ORTHODONTIC CENTERS OF AMERICA INC /DE/
EX-10.35 FORM OF INDEMNIFICATION AGREEMENT
<DOCUMENT>
<TYPE>EX-10.35
<SEQUENCE>11
<FILENAME>d04347exv10w35.txt
<DESCRIPTION>EX-10.35 FORM OF INDEMNIFICATION AGREEMENT
<TEXT>
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                                                                   EXHIBIT 10.35

                            INDEMNIFICATION AGREEMENT


         THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into
as of __________, _____, by and between ORTHODONTIC CENTERS OF AMERICA, INC., a
Delaware corporation (the "Company"), and ____________, an individual residing
in the State of _________ (the "Indemnitee").

                                   WITNESSETH:

         WHEREAS, the Company desires to attract and retain capable individuals
to serve as directors and officers of the Company;

         WHEREAS, the Company and the Indemnitee recognize the increasing risk
of liability for individuals who serve as directors and officers of public
companies such as the Company;

         WHEREAS, the Indemnitee is serving as a _________of the Company, and
the Company desires that the Indemnitee continue to serve in such capacity; and

         WHEREAS, the Indemnitee is willing to continue to serve as a _________
of the Company if the Indemnitee is adequately protected against the risks
associated with such service.

                                   AGREEMENT:

         NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties hereto agree as follows:

1. INDEMNIFICATION. The Company shall indemnify, and upon request shall advance
expenses to, in the manner and to the fullest extent permitted by law, the
Indemnitee (or the estate of the Indemnitee) who was or is a party to, or is
threatened to be made a party to, any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that the Indemnitee is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan. To
the fullest extent permitted by law, the indemnification and advances provided
for herein shall include expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement.

2. ADVANCEMENT OF EXPENSES. If requested by the Indemnitee, the Company will
promptly advance to or on behalf of the Indemnitee the reasonable costs and
expenses (including, without limitation, reasonable attorneys' fees) for which
indemnification is available under Section 1 hereof in advance of the final
disposition of such matter upon receipt of a written undertaking by or on behalf
of the Indemnitee to repay any such amount if it is ultimately determined that
the Indemnitee is not entitled to indemnification under the terms of this
Agreement. In the event that such determination that the Indemnitee is not
entitled to indemnification is ultimately made, the Indemnitee will promptly
reimburse the Company for all such amounts previously paid or advanced.

3. EXCLUSIONS FROM INDEMNIFICATION. Any other provision of this Agreement to the
contrary notwithstanding, the Company shall not be obligated or otherwise liable
under this Agreement to:

         (a) Make any payment in connection with any claim made against the
Indemnitee for which payment is actually made to the Indemnitee under an
insurance policy, except in respect to any excess beyond the amount of payment
under such insurance;

         (b) Make any payment in connection with any claim made against the
Indemnitee for which the Indemnitee is indemnified by the Company or related or
affiliate corporation, partnership, joint venture, trust, other



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enterprise or employee benefit plan under a certificate of incorporation, bylaws
or otherwise than pursuant to this Agreement;

         (c) Make any payment in connection with any claim made against the
Indemnitee for any threatened, pending or completed action or suit by or in the
right of the Company to secure a judgment in its favor against the Indemnitee
with respect to any claim, issue or matter as to which the Indemnitee shall have
been adjudged to be liable to the Company, unless and only to the extent that a
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper;

         (d) Make any payment in connection with any claim made against the
Indemnitee for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Company within the meaning of Section 16(b) of
the Securities Exchange Act of 1934, as amended;

         (e) Indemnify or advance expenses to the Indemnitee with respect to
proceedings or claims initiated or brought voluntarily by the Indemnitee and not
by way of defense (except as provided in Section 4 hereof); or

         (f) Make any payment in connection with any claim made against the
Indemnitee as otherwise prohibited by applicable law.

4. NOTICE OF CLAIMS AND COOPERATION. The Indemnitee shall give written notice to
the Company of any claim made or threatened against him or her for which
indemnity will or could be sought under this Agreement, promptly and in any
event within 15 days after the Indemnitee becomes aware or obtains knowledge or
notice of such claim. The Indemnitee shall also cooperate with the Company and
provide such information as is reasonably requested by the Company in connection
with any claim or proceeding for which indemnification is or may be sought
hereunder.

