INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Indemnification Agreement (“Agreement”) is made as of ________, 2011 by and
between Haemonetics Corporation, a Massachusetts corporation (the “Company”), and
____________ (“Indemnitee”).
RECITALS
WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company;
WHEREAS, in order to induce Indemnitee to provide or continue to provide services to the
Company, the Company wishes to provide for the indemnification of, and advancement of expenses to,
Indemnitee to the maximum extent permitted by law;
WHEREAS, the Articles of Organization (the “Charter”) and the Bylaws (the
“Bylaws”) of the Company require indemnification of the officers and directors of the
Company, and Indemnitee may also be entitled to indemnification pursuant to the Massachusetts
Business Corporation Act (the “MBCA”);
WHEREAS, the Charter, the Bylaws and the MBCA expressly provide that the indemnification
provisions set forth therein are not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the board of directors, officers and other persons
with respect to indemnification;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the
increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is
detrimental to the best interests of the Company’s shareholders;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law, regardless of any amendment or revocation of the Charter or the
Bylaws, so that they will serve or continue to serve the Company free from undue concern that they
will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided
in the Charter, the Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the Company. Indemnitee agrees to serve as a director of the
Company. Indemnitee may at any time and for any reason resign from such position (subject to any
other contractual obligation or any obligation imposed by law), in which event the Company shall
have no obligation under this Agreement to continue Indemnitee in such position. This
Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any Enterprise) and Indemnitee.
Section 2. Definitions.
As used in this Agreement:
(a) “Change in Control” shall mean a change of control of the Company of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, whether or not the Company is, in fact, required to comply
therewith; provided that, without limitation, such a Change of Control for purposes of this
Agreement 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 the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a corporation owned,
directly or indirectly, by the shareholder of the Company in substantially the same
proportions as their ownership of stock of the Company is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 51% or more of the combined
voting power of the Company’s then outstanding securities;
(ii) the shareholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (A) a merger or consolidation
which 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 50% of the
combined voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction) in
which no “person” (as herein above defined) acquires 50% or more of the combined
voting power of the Company’s then outstanding securities; or
(iii) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company’s assets.
(b) “Corporate Status” describes the status of a person as a current or former
director of the Company or current or former director, manager, partner, officer, employee, agent
or trustee of any other Enterprise which such person is or was serving at the request of the
Company.
(c) “Enforcement Expenses” shall include all reasonable attorneys’ fees, court
costs, transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding
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costs, telephone charges, postage, delivery service fees, and all other out-of-pocket
disbursements or expenses of the types customarily incurred in connection with an action to enforce
indemnification or advancement rights, or an appeal from such action. Expenses, however, shall not
include fees, salaries, wages or benefits owed to Indemnitee.
(d) “Enterprise” shall mean any corporation (other than the Company), partnership,
joint venture, trust, employee benefit plan, limited liability company, or other legal entity of
which Indemnitee is or was serving at the request of the Company as a director, manager, partner,
officer, employee, agent or trustee.
(e) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(f) “Expenses” shall include all reasonable attorneys’ fees, court costs,
transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other out-of-pocket 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, or otherwise
participating in, a Proceeding or an appeal resulting from a Proceeding. Expenses, however, shall
not include amounts paid in settlement by Indemnitee, the amount of judgments or fines against
Indemnitee or fees, salaries, wages or benefits owed to Indemnitee.
