EX-10.3 4 f8k092415ex10iii_optimizerx.htm INDEMNITY AGREEMENT

Exhibit 10.3

 

Indemnity Agreement

 

This Indemnity Agreement dated as of the 24th day of September, 2015 is made by and between OptimizeRx Corp., a Nevada corporation (the “Corporation”), and Lynn O’Connor Vos (the “Indemnitee”).

 

Recitals

 

As required by the Stock Purchase Agreement by and between the Corporation and WPP Luxembourg Gamma Three Sarl of even date herewith, the Corporation is required to indemnify the Indemnitee in his capacity as a member of the Corporation’s board of directors and to make arrangements pursuant to which the Indemnitee may be advanced or reimbursed expenses incurred by Indemnitee in certain proceedings described below, according to the terms and conditions set forth below.

 

Agreement

 

THEREFORE, in consideration of the foregoing recitals, the parties agree as follows:

 

1. Indemnification.

 

(a)           In accordance with the provisions of subsection (b) of this Section 1, the Corporation shall hold harmless and indemnify the Indemnitee against any and all expenses, liabilities and losses (including, without limitation, investigation expenses and expert witnesses’ and attorneys’ fees and expenses, costs of court, judgments, penalties, fines, and amounts paid or to be paid in settlement) actually incurred by the Indemnitee (net of any related insurance proceeds or other amounts received by Indemnitee or paid by or on behalf of the Corporation on the Indemnitee’s behalf), in connection with any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, to which the Indemnitee is a party or is threatened to be made a party (a “Proceeding”) based upon, arising from, relating to, or by reason of the fact that Indemnitee is, was, shall be, or shall have been a director of the Corporation.

 

(b)           Without limiting the generality of the foregoing, the Indemnitee shall be entitled to the rights of indemnification provided in this Section 1 for any expenses actually incurred in any Proceeding initiated by or in the right of the Corporation, unless indemnification is barred by applicable law.

 

(c)           In providing the foregoing indemnification, the Corporation shall, with respect to any proceeding, hold harmless and indemnify the Indemnitee to the fullest extent not prohibited by the law of the State of Nevada, as in effect from time and time, and the Articles of Incorporation.  For purposes of this Agreement, it is intended that the indemnification afforded hereby be mandatory and the broadest possible under any then existing statutory provision expressly authorizing the Corporation to indemnify directors or officers whether in effect on the date of this Agreement or hereafter.

 

2.           Other Indemnification Agreements.  The Corporation may purchase and maintain insurance or furnish similar protection or make other arrangements, including, but not limited to, providing a trust fund, letter of credit, or surety bond (“Indemnification Arrangements”) on behalf of the Indemnitee against any liability asserted against him or her or incurred by or on behalf of him or her in such capacity as a director of the Corporation, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Agreement.  The purchase, establishment, and maintenance of any such Indemnification Arrangement shall not in any way limit or affect the rights and obligations of the Corporation or of the Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the Corporation and the Indemnitee shall not in any way limit or affect the rights and obligations of the Corporation or the other party or parties thereto under any such Indemnification Arrangement.  All amounts payable by the Corporation pursuant to this Section 2 and Section 1 hereof are herein referred to as “Indemnified Amounts.”  To the extent the Corporation is able to obtain directors and officers liability insurance of a reasonable premium (as determined by the Corporation in its sole discretion), the Corporation shall use reasonable efforts to cause the Indemnitee to be covered by such insurance.

 

 

 

 

3. Advance Payment of Indemnified Amounts.

 

(a)           The Indemnitee hereby is granted the right to receive in advance of a final, nonappealable judgment or other final adjudication of a Proceeding (a “Final Determination”) the amount of any and all expenses, including, without limitation, investigation expenses, court costs, expert witnesses’ and attorneys’ fees and other expenses expended or incurred by the Indemnitee in connection with any Proceeding or otherwise expensed or incurred by the Indemnitee (such amounts so expended or incurred being hereinafter referred to as “Advanced Amounts”).

 

(b)           In making any written request for Advanced Amounts, the Indemnitee shall submit to the Corporation a schedule setting forth in reasonable detail the dollar amount expended or incurred and expected to be expended.  Each such listing shall be supported by the bill, agreement, or other documentation relating thereto, each of which shall be appended to the schedule as an exhibit.  In addition, before the Indemnitee may receive Advanced Amounts from the Corporation, the Indemnitee shall provide to the Corporation (i) a written affirmation of the Indemnitee’s good faith belief that the applicable standard of conduct required for indemnification by the Corporation has been satisfied by the Indemnitee, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the Advanced Amount if it shall ultimately be determined that the Indemnitee has not satisfied any applicable standard of conduct.  The written undertaking required from the Indemnitee shall be an unlimited general obligation of the Indemnitee but need not be secured.  The Corporation shall pay to the Indemnitee all Advanced Amounts within twenty (20) days after receipt by the Corporation of all information and documentation required to be provided by the Indemnitee pursuant to this paragraph.

