Replidyne, Inc (a Delaware corporation) INDEMNIFICATION AGREEMENT
Exhibit 10.1
Replidyne, Inc
(a Delaware corporation)
(a Delaware corporation)
This Indemnification Agreement (“Agreement”) is entered into as of the [___] day of
[___] 200[___] by and between Replidyne, Inc., a Delaware corporation (the “Company”) and
the director of the Company identified on the signature page hereto (the “Director”;
collectively with such Director’s Affiliated Persons (as defined in Section 10(a) hereof, the
“Indemnitee” or the “Indemnitees”).
R E C I T A L S
A. The Company and Director recognize the continued difficulty in obtaining liability
insurance for its directors, officers, employees, controlling persons, fiduciaries and other agents
and affiliates, the significant increases in the cost of such insurance and the general reductions
in the coverage of such insurance.
B. The Company and Director further recognize the substantial increase in corporate litigation
in general, subjecting directors, officers, employees, controlling persons, fiduciaries and other
agents and affiliates to expensive litigation risks at the same time as the availability and
coverage of liability insurance has been severely limited.
C. The current protection available to directors, officers, employees, controlling persons,
fiduciaries and other agents and affiliates of the Company may not be adequate under the present
circumstances, and directors, officers, employees, controlling persons, fiduciaries and other
agents and affiliates of the Company (or persons who may be alleged or deemed to be the same),
including the Indemnitees, may not be willing to continue to serve or be associated with the
Company in such capacities without additional protection.
D. The Company (a) desires to attract and retain the involvement of highly qualified persons,
such as Indemnitees, to serve and be associated with the Company, and (b) accordingly, wishes to
provide for the indemnification and advancement of expenses to the Director and the Indemnitees to
the maximum extent permitted by law.
E. In view of the considerations set forth above, the Company desires that Indemnitee be
indemnified by the Company as set forth herein.
NOW, THEREFORE, the Company and the Director hereby agree as follows:
1. Indemnification.
(a) Indemnification of Expenses. The Company shall indemnify and hold harmless the
Director and all of the Director’s Affiliated Persons (as defined in Section 10(a) hereof) to the
fullest extent permitted by law if any such Indemnitee was or is or becomes a party to or witness
or other participant in, or is threatened to be made a party to or witness or other participant in,
any threatened, pending or completed action, suit, proceeding or alternative dispute resolution
mechanism, or any hearing, inquiry or investigation
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that such Indemnitee, in good faith, believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (hereinafter a “Claim”) by reason of (or arising in
part out of) any event or occurrence related to the fact that Indemnitee is or was (or is alleged
to be or to have been) a director, officer, employee, controlling person, fiduciary or other agent
or affiliate of the Company, or any subsidiary of the Company, or is or was (or is alleged to be or
to have been) serving at the request of the Company as a director, officer, employee, controlling
person, fiduciary or other agent or affiliate of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action or inaction on the part of such Indemnitee
while serving (or allegedly serving) in such capacity, including, without limitation, any action or
Claim that arises or may arise, under the Securities Act of 1933, as amended (the “Securities
Act”), the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or any
other federal or state statutory law or regulation, at common law or otherwise, which relate
directly or indirectly (i) to the registration, purchase, sale or ownership of any securities of
the Company, (ii) to any fiduciary obligation owed with respect to the Company and its stockholders
or (iii) to any Series C Claim (as defined in Section 10(e) hereof) (collectively, hereinafter an
“Indemnification Event”), in any such case against any and all losses, claims, damages,
expenses and liabilities, joint or several (including attorneys’ fees and all other costs, expenses
and obligations incurred in connection with investigating, defending a witness in or participating
in (including on appeal), or preparing to defend, be a witness in or participate in, any such
action, suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or
investigation) related to any such Claim, judgments, fines, penalties and amounts paid in
settlement (if such settlement is approved in advance by the Company, which approval shall not be
