INDEMNITY AGREEMENT
This Indemnify Agreement is by and between Corgenix Medical Corporation,
a Nevada corporation (the "Company"), and (the "Indemnitee"), who
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agree as follows:
1. INTRODUCTION. The Company and the Indemnitee desire that the
Indemnitee serve as a director, officer, employee and/or agent of the Company or
otherwise at the request of' the Company. In this regard, the Company desires
and intends hereby to provide to the Indemnitee indemnification (including
advancement of expenses) against any and all liabilities asserted against the
Indemnitee to the fullest extent permitted by the (the
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"Act"), as it presently exists and as it may from time to time be expanded.
2. INDEMNIFICATION. The Company shall indemnify the Indemnitee as
follows:
(a) The Company shall indemnify the Indemnitee when the
Indemnitee was, is, or is threatened to be made a named defendant or respondent
in a proceeding (as defined in Section 8 hereof) because the Indemnitee is or
was a director, officer, employee or agent of (he Company or, whether or not the
Indemnitee is an officer, director, employee or agent of' the Company, when such
Indemnitee is, or was, serving at the request of' the Company (as defined in
Section 8 hereof); but only if it is determined in accordance with Section 5
hereof' that the Indemnitee:
(i) conducted himself in good faith;
(ii) reasonably believed:
(A) in the case of conduct in his official capacity
as a director of the Company, that his conduct was in the
Company's best interests;
(B) in all other cases, that his conduct was at
least not opposed to the Company's best interests and
(iii) in the case of any criminal proceeding, had no
reasonable close to believe the Indemnitee's conduct was unlawful.
(b) The Company shall indemnify the Indemnitee against reasonable
expenses incurred by the Indemnitee in connection with a proceeding in which the
Indemnitee is a named defendant or respondent because the Indemnitee is or was i
director, officer, employee or agent of the Company if the Indemnitee has been
wholly successful, on the merits or otherwise, in the defense of the proceeding.
(c) Any determination of indemnification under paragraph (a) of
this Section 2 (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination (in accordance with Section
5 hereof) that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
paragraph (a) of this Section 2. Such determination shall be made:
(i) by the board of directors (the "Board") by a majority
vote of a quorum consisting of directors who at the time of such vote
were not named defendants or respondents in (lie proceeding;
(ii) if such a quorum cannot be obtained, by a majority
vote of a committee of the Board, designated to act in the matter by a
majority vote of all directors, consisting solely of two or more
directors who, at the time of the vote, are not named defendants or
respondents in the proceeding;
(iii) by special legal counsel selected by the Board or a
committee of' the Board by vote as set forth in subsection (i) or (ii)
of (his paragraph (e) or, if such a quorum cannot be obtained and such a
committee cannot be established, by a majority vote of all directors; or
(iv) by the shareholders in a vote that excludes the
shares held by directors who are named defendants or respondents in the
proceeding.
(d) Authorization of indemnification and determination as to
reasonableness of expenses must he made in the same manner as the determination
that indemnification is permissible, except that if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses must be
made in the manner specified by subsection (iii) of Section 2(c) hereof for the
selection of special legal counsel.
3. EXTENT OF INDEMNIFICATION. The right of indemnification under
paragraph (a) of Section 2 hereof shall be indemnification against judgments,
penalties (including excise and similar taxes), fines, settlements, and
reasonable expenses actually incurred by the Indemnitee in connection with the
proceeding; but if the Indemnitee is found liable to the Company or is found
liable on the basis that personal benefit was improperly received by the
Indemnitee, the indemnification:
(i) is limited to reasonable expenses actually incurred
by the Indemnitee in connection with the proceeding; and
(ii) shall not be made in respect of any proceeding in
which the Indemnitee shall have been found liable for willful or
intentional misconduct in the performance of the Indemnitee's duty to
the Company.
