Replidyne, Inc (a Delaware corporation) INDEMNIFICATION AGREEMENT FOR OFFICERS
Exhibit 10.2
Replidyne, Inc
(a Delaware corporation)
(a Delaware corporation)
INDEMNIFICATION AGREEMENT FOR OFFICERS
This Indemnification Agreement (“Agreement”) is entered into as of the [___] day of
[___] 200[___] by and between Replidyne, Inc., a Delaware corporation (the “Company”) and
the officer of the Company identified on the signature page hereto (the “Officer” or
“Indemnitee”).
R E C I T A L S
A. The Company and Officer recognize the continued difficulty in obtaining liability insurance
for its directors, officers, employees, controlling persons, fiduciaries and other agents and
affiliates, the significant increases in the cost of such insurance and the general reductions in
the coverage of such insurance.
B. The Company and Officer further recognize the substantial increase in corporate litigation
in general, subjecting directors, officers, employees, controlling persons, fiduciaries and other
agents and affiliates to expensive litigation risks at the same time as the availability and
coverage of liability insurance has been severely limited.
C. The current protection available to directors, officers, employees, controlling persons,
fiduciaries and other agents and affiliates of the Company may not be adequate under the present
circumstances, and directors, officers, employees, controlling persons, fiduciaries and other
agents and affiliates of the Company (or persons who may be alleged or deemed to be the same),
including the Indemnitees, may not be willing to continue to serve or be associated with the
Company in such capacities without additional protection.
D. The Company (a) desires to attract and retain the involvement of highly qualified persons,
such as Indemnitees, to serve and be associated with the Company, and (b) accordingly, wishes to
provide for the indemnification and advancement of expenses to the Officer to the maximum extent
permitted by law.
E. In view of the considerations set forth above, the Company desires that Indemnitee be
indemnified by the Company as set forth herein.
NOW, THEREFORE, the Company and the Officer hereby agree as follows:
1. Indemnification.
(a) Indemnification of Expenses. The Company shall indemnify and hold harmless the
Indemnitee to the fullest extent permitted by law if such Indemnitee was or is or becomes a party
to or witness or other participant in, or is threatened to be made a party to or witness or other
participant in, any threatened, pending or completed action, suit, proceeding or alternative
dispute resolution mechanism, or any hearing, inquiry or investigation that such Indemnitee, in
good faith, believes might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or
other (hereinafter a “Claim”) by reason of (or arising in part out of) any event or
occurrence
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related to the fact that Indemnitee is or was (or is alleged to be or to have been) a
director, officer, employee, controlling person, fiduciary or other agent or affiliate of the
Company, or any subsidiary of the Company, or is or was (or is alleged to be or to have been)
serving at the request of the Company as a director, officer, employee, controlling person,
fiduciary or other agent or affiliate of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action or inaction on the part of such Indemnitee while
serving (or allegedly serving) in such capacity, including, without limitation, any action or Claim
that arises or may arise, under the Securities Act of 1933, as amended (the “Securities
Act”), the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or any
other federal or state statutory law or regulation, at common law or otherwise, which relate
directly or indirectly (i) to the registration, purchase, sale or ownership of any securities of
the Company or (ii) to any fiduciary obligation owed with respect to the Company and its
stockholders (collectively, hereinafter an “Indemnification Event”), in any such case
against any and all losses, claims, damages, expenses and liabilities, joint or several (including
attorneys’ fees and all other costs, expenses and obligations incurred in connection with
investigating, defending a witness in or participating in (including on appeal), or preparing to
defend, be a witness in or participate in, any such action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation) related to any such Claim, judgments,
fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) of any such Claim and any federal,
state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of
any payments under this Agreement (any and all of the foregoing being referred to hereafter as
“Expenses”), including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses. Such payment of Expenses shall be made by the
Company as soon as practicable but in any event no later than five (5) days after written demand by
the Indemnitee therefor is presented to the Company.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the obligations of the
Company under Section 1(a) shall be subject to the condition that the Reviewing Party (as defined
in Section 10(f) hereof) shall not have determined (in a written opinion, in any case in which the
Independent Legal Counsel referred to in Section 10(e) hereof is involved) that Indemnitee would
not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to
make an advance payment of Expenses to Indemnitee pursuant to Section 2(a) (an “Expense
Advance”) shall be subject to the condition that, if, when and to the extent that the Reviewing
Party determines that Indemnitee would not be permitted to be so indemnified under applicable law,
the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid (within thirty (30) days after such determination);
provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a
court of competent jurisdiction to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be
required to reimburse the Company for any Expense Advance until a final judicial determination is
made with respect thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed). Indemnitee’s obligation to reimburse the Company for any Expense Advance shall be
unsecured and no interest shall be charged thereon. If there has not been a Change in Control (as
defined in Section 10(d) hereof), the Reviewing Party shall be selected by the Board of Directors
with the approval of the Indemnitee (which approval shall not be unreasonably withheld), and if
there has been such a Change in Control (other than a Change in Control (i) that has been approved
by a majority of the Company’s Board of Directors prior to such Change in Control and (ii)
following which a majority of the Board of Directors of the Company is comprised of directors who
were directors of the Company immediately prior to the Change in Control), the Reviewing Party
shall be the Independent Legal Counsel referred to in Section 10(e) hereof subject to the approval
of the Indemnitee (which approval shall not be unreasonably withheld). If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee
substantively would not be permitted to be
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indemnified in whole or in part under applicable law, Indemnitee shall have the right to
commence litigation seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
(c) Contribution. If the indemnification provided for in Section 1(a) above for any
reason is held by a court of competent jurisdiction to be unavailable to an Indemnitee in respect
of any losses, claims, damages, expenses or liabilities referred to therein, then the Company, in
lieu of indemnifying such Indemnitee thereunder, shall contribute to the amount paid or payable by
such Indemnitee as a result of such losses, claims, damages, expenses or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Indemnitee, or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Indemnitee in connection with
the action or inaction which resulted in such losses, claims, damages, expenses or liabilities, as
well as any other relevant equitable considerations. In connection with the registration of the
Company’s securities, the relative benefits received by the Company and any Indemnitee shall be
deemed to be in the same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and the Indemnitee, in each case as set forth in the
table on the cover page of the applicable prospectus, bear to the aggregate public offering price
of the securities so offered. The relative fault of the Company and any Indemnitee shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Indemnitee and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 1(c) were determined by pro rata or per capita allocation or by any other
method of allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. In connection with the registration of the Company’s securities,
in no event shall Indemnitee be required to contribute any amount under this Section 1(c) in excess
of the net proceeds received by such Indemnitee from its sale of securities under such registration
statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person who was not found
guilty of such fraudulent misrepresentation.
(d) Survival Regardless of Investigation. The indemnification and contribution
provided for in this Section 1 will remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnitee.
(e) Change in Control. The Company agrees that if there is a Change in Control (as
defined in Section 10(d) hereof) of the Company (other than a Change in Control that has been
approved by a majority of the Company’s Board of Directors who were directors immediately prior to
such Change in Control) then, with respect to all matters thereafter arising concerning the rights
of any Indemnitee to payments of Expenses and Expense Advances under this Agreement or any other
agreement or under the Company’s Certificate of Incorporation or Bylaws as now or hereafter in
effect, Independent Legal Counsel (as defined in Section 10(e) hereof) shall be selected by the
Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such
counsel, among other things, shall render its written opinion to the Company and Indemnitee as to
whether and to what extent Indemnitee would be permitted to be indemnified under applicable law.
The Company agrees to abide by such opinion and to pay the reasonable
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fees of the Independent Legal Counsel and to fully indemnify such counsel against any and all
expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.
(f) Mandatory Payment of Expenses. Notwithstanding any other provision of this
Agreement other than Section 9 hereof, to the extent that Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action without prejudice,
in the defense of any action, suit, proceeding, inquiry or investigation referred to in Section
(1)(a) hereof or in the defense of any claim, issue or matter therein, such Indemnitee shall be
indemnified against all Expenses incurred by such Indemnitee in connection therewith.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all Expenses incurred by
Indemnitee. The advances to be made hereunder shall be paid by the Company to the Indemnitee as
soon as practicable but in any event no later than five (5) days after written demand by such
Indemnitee therefor to the Company with an undertaking by or on behalf of Indemnitee to
repay said amounts if it shall be judicially determined ultimately that Indemnitee is not entitled
to be indemnified under the provisions of this Agreement, the Bylaws, the General Corporation Law
of the State of Delaware or the CGCL.