unreasonably withheld) of any such Claim and any federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement (any
and all of the foregoing being referred to hereafter as “Expenses”), including all
interest, assessments and other charges paid or payable in connection with or in respect of such
Expenses. Such payment of Expenses shall be made by the Company as soon as practicable but in any
event no later than five (5) days after written demand by the Indemnitee therefor is presented to
the Company.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the obligations of the
Company under Section 1(a) shall be subject to the condition that the Reviewing Party (as defined
in Section 10(f) hereof) shall not have determined (in a written opinion, in any case in which the
Independent Legal Counsel referred to in Section 10(e) hereof is involved) that Indemnitee would
not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to
make an advance payment of Expenses to Indemnitee pursuant to Section 2(a) (an “Expense
Advance”) shall be subject to the condition that, if, when and to the extent that the Reviewing
Party determines that Indemnitee would not be permitted to be so indemnified under applicable law,
the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid (within thirty (30) days after such determination);
provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a
court of competent jurisdiction to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be
required to reimburse the Company for any Expense Advance until a final judicial determination is
made with respect thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed). Indemnitees’ obligation to reimburse the Company for any Expense Advance shall be
unsecured and no interest shall be charged thereon. If there has not been a Change in Control (as
defined in Section 10(d) hereof), the Reviewing Party shall be selected by the Board of Directors
with the approval of the Indemnitee (which approval shall not be unreasonably withheld), and if
there has been such a Change in Control (other than a Change in Control (i) that has been approved
by a majority of the Company’s Board of Directors (which majority shall include the Director))
prior to such Change in Control and (ii) following which a majority of the Board of Directors of
the
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Company is comprised of directors who were directors of the Company immediately prior to the
Change in Control (which majority may or may not include the Director), the Reviewing Party shall
be the Independent Legal Counsel referred to in Section 10(e) hereof subject to the approval of the
Indemnitee (which approval shall not be unreasonably withheld). If there has been no determination
by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not
be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
(c) Contribution. If the indemnification provided for in Section 1(a) above for any
reason is held by a court of competent jurisdiction to be unavailable to an Indemnitee in respect
of any losses, claims, damages, expenses or liabilities referred to therein, then the Company, in
lieu of indemnifying such Indemnitee thereunder, shall contribute to the amount paid or payable by
such Indemnitee as a result of such losses, claims, damages, expenses or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Indemnitees, or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Indemnitee in connection with
the action or inaction which resulted in such losses, claims, damages, expenses or liabilities, as
well as any other relevant equitable considerations. In connection with the registration of the
Company’s securities, the relative benefits received by the Company and any Indemnitee shall be
deemed to be in the same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and the Indemnitee, in each case as set forth in the
table on the cover page of the applicable prospectus, bear to the aggregate public offering price
of the securities so offered. The relative fault of the Company and any Indemnitee shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Indemnitee and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 1(c) were determined by pro rata or per capita allocation or by any other
method of allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. In connection with the registration of the Company’s securities,
in no event shall an Indemnitee be required to contribute any amount under this Section 1(c) in
excess of the net proceeds received by such Indemnitee from its sale of securities under such
registration statement. No person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation.
(d) Survival Regardless of Investigation. The indemnification and contribution
provided for in this Section 1 will remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnitees or any officer, director, employee, agent or controlling
person of the Indemnitees.
