Exhibit 10.7
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and entered into as of the
25th day of January, 1996, by and between INNOSERV Technologies, Inc. -
Registered Trademark-, a California corporation (the "Corporation"), and Xxxxxx
X. Xxxxxxx (the "Agent").
WHEREAS, the Agent is currently serving as an Officer of the Corporation
and the Corporation wishes the Agent to continue in such capacity;
NOW, THEREFORE, in consideration of the foregoing recital and the mutual
agreements set forth herein, and in order to induce the Agent to continue to
serve as an Officer of the Corporation and in consideration of his continued
service, the parties hereto hereby agree as follows:
1. The corporation will pay on behalf of the Agent, and his executors,
administrators or assigns, any amount which the Agent is or becomes legally
obligated to pay in connection with any claim or claims made against the Agent
because of any act or omission or neglect or breach of duty, including any
actual or alleged error or misstatement or misleading statement, which the Agent
commits or suffers while acting in his capacity as an Officer of the Corporation
and solely because of being an Officer. The payments which the Corporation will
be obligated to make hereunder shall include, INTER ALIA, damages, judgments,
settlements and costs, cost of investigation (excluding salaries of officers or
employees of the Corporation) and costs of defense of legal actions, claims or
proceedings and appeals therefrom, and costs of attachment or similar bonds;
provided however, that the Corporation shall not be obligated to pay fines or
other obligations or fees imposed by law or otherwise make any payments
hereunder which it is prohibited by applicable law from paying as indemnity or
for any other reason.
2. If a claim under this Agreement is not paid by the Corporation, or on
its behalf, within 90 days after a written claim has been received by the
Corporation, the claimant may at anytime thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and if successful in whole
or in part, the claimant also shall be entitled to be paid the expense of
prosecuting such claim.
3. In the event of payment under this Agreement, the Corporation shall be
surrogated to the extent of such payment to all of the rights of recovery of the
Agent, who shall execute all papers required and shall do everything that may be
necessary or appropriate to secure such rights, including the execution of such
documents necessary or appropriate to enable the Corporation effectively to
bring suit to enforce such rights.
4. The Corporation shall not be liable under this Agreement to make any
payment in connection with any claim made against the Agent:
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(a) for which payment is actually made to the Agent under a valid and
collectible insurance policy, except in respect of any excess beyond the
amount of payment under such insurance;
(b) for which the Agent is entitled to indemnity and/or payment by
reason of having given notice of any circumstance which might give rise to
a claim under any policy of insurance, the terms of which have expired
prior to the effective date of this Agreement;
(c) for which the Agent is indemnified by the Corporation otherwise
than pursuant to this Agreement;
(d) based upon or attributed to the Agent gaining in fact any
personal profit or advantage to which the Agent was not legally entitled;
(e) for an accounting of profits made from the purchase or sale by
the Agent of securities of the Corporation within the meaning of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar
provisions of any state statutory law or common law; or
(f) brought about or contributed to by the dishonesty of the Agent
seeking payment hereunder; however, notwithstanding the foregoing, the
Agent shall be protected under this Agreement to the fullest extent
permitted under law as to any claims upon which suit may be brought against
the Agent by reason of any alleged dishonesty n his part, unless a judgment
or other final adjudication thereof adverse to the Agent shall establish
that the Agent committed acts of active and deliberate dishonesty with
actual dishonest purpose and intent, which acts were material to the cause
of action so adjudicated.
5. No costs, charges or expenses for which indemnity shall be sought
hereunder shall be incurred without the Corporation's consent, which shall not
be unreasonably withheld.
6. The Agent, as a condition precedent to indemnification under this
Agreement, shall give to the Corporation notice in writing as soon as
practicable of any claim made against the Agent for which indemnity will or
could be sought under this Agreement. Notice to the Corporation shall be
directed to INNOSERV Technologies, Inc., 000 Xxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxx 00000, Attention: President and Chief Executive Officer (or such other
address as the Corporation shall designate in writing to the Agent); notice
shall be deemed received I sent by prepaid mail properly addressed, the date of
such notice being the date postmarked. In addition, the Agent shall give the
Corporation such information and cooperation as it may reasonably require and as
shall be within the Agent's power.
7. Costs and expenses (including attorneys' fees) incurred by the Agent
in defending or investigating any action, suit, proceeding or
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investigation shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake in writing to repay any
such advances in he event that it is ultimately determined that the Agent is not
entitled to indemnification under the terms of this Agreement. Notwithstanding
the foregoing or any other provision of this Agreement, no advance shall be made
by the Corporation if a determination is reasonable and promptly made by the
Board of Directors by a majority vote of a quorum of disinterested directors, or
(if such a quorum is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs) by independent legal counsel, that, based
upon the facts known to the Board of Directors or counsel at the time such
determination is made, (a) the Agent acted in bad faith or deliberately breached
his duty to the Corporation or its stockholders, and (b) as a result of such
actions by the Agent, it is more likely than not that it will ultimately be
determined that the Agent is not entitled to indemnification under the terms of
this Agreement.
8. Nothing herein shall be deemed to diminish or otherwise restrict the
Agent's right to indemnification under any provision of the articles of
incorporation or bylaws of the Corporation or under California law.
9. This Agreement shall be governed by and construed in accordance with
in internal laws of the State of California.
10. This Agreement shall be binding upon all successors and assigns of the
Corporation (including any transferee of all or substantially all of its assets
and any successor by merger or operation of law) and shall and inure to the
benefit of the heirs, personal representatives and estate of the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first written.
INNOSERV TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxx
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Title: Vice Chairman
AGENT:
/s/ Xxxxxx Xxxxxxx
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Xxxxxx X. Xxxxxxx, CFO
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