INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (this "Agreement") dated as of
____________________________ by and between IntegraMed America Inc., a Delaware
corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and _________________("Indemnitee"):
WHEREAS, competent persons are reluctant to serve a corporation as a
director or officer, or in another capacity unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of corporations;
WHEREAS, the Board of Directors of the Company has determined that the
ability to attract and retain such persons is in the best interest of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein set forth below and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Definitions. For purposes of this Agreement the following
terms shall have the meanings set forth below:
1.1 "Board" shall mean the Board of Directors of the Company.
1.2 "Change of Control" shall mean one or more changes in the
aggregate composition of the Company's Board of Directors as a result of which
individuals, who, as of the date hereof, constitute the Company's Board of
Directors (the "Incumbent Board"), subsequently cease for any reason to
constitute at least a majority of the Company's Board of Directors; provided,
however, that any individual becoming a director of the Company subsequent to
the date hereof, whose election, or nomination for election by the Company's
stockholders, shall have been approved by a vote of at least a majority of the
directors then constituting the Incumbent Board shall be considered as though
such individual is a member of the Incumbent Board, but excluding, as a member
of the Incumbent Board, any such individual whose initial assumption of office
is in connection with an actual or threatened election contest relating to the
election of the directors of the Company.
1.3 "Corporate Status" describes the status of a person who is
or was a director, officer, employee, agent or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person is or was serving at the express written
request of the Company.
1.4 "Disinterested Director" means 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.
1.5 "Enterprise" shall mean the Company and any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the express written request
of the Company as a director, officer, employee, agent or fiduciary.
1.6 "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 or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, being or preparing to be a witness in a
Proceeding.
1.7 "Good Faith" shall mean Indemnitee having 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, with respect to any criminal Proceeding,
having had no reasonable cause to believe Indemnitee's conduct was unlawful.
1.8 "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Company or Indemnitee in any matter material to either such party 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.
1.9 "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or
any other actual, threatened or completed proceeding whether civil, criminal,
administrative or investigative, other than one initiated by Indemnitee. For
purposes of the foregoing sentence, a "Proceeding" shall not be deemed to have
been initiated by Indemnitee where Indemnitee seeks pursuant to Section 8 of
this Agreement to enforce Indemnitee's rights under this Agreement.
2. Term of Agreement. This Agreement shall continue until and terminate
upon the later of: (a) 10 years after the date that Indemnitee has ceased to
serve as a director, officer, employee, agent or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which Indemnitee served at the express written request of
the Company or (b) the final termination of all pending Proceedings in respect
of which Indemnitee is granted rights of indemnification or advancement of
expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 8 of this Agreement relating thereto.
3. Notice of Proceedings. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter that may be subject to indemnification or advancement of Expenses
covered hereunder.
4. Indemnification.
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4.1 In General. In connection with any Proceeding, the Company
shall indemnify and advance payment for Expenses to Indemnitee as provided in
this Agreement and to the fullest extent permitted by applicable law in effect
on the date hereof and to such greater extent as applicable law may thereafter
from time to time permit.
4.2 Proceedings Other Than Proceedings by or in the Right of
the Company. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4.2 if, by reason of Indemnitee's Corporate Status,
Indemnitee is, or is threatened to be made, a party to any Proceeding, other
than a Proceeding by or in the right of the Company. Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and amounts paid in
settlements 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.
4.3 Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 4.3
if, by reason of Indemnitee's Corporate Status, Indemnitee is or is threatened
to be made a party to any Proceeding brought by or in the right of the Company
to procure a judgment in its favor. Indemnitee shall be indemnified against
Expenses, judgments, penalties and amounts paid in settlement, actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with
such Proceeding if Indemnitee acted in Good Faith. Notwithstanding the
foregoing, no such indemnification shall be made in respect of any claim, issue
or matter in such Proceeding as to which Indemnitee shall have been adjudged to
be liable to the Company if applicable law prohibits such indemnification;
provided, however, that, if applicable law so permits, indemnification shall
nevertheless be made by the Company in such event if and only to the extent that
the Court of Chancery of the State of Delaware, or the court in which such
Proceeding shall have been brought or is pending, shall determine.