(e) Change in Control. The Company agrees that if there is a Change in Control (as
defined in Section 10(d) hereof) of the Company (other than a Change in Control that has been
approved by a majority of the Company’s Board of Directors (which majority shall include the
Director) who were directors immediately prior to such Change in Control) then, with respect to all
matters thereafter arising concerning the rights of any Indemnitee to payments of Expenses and
Expense Advances under this Agreement or any
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other agreement or under the Company’s Certificate of Incorporation or Bylaws as now or
hereafter in effect, Independent Legal Counsel (as defined in Section 10(e) hereof) shall be
selected by the Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld). Such counsel, among other things, shall render its written opinion to the Company and
Indemnitees as to whether and to what extent Indemnitees would be permitted to be indemnified under
applicable law. The Company agrees to abide by such opinion and to pay the reasonable fees of the
Independent Legal Counsel and to fully indemnify such counsel against any and all expenses
(including attorneys’ fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(f) Mandatory Payment of Expenses. Notwithstanding any other provision of this
Agreement other than Section 9 hereof, to the extent that an Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action without prejudice,
in the defense of any action, suit, proceeding, inquiry or investigation referred to in Section
(1)(a) hereof or in the defense of any claim, issue or matter therein, such Indemnitee shall be
indemnified against all Expenses incurred by such Indemnitee in connection therewith.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all Expenses incurred by any
Indemnitee. The advances to be made hereunder shall be paid by the Company to the Indemnitee as
soon as practicable but in any event no later than five (5) days after written demand by such
Indemnitee therefor to the Company with an undertaking by or on behalf of Indemnitee to
repay said amounts if it shall be judicially determined ultimately that Indemnitee is not entitled
to be indemnified under the provisions of this Agreement, the Bylaws, the General Corporation Law
of the State of Delaware or the CGCL.
(b) Notice/Cooperation by Indemnitees. Each Indemnitee shall, as a condition
precedent to Indemnitee’s 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. In addition, each Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within Indemnitee’s power.
(c) No Presumptions; Burden of Proof. For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that
any Indemnitee did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a determination as to whether an Indemnitee
has met any particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that the Indemnitee has not met such standard of conduct or
did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that the Indemnitee should be indemnified under applicable law, shall be a
defense to the Indemnitee’s claim or create a presumption that the Indemnitee has not met any
particular standard of conduct or did not have any particular belief. In connection with any
determination by the Reviewing Party or otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to establish that the Indemnitee
is not so entitled.
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(d) Notice to Insurers. If, at the time of the receipt by the Company of a notice of
a Claim pursuant to Section 2(b) hereof, the Company has liability insurance in effect that may
cover such Claim, the Company shall give prompt notice of the commencement of such Claim 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 each
Indemnitee, all amounts payable as a result of such action, suit, proceeding, inquiry or
investigation in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be obligated hereunder to
pay the Expenses of any Claim, the Company shall be entitled to assume the defense of such Claim,
with counsel approved by the applicable Indemnitee, which approval shall not be unreasonably
withheld, upon the delivery to such Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by the Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to such Indemnitee under this Agreement for
any fees of counsel subsequently incurred by such Indemnitee with respect to the same Claim;
provided that, (i) the Indemnitee shall have the right to employ such Indemnitee’s counsel in any
such Claim at the Indemnitee’s expense and (ii) if (A) the employment of counsel by the Indemnitee
has been previously authorized by the Company, (B) such Indemnitee shall have reasonably concluded
that there is a conflict of interest between the Company and such Indemnitee in the conduct of any
such defense, or (C) the Company shall not continue to retain such counsel to defend such Claim,
then the fees and expenses of the Indemnitee’s counsel shall be at the expense of the Company. The
Company shall have the right to conduct such defense as it sees fit in its sole discretion,
including the right to settle any claim, action or proceeding against any Indemnitee without the
consent of such Indemnitee, provided that the terms of such settlement include
either: (i) a full release of the Indemnitee by the claimant from all liabilities or potential
liabilities under such claim; or (ii), in the event such full release is not obtained, the terms of
such settlement do not limit any indemnification right the Indemnitee may now, or hereafter, be
entitled to under this Agreement, the Company’s Certificate of Incorporation, Bylaws, any
agreement, any vote of stockholders or disinterested directors, the General Corporation Law of the
State of Delaware, the CGCL (as defined in Section 3(a) hereof) or otherwise.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify each Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification may not be specifically
authorized by the other provisions of this Agreement, the Company’s Certificate of Incorporation,
the Company’s Bylaws or by statute. In the event of any change after the date of this Agreement in
any applicable law, statute or rule (including, without limitation, Section 317 (or any successor
statute) (“Section 317”) of the California General Corporation Law (the “CGCL”), as
such may be or become applicable to the Company pursuant to Section 2115 of the CGCL (“Section
2115”)) that expands the right of a Delaware corporation to indemnify a member of its Board of
Directors or an officer, employee, controlling person, agent or fiduciary, it is the intent of the
parties hereto that each Indemnitee shall enjoy by this Agreement the greater benefits afforded by
such change. In the event of any change in any applicable law, statute or rule (including, without
limitation, Section 317, as such may be or become applicable to the Company pursuant to Section
2115) that narrows the right of a Delaware corporation to indemnify a member of its Board of
Directors or an officer, employee, controlling person, agent or fiduciary, such change, 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 except as set
forth in Section 8(a) hereof.
