INDEMNIFICATION AGREEMENT
Exhibit 10.65
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of
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, 2008, between MIMEDX GROUP, INC., a Florida corporation (the “Company”), and
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(“Indemnitee”).
WITNESSETH:
WHEREAS, it is essential to the Company that it be able to retain and attract as officers and
directors the most capable persons available;
WHEREAS, increased corporate litigation has subjected officers and directors to litigation
risks and expenses, and the limitations on the availability of directors and officers liability
insurance have made it increasingly difficult for companies to attract and retain such persons;
WHEREAS, the Company desires to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against litigation risks and expenses (regardless,
among other things, of any amendment to the Company’s Articles of Incorporation or revocation of
any provision of the Company’s Bylaws or any change in the ownership of the Company or the
composition of its Board of Directors);
WHEREAS, Indemnitee is relying upon the rights afforded under this Agreement in accepting or
continuing to serve Indemnitee’s position as an officer or director of the Company; and
WHEREAS, capitalized terms used herein and not otherwise defined shall the meaning ascribed to
them in Section 14 hereof.
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as an officer or director,
the parties hereto agree as follows:
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the fullest extent permitted by law. In furtherance of the foregoing
indemnification, and without limiting the generality thereof, the Company agrees as follows:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a) if, by
reason of his Corporate Status, the Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding other than a Proceeding by or in the right of the Company. Pursuant
to this Section 1(a), Indemnitee shall be indemnified against all Expenses and Liabilities
incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter
therein, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed
to be in, or not opposed to, the best interests of the Company, and with respect to any criminal
Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful. The
termination of any Proceeding by judgment, order, settlement, or conviction
or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption
that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be
in, or not opposed to, the best interests of the Company or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to
the rights of indemnification provided in this Section 1(b) if, by reason of his Corporate
Status, the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding
brought by or in the right of the Company. Pursuant to this Section 1(b), Indemnitee shall
be indemnified against all Expenses and amounts paid in settlement not exceeding, in the judgment
of the Board of Directors, the estimated expense of litigating the Proceeding to conclusion,
actually and reasonably incurred in connection with the defense or settlement of such Proceeding,
including any appeal thereof, if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Company; provided,
however, if applicable law so provides, no indemnification shall be made under this subsection in
respect of any Proceeding as to which the Indemnitee shall have been adjudged to be liable unless,
and only to the extent that, the court in which such Proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses which such court shall deem proper.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason
of his Corporate Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, he shall be indemnified against all Expenses and Liabilities incurred by him or on his
behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but 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 incurred by
him or on his behalf in connection with each successfully resolved claim, issue or matter. For
purposes of this Section and without limitation, the termination of 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. All determinations regarding the allocation of Expenses
incurred in connection with each successfully resolved claim, issue or matter under this
Section 1(c) shall be made in accordance with Section 6(b) of this Agreement.
2. Settlement of Claims. The Company shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any Proceeding effected without the
Company’s written consent. The Company shall not settle any Proceeding in any manner that would
impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the
Company nor Indemnitee will unreasonably withhold their consent to any proposed settlement. The
Company shall not be liable to indemnify Indemnitee under this Agreement with regard to any
judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action.
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3. Contribution.
(a) Whether or not the indemnification provided in Sections 1 and 2 hereof is
available, in respect of any threatened, pending or completed Proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay,
in the first instance, the entire amount of any judgment or settlement of such Proceeding without
requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes
any right of contribution it may have against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding
subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion
of any judgment or settlement in any threatened, pending or completed Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company
shall contribute to the amount of expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in
proportion to the relative benefits received by the Company and all officers, directors or
employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would
be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the
facts, claims, acts, or omissions from which such Proceeding arose; provided, however, that the
proportion determined on the basis of relative benefit may, to the extent necessary to conform to
law, be further adjusted by reference to the relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee
(or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, in
connection with the events that resulted in such expenses, judgments, fines or settlement amounts,
as well as any other equitable considerations which applicable law may require to be considered.
The relative fault of the Company and all officers, directors or employees of the Company, other
than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding),
on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among
other things, the degree to which their actions were motivated by intent to gain personal profit or
advantage, the degree to which their liability is primary or secondary and the degree to which
their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution which may be brought by officers, directors or employees of the Company, other than
Indemnitee, who may be jointly liable with Indemnitee in a Proceeding in which Indemnitee is a
party due to his Corporate Status.