4.4 Indemnification of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of Indemnitee's Corporate Status, a party to and
is successful, on the merits or otherwise, in any Proceeding, Indemnitee shall
be indemnified to the maximum extent permitted by law against all Expenses,
judgments, penalties, fines and amounts paid in settlement, actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee to the maximum extent permitted by law, against all Expenses,
judgments, penalties, fines and amounts paid in settlement, actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with
each successfully resolved claim, issue or matter. For purposes of this Section
4.4 and without limitation, the termination of any claim, issue or matter in
such a Proceeding by dismissal, with or without prejudice, shall be deemed to be
a successful result as to such claim, issue or matter, so long as there has been
no finding (either adjudicated or pursuant to Section 6) that Indemnitee did not
act in Good Faith.
4.5 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, Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection therewith.
4.6 Assumption of Defense and Settlement. Notwithstanding any
other provision of this Agreement, with respect to any such Proceeding as to
which the Indemnitee gives notice to the Company of the commencement thereof:
(i) the Company will be entitled to participate therein at
its own expense;
(ii) the Company, jointly with any other indemnifying party
similarly notified, shall be entitled to assume the defense thereof,
with counsel satisfactory to the Indemnitee. If the Company assumes the
defense of the Indemnitee, it shall notify the Indemnitee, and after
the Indemnitee receives such notice, the Company shall not be liable to
the Indemnitee under this Agreement for any Expenses incurred by the
Indemnitee after the date such notice was received. The Indemnitee
shall be entitled to employ Indemnitee's own counsel at Indemnitee's
own expense. Nevertheless, the Company shall pay for Indemnitee's own
counsel if (a) the Company agrees to do the same, (b) the Indemnitee
shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee regarding the defense
of such action, or (c) the Company shall not in fact have employed
counsel to assume the defense of the Proceeding. The Company shall not
be entitled to assume the defense of any Proceeding brought by or on
behalf of the Company or as to which the Indemnitee shall have
reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee regarding the defense of such
Proceeding; and
(ii) the Company shall not be liable to the Indemnitee under
this Agreement for any amounts paid in settlement of any Proceeding
unless the Company consents to such settlement. The Company shall not
settle any Proceeding in any manner that would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent.
Neither the Company nor the Indemnitee will unreasonably withhold their
consent to any proposed settlement.
5. Advancement of Expenses. Notwithstanding any provision to the
contrary in Section 6, the Company shall advance all reasonable Expenses which,
by reason of Indemnitee's Corporate Status, were incurred by or on behalf of
Indemnitee in connection with any Proceeding, within 20 days after the receipt
by the Company of a statement or statements from Indemnitee requesting such
advance or advances, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by Indemnitee and shall be preceded or accompanied by an undertaking by
or on behalf of Indemnitee to repay any Expenses if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified against such
Expenses. Any advance and undertakings to repay pursuant to this Section 5 shall
be unsecured and interest free.
6. Procedures for Determination of Entitlement to Indemnification.
6.1 Initial Request. To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification. The Secretary of the
Company shall promptly advise the Board in writing that Indemnitee has requested
indemnification.
6.2 Method of Determination. A determination (if required by
applicable law) with respect to Indemnitee's entitlement to indemnification
shall be made as follows:
(i) if a Change in Control has occurred, unless Indemnitee
shall request in writing that such determination be made in accordance
with clause (ii) of this Section 6.2, the determination shall be made
by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee;
(ii) if a Change of Control has not occurred, the
determination shall be made by the Board by a majority vote of
Disinterested Directors, even though less than a quorum. In the event
that there are no Disinterested Directors or if such Disinterested
Directors so direct, the determination shall be made by Independent
Counsel in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee.
6.3 Selection, Payment, Discharge, of Independent Counsel. In
the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 6.2 of this Agreement, the Independent
Counsel shall be selected, paid and discharged in the following manner:
(i) If a Change of Control has not occurred, the Independent
Counsel shall be selected by the Board, and the Company shall give
written notice to Indemnitee advising Indemnitee of the identity of the
Independent Counsel so selected.
(ii) If a Change of Control has occurred, the Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board, in which event clause
(i) of this Section 6.3 shall apply), and Indemnitee shall give written
notice to the Company advising it of the identity of the Independent
Counsel so selected.
(iii) Following the initial selection described in clauses (i)
and (ii) of this Section 6.3, Indemnitee or the Company, as the case
may be, may, within seven days after such written notice of selection
has been given, deliver to the other party a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in this Agreement, and the objection
shall set forth with particularity the factual basis of such assertion.