(b) Notice/Cooperation by Indemnitees. Indemnitee shall, as a condition precedent to
Indemnitee’s right to be indemnified under this Agreement, give the Company notice in writing as
soon as practicable of any Claim made against Indemnitee for which indemnification will or could be
sought under this Agreement. In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee’s power.
(c) No Presumptions; Burden of Proof. For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law. In addition, neither
the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met
any particular standard of conduct or had any particular belief, nor an actual determination by the
Reviewing Party that the Indemnitee has not met such standard of conduct or did not have such
belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial
determination that the Indemnitee should be indemnified under applicable law, shall be a defense to
the Indemnitee’s claim or create a presumption that the Indemnitee has not met any particular
standard of conduct or did not have any particular belief. In connection with any determination by
the Reviewing Party or otherwise as to whether the Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Company to establish that the Indemnitee is not so
entitled.
(d) Notice to Insurers. If, at the time of the receipt by the Company of a notice of
a Claim pursuant to Section 2(b) hereof, the Company has liability insurance in effect that may
cover such Claim, the Company shall give prompt notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of each
Indemnitee, all amounts payable as a result of such action, suit, proceeding, inquiry or
investigation in accordance with the terms of such policies.
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(e) Selection of Counsel. In the event the Company shall be obligated hereunder to
pay the Expenses of any Claim, the Company shall be entitled to assume the defense of such Claim,
with counsel approved by the Indemnitee, which approval shall not be unreasonably withheld, upon
the delivery to such Indemnitee of written notice of its election to do so. After delivery of such
notice, approval of such counsel by the Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to such Indemnitee under this Agreement for any fees of
counsel subsequently incurred by such Indemnitee with respect to the same Claim; provided that, (i)
the Indemnitee shall have the right to employ such Indemnitee’s counsel in any such Claim at the
Indemnitee’s expense and (ii) if (A) the employment of counsel by the Indemnitee has been
previously authorized by the Company, (B) such Indemnitee shall have reasonably concluded that
there is a conflict of interest between the Company and such Indemnitee in the conduct of any such
defense, or (C) the Company shall not continue to retain such counsel to defend such Claim, then
the fees and expenses of the Indemnitee’s counsel shall be at the expense of the Company. The
Company shall have the right to conduct such defense as it sees fit in its sole discretion,
including the right to settle any claim, action or proceeding against Indemnitee without the
consent of such Indemnitee, provided that the terms of such settlement include
either: (i) a full release of the Indemnitee by the claimant from all liabilities or potential
liabilities under such claim; or (ii), in the event such full release is not obtained, the terms of
such settlement do not limit any indemnification right the Indemnitee may now, or hereafter, be
entitled to under this Agreement, the Company’s Certificate of Incorporation, Bylaws, any
agreement, any vote of stockholders or disinterested directors, the General Corporation Law of the
State of Delaware, the CGCL (as defined in Section 3(a) hereof) or otherwise.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification may not be specifically authorized by
the other provisions of this Agreement, the Company’s Certificate of Incorporation, the Company’s
Bylaws or by statute. In the event of any change after the date of this Agreement in any
applicable law, statute or rule (including, without limitation, Section 317 (or any successor
statute) (“Section 317”) of the California General Corporation Law (the “CGCL”), as
such may be or become applicable to the Company pursuant to Section 2115 of the CGCL (“Section
2115”)) that expands the right of a Delaware corporation to indemnify a member of its Board of
Directors or an officer, employee, controlling person, agent or fiduciary, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law, statute or rule (including, without
limitation, Section 317, as such may be or become applicable to the Company pursuant to Section
2115) that narrows the right of a Delaware corporation to indemnify a member of its Board of
Directors or an officer, employee, controlling person, agent or fiduciary, such change, to the
extent not otherwise required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or the parties’ rights and obligations hereunder except as set
forth in Section 8(a) hereof.
(b) Nonexclusivity. The indemnification provided by this Agreement shall be in
addition to any rights to which Indemnitee may be entitled under the Company’s Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested directors, the
General Corporation Law of the State of Delaware, the CGCL or otherwise. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action such Indemnitee took
or did not take while serving in an indemnified capacity even though the Indemnitee may have ceased
to serve in such capacity.