5. DEFENSE OF CLAIM. In the event the Company shall be obligated by this
Agreement to indemnify or pay the costs or expenses of any claim or proceeding
against the Indemnitee, the Company shall be entitled to participate in the
defense thereof, and to assume the defense of such proceeding upon the delivery
to the Indemnitee of written notice of its election to do so. After delivery of
such notice and the retention of counsel by the Company, the Company will not be
liable to the Indemnitee under this Agreement for any fees or expenses of
counsel subsequently incurred by the Indemnitee with respect to the same
proceeding; provided that (a) the Indemnitee shall have the right to employ his
counsel in any such proceeding at the Indemnitee's expense; and (b) the fees and
expenses of the Indemnitee's counsel with respect to such proceeding shall be at
the expense of the Company if (i) the employment of counsel by the Indemnitee
had been previously authorized in writing by the Company, (ii) the Indemnitee
shall have reasonably concluded that there is a conflict of interest between the
Company and the Indemnitee in the conduct of any such defense, or (iii) the
Company shall not, in fact, have engaged counsel to assume the defense of such
proceeding. The Company will not settle any such claim or proceeding in a manner
that would impose any penalty on the Indemnitee without the Indemnitee's written
consent, which shall not be unreasonably withheld. The Company shall not be
obligated or otherwise liable under this Agreement to make any payment in
respect of any settlement of a claim or proceeding unless the Company has
consented to such settlement, which consent shall not be unreasonably withheld
or delayed.

6. DURATION OF AGREEMENT. The term of this Agreement shall continue until and
terminate upon the later to occur of (a) the fifth anniversary of the date on
which the Indemnitee ceases to serve as a director or officer of the Company, or
to serve at the request of the Company as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan, or (b) the final termination of any
proceeding or action pending on such fifth anniversary in respect of which
Indemnitee is granted rights of indemnification under this Agreement.

7. CONTINUED SERVICE. The Indemnitee agrees to continue to serve as a
___________ of the Company to the best of the Indemnitee's ability until the
expiration or earlier termination of the Indemnitee's term of office or until
the Indemnitee tenders his or her resignation in writing; provided, however,
that nothing in this Agreement is intended or


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shall be deemed to create an employment agreement or other contract of
employment. This Agreement does not create or result in any obligation by the
Company to permit or cause the Indemnitee to serve in any such position.

8. EXPENSES INCURRED IN ENFORCING RIGHTS. If the Company fails or refuses to
indemnify or advance expenses to or behalf of the Indemnitee in accordance with
this Agreement and the Indemnitee prevails in whole or in part in an action
against the Company to enforce the Indemnitee's rights hereunder or recover such
amounts, then the Indemnitee shall also be entitled to be paid his reasonable
expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred in bringing and prosecuting such claim.

9. DIRECTOR AND OFFICER LIABILITY INSURANCE. The Company shall, from time to
time, determine whether or not it is practicable for the Company to obtain and
maintain a policy or policies of insurance with reputable insurance companies
providing the officers and directors of the Company with insurance coverage for
liability and losses from wrongful acts, or to ensure the Company's performance
of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or if the Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Company.

10. SUBROGATION. In the event of payment under this Agreement, the Company shall
be subrogated to the extent of such payment to all of the rights of recovery of
the Indemnitee, who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.

11. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and advancement of
expenses set forth in this Agreement are nonexclusive of other similar rights
which may be granted by law, the Company's Restated Certificate of Incorporation
or Bylaws, as such may be amended, a resolution of the Board of Directors or
stockholders or an agreement with the Company. Nothing herein shall be deemed to
diminish or otherwise restrict the Indemnitee's right to indemnification under
any provision of the Company's Restated Certificate of Incorporation or Bylaws
or the General Corporation Law of the State of Delaware, as such may be amended.

12. SUBSEQUENT CHANGES IN LAW. The rights to indemnification and advancement of
expenses set forth in this Agreement are intended to be greater than those which
are otherwise provided for in the General Corporation Law of the State of
Delaware, are contractual between the Company and the Indemnitee, his heirs,
executors and administrators, and are mandatory, notwithstanding the
Indemnitee's failure to meet the standard of conduct required for permissive
indemnification under the General Corporation Law of the State of Delaware, as
amended from time to time. If an amendment to the General Corporation Law of the
State of Delaware limits or restricts in any way the indemnification rights
permitted by law as of the date hereof, such amendment shall apply only to the
extent mandated by law and only to activities of the Indemnitee which occur
subsequent to the effective date of such amendment.

13. DETERMINATIONS FOLLOWING CHANGE IN CONTROL.

         (a) In the event that the Company shall be a constituent corporation in
a consolidation or merger, whether the Company is the resulting or surviving
corporation or is absorbed, or if there is a Change in Control (as defined
below), the Indemnitee shall stand in the same position under this Agreement
with respect to the resulting, surviving or changed corporation or other entity
as the Indemnitee would have with respect to the Company if its separate
existence had continued or if there had been no Change in Control.

         (b) The Company agrees that if there is a Change in Control, then with
respect to all matters thereafter arising concerning the rights of the
Indemnitee to indemnity payments and expense advances under this Agreement, the
Company shall seek legal advice from Independent Legal Counsel (as defined
below). Such counsel shall, among other things, render its written opinion to
the Company as to whether and to what extent the Indemnitee would be permitted
to


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be indemnified hereunder under applicable law. The Company agrees to pay the
reasonable fees of such Independent Legal Counsel with respect to such
engagement.