Absent a proper and timely objection, the person so selected shall act
as Independent Counsel. If such written objection is made, the
Independent Counsel so selected may not serve as Independent Counsel
unless and until a court has determined that such objection is without
merit.
(iv) Either the Company or Indemnitee may petition any court
of competent jurisdiction if the parties have been unable to agree on
the selection of Independent Counsel within 20 days after submission by
Indemnitee of a written request for indemnification pursuant to Section
6.1 of this Agreement. Such petition may request a determination
whether an objection to the party's selection is without merit and/or
seek the appointment as Independent Counsel of a person selected by the
Court or by such other person as the Court shall designate. A person so
appointed shall act as Independent Counsel under Section 6.2 of this
Agreement.
(v) The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to this Agreement, and the Company
shall pay all reasonable fees and expenses incident to the procedures
of this Section 6.3, regardless of the manner in which such Independent
Counsel was selected or appointed.
(vi) Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 8.3 of this Agreement, Independent
Counsel shall be discharged and relieved of any further responsibility
in such capacity (subject to the applicable standards of professional
conduct then prevailing).
6.4 Cooperation. Indemnitee shall cooperate with the person,
persons or entity making the determination with respect to Indemnitee's
entitlement to indemnification under this Agreement, including providing to such
person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee's entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
6.5 Payment. If it is determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within 10 days after
such determination.
7. Presumptions and Effect of Certain Proceedings.
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7.1 Burden of Proof. In making a determination with respect to
entitlement to Indemnification hereunder, the person or persons or entity making
such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 6.1, and the Company shall have the burden of proof
to overcome that presumption in connection with the making by any person,
persons or entity of any determination contrary to that presumption.
7.2 Effect of Other Proceedings. The termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in Good Faith.
7.3 Reliance as Safe Harbor. For purposes of any determination
of Good Faith, Indemnitee shall be deemed to have acted in Good Faith if
Indemnitee's action is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to
Indemnitee by the officers of the Enterprise in the course of their duties, or
on the advice of legal counsel for the Enterprise or on information or records
given or reports made to the Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Enterprise. The provisions of this Section 7.3 shall not be deemed to be
exclusive or to limit in any way the other circumstances in which the Indemnitee
may be deemed to have met the applicable standard of conduct set forth in this
Agreement.
7.4 Actions of Others. The knowledge and/or actions, or
failure to act, of any director, officer, agent or employee of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
8. Remedies of Indemnitee.
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8.1 Application. This Section 8 shall apply in the event of a
Dispute. For purposes of this article, "Dispute" shall mean any of the following
events:
(i) a determination is made pursuant to Section 6 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement;
(ii) advancement of Expenses is not timely made pursuant to
Section 5 of this Agreement;
(iii) if the determination of entitlement to be made pursuant
to Section 6.2 of this Agreement is to be made by the Board and the
Board has not made such determination within 60 days after receipt by
the Company of the request for indemnification;
(iv) if the determination of entitlement to be made pursuant
to Section 6.2 of this Agreement is to be made by Independent Counsel
and Independent Counsel has not made such determination within 90 days
after receipt by the Company of the request for indemnification;
(v) payment of indemnification is not made pursuant to Section
4.5 of this Agreement within 10 days after receipt by the Company of a
written request therefor; or
(vi) payment of indemnification is not made within 10 days
after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made
pursuant to Section 6 of this Agreement.
8.2 Adjudication. In the event of a Dispute, Indemnitee shall
be entitled to an adjudication, in an appropriate Federal Court sitting in the
State of Delaware or appropriate state court in the State of Delaware, of
Indemnitee's entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at Indemnitee's option, may seek an award in
arbitration to be conducted in the City of New York by a single arbitrator
pursuant to the rules of the American Arbitration Association. Indemnitee shall
commence such proceeding seeking an adjudication or an award in arbitration
within 180 days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 8.2. The Company agrees not
oppose Indemnitee's right to seek any such adjudication or award in arbitration.
8.3 De Novo Review. In the event that a determination shall
have been made pursuant to Section 6 of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 8 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by
reason of that adverse determination. In any such proceeding or arbitration, the
Company shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
8.4 Company Bound. If a determination shall have been made or
deemed to have been made pursuant to Section 6 of this Agreement that Indemnitee
is entitled to indemnification, the Company shall be bound by such determination
in any judicial proceeding or arbitration absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statement not materially misleading, in connection with the
request for indemnification or (ii) a prohibition of such indemnification under
applicable law.
