EXHIBIT 10.7
INDEMNITY AGREEMENT
This Indemnity Agreement is made and entered into as of this
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day of , 20 , by and between Advanced Medical
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Optics, Inc., a Delaware corporation (the "Company"), and
("Indemnitee").
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WHEREAS, Indemnitee is currently serving as a director and/or officer
of the Company or, at the Company's request, as a director and/or officer of a
subsidiary of the Company, and the Company wishes Indemnitee to continue in such
capacity;
WHEREAS, the Certificate of Incorporation of the Company provides that
(1) the Company shall indemnify to the fullest extent permitted by the Delaware
General Corporation Law, directors and officers of the Company and persons
serving at the request of the Company as a director or officer of another
corporation, (2) such indemnification shall include expenses, and any such
expenses may be paid by the Company in advance of the final disposition of the
action, suit or proceeding giving rise to such indemnification, and (3) such
indemnification shall not be deemed exclusive of any other rights to which any
person seeking indemnification from the Company may be entitled under any
agreement;
WHEREAS, Indemnitee has indicated that he or she may not be willing to
continue to serve as a director and/or officer of the Company or any of its
subsidiaries in the absence of indemnification in addition to that provided in
the Certificate of Incorporation of the Company; and
WHEREAS, the Company, in order to induce Indemnitee to continue to
serve as a director and/or officer of the Company or its subsidiaries, has
agreed to provide Indemnitee with the benefits contemplated by this Indemnity
Agreement, and, as a result of the provision of such benefits, Indemnitee has
agreed to continue to serve in such capacity.
NOW, THEREFORE, in consideration of the promises, conditions and
representations set forth herein, including Indemnitee's continued service as a
director and/or officer of the Company or its subsidiaries, the Company and
Indemnitee hereby agree as follows:
Section 1. Definitions. The following terms, as used herein, shall
have the following meanings:
(a) "Covered Claim" shall mean any claim against Indemnitee based upon
or arising out of any past, present or future act, omission, neglect or breach
of duty, including any actual or alleged error, misstatement or misleading
statement, which Indemnitee may commit, omit or suffer while acting in his or
her capacity as a director and/or officer of the Company or its subsidiaries and
solely because of being a director and/or officer of the Company or its
subsidiaries; provided, however, that a
Covered Claim shall not include any amounts paid or payable by Indemnitee with
respect to any claim that:
(i) is based upon and arises out of Indemnitee gaining in fact
any personal profit or advantage to which Indemnitee is not legally
entitled;
(ii) is for an accounting of profits in fact made from the
purchase or sale 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 any state law; or
(iii) is based upon and arises out of Indemnitee's knowingly
fraudulent, deliberately dishonest or willful misconduct.
A Covered Claim shall include any claim made against the lawful spouse (whether
such status is derived by reason of statutory law, common law or otherwise of
any applicable jurisdiction in the world) of Indemnitee for claims arising
solely out of Indemnitee's capacity as the spouse of Indemnitee, including such
claims that seek damages recoverable from marital community property, property
jointly held by Indemnitee and the spouse or property transferred from
Indemnitee to the spouse; provided, however, that a Covered Claim shall not
include any claim for any actual or alleged wrongful act of the spouse. To the
extent necessary to carry out the terms of this paragraph, the term "Indemnitee"
as used in this Indemnity Agreement shall include the Indemnitee's spouse.
(b) "Determination" shall mean a determination, based upon the facts
know at the time, made by:
(i) the Board of Directors of the Company, by the vote of a
majority of the directors who are not parties to the action, suit or
proceeding in question, at a meeting at which there is a quorum consisting
solely of such disinterested directors;
(ii) if such a quorum is not obtainable, or, even if obtainable,
if directed by a majority of such disinterested directors at a meeting of
the Board of Directors of the Company at which there is a quorum consisting
solely of such disinterested directors, by independent legal counsel in a
written opinion;
(iii) the stockholders of the Company; or
(iv) a court of competent jurisdiction in a final, nonappealable
adjudication.
(c) "Payment" shall mean any and all amounts which Indemnitee is or
becomes legally obligated to pay in connection with a Covered Claim, including,
without limitation, damages, judgments, fines, ERISA excise taxes or penalties,
amounts paid
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in settlement, costs of investigation, attorneys' fees, costs of investigative,
judicial or administrative proceedings or appeals, and costs of attachment or
similar bonds.
Section 2. Indemnification. The Company shall indemnify and hold
harmless Indemnitee against and from any and all Payments, except to the extent
that:
(a) the Company shall have indemnified and held harmless Indemnitee
against and from such Payments otherwise than pursuant to this Indemnity
Agreement;
(b) Indemnitee shall have received payment on account of such Payments
pursuant to one or more valid and collectible insurance policies; or
(c) such indemnification by the Company is prohibited by applicable
law.
The Company shall have no obligation to indemnify Indemnitee under this
Indemnity Agreement for any amounts paid in settlement of any action, suit or
proceeding effected without the Company's prior written consent. The Company
shall not settle any claim in any manner that would impose any obligation on
Indemnitee without Indemnitee's prior written consent. Neither the Company nor
Indemnitee shall unreasonably withhold their consent to any proposed settlement.
Section 3. Indemnification Procedure; Advancements of Costs and
Expenses.
(a) Promptly after receipt by Indemnitee of notice of the commencement
or threat of commencement of any action, suit or proceeding, Indemnitee shall,
if indemnification with respect thereto may be sought from the Company under
this Indemnity Agreement, notify the Company thereof.
(b) If, at the time of receipt of such notice the Company has
directors' and officers' 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
in favor of Indemnitee. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all
Payments payable as a result of such action, suit or proceeding in accordance
with the terms of such policies.