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(b) Nonexclusivity. The indemnification provided by this Agreement shall be in
addition to any rights to which any Indemnitee may be entitled under the Company’s Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested directors, the
General Corporation Law of the State of Delaware, the CGCL or otherwise. The indemnification
provided under this Agreement shall
continue as to each Indemnitee for any action such Indemnitee took or did not take while
serving in an indemnified capacity even though the Indemnitee may have ceased to serve in such
capacity.
4. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Claim made against any Indemnitee to the extent such
Indemnitee has otherwise actually received payment (under any insurance policy, Certificate of
Incorporation, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. If any Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for any portion of Expenses incurred in connection with
any Claim, but not, however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to which such Indemnitee is entitled.
6. Mutual Acknowledgment. The Company and each Indemnitee acknowledge that in certain
instances, Federal law or applicable public policy may prohibit the Company from indemnifying its
directors, officers, employees, controlling persons, fiduciaries or other agents or affiliates
under this Agreement or otherwise. Each Indemnitee understands and acknowledges that the Company
has undertaken or may be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain circumstances for a
determination of the Company’s rights under public policy to indemnify the Indemnitees.
7. Liability Insurance. To the extent the Company maintains liability insurance
applicable to directors, officers, employees, control persons, fiduciaries or other agents and
affiliates, each Indemnitee shall be covered by such policies in such a manner as to provide to the
Indemnitee the same rights and benefits as are accorded to the most favorably insured of the
Company’s directors, if such Indemnitee is a director, or of the Company’s officers, if such
Indemnitee is not a director of the Company but is an officer; or of the Company’s key employees,
controlling persons, fiduciaries or other agents or affiliates, if such Indemnitee is not an
officer or director but is a key employee, control person, fiduciary, agent or affiliate.
8. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of the this Agreement:
(a) Excluded Action or Omissions. To indemnify any Indemnitee for acts, omissions or
transactions from which the Indemnitee may not be relieved of liability or for which the Indemnitee
may not be indemnified or receive contribution under applicable law;
(b) Claims Initiated by Indemnitee. To indemnify or advance expenses to any
Indemnitee with respect to Claims initiated or brought voluntarily by such Indemnitee and not by
way of defense, except (i) with respect to actions or proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other agreement or insurance policy or under
the Company’s Certificate of Incorporation or Bylaws now or hereafter in effect relating to Claims
for Indemnification Events, (ii) in specific cases if the Board of Directors has approved the
initiation or bringing of such Claim, or (iii) as otherwise required under Section 145 of the
Delaware General Corporation Law, regardless of whether such Indemnitee ultimately is determined to
be entitled to such indemnification, advance expense payment or insurance recovery, as the case may
be;
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(c) Lack of Good Faith. To indemnify any Indemnitee for any expenses incurred by such
Indemnitee with respect to any 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 the Indemnitee in such proceeding was not made in good faith or was frivolous;
or
(d) Claims Under Section 16(b). To indemnify any Indemnitee for expenses and the
payment of profits arising from the purchase and sale by such Indemnitee of securities in violation
of Section 16(b) of the Exchange Act or any similar successor statute.
9. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against any Indemnitee, such Indemnitee’s
estate, spouse, heirs, executors or personal or legal representatives after the expiration of two
(2) years from the date of accrual of such cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless asserted by the timely filing of a legal
action within such two (2)-year period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
10. Construction of Certain Phrases.
(a) For the purposes of this Agreement, an “Affiliated Person” of an Indemnitee shall
include any director, officer, employee, controlling person (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act), agent or fiduciary of the Indemnitee, and
any stockholder, partner, partnership, corporation, limited liability company, association, joint
stock company, trust or joint venture, or similar entity controlling, controlled by or under common
control with the entity or person that the Indemnitee represents in connection with the
Indemnitee’s service to the Company. For these purposes, “control” means the possession, directly
or indirectly, of the power to direct management and policies of a person or entity, whether
through the ownership of voting securities, contract or otherwise.
(b) 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 that, if its separate existence had continued,
would have had power and authority to indemnify is directors, officers, employees, agents,
fiduciaries and other Affiliated Persons, so that if Indemnitee is or was a director, officer,
employee, agent, control person, fiduciary or an Affiliated Person of such constituent corporation,
or is or was serving at the request of such constituent corporation as a director, officer,
employee, control person, agent or fiduciary or another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, such Indemnitee shall stand in the same position
under the provisions of this Agreement with respect to the resulting or surviving corporation as
such Indemnitee would have with respect to such constituent corporation if its separate existence
had continued.
(c) For purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes assessed on
any Indemnitee with respect to an employee benefit plan other than any such excise taxes resulting
from a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986,
as amended; and references to
“serving at the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company that imposes duties on, or involves services by, such director, officer, employee, agent, fiduciary or other Affiliated Person with respect to an employee benefit plan, its participants or its beneficiaries; and if any Indemnitee acted in good faith and in a manner such Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, such 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.
“serving at the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company that imposes duties on, or involves services by, such director, officer, employee, agent, fiduciary or other Affiliated Person with respect to an employee benefit plan, its participants or its beneficiaries; and if any Indemnitee acted in good faith and in a manner such Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, such 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.
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(d) For purposes of this Agreement a “Change in Control” shall be deemed to have
occurred if: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company, (A) who
is or becomes the “beneficial owner” (hereinafter as defined in Rule 13d-3 under said
Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company’s then outstanding Voting Securities, increases such person’s
beneficial ownership of such securities by 5% or more over the percentage so owned by such person,
or (B) who becomes the beneficial owner, directly or indirectly, of securities of the Company
representing more than 20% of the total voting power represented by the Company’s then outstanding
Voting Securities; (ii) during any period of two (2) consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and any new director
whose election by the Board of Directors or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a majority thereof; or (iii) the
stockholders of the Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation that would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of
the total voting power represented by the Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the sale or disposition
by the Company of (in one transaction or a series of transactions) all or substantially all of the
Company’s assets.
(e) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney
or firm of attorneys, selected in accordance with the provisions of Section 1(b) hereof, who shall
not have otherwise performed services for the Company or any Indemnitee within the last three (3)
years (other than with respect to matters concerning the right of any Indemnitee under this
Agreement, or of other indemnitees under similar indemnity agreements).
(f) For purposes of this Agreement, a “Reviewing Party” shall mean any appropriate
person or body consisting of a member or members of the Company’s Board of Directors or any other
person or body appointed by the Board of Directors who is not a party to the particular Claim for
which an Indemnitee is seeking indemnification, or Independent Legal Counsel.
(g) For purposes of this Agreement, “Voting Securities” shall mean any securities of
the Company that vote generally in the election of directors.
