INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this "
Agreement ") is made as of October ___, 2005, between Ventiv
Health, Inc., a Delaware corporation (the " Company "),
and
(the " Indemnitee
").
Recitals
A. The Indemnitee is an executive officer of the
Company and/or a member of the Company's Board of Directors (the "
Board ") and, in such capacity, is performing valuable
services for the Company.
B. The Company has adopted By-Laws, as amended (the
" By-Laws "), providing for indemnification of the directors
and officers of the Company in accordance with Section 145 of the
Delaware General Corporation Law (the " DGCL "). The By-Laws
and the DGLC specifically provide that they are not exclusive, and
contemplate that agreements may be entered into between the Company
and directors and officers with respect to indemnification of
directors and officers.
C. In recognition of the need for corporations to
be able to induce capable and responsible persons to accept
positions in corporate management, Delaware law authorizes (and in
some instances requires) corporations to indemnify their directors
and officers and further authorizes corporations to purchase and
maintain insurance for the benefit of their directors and
officers.
D. The Company and the Indemnitee further recognize
that officers and directors may be exposed to certain risks
including the increased risk of litigation and other claims being
asserted against directors and executive officers of public
companies in today's environment.
E. These factors with respect to the coverage and
cost to the Company of D&O Insurance and issues concerning the
scope of indemnity under the DGCL and By-Laws generally have raised
questions concerning the adequacy and reliability of the protection
presently afforded to directors and executive officers.
F. There are at this time no threatened, pending or
completed Proceedings (as defined in this Agreement) known to
either the Company or the Indemnitee.
G. In order to address such issues and to further
induce the Indemnitee to serve and continue to serve as an
executive officer and/or a member of the Board, the Company and the
Indemnitee desire to enter into this Agreement.
Statement of
Agreement
In consideration of the Indemnitee's continued
service as an executive officer and/or a member of the Board after
the date of this Agreement, the Company and the Indemnitee hereby
agree as follows:
1.
Indemnity of the
Indemnitee . (a) Subject only to the limitations set forth in
Section 2 below, the Company shall indemnify the Indemnitee to the
full extent not otherwise prohibited by the DGCL or other
applicable law, including without limitation indemnity,
(i) against any and all costs, charges and
expenses (including legal, expert, and other professional fees and
expenses paid or payable in connection with investigating,
defending, being a witness in or participating in (including on
appeal), or preparing to investigate, defend, be a witness in or
participate in (including on appeal), any Proceeding (defined
below), judgments, damages, fines (including excise taxes with
respect to employee benefit plans), penalties (whether civil,
criminal or other), and amounts paid in settlement actually and
reasonably incurred by the Indemnitee (collectively, "
Losses "), in connection with any threatened, pending, or
completed claim, demand, action, suit or proceeding (whether civil,
criminal, administrative, arbitrative or other, whether made
pursuant to federal, state or other law, and including, without
limitation, an action by or in the right of the Company and any
appeal of or from any judgment or decision), or any threatened,
pending or completed inquiry or investigation, whether made,
instituted or conducted by the Company or any other person,
including any federal, state or other governmental entity, that the
Indemnitee determines might lead to the institution of any such
claim, demand, action, suit or other proceeding (each a "
Proceeding "), in any case to which the Indemnitee is or at
any time becomes a party or witness, or is threatened to be made a
party or witness as a result, directly or indirectly, of (A)
serving at any time: (I) as a director, officer, employee, or agent
of the Company; or (II) at the request of the Company as a
director, officer, employee, trustee, fiduciary, manager, member,
or agent of a corporation, partnership, trust, limited liability
company, employee benefit plan, or other enterprise or entity, (B)
any actual, alleged or suspected act or failure to act by the
Indemnitee in respect of any business, transaction, communication,
filing, disclosure or other activity of the Company or any other
entity or enterprise referred to in clause (A) of this sentence;
and (ii) otherwise to the fullest extent that the Indemnitee may be
indemnified by the Company under the Certificate of Incorporation
of the Company, as amended (the " Certificate of
Incorporation "), the By-Laws and the DGCL, including, without
limitation, the non-exclusivity provisions thereof. In addition to
any service at the actual request of the Company, for purposes of
this Agreement, Indemnitee will be deemed to be serving or to have
served at the request of the Company as a director, officer,
employee, member, manager, trustee or agent of another entity or
enterprise if Indemnitee is or was serving as a director, officer,
employee, member, manager, trustee or agent of such entity or
enterprise and (A) such entity or enterprise is or at the time
of such service was a Controlled Affiliate, (B) such entity or
enterprise is or at the time of such service was an employee
benefit plan (or related trust) sponsored or maintained by the
Company or a Controlled Affiliate, or (C) the Company or a
Controlled Affiliate directly or indirectly caused or authorized
Indemnitee to be nominated, elected, appointed, designated,
employed, engaged or selected to serve in such capacity. For
purposes hereof, " Controlled
Affiliate " means any corporation, limited liability company,
partnership, joint venture, trust or other entity or enterprise,
whether or not for profit, that is directly or indirectly
controlled by the Company. For purposes of this definition,
"control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of an entity or enterprise, whether through the ownership
of voting securities, through other voting rights, by contract or
otherwise; provided that direct or indirect beneficial ownership of
capital stock or other interests in an entity or enterprise
entitling the holder to cast 20% or more of the total number of
votes generally entitled to be cast in the election of directors
(or persons performing comparable functions) of such entity or
enterprise will be deemed to constitute control for purposes of
this definition. If the Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of any Loss, but not for all of the total amount thereof,
the Company will nevertheless indemnify the Indemnitee for the
portion thereof to which the Indemnitee is entitled.
