EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("AGREEMENT") is made effective as of
the ____ day of _________, 2003 by and between XXXXXXX CARDIOLOGY SYSTEMS, INC.,
a Delaware corporation (the "COMPANY"), and ______________ ("INDEMNITEE").
RECITALS
A. The Company and Indemnitee recognize the continuing difficulty
in obtaining directors' and officers' liability insurance, the increases in the
cost of such insurance and the general reductions in the coverage of such
insurance.
B. The Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting officers and directors
to expensive litigation risks at the same time as the availability and coverage
of liability insurance has been limited.
C. To attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve as officers and directors of the
Company and to indemnify its officers and directors so as to provide them with
the maximum protection permitted by law, the Company and Indemnitee now agree
that they should enter into this Indemnification Agreement.
AGREEMENT
1. Indemnification.
(a) Third Party Proceedings. The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that Indemnitee shall be, is or
was, or shall have been, a director, officer, employee or agent of the Company,
or any subsidiary of the Company or by reason of the fact that Indemnitee shall
serve, is or was serving, or shall have served, at the request of the Company as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with such
action, suit or proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action, suit or proceeding, had
no reasonable cause to believe Indemnitee's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action,
suit or proceeding, that Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
(b) Proceedings By or in the Right of the Company. The
Company shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Company or any subsidiary of the Company to
procure a judgment in its favor by reason of the fact that Indemnitee shall be,
is or was, or shall have been, a director, officer, employee or agent of the
Company, or any subsidiary of the Company or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees) and, to
the fullest extent permitted by law, amounts paid in settlement (if such
settlement is approved in advance by the Company, such approval not to be
unreasonably withheld or delayed), in each case to the extent actually and
reasonably incurred by Indemnitee in connection with the defense or settlement
of such action or suit if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company and its stockholders, except that no indemnification shall be made
in respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company in the performance of Indemnitee's duty to
the Company and its stockholders unless and only to the extent that the court in
which such action or suit is or was pending shall determine upon application
that, in view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for expenses (including attorneys' fees) which
such court shall deem proper.
(c) Mandatory Payment of Expenses. To the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1(a) or Section 1(b) or the
defense of any claim, issue or matter therein, Indemnitee shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
Indemnitee in connection therewith.
(d) Other Payment of Expenses. Other than for
indemnification of expenses by the Company pursuant to Section 1(c) or otherwise
ordered by a court of law, Indemnitee shall be indemnified by the Company
against expenses (including attorneys' fees) actually and reasonably incurred by
Indemnitee only if authorized in a specific case upon a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct set forth in Section 1(a) or Section
1(b), as applicable, which determination shall be made by one of the following
methods (as chosen by the Company): (i) by a majority vote of the directors who
are not parties to the applicable action, suit or proceeding ("DISINTERESTED
DIRECTORS"), even though less than a quorum may have been present, or by a
committee of Disinterested Directors appointed thereby, (ii) by Independent
Legal Counsel (as such term is defined below), reasonably acceptable to
Indemnitee and the Company, in a written opinion applying the applicable
standard of conduct set forth in Section 1(a) or Section 1(b), as applicable, or
(iii) by the stockholders of the Company applying the applicable standard of
conduct set forth in Section 1(a) or Section 1(b), as applicable; provided,
that, in any case, all requirements of applicable law have been met. For
purposes of this Section 1(d), "INDEPENDENT LEGAL COUNSEL" shall mean a law
firm, or a member of a law firm, that is experienced in matters of corporate law
and neither presently is, nor in the past five years has been, retained to
represent: (A) the Company or Indemnitee in any matter (other than jointly with
respect to the rights of
Indemnitee under this Agreement or other indemnities, under similar indemnity
agreements); or (B) any other party to the action, suit or proceeding giving
rise to a claim for indemnification hereunder; provided, however, Independent
Legal Counsel shall not include any firm or 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.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance
all expenses (including attorneys' fees), incurred by Indemnitee in connection
with the investigation, defense, settlement or appeal of any civil or criminal
action, suit or proceeding referenced in Section l(a) or Section 1(b) hereof
(including amounts actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that Indemnitee is
not entitled to be indemnified by the Company as authorized hereby. The advances
to be made hereunder shall be paid promptly by the Company to Indemnitee
following delivery of a written request therefor by Indemnitee to the Company
which request provides documentation supporting such advances.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall,
as a condition precedent to the 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. Notice to the Company shall be directed to the Chief Executive
Officer of the Company at the address shown on the signature page of this
Agreement (or such other address as the Company shall designate in writing to
Indemnitee). Omission of such Notice does not relieve the Company from any
obligation that it may have to Indemnitee under this Agreement or otherwise
unless and only to the extent that such omission can be shown to have prejudiced
the Company. Notice shall be deemed received three business days after the date
postmarked if sent by domestic certified or registered mail, properly addressed;
otherwise notice shall be deemed received when such notice shall actually be
received by the Company. In addition, Indemnitee shall give the Company such
information and cooperation as the Company may reasonably require and as shall
be within Indemnitee's power.