(g) “Special Legal Counsel” shall mean a law firm, or a partner (or, if
applicable, member or shareholder) of such a law firm, that is experienced in matters of
Massachusetts corporation law and neither presently is, nor in the past has been, retained to
represent: (i) the Company, any subsidiary of the Company, any Enterprise or Indemnitee in any
matter material to any such party; or (ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the term “Special Legal 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. The Company agrees to pay the
reasonable fees and expenses of the Special Legal Counsel referred to above and to fully indemnify
such counsel against any and all expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
(h) The term “Proceeding” shall include any threatened, pending or completed
action, suit, alternate dispute resolution mechanism, or proceeding, whether brought in the right
of the Company or otherwise and whether of a civil, criminal, administrative, arbitrative or
investigative nature, and whether formal or informal, in which Indemnitee was, is or will be
involved as a party or otherwise, by reason of the fact that Indemnitee is or was a director of the
Company or is or was serving at the request of the Company as a director, manager, partner,
officer, employee, agent or trustee of any Enterprise or by reason of any action taken by
Indemnitee or of any action taken on his or her part while acting as a director of the Company or
while serving at the request of the Company as a director, manager, partner, officer, employee,
agent or trustee of any Enterprise, in each case whether or not serving in such capacity at the
time any liability or expense is incurred for which indemnification, reimbursement or
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advancement of expenses can be provided under this Agreement; provided,
however, that the term “Proceeding” shall not include any action, suit or arbitration, or
part thereof, initiated by Indemnitee to enforce Indemnitee’s rights under this Agreement as
provided for in Section 12(a) of this Agreement.
Section 3. Indemnity in Third-Party Proceedings. The Company shall indemnify
Indemnitee to the extent set forth in this Section 3 if Indemnitee is, or is threatened to be made,
a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified against all Expenses, judgments, fines, penalties, excise taxes, and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection
with such Proceeding or any claim, issue or matter therein, if (A) Indemnitee conducted himself or
herself in good faith and in a manner he or she reasonably believed to be in the best interests of
the Company or at least not opposed to the best interests of the Company, and, in the case of a
criminal proceeding, had no reasonable cause to believe that his or her conduct was unlawful, or
(B) Indemnitee engaged in conduct for which he or she shall not be liable under a provision of the
Charter as authorized by Section 2.02(b)(4) of the MBCA (or any successor provision). The conduct
of Indemnitee with respect to an employee benefit plan for a purpose Indemnitee reasonably believed
to be in the best interests of the participants in, and the beneficiaries of, the plan is conduct
that satisfies clause (A) of the preceding sentence.
Section 4. Indemnity in Proceedings by or in the Right of the Company. The
Company shall indemnify Indemnitee to the extent set forth in this Section 4 if Indemnitee is, or
is threatened to be made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified against all Expenses, judgments, fines, penalties, excise taxes, and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection
with such Proceeding or any claim, issue or matter therein, if (A) Indemnitee conducted himself in
good faith and in a manner he or she reasonably believed to be in the best interests of the Company
or at least not opposed to the best interests of the Company, or (B) Indemnitee engaged in conduct
for which he or she shall not be liable under a provision of the Charter as authorized by Section
2.02(b)(4) of the MBCA (or any successor provision). The conduct of Indemnitee with respect to an
employee benefit plan for a purpose Indemnitee reasonably believed to be in the best interests of
the participants in, and the beneficiaries of, the plan is conduct that satisfies clause (A) of the
preceding sentence.
Section 5. Indemnification for Expenses of a Party Who is Successful.
Notwithstanding any other provisions of this Agreement and except as provided in Section 7, to the
extent that Indemnitee is a party to or a participant in any Proceeding and is wholly successful,
on the merits or otherwise, in such Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or her in connection therewith. If in such
Proceeding Indemnitee 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 against
all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection
with each successfully resolved claim, issue or matter to the extent permitted by law. For
purposes of this Section 5 and without limitation, the termination of
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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.
Section 6. Reimbursement for Expenses of a Witness or in Response to a Subpoena.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee, by reason of
his or her Corporate Status, (i) is a witness in any Proceeding to which Indemnitee is not a party
and is not threatened to be made a party or (ii) receives a subpoena with respect to any Proceeding
to which Indemnitee is not a party and is not threatened to be made a party, the Company shall
reimburse Indemnitee for all Expenses actually and reasonably incurred by him or her or on his or
her behalf in connection therewith.
