Exhibit 10.5
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“ Agreement ”) is made as of November 2, 2005,
by and between AMN HEALTHCARE SERVICES, INC., a Delaware
corporation (the “ Company ”), and the
individual named on the signature line below under the heading
“INDEMNITEE” (“ Indemnitee
”).
Preliminary
Statements
WHEREAS, the Company desires to
attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Company and its related
entities;
WHEREAS, in order to induce
Indemnitee to provide or continue to provide services to the
Company, the Company wishes to provide for the indemnification of,
and advancement of expenses to, Indemnitee to the fullest extent
permitted by law; and
WHEREAS, the Company and Indemnitee
further recognize the substantial increase in corporate litigation
in general, subjecting directors, officers, employees, agents and
fiduciaries to expensive litigation risks at the same time as the
availability and scope of coverage of liability insurance provide
increasing challenges for the Company.
NOW, THEREFORE, in consideration of
the promises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1. Definitions.
As used in this
Agreement:
“ Beneficial Owner
” shall have the meaning given to such term in Rule 13d-3
under the Exchange Act; provided, however, that Beneficial Owner
shall exclude any Person otherwise becoming a Beneficial Owner by
reason of the stockholders of the Company approving a merger of the
Company with another entity.
“ Board ” shall
mean the Company’s Board of Directors.
“ Change in Control
” shall mean, and shall be deemed to have occurred if, on or
after the date of this Agreement, (i) any Person becomes the
Beneficial Owner, directly or indirectly, of securities of the
Company representing more than 30 percent of the total voting power
represented by the Company’s then outstanding Voting
Securities, (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the
Board of Directors of the Company and any new director whose
election by the Board of Directors or nomination for election by
the Company’s stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof,
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation or other
entity other than a merger or consolidation which would result in
the Voting Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into Voting Securities of the surviving entity)
at least a majority of the total voting
power represented by the Voting Securities of
the Company or such surviving entity outstanding immediately after
such merger or consolidation, or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of (in one
transaction or a series of related transactions) all or
substantially all of the Company’s assets.
“ Company ” shall
include, in addition to the resulting corporation or other entity,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or
agents, so that if Indemnitee is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, Indemnitee
shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation or
other entity as Indemnitee would have with respect to such
constituent corporation if its separate existence had
continued.
“ Corporate Status
” describes the status of a person who is or was a director,
officer, employee or agent of the Company or of any other
corporation, partnership or joint venture, trust or other
enterprise which such person is or was serving at the request of
the Company.
“ DGCL ” shall
mean the General Corporation Law of the State of Delaware, as
amended from time to time.
“ Disinterested
Director ” shall mean a director of the Company who is
not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
“ Enterprise ”
shall mean the Company and any other corporation, partnership,
joint venture, trust or other enterprise of which Indemnitee is or
was serving at the request of the Company as a director, officer,
employee, agent or fiduciary.
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as
amended.
“ Expenses ”
shall include all reasonable attorneys’ fees, retainers,
court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other
disbursements, costs, expenses and obligations paid or incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, being or preparing to be a witness in,
settling or negotiating for the settlement of, or otherwise
participating in, a Proceeding. Expenses also shall include
Expenses incurred in connection with any appeal resulting from any
Proceeding, including without limitation the premium, security for,
and other costs relating to any cost bond, supersedeas bond, or
other appeal bond or its equivalent. In addition, Expenses shall
include any federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments
or fines against Indemnitee.
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“ Independent Counsel
” shall mean a law firm, or a member of a law firm, that is
of outstanding reputation, experienced in matters of corporation
law and neither is as of the date of selection of such firm, nor
has been during the period of three years immediately preceding the
date of selection of such firm, retained to represent: (i) the
Company or Indemnitee in any material matter (other than with
respect to matters concerning the Indemnitee under this Agreement,
or of other indemnitees under similar indemnification agreements),
or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing,
the term “Independent Counsel” shall not include any
person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees
to pay the reasonable fees and expenses of the Independent Counsel
referred to above and to fully indemnify such counsel against any
and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto. For
purposes of this definition, a “material matter” shall
mean any matter for which billings exceeded or are expected to
exceed $100,000.
“ Person ” shall
mean (a) any individual or entity or (b) any two or more
persons acting as a partnership, limited partnership, syndicate or
other group for the purpose of acquiring, holding or disposing of
securities of the Company; provided, however, that Person shall
exclude (i) the Company, (ii) any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, (iii) any corporation or other entity owned, directly
or indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company,
and (iv) any underwriter temporarily holding securities
pursuant to an offering of such securities.
