Exhibit 10.1
NIGHTHAWK RADIOLOGY HOLDINGS, INC.
DIRECTOR INDEMNIFICATION
AGREEMENT
THIS AGREEMENT (this “
Agreement ”) is made as of
, 200_, by and between NightHawk Radiology Holdings, Inc., a
Delaware corporation (the “ Company ”, which
term shall include, where appropriate, any Entity (as hereinafter
defined) controlled directly or indirectly by the Company), and
(the “ Indemnitee ”).
WHEREAS, it is essential to the
Company that it be able to retain and attract as directors the most
capable persons available;
WHEREAS, increased corporate
litigation has subjected directors to litigation risks and
expenses, and the limitations on the availability of directors and
officers liability insurance have made it increasingly difficult
for companies to attract and retain such persons;
WHEREAS, the Company desires to
provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to the Company’s certificate of incorporation
or revocation of any provision of the Company’s by-laws or
any change in the ownership of the Company or the composition of
its Board of Directors); and
WHEREAS, Indemnitee is relying upon
the rights afforded under this Agreement in accepting
Indemnitee’s position as a director of 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 .
(a) “ Corporate Status
” describes the status of a person who is serving or has
served (i) as a director of the Company, including as a member
of any committee thereof, (ii) in any capacity with respect to
any employee benefit plan of the Company, or (iii) as a
director, partner, trustee, officer, employee, or agent of any
other Entity at the request of the Company. For purposes of
subsection (iii) of this Section 1(a), an officer or
director of the Company who is serving or has served as a director,
partner, trustee, officer, employee or agent of a Subsidiary (as
defined below) shall be deemed to be serving at the request of the
Company.
(b) “ Entity ”
shall mean any corporation, partnership, limited liability company,
joint venture, trust, foundation, association, organization or
other legal entity.
(c) “ Expenses ”
shall mean all fees, costs and expenses incurred in connection with
any Proceeding (as defined below), including, without limitation,
reasonable attorneys’ fees, disbursements and retainers
(including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Sections 8 and 10(c)
of this Agreement), fees and disbursements of expert witnesses,
private investigators and professional advisors (including, without
limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services and other
disbursements and expenses.
(d) “ Indemnifiable
Amounts ” shall have the meaning ascribed to it in
Section 3(a) below.
(e) “ Indemnifiable
Expenses ,” shall have the meaning ascribed to it in
Section 3(a) below.
(f) “ Indemnifiable
Liabilities ” shall have the meaning ascribed to it in
Section 3(a) below.
(g) “ Liabilities
” shall mean judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts paid in
settlement.
(h) “ Proceeding
” shall mean any threatened, pending or completed claim,
action, suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee’s rights
hereunder.
(i) “ Subsidiary
” shall mean any corporation, partnership, limited liability
company, joint venture, trust or other Entity of which the Company
owns (either directly or through or together with another
Subsidiary of the Company) either (i) a general partner,
managing member or other similar interest or (ii) (A) 50%
or more of the voting power of the voting capital equity interests
of such corporation, partnership, limited liability company, joint
venture or other Entity, or (B) 50% or more of the outstanding
voting capital stock or other voting equity interests of such
corporation, partnership, limited liability company, joint venture
or other Entity.
2. Services of Indemnitee .
In consideration of the Company’s covenants and commitments
hereunder, Indemnitee agrees to serve or continue to serve as a
director of the Company. However, this Agreement shall not impose
any obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
3. Agreement to Indemnify .
The Company agrees to indemnify Indemnitee as follows:
(a) Subject to the exceptions
contained in Section 4(a) below, if Indemnitee was or is a
party or is threatened to be made a party to any Proceeding (other
than an action by or in the right of the Company) by reason of
Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as “ Indemnifiable Expenses
” and “ Indemnifiable Liabilities ,”
respectively, and collectively as “ Indemnifiable
Amounts ”).
(b) Subject to the exceptions
contained in Section 4(b) below, if Indemnitee was or is a
party or is threatened to be made a party to any Proceeding by or
in the right of the Company to procure a judgment in its favor by
reason of Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Indemnifiable
Expenses.
4. Exceptions to
Indemnification . Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all
circumstances other than the following:
(a) If indemnification is requested
under Section 3(a) and it has been adjudicated finally by a
court of competent jurisdiction that, in connection with the
subject of the Proceeding
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out of which the claim for
indemnification has arisen, Indemnitee failed to act (i) in
good faith and (ii) in a manner 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,
Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts hereunder.
(b) If indemnification is requested
under Section 3(b) and
(i) it has been adjudicated finally
by a court of competent jurisdiction that, in connection with the
subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act (A) in
good faith and (B) in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or
(ii) it has been adjudicated finally
by a court of competent jurisdiction that Indemnitee is liable to
the Company with respect to any claim, issue or matter involved in
the Proceeding out of which the claim for indemnification has
arisen, including, without limitation, a claim that Indemnitee
received an improper personal benefit, no Indemnifiable Expenses
shall be paid with respect to such claim, issue or matter unless
the court of law or another court in which such 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 indemnity
for such Indemnifiable Expenses which such court shall deem
proper.
5. Procedure for Payment of
Indemnifiable Amounts . Indemnitee shall submit to the Company
a written request specifying the Indemnifiable Amounts for which
Indemnitee seeks payment under Section 3 of this Agreement and
the basis for the claim. The Company shall pay s