 

4. Procedure for Payment of Indemnified Amounts.

 

(a)           To obtain indemnification under this Agreement, the Indemnitee shall submit to the Corporation a written request for payment of the appropriate Indemnified Amounts, including with such requests such documentation and information as is reasonably available to the Indemnitee and reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification.  The Secretary of the Corporation shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that the Indemnitee has requested indemnification.

 

(b)           The Corporation shall pay the Indemnitee the appropriate Indemnified Amounts unless it is established that the Indemnitee engaged in one of the Prohibited Acts, and such Prohibited Act was the subject matter of the Proceeding.  For purposes of determining whether the Indemnitee is entitled to Indemnified Amounts, in order to deny indemnification to the Indemnitee, the Corporation has the burden of proof in establishing (1) that the Indemnitee engaged in the Prohibited Act, and (2) that the Prohibited Act was the subject matter of the Proceeding.  In this regard, a termination of any Proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct; provided, however, that the termination of any criminal proceeding by conviction, or a pleading of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee engaged in a Prohibited Act.  For purposes of this Agreement, a “Prohibited Act” shall mean any act, omission or condition for which indemnity is not available under any applicable federal or state law or public policy.

 

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(c)           Any determination that the Indemnitee has engaged in a Prohibited Act shall be made (i) either by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such Proceeding; or (ii) by independent legal counsel (who may be the outside counsel regularly employed by the Corporation); provided that the manner in which (and, if applicable, the counsel by which) the right of indemnification is to be determined shall be approved in advance in writing by both the highest ranking executive officer of the Corporation who is not a party to such action (sometimes hereinafter referred to as “Senior Officer”) and by the Indemnitee.  In the event that such parties are unable to agree on the manner in which any such determination is to be made, such determination shall be made by independent legal counsel retained by the Corporation especially for such purpose, provided that such counsel be approved in advance in writing by both the Senior Officer and the Indemnitee and, provided further, that such counsel shall not be outside counsel regularly employed by the Corporation.  The fees and expenses of counsel in connection with making the determination contemplated hereunder shall be paid by the Corporation, and, if requested by such counsel, the Corporation shall give such counsel an appropriate written agreement with respect to the payment of their fees and expenses and such other matters as may be reasonably requested by counsel.

 

(d)           The Corporation will use its best efforts to conclude as soon as practicable any required determination pursuant to subparagraph (c) above and promptly will advise the Indemnitee in writing with respect to any determination that the Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied.  Payment of any applicable Indemnified Amounts will be made to the Indemnitee within ten (10) days after any determination of the Indemnitee’s entitlement to indemnification.

 

(e)           Notwithstanding the foregoing, the Indemnitee may, at any time after sixty (60) days after a claim for Indemnified Amounts has been filed with the Corporation (or upon receipt of written notice that a claim for Indemnified Amounts has been rejected, if earlier) and before three (3) years after a claim for Indemnified Amounts has been filed, petition a court of competent jurisdiction to determine whether the Indemnitee is entitled to indemnification under the provisions of this Agreement, and such court shall thereupon have the exclusive authority to make such determination unless and until such court dismisses or otherwise terminates such action without having made such determination.  The court shall, as petitioned, make an independent determination of whether the Indemnitee is entitled to indemnification as provided under this Agreement, irrespective of any prior determination made by the Board of Directors or independent counsel.  If the court shall determine that the Indemnitee is entitled to indemnification as to any claim, issue or matter involved in the Proceeding with respect to which there has been no prior determination pursuant to this Agreement or with respect to which there has been a prior determination that the Indemnitee was not entitled to indemnification hereunder, the Corporation shall pay all expenses (including attorneys’ fees and court costs) actually incurred by the Indemnitee in connection with such judicial determination.

 

5. Agreement Not Exclusive; Subrogation Rights, etc.

 

(a)           This Agreement shall not be deemed exclusive of and shall not diminish any other rights the Indemnitee may have to be indemnified or insured or otherwise protected against any liability, loss, or expense by the Corporation, any subsidiary of the Corporation, or any other person or entity under any charter, bylaws, law, agreement, policy of insurance or similar protection, vote of stockholders or directors, disinterested or not, or otherwise, whether or not now in effect, both as to actions in the Indemnitee’s official capacity, and as to actions in another capacity while holding such office.  The Corporation’s obligations to make payments of Indemnified Amounts hereunder shall be satisfied to the extent that payments with respect to the same Proceeding (or part thereof) have been made to or for the benefit of the Indemnitee by reason of the indemnification of the Indemnitee pursuant to any other arrangement made by the Corporation for the benefit of the Indemnitee.