(d) 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 claim relating to an indemnifiable event under this Agreement, in
such proportion as is deemed fair and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as
a result of the event(s) and/or transaction(s) giving cause 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 transaction(s).
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(e) All determinations regarding relative fault, relative benefits, and any payments to be
made under this Section 3 shall be made in accordance with Section 6(b) of this
Agreement.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in
any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
incurred by him or on his behalf in connection therewith.
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement,
the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt
by the Company of a statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such Proceeding. To the extent
required by the Florida Business Corporation Act (the “FBCA”), Indemnitee hereby undertakes to
repay the amount of Expenses paid to Indemnitee if it is finally determined by a court of competent
jurisdiction that Indemnitee is not entitled under this Agreement or applicable law to
indemnification with respect to such Expenses. This undertaking is an unlimited and unsecured
general obligation of Indemnitee and no interest shall be charged thereon.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification.
It is the intent of this Agreement to secure for Indemnitee rights of indemnity to the fullest
extent permitted by law. Accordingly, the parties agree that the following procedures and
presumptions shall apply in the event of any question as to whether Indemnitee is entitled to
indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary, or any other executive officer of the
Company, shall, promptly upon receipt of such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 6(a) hereof, a determination, if required by applicable law, that Indemnitee has
met the applicable standard of conduct set forth in Section 1(a) or Section 1(b)
shall be made in the specific case by one of the following four methods: (i) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors, (ii) if such a
quorum is not obtainable or, even if obtainable, by majority vote of a committee duly designated by
the Board of Directors (in which directors who are parties may participate) consisting solely of
two or more directors not at the time parties to the Proceeding, (iii) for any claim which arises
following a Change in Control after the date hereof or as otherwise selected in accordance with
Section 6(c) hereof, by Independent Counsel, or (iv) by the shareholders by a majority
vote of a quorum consisting of shareholders who were not parties to such Proceeding or, if no such quorum is obtainable, by a majority vote of shareholders who were not parties to such
Proceeding.
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(c) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as
provided in this Section 6(c). The Independent Counsel shall be selected (i) by the Board
of Directors prescribed in subsection 6(b)(i) or the committee prescribed in subsection 6(b)(ii),
or (ii) if a quorum of the directors cannot be obtained for subsection 6(b)(i) and the committee
cannot be designated under subsection 6(b)(ii), by majority vote of the full Board of Directors (in
which directors who are parties may participate). Indemnitee may, within 10 days after such
written notice of selection shall have been given, deliver to the Company, as the case may be, a
written objection to such selection; provided, however, that such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 14 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 Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that such objection is without merit.
If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant
to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected
to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution
of any objection which shall have been made by the Indemnitee to the Company’s selection of
Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the
court or by such other person as the court shall designate, and the person with respect to whom all
objections are so resolved or the person so appointed shall act as Independent Counsel under
Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to
Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to
the procedures of this Section 6(c), regardless of the manner in which such Independent
Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure
of the Company (including by its directors or Independent 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 an actual
determination by the Company (including by its directors or Independent 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.
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(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Company, including financial statements, or on information
supplied to Indemnitee by the officers of the Company in the course of their duties, or on the
advice of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the Company. In addition, the
knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the
Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are
satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden
of persuasion by clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under Section 6 to
determine whether Indemnitee is entitled to indemnification shall not have made a determination
within sixty (60) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification 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; provided, however, that such 60-day period may be extended
for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or
entity making such determination with respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate documentation and/or information relating
thereto; and provided, further, that the foregoing provisions of this Section 6(f) shall
not apply if the determination of entitlement to indemnification is to be made by the shareholders
pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after
receipt by the Company of the request for such determination, the Board of Directors or the
Disinterested Directors, if appropriate, resolve to submit such determination to the shareholders
for their consideration at an annual meeting thereof to be held within seventy-five (75) days after
such receipt and such determination is made thereat, or (B) a special meeting of shareholders is
called within fifteen (15) days after such receipt for the purpose of making such determination,
such meeting is held for such purpose within sixty (60) days after having been so called and such
determination is made thereat.
(g) Indemnitee shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing to such person,
persons or entity 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 Independent Counsel, member of the Board of
Directors or shareholder of the Company shall act reasonably and in good faith in making a
determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any
costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and
the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
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(h) The Company acknowledges that a settlement or other disposition short of final judgment
may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to
which Indemnitee is a party is resolved in any manner other than by adverse judgment against
Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or
without payment of money or other consideration) it shall be presumed that Indemnitee has been
successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to
overcome this presumption shall have the burden of proof and the burden of persuasion by clear and
convincing evidence.