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4. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Claim made against Indemnitee to the extent such
Indemnitee has otherwise actually received payment (under any insurance policy, Certificate of Incorporation,
Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. If any Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for any portion of Expenses incurred in connection with
any Claim, but not, however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to which such Indemnitee is entitled.
6. Mutual Acknowledgment. The Company and Indemnitee acknowledge that in certain
instances, Federal law or applicable public policy may prohibit the Company from indemnifying its
directors, officers, employees, controlling persons, fiduciaries or other agents or affiliates
under this Agreement or otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain circumstances for a
determination of the Company’s rights under public policy to indemnify the Indemnitee.
7. Liability Insurance. To the extent the Company maintains liability insurance
applicable to directors, officers, employees, control persons, fiduciaries or other agents and
affiliates, Indemnitee shall be covered by such policies in such a manner as to provide to the
Indemnitee the same rights and benefits as are accorded to the most favorably insured of the
Company’s directors, if such Indemnitee is a director, or of the Company’s officers, if such
Indemnitee is not a director of the Company but is an officer; or of the Company’s key employees,
controlling persons, fiduciaries or other agents or affiliates, if such Indemnitee is not an
officer or director but is a key employee, control person, fiduciary, agent or affiliate.
8. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of the this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for acts, omissions or
transactions from which the Indemnitee may not be relieved of liability or for which the Indemnitee
may not be indemnified or receive contribution under applicable law;
(b) Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee
with respect to Claims initiated or brought voluntarily by such Indemnitee and not by way of
defense, except (i) with respect to actions or proceedings brought to establish or enforce a right
to indemnification under this Agreement or any other agreement or insurance policy or under the
Company’s Certificate of Incorporation or Bylaws now or hereafter in effect relating to Claims for
Indemnification Events, (ii) in specific cases if the Board of Directors has approved the
initiation or bringing of such Claim, or (iii) as otherwise required under Section 145 of the
Delaware General Corporation Law, regardless of whether such Indemnitee ultimately is determined to
be entitled to such indemnification, advance expense payment or insurance recovery, as the case may
be;
(c) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by such
Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in such proceeding was not made in good faith or was frivolous; or
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(d) Claims Under Section 16(b). To indemnify Indemnitee for expenses and the payment
of profits arising from the purchase and sale by such Indemnitee of securities in violation of
Section 16(b) of the Exchange Act or any similar successor statute.
9. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against Indemnitee, such Indemnitee’s estate,
spouse, heirs, executors or personal or legal representatives after the expiration of two (2) years
from the date of accrual of such cause of action, and any claim or cause of action of the Company
shall be extinguished and deemed released unless asserted by the timely filing of a legal action
within such two (2)-year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall govern.
10. Construction of Certain Phrases.
(a) [Intentionally Omitted]
(b) For purposes of this Agreement, references to the “Company” shall include, in
addition to the resulting corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger that, if its separate existence had continued,
would have had power and authority to indemnify is directors, officers, employees, agents and
fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, control person
or fiduciary of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, control person, agent or fiduciary or
another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise,
such Indemnitee shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as such Indemnitee would have with respect to
such constituent corporation if its separate existence had continued.
(c) For purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes assessed on
any Indemnitee with respect to an employee benefit plan other than any such excise taxes resulting
from a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986,
as amended; and references to
“serving at the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company that imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries; and if any Indemnitee acted in good faith and in a manner such Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, such Indemnitee shall be deemed to have acted in a manner
“not opposed to the best interests of the Company” as referred to in this Agreement.
“serving at the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company that imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries; and if any Indemnitee acted in good faith and in a manner such Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, such Indemnitee shall be deemed to have acted in a manner
“not opposed to the best interests of the Company” as referred to in this Agreement.
(d) For purposes of this Agreement a “Change in Control” shall be deemed to have
occurred if: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company, (A) who
is or becomes the “beneficial owner” (hereinafter as defined in Rule 13d-3 under said
Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company’s then outstanding Voting Securities, increases such person’s
beneficial ownership of such securities by 5% or more over the percentage so owned by such person,
or (B) who becomes the beneficial owner, directly or indirectly, of securities of the Company
representing more than 20% of the total voting power represented by the Company’s then
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outstanding Voting Securities; (ii) during any period of two (2) consecutive years,
individuals who at the beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to constitute a majority
thereof; or (iii) the stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation that would result in the Voting
Securities of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or the stockholders of
the Company approve a plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of transactions) all or substantially
all of the Company’s assets.