“ Proceeding ”
shall include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or
completed proceeding, including any and all appeals, whether
brought in the right of the Company or otherwise and whether of a
civil, criminal, administrative or investigative nature, whether
formal or informal, in which Indemnitee was, or will be involved as
a party or otherwise by reason of the fact that Indemnitee is or
was a director or officer of the Company, by reason of any action
taken by or omission by Indemnitee, or of any action or omission on
Indemnitee’s part while acting as director or officer of the
Company, or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, in each case whether or not serving in such
capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement or Section 145 of the DGCL;
except one initiated by Indemnitee to enforce Indemnitee’s
rights under this Agreement or Section 145 of the
DGCL.
“ Voting Securities
” shall mean any securities of the Company (or a surviving
entity as described in the definition of a “Change in
Control”) that vote generally in the election of directors
(or similar body).
References to “ fines
” shall include any excise tax assessed with respect to any
employee benefit plan; references to “ other
enterprise ” shall include employee benefit
plans;
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references to “ serving at the request
of the Company ” shall include any service as a director,
officer, employee or agent of the Company which imposes duties on,
or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “ not opposed to the best
interests of the Company ” as referred to in this
Agreement.
The phrase “ to the fullest
extent not prohibited by (and not merely to the extent
affirmatively permitted by) applicable law ” shall
include, but not be limited to: (i) to the fullest extent
authorized or permitted by the provision of the DGCL that
authorizes or contemplates additional indemnification by agreement,
or the corresponding provision of any amendment to or replacement
of the DGCL, and (ii) to the fullest extent authorized or
permitted by any amendments to or replacements of the DGCL adopted
after the date of this Agreement that increase the extent to which
a corporation may indemnify its officers and directors.
2. Indemnity in Third-Party
Proceedings . Subject to
Section 7, the Company shall indemnify Indemnitee in
accordance with the provisions of this Section 2 if Indemnitee
is, was or is threatened to be made, a party to or a participant in
(as a witness or otherwise) any Proceeding, other than a Proceeding
by or in the right of the Company to procure a judgment in its
favor. Subject to Section 7, to the fullest extent not
prohibited by (and not merely to the extent affirmatively permitted
by) applicable law, the Company shall indemnify Indemnitee against
all Expenses, judgments, fines and, subject to Section 10(c),
amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such
Proceeding or any claim, issue or matter therein, 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 and,
in the case of a criminal Proceeding, had no reasonable cause to
believe that such conduct was unlawful.
3. Indemnity in Proceedings by or
in the Right of the Company . Subject to Section 7, the Company shall
indemnify Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee is, was or is threatened to be made, a
party to or a participant in (as a witness or otherwise) any
Proceeding by or in the right of the Company to procure a judgment
in its favor. Subject to Section 7, to the fullest extent not
prohibited by (and not merely to the extent affirmatively permitted
by) applicable law, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding or any
claim, issue or matter therein, 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. No indemnification
for Expenses shall be made under this Section 3 in respect of
any claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court of competent jurisdiction to be liable
to the Company, except to the extent that the Delaware Court of
Chancery or any court in which the Proceeding was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to
indemnification.
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4. Indemnification for Expenses
of a Party Who is Wholly or Partly Successful
. Notwithstanding any other
provisions of this Agreement, to the extent that Indemnitee is
successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part,
the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by Indemnitee in connection
therewith. If Indemnitee is not wholly successful in such
Proceeding, the Company also shall indemnify Indemnitee against all
Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which the
Indemnitee was successful. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, or by
settlement, shall be deemed to be a successful result as to such
claim, issue or matter.
5. Indemnification For Expenses
of a Witness .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
6. Additional
Indemnification .
(a) Notwithstanding any limitation
in Sections 2, 3 or 4, but subject to Section 7, the Company
shall indemnify Indemnitee to the fullest extent not prohibited by
(and not merely to the extent affirmatively permitted by) law if
Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the
Company to procure a judgment in its favor) against all Expenses,
judgments, fines and, subject to Section 10(c), amounts paid
in settlement actually and reasonably incurred by Indemnitee in
connection with the Proceeding. No indemnity shall be made under
this Section 6(a) on account of Indemnitee’s conduct
which is an act or omission not in good faith or which involves
intentional misconduct or a knowing violation of the
law.
(b) Notwithstanding any limitation
in Sections 2, 3, 4 or 6(a), but subject to Section 7, the
Company shall indemnify Indemnitee to the fullest extent not
prohibited by (and not merely to the extent affirmatively permitted
by) law if Indemnitee is a party to or threatened to be made a
party to any Proceeding (including a Proceeding by or in the right
of the Company to procure a judgment in its favor) against all
Expenses, judgments, fines and, subject to Section 10(c),
amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding.
7. Exclusions
. Notwithstanding any provision in
this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity or advancement of Expenses in
connection with any claim made against Indemnitee:
(a) for which payment has actually
been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess
beyond the amount paid under any insurance policy or other
indemnity provision;
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(b) for an accounting of profits
made from the purchase and sale (or sale and purchase) by
Indemni