         (c) For purposes of this Agreement:

         "Change in Control" means (i) any person or entity, including a "group"
as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, other
than the Company or a wholly-owned subsidiary thereof or any employee benefit
plan of the Company or any of its subsidiaries, becomes the beneficial owner of
the Company securities having 50% or more of the combined voting power of the
then outstanding securities of the Company that may be cast for the election of
directors of the Company; or (ii) as the result of, or in connection with, any
cash tender or exchange offer, merger or other business combination, sale of
substantially all of the assets or contested election, or any combination of the
foregoing transactions less than a majority of the combined voting power of the
then-outstanding securities of the Company or any successor corporation or
entity entitled to vote generally in the election of the directors of the
Company or such other corporation or entity after such transaction is held in
the aggregate by the holders of the Company securities entitled to vote
generally in the election of directors of the Company immediately prior to such
transaction; or (iii) during any period of two consecutive years, individuals
who at the beginning of any such period constitute the Board of Directors of the
Company cease for any reason to constitute at least a majority thereof, unless
the election, or the nomination for election by the Company's stockholders, of
each director of the Company first elected during such period was approved by a
vote of at least a majority of the directors of the Company then still in office
who were directors of the Company at the beginning of any such period.

         "Independent Legal Counsel" shall mean a law firm or a member of a law
firm that (a) is experienced in matters of corporation law, (b) neither is nor
in the past five years has been retained to represent in any material matter the
Company or subsidiary thereof, the Indemnitee or any other party to the claim,
(c) under applicable standards of professional conduct then prevailing would not
have a conflict of interest in representing either the Company or the Indemnitee
in an action to determine the Indemnitee's rights to indemnification under this
Agreement and (d) is reasonably acceptable to the Company and the Indemnitee
(which acceptance shall not be unreasonably withheld or delayed).

14. NOTICE. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if delivered by hand or by certified or
registered mail or by a nationally recognized overnight delivery service,
postage or other charges pre-paid, and addressed to: (a) the address for the
Indemnitee set forth in the Company's records (if such notice is addressed to
the Indemnitee), or (b) Orthodontic Centers of America, Inc., 3850 N. Causeway
Boulevard, Suite 800, Metairie, Louisiana 70002, Attention: Bartholomew F.
Palmisano, Sr., with a copy to Donald R. Moody, Esq., Waller Lansden Dortch &
Davis, PLLC, 511 Union Street, Suite 2100, Nashville, Tennessee 37219 (if such
notice is addressed to the Company), or such other address as may be designated
by a party hereto in written notice to the other party hereto. Such notice shall
be deemed to have been given or made on the date of delivery, if delivered by
hand, on the next following business day if sent overnight delivery service, or
on the third following business day if sent by mail.

15. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, but excluding all other
choice of law and conflicts of law rules.

16. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be binding upon all
successors and permitted assigns of the Company (including any transferee of all
or substantially all of its assets and any successor to the Company by merger,
combination or other operation of law) and shall inure to the benefit of the
heirs, personal representatives and estate of the Indemnitee. The rights,
benefits, duties and obligations of the Indemnitee hereunder are personal to him
and may not be assigned.

17. SEVERABILITY. If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, all portions of any section of this
Agreement containing any such provisions held to be invalid, illegal or
unenforceable, that are not by themselves invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby, and (b) to the fullest
extent possible, the provisions of this Agreement (including,


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without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent of the parties that the Company provide protection to the
Indemnitee to the fullest enforceable extent.

18. HEADINGS. The headings herein have been inserted for convenience only and
shall not be deemed to limit or otherwise affect any of the provisions of this
Agreement.

19. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which shall constitute one
and the same Agreement. The exchange of copies of this Agreement and executed
signature pages hereto by facsimile transmission shall constitute effective
execution and delivery of this Agreement and may be used in lieu of the original
Agreement for all purposes.

20. MODIFICATION. No waiver or modification of this Agreement or of any
covenant, condition, or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding, arbitration, or litigation between the parties hereto arising out of
or affecting this Agreement, or the rights or obligations of the parties
thereunder, unless such waiver or modification is in writing, duly executed as
aforesaid.

21. ENTIRE AGREEMENT. This Agreement, in addition to the Company's Restated
Certificate of Incorporation and Bylaws and applicable law, as such may be
amended, contain the complete agreement between the parties concerning the
subject matter hereof and shall supersede all other agreements or arrangements
between the parties with regard to the subject matter hereof.

22. INTERPRETATION. The language in all parts of this Agreement shall be
construed, in all cases, according to its plain meaning, except where the
context of this Agreement expressly indicates otherwise, and the parties
acknowledge that each party has carefully reviewed this Agreement and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement.

                            [SIGNATURE PAGE FOLLOWS.]


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


                                ORTHODONTIC CENTERS OF AMERICA, INC.



                                By:
                                   --------------------------------------------
                                   Bartholomew F. Palmisano, Sr.
                                   Chairman of the Board, President and
                                   Chief Executive Officer



                                INDEMNITEE


                                -----------------------------------------------
                                [NAME]



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