4. REASONABLE EXPENSES. Reasonable expenses incurred by an Indemnitee
who was, is, or is threatened to be made a named defendant or respondent in a
proceeding may be paid or reimbursed by the Company, in advance of the final
disposition of the proceeding and prior to the determination of indemnification
under paragraph (a) of Section 2 hereof or authorization of indemnification and
the determination as to reasonableness of' expenses under paragraph (d) of'
Section 2 hereof, after the Company receives a written affirmation substantially
in the form of' hereto (the "Undertaking").
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5. PROCEDURE FOR DETERMINATION OF RIGHT TO INDEMNIFICATION. For purposes
of making the determination in a specific case under paragraph (a) of' Section 2
hereof whether to make indemnification, the Board, independent legal counsel or
shareholders, as the case may be, shall make such determination in accordance
with the following procedures:
(a) The Indemnitee may submit to the Board a sworn statement of
request for indemnification substantially in the form of EXHIBIT B hereto (the
"Indemnification Statement") asserting that the Indemnitee has met applicable
standard of conduct set forth in paragraph (a) of Section 2 hereof; and
(b) Submission of the Indemnification Statement to the Board
shall create a rebuttable presumption that the Indemnitee is entitled to
indemnification under this Agreement, and the Board, independent legal counsel
or shareholders, as the case may be, shall within 30 days after submission of
the Indemnification Statement specifically determine that the Indemnitee is so
entitled, unless it or they shall possess clear and convincing evidence to rebut
the presumption that the Indemnitee has met the applicable standard of conduct
set forth in paragraph (b) or (c) of Section 2 hereof, which evidence shall be
disclosed to the Indemnitee with particularity in it sworn written statement
signed by all persons who participated in the determination and voted to deny
indemnification.
6. PROCEDURE FOR AUTHORIZATION OF ADVANCEMENT OF REASONABLE EXPENSES.
For purposes of determining whether to authorize advancement of expenses in a
specific case pursuant to paragraph (a) of Section 2 hereof, the Board shall
make such determination in accordance with the following procedure:
(a) The Indemnitee may submit to the Board a sworn statement of
request for advancement of expenses substantially in the form of hereto
asserting that (i) the Indemnitee believes, in good faith, that the Indemnitee
has met the standard of conduct set forth in paragraph (a) of Section 2 hereof,
(ii) the Indemnitee has reasonably incurred or will reasonably incur actual
reasonable expenses in defending a civil or criminal action, suit or proceeding;
and (iii) the Indemnitee undertakes to repay such amount unless it shall
ultimately be determined that the Indemnitee is entitled to be indemnified by
the Company under this Agreement or otherwise.
(b) The Board shall, within 14 days from the date of its receipt
of the Undertaking, authorize immediate payment of the expenses stated in the
Undertaking to the extent that the Board determines that such expenses are
reasonable.
7. MERGER, CONSOLIDATION OR CHANGE IN Control. 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 ceases its separate
existence, or if there is a change in control of the Company (as defined in
Section 8 hereof), the Indemnitee shall stand in the same position under this
Agreement with respect to the resulting, surviving or changed corporation as he
would have with
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respect to the Company if its separate existence had continued or if there had
been no change in the control of the Company.
8. CERTAIN DEFINITIONS. For purposes of this Agreement, the following
definitions apply herein:
to serve and serving "at the request of the Company" shall include any
service at the request of the Company as director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or any other enterprise (including any civic, nonprofit or
charitable organizations, whether or not incorporated), or other service that
imposes duties on, or involves services by, the Indemnitee with respect to any
employee benefit plan or its participants or beneficiaries;
"change in control" shall include any change in the ownership of a
majority of the capital stock of the Company or in the composition of a
majority of the members of the Board; and
"proceeding" means any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit or proceeding, and any
inquiry or investigation that could lead to such all action, suit or
proceeding;
9. ATTORNEYS' FEES. In the event that the Indemnitee institutes any
legal action to enforce the Indemnitee's rights under, or to recover damages for
breach of this Agreement, the Indemnitee, if the Indemnitee prevails in whole or
in part, shall be entitled to recover from the Company all reasonable attorneys'
fees and disbursements incurred by the Indemnitee.
10. AMENDMENTS TO THE ACT. This Agreement is intended to provide
indemnity to the Indemnitee to the fullest extent permitted under Texas law.