(c) Procedure.
(i) Any indemnification and advances provided
for in Section 1 and/or Section 2, shall be made as soon as practicable, but in
no event no later than forty-five (45) days after receipt of the written request
of Indemnitee. If a claim under this Agreement, under any statute, or under any
provision of the Company's Certificate of Incorporation or Bylaws, as such are
amended from time to time, providing for indemnification, is not paid in full by
the Company within forty-five (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 (an "ENFORCEMENT ACTION") and, subject to Section 12 of this
Agreement, Indemnitee shall also be entitled to be paid for the expenses
(including attorneys' fees) of bringing an Enforcement Action. It shall be a
defense to any such Enforcement Action (other than an action brought to enforce
a claim for expenses (including attorneys' fees) 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 applicable law 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 expenses (including
attorneys' fees) pursuant to Section 2(a) unless and until such defense may be
finally adjudicated by court order or judgment from which no further right of
appeal exists. It is the parties' intention that if the Company contests
Indemnitee's right to indemnification, the question of Indemnitee's right to
indemnification shall be for the court to decide, and neither the failure of the
Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, Independent Legal Counsel or its stockholders) to have made
a determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, Independent Legal Counsel or its stockholders) that Indemnitee has
not met such applicable standard of conduct, shall be a defense to an
Enforcement Action or create a presumption that Indemnitee has or has not met
the applicable standard of conduct. In addition, in an Enforcement Action, the
Company shall conclusively be presumed to have entered into this Agreement and
assumed the obligations imposed on it to induce Indemnitee to accept the
position of, or to continue as a director and/or officer of, the Company.
(ii) During the interval between the Company's
receipt of such a request under paragraph (b) of this Section 2, and the later
to occur of (x) payment in full to Indemnitee of the indemnification or advances
required by Section 1 and Section 2 or (y) a determination (if required)
pursuant to this Agreement and applicable law that Indemnitee is not entitled to
indemnification hereunder, the Company shall take all necessary steps (whether
or not such steps require expenditures to be made by the Company at that time),
to stay (pending a final determination of Indemnitee's entitlement to
indemnification and, if Indemnitee is so entitled, the payment thereof) the
execution, enforcement or collection of any judgments, penalties, fines or any
other amounts for which Indemnitee may be liable (and as to which Indemnitee has
requested indemnification hereunder) in order to avoid Indemnitee being or
becoming in default with respect to any such amounts (such necessary steps to
include, but not be limited to, the procurement of a surety bond to achieve such
stay or a loan to Indemnitee of amounts for which Indemnitee may be liable and
as to which a stay of execution as aforesaid cannot be obtained), promptly after
receipt of Indemnitee's written request therefor together with a written
undertaking by Indemnitee to repay promptly following receipt of a statement
therefor from the Company, amounts (if any) expended by the Company for such
purpose, if it is ultimately determined (if such determination is required) that
Indemnitee is not entitled to be indemnified against such judgments, penalties,
fines or other amounts.
(d) Notice to Insurers. If, at the time of the receipt of
a notice of a claim pursuant to Section 2(b) hereof, the Company has director
and officer liability insurance in effect, the Company shall give prompt notice
of the commencement of such action, suit or proceeding 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 Indemnitee, all amounts payable as a result of such action,
suit or proceeding in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall
be obligated under Section 2(a) hereof to pay the expenses (including attorneys'
fees) of any action, suit or
proceeding against Indemnitee, the Company, if appropriate, shall be entitled to
assume the defense of such action, suit or proceeding, with counsel approved by
Indemnitee, upon the delivery to Indemnitee of written notice of its election so
to do. 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 of counsel subsequently incurred by
Indemnitee with respect to the same action, suit or proceeding, provided that
(i) Indemnitee shall have the right to employ counsel in any such action suit or
proceeding at Indemnitee's expense; and (ii) if (A) the employment of 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 any such defense, (C) the Company shall
not, in fact, have employed counsel to assume the defense of such action, suit
or proceeding or (D) the Company is not financially or legally able to perform
its indemnification obligations, then the fees and expenses of Indemnitee's
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any claim, action, suit or proceeding brought
by or on behalf of the Company against Indemnitee or as to which Indemnitee
shall have made the conclusion provided for in (ii) (B) or (D) above.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the Company's
Certificate of Incorporation or Bylaws, as such are amended from time to time,
or by statute. In the event of any change, after the date of this Agreement, in
any applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer, such
changes, 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. In the event of any change, after the date of
this Agreement, in any applicable law, statute, or rule which expands the right
of a Delaware corporation to indemnify a member of its board of directors or an
officer, it is the intent of the parties hereto that Indemnitee shall, without
the necessity of amending this Agreement, be entitled to the full benefit of
such expanded indemnification rights. Indemnitee's rights under this Agreement
are contractual rights which may not be diminished, modified or restricted by
any subsequent change in the Company's Certificate of Incorporation, Bylaws or
corporate policies, as such are amended from time to time.