2.
Limitations on
Indemnity . No indemnity pursuant to Section 1 will be
paid by the Company:
(a) Except to the extent that the aggregate amount
of Losses to be indemnified exceed the aggregate amount of such
Losses for which the Indemnitee is actually paid or reimbursed
pursuant to directors’ and officers’ liability
insurance, if any, which may be purchased and maintained by the
Company or any of its subsidiaries or pursuant to the Certificate
of Incorporation, the By-Laws or otherwise;
(b) To the extent determined by a court having
jurisdiction in the matter, in a final adjudication from which
there is no further right of appeal, that the Indemnitee actually
realized a personal gain or profit to which the Indemnitee was not
legally entitled, including profit from the purchase and sale by
the Indemnitee of equity securities of the Company which are
recoverable by the Company pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended;
(c) On account of the Indemnitee's conduct if it is
proven by clear and convincing evidence in a court of competent
jurisdiction that the Indemnitee's action or failure to act
involved an act or omission undertaken with deliberate intent to
cause injury to the Company or undertaken with reckless disregard
for the best interests of the Company, except to the extent such
indemnity is otherwise permitted under the DGCL;
(d) With respect to any remuneration paid to the
Indemnitee determined, by a court having jurisdiction in the matter
in a final adjudication from which there is no further right of
appeal, to have been in violation of law;
(e) If it shall have been determined by a court
having jurisdiction in the matter, in a final adjudication from
which there is no further right of appeal, that indemnification is
not lawful;
(f) On account of the Indemnitee's conduct to the
extent it relates to any matter that occurred prior to the time
such individual became an executive officer or a director of the
Company; provided , however , that this limitation
will not apply to the extent such matter occurred while the
Indemnitee was a director, officer, employee or agent of the
Company or its subsidiaries (other than prior to the time such
entity became a subsidiary of the Company); or
(g) No indemnity pursuant to Section 1 shall be paid
by the Company with respect to Proceedings initiated or brought
voluntarily by the Indemnitee and not by way of defense, except
pursuant to Section 7 with respect to proceedings brought to
enforce rights or to collect money due under this Agreement;
provided , however , that indemnity may be provided
by the Company in specific cases if (i) authorized by another
agreement to which the Company is a party whether heretofore or
hereafter entered, (ii) otherwise ordered by the court in which the
Proceeding is brought, or (iii) the Board finds it to be
appropriate.
In no event will the Company be obligated to
indemnify the Indemnitee pursuant to this Agreement to the extent
such indemnification is prohibited by applicable law. A
determination as to whether the Indemnitee will be entitled to
indemnification under Section 1 will be made in accordance with
Section 3(a) hereof.
3.
Advancement of
Losses . Losses reasonably incurred by the Indemnitee in
connection with any Proceeding will be promptly reimbursed or paid
by the Company as they become due in advance of the final
disposition of such Proceeding under the procedures set forth in
Section 3(b) below. The Indemnitee's right to such advancement is
not subject to the satisfaction of any standard of
conduct.
4.
Certain Procedures
Relating to Indemnification
.
(a) For purposes of pursuing the Indemnitee's rights
to indemnification under Section 1 hereof, the Indemnitee shall (i)
submit to the Board a sworn statement of request for
indemnification substantially in the form of Exhibit 1 attached
hereto and made a part hereof (the “ Request for
Indemnification ”) averring that the Indemnitee is
entitled to indemnification hereunder; and (ii) present to the
Company reasonable evidence of all amounts for which
indemnification is requested. Without limiting Section 3(c),
submission of a Request for Indemnification to the Board shall
create a presumption that the Indemnitee is entitled to
indemnification hereunder, and the Company shall, within 30
calendar days after submission of the Request for Indemnification,
make the payments requested in the Request for Indemnification to
or for the benefit of the Indemnitee, unless (A) within such
30-calendar-day period the Board shall resolve by vote of a
majority of the Directors at a meeting at which a quorum is present
that the Indemnitee is not entitled to indemnification under
Section 1 hereof, (B) such vote shall be based upon clear and
convincing