Accordingly, to the extent permitted by law, in the event that the Act permits
greater indemnity than the indemnity set forth herein, or if any amendment is
made to the Act expanding the indemnity permissible under law, the indemnity
obligation of' the Company contained herein shall automatically be expanded,
without the necessity of action on the part of any party, to the extent
necessary to provide to the Indemnitee the fullest indemnity permissible under
law.
11. NOTICES. Any notice required or permitted under this Indemnity
Agreement shall be in writing and shall be deemed to be delivered (i) upon
physical delivery (if hand delivered) or (ii) three business days after deposit
in the United States mail (if [nailed), postage prepaid, certified or registered
mail, return receipt requested, addressed to the Company, it 0000 Xxxxx Xxxxx
Xxxx., Xxxxxxx, Xxxxx 00000, Attn: President, and addressed to the Indemnitee at
the address on the signature page hereof. Notice given in any other manner shall
be effective when received by the addressee. The address I-or notice may be
changed by notice given in accordance with this provision.
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12. AMENDMENTS. This Agreement and any attachments incorporated by
reference constitute the entire agreement between the parties and may not be
amended, supplemented, waived, or terminated except by a written instrument
executed by the parties hereto.
13. ASSIGNMENTS. Neither the Company nor the Indemnitee may transfer or
assign its rights under this Agreement without the prior written consent of the
other.
14. EFFECT OF AGREEMENT. This Agreement shall be binding upon the
Company and the Indemnitee and their respective successors and permitted
assigns.
15. WAIVER OF BREACH. The waiver of' a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
16. GOVERNING LAW. The validity, construction, and enforcement of' this
Agreement shall be governed by the laws of the State of Colorado. In the event
of a dispute concerning this Agreement, the parties agree that venue lies in a
court of competent jurisdiction in Xxxxx County, Colorado.
17. SEVERABILITY. If any provision of this Agreement is declared
unenforceable by a court of last resort, such declaration shall not effect the
validity of any other provision of this Agreement.
18. CONSTRUCTION. The headings contained in this Agreement are for
reference purposes only and shall not affect this Agreement in any manner
whatsoever. Wherever required by the context, any gender shall include any other
gender, the singular shall include the plural, and file plural shall include the
singular.
19. TIME FOR PERFORMANCE. If the time for performance of any obligation
set forth in this Agreement falls on a Saturday, Sunday, or legal holiday,
compliance with such obligation oil the next business day following such
Saturday, Sunday, or legal holiday shall be deemed acceptable.
20. EXECUTION. This Agreement may be executed in multiple counterparts,
each of which shall be deemed all original but all of which shall be deemed one
instrument.
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EXECUTED as of , 1995
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THE COMPANY:
By:
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THE INDEMNITEE:
Address for Notice ------------------------------------------
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EXHIBIT A
Form of Undertaking to Repay Expenses
In connection with my request for indemnification pursuant to that certain
Indemnity Agreement, as of , 1994, by and between Corgenix Medical
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Corporation, a Nevada corporation (the "Company"), and myself, (i) I believe, in
good faith, that I have met the applicable standard of conduct set forth in
paragraph (a) of Section 2 of' the Indemnity Agreement and (ii) I hereby swear
that (a) I have reasonably incurred or will reasonably incur actual expenses ill
defending a civil or criminal action, suit or proceeding, and (b) I will repay
such expenses Unless it is ultimately determined that I am entitled to be
indemnified by the Company under such Indemnity Agreement or otherwise.
SWORN to before me on this day of ,199 .
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Notary Public in and for
the State of
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Name:
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My Commission Expires:
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EXHIBIT B
Form of Indemnification Statement
In connection with my request for indemnification pursuant to that certain
Indemnity Agreement, as of , 1994, by and between , a
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corporation, and myself, I hereby swear that I have met the
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applicable standard of conduct set forth in paragraph (a) of Section 2 of such
Indemnity Agreement.
SWORN to before me on this day of , 199 .
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Notary Public in and for
the State of
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Name:
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My Commission Expires:
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