EXHIBIT 10.27
INDEMNIFICATION AGREEMENT
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This INDEMNIFICATION AGREEMENT is made as of June __, 2000, between
Regeneration Technologies, Inc., a Delaware corporation (the "Company"), and
______________ (collectively with such person's heirs, executors, administrators
and other personal representatives, the "Indemnitee"), an officer or director of
the Company.
WHEREAS, the Board of Directors has concluded that Company's officers,
directors, employees and agents should be provided with reasonable and
appropriate protection against inordinate risks in order to insure that the most
capable persons will be attracted to such positions; and, therefore, has
determined to contractually obligate itself to indemnify in a reasonable and
adequate manner its officers and directors, and to assume for itself liability
for expenses and damages in connection with claims lodged against such persons
as a result of their service to the Company;
WHEREAS, applicable law empowers corporations to indemnify a person who
serves as a director, officer, employee or agent of a corporation or a person
who serves at the request of a corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise; and
WHEREAS, the parties believe it appropriate to memorialize and reaffirm the
Company's indemnification obligations to Indemnitee and, in addition, to set
forth the agreements contained herein.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties agree as follows:
1. INDEMNIFICATION. Indemnitee shall be indemnified and held harmless by
the Company against any judgments, penalties, fines, amounts paid in settlement
and Expenses (as hereinafter defined) incurred in connection with any actual or
threatened Proceeding (as hereinafter defined) to the fullest extent permitted
by the Company's Certificate of Incorporation (the "Certificate"), By-Laws and
the General Corporation Law of the State of Delaware ("Delaware Law") as in
effect on the date hereof and to such greater extent as Delaware Law may
hereafter from time to time permit. In addition, the Company agrees to advance
to Indemnitee Expenses incurred in connection with the foregoing. "Proceeding"
includes, without limitation, any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other actual,
threatened or contemplated proceeding, whether civil, criminal, administrative
or investigative, whether by a third party, by or in the right of the Company or
by Indemnitee to enforce any rights under this Agreement or otherwise against
the Company or its affiliates.
2. INTERIM EXPENSES. Expenses (including attorneys' fees) incurred by
Indemnitee in defending any civil, criminal, administrative, or investigative
action, suit or proceeding for which
Indemnitee may be entitled to indemnification hereunder shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of Indemnitee to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Company hereunder. "Expenses" means all attorneys' fees and
expenses, retainers, court costs, transcript costs, duplicating costs, fees of
experts, fees of witnesses, travel expenses, printing and binding costs,
telephone charges, postage and delivery fees, service fees, all other costs and
expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating or being or preparing
to be a witness in a Proceeding, and per diem payments to Indemnitee in an
amount equal to the last annual salary payable under any employment agreement
between the Company and Indemnitee divided by 365 for each day spent by
Indemnitee in connection with prosecuting, defending, preparing to prosecute or
defend, investigating or being or preparing to be a witness in a Proceeding.
3. EXCEPTIONS TO INDEMNIFICATIONS. Notwithstanding the foregoing, no
indemnity pursuant to Sections 1 or 2 shall be paid by the Company:
(a) on account of any suit in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(b) on account of Indemnitee's conduct which is finally adjudged to
have been knowingly fraudulent or deliberately dishonest, or to constitute
willful misconduct;
(c) on account of Indemnitee's conduct which is finally adjudged to
have constituted a breach of Indemnitee's duty of loyalty to the Company or
resulted in any personal profit or advantage to which Indemnitee was not legally
entitled;
(d) for which payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable indemnity clause,
bylaw or agreement, except in respect of any excess beyond payment under such
insurance, clause, bylaw or agreements;
(e) if a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful; or
(f) in connection with any proceeding (or part thereof) initiated by
Indemnitee, or any proceeding by Indemnitee against the Company or its
directors, officers, employees or other indemnitees, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of the Company, (iii) such indemnification
is provided by the Company, in its sole discretion, pursuant to the powers
vested in the Company under applicable law, or (iv) the proceeding is initiated
pursuant to Section 4 hereof.