(i) 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 act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his conduct was unlawful.
(j) Evaluation of the reasonableness of expenses and authorization of indemnification shall be
made in the same manner as the determination that indemnification is permissible. However, if the
determination of permissibility is made by Independent Counsel, persons specified by Section
6(c) shall evaluate the reasonableness of expenses and may authorize indemnification.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this
Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement
of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no
determination of entitlement to indemnification is made pursuant to Section 6(b) of this
Agreement within 90 days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to this Agreement within ten (10) days after
receipt by the Company of a written request therefor or (v) payment of indemnification is not made
within ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to Section 6 of
this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the
State of Florida, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to
such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180
days following the date on which Indemnitee first has the right to commence such proceeding
pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any
such adjudication.
(b) In the event that a determination shall have been made pursuant to Section 6(b) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding
commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial
on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under
Section 6(b).
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(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
misstatement not materially misleading in connection with the application for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial
adjudication of his rights under, or to recover damages for breach of, this Agreement, or to
recover under any directors’ and officers’ liability insurance policies maintained by the Company,
the Company shall pay on his behalf, in advance, any and all expenses (of the types described in
the definition of Expenses in Section 14 of this Agreement) actually and reasonably
incurred by him in such judicial adjudication, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 7 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court that the Company is bound by
all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company
of a written request therefore) advance, to the extent not prohibited by law, such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee
for indemnification or advance of Expenses from the Company under this Agreement or under any
directors’ and officers’ liability insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of
Expenses or insurance recovery, as the case may be.
8. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification 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
Articles of Incorporation of the Company, the Bylaws, any agreement, a vote of shareholders, 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 Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in the FBCA, whether by statute or
judicial decision, permits greater indemnification than would be afforded currently under the
Articles of Incorporation of the Company, the Bylaws, or 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.
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(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or
of any other corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that such person serves at the request of the Company, Indemnitee shall be covered by
such policy or policies in accordance with its or their terms to the maximum extent of the coverage
available for any director, officer, employee, agent or fiduciary under such policy or policies.
If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has
director and officer liability insurance in effect, the Company shall give prompt notice of the
commencement of such 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 the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.
(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 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.
(d) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, officer, employee or agent of any other
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be
reduced by any amount Indemnitee has actually received as indemnification or advancement of
expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise.
9. Exception to Right of Indemnification.
(a) Notwithstanding any provision in this Agreement to the contrary, the Company shall not be
obligated under this Agreement to make any indemnity in connection with any claim made against
Indemnitee:
(i) for which payment has actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess beyond the
amount paid under any insurance policy or other indemnity provision; or
(ii) 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 Securities Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law.
(b) Notwithstanding any provision in this Agreement to the contrary, indemnification or
advancement of expenses under this Agreement shall not be made to or on behalf of the Indemnitee if
a judgment or other final adjudication establishes that his actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
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(i) a violation of the criminal law, unless the Indemnitee had reasonable cause to
believe his conduct was lawful or had no reasonable cause to believe his conduct was
unlawful;
(ii) a transaction from which the Indemnitee derived an improper personal benefit;
(iii) if the Indemnitee is a director, a circumstance under which the liability
provisions of section 607.0834 of the FBCA are applicable; or
(iv) willful misconduct or a conscious disregard for the best interests of the Company
in a proceeding by or in the right of the Company to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder.
10. Duration of Agreement. Indemnitee’s right to indemnification and advancement of
expenses pursuant to this Agreement shall continue regardless of whether Indemnitee has ceased for
any reason to be an officer, director, partner, trustee, employee or agent of the Company and shall
inure to the benefit of the heirs of the Indemnitee or the executors or administrators of
Indemnitee’s estate.
11. Change in Control. If there is a Change in Control of the Company, then the
acquiring or successor entity, as the case may be (the “Successor”), shall not diminish or limit in
any manner the indemnification rights available to the Indemnitee immediately prior to such Change
in Control, whether such rights were available under this Agreement, or pursuant to any other
agreement, any resolution of the Company’s shareholders or Board of Directors, any provision of the
Company’s Articles of Incorporation or Bylaws, or any statute or rule of law providing for
indemnification, now or hereafter in effect. No such Successor shall cancel, limit or in any way
diminish the rights or coverage provided to the Indemnitee pursuant to one or more directors’ and
officers’ insurance policies carried by the Company immediately prior to any such Change in
Control.