Section 7. Exclusions. Notwithstanding any provision in this Agreement to the
contrary, the Company shall not be obligated under this Agreement:
(a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement
is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such
amounts under any insurance policy, contract, agreement or otherwise;
(b) to indemnify for an accounting of profits made from the purchase and sale (or sale and
purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the
Exchange Act, or similar provisions of state statutory law or common law;
(c) to indemnify with respect to any Proceeding, or part thereof, brought by Indemnitee
against the Company, any legal entity which it controls, any director or officer thereof or any
third party, unless (i) the Board has consented to the initiation of such Proceeding or part
thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the
powers vested in the Company under applicable law; provided, however, that this
Section 7(c) shall not apply to (A) counterclaims or affirmative defenses asserted by Indemnitee in
an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or
advancement from the Company under this Agreement or under any directors’ and officers’ liability
insurance policies maintained by the Company in a suit for which indemnification or advancement is
being sought as described in Section 12; or
(d) to provide any indemnification or advancement of expenses that is prohibited by
applicable law (as such law exists at the time payment would otherwise be required pursuant to this
Agreement).
Section 8. Advancement of Expenses. Subject to Section 9(b), the Company shall
advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection
with any Proceeding, and such advancement shall be made within thirty (30) days after the receipt
by the Company of a statement or statements requesting such advances (which shall include invoices
received by Indemnitee in connection with such Expenses but, in the case of invoices in connection
with legal services, any references to legal work performed or to expenditures made that would
cause Indemnitee to waive any privilege accorded by applicable law need not be included with the
invoice) from time to time, whether prior to or after final disposition of any Proceeding.
Advances shall be unsecured and interest free. Advances shall be made without regard to
Indemnitee’s ability to repay the expenses and without regard to
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Indemnitee’s ultimate entitlement to indemnification under the other provisions of this
Agreement. Indemnitee shall qualify for advances upon the execution and delivery to the Company of
an undertaking in the form attached hereto as Exhibit A. The right to advances under this
paragraph shall in all events continue until final disposition of any Proceeding, including any
appeal therein. Nothing in this Section 8 shall limit Indemnitee’s right to advancement pursuant
to Section 12(e) of this Agreement.
Section 9. Procedure for Notification and Defense of Claim.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company
a written request therefor specifying the basis for the claim, the amounts for which Indemnitee is
seeking payment under this Agreement, and all documentation related thereto as reasonably requested
by the Company.
(b) In the event that the Company shall be obligated hereunder to provide indemnification
for or make any advancement of Expenses with respect to any Proceeding, the Company shall be
entitled to assume the defense of such Proceeding, or any claim, issue or matter therein, with
counsel approved by Indemnitee (which approval shall not be unreasonably withheld or delayed) upon
the delivery to Indemnitee of written notice of the Company’s election to do so. After delivery of
such notice, approval of such counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses
of separate counsel subsequently employed by or on behalf of Indemnitee with respect to the same
Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in
any such Proceeding at Indemnitee’s expense and (ii) if (A) the employment of separate counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and Indemnitee in the
conduct of such defense, or (C) the Company shall not continue to retain such counsel to defend
such Proceeding, then the reasonable fees and expenses actually and reasonably incurred by
Indemnitee with respect to his or her separate counsel shall be Expenses hereunder.
(c) In the event that the Company does not assume the defense in a Proceeding pursuant to
paragraph (b) above, then the Company will be entitled to participate in the Proceeding at its own
expense.
(d) The Company shall not be liable to indemnify Indemnitee under this Agreement for any
amounts paid in settlement of any Proceeding effected without its prior written consent (which
consent shall not be unreasonably withheld or delayed). The Company shall not, without the prior
written consent of Indemnitee (which consent shall not be unreasonably withheld or delayed), enter
into any settlement which (i) includes an admission of fault of Indemnitee, any non-monetary remedy
imposed on Indemnitee or any monetary damages for which Indemnitee is not wholly and actually
indemnified hereunder or (ii) with respect to any Proceeding with respect to which Indemnitee may
be or is made a party or may be otherwise entitled to seek indemnification hereunder, does not
include the full release of Indemnitee from all liability in respect of such Proceeding.
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Section 10. Procedure Upon Application for Indemnification.