(b) Nonexclusivity. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which Indemnitee may be
entitled under the Company's Certificate of Incorporation, or Bylaws, as such
may be amended from time to time, any agreement, any vote of stockholders or
disinterested Directors, the Corporation Law of the State of Delaware, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in another capacity while holding such office. The indemnification provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity even though Indemnitee may have
ceased to serve in such capacity at the time of any action, suit or other
covered proceeding.
4. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses (including
attorneys' fees), judgments, fines or penalties actually or reasonably incurred
in the investigation, defense, appeal or settlement of any civil, criminal,
administrative or investigative action, suit or proceeding, but not, however,
for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such expenses (including attorneys' fees),
judgments, fines or penalties to which Indemnitee is entitled.
5. Mutual Acknowledgement. Both the Company and Indemnitee
acknowledge that in certain instances, federal law or public policy may override
applicable state law and prohibit the Company from indemnifying Indemnitee under
this Agreement or otherwise. For example, the Company and Indemnitee acknowledge
that the Securities and Exchange Commission (the "SEC") has taken the position
that indemnification is not permissible for liabilities arising under certain
federal securities laws, and federal legislation prohibits indemnification for
certain ERISA violations. Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with the
SEC to submit the question of indemnification to a court in certain
circumstances for a determination of the Company's right under public policy to
indemnify Indemnitee.
6. Officer and Director Liability Insurance.
(a) The Company shall, from time to time, make the good
faith determination whether or not it is practicable for the Company to obtain
and maintain a policy or policies of insurance with reputable insurance carriers
to provide the officers and directors of the Company with coverage for losses
caused by wrongful acts, or to ensure the Company's ability to perform its
indemnification obligations under this Agreement. Among other considerations,
the Company will weigh the costs of obtaining such insurance coverage against
the protection afforded by such coverage. In all policies of director and
officer liability insurance, Indemnitee, so long as he or she is a director or
officer of the Company, shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company's directors, if Indemnitee is a director; or of
the Company's officers, if Indemnitee is not a director of the Company but is an
officer. Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain such insurance if the Company determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit or if Indemnitee is covered by similar insurance maintained
by a subsidiary or parent of the Company.
7. Severability. Nothing in this Agreement is intended to require
or shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 7. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
8. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or
advance expenses (including attorneys' fees) to Indemnitee with respect to
actions, suits, proceedings or claims initiated or brought voluntarily by
Indemnitee and not by way of defense, except with respect to actions, suits or
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 145 of the General Corporation Law of the State of Delaware, but such
indemnification or advancement of expenses (including attorneys' fees) may be
provided by the Company in specific cases if the Board of Directors has approved
the initiation or bringing of such suit;
(b) Lack of Good Faith. To indemnify Indemnitee for any
expenses (including attorneys' fees) incurred by Indemnitee with respect to any
action, suit or 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 Indemnitee in such action, suit or proceeding was
not made in good faith or was frivolous;
(c) Insured Claims. To indemnify Indemnitee for expenses
or liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) which
have been paid directly to Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the Company or by
plaintiff;
(d) Claims Under Section 16(b). To indemnify Indemnitee
for expenses (including attorneys' fees) or the payment of profits arising from
the purchase and sale by Indemnitee of securities in violation of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or any similar successor
statute; or
(e) Settlement. To indemnify Indemnitee for any amounts
paid in settlement of any claim, action, suit or proceeding effected without the
written consent of the Company; provided, however, the Company shall not settle
any claim, action, suit or proceeding in any manner which would impose any
penalty or limitation on Indemnitee without the written consent of Indemnitee;
provided further, that neither the Company nor Indemnitee shall unreasonably
withhold written consent to any proposed settlement.
9. No Employment Rights. Nothing contained in this Agreement is
intended to create in Indemnitee any right to continued employment.
10. Construction of Certain Phrases.
(a) 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 which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that if Indemnitee is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and references to "serving at the request of the Company" shall
include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, 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.
11. Counterparts. This Agreement, and any modification, amendment
or waiver of this Agreement, may be executed in one or more counterparts, each
of which shall constitute an original.
12. Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
13. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement or to enforce
or interpret any of the terms of this Agreement, Indemnitee shall be entitled to
be paid all court costs and expenses, including attorneys' fees, incurred by
Indemnitee in defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
14. Notice. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed duly
given (i) if delivered by hand and receipted for by the party addressee, on the
date of such receipt, or (ii) if mailed by domestic certified or registered mail
with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of this
Agreement, or as subsequently modified by written notice.
15. Choice of Law. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the State of Delaware,
without giving effect to principles of conflict of law.
16. Modification. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. All prior
negotiations, agreements and understandings between the parties with respect
thereto are superseded hereby. This Agreement may not be modified or amended
except by an instrument in writing signed by or on behalf of the parties hereto.
17. 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
to effectively bring suit to enforce such rights.
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
XXXXXXX CARDIOLOGY SYSTEMS, INC.
By: ____________________________
Name: __________________________
Title:__________________________
Address: 0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: President
AGREED TO AND ACCEPTED BY
INDEMNITEE:
________________________
(signature)
________________________
________________________
(address)