12. Security. To the extent requested by Indemnitee and approved by the Board of
Directors of the Company, the Company may at any time and from time to time provide security to
Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided to Indemnitee, may not be
revoked or released without the prior written consent of the Indemnitee.
13. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer
or director of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as an officer or 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.
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14. Definitions. For purposes of this Agreement:
(a) "Change in Control” shall mean (i) the acquisition by any Person, of direct or indirect
beneficial ownership of 40% or more of the voting power or voting securities of the Company, (ii)
the acquisition by any Person of direct or indirect beneficial ownership of 20% or more of the
voting power or voting securities of the Company and the subsequent election of a majority of the
members of the Company’s Board of Directors who were not members of the Board for the two-year
period immediately preceding their election, (iii) a transfer of all or substantially all of the
Company’s assets to another Person who is not a wholly owned subsidiary of the Company, or (iv)
merger or consolidation of the Company with another corporation where, as a result of such merger
and consolidation, less than 60% of the outstanding voting securities of the surviving or resulting
corporation shall then be owned by the shareholders of the Company immediately prior to such merger
or consolidation.
(b) "Corporate Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, limited liability company, employee benefit plan or other enterprise that such
person is or was serving at the request of the Company.
(c) "Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(d) "Expenses” means all fees, costs, and expenses of every kind incurred in connection with
any Proceeding, including, but not limited to, all reasonable attorneys’ fees, retainers,
accountants’ fees, private investigators’ fees, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, participating, or being or preparing to be a witness in a Proceeding. Expenses also
shall include Expenses incurred in connection with any appeal resulting from any Proceeding,
including without limitation the premium, security for, and other costs relating to any cost bond,
supersede as bond, or other appeal bond or its equivalent.
(e) "Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years has been, retained
to represent: (i) the Company or any of its entity affiliates or to any director, any corporation
of which the director is an officer, or any associate (as such term is defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended from time to time) of that director; (ii) the
Indemnitee in any matter material (other than with respect to matters concerning Indemnitee under
this Agreement, or of other indemnitees under similar indemnification agreements); or (iii) any
other party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent 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.
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(f) "Liabilities” shall include all judgments, penalties, fines and amounts paid in settlement
by Indemnitee.
(g) "not opposed to the best interest of the Company” includes the actions of a person who
acts in good faith and in a manner he or she reasonably believes to be in the best interests of the
participants and beneficiaries of an employee benefit plan.
(h) "Person” has the meaning assigned to it Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended; provided, however “Person” shall not include a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or a corporation owned
directly or indirectly by the shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company.
(i) "Proceeding” means any threatened, pending or completed action, claim, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, including any appeal
therefrom, but excluding one initiated by Indemnitee pursuant to Section 7 of this
Agreement to enforce his rights under this Agreement.
(j) "to the fullest extent permitted by law” means to the fullest extent permitted by
applicable law, as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide broader rights to
Indemnitee than such law permitted the Company to provide prior thereto), and that any amendment to
any applicable law shall not diminish the rights provided to Indemnitee hereunder as of the date of
this Agreement unless such amendment expressly provides that is unlawful for the Company to provide
the indemnification required by this Agreement and that Indemnitee may not enforce Indemnitee’s
rights hereunder.
15. Severability. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision. Without limiting the
generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification
rights to the fullest extent permitted by law. In the event any provision hereof conflicts with
any applicable law, such provision shall be deemed modified, consistent with the aforementioned
intent, to the extent necessary to resolve such conflict.
16. Modification and Waiver. Except as provided in the last sentence of Section 15
above, no supplement, modification, termination or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
17. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing
upon being served with or otherwise receiving any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter which may be subject
to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under
this Agreement or otherwise unless and only to the extent that such failure or delay materially
prejudices the Company.
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18. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c)
five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent:
(a) To Indemnitee at the address set forth below Indemnitee signature hereto.
(b) To the Company at:
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Chairman
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Chairman
or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
20. 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.
21. Governing 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 State of Florida, without regard to its conflict of laws rules. 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 a court sitting in the State of Florida
(the “Florida 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
Florida Court for purposes of any action or proceeding arising out of or in connection with this
Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the
Florida Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Florida Court has been brought in an
improper or inconvenient forum.
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SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
| COMPANY | ||||||
| MIMEDX GROUP, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INDEMNITEE | ||||
| Name: | ||||
| Address: | ||||
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