(a) Upon written request by Indemnitee for indemnification pursuant to Section 9, a
determination, if such determination is required by applicable law, with respect to the
permissibility thereof shall be made in the specific case: (i) if a Change in Control shall have
occurred, by Special Legal Counsel in a written opinion to the Board, or (ii) if a Change in
Control shall not have occurred, by the Company in accordance with applicable law. In the case
that such determination is made by Special Legal Counsel, a copy of Special Legal Counsel’s written
opinion shall be delivered to Indemnitee and, if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within thirty (30) days after such
determination. Indemnitee shall cooperate with the Special Legal Counsel or the Company, as
applicable, in making such determination with respect to the permissibility of indemnification of
Indemnitee, including providing to such counsel or the Company, 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
out-of-pocket costs or expenses (including reasonable attorneys’ fees and disbursements) actually
and reasonably incurred by Indemnitee in so cooperating with the Special Legal Counsel or the
Company shall be borne by the Company (irrespective of the determination as to the permissibility
of indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(b) If the determination of permissibility of indemnification is to be made by Special
Legal Counsel pursuant to Section 10(a), the Special Legal Counsel shall be selected by the Company
in accordance with applicable law. The Indemnitee may, within ten (10) days after written notice
of such selection, deliver to the Company a written objection to such selection; provided,
however, that such objection may be asserted only on the ground that the Special Legal
Counsel so selected does not meet the requirements of “Special Legal Counsel” as defined in Section
2 of 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 Special Legal
Counsel. If such written objection is so made and substantiated, the Special Legal Counsel so
selected may not serve as Special Legal Counsel unless and until such objection is withdrawn or the
Massachusetts Court (as defined in Section 22) has determined that such objection is without merit.
If, within twenty (20) days after the later of (i) submission by Indemnitee of a written request
for indemnification pursuant to Section 9(a), and (ii) the final disposition of the Proceeding,
including any appeal therein, no Special Legal Counsel shall have been selected without objection,
Indemnitee may petition the Massachusetts Court for resolution of any objection which shall have
been made by Indemnitee to the selection of Special Legal Counsel and/or for the appointment as
Special Legal Counsel of a person selected by the court or by such other person as the court shall
designate. The person with respect to whom all objections are so resolved or the person so
appointed shall act as Special Legal Counsel under Section 10(a) hereof. Upon the due commencement
of any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, Special
Legal Counsel shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).
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Section 11. Presumptions and Effect of Certain Proceedings.
(a) To the extent permitted by applicable law, in making a determination with respect to
the permissibility of indemnification hereunder, it shall be presumed that Indemnitee is entitled
to indemnification under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof
to overcome that presumption in connection with the making of any determination contrary to that
presumption. Neither (i) the failure of the Company or of Special Legal Counsel to have made a
determination prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor (ii) an actual determination by the Company or by Special Legal Counsel that
Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) 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 meet the applicable standard of conduct for indemnification under this Agreement.
(c) The knowledge and/or actions, or failure to act, of any director, manager, partner,
officer, employee, agent or trustee of the Company, any subsidiary of the Company, or any
Enterprise shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
Section 12. Remedies of Indemnitee.
(a) Subject to Section 12(f), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made pursuant to Section
10(a) of this Agreement within sixty (60) days after receipt by the Company of the request for
indemnification for which a determination of permissibility thereof is to be made other than by
Special Legal Counsel, (iv) payment of indemnification or reimbursement of expenses is not made
pursuant to Section 5 or 6 or the last sentence of Section 10(a) of this Agreement within thirty
(30) days after receipt by the Company of a written request therefor (which shall include any
invoices received by Indemnitee but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditures made that would cause Indemnitee to waive any
privilege accorded by applicable law need not be included with the invoice) or (v) payment of
indemnification pursuant to Section 3 or 4 of this Agreement is not made within thirty (30) days
after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee
shall be entitled to an adjudication by the Massachusetts Court of his or her entitlement to such
indemnification or advancement. Alternatively, Indemnitee, at his or her option, may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration 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
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commence such proceeding pursuant to this Section 12(a); provided, however,
that the foregoing time limitation shall not apply in respect of a proceeding brought by Indemnitee
to enforce his or her rights under Section 5 of this Agreement. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 10(a) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 12 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 judicial proceeding or arbitration commenced pursuant to this
Section 12, the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement, as the case may be.