8.5 Procedures Valid. The Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 8 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all of the provisions of this Agreement.
8.6 Expenses of Adjudication. In the event that Indemnitee,
pursuant to this Section 8, seeks a judicial adjudication of or an award in
arbitration to enforce Indemnitee's rights under, or to recover damages for
breach of, this Agreement, Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all expenses
(of the types described in the definition of Expenses in this Agreement)
actually and reasonably incurred by Indemnitee in such adjudication or
arbitration, but only if Indemnitee prevails therein. If it shall be determined
in such adjudication or arbitration that Indemnitee is entitled to receive part
but not all of the indemnification or advancement of expenses sought, the
expenses incurred by Indemnitee in connection with such adjudication or
arbitration shall be appropriately prorated.
9. Non-exclusivity, Insurance, Subrogation.
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9.1 Non-Exclusivity. The rights of indemnification and to
receive advancement of Expenses as provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Certificate of Incorporation, the Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration, rescission or replacement of this Agreement or any
provision hereof shall be effective as to Indemnitee with respect to any action
taken or omitted by such Indemnitee in Indemnitee's Corporate Status prior to
such amendment, alteration, rescission or replacement.
9.2 Insurance. The Company may maintain an insurance policy
or policies against liability --------- arising out of this Agreement or
otherwise.
9.3 Subrogation. In the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all papers required
and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
9.4 No Duplicative Payment. The Company shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or otherwise.
10. Miscellaneous Provisions.
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10.1 Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes any prior understandings, agreements or representations,
written or oral, relating to the subject matter hereof.
10.2 Counterparts. This Agreement may be executed in separate
counterparts, each of which will be an original and all of which taken together
shall constitute one and the same agreement, and any party hereto may execute
this Agreement by signing any such counterpart.
10.3 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule, the
validity, legality and enforceability of the other provision of this Agreement
will not be affected or impaired thereby.
10.4 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives and successors and assigns.
10.5 Modification, Amendment, Waiver or Termination. No
provision of this Agreement may be modified, amended, waived or terminated
except by an instrument in writing signed by the parties to this Agreement. No
course of dealing between the parties will modify, amend, waive or terminate any
provision of this Agreement or any rights or obligations of any party under or
by reason of this Agreement.
10.6 Notices. All notices, consents, requests, instructions,
approvals or other communications provided for herein shall be in writing and
delivered by personal delivery, overnight courier, or certified mail, addressed
to the receiving party at the address set forth herein. All such communications
shall be effective when received.
If to Company:
President
IntegraMed America, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
General Counsel
IntegraMed America, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
If to Indemnitee:
Name
Address
Any party may change the address set forth above by notice to each
other party given as provided herein.
10.7 Headings. The headings and any table of contents
contained in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
10.8 Governing Law. All matters relating to the
interpretation, construction, validity and enforcement of this Agreement shall
be governed by the laws of the State of Delaware, without giving effect to any
choice of law provisions thereof. This Agreement may be enforced in any Federal
Court or State Court sitting in Delaware, and each party consents to the
jurisdiction and venue of any such court and waives any argument that venue in
such forum is not convenient. If a party commences any action under any tort or
contract theory arising directly or indirectly from the relationship created by
this Agreement in another jurisdiction or venue, except as provided for in
Section 8.2 of this Agreement, the other party to this Agreement shall have the
option of transferring the case to the above-described venue or jurisdiction or,
if such transfer cannot be accomplished, to have such case dismissed without
prejudice
10.9 Third-Party Benefit. Nothing in this Agreement, express
or implied, is intended to confer upon any other person any rights, remedies,
obligations or liabilities of any nature whatsoever.
10.10 Remedies. The parties agree that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and
that any party may, in its discretion, apply to any court of law or equity of
competent jurisdiction for specific performance and injunctive relief in order
to enforce or prevent any violations this Agreement, and any party against whom
such proceeding is brought hereby waives the claim or defense that such party
has an adequate remedy at law and agrees not to raise the defense that the other
party has an adequate remedy at law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
INTEGRAMED AMERICA, INC.
By:-----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President &
Chief Executive Officer
INDEMNITEE
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