(e) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney
or firm of attorneys, selected in accordance with the provisions of Section 1(b) hereof, who shall
not have otherwise performed services for the Company or any Indemnitee within the last three (3)
years (other than with respect to matters concerning the right of any Indemnitee under this
Agreement, or of other indemnitees under similar indemnity agreements).
(f) For purposes of this Agreement, a “Reviewing Party” shall mean any appropriate
person or body consisting of a member or members of the Company’s Board of Directors or any other
person or body appointed by the Board of Directors who is not a party to the particular Claim for
which an Indemnitee is seeking indemnification, or Independent Legal Counsel.
(g) For purposes of this Agreement, “Voting Securities” shall mean any securities of
the Company that vote generally in the election of directors.
11. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
12. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business and/or assets of the Company, spouses, heirs, and
personal and legal representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in effect with respect to Claims
relating to Indemnification Events regardless of whether Indemnitee continues to serve as a
director, officer, employee, agent, controlling person, or fiduciary of the Company or of any other
enterprise at the Company’s request.
13. Attorneys’ Fees. In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the Company to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be paid all Expenses
incurred by such Indemnitee with respect to such action, regardless of whether such Indemnitee is
ultimately successful in such action, and
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shall be entitled to the advancement of Expenses with respect to such action, unless, as a
part of such action, a court of competent jurisdiction over such action determines that each of the
material assertions made by such Indemnitee as a basis for such action was not made in good faith
or was frivolous. In the event of an action instituted by or in the name of the Company under this
Agreement to enforce or interpret any of the terms of this Agreement, the Indemnitee shall be
entitled to be paid all Expenses incurred by such Indemnitee in defense of such action (including
Expenses incurred with respect to Indemnitee counterclaims and cross-claims made in such action),
and shall be entitled to the advancement of Expenses with respect to such action, unless, as a part
of such action, a court having jurisdiction over such action determines that each of such
Indemnitee’s material defenses to such action was made in bad faith or was frivolous.
14. Notice. All notices and other communications required or permitted hereunder
shall be in writing and shall be effective upon the earlier to occur of (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if delivered by first
class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one (1) business day
after the business day of deposit with Federal Express or similar overnight courier, freight
prepaid, or (d) one (1) business day after the day of delivery by facsimile or electronic mail
transmission, if deliverable by facsimile or electronic mail transmission, with a copy sent by
first class mail, postage prepaid, addressed, if to Indemnitee at the Indemnitee’s address as set
forth beneath the Indemnitee’s signature to this Agreement, and if to the Company at the address of
its principal corporate offices (attention: Secretary or Chief Executive Officer) or at such other
address as such party may designate by ten (10) days’ advance written notice provided to the other
party hereto.
15. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action or proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be commenced, prosecuted and continued only in the
Court of Chancery of the State of Delaware in and for New Castle County, which shall be the
exclusive and only proper forum for adjudicating such a claim.
16. Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
17. Choice of Law. This Agreement shall be governed by and its provisions construed
and enforced in accordance with the laws of the State of Delaware, as applied to contracts between
Delaware residents, entered into and to be performed entirely within the State of Delaware, without
regard to the conflict of laws principles thereof.
18. 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 Indemnitee, who shall
execute all documents required and shall do all acts that may be necessary to secure such rights
and to enable the Company effectively to bring suite to enforce such rights.
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19. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed by all parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
20. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto.
21. No Construction as Employment Agreement. Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employ of the Company or
any of its subsidiaries.
Remainder of Page Intentionally Blank
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
| COMPANY | ||||||
| Replidyne, Inc. | ||||||
| a Delaware corporation | ||||||
| By: | ||||||
| Title: | ||||||
| Address: | 0000 Xxxxxxxx Xxxxx | |||||
| Xxxxxxxxxx XX, 00000 | ||||||
| AGREED TO AND ACCEPTED BY: | ||||||||
By: |
||||||||
| Printed Name: | ||||||||
Title: |
||||||||
| Address: | ||||||||
