Indemnitee's conduct with respect to
an employee benefit plan for a purpose the
Indemnitee reasonably believed to be
in the interests of the participants in and
beneficiaries of the plan shall be
deemed to be conduct that the Indemnitee
reasonably believed to be not opposed
to the best interests of the Company.
4.3.
Reliance as Safe Harbor. For purposes of any Determination
hereunder, the Indemnitee shall be deemed
to have acted in good faith and in a
manner the Indemnitee reasonably believed
to be in or not opposed to the best
interests of the Company or, with respect
to any criminal action or proceeding,
to have had no reasonable cause to believe
or did not know the Indemnitee's
conduct was unlawful, if the Indemnitee's
action is based on (i) the records or
books of account of the Company or another
enterprise, including financial
statements, (ii) information supplied to
the Indemnitee by the officers of the
Company or another enterprise in the course
of their duties, (iii) the advice of
legal counsel for the Company or another
enterprise, or (iv) information or
records given or reports made to the
Company or another enterprise by an
independent certified public accountant or
by an appraiser or other expert
selected with reasonable care by the
Company or another enterprise. The term
"another enterprise" as used in this
Section 4.3 shall mean any other
corporation or any partnership, joint
venture, trust, employee benefit plan or
other enterprise of which the Indemnitee is
or was serving at the request of the
Company or any of its subsidiaries as an
officer, director, consultant, partner,
trustee, employee or agent. The provisions
of this Section 4.3 shall not be
deemed to be exclusive or to limit in any
way the other circumstances in which
the Indemnitee may be deemed to have met
the applicable standard of conduct set
forth in Sections 1, 2 or 3 hereof, as the
case may be.
4.4.
Success on Merits or Otherwise. To the extent that the
Indemnitee has been successful on the
merits or otherwise in defense of any
action, suit or proceeding described in
Section 1 or 2 hereof, or in defense of
any claim, issue or matter therein, the
Indemnitee shall be indemnified against
expenses (including attorneys' fees)
actually and reasonably incurred by the
Indemnitee in connection with the
investigation, defense, settlement or appeal
thereof. For purposes of this Section 4.4,
the term "successful on the merits or
otherwise" shall include, but not be
limited to, (i) any termination,
withdrawal, or dismissal (with or without
prejudice) of any claim, action, suit
or proceeding against the Indemnitee
without any express finding of liability or
guilt against the Indemnitee, (ii) the
expiration of 120 days after the making
of any claim or threat of an action, suit
or proceeding without the institution
of the same and without any promise or
payment made to induce a settlement, or
(iii) the settlement of any action, suit or
proceeding under Section 1, 2 or 3
hereof pursuant to which the Indemnitee
pays less than $25,000.
4.5.
Partial Indemnification or Reimbursement. If the Indemnitee is
entitled under any provision of this
Agreement to indemnification and/or
reimbursement by the Company for some or a
portion of the claims, damages,
expenses (including attorneys' fees and
costs of other professionals),
judgments, fines or amounts paid in
settlement by the Indemnitee in connection
with the investigation, defense, settlement
or appeal of any action specified in
Section 1, 2 or 3 hereof, but not, however,
for the total amount thereof, the
Company shall nevertheless indemnify and/or
reimburse the Indemnitee for the
portion thereof to which the Indemnitee is
entitled. The party or parties making
the Determination shall determine the
portion (if less than all) of such claims,
damages, expenses (including attorneys'
fees), judgments, fines or amounts paid
in
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settlement for which the Indemnitee is
entitled to indemnification and/or
reimbursement under this Agreement.
SECTION 5. PROCEDURES FOR DETERMINATION OF WHETHER STANDARDS HAVE
BEEN
SATISFIED.
5.1.
Costs. All costs of making any Determination required by
Section 4 or 5 hereof shall be borne solely
by the Company, including, but not
limited to, the costs of legal counsel and
judicial determinations. The Company
shall also be solely responsible for paying
(i) all reasonable expenses incurred
by the Indemnitee to enforce this
Agreement, including, but not limited to, the
costs incurred by the Indemnitee to obtain
court-ordered indemnification
pursuant to Section 8 hereof, regardless of
the outcome of any such application
or proceeding, and (ii) all costs of
defending any suits or proceedings
challenging payments to the Indemnitee
under this Agreement.
5.2.
Timing of the Determination. The Company shall use its best
efforts to make the Determination
contemplated by Section 4 or 5 hereof
promptly. In addition, the Company a