(c) If a determination shall have been made pursuant to Section 10(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 12, 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.
(d) The Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 12 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 the provisions of this Agreement.
(e) The Company shall indemnify Indemnitee to the fullest extent permitted by law against
any and all Enforcement Expenses and, if requested by Indemnitee, shall (within thirty (30) days
after receipt by the Company of a written request therefor) advance, to the extent not prohibited
by law, such Enforcement Expenses to Indemnitee, which are incurred by Indemnitee in connection
with any action brought by Indemnitee for indemnification or advancement from the Company under
this Agreement or under any directors’ and officers’ liability insurance policies maintained by the
Company in the suit for which indemnification or advancement is being sought. Such written request
for advancement shall include invoices received by Indemnitee in connection with such Enforcement
Expenses but, in the case of invoices in connection with legal services, any references to legal
work performed or to expenditures made that would cause Indemnitee to waive any privilege accorded
by applicable law need not be included with the invoice.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding, including any appeal therein.
Section 13. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement 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 Charter, the Bylaws, any agreement, a vote of
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shareholders or a resolution of directors, or otherwise. No amendment, alteration or repeal
of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate
Status prior to such amendment, alteration or repeal. To the extent that a change in Massachusetts
law, whether by statute or judicial decision, permits greater indemnification or advancement than
would be afforded currently under the Charter, Bylaws and this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change. No right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
(b) The Company shall purchase and maintain a policy or policies of liability insurance
(“D&O Insurance”) on behalf of Indemnitee who is or was or has agreed to serve at the
request of the Company as a director of the Company, against any liability asserted against, and
incurred by, Indemnitee or on Indemnitee’s behalf in such capacity, or arising out of Indemnitee’s
status as such; provided that such D&O Insurance is available on commercially reasonable
terms, conditions and premiums. If the Company has such insurance in effect at the time the
Company receives from Indemnitee any written notice of the commencement of a proceeding, the
Company shall give notice as soon as practicable of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the policy. The Company shall thereafter
take all commercially reasonable actions to cause such insurers to pay, on behalf of Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms and conditions of
such policy. In case of a “change in control” as defined in the then existing D&O Insurance, the
Company shall purchase extended reporting period D&O Insurance (“Tail Coverage”) for the
benefit of Indemnitee with terms and conditions equivalent to the then existing D&O Insurance. The
Tail Coverage shall be for a period no less than three (3) years.
(c) 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 (including, without limitation, under
any insurance policy) 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. The Company shall pay or reimburse all expenses
actually and reasonably incurred by Indemnitee in connection with such subrogation.
(d) The Company’s obligation to provide indemnification or advancement hereunder to
Indemnitee who is or was serving at the request of the Company as a director, manager, partner,
officer, employee, agent or trustee of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement from such other Enterprise.
Section 14. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to
serve as a director of the Company or (b) one (1) year after the final termination of any
Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights
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of indemnification or advancement hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 12 of this Agreement relating thereto. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his or
her heirs, executors and administrators. 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.
Section 15. 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, each portion of any section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the fullest extent
permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary
to conform to applicable law and to give the maximum effect to the intent of the parties hereto;
and (c) to the fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.
Section 16. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve, or continue to
serve, as a director of the Company, and the Company acknowledges that Indemnitee is relying upon
this Agreement in serving as a director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and understandings, oral,
written and implied, between the parties hereto with respect to the subject matter hereof;
provided, however, that this Agreement is a supplement to and in furtherance of the
Charter, the Bylaws and applicable law, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder.
Section 17. Modification and Waiver. No supplement, modification or amendment, or
waiver of any provision, of this Agreement shall be binding unless executed in writing by the
parties thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a
continuing waiver. No supplement, modification or amendment of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any
action taken or omitted by such Indemnitee prior to such supplement, modification or amendment.