(c) All costs and expenses, including attorneys' fees, incurred by
Indemnitee in defending or investigating such action, suit or proceeding shall
be paid by the Company in advance of the final disposition of such action, suit
or proceeding; provided, however, that no such costs or expenses shall be paid
by the Company if, with respect to such action, suit or proceeding, independent
legal counsel shall advise the Board of Directors in a written opinion that
based upon the facts known to such counsel at that time:
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(i) Indemnitee acted in bad faith or deliberately breached his or
her duty to the Company or its stockholders, and
(ii) as a result of such conduct by Indemnitee, it is more likely
than not that it will ultimately be determined that Indemnitee is not
entitled to indemnification under this Agreement.
Indemnitee hereby undertakes to and agrees that he or she will repay the Company
for any costs or expenses advanced by or on behalf of the Company pursuant to
this Section 3(c) if it shall ultimately be determined by a court of competent
jurisdiction in a final, nonappealable adjudication that Indemnitee is not
entitled to indemnification under this Indemnity Agreement.
(d) If the Company shall advance the costs and expenses of any such
action, suit or proceeding pursuant to Section 3(c) of this Indemnity Agreement,
it shall be entitled to assume the defense of such action, suit or proceeding,
if appropriate, with counsel satisfactory to Indemnitee, upon delivery to
Indemnitee of written notice of its election to do so. After delivery of such
notice, the Company shall not be liable to Indemnitee under this Indemnity
Agreement for any costs or expenses subsequently incurred by Indemnitee in
connection with such defense other than reasonable costs and expenses of
investigation; provided, however, that:
(i) Indemnitee shall have the right to employ separate counsel in
any such action, suit or proceeding provided that the fees and expenses of
such counsel incurred after delivery of notice by the Company of its
assumption of such defense shall be at Indemnitee's own expense; and
(ii) the fees and expenses of counsel employed by Indemnitee
shall be at the expense of the Company if (aa) the employment of counsel by
Indemnitee has previously been authorized by the Company, (bb) 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, or
(cc) the Company shall not, in fact, have employed counsel to assume the
defense of such action, suit or proceeding.
(e) All payments on account of the Company's advancement obligations
under Section 3(c) of this Indemnity Agreement shall be made within twenty (20)
days of Indemnitee's written request therefor (subject to the proviso contained
in said Section 3(c), and all other payments on account of the Company's
obligations under this Indemnity Agreement shall be made within sixty (60) days
of Indemnitee's written request therefor, unless a prior Determination is made
that the claims giving rise to Indemnitee's request are not payable under this
Indemnity Agreement.
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Section 4. Enforcement of Indemnification; Burden of Proof. If a claim
for indemnification or advancement of costs and expenses under this Indemnity
Agreement is not paid in full by or on behalf of the Company within the time
period specified in Section 3(e) of this Indemnity Agreement, Indemnitee may at
any time thereafter bring suit against the Company to recover the unpaid amount
of such claim. In any such action, if a prior Determination has been made that
such claim is not payable under this Indemnity Agreement, the burden of proving
that indemnification is required under this Indemnity Agreement shall be on
Indemnitee. If no such prior Determination shall have been made, the Company
shall have the burden of proving that indemnification is not required under this
Indemnity Agreement.
Section 5. Rights Not Exclusive. The rights to indemnification and
advancement of costs and expenses provided hereunder shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under any
charter document, bylaw, agreement, vote of stockholders or disinterested
directors of otherwise.
Section 6. Subrogation. In the event of payment under this Indemnity
Agreement by or on behalf of the Company, 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 that may be required and shall do all things that may be
necessary to secure such rights, including, without limitation, the execution of
such documents as may be necessary to enable the Company effectively to bring
suit to enforce such rights.
Section 7. Choice of Law. This Indemnity Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Delaware.
Section 8. Jurisdiction. The Company and Indemnitee hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all
purposes in connection with any action, suit or proceeding which arises out of
or relates to this Indemnity Agreement, and agree that any action instituted
under this Indemnity Agreement shall be brought only in the state courts of the
State of Delaware.
Section 9. Attorneys' Fees. If any action, suit or proceeding is
commenced in connection with or related to this Indemnity Agreement, the
prevailing party shall be entitled to have its costs and expenses, including,
without limitation, attorneys' fees and expenses of investigation, paid by the
losing party.
Section 10. Severability. In the event that any provision of this
Indemnity Agreement is determined by a court to require the Company to do or to
fail to do an act which is in violation of applicable law, such provision shall
be limited or modified in its application to the minimum extent necessary to
avoid a violation of law, and, as so limited or modified, such provision and the
balance of this Indemnity Agreement shall be enforceable in accordance with
their terms.
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Section 11. Successors and Assigns. This Indemnity Agreement shall be
binding upon all successors and assigns of the Company, including any transferee
of all or substantially all of its assets and any successor by merger or
otherwise by operation of law, and shall be binding upon and inure to the
benefit of the heirs, executors and administrators of Indemnitee.
Section 12. Descriptive Headings. The descriptive headings in this
Indemnity Agreement are included for the convenience of the parties only and
shall not affect the construction of this Indemnity Agreement.
Section 13. Counterparts. This Indemnity Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one
document.
Section 14. Amendment. No amendment, modification, termination or
cancellation of this Indemnity Agreement shall be effective unless made in
writing and signed by each of the parties hereto.
IN WITNESS WHEREOF, the Company and Indemnitee have executed this
Indemnity Agreement as of the day and year first above written.
ADVANCED MEDICAL OPTICS, INC.
By:
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Xxxxx X. Xxxxx
Its: President and Chief Executive Officer
INDEMNITEE
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