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4. FAILURE TO INDEMNIFY. (a) If a claim under this Agreement, under any
statute, or under any provision of the Certificate or By-Laws providing for
indemnification, is not paid in full by the Company within 45 days after a
written request for payment thereof has first been received by the Company,
Indemnitee may, but need not, at any time thereafter bring an action against the
Company to recover the unpaid amount of the claim and, if successful in whole or
in part, Indemnitee shall also be entitled to be paid for Indemnitee's
reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with successfully establishing the right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Company.
(b) It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that Indemnitee has not met the
standards of conduct which make it permissible under the General Corporation Law
of the State of Delaware for the Company to indemnify Indemnitee for the amount
claimed, but the burden of proving such defense shall be on the Company and
Indemnitee shall be entitled to receive interim payments of Interim Expenses
pursuant to Paragraph 2 unless and until such defense may be finally adjudicated
by court order or judgment from which no further right of appeal exists.
5. CERTAIN AGREEMENTS OF INDEMNITEE.
(i) Indemnitee agrees to do all things reasonably requested by the Board of
Directors of the Company to enable the Company to coordinate Indemnitee's
defense with, if applicable, the Company's defense, provided, however, that
Indemnitee shall not be required to take any action that would in any way
prejudice his or her defense or waive any defense or position available to him
or her in connection with any action;
(ii) Indemnitee agrees to do all things reasonably requested by the Board
of Directors of the Company to subrogate to the Company any rights of recovery
(including rights to insurance or indemnification from persons other than the
Company) which Indemnitee may have with respect to any action;
(iii) Indemnitee agrees to be represented in any action by a law firm
mutually acceptable to the Company and Indemnitee; and
(iv) Indemnitee agrees to cooperate with the Company and its counsel and
maintain any confidences revealed to him or her by the Company in connection
with the Company's defense of any action. The Company agrees to cooperate with
Indemnitee and his or her counsel and maintain any confidences revealed to it by
Indemnitee in connection with Indemnitee's defense of any action.
6. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors, assigns, heirs
and legal representatives of the parties hereto.
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7. CONTRACT RIGHTS NOT EXCLUSIVE. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other right which
Indemnitee may have or may hereafter acquire under any statute, provision of the
Certificate or By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
8. INDEMNITEE'S OBLIGATIONS. Indemnitee shall advise the Company in writing
of the institution of any investigation, claim, action, suit, or proceeding
which is or may be subject to this Agreement and generally keep the Company
informed of, and consult with the Company with respect to, the status of any
such investigation, claim action, suit or proceeding.
9. SEVERABILITY. Should any provision or paragraph of this Agreement, or
any clause hereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions, paragraphs and clauses of this Agreement
shall remain fully enforceable and binding on the parties.
10. CHOICE OF LAW. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Delaware.
11. CONTINUATION OF INDEMNIFICATION. The indemnification under this
Agreement shall continue as to Indemnitee even though he or she may have ceased
to be a director, officer, employee and/or agent of the Company and shall inure
to the benefit of the heirs and personal representatives of Indemnitee. The
Company acknowledges that, in providing services to it, Indemnitee is relying on
this Agreement. Accordingly, the Company agrees that its obligations hereunder
will survive (i) any actual or purported termination of this Agreement by the
Company or its successors or assigns whether by operation of law or otherwise,
(ii) any change in the Certificate or By-Laws and (iii) termination of the
Indemnitee's services to the Company (whether such services were terminated by
the Company or the Indemnitee), whether or not a claim is made or an action or
Proceeding is threatened or commenced before or after the actual or purported
termination of this Agreement, change in the Certificate or By-Laws or
termination of Indemnitee's services.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
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Name:
REGENERATION TECHNOLOGIES, INC.
By:
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Name:
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Title:
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