 

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(b)           For as long as this Agreement is in effect, the Corporation shall maintain director insurance with the coverage, the loss per occurrence, and the tail policy as periodically approved by the Board. If at any time this policy lapses or is not renewed or is no longer available (collectively, “Coverage Failure”), the Corporation shall immediately notify each officer and director covered by the policy who has entered into this Agreement. Notwithstanding any Coverage Failure this Agreement shall remain in full force and effect.

 

(c)           In the event the Indemnitee shall receive payment from any insurance carrier or from the plaintiff in any Proceeding against such Indemnitee in respect of Indemnified Amounts after payments on account of all or part of such Indemnified Amounts have been made by the Corporation pursuant hereto, such Indemnitee shall promptly reimburse to the Corporation the amount, if any, by which the sum of such payment by such insurance carrier or such plaintiff and payments by the Corporation or pursuant to arrangements made by the Corporation to Indemnitee exceeds such Indemnified Amounts; provided, however, that such portions, if any, of such insurance proceeds that are required to be reimbursed to the insurance carrier under the terms of its insurance policy, such as deductible or co-insurance payments, shall not be deemed to be payments to the Indemnitee hereunder.  In addition, upon payment of Indemnified Amounts hereunder, the Corporation shall be subrogated to the rights of Indemnitee receiving such payments (to the extent thereof) against any insurance carrier (to the extent permitted under such insurance policies) or plaintiff in respect to such Indemnified Amounts and the Indemnitee shall execute and deliver any and all instruments and documents and perform any and all other acts or deeds which the Corporation deems necessary or advisable to secure such rights.  Such right of subrogation shall be terminated upon receipt by the Corporation of the amount to be reimbursed by the Indemnitee pursuant to the first sentence of this paragraph.

 

6.           Continuation of Indemnity.  All agreements and obligations of the Corporation contained herein shall continue during the period Indemnitee is a director of the Corporation and shall continue thereafter so long as Indemnitee shall be subject to any possible Proceeding by reason of the fact that Indemnitee was a director of the Corporation.

 

7.           Successors; Binding Agreement.  This Agreement shall be binding on and shall inure to the benefit of and be enforceable by the Corporation’s successors and assigns and by the Indemnitee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees.  The Corporation shall require any successor or assignee (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business and/or assets of the Corporation, by written agreement in form and substance reasonably satisfactory to the Corporation and to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession or assignment had taken place.

 

8.           Enforcement.   In the event the Indemnitee is required to bring any action to enforce rights or to collect monies due under this Agreement and is successful in such action, the Corporation shall reimburse Indemnitee for all of the Indemnitee’s fees and expenses in bringing and pursuing such action.  The Indemnitee shall be entitled to the advancement of Indemnified Amounts to the full extent contemplated by Section 3 hereof in connection with such Proceeding.

 

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9.           Separability.  Each of the provisions of this Agreement is a separate and distinct agreement independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof, which other provisions shall remain in full force and effect.

 

10.          Miscellaneous.  No provision of this Agreement may be modified, waived, or discharged unless such modification, waiver, or discharge is agreed to in writing signed by Indemnitee and either the Chairman of the Board or the CEO of the Corporation or another officer of the Corporation specifically designated by the Board of Directors.  No waiver by either party at any time of any breach by the other party of, or of compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same time or at any prior or subsequent time.  No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement.  The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of Nevada, without giving effect to the principles of conflicts of laws thereof.  

 

11.           Notices.  For the purposes of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by United States registered mail, return receipt requested, postage prepaid, as follows:

 

  If to Indemnitee: 200 Fifth Avenue
    New York, NY 10010
    212.886.3000
     
  If to Corporation: OptimizeRx Corp.
    Attn: CFO
    400 Water Street, Suite 200
    Rochester, MI 48307

 

or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

 

12.           Counterpart.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.

 

13.           Effectiveness.  This Agreement shall be effective as of the date first written above.

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the day and year first above written.

 

Corporation OPTIMIZERX CORP., a Nevada corporation
   
  By:  
  Its: Doug Baker, CFO

 

Indemnitee  
  Name: Lynn O’Connor Vos

 

 

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