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Section 18. Notice by Indemnitee. 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 which may be subject to
indemnification, reimbursement or advancement as provided hereunder. The failure of Indemnitee to
so notify the Company shall not relieve the Company of any obligation which it may have to
Indemnitee under this Agreement or otherwise.
Section 19. Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other communication shall
have been directed, (ii) mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed, (iii) mailed by reputable overnight courier
and receipted for by the party to whom said notice or other communication shall have been directed
or (iv) sent by facsimile transmission, with receipt of oral confirmation that such transmission
has been received:
(a) If to Indemnitee, at such address as Indemnitee shall provide to the Company.
(b) If to the Company to:
Haemonetics Corporation
000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or to any other address as may have been furnished to Indemnitee by the Company.
Section 20. Contribution. To the fullest extent permissible under applicable law,
if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to
be paid in settlement and/or for Expenses, in connection with any Proceeding in such proportion as
is deemed fair and reasonable in light of all of the circumstances in order to reflect (i) the
relative benefits received by the Company and Indemnitee in connection with the event(s) and/or
transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and
its directors, officers, employees and agents) and Indemnitee in connection with such event(s)
and/or transactions.
Section 21. Internal Revenue Code Section 409A. The Company intends for this
Agreement to comply with the Indemnification exception under Section 1.409A-1(b)(10) of the
regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”),
which provides that indemnification of, or the purchase of an insurance policy providing for
payments of, all or part of the expenses incurred or damages paid or payable by Indemnitee with
respect to a bona fide claim against Indemnitee or the Company do not provide for a deferral of
compensation, subject to Section 409A of the Code, where such claim is based on actions or
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failures to act by Indemnitee in his capacity as a service provider of the Company. The
parties intend that this Agreement be interpreted and construed with such intent.
Section 22. Applicable Law and Consent to Jurisdiction. This Agreement and the
legal relations among the parties shall be governed by, and construed and enforced in accordance
with, the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws rules.
Except with respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of this
Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement shall be brought only in
the Massachusetts Superior Court and, to the extent available, the Business Litigation
Session (or any successor session) thereof (the “Massachusetts Court”), and not in any
other state or federal court in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Massachusetts Court for purposes of any
action or proceeding arising out of or in connection with this Agreement, (iii) consent to service
of process at the address set forth in Section 19 of this Agreement with the same legal force and
validity as if served upon such party personally within the Commonwealth of Massachusetts, (iv)
waive any objection to the laying of venue of any such action or proceeding in the Massachusetts
Court, and (v) waive, and agree not to plead or to make, any claim that any such action or
proceeding brought in the Massachusetts Court has been brought in an improper or inconvenient
forum.
Section 23. Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this Agreement or to
affect the construction thereof.
Section 24. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| HAEMONETICS CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [Name of Indemnitee] | ||||
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Exhibit A
Form of Undertaking
[Date]
[Name and address of the Company]
Re: Request for Advancement of Expenses
Ladies and Gentlemen:
Reference is made to the Indemnification Agreement (the “Agreement”) by and between
________________ (the “Company”) and the undersigned, ________ (“Indemnitee”).
Capitalized terms not defined herein shall have those meanings as set forth in the Agreement.
Pursuant to Section 8 of the Agreement, Indemnitee hereby requests advancement of Expenses incurred
as a result of Indemnitee being, or being threatened to be made, a party in the following
Proceeding(s): ______________________.
In accordance with Section 8 of the Agreement, Indemnitee hereby:
| (1) | affirms [his/her] good faith belief that [he/she] has met the relevant standard of conduct described in Section 8.51 of the Massachusetts Business Corporation Act (“MBCA”) or the Proceeding involves conduct for which liability has been eliminated under a provision of the Company’s articles of organization as authorized by Section 2.02(b)(4) of the MBCA; and |
| (2) | undertakes to repay the advancement of Expenses if [he/she] is not entitled to mandatory indemnification under Section 8.52 of the MBCA and it is ultimately determined that [he/she] has not met the relevant standard of conduct described in Section 8.51 of the MBCA. |
Very truly yours,
___________, Indemnitee
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