(h) For purposes of this Agreement, “Series C Claim” means any Claim related to
Indemnitees’ actions or omissions (or alleged actions or omissions) in connection with the purchase
of Series C Preferred Stock under that certain Convertible Preferred Stock Purchase Agreement dated
April 28, 2004 by and among the Company and the Investors (as defined therein).
11. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
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12. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business and/or assets of the Company, spouses, heirs, and
personal and legal representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the Company, by written agreement in form and
substance satisfactory to each Indemnitee, expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in effect with respect to Claims
relating to Indemnification Events regardless of whether any Indemnitee continues to serve as a
director, officer, employee, agent, controlling person, or fiduciary of the Company or of any other
enterprise at the Company’s request.
13. Attorneys’ Fees. In the event that any action is instituted by an Indemnitee
under this Agreement or under any liability insurance policies maintained by the Company to enforce
or interpret any of the terms hereof or thereof, any Indemnitee shall be entitled to be paid all
Expenses incurred by such Indemnitee with respect to such action, regardless of whether such
Indemnitee is ultimately successful in such action, and shall be entitled to the advancement of
Expenses with respect to such action, unless, as a part of such action, a court of competent
jurisdiction over such action determines that each of the material assertions made by such
Indemnitee as a basis for such action was not made in good faith or was frivolous. In the event of
an action instituted by or in the name of the Company under this Agreement to enforce or interpret
any of the terms of this Agreement, the Indemnitee shall be entitled to be paid all Expenses
incurred by such Indemnitee in defense of such action (including Expenses incurred with respect to
Indemnitee counterclaims and cross-claims made in such action), and shall be entitled to the
advancement of Expenses with respect to such action, unless, as a part of such action, a court
having jurisdiction over such action determines that each of such Indemnitee’s material defenses to
such action was made in bad faith or was frivolous.
14. Notice. All notices and other communications required or permitted hereunder
shall be in writing and shall be effective upon the earlier to occur of (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if delivered by first
class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one (1) business day
after the business day of deposit with Federal Express or similar overnight courier, freight
prepaid, or (d) one (1) business day after the day of delivery by facsimile or electronic mail
transmission, if deliverable by facsimile or electronic mail transmission, with a copy sent by
first class mail, postage prepaid, addressed, if to an Indemnitee at the Indemnitee’s address as
set forth beneath the Indemnitee’s signature to this Agreement, and if to the Company at the
address of its principal corporate offices (attention: Secretary or Chief Executive Officer) or at
such other address as such party may designate by ten (10) days’ advance written notice provided to
the other party hereto.
15. Consent to Jurisdiction. The Company and each Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action or proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be commenced, prosecuted and continued only in the
Court of Chancery of the State of Delaware in and for New Castle County, which shall be the
exclusive and only proper forum for adjudicating such a claim.
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16. Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitations, each portion of this
Agreement containing any provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
17. Choice of Law. This Agreement shall be governed by and its provisions construed
and enforced in accordance with the laws of the State of Delaware, as applied to contracts between
Delaware residents, entered into and to be performed entirely within the State of Delaware, without
regard to the conflict of laws principles thereof.
18. 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 each 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 effectively to bring suite to enforce such rights.
19. Third Party Beneficiaries. Indemnitees are intended to be third party
beneficiaries of this Agreement.
20. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed by all 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.
21. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto.
22. No Construction as Employment Agreement. Nothing contained in this Agreement
shall be construed as giving any Indemnitee any right to be retained in the employ of the Company
or any of its subsidiaries.
Remainder of Page Intentionally Blank
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
| COMPANY | ||||||||
| Replidyne, Inc. | ||||||||
| a Delaware corporation | ||||||||
| By: | ||||||||
| Title: | ||||||||
| Address: 0000 Xxxxxxxx Xxxxx | ||||||||
| Xxxxxxxxxx XX, 00000 | ||||||||
| AGREED TO AND ACCEPTED BY: | ||||||||
By: |
||||||||
| Printed Name: | ||||||||
Title: |
||||||||
| Address: | ||||||||
